Northern Construction Enterprises Inc. v. Halifax (Regional Municipality) et al., 2015 NSCA 43

Judge:MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:February 11, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 43;(2015), 359 N.S.R.(2d) 218 (CA)
 
FREE EXCERPT

Northern Constr. Ent. v. Halifax (2015), 359 N.S.R.(2d) 218 (CA);

    1133 A.P.R. 218

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. MY.023

Northern Construction Enterprises Inc. (appellant) v. The Halifax Regional Municipality, The Nova Scotia Utility and Review Board and The Attorney General of Nova Scotia (respondents) and Dwight Ira Isenor and Staceylee Rudderham (intervenors)

(CA 412729; 2015 NSCA 43)

Indexed As: Northern Construction Enterprises Inc. v. Halifax (Regional Municipality) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A.

May 12, 2015.

Summary:

Northern Construction Enterprises Inc. proposed to develop an aggregate quarry near the Halifax Stanfield International Airport. It applied to the Halifax Regional Municipality (HRM) for a development permit. Through its development officer, HRM denied approval, maintaining that the impugned operations were prohibited by the applicable land use bylaw. The Nova Scotia Utility and Review Board dismissed Northern's appeal. Northern appealed, arguing that the Board committed reviewable error by (a) acknowledging HRM's jurisdiction over the matter; or (b) sustaining the development officer's decision.

The Nova Scotia Court of Appeal dismissed the appeal: (a) the Board's jurisdiction was limited to interpreting HRM's land use bylaw (HRM Charter, s. 267 (2)). It had no authority to question its legality; and (b) the Board's decision met the reasonableness standard.

Land Regulation - Topic 3239

Land use control - Building or development permits - Judicial review or appeals to courts - The Halifax Regional Municipality (HRM) refused to grant Northern Construction Enterprises Inc. a permit to develop an aggregate quarry near the Halifax Stanfield International Airport - The development officer maintained that the impugned operations were "fundamental to ... extraction" and thus prohibited by the applicable land use bylaw - The refusal was sustained by the Utility and Review Board, having concluded that its jurisdiction was limited to interpreting the bylaw, and that the decision to refuse the permit did not conflict with the provisions of the bylaw - The Nova Scotia Court of Appeal dismissed Northern's appeal - (a) The Board's jurisdiction was limited to interpreting HRM's land use bylaw (HRM Charter, s. 267(2)) - "It has no authority to question its legality. In fact, under the Charter, that power appears to be expressly reserved for the Supreme Court of Nova Scotia [s. 207(1)]" - (b) The Board's decision met the reasonableness standard - The Board accepted the development officer's narrower view as to what activities were "fundamental to ... extraction" - While the impugned activities might be fundamental to a quarry they were not fundamental to the extraction process - That conclusion fell within the range of acceptable outcomes.

Land Regulation - Topic 3272

Land use control - Building or development permits - Appeals to appeal board - Jurisdiction - [See Land Regulation - Topic 3239 ].

Mines and Minerals - Topic 6022

Operation of mines, quarries and wells - Licences and permits - Issuance of - [See Land Regulation - Topic 3239 ].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Halifax (Regional Municipality) v. United Gulf Developments Ltd. et al. (2009), 280 N.S.R.(2d) 350; 891 A.P.R. 350; 2009 NSCA 78, refd to. [para. 27].

Statutes Noticed:

Halifax Regional Municipality Charter, S.N.S. 2008, c. 39, sect. 267(2) [para. 24].

Counsel:

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

E. Roxanne MacLaurin, for the respondent, Halifax Regional Municipality;

Nova Scotia Utility and Review Board, not appearing;

Edward Gores, Q.C., for the respondent, The Attorney General of Nova Scotia;

Paul Miller, for the intervenors, Dwight Ira Isenor and Staceylee Rudderham.

This appeal was heard on February 11, 2015, in Halifax, Nova Scotia, before MacDonald, C.J.N.S., Beveridge and Farrar, JJ.A., of the Nova Scotia Court of Appeal. In reasons written by MacDonald, C.J.N.S., the Court delivered the following judgment, dated May 12, 2015.

To continue reading

FREE SIGN UP