Halifax (Regional Municipality) v. Anglican Diocesan Centre Corp. et al., (2010) 290 N.S.R.(2d) 361 (CA)

• Judge: Saunders, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 06, 2010
• Jurisdiction: Nova Scotia
• Citations: (2010), 290 N.S.R.(2d) 361 (CA);2010 NSCA 38

Halifax v. Anglican Diocesan (2010), 290 N.S.R.(2d) 361 (CA);

    920 A.P.R. 361

MLB headnote and full text

Temp. Cite: [2010] N.S.R.(2d) TBEd. MY.006

The Halifax Regional Municipality (appellant) v. Anglican Diocesan Centre Corporation, The Dean and Chapter of Cathedral Church of All Saints, Halifax and the Diocesan Synod of Nova Scotia and Prince Edward Island (respondents)

(CA 319426; 2010 NSCA 38)

Indexed As: Halifax (Regional Municipality) v. Anglican Diocesan Centre Corp. et al.

Nova Scotia Court of Appeal

Saunders, Hamilton and Fichaud, JJ.A.

May 4, 2010.

Summary:

A church in Halifax applied for a development permit to construct a new eight story building with church facilities and 150 units for seniors' care. A municipal development officer denied the permit because the top five floors of the proposed seniors' care facility would be too residential and impermissible in property zoned as Park and Institutional. The church appealed. The Utility and Review Board allowed the appeal and ordered issuance of the development permit. The Board concluded that the development was a "hospital ... church ... or other institution of a similar type, either public or private" in the permitted uses for the Park and Institutional Zone. Halifax appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Land Regulation - Topic 2505.1

Land use control - Zoning bylaws - General principles - "Institution" defined - A church in Halifax applied for a development permit to construct a new eight story building with church facilities and units for seniors' care, including assisted living amenities - The building would be operated by a developer - A municipal development officer denied the permit because some of the floors would be too residential and impermissible in property zoned as Park and Institutional - The church appealed - The Utility and Review Board allowed the appeal, holding that the development was allowed under s. 67(1)(d) of the Halifax Land Use Bylaw (LUB) which provided that the P Zone permitted a "hospital ... church ... or other institution of a similar type, either public or private" - The Board concluded that the proposed development was an "other institution of a similar type" - Halifax appealed, arguing that the Board erred by failing to rule that the development was outside the LUB's definition of "institution" - The LUB defined "institution" as "a building used by an organized body or society for promoting a particular object or objects, usually of a non-commercial nature" - Halifax argued that the developer was not an "organized body or society" within the meaning of that definition nor was the developer's private profit motive and "object" within that definition - The Nova Scotia Court of Appeal disagreed with Halifax's argument, stating that the development would be a partnership between the church and the developer - The church's mission was clearly an institutional object within the LUB's definition - The partners were an "organized body", whose "objects" satisfied the LUB's definition of "institution" - See paragraphs 44 and 45.

Land Regulation - Topic 2505.1

Land use control - Zoning bylaws - General principles - "Institution" defined - [See Land Regulation Topic 2669.2 and Land Regulation - Topic 3215 ].

Land Regulation - Topic 2669.2

Land use control - Zoning bylaws - Permitted or discretionary uses - Senior citizen housing (incl. special care homes) - A church in Halifax applied for a development permit to construct a new eight story building with church facilities and 150 units for seniors' care, including assisted living amenities - A municipal development officer denied the permit because the top five floors of the facility would be too residential and impermissible in property zoned as Park and Institutional - The church appealed - The Utility and Review Board allowed the appeal, holding that the development officer's refusal of the permit did not comply with s. 67(1)(d) of Halifax's Land Use Bylaw (LUB) - Section 67(1)(d) provided that the P Zone permitted a "hospital ... church ... or other institution of a similar type, either public or private" - The Board concluded that the proposed development was an "other institution of a similar type" - Halifax appealed, arguing that the Board erred by not ruling that the development was an "apartment house" or a "special care home" either of which, Halifax argued, was excluded from P Zone - The Nova Scotia Court of Appeal dismissed the appeal, holding that the Board's conclusions were reasonable - The Board's rejection of Halifax's submissions respecting the "apartment house" and "special care home" issues involved no reviewable error - See paragraphs 50 to 63.

Land Regulation - Topic 3215

Land use control - Building or development permits - Grounds for refusal - Proposed construction not in compliance with applicable law - A church in Halifax applied for a development permit to construct a new eight story building including church facilities and seniors' care units, including assisted living amenities - A municipal development officer denied the permit because the top five floors of the facility would be too residential and impermissible in property zoned as Park and Institutional - The church appealed - The Utility and Review Board allowed the appeal, holding that the development officer's decision did not comply with s. 67(1)(d) of Halifax's Land Use Bylaw - Section 67(1)(d) provided that the P Zone permitted a "hospital ... church ... or other institution of a similar type, either public or private" - The Board concluded that the proposed development was an "other institution of a similar type" - Halifax appealed, arguing that the Board erred in its interpretation of application of "other institution of a similar type" in s. 67(1)(d) - The Nova Scotia Court of Appeal dismissed the appeal - Applying the reasonableness standard, first to process, the Board's reasons were transparent and intelligible - Respecting outcome, the Board reasonably interpreted "other institution of a similar type" to be an institution that shared key characteristics with the listed institutions in s. 67(1)(d) - The Board applied the appropriate legal principles and the Board's conclusion was an acceptable outcome - See paragraphs 28 to 43.

Land Regulation - Topic 3216.2

Land use control - Building or development permits - Grounds for refusal - Development contrary to municipal planning strategy - [See Land Regulation - Topic 3220 ].

Land Regulation - Topic 3220

Land use control - Building or development permits - Application for - Relevant considerations - A church in Halifax applied for a development permit to construct a new eight story building with church facilities and 150 units for seniors' care, including assisted living amenities - A municipal development officer denied the permit because the top five floors of the facility would be too residential and impermissible in property zoned as Park and Institutional - The church appealed - The Utility and Review Board allowed the appeal, holding that the development officer's refusal of the permit did not comply with s. 67(1)(d) of Halifax's Land Use Bylaw (LUB) - Section 67(1)(d) provided that the P Zone permitted a "hospital ... church ... or other institution of a similar type, either public or private" - The Board concluded that the proposed development was an "other institution of a similar type" - Halifax appealed, arguing that the Board erred by relying on irrelevant evidence of the church's economic circumstances and whether the development was consistent with Halifax's Municipal Planning Strategy (MPS) - Halifax argued that the issue was simply whether the project complied with s. 67(1)(d) of the LUB - The Nova Scotia Court of Appeal disagreed with Halifax's argument - Where s. 67(1)(b) of the LUB was ambiguous, it was not an error for the Board to consider that the proposed seniors' care facility would enable the church to maintain or grow its operations in its current location, consistent with MPS policies 5.1 and 4.2 - See paragraphs 46 to 49.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - A Halifax development officer refused to grant a church a development permit to construct a new eight story building with church facilities and 150 units for seniors' care, including assisted living amenities, because the facility was too residential for a property zoned as Park and Institutional - The church appealed - The Utility and Review Board allowed the appeal, holding that the development officer's decision did not comply with s. 67(1)(d) of Halifax's Land Use Bylaw - Halifax appealed - The Nova Scotia Court of Appeal discussed the standard of review - The court held that it would apply the correctness standard to the Board's selection of the standard of review - Here, the Board correctly identified its standard of review (i.e., that prescribed by the Halifax Regional Municipality Charter which provided that the Board could only overturn a development officer's refusal of a development permit if that decision did not comply with the Land Use Bylaw) - As to whether the Board erred in law in its application of that standard or in its interpretation of s. 67(1)(d) and related provisions of the Land Use Bylaw, the court stated that it would apply the standard of reasonableness - See paragraphs 21 to 27.

Land Regulation - Topic 3271

Land use control - Building or development permits - Appeals to appeal board - General - The Nova Scotia Court of Appeal outlined the principles that governed the Utility and Review Board's appellate role respecting a decision of a development officer - See paragraph 29.

Cases Noticed:

Archibald et al. v. Nova Scotia Utility and Review Board et al. (2010), 290 N.S.R.(2d) 158; 920 A.P.R. 158; 2010 NSCA 27, refd to. [para. 21].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 21].

Young v. Workers' Compensation Appeals Tribunal (N.S.) (2009), 276 N.S.R.(2d) 276; 880 A.P.R. 276; 2009 NSCA 35, refd to. [para. 21].

Heritage Trust of Nova Scotia et al. v. Nova Scotia Utility and Review Board et al. (1994), 128 N.S.R.(2d) 5; 359 A.P.R. 5 (C.A.), refd to. [para. 21].

Can-Euro Investments Ltd. v. Nova Scotia Utility and Review Board et al. (2008), 272 N.S.R.(2d) 309; 869 A.P.R. 309; 2008 NSCA 123, refd to. [para. 21].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 26].

Bay Haven Beach Villas Inc. v. Halifax (Regional Municipality) et al. (2004), 223 N.S.R.(2d) 282; 705 A.P.R. 282; 2004 NSCA 59, refd to. [para. 47].

Statutes Noticed:

Halifax (Regional Municipality) Bylaws, Land Use Bylaw, sect. 67(1)(d) [para. 18].

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 262(3)(a), sect. 265(2), sect. 267(2) [para. 16].

Utility and Review Board Act, S.N.S. 1992, c. 11, sect. 30(1) [para. 19].

Counsel:

Karen Brown, for the appellant;

Robert G. Grant, Q.C., and Joshua E. Bearden, articled clerk, for the respondent, Anglican Diocesan Centre Corp.;

Edward Gores, Q.C., for the respondent, the Attorney General of Nova Scotia (not participating).

This appeal was heard in Halifax, Nova Scotia, on April 6, 2010, before Saunders, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following judgment for the court on May 4, 2010.