Citation: Halifax (Regional Municipality) v. United Gulf Developments Ltd.,
2009 NSCA 78
Date: 20090709
Docket: CA 306518
Registry: Halifax
Between:
Halifax Regional Municipality
Appellant
v.
United Gulf Developments Limited and The Waterton Inc.
Respondents
Judges: Saunders, Hamilton and Fichaud, JJ.A.
Appeal Heard: May 20, 2009 in Halifax, Nova Scotia
Held: Appeal dismissed without costs per reasons for judgment of Hamilton, J.A.; Saunders and Fichaud, JJ.A. concurring.
Counsel: Kirby Grant for the appellant
Robert Grant, Q.C. and Tanya Butler, Articled Clerk, for
the respondent
Edward Gores, Q.C. for the Attorney General of
Nova Scotia (not participating)
Reasons for judgment:
[1] The appellant, Halifax Regional Municipality (“HRM”), appeals two decisions of the Nova Scotia Utility and Review Board (“Board”) reported as United Gulf Developments Limited (Re), 2008 NSUARB 167 (CanLII). The Board allowed the two appeals taken by the respondents, United Gulf Developments Limited and The Waterton Inc. (“the Developers”), concerning a similar project - the construction of a second twelve-storey apartment tower instead of a four-storey one on a common podium with an existing twelve-storey apartment tower.
[2] One appeal to the Board was from the refusal by the Chebucto Community Council (“Council”) to amend the Residential Comprehensive District Agreement No. 5419 (“Development Agreement”), as requested by the Developers, to allow the construction of the second twelve-storey tower with 299 units. The other appeal to the Board was from the Halifax Regional Municipality Development Officer’s (“Development Officer”) refusal to issue a development permit, as sought by the Developers, for the construction of the second twelve-storey tower with 276 units.
[3] The result of the Board’s decisions is that the second twelve-storey tower may be built with either 299 or 276 units. If HRM’s appeals to this court are successful, only a four-storey tower may be built.
Facts
[4] The podium on which the second apartment tower is to be built is located on a parcel of land known as Site C, just less than five acres in size. Site C is one of several sites comprising a 107-acre planned subdivision developed pursuant to the Development Agreement that was entered into in 1990 and amended seven times since. The subdivision was initially named Stanley Park but is now known as Stoneridge on the Park. The subdivision lands are zoned a Residential Development District under the Mainland South Secondary Planning Strategy (“MPS”). The subdivision has been developed in phases in accordance with a unified site design pursuant to MPS Policies 1.5 and 1.5.1. Site C is the last area of the Stoneridge subdivision to be developed. The permitted use for Site C is apartment buildings.
[5] The Development Agreement which is the subject of this appeal differs from many development agreements that relate to the development of a single property. The Development Agreement governs the development of the full 107 acres over several years and provides for diverse forms of housing ranging from detached single-family houses to twelve-storey apartment towers. It does not contain the type of detail normally found in single property development agreements. The report of Mr. Chris Lowe, one of the experts who testified on behalf of the Developers before the Board, characterized this particular Development Agreement as follows:
At the time of the initial negotiations, land covered by the Development Agreement was undeveloped and designated for future residential use (Residential Development District).
The 1990 Development Agreement, with amendments, is general in scope. It does not define the precise manner that a single parcel, (including the shape, size and location of a building on the Waterton lot), should be developed. Instead, it allows for the transfer of development densities between parcels within Stanley Park as long as a maximum population density (tied to sewer system capacity) is not exceeded. The Development Agreement then relies upon the bulk and supplementary controls of the land use bylaw to permit as‑of‑right development.
[6] The relevant parts of the Development Agreement provide:
2. The developer shall develop the lands substantially in conformance with Plan(s) No. P200/17616, 17618, 17619, 17626, 17632 and 16573 filed in the City of Halifax Development and Planning Department as Case No. 5419, and shall not develop or use the lands for any other purpose. In case of any conflict, Plan No. P200/17619 shall apply. [The July 7, 1995 amendment to the Development Agreement replaced plans 17619, 17618 and 17626 with plans 20332, 20333 and 20334, respectively.]
...
3. (c) Site C. Permitted use – 3 apartment buildings. Number of units – 221 two‑bedroom units. Maximum height – 4 storeys with the exception that one building may be permitted to be of a height of 12 storeys.
...
(f) Notwithstanding Clauses 3a to 3c, a variation in the number and type of units on each of Sites A, and C may be permitted provided that the overall maximum population density requirement for the entire development as specified in 3(l) is not exceeded and provided that the maximum variance in the number of units does not exceed 25%. [This clause was substituted for the original clause on September 9, 2003.]
...
(h) Unless specifically indicated to the contrary by this agreement or by Plan No. 17619 [Amended July 7, 1995 to 20332] of Case No. 5419, the R‑1, R‑2, R‑2AM and R‑4 provisions of the Land Use Bylaw, Mainland Area, shall apply to the single family, semi‑detached, townhouse and apartment uses respectively.
...
(l) Notwithstanding Clauses 3a to 3d inclusive, the maximum population density of the development shall be 26 ppa as defined on Plan P200/17619 - Stanley Park Master Plan - December 1989.
[7] Thus paragraph 2 of the Development Agreement requires Site C to be developed “substantially in conformance with” the plans referred to therein. These plans include plans outlining the water distribution, sanitary sewer, drainage, development schedule and landscape features for the entire subdivision. The most important plan for the purpose of this appeal is the master or concept plan showing two-dimensional icons depicting single detached houses, semi-detached houses/townhouses and apartment buildings throughout the 107 acres. It is accepted that the three icons displayed within Site C on the concept plan represent one twelve-storey apartment building and two four-storey apartment buildings. The original concept plan was 17619 and subsequently was 20332. The podium on which the Developers applied to build the second twelve-storey tower extends from the icon for the twelve-storey building on the concept plan to the icon for one of the four-storey buildings.
[8] HRM staff prepared a report for Council dated June 5, 2007 with respect to the requested amendment to the Development Agreement. The report recommended approval of the amendment by Council referring to the minimized massing, more underground parking, more open space, more landscaping and better traffic circulation that would result from the proposed amendment.
[9] Council refused the amendment at a meeting held on June 18, 2007. The minutes of that meeting were set out in paragraph 170 of the Board’s decision and are reproduced in paragraph 15 following.
[10] By letter to the Developers dated November 1, 2007, the Development Officer refused to issue a development permit for the twelve-storey tower. He referred to section 2 of the Development Agreement and stated:
Your proposal does not meet the following requirements:
the proposed building is not substantially in conformance with Development Agreement No. 5419, and the subsequent amendments.
The above noted application must be refused given it does not meet the above noted requirement.
Decisions of the Board under appeal
[11] With respect to the Developers’ appeal of Council’s refusal to amend the Development Agreement, the Board set out the test it was to apply in determining whether Council’s decision should be upheld or overturned in several places throughout its decision. One such place sets out the test as follows:
[149] The powers of the Board are similarly limited on such an appeal:
s. 251 (2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land‑use by‑law or the subdivision by‑law. [Emphasis in original]
[150] Thus, the Board must not interfere with the decision of [Council] unless it determines that Council's refusal does not reasonably carry out the intent of the MPS. The burden of proof is on the Appellant to establish, on a balance of probabilities, that in the words of s. 251(2), "... the decision of council...does not reasonably carry out the intent of the municipal planning strategy.”
[151] The Board is mindful about the scope of its jurisdiction in this appeal. The planners who testified at the hearing for each of the parties (i.e., Mr. Lowe and Mr. Harvey) both stated that if [Council] had approved the application to amend the development agreement, such a decision would have been reasonably consistent with the intent of the MPS. Indeed, Mr. Harvey recommended to [Council] in his Staff Report that the application be approved. However, that result is not determinative in this appeal.
[152] Notwithstanding that the evidence supports the view that a decision to approve the amendment reasonably carries out the intent of the MPS, the issue to be addressed by the Board in the present appeal is whether Council's decision to refuse the amendment fails to reasonably carry out the intent of the MPS. The Board has no jurisdiction to allow the Appellant's appeal if [Council] "interpreted and applied the [MPS] policies in a manner that the language of the policies can reasonably bear": see Heritage Trust, infra, at para. 99 of that decision.
[153] Accordingly, as noted above, if the Appellant can show, on the balance of probabilities, that Community Council’s decision does not reasonably carry out the intent of the MPS, the Board must reverse Community Council’s decision to refuse the amendment to the development agreement. If, however, the Appellant fails to meet this standard of proof, it is the Board’s duty to defer to the decision of the Community Council (see Heritage Trust, infra).
[12] The parties’ position before the Board and before this court was that this was the correct test, that the Board should not overturn Council’s refusal to amend the Development Agreement unless Council’s refusal did not reasonably carry out the intent of the MPS. Other references to this test are found at paragraphs 24, 68, 75, 105 and 108 of the Board’s decision.
[13] At paragraph 167, the Board also dealt with the test it was to apply:
[167] The burden of proof is on the Appellant in this matter. Thus, in the Board's opinion, the Appellant must find language in the MPS which expresses an intent that is not reasonably consistent with Community Council's decision to refuse the amendment as proposed: see [Re Tsimiklis, 2003 NSCA 30 (CanLII)], 2003 NSCA 30, at paragraph 27. In the opinion of the Board, for the reasons outlined below, the MPS does contain language showing a contrary intention.
[14] One of HRM’s grounds of appeal is that paragraph 167 indicates that the Board did not apply the correct test; that instead it determined that it could overturn Council’s refusal if it found an intent in the MPS that was not consistent with Council’s refusal. It argued this test was wrong and failed to take into account the fact there may be several intents in the MPS and that as long as Council’s refusal furthered one of these intents it stands. I will deal with this ground of appeal as ground one beginning at paragraph 60 of this decision.
[15] The Board considered the minutes of the meeting at which Council’s decision was made:
[168] In determining whether the decision of Community Council fails to reasonably carry out the intent of the MPS, it is instructive to consider the reasons provided by Community Council in refusing the amendment.
[169] Section 230(6) of the Municipal Government Act provides:
230(6) Within seven days after a decision refusing to approve a development agreement or an amendment to a development agreement, the clerk shall notify the applicant in writing, giving reasons for the refusal and setting out the right of appeal.
[170] The Appeal Record filed by HRM in this appeal does not contain any copy of a notification provided by the clerk of HRM, as contemplated under s. 230(6). In these circumstances, the Board refers to the minutes of Community Council dated June 18, 2007. The excerpt dealing with the subject application is brief and provides as follows:
10.1.2 Case 00956: Amending Development Agreement, Site "C", 60 Walter Havill Drive, Halifax
A staff report dated June 5, 2007 was submitted.
Councillor Mosher asked Councillor Wile to assume the Chair.
MOVED by Councillor Adams, seconded by Councillor Hum that Chebucto Community Council give Notice of Motion to consider an application by United Gulf Developments Limited for an amending development agreement (Attachment A to the June 5, 2007 staff report) to allow for a building with two 12‑storey towers upon Site "C", 60 Walter Havill Drive, Stoneridge on the Park Subdivision, Halifax and schedule a public hearing.
Councillor Mosher addressed the application and advised that the RDD Policies for the area, the Halifax Mainland Planning Strategy (MPS) call for a comprehensive Master Plan, in particular, Policy 1.5. She added that, in the policy, these areas are meant to be a Master Plan Community and she questioned, therefore, why Community Council and the community are continually dealing with these amendments. She added that this requested amendment to add an additional 12 storey building is too big of a change from this type of master planned area. Councillor Mosher advised that, pursuant to Section 230(6) of the Municipal Government Act, she was voting against the motion and wished to refuse the entire amending agreement. She pointed out that there were many reasons for her not voting for the main motion and that Councillors have heard many of these reasons each time an amendment is requested for this development agreement. Councillor Mosher requested Community Council's support in refusing this amending agreement.
THE MOTION WAS DEFEATED. [Emphasis in original]
[171] To the extent that the reasons provided by Councillor Mosher were adopted by the remainder of Community Council, the Board accepts the testimony of Mr. Lowe that these reasons do not reasonably carry out the intent of the MPS. First, Mr. Lowe noted that there is no restriction on the number of times that an applicant may apply to amend a development agreement. Second, Community Council erred if it interpreted the application as a request "to add an additional 12 storey building" to Site C. As noted earlier in this decision, the National Building Code clearly interprets the subject development as one building, not two buildings as asserted by Councillor Mosher.
[172] Mr. Lowe also notes that Community Council had the benefit of receiving the Staff Report, which recommended approval of the amendment to the development agreement. Council did not follow the recommendation of planning staff. The Board recognizes that municipal councils can, and sometimes do, ignore such recommendations.
[16] The Board then reviewed the MPS to see if the proposed amendment was “too big of a change”, as mentioned in the minutes. It accepted the evidence of Mr. Lowe that the construction of the second twelve-storey tower was consistent with the “unified site design” relating to the 107-acre subdivision so that the proposed amendment was not a substantial change:
[178] ... In the Board's opinion, the present application to amend the development agreement does not materially change the "unified site design". In fact, the proposal is entirely consistent with it. In this respect, the Board notes that the proposed amendment does not change the nature of the development on the site. With or without the amendment, a 12 storey residential apartment building can be built on Site C. In terms of the "unified site design", the assertion that the change is too substantial is untenable.
[17] The Board also accepted Mr. Lowe’s testimony on the effect of clause 3(f) of the Development Agreement and the weight to be given to the building icons on Site C on the concept plan. His testimony was that the icons on the concept plan were illustrations only and not determinative of the size, shape or location of the apartment buildings that could be built because clause 3(f) permitted the Developers to move population density to Site C from the rest of the subdivision and vary the number of units which would necessarily change the building forms on Site C. The Board found the population density and number of units proposed by the amendment were not a substantial change:
[182] Mr. Lowe testified that the application is consistent with the "unified site design" originally approved for Stoneridge, particularly as it relates to population density for Stoneridge and the number of units on Site C.
[183] In this respect, Mr. Lowe identified clause 3(f) as a trigger provision which provides latitude to the Developer in its development of Stoneridge, generally, and Site C, specifically:
Q. What's the significance of that trigger provision that you refer to?
A. Well, I think the significance of the trigger provision is that the concept plan that was prepared for the site is really just a graphic representation of the agreement in visual form, but it really cannot show the intent for specific buildings on particular parcels because there is an unlimited number of options available to the developer in terms of moving those development densities around between the various parcels in conformity with the land use by‑law requirements.
Q. What happens to building forms when densities are moved around?
A. The building forms change, the shapes of them change, the landscaping changes, etc., and when this agreement was put in place, the graphic representations or the concepts or sketches that were put on the plans were really treated as an illustration but not exactly the exact footprint of where a building would go.
[184] The Board concludes that it is inherent in the concept of the "unified site design" that the subject development agreement contemplates the development of Stoneridge in a comprehensive manner, rather than by a series of site specific development agreements dealing with individual portions of Stoneridge, in isolation, without regard to other parts of the subdivision.
[185] The Board finds that Council's decision does not reasonably comply with the intent of the MPS in relying on the change in population density and the number of units to refuse the amendment. First, the change in the number of units from 276 to 299, while it does exceed a variance of 25% as required by clause 3(f) of the development agreement, it is not significant when compared to the entire Stoneridge development and its "unified site design". Second, the increase of three in population density is negligible in the face of the population density already approved in the development agreement for Site C. While the addition of three persons on Site C is a change, Council's decision to base their refusal on this point is an unreasonable interpretation of the MPS when it is read as a whole. In this respect, the Board considers that the increase in the number of units and the population density is not material in the context of the population density for all of Stoneridge, which will be eight persons less than the allowable maximum under the current development agreement. To the extent that Community Council relied upon these points in reaching its decision, the refusal does not reasonably comply with the intent of the MPS.
[18] The Board considered whether the amendment would be contrary to the transitional provisions contained in Policy 5 of the Schedule 1 Guidelines to Section X of the MPS. It accepted Mr. Lowe’s testimony that these provisions were not relevant because the “abutting existing residential areas” referred to in Policy 5 were areas which abutted the outside perimeter of the entire Stoneridge subdivision when the Development Agreement was entered into in 1990 rather than lands abutting Site C :
[186] Policy 5 of the Schedule I Guidelines of Section X of the MPS applies to this application because it is referenced in Policy 1.5.1 and is incorporated by reference on the plans annexed to the development agreement. It provides, in part, as follows:
‑ the design and layout of the portion of new residential developments abutting existing residential areas shall endeavour to protect the character and scale of these areas by attention to such matters as use of open space, landscaping, and ensuring adequate transition between areas of differing building forms and densities. (Emphasis added)
...
[188] Mr. Lowe testified that the determination of what is an "abutting existing residential area" is a question which was addressed when the original development agreement was approved in 1990. In his view, that issue was determined in the Developer's favour when the agreement was initially approved. Further, he testified that the "abutting" areas referred to in Policy 5 refer to areas which abutted the entire Stoneridge subdivision when the original development agreement was approved in 1990.
...
[190] The Board accepts Mr. Lowe's evidence on this point. Based upon the Board's review, it is satisfied that the only reasonable interpretation of an "existing residential area" in Policy 5 of the Schedule I Guidelines is a reference to existing residential areas which were abutted by the outer boundaries of the Stoneridge development when the development agreement was originally approved in 1990. In the Board's opinion, this is the only reasonable interpretation of Policy 5 when considered in the context of Policy 1.5 and Policy 1.5.1. In the context of a "unified site design" for RDD lands, it appears contradictory to set‑off one phase of the subdivision versus another phase. Thus, any consideration of abutting residential areas next to Site C, under Policy 5, is not relevant to this appeal.
[19] The Board also found that Council’s refusal did not reasonably comply with the intent of the MPS because of the reduced size of Site C as a result of the seventh amendment:
[199] Further, for the reasons explained earlier in this decision, the Board concludes that the impact of the Seventh Amending Agreement, which reduced the size of Site C in order to accommodate the construction of single family dwellings along Walter Havill Drive, supports the conclusion that Council's decision is not consistent with the intent of the MPS policies. The reduced area delineated by the boundaries of Site C can no longer accommodate three separate buildings.
[200] Taking into account the reduced size of Site C and the "unified site design" required under Policy 1.5, the amendment of the development agreement requested by the Developer is consistent with the intent of the MPS in order to maintain the integrity of the "unified site design" already approved in the original development agreement. If the proposal is not approved, the maximum population density contemplated as part of the original "unified site design" will not be achieved.
[201] In this respect, Community Council's decision does not reasonably comply with the intent of the MPS.
[20] Finally, the Board noted the agreement of all of the witnesses who appeared before it that the proposed twelve-storey tower represented an improvement over the three buildings depicted on the concept plan and referred to in clause 3(c) of the Development Agreement in terms of setback, angle controls, underground parking, open space, landscaping and traffic circulation.
[21] The Board allowed the appeal, concluding:
[203] The application is consistent with the "unified site design" required under Policy 1.5 and complies with the land‑use requirements and controls required under Policy 1.5.1, as well as those required under the terms of the development agreement, including the Schedule I Guidelines of Section X of the MPS. Moreover, the Board concludes that a contrary interpretation of Policies 1.5 and 1.5.1 is not reasonable. Council had no policy basis to refuse the amendment requested by the Developer.
[204] The Board observes that the present appeal does not raise the spectre of competing policy considerations under the MPS. The present application raises two policy provisions, namely, Policies 1.5 and 1.5.1, as well as the Schedule I Guidelines. The Board concludes, for the reasons outlined above, that nothing in these policies supports the refusal of the Developer's application.
[205] Taking into account all of the foregoing, the Board finds that the decision of Community Council to refuse the amendment, viewed in its entirety, does not reasonably carry out the intent of the MPS.
[206] As noted above in this decision, Mr. Lowe and Mr. Harvey both testified that the approval of the Developer's application to amend the development agreement follows from an interpretation which reasonably complies with the intent of the MPS.
[207] Accordingly, the Board allows the appeal and, pursuant to s. 251(1)(c), orders that Community Council approve the amendment to the development agreement as requested in the application.
[22] With respect to the Developers’ appeal of the Development Officer’s refusal to grant a development permit, the Board again relied on s.251(2) of the Municipal Government Act (“MGA”), S.N.S. 1998, c.18, for the test it was to apply in determining if it should uphold or overturn the Development Officer’s decision:
251(2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land‑use by‑law or the subdivision by‑law. (Emphasis added)
[23] Accepting the arguments of both parties, the Board interpreted this section broadly to include the words “a development agreement” along with the words “the land‑use by‑law or the subdivision by‑law”, noting this was consistent with s.250(2) which included these words:
(2) An applicant may only appeal a refusal to issue a development permit on the grounds that the decision of the development officer does not comply with the land‑use by‑law, a development agreement, an order establishing an interim planning area or an order regulating or prohibiting development in an interim planning area. (Emphasis added)
[24] The effect of this interpretation was that the Board was not to allow an appeal from the Development Officer’s refusal unless it determined that the refusal conflicted with the provisions of the Development Agreement, with the R-4 provisions of the land‑use by‑law or with the Schedule 1 Guidelines.
[25] The Board’s interpretation of s.251(2) has not been challenged on appeal to this court. Accordingly, for the purpose of this appeal, I have assumed, without deciding, that the Board did not err in its interpretation.
[26] Relying on 3032594 Nova Scotia Ltd. v. Antigonish (Town of), 2000 NSUARB 151 (CanLII), para 107, the Board also interpreted s.251(2) to mean that it was only to consider whether the Development Officer’s refusal conflicted with the provisions of the Development Agreement, with the R-4 provisions of the land‑use by‑law or with the Schedule 1 Guidelines, not whether the decision reasonably carried out the intent of the MPS, when it was deciding whether the Development Officer’s refusal should be upheld or overturned. This interpretation was also based on the wording of s.250(2) of the MGA set out in paragraph 23 above to the effect that an applicant can only appeal a refusal by a development officer to issue a development permit on the basis the refusal does not comply with the land-use by-law, a development agreement, an order establishing an interim planning area or an order regulating or prohibiting development in an interim planning area.
[27] Again, no party took issue with this finding and I have assumed without deciding that the Board did not err in this interpretation.
[28] Relying on Bay Haven Beach Villas Inc. v. Halifax (Regional Municipality), [2004] NSCA 59, the Board found that the standard of review it was to apply in reviewing the Development Officer’s refusal to issue a development permit was one of correctness:
[108] In determining whether the decision of a development officer conflicts with the provisions of a land-use by-law, the Nova Scotia Court of Appeal has held that the scope of the Board’s review of the development officer’s decision is on the “correctness” standard. In other words, it is not sufficient for the Board to simply ascertain whether the development officer based his or her decision on a reasonable interpretation of the land-use bylaw (or, in the present case, on the development agreement). In considering the present appeal from the decision of the development officer, the Board must determine whether that decision was “correct’, based on its review of the provisions of the subject development agreement: see Bay Haven Beach Villas Inc. v. Halifax (Regional Municipality), [2004] NSCA 59 [as noted above in this decision, the Board’s review of the Development Officer’s refusal will also extend to a review of the R-4 provisions of the LUB and the Schedule I Guidelines of Section X of the MPS].
[29] The Board’s decision on the standard of review it was to apply to the Development Officer’s refusal was contrary to HRM’s submissions that the appropriate standard of review was reasonableness. Recognizing this, the Board also considered whether the Development Officer’s decision was reasonable:
[113] However, in the event the Board has erred in applying the “correctness” standard, it concludes that the result would be the same even if it had applied the “reasonableness” standard to the decision under review ...
[30] On appeal to this court HRM continued to assert that reasonableness is the correct standard of review for the Board to apply to the Development Officer’s refusal to issue a development permit. I will deal with this issue later in the decision commencing at paragraph 42.
[31] The Board concluded that the test the Development Officer was to apply in determining whether to issue a development permit was set out in s.246(1) of the MGA and found that the Developers were entitled “as of right” to the issuance of a development permit if their application met “the requirements of the land‑use by‑law, the terms of a development agreement or an approved site plan”:
[114] In considering an application for a development permit, a development officer must have regard to the mandatory direction provided in s.246(1) of the Municipal Government Act, which reads:
Limitations on granting development permit
246(1) A development permit shall be issued for a proposed development if the development meets the requirements of the land-use by-law, the terms of a development agreement or an approved site plan.
[115] Thus, a development permit must be issued by a development officer if the development proposal “meets the requirements of the land-use by-law, the terms of a development agreement or an approved site plan”. Accordingly, in the view of the Board, the Development Officer does not have any discretion to refuse the development permit if the development proposal “meets the requirements of the land-use by-law, the terms of a development agreement or an approved site plan.”
[32] The Board interpreted the phrase “substantially in conformance with” the plans, used in clause 2 of the Development Agreement, as requiring conformance to the spirit and concept of the Development Agreement and the annexed plans but not an exact or strict adherence:
[121] Taking the ordinary meaning of the words into account, and adopting the comments of Sopinka, J., in Old St. Boniface [Residence Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170], the Board finds that the phrase “substantially in conformance”, as it applies in the present appeal, does not require an exact or strict adherence to the development agreement and the annexed plans. In the view of the Board, a proposal is “substantially in conformance” provided it conforms to the spirit and concept laid out in the development agreement and the annexed plans. In reaching this conclusion, the Board notes that the development agreement is intended to establish a “unified site design” for all of Stoneridge in its entirety, which is designated as being in a Residential Development District, and that several provisions in the development agreement provide latitude to the Developer in developing the various phases of the subdivision pursuant to the “unified site design”.
[33] The Board accepted the evidence that the proposed two twelve-storey towers on a single podium was a single building, noting the Development Officer had incorrectly referred to the second twelve-storey tower as a separate building. It took into account Mr. Lowe’s testimony referred to in paragraph 17 above on the effect of clause 3(f) of the Development Agreement and the weight to be given to the building icons on Site C on the concept plan and his testimony that the Development Agreement was “conceptual in nature” giving the Developers “some discretion in developing the overall site, provided the development conforms to the “unified site design” incorporated into the Development Agreement (as required by Policy 1.5) and provided clause 3(f) is adhered to.” (Para 131/132)
[34] It specifically rejected the Development Officer’s interpretation of the Development Agreement to the effect the Developers were not entitled, as of right, to maximize the full population density permitted for Stoneridge under the Development Agreement and the number of units permitted on Site C:
[134] To the extent that [the Development Officer] suggested, in his testimony, that the Developer is not entitled, as of right, to maximize the full population density permitted for all of Stoneridge under the development agreement, and to maximize the number of units permitted on Site C (up to a maximum variance of 25%), the Board finds that his opinion is clearly contrary to the express words of the development agreement and is not a correct interpretation.
[35] The Board disagreed with the Development Officer’s testimony as to the weight to be given to the apartment building icons depicted on Site C on the concept plan. It held:
[135] Further, [the Development Officer’s] strict adherence to the location and shape of the building icons on Plan Nos. 17619 and 17626 is not correct when the Board considers the various setback and angle control requirements contained in the development agreement, in the R‑4 provisions of the LUB and in the Schedule I Guidelines of Section X in the MPS. For example, clause 3(j) of the development agreement requires all apartment buildings to be set back a minimum of 50 feet from North West Arm Drive. Also, the R‑4 provisions of the LUB contain various angle controls that must be met by any proposed building. In these circumstances, such setback and angle control requirements would be redundant if the Developer was required to strictly adhere to the location and shape of building icons shown on the plans annexed to the development agreement. Further, the note on Plan No. 17626, upon which [the Development Officer] placed great significance, merely says that the "Buildings shown are indicative of type and location". In the Board's view, the term "indicative" is to be distinguished from "determinative". In the above respects, [the Development Officer’s] interpretation of the development agreement and the annexed plans was not correct.
[36] It again considered the reduced size of Site C as a result of the April 2, 2007 amendment to the Development Agreement and found that the Development Officer’s refusal of the development permit conflicted with the Development Agreement because Site C could better accommodate one building with two twelve-storey towers than the three separate buildings represented by the icons on the concept plan:
[138] ... Given that Site C, because of its reduced size, no longer appears able to accommodate three different buildings, the decision to refuse the development permit for one building conflicts with the development agreement, as amended.
[37] The Board concluded with respect to the Development Officer’s refusal:
[144] Taking into account all of the above, the Board concludes that the Development Officer's refusal to issue a development permit conflicts with the terms of the development agreement, with the R‑4 provisions of the LUB and with the Schedule I Guidelines. [The Development Officer’s] decision was neither correct nor reasonable. Thus, the Board allows this appeal and orders that the development permit be granted.
Law
[38] The MGA provides for appeals to the Board from decisions of Council to amend or refuse to amend a development agreement and from a refusal by a development officer to issue a development permit and limits the grounds of appeal on which such appeals may be taken and the basis on which the Board may allow such appeals:
Appeals to the Board
247 (2) The ... amendment, or refusal to amend, a development agreement may be appealed to the Board by
...
(b) the applicant;
(3) The refusal by a development officer to
(a) issue a development permit;
...
may be appealed by the applicant to the Board.
...
250 (1) An ... applicant may only appeal
...
(c) the refusal of an amendment to a development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy and the intent of the development agreement.
(2) An applicant may only appeal a refusal to issue a development permit on the grounds that the decision of the development officer does not comply with ... a development agreement, ...
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251 (1) The Board may
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(c) allow the appeal and order the council to ... amend the development agreement in the manner prescribed by the Board;
(d) allow the appeal and order that the development permit be granted;
(2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land‑use by‑law or the subdivision by‑law.
[39] The Utility and Review Board Act (“URBAct”), S.N.S. 1992, c.11 provides for appeals from the Board’s decisions to the court:
26 The finding or determination of the Board upon a question of fact within its jurisdiction is binding and conclusive.
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30 (1) An appeal lies to the Appeal Division of the Supreme Court from an order of the Board upon any question as to its jurisdiction or upon any question of law, upon filing with the Court a notice of appeal within thirty days after the issuance of the order.
Standard of review
[40] Under this heading I will deal with whether the Board erred in applying the correctness standard of review when reviewing the Development Officer’s refusal to grant a development permit, as well as the standard of review this court is to apply to the Board’s decision on what standard of review to apply in these circumstances. I will also deal with the standard of review this court is to apply to the Board’s decisions relating to Council’s refusal to amend the Development Agreement and the Development Officer’s refusal to grant a development permit.
[41] The standard of review we apply when reviewing the Board’s decision on the standard of review it is to apply when reviewing the Development Officer’s refusal to grant a development permit is that of correctness. It involves a question of law of general application. See Midtown Tavern & Grill v Nova Scotia (Utility and Review Board),[2006] N.S.J. No. 418, 2006 NSCA 115, para 32.
[42] As indicated above at paragraphs 28 and 29, the Board applied the correctness standard when it reviewed the Development Officer’s refusal but also considered the reasonableness standard in the alternative.
[43] I am satisfied the Board was right to apply a correctness standard to the Development Officer’s refusal to issue a development permit. As noted by the Board, this court previously decided in Bay Haven, supra, (which dealt with the Board’s review of a development officer’s refusal to issue a development permit that required her to interpret a land-use by-law), that correctness is the applicable standard of review:
[23.] In my view when the NSURB is dealing with an appeal pursuant to s.250(2) of the MGA, the applicable standard is one of correctness. The issue is whether the appellant demonstrates that the development officer erred in interpretation of the LUB. If the appellant proves that the proposed building does comply with the by‑law, the appeal should be allowed and the permit granted. (see s. 251(1)(d) and 251(2) of the MGA). The proceeding before the Board in this case was a de novo consideration of the issues which allowed for oral evidence from both sides, subjected to cross examination, including the evidence of the development officer who explained her reasons for denying the application, the submission of new material not before the development officer, presentations from interested members of the public, and legal argument by counsel for both the City and the developer. Surely in these circumstances, little deference is owed to the development officer's decision. ...
[44] Nothing suggests a different standard should apply when a development officer is interpreting a development agreement as opposed to a land-use by-law. Given its expertise in planning matters, the Board is well‑qualified to review decisions of a development officer on a correctness standard.
[45] I will next deal with the standard of review this court is to apply when reviewing the Board’s decision relating to Council’s refusal to amend the Development Agreement and the Development Officer’s refusal to grant a development permit. The position of the parties is that the standard of review to be applied by this court to the Board’s decision relating to Council’s refusal is reasonableness. With respect to the standard of review this court is to apply to the Board’s decision relating to the Development Officer’s refusal, HRM’s position is that the standard is reasonableness. The Developers’ position is that the standard is either reasonableness or correctness.
[46] This court dealt with how we are to determine the standard of review we are to apply when reviewing a decision of the Board in Can-Euro Investments Ltd. v Nova Scotia (Utility and Review Board), 2008 NSCA 123, [2008] N.S.J. No. 584:
[19] In Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9, the Supreme Court of Canada established that there should be only two standard of reviews for administrative decisions. Fichaud, J.A., for this Court, summarized the two‑step approach to determining the standard of review in Police Association of Nova Scotia Pension Plan v. Amherst (Town), 2008 N.S.J. No. 344, 2008 NSCA 74:
[38] . . . Justices Bastarache and LeBel, for five justices, stated the following principles governing the administrative SOR.
[39] Correctness and reasonableness are now the only standards of review (¶ 34). The court engages in “standard of review analysis”, without the “pragmatic and functional” label (¶ 63).
[40] The ultimate question on the selection of an SOR remains whether deference from the court respects the legislative choice to leave the matter in the hands of the administrative decision maker (¶ 49).
[41] The first step is to determine whether the existing jurisprudence has satisfactorily determined the degree of deference on the issue. If so, the SOR analysis may be abridged (¶ 62, 54, 57).
[42] If the existing jurisprudence is unfruitful, then the court should assess the following factors to select correctness or reasonableness (¶ 55):
(a) Does a privative clause give statutory direction indicating deference?
(b) Is there a discrete administrative regime for which the decision maker has particular expertise? This involves an analysis of the tribunal’s purpose disclosed by the enabling legislation and the tribunal’s institutional expertise in the field (¶ 64).
(c) What is the nature of the question? Issues of fact, discretion or policy, or mixed questions of fact and law, where the legal issue cannot readily be separated, generally attract reasonableness (¶ 53). Constitutional issues, legal issues of central importance, and legal issues outside the tribunal’s specialized expertise attract correctness. Correctness also governs “true questions of jurisdiction or vires”, ie. “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”. Legal issues that do not rise to these levels may attract a reasonableness standard if this deference is consistent with both (1) any statutory privative provision and (2) any legislative intent that the tribunal exercise its special expertise to interpret its home statute and govern its administrative regime. Reasonableness may also be warranted if the tribunal has developed an expertise respecting the application of general legal principles within the specific statutory context of the tribunal’s statutory regime (¶ 55‑56, 58‑60).
[47] A review of the jurisprudence since Dunsmuir, supra, does not indicate what standard this court ought to apply when reviewing the Board’s decision relating to either Council’s refusal to amend the Development Agreement or the Development Officer’s refusal to grant a development permit. Thus I must consider the factors outlined in Dunsmuir, supra.
[48] The URBAct contains a limited privative clause, limiting appeals from the Board to this Court to issues of law and jurisdiction:
26 The finding or determination of the Board upon a question of fact within its jurisdiction is binding and conclusive.
1⁄4
30 (1) An appeal lies to the Appeal Division of the Supreme Court from an order of the Board upon any question as to its jurisdiction or upon any question of law 1⁄4
[49] Here HRM has raised only issues of law. There is no appeal from the Board’s findings of fact. The privative clauses noted above do not suggest deference to the Board’s decision on issues of law.
[50] The URBAct provides for the creation of the multi-functional Board. It has such broad functions, powers and duties as may be conferred or imposed on it from time to time by the URBAct, the Assessment Act, the Expropriation Act, the Gasoline and Diesel Oil Tax Act, the Health Services Tax Act, the Heritage Property Act, the Insurance Act, the Motor Carrier Act, the Municipal Government Act, the Public Utilities Act, the School Boards Act, the Shopping Centre Development Act, the Tobacco Tax Act, any enactment or by the Governor in Council. The Board is composed of eight to ten full-time members and up to eight part-time members who sit alone or in panels. It has its own staff and quarters and has jurisdiction to conduct hearings, receive evidence and give written decisions. In this case the Board heard substantial evidence, most of which was not before the Council or the Development Officer, and rendered a 67-page decision.
[51] The Legislature through the MGA and the URBAct has specifically empowered the Board to determine whether a council erred by refusing an amendment of a development agreement and whether a development officer erred by refusing to grant a development permit. While the Board is not a single-purpose administrative tribunal such as the Labour Relations Board or the Workers’ Compensation Appeal Tribunal, both issues raised in this appeal are squarely within its jurisdiction and expertise. This suggests deference is owed by this court to the Board’s decisions in this case.
[52] The nature of the questions are matters of law within the specialized expertise of the Board. They are not questions of general application.
[53] When dealing with the decision of Council, the Board had to apply the test set out in s.250(1)(c) and 251(2) of the MGA to the evidence before it. It had to determine whether Council’s interpretation and application of the MPS with respect to its refusal to amend the Development Agreement was one that the language of the MPS could reasonably bear; Heritage Trust of Nova Scotia v. Nova Scotia (Utility and Review Board) (1994), 128 N.S.R. (2d) 5, para. 99. It had to determine whether Council’s decision reasonably carried out the intent of the MPS, recognizing that there may be more than one intent.
[54] When dealing with the Development Officer’s decision, the Board also had to apply the statutory test to the evidence before it to determine whether the Development Officer’s decision conflicted with the provisions of the Development Agreement and the relevant planning documents incorporated into it by reference.
[55] By virtue of the statutory regime under which the Board is constituted and operates, it has developed expertise respecting the application of the legal principles governing the determination of these issues.
[56] Taking into account the privative clauses, the purpose of the planning provisions of the MGA and the role the Legislature has set for the Board in relation to them, the discrete administrative regime created for the Board by the URBAct, the Board’s expertise in planning matters and the nature of the issues before the Board and before this court, I am satisfied the Board’s decisions in this case are entitled to deference. The standard of review is one of reasonableness.
[57] In Dunsmuir, supra, the Supreme Court of Canada indicates that when applying the reasonableness standard, the reviewing court is to consider both the process by which the decision was reached and the outcome:
47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (Emphasis added)
Grounds of appeal
[58] The three remaining grounds of appeal, restated, are:
A. With respect to the Board’s decision relating to the appeal from Council’s refusal to amend the Development Agreement:
1. That the Board erred in law by applying the wrong test when it considered Council’s decision, and
2. That the Board erred in law in finding that Council’s refusal did not reasonably carry out the intent of the MPS.
B. With respect to the Board’s decision relating to the appeal from the Development Officer’s refusal to grant a development permit:
3. That the Board erred in law by finding the Development Officer’s decision was not correct.
[59] With respect to the first ground, as set out in paragraph 12 above, the parties agreed the test or standard the Board was to apply when deciding whether Council’s decision should be upheld or overturned was whether Council’s decision did not reasonably carry out the intent of the MPS (s.251(2)).
[60] HRM argued that the Board did not apply this test, pointing to paragraph 167 of the Board’s decision:
[167] The burden of proof is on the Appellant in this matter. Thus, in the Board’s opinion, the Appellant must find language in the MPS which expresses an intent that is not reasonably consistent with Community Council’s decision to refuse the amendment as proposed: see Re Tsimiklis, [2003 NSCA 30 (CanLII)], [2003] NSCA 30, at paragraph 27. In the opinion of the Board, for the reasons outlined below, the MPS does contain language showing a contrary intention.
[61] A statement of the test in this manner could raise a concern in some fact situations, such as where there are competing intentions under the MPS. It suggests the Board can overturn Council’s refusal if it found an intention in the MPS that was inconsistent with Council’s refusal. As noted by the Board in paragraph 204 of its decision, reproduced in paragraph 21 above, that is not the case in this appeal where the appeal before the Board did not raise the spectre of competing intents. In addition, I am satisfied from reading the whole of the Board’s decision, including the paragraphs reproduced and referred to in paragraphs 11 and 12 above, that the Board both understood and applied the correct test set out in s.251(2) of the MGA.
[62] I would dismiss this ground of appeal.
[63] I will deal with the second and third grounds of appeal together because HRM’s main argument applies to both. HRM’s main argument was that the Board erred in finding that the icons on Site C on the concept plan were illustrations only and not determinative of the size, shape or location of the apartment buildings that could be built on Site C because clause 3(f) permitted the Developers to move population density to Site C from the rest of the subdivision and vary the number of units, which would necessarily change the building forms on Site C.
[64] HRM’s position was that the population density and number of units permitted by clause 3(f) were trumped by the icons on the concept plan. It argued that the location and height of the apartment buildings shown on the concept plan were paramount.
[65] In paragraph 121 of its decision reproduced in paragraph 32 above, the Board interpreted the words “substantially in conformance with” in clause 2 to mean that the development of Site C must conform to the spirit and concept of the Development Agreement including the concept plan but did not require exact or strict adherence to the concept plan. The Board attached significance to the choice of the word "indicative," rather than "determinative," in the note on the concept plan, which states that "Buildings shown are “indicative” of type and location." It noted that the Staff Report submitted to Council placed no weight on the location, size or shape of the buildings suggested by the icons on the concept plan. The Board noted that the setback and angle controls contained in the Development Agreement, the R‑4 provisions of the land-use by-law, and the Schedule I Guidelines of Section X in the MPS become redundant if the icons on the plan strictly control the shape, size and location of buildings on Site C. The Board took note of the seventh amendment to the Development Agreement, which reduced the size of Site C to permit the construction of single-family homes along Walter Havill Drive so that the reduced size of Site C appears no longer able to accommodate three buildings.
[66] The Board considered the wording of the Development Agreement, including clauses 2 and 3(f) and accepted the evidence of Mr. Lowe, referred to in paragraphs 5 and 17 above, that the Development Agreement was general, not specific, and that clause 3(f) of the Development Agreement gave the Developers the right to move population density from throughout the entire 107-acre subdivision to Site C provided the overall population density within Stoneridge did not increase, and the variance of the number of units on Site C did not exceed 25 percent, that a transfer of density to Site C would necessarily cause the number and type of units on Site C to change and that consequently the icons on Site C on the concept plan were illustrative only.
[67] In light of these considerations, I am satisfied the Board did not err in concluding that the icons on the concept plan were illustrations only and not determinative of the size, shape or location of the apartment buildings that could be built on Site C because of clause 3(f). Its conclusion is reasonable. It explained how it reached its decision in its reasons and the outcome is within the acceptable range.
[68] With respect to the Board’s decision relating to Council’s refusal to amend the Development Agreement, HRM also argued that the Board erred in finding that the transitional provisions contained in Policy 5 of the Schedule 1 Guidelines to Section X of the MPS was not relevant to the appeal because the “abutting existing residential areas” referred to in Policy 5 referred to areas that abutted the outer boundaries of the 107-acre subdivision, not the perimeter of Site C. It argued that the provisions of Policy 5 apply because there are now detached and semi-detached houses near Site C, and there should be a transition between such areas and twelve-storey apartment towers.
[69] The relevant provision of Policy 5 of the Schedule I Guideline is set out in paragraph 18 above.
[70] The Board interpreted Policy 5:
[190] ... Based upon the Board's review, it is satisfied that the only reasonable interpretation of an "existing residential area" in Policy 5 of the Schedule I Guidelines is a reference to existing residential areas which were abutted by the outer boundaries of the Stoneridge development when the development agreement was originally approved in 1990. In the Board's opinion, this is the only reasonable interpretation of Policy 5 when considered in the context of Policy 1.5 and Policy 1.5.1. In the context of a "unified site design" for RDD lands, it appears contradictory to set‑off one phase of the subdivision versus another phase. Thus, any consideration of abutting residential areas next to Site C, under Policy 5, is not relevant to this appeal.
[71] I am satisfied the Board did not err as its interpretation is reasonable.
[72] Again with respect to the Board’s decision regarding Council’s refusal to amend the Development Agreement, HRM also argued that the Board failed to properly consider Council’s reasons for refusing the amendment. As set out in paragraph 15 above, the Board referred to these reasons commencing at paragraph 168 of its decision. It found the first reason given by Council, that several amendments had been previously made to the Development Agreement, was irrelevant to the test Council was to apply in reaching its decision. It found the reference to the proposed amendment adding another twelve-storey building to Site C incorrect in light of the evidence before it that the proposed second twelve-storey tower was not a separate building. It noted Council’s failure to address factors that were relevant to its decision and that were set out in the Staff Report that was before it. It then reviewed the MPS in light of the Developers’ application to determine whether the proposed amendment was “too big of a change” from the Development Agreement without the amendment.
[73] I am satisfied the Board did not err in its consideration of Council’s reasons.
[74] HRM also argued with respect to the Board’s decision relating to Council’s refusal to amend the Development Agreement that the Board erred by substituting its decision for that of Council rather than applying the required test. There is no question the Board considered the Development Agreement, the MPS and its Policies in depth. It had to do this in order to apply the required test under s.250(1)(b) of the MGA which requires the Board to interpret the MPS in order to determine if Council’s interpretation and application of it was one that its language could bear. This is not an indication that the Board was substituting its decision for that of Council. HRM has not satisfied me that the Board substituted its decision for that of Council rather than apply the proper test.
[75] With respect to Council’s refusal to amend the Development Agreement, it was open to the Board on the evidence before it to find that Council’s refusal did not reasonably carry out the intent of the MPS. Its conclusions that the amendment was consistent with the “unified site design”, that it complied with all land-use requirements and controls and that it complied with the Development Agreement on its interpretation of the effect of clause 3(f) on the icons on the concept plan were all supported by the evidence. This was the position taken in the Staff Report presented to Council. The Staff Report recommended approval of the amendment because it was not significantly different from the unamended Development Agreement that was in accord with the MPS. With the amendment there would be two twelve-storey towers instead of one twelve-storey building and two four-storey buildings, and the population density of site C would be increased by three people but would be below the density for the entire development. There would be less massing of buildings, more underground parking, more open space, more landscaping and better traffic circulation.
[76] In these circumstances, I am satisfied the Board’s decision that Council’s refusal to amend the Development Agreement did not reasonably carry out the intent of the MPS was reasonable. The process it followed is clear from its reasons, and its conclusion is within the acceptable range.
[77] I would dismiss the second ground of appeal.
[78] With respect to the Development Officer’s refusal to issue a development permit, again I am satisfied the Board’s decision that the refusal conflicted with the Development Agreement was reasonable. The Developers were entitled to the permit if their development complied with the Development Agreement. The Board found that it did. In reaching this conclusion, the Board considered the effect clause 3(f) had on the icons depicted on Site C on the concept plan, the conceptual nature of this particular Development Agreement, the fact there was only one building with two twelve-storey towers as opposed to two buildings, the wording of clause 2 that the land would be developed “substantially”, not “exactly”, in accordance with the concept plan, the use of the word “indicates”, rather then “determines”, on the concept plan and the redundancy of the setback and angle controls contained in the Development Agreement, the R-4 provisions and Policy 5 if the icons on the concept plan strictly control size, shape and location of the buildings that may be built on Site C. The Board’s interpretation of the Development Agreement was that the icons on the concept plan were illustrative and that clause 3(f) allowed for the population density and number of units proposed. Again, the Board’s decision is reasonable. The basis on which it reached its conclusion is clearly set out in its reasons, and the result is within the acceptable range.
[79] I would dismiss the third ground of appeal.
[80] I would dismiss the appeal without costs.
Hamilton, J.A.
Concurring:
Saunders, J.A.
Fichaud, J.A.