Through zoning and permits, cities and towns dramatically affect the plans of individual property owners. The municipalities have powers under the Planning Act to pass zoning bylaws and development permit bylaws (70.2(2)). In the push and pull of on-the-ground development, where few players on either side are able to see every twist and turn of the circumstances, cities often mishandle development situations, permitting and zoning.
By way of recent example, in the latest SCC case (Annapolis Group v Halifax Regional Municipality) the developer spent may years accumulating undeveloped forest around Halifax with the ultimate intention of subdivision development. Halifax, thought the lands were perfect as walking trails (tourism and whatnot). When the developer applied for an amendment to the development bylaw, so as to permit his development, Halifax rejected the application.
The Ontario development permit regulations specifically say that when a development permit comes before a council the council can: “refuse the application” (O.Reg 608/06 s 10(8)). Does the SCC (Annapolis) case affect this seemingly absolute discretion in an Ontario council to reject a zoning request? Does the use of the discretion have to be reasonable? The SCC determined that Halifax was not allowed to simply refuse the development permit (amendment) merely on the basis of the status quo. Keep in mind, if a town had absolute discretion then a town could so refuse a permit for any reason or no reason or a ridiculous reason.
In Annapolis, the developer was seeking an amendment to the zoning, which technically is more than a mere approval. But where amendment is the normal way in which to proceed to development, an amendment is not really anything more or less than a mere request for a development permit. In other words, Annapolis is not to be dismissed as a unique case dealing with Nova Scotia only. The Annapolis reasoning applies to Ontario.
We can, in effect, equalize the language of the Nova Scotia development permit provisions (s.244-247)(contained in the NS Municipal Government Act), with the Ontario Planning Act provisions (O.Reg 608/06 s 10(8)). Therefore I would argue, it is not open for an Ontario judge to distinguish Annapolis, as dealing with a different statutory regime. The essentials of both regimes are identical. Annapolis is important for all development permit rejections, particularly where the city is arguing that it is within its rights to maintain the ‘status quo’.
Below are some comments on the most recent Canadian cases on municipal mistakes:
Must all assertions of ‘illegality’ of a bylaw include a bad faith attack? (ONCA)
Municipal bad faith: can the town stop subdivision using the interim control bylaw? (ONCA)
Municipal negligence: town didn’t insist on the building code (ONCA)
Rule against perpetuities: Is it an ‘interest in land’ even though it is contingent? (ONCA)
Municipal negligence: SCC distinguishes between ‘policy’ and ‘operations’ (SCC)
Municipal negligence: ‘you chose to climb over that snowbank’ (BCSC)
Full and final release: is London v Blackmore really dead (SCC)
Municipal negligent misrepresentation: (ONCA)
Interpreting a bylaw: the latest ONCA case
Contempt by a municipality: QCCS
when is a sidewalk slab in a state of non-repair? ONSC
city hall sewer work flooded my basement: now what? SCC
