Martell v. Halifax (Regional Municipality) et al., 2015 NSCA 101

Judge:Beveridge, Bryson and Bourgeois, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:September 29, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 101;(2015), 367 N.S.R.(2d) 71 (CA)
 
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Martell v. Halifax (2015), 367 N.S.R.(2d) 71 (CA);

    1157 A.P.R. 71

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. NO.028

Peter Martell (appellant) v. Halifax Regional Municipality, Nova Scotia Utility and Review Board and Attorney General of Nova Scotia (respondents)

(CA 439419; 2015 NSCA 101)

Indexed As: Martell v. Halifax (Regional Municipality) et al.

Nova Scotia Court of Appeal

Beveridge, Bryson and Bourgeois, JJ.A.

November 13, 2015.

Summary:

The appellant owned two large lots of land in Dartmouth. He applied for a development permit which would allow the construction of 17 detached, single-family houses on the lots. The Halifax Regional Municipality's Development Officer refused the application, on the basis that it contravened the Dartmouth Land-Use By-law (DLUB). The Development Officer's interpretation of s. 32(2) of the DLUB was that each dwelling was to be on a separate lot approved through the subdivision process. The appellant appealed that determination to the Nova Scotia Utility and Review Board. The Board upheld the Development Officer's decision. The appellant appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Land Regulation - Topic 2502

Land use control - Zoning bylaws - Interpretation - The appellant owned two large lots of land in Dartmouth - He applied for a development permit which would allow the construction of 17 detached, single-family houses on the lots - The Halifax Regional Municipality's Development Officer refused the application, on the basis that it contravened the Dartmouth Land-Use By-law (DLUB) - The Development Officer's interpretation of s. 32(2) of the DLUB was that each dwelling was to be on a separate lot approved through the subdivision process - The appellant appealed - The Nova Scotia Utility and Review Board upheld the Development Officer's decision - The appellant appealed - The appellant set out what he said was a well-recognized precept: "that a land owner can do with its land whatever is not prohibited by valid municipal, provincial or federal law" - He argued because s. 32(2) of the DLUB did not explicitly prohibit multiple buildings on an R-1 lot, then the above "well-recognized precept" meant it was allowed - The Nova Scotia Court of Appeal stated that "The Appellant has presented no case authorities utilizing the interpretive premise that if a by-law does not prohibit a use, it is, by default, permitted. Similarly, no authorities have been presented which establish that what the appellant describes as a 'well-recognized precept', has survived the clear move towards the more modern liberal and purposive approach to statutory interpretation" - The Board did not err in declining to apply the "well-recognized precept" advanced by the appellant - See paragraphs 17 to 29.

Land Regulation - Topic 2502

Land use control - Zoning bylaws - Interpretation - The appellant owned two large lots of land in Dartmouth - He applied for a development permit which would allow the construction of 17 detached, single-family houses on the lots - The Halifax Regional Municipality's Development Officer refused the application, on the basis that it contravened the Dartmouth Land-Use By-law (DLUB) - The Development Officer's interpretation of s. 32(2) of the DLUB was that each dwelling was to be on a separate lot approved through the subdivision process - The appellant appealed - The Nova Scotia Utility and Review Board upheld the Development Officer's decision - The appellant appealed - The appellant said that the Board's reasoning path was unclear in that it did not identify what text in the bylaw was ambiguous - The Nova Scotia Court of Appeal stated that "The Appellant's assertion that the existence of an ambiguity in the by-law was a necessary springboard to permit the interpretation which followed, is flawed. A finding of ambiguity is not a precondition of a proper contextual analysis. ... the Board rejected the Appellant's submission that a lack of expressed prohibition equates to permission. The Board noted the by-law in question was silent, neither containing a prohibition against, or endorsement of, the type of development being advanced by the Appellant. The Board identified this silence as the 'heart of the dispute'. It then undertook an interpretative exercise, rejecting a number of arguments advanced by both parties as being unpersuasive, but ultimately concluding that multiple main buildings on an R-1 zone lot was prohibited. ... In reviewing the decision, I understand why the Board found s. 32(2) to be non-conclusive, and can readily track its reasoning path to the conclusion it reached. As such, the decision meets the first component of the reasonableness analysis" - See paragraphs 30 to 35.

Land Regulation - Topic 2502

Land use control - Zoning bylaws - Interpretation - The appellant owned two large lots of land in Dartmouth - He applied for a development permit which would allow the construction of 17 detached, single-family houses on the lots - The Halifax Regional Municipality's Development Officer refused the application, on the basis that it contravened the Dartmouth Land-Use By-law (DLUB) - The Development Officer's interpretation of s. 32(2) of the DLUB was that each dwelling was to be on a separate lot approved through the subdivision process - The appellant appealed - The Nova Scotia Utility and Review Board upheld the Development Officer's decision - The appellant appealed - The appellant argued that the outcome could not possibly be reasonable, as the Board failed to recognize that the absence of a prohibition meant his desired use was permitted - The Board then wrongly proceeded to "scour the earth" for sources outside the plain text of the by-law, and should not have looked to the Municipal Planning Strategy, other parts of the by-law or other planning documents to supplant the only reasonable interpretation available - The Nova Scotia Court of Appeal dismissed the appeal - It was not unreasonable for the Board to engage in the interpretative exercise it did - It was a specialized tribunal, with expertise in the interpretation of planning legislation - It was entitled to deference unless clear error in approach or substance was demonstrated - It had not been in this case - After engaging in a substantial and well-described interpretative analysis, the Board found that the Development Officer's refusal to issue a development permit did comply with the DLUB - That decision inhabited the range of reasonable outcomes - See paragraphs 36 to 39.

Land Regulation - Topic 2601

Land use control - Zoning bylaws - Enactment and interpretation - Interpretation of zoning bylaws - [See all Land Regulation - Topic 2502 ].

Land Regulation - Topic 3215

Land use control - Building or development permits - Grounds for refusal - Proposed construction not in compliance with applicable laws - [See all Land Regulation - Topic 2502 ].

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - [See second and third Land Regulation - Topic 2502 ].

Municipal Law - Topic 3726

Bylaws - Construction or interpretation - General - [See all Land Regulation - Topic 2502 ].

Cases Noticed:

Northern Construction Enterprises Inc. v. Halifax (Regional Municipality) et al. (2015), 359 N.S.R.(2d) 218; 1133 A.P.R. 218; 2015 NSCA 43, refd to. [para. 12].

Egg Films Inc. v. Labour Board (N.S.) et al. (2014), 343 N.S.R.(2d) 204; 1084 A.P.R. 204; 2014 NSCA 33, refd to. [para. 13].

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. 28].

Izaak Walton Killam Health Centre v. Human Rights Commission (N.S.) et al. (2014), 340 N.S.R.(2d) 369; 1077 A.P.R. 369; 2014 NSCA 18, refd to. [para. 32].

Statutes Noticed:

Dartmouth Land-Use By-law, sect. 32(2) [para. 5].

Counsel:

Peter M. Rogers, Q.C., for the appellant;

E. Roxanne MacLaurin and Christopher Keliher, for the respondent, Halifax Regional Municipality.

This appeal was heard on September 29, 2015, before Beveridge, Bryson and Bourgeois, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Bourgeois, J.A., on November 13, 2015.

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