Municipal Planning Appeals: Defying the Odds

February 4, 2021

A 10 year review of appeals of municipal planning decisions before the Nova Scotia Utility and Review Board (UARB) shows that the UARB rarely overturns decisions of municipal councils and even more rarely if the appeal has been launched by interested citizens. Appeals by developers have been marginally more successful.

But it would be wrong to conclude that developers are given a clear pass or that citizens are never successful, as evidenced by a recent UARB decision in favour of a group of Big Pond Centre, Cape Breton, area residents against a Calgary developer’s plan for a major RV park.

This is the conclusion of our 10 year review (2010-2020) of UARB decisions. Of the 47 substantive UARB decisions released during the 10 year period, only 13 appeals were successful and, of the 13, only three of the successful appeals were launched by interested citizens.

This trend was first documented in our 2017 article (“Municipal Planning Appeals: Know the Odds.” November 1, 2017), in which we surveyed 36 planning appeals between 2010 and 2017. Out of the 36 appeals, the UARB overturned the council decision only seven times.

Since 2017, there have been 11 Board decisions on planning appeals and, of the 11, six were allowed and five were dismissed. While the sample size is too small to be indicative of a trend, the Board overturned nearly as many council decisions in the past three years as they did in the seven year period from the original study.

Of the eleven appeals, seven were launched by residents, and four were launched by developers. All four developer appeals were successful. In keeping with the general trend, residents lost five out of the seven appeals they launched. However, the two cases where residents defied the odds, MacInnis (Re) and Leonhard (Re), are worth considering briefly.

MacInnes (Re) was a decision involving a Calgary developer who planned to build a large RV park in the small Cape Breton community of Big Pond Centre. The proposed RV park development was to have 541 RV sites, 64 tenting sites, and a variety of amenities. The developer needed CBRM council to approve a rezoning of lands at the proposed site. In the spring of 2018, CBRM council narrowly approved the required rezoning.

A group of concerned Big Pond Centre residents appealed the decision to the Board, who overturned council’s approval because the rezoning did not provide protection to nearby residences. Under the CBRM MPS, a rezoning must provide reasonable protection to nearby residential neighborhoods. As there was no protection for visual compatibility or noise, the Board concluded the development did not reasonably carry out the intent of the MPS. That decision was subsequently appealed to the Nova Scotia Court of Appeal, who upheld the Board decision. Despite hefty odds, the residents were successful in stopping the development.

This decision demonstrates that it is possible for concerned residents to go to the Board to stop a council-approved project, even in the face of unfavorable odds. It is also a lesson to developers about the legal hurdles that can tie up, and possibly end, ambitious projects.

The second case of citizen success, Leonhard (Re), is interesting for different reasons. The council for the Municipality of Kings approved a development agreement that allowed an owner of an auto body repair shop to expand operations. A concerned resident appealed the decision to the Board.

The Board dismissed all of the resident’s arguments except for one regarding the proposed holding yard. The resident argued that while a holding yard would be permitted on the property under the MPS, salvage yards would not be, and the wording of the development agreement did not properly distinguish between the two. The Board agreed.

What is interesting about this appeal is the remedy. The Board agreed that the agreement’s definition of holding yard was deficient. However, instead of striking down the approval decision, the UARB used its authority under s. 251(1)(c) of the Municipal Government Act (the Act) to direct Council to amend the development agreement.

This decision shows that residents might have a mixed form of success on appeal. They can secure changes to a development agreement that bring it in line with their concerns without killing the development completely. This could be a good thing for both residents and developers in offering a potential avenue for finding common ground.

A final case of note is Halliburton Partners Canada ULC, where Halliburton applied for rezoning of its property in the Municipality of the District of West Hants. Per s. 210(5) and (6) of the Act, when Council does not set a public hearing of an application within 120 days of receiving it, the application is deemed to be refused. Halliburton appealed the deemed refusal of its application to the Board when no hearing was set. Because the Recommendation Report made by planning staff concluded the re-zoning was consistent with the MPS, the Board determined that the refusal did not carry out the intent of the MPS, and allowed the appeal and rezoning.

This is notable because the procedural requirements of the Act meant that Council never got to officially rule on the re-zoning application. It shows the importance of Council complying with proper procedure and the requirements of the Act if they want to register a position on an application.

The trend line of developer’s success on appeals has not fluctuated over the decade. Developers have been more successful (10 wins in 18 appeals) than interested citizens (three wins in 29 tries). In order to be successful on a planning appeal, a party must show that a council’s decision does not reasonably carry out the intent of the relevant MPS. It stands to reason that the higher rates of developer success suggest they are presenting cases to the UARB that meet this test more often.

Kevin Latimer, Q.C. of Cox & Palmer, practices in the areas of municipal and planning law, administrative and public law litigation and can be contacted at (902) 491-4212 or email at klatimer@coxandpalmer.com.

This article was written by Halifax Partner, Kevin Latimer, Q.C. in collaboration with Halifax Articled Clerk, Sarah Dobson.

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