Armoyan Group Ltd. v. Halifax (Regional Municipality)

Armoyan Group Ltd. v. Halifax (Regional Municipality) Court Court of Appeal Date 1996-09-25 Citation 1996 NSCA 181 Docket CA 127203 Judge/Registrar/Adjudicator Roscoe, Elizabeth A. (Honourable Justice) (CA); Freeman, Gerald B. (Honourable Justice) (CA); Hart, Gordon L.S. (Honourable Justice) Document Type Decision Decision Content C.A. No. 127203 NOVA SCOTIA COURT OF APPEAL Cite as: Armoyan Group Ltd. v. Halifax (Regional Municipality), 1996 NSCA 181 Freeman, Hart and Roscoe, JJ.A. BETWEEN: ) ) ARMOYAN GROUP LIMITED ) David P. S. Farrar ) for the Appellant Appellant ) ) - and - ) ) HALIFAX REGIONAL MUNICIPALITY ) Michael H. Moreash (formerly the City of Dartmouth) ) for the Respondent ) Respondent ) ) ) ) Appeal Heard: ) September 25, 1996 ) ) ) Judgment Delivered: ) September 25, 1996 THE COURT: The appeal is dismissed and the respondent shall recover costs in the amount of $1,000.00, including disbursements, as per oral reasons for judgment of Roscoe, J.A.; Hart and Freeman, JJ.A., concurring. The reasons for judgment of the Court were delivered orally by ROSCOE, J.A.: This is an appeal from a decision of the Nova Scotia Utility and Review Board which affirmed a refusal by the City of Dartmouth to grant the appellant's application for a rezoning of several lots in the Montebello West subdivision from H (holding) which would allow R-1 usage (single family residential) to R-2 (two-family residential). Two separate applications had been made by the appellant. The first was refused by the City Council and the second was deemed to have been refused by the operation of s. 69 of the Planning Act, R.S.N.S. 1989, c. 346. The Board heard both appeals together, and after amendments to the pleadings, twenty-four of the total of eighty-six lots in the subdivision were in issue. The Montebello West lands are designated “residential” in the City’s Municipal Planning Strategy (MPS). The appeal to the Board from the City Council was pursuant to s. 70 of the Planning Act: 70 (1) The amendment or refusal by a council to amend the land‑use by‑law pursuant to subsection (2) of Section 51 may be appealed by (a) an aggrieved person; (b) the applicant; (c) the Director; (d) the council of an adjoining municipality. . . . (4) The Board shall determine whether the decision of the council reasonably carries out the intent of the municipal planning strategy. (5) The Board may (a) confirm the decision of the council; (b) allow the appeal by reversing the decision of the council amending the land‑use by‑law; or (c) allow the appeal by instructing the council to amend the by‑law in the manner prescribed by the Board. (6) The Board shall not allow the appeal unless the Board determines that the decision of the council cannot reasonably be said to carry out the intent of the municipal planning strategy. . . . (8) Notwithstanding subsections (6) and (7), the Board may allow an appeal by an applicant if, in the opinion of the Board, (a) the applicant would suffer undue hardship; or (b) extraordinary and compelling circumstances are present. The Board, in its decision, reviewed the sections of the City’s MPS dealing with zoning amendments and the designation of streets and roads as expressways, arterials, collectors and local streets. After consideration of the evidence and reports of the City’s Managers of Planning and Traffic which recommended rejection of the application for rezoning based largely, but not solely, on traffic considerations, and the reports and evidence of the appellant’s expert planners, the Board correctly stated that in order to allow the appeal it must be persuaded that the refusal to rezone “... cannot reasonably be said to carry out the intent of the municipal planning strategy.” It was not so persuaded and provided detailed reasons for its dismissal of the appeal. Additionally, the Board was unable to conclude that there were any extraordinary or compelling circumstances which would call for the application of s. 70(8) of the Planning Act. An appeal to this Court lies on a question of the Board's jurisdiction or upon any question of law. See s. 30 of the Utility and Review Board Act, S.N.S. 1992, c. 11. The appellant submits that the Board made numerous errors in its interpretation of the intent of the MPS, and errors in its consideration and weighing of the facts and evidence, the result of which was that the Board’s decision was unreasonable. We have carefully reviewed the record and the oral and written submissions of counsel and have considered the purpose of the Planning Act and the appropriate standard of review as discussed in this Court's decision in Heritage Trust of Nova Scotia and Friends of the Public Gardens v. Nova Scotia Utility and Review Board, Brenhold Limited and The City of Halifax (1994), 128 N.S.R. (2d) 5. We are satisfied that the Board committed no error on a point of law or jurisdiction in arriving at the conclusion that the Council’s decision reasonably carried out the intent of the MPS. Whether undue hardship and compelling circumstances are present are questions of fact which were determined by the Board. (See R.A. MacDonald and R. & G. Consulting Limited v. The Municipality of the County of Kings, [1996] N.S.J. No. 155 (Q.L.), a decision of this Court dated April 16, 1996. The resolution of those issues was within the jurisdiction of the Board, and its findings cannot be said to be unreasonable. We would accordingly dismiss the appeal. The respondent shall have costs fixed at $1,000.00, including disbursements. Roscoe, J.A. Concurred in: Hart, J.A. Freeman, J.A.