Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board)

Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board) Court Court of Appeal Date 2006-10-24 Citation 2006 NSCA 115 Docket CA 257605 Judge/Registrar/Adjudicator MacDonald, J. Michael (Honourable Chief Justice) (CA); Cromwell, Thomas A. (Honourable Justice) Document Type Decision Relations Library Sheet - Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board) - 2006 NSCA 115 - 2006-10-24 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: Midtown Tavern & Grill Ltd. v. Nova Scotia (Utility and Review Board), 2006 NSCA 115 Date: 20061024 Docket: CA 257605 Registry: Halifax Between: Midtown Tavern & Grill Limited Appellant v. Nova Scotia Utility and Review Board, Heritage Trust of Nova Scotia, Paul and Joyce McCulloch, Peninsula South Community Association, Federation of Nova Scotian Heritage, Halifax Regional Municipality Respondents Revised judgement: A map has been edited from the original decision to allow electronic publishing. Judges: MacDonald, C.J.N.S.; Freeman and Cromwell, JJ.A. Appeal Heard: May 24, 2006, in Halifax, Nova Scotia Held: Appeal is dismissed without costs as per reasons for judgment of MacDonald, C.J.N.S. and Cromwell, J.A. concurring; Freeman J.A. having ceased to hold office prior to this judgment being rendered, did not participate. Counsel: Robert G. Grant, Q.C., for the appellant. Ronald A. Pink, Q.C. and Gordon Forsyth, for the respondents Heritage Trust of Nova Scotia, Paul and Joyce McCulloch, Peninsula South Community Association and Federation of Nova Scotian Heritage. Karen L. Brown for the respondent Halifax Regional Municipality. Reasons for judgment: [1] The Midtown Tavern and Grill is located on the corner of Grafton and Prince Streets; prime real estate in downtown Halifax and just two blocks from Halifax’s historic Citadel Hill. The appellant ("the developer") owns this popular facility and wants to replace it with a 17-storey hotel and shopping complex. It would include a replica of the existing enterprise. [2] Zoning by‑laws reflecting the city's municipal planning strategy ("MPS") would prohibit such a tall structure in this area without approval from the Halifax Regional Municipality ("HRM") by way of a development agreement. The developer applied accordingly and this prompted a highly charged public debate. On one side, the developer and its supporters emphasized the need for progressive economic development in this area. On the other side were citizens' groups, including the respondents, who opposed the project as being a threat to the city's heritage. Their main concern involved the proposed structure's height in proximity to Citadel Hill. [3] Following lively public hearings, HRM, through its Peninsula Community Council ("Council"), sanctioned the project and approved the requisite agreement. [4] The respondent citizens' groups ("the opponents") appealed as “aggrieved parties” to the Nova Scotia Utility and Review Board ("the Board") which has a mandate to set aside such decisions if they do "not reasonably carry out the intent of the MPS." [5] The Board ruled for the opponents and reversed the HRM's decision. The developer now appeals to this court asserting legal error by the Board. Although also a named respondent, HRM understandably supports the developer in this appeal. [6] In reversing HRM's approval, I believe the Board committed no reviewable error. Simply put, the height of the proposed structure is not reasonably consistent with the MPS. I would dismiss the appeal. BACKGROUND [7] The developer filed its application with HRM in July of 2003. It initially proposed a 20-storey structure comprising 13 storeys atop a broader 7-storey base, on a lot spanning, along Prince Street, a full city block from Grafton Street to Market Street. Following public hearings, the developer reduced the proposed height to 17 storeys (on Grafton Street). [8] The proposal is set out in the developer's factum: ¶ 9 The proposal comprises a 17‑storey (above Grafton Street) commercial building to be used as a 165‑unit hotel, seven storeys of which cover the entire consolidated lot and the remaining ten storeys being set back from Prince Street. The proposed structure will include three levels of parking, the entrance of which is to be at grade from Grafton Street with two levels below. The Grafton Street level would also provide an entrance to the Midtown Tavern & Grill, along with approximately 1,400 square feet of commercial space. The second floor above Grafton Street would be at grade on Market Street and would serve as the entrance to the hotel thereby contributing to the pedestrian landscape. This floor also has a component of commercial floor space of 7,100 square feet which would be the new location for the Midtown Tavern & Grill, as well as retail uses associated with the hotel. The next five floors are to contain hotel suites and meeting rooms. The remaining 10 floors, which are set back from Prince Street to accommodate a view plane which covers the northern portion of the property, will contain hotel suites. In terms of roof elevation, the building as proposed would be 259' 3" above sea level. [9] HRM planning staff prepared a report recommending against the project, even as modified. The problem was height. They felt that the structure would be too tall given its proximity to Citadel Hill and relative to other buildings in the area. HRM planner Gary Porter submitted the report to the relevant committees. He concluded: SUMMARY AND CONCLUSION From a land use and design perspective, the proposed building fits well within the Central Business District and is consistent with the policies of the Municipal Planning Strategy in these respects. The proposed building will not cast shadows on any public open spaces. "Normal" wind levels around this building are predicted to be acceptable during the summer months. However, during winter months, some inconvenience in walking is predicted. It is the height of the building relative to Citadel Hill, relative to the adjacent heritage building and relative to other buildings in this part of the Central Business District which is inconsistent with the policies of the Municipal Planning Strategy. It is for these reasons that staff cannot recommend approval of this application. [Emphasis added.] [10] Nonetheless, in July of 2004, following a public hearing, Council approved the proposal. No reasons were provided because under the governing Municipal Government Act, S.N.S. 1998, c.18 ("MGA"), reasons are required only when proposals are rejected: 230 (4) Upon approving a development agreement or an amendment to a development agreement, the clerk shall place a notice in a newspaper circulating in the municipality stating that the development agreement is approved and setting out the right of appeal. . . . (6) Within seven days after a decision refusing to approve a development agreement or an amendment to a development agreement, the clerk shall notify the applicant in writing, giving reasons for the refusal and setting out the right of appeal. [11] The Board heard the opponents' appeal throughout May and June of 2005. This was a comprehensive process. The Board sat for nine days and heard from a variety of experts for both sides including a host of planners, architects, engineers and historians. [12] In October of 2005, the Board rendered its decision allowing the appeal and reversing Council's approval of the project. The Board felt that the proposal ran afoul of the MPS in two areas: (a) its height in proximity to Citadel Hill, and (b) its height in relation to the surrounding architecture. [13] Thus said the Board: ¶ 276 The Board concludes that the decision of Peninsula Community Council does not reasonably carry out the intent of the M.P.S. as it relates to height and scale, and complementary architecture in terms of scale, proportion and massing. Accordingly, the appeal is allowed and the decision of Peninsula Community Council is reversed. ISSUES [14] The appellant lists the following grounds of appeal: (a) The Board erred in law by failing to conclude that the development agreement approved by Council reasonably carried out the intent of the Municipal Planning Strategy; (b) The Board erred in law in attempting to identify one correct interpretation of the Municipal Planning Strategy and therefore failed to recognize reasonable interpretations of the Municipal Planning Strategy which supported the development being approved by Council; (c) The Board erred in law by failing to apply a reasonableness simpliciter standard to its review of Council's decision; (d) The Board erred in law by importing the concept of the evidentiary standard of proof upon a balance of probabilities to the legal question before it of determining whether Council's decision is reasonably consistent with the intent of the municipal planning strategy; (e) The Board erred in law by substituting its own views for those of Council respecting the reasonable height of the development; (f) The Board erred in law by failing to conclude that 7.2.1 of Section III of the Municipal Planning Strategy can reasonably be interpreted to mean that the proposed development is not adjacent to buildings designated as being of historical significance or importance of the character of the central business district; (g) The Board erred in law in substituting its own views for those of Council concerning whether the proposed development is complementary to designated heritage buildings or other buildings important to the character of the Central Business District in terms of scale, proportion and massing; and (h) Such further grounds as may appear. [15] Despite the enumerated grounds, one theme has emerged from the developer's oral submissions, as endorsed by HRM. It involves the level of deference owed by the Board to Council. In other words, the developer maintains that the Board paid Council insufficient deference and that this constitutes an error in law. Simply put, the Board substituted its interpretation of the MPS for that of the Council. Instead, the Board should have commenced its analysis with the Council decision and then considered whether it could be reasonably supported by the MPS. Thus, according to the developer, the Board erroneously applied a correctness standard of review as opposed to the more appropriate and deferential standard of reasonableness simpliciter. I will address these standards in more detail later in my judgment. [16] The developer further maintains that had the Board applied this deferential standard, it would have sustained Council's decision. Thus, in its factum, the developer restated the issues as follows: ¶ 14 For the purpose of this factum, the Appellant will condense grounds (a), (b), and (c) of appeal as follows The Board erred in law in applying the correctness standard of review rather than the reasonableness simpliciter standard of review. ¶ 15 Grounds (e), (f), and (g) will illustrate the application of the erroneous standard of review. [17] On the other hand, the opponents acknowledge that this case is all about deference. However, from their perspective, the main issue involves the level of deference owed not by the Board to Council but by this court to the Board. After all, they emphasize that the Board and not Council conducted the full scale hearing. Thus in its oral submissions the opponents urged that the Board owed Council no deference. From their perspective, Council's approval affected only the onus of proof before the Board. In other words it was the Board's task to analyze the evidence and interpret the MPS in determining whether the proposal reasonably reflected the intent of the MPS. Council's decision, the opponents urge, simply served to burden them with the onus of proof before the Board. In other words, because Council approved the project, the opponents had to satisfy the Board that the proposal (in the Board's view and not Council's view) was unreasonable. [18] Thus, this case explores interesting standard of review issues at two levels: (a) the Board to Council, and (b) this court to the Board. As noted, the parties occupy opposite ends of the deferential spectrum. The developer says the Board should have deferred to Council. The opponents say no and that instead we should defer to the Board. Thus, I restate the issues on appeal as follows: 1. How much deference does this court owe the Board? 2. How much deference did the Board owe Council? 3. Did the Board accord Council an appropriate level of deference? ANALYSIS 1. This Court's Deference to the Board [19] The Supreme Court of Canada has directed us to take a pragmatic and functional approach when determining the level of deference owed to a tribunal such as the Nova Scotia Utility and Review Board. See Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (S.C.C.), where Bastarache, J. observed: ¶ 26 The central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: "[W]as the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?" (Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997] 2 S.C.R. 890, at para. 18, per Sopinka J.). ¶ 27 Since U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, this Court has determined that the task of statutory interpretation requires a weighing of several different factors, none of which are alone dispositive, and each of which provides an indication falling on a spectrum of the proper level of deference to be shown the decision in question. This has been dubbed the "pragmatic and functional" approach. This more nuanced approach in determining legislative intent is also reflected in the range of possible standards of review. [20] In this case, the developer enjoys a statutory right of appeal to this court. Nonetheless, we must still apply the pragmatic and functional approach. For example, in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, the Supreme Court of Canada confirmed: ¶ 20 This brings us to the second erroneous assumption ‑‑ that because the Act grants a right of appeal, the matter could be dealt with without recourse to the usual administrative law principles pertaining to standard of review. ¶ 21 In a case of judicial review such as this, the Court applies the pragmatic and functional approach that was established by this Court in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and gained ascendancy in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. The term "judicial review" embraces review of administrative decisions by way of both application for judicial review and statutory rights of appeal. In every case where a statute delegates power to an administrative decision‑maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach. In Pushpanathan, this Court unequivocally accepted the primacy of the pragmatic and functional approach to determining the standard of judicial review of administrative decisions. Bastarache J. affirmed that "[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed" (para. 26). However, this approach also gives due regard to "the consequences that flow from a grant of powers" (Bibeault, at p. 1089) and, while safeguarding "[t]he role of the superior courts in maintaining the rule of law" (p. 1090), reinforces that this reviewing power should not be employed unnecessarily. In this way, the pragmatic and functional approach inquires into legislative intent, but does so against the backdrop of the courts' constitutional duty to protect the rule of law. [21] There is a progression of three possible deferential standards. On one end is correctness which admits no deference and allows the reviewing court to replace the Board’s findings with its own conclusions. On the other end is patent unreasonableness which allows the greatest level of deference and prohibits interference unless the impugned decision is, for example, clearly irrational. See Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, where Iacobucci, J. explained: ¶ 52 ... Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963‑64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9‑12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. [22] In the middle is reasonableness simpliciter. It allows for deference provided the body under review followed a reasonable path en route to its conclusion. Again I return to Ryan, supra: ¶ 55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, supra, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, supra, at para. 79). [23] To determine the relevant category, the reviewing court must consider and weigh four factors, namely: (1) the presence or absence of a privative clause; (2) the expertise of the body under review compared to that of the reviewing court; (3) the purpose of the legislation under which the tribunal is operating, in particular applicable provision(s); and (4) the nature of the problem being addressed by the tribunal. [24] In following this process, the reviewing court does not necessarily select just one category for each case under review. Instead it involves an issue by issue analysis. In other words, the appropriate standard may vary depending on which aspect of the subject body's decision is being challenged. [25] In this case, we are asked to review the Board's handling of Council's decision and specifically whether the Board accorded Council sufficient deference. Now to the four contextual factors in the pragmatic and functional approach. [26] I begin with the fourth factor to which I have just alluded; the nature of the issue faced by the Board. As noted, it involved the standard of review applied by the Board to Council's decision. The developer's main contention is not that the Board actually articulated the wrong legal test but that its reasons disclose that it did not apply the correct legal test. In other words, the developer in essence submits that the Board’s reasons disclose an "extricable error of law" as described in Housen v. Nikolaisen [2002] 2 S.C.R. 235 at ¶ 33‑34. The developer further submits that the Board erred by importing into its review a burden of proof on the balance of probabilities which, the developer says, is inconsistent with the proper standard of review. [27] Whether a reviewing body applied the appropriate standard of review typically involves a question of law. For example in Canada Post Corp. v. Nova Scotia (Workers' Compensation Appeals Tribunal), 2004 NSCA 40, this court considered whether the Worker's Compensation Appeal Tribunal as a reviewing body accorded its hearing officer sufficient deference. Cromwell, J.A. concluded: ¶ 22 It is common ground on this appeal that if WCAT used the wrong standard of review of the Hearing Officer's decision, its selection of the wrong standard is an error of law reviewable by this Court on the correctness standard. [28] I now turn to the remaining three contextual factors. [29] The Board in this case does not enjoy a privative clause. In fact, as noted, the developer has a right to appeal on a question of law. The Utility and Review Board Act, S.N.S. 1992, c.11 provides: 30(1) An appeal lies to the Appeal Division of the Supreme Court from an order of the Board upon any question as to its jurisdiction or upon any question of law, upon filing with the Court a notice of appeal within thirty days after the issuance of the order. [30] At the same time it should be noted that the Board does enjoy a strong privative clause when it comes to factual findings: 26 The finding or determination of the Board upon a question of fact within its jurisdiction is binding and conclusive. [31] Regarding expertise, I acknowledge that the Board has, as a result of its permanent status, developed expertise in various areas. For example, Oland, J.A. of this court in Antigonish (Town) v. Antigonish (County), 2006 NSCA 29 noted: ¶ 18 Next to be taken into account is the expertise of the Board. The UARB Act does not set out any statutorily prescribed expert qualifications for membership on the Board. The Board is an independent quasi‑judicial body which has both regulatory and adjudicative functions. The Act gives it the authority to attend to various matters concerning municipalities including, upon application, municipal boundary lines (s. 356 and s. 357) and the incorporation or dissolution (s. 383 and s. 394 respectively) of a town. Before this court it was undisputed that the Board has adjudicated several matters involving the Town and the Municipality, including ones dealing with water utilities, the Town electric utility, land use planning, and municipal electoral boundaries. [32] Nonetheless, questions involving standards of review are regular fare for this court, making us equally if not more equipped than the Board to deal with this type of issue. [33] Turning finally to the applicable legislation, municipal planning is governed by the MGA. Its purpose includes vesting municipalities such as HRM with broad authority. Purpose of Act 2 The purpose of this Act is to (a) give broad authority to councils, including broad authority to pass by‑laws, and to respect their right to govern municipalities in whatever ways the councils consider appropriate within the jurisdiction given to them; (b) enhance the ability of councils to respond to present and future issues in their municipalities; and (c) recognize that the functions of the municipality are to (i) provide good government, (ii) provide services, facilities and other things that, in the opinion of the council, are necessary or desirable for all or part of the municipality, and (iii) develop and maintain safe and viable communities. 1998, c. 18, s. 2. [Emphasis added.] [34] Also, in Part VIII, under Planning and Development, the MGA specifically cloaks municipalities with primary authority over planning: Purpose of Part 190 The purpose of this Part is to (a) enable the Province to identify and protect its interests in the use and development of land; (b) enable municipalities to assume the primary authority for planning within their respective jurisdictions, consistent with their urban or rural character, through the adoption of municipal planning strategies and land‑use by‑laws consistent with interests and regulations of the Province; (c) establish a consultative process to ensure the right of the public to have access to information and to participate in the formulation of planning strategies and by‑laws, including the right to be notified and heard before decisions are made pursuant to this Part; and (d) provide for the fair, reasonable and efficient administration of this Part. 1998, c. 18, s. 190. [Emphasis added.] [35] Of course the MGA does not grant municipalities unlimited planning authority. Thus we have the provision specific to this case. As noted, it mandates the Board to reverse decisions that are not reasonably consistent with any given planning strategy: 250 (1) An aggrieved person or an applicant may only appeal . . . (b) the approval or refusal of a development agreement or the approval of an amendment to a development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; . . . 251 (2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land‑use by‑law or the subdivision by‑law. 1998, c. 18, s. 251; 2001, c. 35, s. 12; 2003, c. 9, s. 66. [36] In summary, the issue under review involves a question of law that this court is as much if not more equipped to deal with than the Board and for which there is an expressed right of appeal. I will review this aspect of the Board's decision on the correctness standard. In other words, the Board had to be correct about the standard of review which it applied to Council's decision. 2. How Much Deference Did the Board Owe Council? [37] As earlier noted, the parties have polarized views on this issue. The developer suggests that the Board should have reviewed the Council decision on the above referenced reasonableness simpliciter standard thereby according the Council considerable deference. The following submissions are set out in its factum: ¶ 24 Decisions from both the Board and this Court have been consistent in articulating that there ought to be a large measure of discretion afforded to Council as the primary decision‑making body for planning matters. In Heritage Trust of Nova Scotia v. Nova Scotia (Utility & Review Board), Justice Hallett stated: This approach to interpretation is consistent with the intent of the Planning Act to make municipalities primarily responsible for planning; that purpose could be frustrated if the municipalities are not accorded the necessary latitude in planning decisions¼ Heritage Trust of Nova Scotia v. Nova Scotia (Utility & Review Board), (1994) 128 N.S.R. (2d) 5; 1994 CarswellNS 103, at paragraph 99. ¶ 25 In Tsimiklis v. Nova Scotia, supra, Justice Chipman referred to this deference to Council and the fact that Council should be afforded considerable latitude in balancing the competing interests found in the MPS: A review of the MPS confirms, as one would surmise, that many of the policies are, to use the words of Hallett, J.A. in Heritage Trust of Nova Scotia, at para 100 "inherently in conflict". The Board recognized this in its decision. The MPS recognises a number of competing interests necessarily involved in the creation of a workable planning regime and, of necessity, Council must have considerable latitude in striking a balance among those interests in making a planning decision. [emphasis by counsel] Tsimiklis v. Nova Scotia (Utility & Review Board), supra, at paragraph 24 ¶ 26 The test set out in s.250(1) of the Municipal Government Act is not whether another decision by Council would be more consistent with the intent of the MPS. It is not whether Council was reasonable in arriving at its decision. It is not even whether Council's decision reasonably carries out the intent of the MPS. The test is whether the decision ‑ not the reasoning ‑ of Council does not reasonably carry out the intent of the MPS. The qualification in the section 250(1)(b) through the use of the phrase "does not reasonably carry out" clearly indicates that the legislature intended the Board to accord great deference to the decision of Council, consistent with the primary responsibility of elected representatives to make planning decisions. ¶ 27 The only question is whether Council's decision cannot reasonably be said to be consistent with the MPS. This involves applying a reasonableness simpliciter analysis to the Council's decision. [38] On the other hand we have the opponents’ position. They assert that the Board (and not Council) is the primary decision maker and owed Council no deference. After all, they urge, the Board conducted the full scale hearing that complied with all the rules of natural justice. For example, unlike Council, the Board, during its hearing, did not place arbitrary time limits on submissions. Instead, it heard all the relevant evidence which in turn was screened by thorough and probing cross examination. Furthermore, unlike Council, the Board provided comprehensive and logical reasons when reversing the Council's decision. [39] Thus in the opponents' view, the Board effectively owed no deference to the Council and by approving the development, as noted, Council did no more than place the burden upon the opponents to satisfy the Board that the approval did not reasonably reflect the intent of the MPS. [40] In my view, neither of these two submissions is correct. Instead, as I will elaborate upon later in this judgment, the answer lies in the clear wording of the statute directing the Board to set aside Council decisions that “do not reasonably carry out the intent of the MPS.” [41] However, let me first address in more detail the developer's plea for a reasonableness simpliciter standard of review. [42] As the above‑noted cases confirm, the concept of reasonableness simpliciter as a standard of judicial review for the most part focuses on the reasons offered by the body under review to justify its conclusion. In other words, the reviewing body must examine the subject tribunal's "reasoning path" to determine if it was reasonable. For example, in Granite Environmental Inc. v. Nova Scotia (Labour Relations Board), 2005 NSCA 141, Fichaud, J.A., summarizing Ryan v. Law Society (New Brunswick), [2003] 1 S.C.R. 247, observed: 43 (b) Under reasonableness and patent unreasonableness, the reviewing judge does not follow her own reasoning path. She does not ask whether her view is correct, reasonable or preferred. She follows the tribunal's reasoning path. She does not ask whether the tribunal's decision is correct or preferred. She asks whether there is any line of reasoning to support the tribunal's conclusion. If the answer is "yes", then the decision is upheld, even if there are other reasonably supportable conclusions which the reviewing judge prefers. [43] Here, as earlier noted, the Council gave no reasons for its decision; nor was it obliged to do so. Thus, on this line of authority at least, it would appear inherently incongruent for the Board in this case to apply such a standard. That is not to say that a reasonableness standard can only be applied when detailed reasons are offered. Courts in certain circumstances have attempted to inject such a standard by concentrating not on the reasons offered by the body under review but solely on the result. See New Brunswick (Board of Management) v. Doucet‑Jones, 2004 NBCA 65 (N.B. C.A.) at ¶ 38‑42. [44] However, as earlier noted in this case the Board's task was effectively spelled out in the statute. It was directed to consider whether Council's decision reasonably reflected the intent of the MPS. This type of expressive language can often supplant the functional and pragmatic approach. For example, in R. v. Owen, [2003] 1 S.C.R. 779; 2003 SCC 33, the Supreme Court of Canada observed: ¶ 31 The appellant submitted an extensive analysis of the Court's administrative law jurisprudence applying the "functional and pragmatic test" to establish the appropriate standard of review from U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1087, to Moreau‑Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11. However, in the case of these review boards, Parliament has spelled out in the Criminal Code the precise standard of judicial review, namely that the court may set aside an order of the review board only where it is of the opinion that: (a) the decision is unreasonable or cannot be supported by the evidence; or, (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice. (Cr. C., s. 672.78) ¶ 32 It must be kept in mind that "[t]o a large extent judicial review of administrative action is a specialized branch of statutory interpretation": Bibeault, at p. 1087 (emphasis deleted). Where Parliament has shown its intent in the sort of express language found in s. 672.78 Cr. C. then, absent any constitutional challenge, that is the standard of review that is to be applied. [Emphasis added.] [45] Thus in this case, the Board, did not have to apply a pragmatic and functional approach which the developer argues would command a reasonableness simpliciter standard of review. Instead it simply had to follow the clear test set out in the legislation. [46] Thus for the same reason, I reject the opponents' assertion that the Board owed no deference to Council despite the fact that the Board conducted its own full scale hearing. In fact, I believe Council and not the Board to be the primary decision maker when it comes to this type of planning issue. Let me briefly elaborate. [47] Despite the Board's detailed hearing, it must be remembered that members of Council are elected and accountable to the citizens of HRM. As such they exercise discretion and are accordingly entitled to deference. As earlier noted, one purpose of the MGA is to provide municipalities with autonomy when it comes to planning strategies and development. This decision fell within Council's discretion, provided it reasonably reflected the intent of the MPS. As elected officials, their decisions must be respected. This court has said as much on several occasions. For example in Tsimiklis v. Halifax (Regional Municipality), 2003 NSCA 30, Chipman, J.A. observed: ¶ 24 A review of the MPS confirms, as one would surmise, that many of the policies are, to use the words of Hallett, J.A. in Heritage Trust, supra, at para 100 "inherently in conflict". The Board recognized this in its decision. The MPS recognises a number of competing interests necessarily involved in the creation of a workable planning regime and, of necessity, Council must have considerable latitude in striking a balance among those interests in making a planning decision. . . . ¶ 64 As I have already pointed out, planning decisions often involve compromises and choices between competing policies which are best made by the elected representatives, so long as they are reasonably consistent with the intent of the MPS. To my mind, read against these policies Council's decision here is reasonably consistent with that intent. [48] So it is not for the Board to impose its interpretation of the MPS. Instead the Board must defer to Council. Thus, this court in Kynock v. Bennett et al., (1994), 131 N.S.R.(2d) 334 (C.A.) observed: ¶ 27 ... Clearly the legislature did not intend to confer a de novo jurisdiction on the board when hearing an appeal from a municipal council decision to enter into a development agreement. The board is functioning in a review capacity and is limited by the jurisdiction conferred on it under the Planning Act. [49] Also this court in Mahone Bay Heritage & Cultural Society v. 3012543 Nova Scotia Ltd., 2000 NSCA 93 concluded: ¶ 9 ... The Board also recognized ... that the MPS may be capable of being interpreted reasonably in several ways; there is not necessarily one correct interpretation. ¶ 10 The Board must look at the MPS as a whole in order to ascertain if the [Council's] decision is consistent with the intent of that MPS. [50] Thus, in the end, resort inevitably must be had to specific directions contained in the statute. By doing so, the fundamental question therefore becomes: Can it be said that Council's decision does “not reasonably carry out the intent of the MPS”? [51] To answer this question, the Board must embark upon a thorough fact‑finding mission to determine the exact nature of the proposal in the context of the applicable MPS and corresponding by‑laws. As in this case, this may include the reception of evidence as to the intent of the MPS. [52] However the Board should not then take its body of decided facts and use this work product to conclude how it feels the MPS should be interpreted. In this regard, I agree with the developer. Instead, after completing its factual analysis, the Board should go immediately to Council's conclusion. The Board should then ask itself, based on the facts as determined, have the opponents established that Council's decision did not reasonably carry out the intent of the MPS? [53] This would be consistent with the approach taken by this court over the years and as first enunciated by Hallett, J.A. in Heritage Trust of Nova Scotia v. Nova Scotia (Utility and Review Board), [1994] N.S.J. No. 50, Hallett, J.A. noted: ¶ 99 ... There may be more than one meaning that a policy is reasonably capable of bearing. This is such a case. In my opinion the Planning Act dictates that a pragmatic approach, rather than a strict literal approach to interpretation, is the correct approach. The Board should not be confined to looking at the words of the Policy in isolation but should consider the scheme of the relevant legislation and policies that impact on the decision. In this case that would be the Planning Act, the Heritage Property Act, the objects and purposes of the planning policies of the City and the application of the policies by Council. This approach to interpretation is consistent with the intent of the Planning Act to make municipalities primarily responsible for planning; that purpose could be frustrated if the municipalities are not accorded the necessary latitude in planning decisions.. I agree with Côté's observations that if the goal of interpretation is to reveal the intention of the law maker there is also an implicit objective of interpretation "to find a reasonable solution to a genuine and concrete problem". The Legislature recognized this when it enacted s. 78(6) of the Planning Act. In short, the Board must determine if a municipality's interpretation and application of a planning policies with respect to the development agreement decision in issue was one that the language of the policies would reasonably bear. [Emphasis added.] 3. Did the Board Accord Council an Appropriate Level of Deference? [54] Now that I have identified the applicable level of deference owed by the Board to Council, the ultimate question becomes has the developer shown that the Board failed to apply the correct standard? Again, I am reviewing the Board's handling of this issue on a correctness standard. [55] In its detailed reasons, the Board acknowledged that Council was owed deference and that Council's decision could not be reversed unless it did not reasonably carry out the intent of the MPS. In other words, the Board acknowledged that it could not substitute its decision for that of the Council: ¶ 138 This matter involves appeals from Peninsula Community Council's approval of a development agreement. Under s. 250(1)(b) of the Municipal Government Act, S.N.S. 1998, c.18, the grounds for appealing such a decision are limited: s. 250 (1) An aggrieved person or an applicant may only appeal . . . (b) the approval or refusal of a development agreement or the approval of an amendment to a development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; ¶ 139 The powers of the Board are similarly limited on such an appeal: s. 251 (2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land‑use by‑law or the subdivision by‑law. 1998, c. 18, s. 251; 2001, c. 35, s. 12; 2003, c. 9, s. 66. (emphasis added) ¶ 140 Thus, the Board must not interfere with the decision of Council unless it determines that the decision of Council to enter into the development agreement does not reasonably carry out the intent of the M.P.S., including the intent of the policies relating to the Central Business District. The burden of proof is on the Appellants to establish, on a balance of probabilities, that in the words of s. 251(2), "...the decision of council...does not reasonably carry out the intent of the municipal planning strategy." ¶ 141 Accordingly, if the Appellants can show, on the balance of probabilities, that Council's decision does not reasonably carry out the intent of the M.P.S., the Board must reverse Council's decision to enter into the development agreement. If, however, the Appellants fail to meet this standard of proof, it is the Board's duty to defer to the decision of Peninsula Community Council (see Heritage Trust, supra). ¶ 142 The Nova Scotia Court of Appeal has considered the standard by which this Board must review a council's decision. Clearly, the Board is not permitted to substitute its own decision for that of council. The Board's mandate is restricted to the jurisdiction conferred upon it by the Municipal Government Act (formerly the Planning Act), as noted by Hallett, J.A., in Kynock v. Bennett et al., (1994), 131 N.S.R. (2d) 334 (C.A.) and Heritage Trust, supra. [Emphasis added.] [56] Thus, it is clear that the Board correctly set out the relevant statutory provisions and summarized the governing precedents from this court as to the standard of its review of Council's decision. It therefore did not err in its articulation of the applicable standard. The more basic question raised by the developer is whether the Board's reasons disclose that although it articulated the test correctly, did it in fact apply it correctly? Let me now explore this issue. [57] Although the Board's reasons contain some language that, taken in isolation, suggest that it simply substituted its opinion for that of Council, I am persuaded that, read as a whole, the Board's reasons do not disclose any error in this regard. The Board in my view applied the test that it articulated. [58] Essentially, the Board accepted the evidence of the city's former planner that the MPS recognizes Citadel Hill and the view therefrom as integral to the city's character and therefore mandates maintaining and recreating a sensitive and complementary setting for this important site. Thus the Board concluded that the height of the proposed building relative to Citadel Hill and relative to other buildings in the area, is inconsistent with the policies of the MPS when read together and not in isolation. Permitting this building would therefore be inconsistent with any reasonable interpretation of the MPS as a whole. Thus, for the reasons that follow, I believe that the Board committed no reviewable error in reaching this conclusion. [59] To properly appreciate the Board’s conclusion, first it is important to have an overview of the relevant regulatory regime. [60] Pursuant to s. 213 of the MGA, municipal planning strategies are designed to “provide statements of policy to guide the development and managment of the municipality.” The provisions relevant to this appeal are: Statements of policy in planning strategy 214 (1) A municipal planning strategy may include statements of policy with respect to any or all of the following: ... (n) measures for informing, or securing, the views of the public regarding contemplated planning policies and actions or by‑laws arising from such policies; (o) policies governing (i) land‑use by‑law matters, (ii) amendment of the land‑use by‑law,... (iv) the use of development agreements, (v) the establishment of comprehensive development districts, ... (q) any other matter relating to the physical, social or economic environment of the municipality. (2) A council shall include policies in the municipal planning strategy on how it intends to review the municipal planning strategy and land‑use by‑law. 1998, c. 18, s. 214; 2003, c. 9, s. 57. [61] The MGA also requires any council that adopts a planning strategy to also adopt corresponding land use by‑laws (LUB) to carry out or implement the planning and development polices and objectives within the strategy. Again, the MGA establishes the relationship between a planning strategy and a land use by‑law: 219(1) Where a council adopts a municipal planning strategy or a municipal planning strategy amendment that contains policies about regulating land use and development, the council shall, at the same time, adopt a land‑use by‑law or land‑use by‑law amendment that shall enable the policies to be carried out. [62] The MPS relevant to this appeal dates back to 1978 and to what was then the City of Halifax. Following an introductory Section l, Section II sets out sixteen City‑Wide Objectives and Policies. They are the foundation of the decision‑making with regard to Halifax's physical, social and economic development. Of particular importance to this case is Section II , subsection 6, which addresses the preservation of areas “which reflect the city's past”. Specifically, it identifies Views from Citadel Hill as one of the things to be protected by way of development restrictions vis à vis height. I will address this subsection in more detail later. [63] Section III of the Strategy sets out the objectives and policies for the area relevant to this appeal, namely the Central Business District (CBD). Here we also find a policy specific to Citadel Hill. It reinforces the above noted city‑wide Section II, subsection 6: Section III 7.3 The City shall control the height of new development within the CBD in the vicinity of Citadel Hill, pursuant to Policies 6.3, 6.3.1, 6.3.2 and 6.3.3 of Section II of this Plan. [64] Let me therefore return to Section II, subsection 6, entitled Views From Citadel Hill. The first relevant provision, prescribing general height controls in the vicinity of the Citadel, reads: 6.3 The City shall maintain or recreate a sensitive and complimentary [sic] setting for Citadel Hill by controlling the height of a new development in its vicinity to reflect the historic and traditional scale of development. [65] Next there is a specific direction for development in the area immediately adjacent to Citadel Hill; a maximum of four storeys while at the same time allowing for an increase in height with distance therefrom: 6.3.1 The intent of such height controls shall be to establish a generally low to medium rise character of development in the area of approximately four traditional storeys in height immediately adjacent to Citadel Hill and increasing with distance therefrom. [Emphasis added.] Subsection 6.3.1 lies at the heart of this case for the following reasons. [66] Although the proposed project would not be immediately adjacent to Citadel Hill, being just one more block away, it would certainly be "in the vicinity". Thus the question becomes: With approximately four storeys being mandated in the block immediately adjacent to Citadel Hill, could the MPS be reasonably interpreted to allow for 17 storeys in the very next block? [67] To further complicate matters, a corresponding regulation specifically covers the area immediately adjacent to the Citadel but there is no such regulation for the next block where the land in question lies. [68] This regulation operates through "height precinct maps" which divide the land surrounding the Citadel into various bands starting with Band "A" as the area immediately adjacent to the Citadel. As depicted in the following plan, Band "A" includes that rectangle of land bounded by Duke Street on the north, Spring Garden Road on the south, Market Street on the east and the Citadel on the west. [Editor’s Note - The map has been removed to allow electronic publishing.] [69] As noted, the subject property is not in Band "A" but in the next block - Band "B". [70] According to this Band "A" regulation, the maximum height permitted for structures is 60 feet: 26A Notwithstanding Section 58 and 59N(c) in addition to the requirements of Section 47, buildings erected, altered or used in Band A as identified on Zoning Map ZM‑17 (Height Precinct Map) shall conform to the following height requirements: (i) The basic height of a building shall be 60 ft. This height may be exceeded provided there is one and one half feet of setback from the Brunswick Street and Sackville Street street lines for every foot of additional height above the 60 ft. level. No such setbacks are required from other street lines or property lines; (ii) Notwithstanding the above, no building shall exceed 75 ft. in overall height or penetrate a view plane. [71] Thus, this regulatory structure left Council with the following question. With four storeys or 60 feet being the maximum permitted height for buildings in Band "A", what height could the MPS, reasonably interpreted, justify for Band “B”? Could it be a structure 17 storeys high? Council thought so but the Board disagreed. [72] Instead, the Board felt that the concept of "increasing in distance therefrom" as set out in s. 6.3.1 connoted a gradual increase in height as construction moves away from Citadel Hill. Thus, it reasoned: ¶ 223 Policy 6.3.1 speaks of height controls (which the City has not enacted through the Land Use By‑law for this block). However, 6.3.1 serves to explain the intent of 6.3, indicating that what is intended by the M.P.S. is low to medium rise development of approximately 4 storeys in height immediately adjacent to the Citadel and increasing with distance therefrom. That phrase "increasing with distance therefrom" in the context of sections 6.2 and 6.3 which precede it, in the Board's view, directs a gradual increase so as to preserve the Citadel. To jump from four storeys on Brunswick Street to 17 storeys in the adjacent block is, in the Board's view, too severe an increase in height, taking the above policies into account. The Board does not agree with Mr. Heseltine that going from 4 storeys to 17 storeys in the next block, is a "gradual" increase. [73] Significantly and as earlier noted, the Board in reaching its conclusion considered the overall intent of the MPS: ¶ 219 The Board agrees with Mr. Porter that the M.P.S. recognizes Citadel Hill and its view as a defining element in the character of Halifax. The Board finds that the overriding intent of these policies is, in part, to protect the setting of the Citadel, and the views from the Citadel, by controlling the height and scale of buildings in its vicinity. . . . ¶ 222 The Board agrees with Mr. Porter that a very relevant question is what is a reasonable height of a building that will not overpower the Citadel. On cross‑examination, he said it might be 12 storeys at this location. In any event, Mr. Porter's opinion was, and the Board agrees, that a building which stands 259 feet above sea level, one city block from Citadel Hill, is not reasonably consistent with the policy directions in the M.P.S. . . . ¶ 226 The Board agrees with Mr. Porter that ‑ when the policies are read as a whole ‑ they require preservation of various aspects of Citadel Hill, and that a building with an elevation significantly higher than Citadel Hill conflicts which such an intent. . . . ¶ 228 The Board does not accept the evidence of Mr. Fowler [the developer’s expert witness] that Council was free to negotiate an "18 or 22 storey" building at the site so long as they were achieving other worthwhile objectives, and that such a decision of Council would still be consistent with the M.P.S. In the view of the Board, the predominant policy direction in the M.P.S. limits the height of new development in the vicinity of Citadel Hill. A 17‑storey building ‑ much less an 18 to 22 storey one ‑ would offend that intent. [74] Thus, as earlier noted, the Board followed the advice of HRM’s own planning staff. In doing so, it became for the Board a clear cut case of the proposed building simply being too high for that area with the result being an intolerable "wall effect". It observed: ¶ 204 City Staff led by Mr. Porter noted that "the M.P.S. recognizes Citadel Hill and the view therefrom as a defining element of the character of Halifax". As such it mandates maintaining a sensitive and complementary setting for Citadel Hill. Staff noted that Section 6.3 and 6.3.1 undertook this by "controlling the height of new development in the vicinity of Citadel Hill to reflect the historic and traditional scale of development in the area." ¶ 205 It was Staff's opinion that the proposed building did not reflect the historic and traditional scale of development in the vicinity. Staff noted that while Policy 6.3.1 establishes that the height in the Market Grafton block can be higher than the Brunswick Market block, the top of the proposed building will be 259' 3" above sea level. They noted that View Points B and C on Citadel Hill are at elevations 208' 6" and 216' 3", respectively. In Staff's view the building would create a wall effect and would result in too great a difference between what is permissible under the view planes and what is permissible immediately adjacent. ¶ 206 Mr. Porter described this as a "clear cut" case of a building that does not comply with the M.P.S. and "sets a dangerous precedent". [75] For their part, the developer and HRM attack this approach from several angles, all in support of their fundamental assertion that the Board imposed its own reasoning instead of deferring to that of Council. [76] For example, they highlight the fact that to reach its conclusion, the Board relied not on the relevant by‑laws but the MPS. The MPS, they urge, merely represents the policy framework upon which the corresponding regulations are based. Thus they do not have the force of law unless confirmed by regulation. They note that while "Band A" is covered by a specific regulation, "Band B" is not. Thus without any specific height restrictions, it would have been perfectly reasonable for Council, in its discretion, to approve the project. [77] In fact the appellant relies on the following reference in Introductory Section l of the MPS to assert that any policy in the MPS driven by the word "shall" as opposed to "should" is ineffective unless brought to life by a corresponding regulation: Under the provisions of the Planning Act, a municipality cannot regulate directly from a Municipal Development Plan; rather, it must regulate from a Zoning Bylaw adopted by the municipality to carry out the intent of the Plan. It should, therefore, be noted that there is an essential distinction in the policies of the Plan as they relate to this point, such distinction being defined by the use of the words "should" or "shall" in the policies. Where "shall" is used in a policy relating to a land use matter, it points to implementation of that policy through zoning regulations. Similarly, where "should" is used, the policy, for the purposes of land use control, will apply to any decision on a development application, rezoning, or zoning amendment made by Council. [78] Thus the developer made these submissions in its factum: ¶ 67 The MPS is clear that there are specific meanings attached to the words "shall" and "should". Where "shall" is used in a policy that relates to a land use matter, it refers to the implementation of that policy through zoning regulations, such as a Land Use By‑law. Where "should" is used; however, the policy for the purposes of land use control will apply to any decision on a development application made by Council. . . . ¶ 89 As stated above, the Appellant submits that the Board has substituted its opinion of the intents of the MPS for that of Council. Instead of considering whether any reasons support Council's decision (as per Canada v. Southam, supra) and instead of considering whether the decision of Council does not reasonably carry out the intent of the MPS, the Board has decided the "correct" intent of the MPS and analyzed the decision of Council through this "correct" intent. ¶ 90 Policy 6.3 expresses Council's intent to maintain or recreate a sensitive and complementary setting for the Citadel by controlling the height of new development in its vicinity. This is a "shall" policy, pointing to the implementation of it through zoning regulations. Whether or not it is reasonable to give this meaning to the introductory words of the MPS, it is clear that Policy 6.3 is not itself a height control. Similarly Policy 6.3.1 which is subordinate to Policy 6.3 and which modifies Policy 6.3 is not itself a height control policy. It refers to "the intent of such height controls"; it does not impose height limits. It if were to do so, it would have read something like "Heights of buildings should be generally low to medium rise in the area of approximately four traditional storeys in height immediately adjacent to Citadel Hill and increasing with distance therefrom." ¶ 91 Policies 6.3 and 6.3.1 reinforced by Policy 7.3.1 provide MPS support for the implementation of height controls in Band A. They could similarly have provided MPS support for the implementation of specific height controls for the Midtown site. The absence of such height controls in the MPS indicates an intention that the appropriate height for a building on this site is a matter for Council's discretion. [79] Alternatively, the developer and HRM assert that even if ss. 6.3 and 6.3.1 were enforceable height control provisions, it was still up to Council and not the Board to interpret what these terms meant. Again they assert that the proposed development would not be "immediately adjacent" to Citadel Hill and thus would not have to have a height "in the area of approximately four traditional storeys". Furthermore, they say that it should have been up to Council and not the Board to decide what "increasing with distance therefrom" means. Again the developer explains in its factum: ¶ 92 Even if one reads Policies 6.3 and 6.3.1 as if they were "height controls" there is no directive or prescription on what height of building is permitted. The starting point of "low to medium rise character of development in the area of approximately four traditional storeys in height immediately adjacent to Citadel Hill" is not an unambiguous directive. There is considerable scope for interpretation as to what would be permitted absent Policy 7.3.1. ¶ 93 Policy 6.3.1 provides little direction, if it is to be read as a height control, as to building heights in the area beyond "immediately adjacent to Citadel Hill". The phrase "increasing with distance therefrom" is one which leaves open to Council's discretion the height" of new development. The Board read into the policy the concept that the increase should be "gradual", a word which does not appear in the policy or the plan. It is respectfully submitted that the Board erred in law by finding that Policy 6.3.1 could only be reasonably interpreted as imposing height controls for the Midtown site which represent as gradual increase from the mandated heights of B and A. ¶ 94 To paraphrase Justice Chipman in the Tsimiklis case, "increasing with distance therefrom" is primarily for consideration of Council not the Board. There was no sharp line of division in these policies as they relate to the Midtown proposal that was crossed by Council. [80] Respectfully, although ably advanced, for the following reasons I cannot accept these submissions. [81] I acknowledged earlier that the Board spent a good part of its decision considering how it thinks the MPS should be interpreted and, clearly, this is not its fundamental mandate. However, it does not appear to me that the Board followed this path so as to substitute its interpretation for that of Council. In fact, in its concluding remarks on this issue, the Board ultimately recognized Council's discretion. It did not settle the issue on its own interpretation of these provisions. Instead it properly asked itself whether the opponents had persuaded it that Council's decision did not reasonably carry out the intent of the MPS: ¶ 229 In argument Midtown says that Policy 6.3.1 is "not an absolute direction" because of the use of the words "generally" and "approximately". Midtown also points out, correctly, that there is no formula within the M.P.S. to determine how much height can increase from that existing in the area immediately adjacent to Citadel Hill. ¶ 230 While the Board agrees with submissions made by counsel for Midtown that this enables Council to exercise some discretion with respect to heights outside the view planes, the Board finds that Section 6.2, 6.3 and 6.3.1 cannot reasonably bear an interpretation which would permit construction of a 17‑storey tower two blocks from Citadel Hill, with an elevation of 259 feet, some 30 or 40 feet above Viewpoints B and C, and 19 feet above Viewpoint R, at the top of the Citadel; and, at the same time, meet the intent of making every effort to preserve the views from the Citadel and maintaining a complementary setting for the Citadel. Thus, the Board concludes that the decision of Council does not reasonably carry out the intent of the M.P.S. with respect to height. [Emphasis added.] [82] I believe that the Board both articulated and applied an appropriate level of deference to Council’s decision. [83] Finally, let me briefly address the developer’s contention that the Board erred in law by importing the balance of probabilities standard of proof. In its factum, the developer asserts: ¶ 32 ... The Board applied the balance of probabilities standard of proof to the legal question before it of determining whether Council's decision is reasonably consistent with the intent of the municipal planning strategy. [84] Here is the impugned passage from the Board’s decision: ¶ 141 Accordingly, if the Appellants can show, on the balance of probabilities, that Council's decision does not reasonably carry out the intent of the M.P.S., the Board must reverse Council's decision to enter into the development agreement. If, however, the Appellants fail to meet this standard of proof, it is the Board's duty to defer to the decision of Peninsula Community Council (see Heritage Trust, supra). [85] By this passage, I do not understand the Board to be saying anything other than that the opponents before the Board had the onus to persuade it that Council's decision does not reasonably carry out the intent of the MPS. Thus, I see no reviewable error with the Board's handling of this issue. [86] For all these reasons, I would therefore dismiss the appeal. [87] As noted, the Board also concluded that Council's decision was unjustifiable in another area, namely, its height in relation to complementary architecture. However in light of my conclusion in this first issue, it is unnecessary for me to consider the Board's handling of that question. DISPOSITION [88] I would dismiss the appeal and consistent with Civil Procedure Rule 62.27, without costs. MacDonald, C.J.N.S. Concurred in: Cromwell, J.A.