Whyte v. Halifax Regional Municipality

Whyte v. Halifax Regional Municipality

The Development Officer's issuance of the Development Permit was reasonable: the lot qualified as an existing undersized lot under s.4.5, the LUB does not require all applicable provisions be satisfied prior to variance determination (but does require them before permit issuance), the Development Officer had authority under s.4.19(3) to set the watercourse buffer and reasonably set an eight-foot buffer at one corner while providing greater separation elsewhere, and s.4.19A applies to finished dwelling elevations so the approved finished floor elevations met the 3.8 m CGVD requirement.

Citation
2019 NSSC 239
Parties
Applicant: John Whyte; Applicant: Dana MacKenzie; Respondent: Halifax Regional Municipality-Development Office; Respondent: Jesse Risser and Jenalee Risser
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
26 July 2019
Procedural Posture
Judicial Review / Final Decision
Outcome
Application for Judicial Review dismissed
Legal Topics
Development Permit, Variance, Judicial Review, Land Use by Law Interpretation, Watercourse Buffer, Coastal Elevation (cgvd)
Source Language
English
Administrative Law Municipal Law Land Use Planning Environmental Law Development Permit Variance Judicial Review Land Use by Law Interpretation +2 more

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Parties

John Whyte

Applicant

Dana MacKenzie

Applicant

Halifax Regional Municipality-Development Office

Respondent

Jesse Risser and Jenalee Risser

Respondent

Procedural Posture

Judicial Review / Final Decision

Legal Issues

  1. 1 Whether the subject property qualified as an existing undersized lot under s.4.5 of the LUB
  2. 2 Whether s.4.5 requires all applicable LUB provisions to be satisfied before a variance may be granted
  3. 3 Whether the Development Permit complied with the variance and whether the watercourse buffer was required to be 12 feet

Ratio Decidendi

The Development Officer's issuance of the Development Permit was reasonable: the lot qualified as an existing undersized lot under s.4.5, the LUB does not require all applicable provisions be satisfied prior to variance determination (but does require them before permit issuance), the Development Officer had authority under s.4.19(3) to set the watercourse buffer and reasonably set an eight-foot buffer at one corner while providing greater separation elsewhere, and s.4.19A applies to finished dwelling elevations so the approved finished floor elevations met the 3.8 m CGVD requirement.

Court Disposition

Application for Judicial Review dismissed

Orders

  • Application dismissed
  • Costs awarded to Halifax Regional Municipality in the amount of $1,000 plus reasonable disbursements