Document: 276654

DECISION 2020 NSUARB 108 M09725

NOVA SCOTIA UTILITY AND REVIEW BOARD

IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT

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IN THE MATTER OF AN APPEAL by JEAN CAMERON, KATHY MANUEL, PAUL LEWIS and JEANETTE LEWIS of a decision of Council for the Municipality of East Hants to approve a development agreement with Leno Ribahi for a mixed-use development on land located on PID# 45085248, Highway 214, Elmsdale BEFORE: Stephen T. McGrath, LL.B., Member APPELLANTS: Jean Cameron Kathy Manuel Paul and Jeanette Lewis RESPONDENT: MUNICIPALITY OF THE COUNTY OF HANTS Marc Dunning (Counsel) HEARING DATE: July 28, 2020 DECISION DATE: August 12, 2020 DECISION: The Appellants are aggrieved persons who can continue

with their appeal. The Board provides directions on the grounds of appeal the Appellants can advance in this proceeding.

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Table of Contents

I INTRODUCTION ...................................................................................................... 3 II ISSUES .................................................................................................................... 5 III ARE THE APPELLANTS “AGGRIEVED PERSONS”? ............................................. 5

Aggrieved Person: The Municipal Government Act and the Common Law ..... 5 Impact of the Proposed Development ........................................................... 13

(a) Proximity ....................................................................................................... 14 (b) Light and Noise ............................................................................................. 15 (c) Privacy and Security ..................................................................................... 17 (d) Traffic ............................................................................................................ 18 (e) Environmental ............................................................................................... 19

(f) Watercourse 4 ............................................................................................... 20

(g) Property Value .............................................................................................. 21

Aggrieved Person Status in this Case ........................................................... 22 IV ARE THE GROUNDS OF APPEAL WITHIN THE BOARD’S JURISDICTION? ..... 31

Procedural Errors or Irregularities ................................................................. 34 Contraventions of the Land-use By-law ........................................................ 35

Grounds in Notice of Appeal ......................................................................... 37 (a) Ground 1 - Section 8.5.1 - Maximum Building Height ................................... 37 (b) Ground 2 - Section 8.5 – Limited Residential Uses ....................................... 39

(c) Ground 3 - Intent of RC Zone Circumvented if Subdivision Occurs .............. 40 (d) Ground 4 - ED34(c) - Requirements for Development in RC Zone Will Not Be

Met When Intended Subdivision Occurs ....................................................... 42 (e) Ground 5 - 10.2.4 - Establishing the True High-Water Mark in a High-Risk Flood

Zone .............................................................................................................. 42 (f) Ground 6 - C9-EN5 - Setback from Nine Mile River ...................................... 43

(g) Ground 7 - 3.26 – Setback from Watercourse 4 ............................................ 44 (h) Ground 8 - Municipal Planning Strategy Section 6 - Allowance for Gradual

Separation of Uses of Different Densities ..................................................... 44

(i) Ground 9 - 8.2.3 - Buffer for Adjacent Agricultural Land ............................... 45 (j) Ground 10 - C-6 Section RD2: Neighbourhood Integrity ............................... 46

(k) Ground 11 - C-9 Environment: Environmental Stewardship .......................... 46 (l) Ground 12 - C-9 and EN 10 - Stormwater Management Best Practices ....... 47 (m) Ground 13 - Non-adherence to Council’s Final Decision .............................. 47 (n) Ground 14 - Procedural Concern - Public Hearing During a Pandemic ........ 47

(o) Ground 15 - Procedural Concern - Live-stream Public Hearing. ................... 48

(p) Ground 16 - Financial Impact – Sidewalks .................................................... 48

(q) Ground 17 - Community Impact .................................................................... 49 Policies at Issue in this Appeal ...................................................................... 49

V SUMMARY AND CONCLUSION ............................................................................ 53

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I INTRODUCTION

[1] On April 29, 2020, the Municipality of East Hants approved an application

for a development agreement for a mixed-use development (commercial and multi-unit

residential) on land at Highway 214 in Elmsdale, between the highway and Nine Mile

River. The proposed development includes a six-storey 70-unit residential building next

to the river and a four-storey mixed-use building on the highway side of the property with

commercial space on the ground floor and 24 residential units on the floors above. The

proposal also includes a single storey commercial building next to the highway.

[2] The proposed development would be in the Municipality’s Regional

Commercial (RC) Zone. As-of-right, the Municipality permits the development of a wide

range of large-scale commercial activity including warehousing, retailing of goods and

services, food and beverage facilities, accommodation, entertainment facilities, office and

business services, drive-thru restaurants, service stations, shopping malls, and other

vehicle-dependent uses in this zone. The Municipality only allows mixed-use

developments in the RC Zone by development agreement.

[3] There is an interchange between Highway 214 and Highway 102 at the

eastern end of the zone in which the proposed development would be located. There is

a Superstore on the western side of the interchange. The Elmsdale Shopping Centre,

which includes a Sobeys, other retail stores and restaurants, is just east of the

interchange.

[4] The proposed development would be in the western end of the zone, in an

area that municipal staff described as feeling semi-rural in nature. Although the zoning

directs future growth for this area to more significant commercial development, the

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proposed development is the first to propose a denser form of commercial development

in that area.

[5] The Appellants live near the proposed development site and own property

within 300 metres of that location. In their Notice of Appeal, which included a lengthy

attachment, the Appellants characterized the impact of the proposed development on the

area:

The semi-rural nature of this historically agricultural and large lot residential area will be forever changed if this development is allowed to proceed. The location, size, height and scope of the proposed buildings, the supporting infrastructure and the number of inhabitants will directly and negatively impact the way of life and livability of the area residents invest in, pay taxes on, and call home. Most residents have lived here for decades. It will forever change the integrity of our rural community.

[Exhibit C-1, Attachment, p.17]

[6] The Notice of Appeal set out several proposed grounds for the appeal.

[7] At a preliminary hearing for the appeal, the Municipality submitted that the

Appellants were not aggrieved persons having standing to bring the appeal under the

Municipal Government Act, S.N.S 1998, c.18, because there was no objective basis for

their belief that they would be impacted by the proposed development. The Municipality

also said that many of the proposed grounds of appeal were not valid grounds that could

be pursued in a planning appeal. As a result of the Municipality’s submissions, the Board

set a schedule to address these matters that included the filing of written materials and

an oral hearing held by videoconference because of the Covid-19 pandemic.

[8] For the Appellants, Ms. Cameron and Ms. Manuel testified at the hearing

for the preliminary motions on standing and the grounds of appeal. They elaborated on

the Appellants’ pre-hearing submissions and evidence and supplied information to

supplement the statements made in the Notice of Appeal. Paul and Jeannette Lewis did

not appear on the virtual hearing dealing with the Municipality’s motions, but the Board

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understands that the Appellants are working together, and accepts that it should consider

the arguments and evidence advanced by Ms. Cameron and Ms. Manuel on behalf of

Jeannette and Paul Lewis as well.

[9] The Municipality’s Manager of Planning, Rachel Gilbert, also testified at the

hearing for the motion on standing. She was qualified as an expert in land use planning

to provide opinion evidence on matters related to the interpretation and application of the

East Hants Municipal Planning Strategy, Land-use By-law and other planning related by-

laws, and the extent to which the development will impact the Appellants’ use and

enjoyment of their properties as evaluated by her through the development agreement

application process (including the preparation of staff reports and the development

agreement).

[10] The Board finds that the Appellants are aggrieved persons and they can

continue with their appeal. In this decision, the Board also gives directions on the grounds

of appeal.

II ISSUES

[11] The following issues must be addressed:

(1) Are the Appellants aggrieved persons?

(2) Are the grounds of appeal within the Board’s jurisdiction?

III ARE THE APPELLANTS “AGGRIEVED PERSONS”?

Aggrieved Person: The Municipal Government Act and the Common Law

[12] Section 247(2) of the Municipal Government Act limits the parties who may

appeal a municipal council’s decision to approve a development agreement:

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Appeals to the Board

247 (2) The approval, or refusal to approve, and the amendment, or refusal to amend, a development agreement may be appealed to the Board by (a) an aggrieved person; (b) the applicant; (c) an adjacent municipality; (d) a village in which an affected property is situated; (e) the Director.

[13] The Appellants do not fall under clauses (b) to (e) and may only bring this

appeal if they are aggrieved persons under s. 247(2)(a). The Municipality urges the Board

to dismiss this appeal because it says the Appellants are not aggrieved persons under

the Act. The burden of proof is on the Appellants to show that they are, on a balance of

probabilities (Re Taylor, 2015 NSUARB 82).

[14] The Board recently considered who is an aggrieved person in Re

Thompson, 2020 NSUARB 52, where the Board discussed the historical development of

standing to appeal municipal planning decisions. The standing provisions in the Planning

Act, R.S.N.S. 1989, c. 346, and earlier versions of that statute, preceded the provisions

in the Municipal Government Act. Under the Planning Act, S.N.S. 1969, c. 16, s.35, “any

interested person” could appeal certain municipal planning decisions. The Planning Act,

S.N.S. 1983, c.9, did not use this language, but instead provided for a right to appeal by

an “aggrieved person” (s.63(1) and s.71(1)).

[15] The change to “aggrieved person” in the 1983 statute suggested the

Legislature intended to limit who could appeal municipal planning decisions. Decisions

of the Municipal Board, shortly after the 1983 enactment, interpreted the standing

requirement restrictively. A detailed discussion of this is found in an article written by E.

Anne Bastedo and A. Wayne MacKay, Citizen Access to Nova Scotia Planning Appeals:

from Interested to Aggrieved Persons (1987).

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[16] In 1987, the Legislature added s.63(1A) and s.71(1A) to the Planning Act

[S.N.S. 1987, c.51]. These sections established a definition for “aggrieved person” that

is essentially the same as the one that is currently in s.191(a) of the Municipal

Government Act. The Board discussed these changes in Re Ollive Properties Ltd., 2012

NSUARB 186:

Ollive directed the Board to the Cann decision which cites a portion of the comments of the Minister of Municipal Affairs when the current definition of aggrieved person was introduced to the Legislature. The Minister describes the mischief to be remedied as being in response to "the general consensus ... that the status of an aggrieved person to appeal has proved to be too restrictive in its interpretation by the Municipal Board" (April 28, [1987] Hansard p. 2104). Consequently with the new definition, while placing reasonable limits to prevent frivolous appeals, the Legislature sought to broaden those who could bring an appeal, including those who believe their property value and/or enjoyment of it will be affected by council's decision. The portion of the Minister's remarks cited in the Cann decision read as follows:

Some of the more significant clauses in the bill, Clauses 12 to 15, are in response to the general consensus that government is determined, in the public's mind, that the status of an aggrieved person to appeal has proved to be too restrictive in its interpretation by the Municipal Board. I do, I must admit, support the position that reasonable limits should be placed on those who can appeal the decisions of a municipal council relating to the amendment of land use by-laws or rezonings or the approval of development agreements. The proposed amendment defines aggrieved person in a way which allows persons who believe their property value or the enjoyment of their property or their enjoyment of their place of residence, i.e., people who are renting, if they feel they are going to be affected by a decision of council they will have the right to appeal that decision, if they are not satisfied with it, to the Municipal Board.

[Ollive, para. 78]

[17] Municipal Board decisions following these changes took a more liberal

approach to this issue (e.g., MacIsaac Funeral Home Ltd. v. Antigonish (Town), 1991

Carswell NS 759).

[18] This Board also commented, in Ollive, that the right to appeal is a “check

and balance” within the municipal planning process that plays an important part in

achieving the purpose and objects of the legislation. It helps to ensure that a municipality

reasonably carries out the intentions of its planning strategy.

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[19] The Municipal Government Act defines “aggrieved person” in s. 191(a) as:

“aggrieved person” includes

(i) an individual who bona fide believes the decision of the council will adversely affect the value, or reasonable enjoyment, of the person’s property or the reasonable enjoyment of property occupied by the person,

(ii) an incorporated organization, the objects of which include promoting or protecting

the quality of life of persons residing in the neighbourhood affected by the council’s decision, or features, structures or sites of the community affected by the council’s decision, having significant cultural, architectural or recreational value, and

(iii) an incorporated or unincorporated organization in which the majority of members

are individuals referred to in subclause (i)

[20] As the Appellants in this case are individuals, only s.191(a)(i) in the

definition applies.

[21] The adverse effects of a Council decision mentioned in s. 191(a)(i) are

rooted in the ownership and use of real property. In Federation of Nova Scotian Heritage

v. Peninsula Community Council, 2004 NSUARB 108, the Board held that s. 191(a)(i)

referred to “real property and not to intellectual or personal property” (para. 55). The

Board reiterated this in Re Heartland Resources Inc., 2005 NSUARB 39 (para. 30). In

Re Brison, 2006 NSUARB 113, the Board observed:

The definition of aggrieved person in the MGA only lists two of the potentially protected interests. First, it incorporates the language of the tort of nuisance as noted by Stanley M. Makuch, in Canadian Municipal and Planning Law, 2nd ed., Toronto, Ont.: Thomson Carswell, 2004 p. 190. He states nuisance “exists where a person unreasonably interferes with the use and enjoyment of another’s land”. “Enjoyment” includes the “use” of one’s lands as the term “enjoy” in the Oxford Dictionary, supra, means: (1) take delight or pleasure in; (2) to the use or benefit of; and (3) experience. Second, it lists a person’s interest in the value of his/her property.

[Re Brison, para. 56]

[22] The Board has also recognized that the word “includes” in the definition of

“aggrieved person” signals that s.191(a) is not an exhaustive list of the categories of

aggrieved persons. As a result, the Board also considers whether an appellant is an

aggrieved person based on the common law, which takes into account a range of interests

not limited to the ownership and use of property or the establishment of legal rights.

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[23] In many cases, the Board has referred to the Supreme Court of Canada

decision in British Columbia Development Cooperation v. Friedmann (Ombudsman),

[1984] 2 S.C.R. 447 (e.g., Re Taylor, 2015 NSUARB 82, Re Lunenburg Heritage Society,

2010 NSUARB 224 and Re Johanson, 2010 NSUARB 123). In Friedmann, Justice

Dickson said, on behalf of the court, “a party is aggrieved or may be aggrieved when he

genuinely suffers, or is seriously threatened with, any form of harm prejudicial to his

interest, whether or not a legal right is called into question” (p. 469).

[24] Justice Thomas A. Cromwell, in his book, Locus Standi: A Commentary on

the Law of Standing in Canada (Toronto: Carswell, 1986), discussed the term “person

aggrieved” in the context of standing in judicial review proceedings for prerogative relief

in the nature of certiorari. He observed that deciding who is a person aggrieved is a

contextual assessment of the relationship between the griever and the impugned

decision:

A “person aggrieved” has been said to be one who suffers some “peculiar grievance of their own beyond some grievance suffered by them in common with the rest of the public.” The similarity of this formulation to the standing rule in public nuisance is obvious, but it has been interpreted less strictly in certiorari cases. For example, there has been no debate about whether injury different in kind as opposed to different in degree has been necessary. The tendency instead has been to give the test a fairly broad reading. It has been held to be sufficient if the applicant has “a real interest”, a “substantial interest” or a “more special and more intense interest” than that of the general public. It has been held to be sufficient if the challenged act causes the applicant “hardship and inconvenience” or if the “use and value” of the applicant’s lands are adversely affected. “Person aggrieved” includes any person “whose interests may be prejudicially affected.” The various attempts to elaborate upon the term “person aggrieved” or to catalogue the types of interests or interferences therewith that qualify the applicant as “aggrieved” do not help to reconcile the cases…. The cases are not decided upon verbal formulae or lists of protected interests, but on the basis of the Court’s perception of the relationship between the applicant and the challenged decision, the nature of the statutory scheme out of which the decision issued, and the merits of the complaint. In addition to these factors, the courts are recognizing that who is a person aggrieved is a matter of degree rather than a test, the application of which results in clear-cut answers.

[Cromwell, Locus Standi, pp. 106-107, citations omitted]

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[25] An appellant’s belief that a decision of council will adversely affect their

interests must be bona fide. This is an explicit requirement for affected interests under

s.191(a)(i) and applies to the Board’s consideration of affected interests under the

common law as well (Re Brison, para. 59).

[26] A bona fide belief has both subjective and objective elements:

[T]he inclusion of the words “bona fide” in front of the word “belief” suggests that there must be some reasonable basis for the belief held by the person claiming to be adversely affected. In other words, there must be an objective aspect to the determination of whether the belief is bona fide in addition to the subjective aspect noted by the sincerity with which the belief is held. Otherwise, the belief, no matter how misguided, if sincerely held, would qualify a person as an aggrieved person. The Board does not consider the Legislature could have intended such a consequence.

[Re Ruffman, [1995] N.S.U.R.B.D. No. 15, pp.5-6]

[27] The Board discussed the nature of the objective assessment of an

appellant’s belief that a planning decision would affect them in detail in Ollive. That case

involved an appeal from a decision to approve a development agreement for a 27-storey

mixed-use building. The owner of an adjoining property, that was itself the subject of a

development agreement for a proposed seven-storey mixed use building, brought the

appeal.

[28] The developer of the appealed project and the municipality argued that to

objectively demonstrate that they had a bona fide belief, the appellant had to prove, on a

balance of probabilities, that the development would adversely affect the reasonable

enjoyment or value of the appellant’s property. The Board disagreed and found that the

objective element of an appellant’s bona fide belief would be satisfied if the belief was

objectively related to the proposed development. The Board noted that as planning

appeals deal with future developments, proof of actual adverse effects was not possible.

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[29] Furthermore, the Board said requiring appellants to show that there would

be adverse effects would not only eliminate frivolous appeals, but legitimate appeals as

well:

The Board concurs with Ollive that as planning appeals deal with potential future harms, not existing ones; requiring proof of actual adverse effect places the bar too high, is excessive and unworkable. Legitimate and valid claims could not come forward. This would, in turn, diminish the only mechanism to ensure council reasonably carries out the intent of the [municipal planning strategy].

[Ollive, para. 108]

[30] The Board also said that requiring an appellant to supply objective evidence

for each belief to prove that there will be an adverse effect had other undesirable

consequences. First, it would change the focus of the test from whether an appellant’s

belief was reasonable to whether the planning decision would affect the appellant.

Second, it would encourage preliminary hearings to become mini trials including evidence

and cross-examination, and sometimes including experts. This, in turn, would extend the

appeal process beyond the efficient process and timeline set out in the legislation.

Additionally, some of this evidence would not be relevant to the consideration of the

appeal on its merits, so it could unnecessarily increase costs as well.

[31] In general, the Board considered it should assess an appellant’s belief in a

prompt and inexpensive manner based mainly on the information in the appeal record in

the proceeding. The Board also discussed the facts it should examine to determine

whether an appellant was an aggrieved person:

I find the basic facts to be examined in determining the aggrieved person status are the development, including the type of structure (a dam, waste disposal site, residential, commercial, etc.), its physical characteristics (dimensions, features, etc.), and how it will be used (by whom, numbers, frequency, etc.). It also includes a review of the area affected by the development and the use of the properties within that affected area. A large dam may affect property owners many kilometers in either direction. At the other extreme is the area affected by a small single family bungalow.

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The use of the lands within the affected area can vary from the effects on nearby world class natural canoe course, Monaco Investments Partnership, 2012 NSUARB 155, to rarely used vacant woodlands. Within the affected area the above elements determine the beliefs objectively related to the development. Misguided beliefs, in addition to the building height affecting telephone reception, can be wind from a bungalow affecting an owners' enjoyment of a vacant woodlot.

[Ollive, paras. 120-123]

[32] The Board specifically noted it should not review the evidence for the

purpose of concluding that there will be adverse effects:

As one example, Can-Euro and the Municipality asked the Board to consider Can-Euro's expert traffic report to find that the Can-Euro development will not adversely affect the traffic for Ollive's future occupants and, therefore, Ollive cannot be an aggrieved person. The Board concurs with Ollive that in determining aggrieved person status, the Board should not review the evidence to conclude whether there will, in fact, be an adverse effect on Ollive's property created by the Can-Euro development. The Board finds that level of analysis should not be done for a number of reasons. Firstly, as outlined above, it is not the test for the standard of an aggrieved person. The Board is not required to find that the development will adversely affect the Appellant. The standard is a bona fide belief. Secondly, a determination of traffic effects should be done at the hearing of the appeal on its merits when all the evidence, including all expert reports, are available and before the Board. Thirdly, these issues should not be concluded summarily with only the Applicant's expert evidence.

[Ollive, paras. 131-134]

[33] In this case, the Board concurs with the reasoning it expressed in Ollive

about the nature of the objective aspect of an appellant’s belief that a planning decision

will adversely affect them. As in other legal contexts, the objective assessment of an

appellant’s belief considers the reasonableness of that belief. In some contexts, the

question that is posed is what a reasonable person would think or do in the shoes of the

person whose belief or action is being considered.

[34] As with other reasonableness tests, the evidence that an appellant in a

planning appeal must present to satisfy the objective aspect of the bona fide belief

requirement will vary with the circumstances. In some cases, the nature of an appellant’s

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concerns will be so connected to the impugned decisions that the reasonableness of their

belief that they will be adversely affected will be self-evident. In other cases, a more

searching review may be required to assess the reasonableness of the belief held by the

appellant, mindful that the nature of the inquiry is focused on whether it is reasonable for

the appellant to hold the belief that they do, not whether they will actually be adversely

affected.

Impact of the Proposed Development

[35] In their Notice of Appeal, the Appellants said the proposed development

“will forever change the integrity of our rural community.” They also suggested that there

were many implications of a development like the one proposed that would be

“detrimental to our rural way of life.”

[36] The Appellants emphasized certain passages from a December 2019

planning report prepared by municipal staff about the application for the development

agreement. This planning report was not included in the Appeal Record filed by the

Municipality in advance of these preliminary motions, likely because the decision of

Council currently under appeal related to an application for a development agreement

that was slightly revised and resubmitted by the developer in January 2020, shortly after

the developer’s initial application was refused by Council in December 2019. The

passages from the December 2019 planning report, as cited by the Appellants in their

Notice of Appeal, said:

‘The application property is located in an area which feels semi-rural in nature. It's development feels somewhat out of keeping with the current character of the immediate surrounding area which includes some smaller scale commercial and large lot rural houses on the edge of the more developed area of Elmsdale.' and, 'As much as possible, the community character of existing residential areas needs to be respected...'

[Exhibit C-1, Notice of Appeal, Attachment, p. 16]

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[37] The Municipality did not dispute that the Appellants believed that the

proposed development would affect their interests but said there was no objective basis

for these beliefs. The Municipality’s position was based on the nature of the affected

interests raised by the Appellants; the location, size and features of their properties; and

the measures the developer must take under the development agreement to address

potential impacts.

(a) Proximity

[38] In their submissions, the Appellants noted they all own properties within 300

metres of the proposed development. The Municipality said that the Board has always

held that proximity is not enough to prove that a person is aggrieved, and in support of

this cited Maxwell v. Kentville (Town), 2002 NSUARB 63.

[39] The Municipality noted that while the Appellants live around the proposed

development, they do not live next door to it. In its evidence, the Municipality supplied

maps showing the location of the proposed development and the Appellants’ properties

and residences.

[40] All the Appellants have property boundaries that are within 300 metres of

the proposed development, but they are large lots and the distances to the residential

dwellings on those properties were also provided to the Board. The Cameron residence

is only 111 meters away from the boundary of the proposed development site. The Lewis

residence is a bit further away at 177 metres from the site of the proposed development.

The Manuel residence is about a half a kilometer away.

[41] The Municipality’s Municipal Planning Strategy has an entire section

devoted to “Citizen Engagement.” This section includes specific policies about “essential”

public involvement in development applications. These policies require the Municipality

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to take specific steps to ensure that property owners within 300 meters of a property

proposed for a development agreement are engaged. Under Policy CE16(b) in the

Municipal Planning Strategy, the Municipality must mail a letter to property owners within

300 metres of the site of a proposed development agreement outlining the date, time and

location of any public information meetings or public hearings. Policy CE16(c) requires

that after a development agreement receives initial consideration by Council, a

questionnaire be sent to these property owners, along with a pre-paid self-addressed

return envelope for the questionnaire and a copy of a preliminary staff report or a

summary of the application. Because the Appellants all have properties that are within

300 metres, the Board understands that they would or should have received specific

notice of the proposed development and a questionnaire from the Municipality as it was

considering the development agreement application.

(b) Light and Noise

[42] The Appellants said that there would be light and noise pollution from the

proposed development. They also expressed concern about the noise and disturbance

they said would arise from the construction of the development. The Appellants

suggested that construction activities could occur over an extended period because of

the intended staged nature of the development, with the residential building waiting for

the construction of the commercial building. In this regard, the Board notes that the time

limits in the proposed development agreement allow the developer four years to apply for

development permits for each of the three buildings on the site, and a further two years

after each permit is issued to meet the requirements of the development agreement.

[43] On cross-examination, Ms. Manuel, whose residence is half a kilometre

away in a wooded area, testified that she was not able to see the proposed development

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site from her home. Ms. Cameron, although her residence is much closer to the proposed

development, also testified that she cannot see the proposed development site from her

house because some trees and her neighbour’s house block the view. However, Ms.

Cameron did note that this was in respect of the site in its present state. She felt she

would be able to see a development that was as high as the one proposed.

[44] Both Ms. Manuel and Ms. Cameron testified they could hear traffic noise

from the highway at peak times. Ms. Manuel also testified that she could hear noise from

construction taking place in Lantz, which is some distance further away from her property

than the proposed development site.

[45] The Municipality denied that noise or light would adversely affect the

Appellants. It said that distance and existing trees, both on the Appellants’ properties and

between them and the development, would block light and dampen sound. It also said

that the approved development agreement required the developer to implement further

measures to reduce the light and sound associated with the development.

[46] Ms. Gilbert testified that a requirement in the development agreement for a

screening buffer along the northwest boundary of the property would deal with any

headlights from traffic moving around the site. Section 2.13 of the proposed development

agreement identifies several options for this buffer, including a fence, trees, hedges, or a

berm with a hedge.

[47] Ms. Gilbert also noted that the proposed development agreement requires

all outdoor lighting to reflect away from adjacent properties. She said residents on

adjacent properties might be able to be see lights from the higher floors in the taller

buildings, but this would only be internal lighting. The Board notes that while s. 2.17 of

the development agreement requires light to reflect away from adjacent properties, the

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developer is only “encouraged” to use sensitive lighting which is orientated downward, is

low wattage, energy efficient and minimizes glare.

[48] In respect of sound, Ms. Gilbert testified that she expected that the

commercial uses on the property would be noisier than the residential uses, but she did

not consider this a significant impact because the area is zoned for commercial uses. At

this point, it is not known what the commercial uses on the site will be. The Appeal Record

filed in this proceeding includes a January 15, 2020, report prepared by Ms. Gilbert

commenting on potential commercial uses:

It’s unclear what commercial use will be located into the building as an end user has not been identified. The ground floor could potentially accommodate a mixture of the commercial uses.

[Exhibit C-2, p. 15]

[49] Additionally, the Board observes that a policy analysis in the Appeal Record

prepared by municipal staff noted that the development agreement does not restrict hours

of operation. Once again, planning staff considered this to be reasonable because the

area is zoned commercial.

[50] Ms. Gilbert said that while the screening buffer would reduce the noise from

the ground floor commercial uses, it would not have an impact on any noise from the

residential use above the height of the buffer. She noted that trees on adjacent properties

would help to cut down noise as well.

[51] Ms. Gilbert’s evidence did not specifically address noise associated with the

construction of the development, potentially over a period of years.

(c) Privacy and Security

[52] The Appellants expressed concerns about their privacy and security. They

are concerned that their properties will be within the view of residents on the higher floors

of the buildings. They are also concerned that the higher density uses will bring more

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people into the area, increasing the number of instances of trespassing and other security

concerns. They noted that their homes are down long driveways and out of sight from

the road. Further, the Appellants said that strangers already often mistake their driveways

for woods roads or trails and they sometimes meet trespassers upon them.

[53] Ms. Gilbert said that when she reviewed the development agreement

application, she considered privacy impacts on the immediate neighbours, but not beyond

that as she felt any privacy impacts would not be significant given the trees on the

neighbouring properties. She did not specifically consider safety or security.

[54] In its submissions, the Municipality argued that even if the Appellant’s

houses and areas around them may be visible from the higher floors in the proposed

development, given the distance and intervening trees, “any impact on privacy will not,

objectively considered, adversely affect the reasonable use or enjoyment of their

properties.” In respect of safety and security, the Municipality submitted there are

significant distances between the development and the Appellants’ properties, and that

there was no evidence that the development will result in trespassing or cause the

Appellants to fear for their safety.

(d) Traffic

[55] The Appellants noted that traffic was a concern, both during construction

and afterwards, despite the conclusions of a traffic study done in October 2019. They

said traffic flow, which they felt was already a problem during peak work hours and on

weekends, would be worse.

[56] In response to this, the Municipality relied on the traffic study done as part

of the development application process. Based on the information in the Appeal Record,

it appears that this study was requested by the Nova Scotia Department of Transportation

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and Infrastructure Renewal because a preliminary analysis indicated that a traffic study

was warranted for the proposed development.

[57] The Municipality said that the conclusions in the study demonstrated that

there were no concerns about the performance of the highway, and that any increase in

traffic was more focussed on the side of the development that was closer to Highway 102,

and not the side where the Appellants own properties. In any event, the Municipality said

the study’s conclusions showed that any increase in traffic would be small and

reasonable.

[58] The Appellants were skeptical about the vehicle movement assumptions in

the report. While they are not traffic experts, the trip counts seemed low to them given

the commercial uses and the number of residential units in the proposed development.

They also noted that, for reasons that they understood to be related to safety and the

grade of the road in the area, they had to move their mailboxes.

(e) Environmental

[59] In respect of the environment, the Appellants said:

We, as property owners, hold a strong interest in the environment. Over development in the RC Zone will have an adverse effect on what we value as residents. Our enjoyment of nature along the river and the areas that it supports will be affected. Our use of the river for such activities as fishing, kayaking and canoeing, will be negatively impacted. High density development along the river results in many people being able to access the river through this one lot, negating the purpose of the buffer zone designed to protect the Nine Mile River from foot traffic and pollutants in runoff. Shading of the river and surrounding land changes the flora and fauna on which animals depend and therefore our enjoyment of them. For example, snapping turtles, which are a vulnerable species in Nova Scotia, use this river bank and surrounding lands and waterways as habitat and nesting territory. They will be put further at risk. A primary reason for us to have purchased properties, and the reason we remain living here, is the natural environment that this rural area provides. Developments such as this one, and those that could follow in this zone, threaten our historic enjoyment of our properties and access to the Nine Mile River.

[Appellants’ Submissions on Aggrieved Person Status, p. 4]

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[60] The Appellants also expressed concern for a “myriad of flora and fauna”

that live in the area.

[61] In its evidence and submissions, the Municipality focussed on a provision

in the proposed development agreement requiring the developer to keep a 30-metre

landscape buffer from the ordinary high-water mark of Nine Mile River. Where it is

practical to do so, the developer must keep the existing vegetation in this area to control

the management of subsurface and surface runoff, sedimentation, and erosion. The

developer must replace any vegetation it removes from this area with a landscaped buffer.

The development agreement does not allow the developer to build any permanent

structure within the buffer.

[62] Ms. Gilbert also testified that there was a steep bank at the edge of the

property along Nine Mile River. She said that the existing vegetation on the property was

not so thick that it would prevent people from walking to the bank, but given the slope of

the bank, she did not see how people would get down to the river.

[63] The Municipality said that the Appellants must show that they “have a bona

fide belief that the development will adversely affect the value or the reasonable use or

enjoyment of their properties” [emphasis in original]. The Municipality also emphasized

that the Province owned Nine Mile River for the use and enjoyment of everyone.

(f) Watercourse 4

[64] The Appellants advanced other specific arguments about Watercourse 4,

which intersects the site of the proposed development and connects with the Nine Mile

River. They said that their properties drain into this watercourse and believed that the

parking lots and building locations would affect the drainage of their properties and may

affect water tables in the area. They also said that the development lacked setbacks from

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Watercourse 4 and that pollution from the parking lots and activities on the site would run

into this watercourse and Nine Mile River.

[65] During cross-examination, the Appellants confirmed that their lands are

higher than the site of the proposed development. The natural drainage in the area is

that water flows from their properties towards the developments site. There was no

suggestion that the proposed development site would direct stormwater onto the

Appellants’ properties.

[66] The Municipality argued that the Appellants’ concerns about drainage and

water tables were speculative and remote. It pointed to a requirement in the development

agreement for a stormwater management plan before a development permit can be

issued. As discussed by Ms. Gilbert in her testimony, and set out in s. 4.3(d) of the

proposed development agreement, the plan must show that storm flow is balanced before

and after the development, and there is no negative impact to existing inflow and outflow

of the cross culvert connecting to the brook.

[67] The Board also notes that the development will connect to municipal water

and wastewater services.

(g) Property Value

[68] The Appellants feared that the proposed development would devalue their

properties in both a monetary sense and more intangibly.

[69] The Municipality submitted that the Appellants supplied no evidence to

support the position that the proposed development would adversely affect the value of

their properties and argued that this belief was speculative and self-serving. The

Municipality said the proposed development could just as easily increase property value,

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noting that the proposed development was not of a nature that might suggest a prima

facie adverse affect on property value, such as the development of a landfill.

[70] At the hearing, it appeared to the Board that the Appellants agreed with the

Municipality, to some extent, that the development’s impact on the monetary value of the

property was speculative. However, they told the Board that they had no specific intention

to sell their properties. Rather, they were concerned with the intrinsic value of their

properties, arising from the value they associated with their family owning the property,

how they have treated the land, and the value they placed on leaving their land as an

inheritance.

Aggrieved Person Status in this Case

[71] In the “Citizen Engagement” section of the Municipal Planning Strategy, the

Municipality stated:

The public is often concerned when something new, large, or different is proposed in or near their community. Communities live with the consequences of planning decisions and thus expects to share in and be responsible for their decision making.

[Exhibit C-2, Municipal Planning Strategy Section B, Page 3]

[72] The proposed development in this case ticks all these boxes; it is new,

large, and different.

[73] The Appellants said that the area where the proposed development would

be constructed was historically made up of large single residential lots, with agricultural

and forest resource uses. Municipal staff described it as “an area which feels semi-rural

in nature.” Although the area has been in the Regional Commercial Zone since 2000,

municipal staff reports noted the proposed development was “the first application to

propose a more denser form of commercial development.”

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[74] The municipal staff report referenced by the Appellants, but not included in

the Appeal Record, referred to the development (which the Board finds did not

substantially change when it was resubmitted for approval) as “somewhat out of keeping

with the current character of the immediate surrounding area.” The staff reports in the

Appeal Record noted that the design of the proposed development does not match

existing buildings in the area and the “four storey and six storey buildings are larger than

already existing in the area.” Not only are the buildings larger, they are taller than what

the Land-use By-law allows in the zone as-of-right. In their testimony, the Appellants said

this development would include the highest buildings in the Municipality.

[75] Since the Municipal Planning Strategy recognizes the public is often

concerned about developments such as the one proposed, it supplies some objective

evidence supporting the reasonableness of the Appellants’ concerns. The Appellants’

concerns, to the extent that the public would share them, would not seem misguided.

[76] Further, the notification requirements adopted by a decision making body

can themselves can be viewed as a factor that strengthens a claim for standing because

they indicate who the decision making body anticipated would be affected by the decision

(Justice Thomas A. Cromwell, Locus Standi: Commentary on the Law of Standing in

Canada (Toronto: Carswell, 1986), p. 108). As such, the fact that the Municipal Planning

Strategy requires the Municipality to take special steps to engage property owners within

300 metres of the site of a proposed development agreement is a factor favouring the

standing of the Appellants that the Board can consider.

[77] As noted in Ollive, the potential effects of a development such as noise,

traffic, wind and shadowing generally have the most impact on the development’s

neighbour. The notification provisions in the Municipal Planning Strategy are consistent

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with this reasoning. Furthermore, at the hearing, Ms. Gilbert agreed that a development

is more likely to affect people living within 300 metres than anyone else.

[78] While none of them are next door neighbours, all the Appellants have

property boundaries within 300 metres of the proposed development. The Cameron

residence is only 111 meters away, not significantly different than the 50- to 75-meter

distance between the proposed developments in Ollive. The Lewis residence is not much

further away at 177 metres from the site of the proposed development. The Manuel

residence is more distant at about a half a kilometer away.

[79] In Maxwell, and similar cases where the Board considered an appellant’s

proximity, the appellant was located some distance away from the proposed

development. The intended appellant in Maxwell lived significantly more than four

kilometres from the proposed rezoning area in that case and owned no other properties

in the immediate area of the proposed rezoning. Furthermore, unlike the present case,

the Board observed that Mr. Maxwell was not really advancing the position that the

municipal council decision, in any way, adversely affected the value or reasonable

enjoyment of his properties.

[80] Although proximity is not determinative, it is a factor for the Board to

consider. If it can be expected that a development will have some adverse impact on the

surrounding area, it is reasonable to expect that those living in proximity would be more

intimately affected.

[81] In response to questions from the Board, Ms. Gilbert testified that,

objectively, it was reasonable to assume that a development such as the one proposed

can have impacts on nearby property owners relating to light, sound, traffic and privacy.

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However, based upon her assessment of the application, she did not believe that the

proposed development would significantly adversely affect the Appellants in this case.

[82] Considering the nature of the proposed development, the surrounding area

and uses, the Board finds that the Appellants’ belief that light from the proposed

development would adversely affect the reasonable enjoyment of their properties lacks

objective support. It seems unlikely that lighting associated with the proposed

development, or from vehicles on the site, would affect the Manuel residence, situated a

half a kilometer away and nestled in a wooded area. While the residences of the other

Appellants are closer, Ms. Cameron, the Appellant who lives the closest to the proposed

development site, cannot see the site in its undeveloped state because her view is

obstructed by trees and her neighbour’s house. Lighting from the ground and lower levels

of the proposed development would be similarly obstructed, even without the creation of

a screening barrier on the northwest boundary of the proposed development site as

required by the development agreement.

[83] It is quite possible that the Appellants might be able to see the top parts of

the taller buildings making up the proposed development. Light from the windows of the

residential units on the upper floors may be visible. If so, it is reasonable to expect that

such light might be no more apparent than lighting that might emanate from their own

properties and the residential property that lies between Ms. Cameron and the site of the

proposed development. It is not reasonable to expect that interior lighting from the upper

residential floors would be able to illuminate any parts of the Appellants’ properties.

[84] Noise from the proposed development is more likely to be a concern than

light, and the Board finds that there is objective support for the Appellants’ belief that

noise from the proposed development will adversely affect them. Unlike light, it is

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reasonable to believe that sound from the development could affect the Appellants,

especially from the commercial uses in the proposed development. Both Ms. Manuel and

Ms. Cameron testified that they could hear traffic at peak times, and Ms. Manuel said she

could hear construction noise from Lantz.

[85] There are also several significant unknowns influencing how reasonable it

is to believe that noise from the proposed development will adversely affect the

Appellants. The nature of these commercial uses is unknown. The hours of operation

for these uses is unknown. Which buffering choice the developer will select is unknown,

as is how effective it will be to dampen sound.

[86] Although Ms. Gilbert may not feel that noise from commercial uses is a

significant impact because the Land-use By-law allows commercial uses in the zone, that

is not the test. As the Board noted in Ollive, the test an aggrieved person must meet is

whether the decision will affect them. For the purposes of determining standing to bring

an appeal, this test does not distinguish between the effects of a development that might

have been undertaken in the zone without the approval of Council and the development

that Council has approved.

[87] Additionally, although it is not a permanent concern, it is reasonable to

assume that noise from construction activities on the site will affect the Appellants. As

noted above, this might occur over an extended period given the phased nature of this

proposed development.

[88] In terms of privacy, the Board must consider the context of the area and its

surrounding uses. At present, this area has a semi-rural feel, and the Appellants live on

large private lots. In such a setting, the privacy impacts of having someone looking down

on your house or property can reasonably be expected to be more impactful than in higher

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density urban or suburban settings where development of the type proposed in this case

already exists. The proposed development would be the first higher density development

in this area.

[89] While this should not be a significant concern for Ms. Manuel because her

residence is a half kilometre away, the Cameron and Lewis residences are much closer.

At approximately a hundred metres, the privacy concerns would be far greater in respect

of the Cameron property. The Board finds that there is an objective basis to support the

belief that there will be adverse privacy impacts on the Cameron and Lewis properties.

[90] As for security concerns, all the Appellants have driveways that appear to

be within 300 metres of the proposed development site. Contrary to the Municipality’s

assertion, this is not a significant distance. The Board accepts that the driveways to the

Appellants’ residences are long, and at least in the case of the Manuel residence, as

much as a half a kilometer. That may be an impediment to strangers accessing these

sites, but it also creates conditions for greater risk because the houses are not easily

seen from the public travelled highway and neighbours are not as close by as in more

densely populated areas.

[91] Proof that the proposed development will result in trespassing on the

Appellants’ properties is not possible, and not required. However, given the significant

increase in development density, with the creation of 94 residential units and new, yet

unidentified, commercial activities, it seems likely that there will be more people coming

into, and staying in the neighbourhood. The Appellants testified that they already meet

trespassers on their property, and it is reasonable to think that this may increase. There

is an objective basis for the Appellants’ belief that there will be adverse security related

impacts.

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[92] It is reasonable to expect that developments such as the one proposed may

create traffic problems. Indeed, the Appeal Record in this case showed that the Nova

Scotia Department of Transportation and Infrastructure Renewal requested the traffic

study that was prepared during the review of the application for the development

agreement. If that department felt that such a study was called for, that is objective

evidence that could support a nearby property owner’s belief that they will be affected by

traffic from the development.

[93] The Board is not inclined to place too much weight on the traffic study

conclusions at this stage of the proceeding. The Board notes from its review of the

information relating to this study in the Appeal Record that, to some degree, the study

made assumptions about the nature of the commercial use in the proposed development.

At this point, however, the actual commercial uses of the site are unknown. The author

of the traffic study was also not called to testify, and Ms. Gilbert conceded that she was

not a traffic expert.

[94] Even if the traffic expert had been called to testify, the Board in this case,

as it did in Ollive, does not believe it is appropriate to review such evidence to conclude

whether there will, in fact, be an adverse effect. As discussed later in this decision,

whether Council considered and evaluated the development agreement in a manner that

reasonably carries out the intent of the Municipal Planning Strategy in respect of the

impact of the proposed development on traffic is a ground of appeal that may be pursued

in this proceeding. In the Board’s view, issues of this nature should be determined at the

hearing of the appeal on its merits when all the evidence, including any expert reports

that the Appellants might choose to introduce, are available and before the Board. They

should not be determined on a summary basis.

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[95] While the extent of any impacts relating to traffic might be debated, the

Appellants’ concern is rationally connected to the proposed development. Furthermore,

the Appellants, who all have driveways close by, and will be travelling the road in front of

the development on a regular, if not daily basis, are uniquely connected to this concern.

The Municipality’s suggestion that traffic from the site travelling away from the Appellants’

properties would not affect the Appellants completely ignores the impact on the

Appellants as regular or daily users of the stretch of road in question. The Board finds

there is an objective basis for the Appellants’ belief that traffic relating to the proposed

development will adversely affect them.

[96] In respect of environmental concerns, if the Municipality’s comment about

ownership of the Nine Mile River was intended to suggest that only the Province could

legitimately raise concerns about any environmental issues associated with the river, the

Board rejects that suggestion. In response to a question from the Board, Ms. Gilbert

agreed that it was reasonable to believe that people have a genuine concern and interest

in environmental issues in their neighbourhood.

[97] Jean Cameron, and Jeanette and Paul Lewis, own properties along the

Nine Mile River near the proposed development. Ms. Cameron’s property boundary is

approximately 72 metres along the river away from the site of the proposed development.

Paul and Jeanette Lewis own property on both sides of the river. They own a woodlot

directly across the river from the proposed development, and their residence is on the

other side of the Cameron property.

[98] That said, the environmental concerns raised by the Appellants are general

in nature, and there does not appear to be a direct connection between them and the

proposed development. For example, it is not clear how the proposed development would

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prevent the Appellants from fishing, kayaking, or canoeing. In respect of habitat for flora

and fauna, the development agreement seeks to preserve natural habitat along the Nine

Mile River with the requirement for a 30-metre buffer.

[99] Similarly, the Appellants’ concerns that the development will affect drainage

on their property and the water table are speculative. Their properties are at higher

elevations than the proposed development site, and they drain towards that site. As noted

above, the proposed development will connect to municipal water and sewer systems.

[100] The Appellants’ concern about contamination running into Watercourse 4

from parking lots and activities on the site is more specific and, the Board finds, more

reasonably connected to the proposed development. Assessing how reasonable those

concerns might be is subject to some uncertainty because the commercial uses on the

site have not been identified. However, it is likely that allowing contamination to flow into

Watercourse 4 or Nine Mile River would contravene federal and provincial legislation. As

such, it should not be expected.

[101] The Appellants appear to have acknowledged that the economic value of

their property may be lower but could also be higher because of the proposed

development. At the oral hearing, their concerns appeared to be more in respect of

intrinsic value of their lands as something to pass onto the next generation. The proposed

development would not prevent the Appellants from leaving their properties as an

inheritance.

[102] Overall, the Board finds that the Appellants’ beliefs that they will be

adversely affected by Council’s decision are bona fide. The proposed development, in

the words attributed to municipal staff, “feels somewhat out of keeping with the current

character of the immediate surrounding area.” Given the significance of this change, their

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close proximity, and the fact that it is reasonable to believe that they will experience some

adverse impacts from the proposed development, particularly in respect of sound, privacy

(except for the Manuel property), security and traffic, the Appellants are aggrieved

persons who may appeal Council’s decision to the Board.

IV ARE THE GROUNDS OF APPEAL WITHIN THE BOARD’S JURISDICTION?

[103] The Municipal Government Act authorizes the Board to hear appeals from

municipal council decisions approving development agreements, but the Board’s

authority is limited. Under s. 250(1)(b) of the Act, an aggrieved person may only appeal

the approval of a development agreement on the grounds that the decision of the council

does not reasonably carry out the intent of the Municipal Planning Strategy. Similarly, the

Board may only allow an appeal if it determines that the decision does not reasonably

carry out the intent of the Municipal Planning Strategy (s. 251(2)).

[104] The Board considered principles relating to applications to strike notices of

appeal in planning matters in Re Dow, 2008 NSUARB 48, and after an extensive analysis,

the Board concluded:

With respect to an application to quash all or some of the grounds of appeal, the party bringing the application has the burden of proof. It is a summary proceeding. The Board is not testing the evidence or considering the merits of the case. Rather the Board must assume that the appellant can prove the grounds plead. The Board is to give the notice of appeal a liberal and broad interpretation so as to ensure that a legitimate appeal is not quashed. The Board finds that modifying the Court’s principles to planning appeals for quashing a notice of appeal, the question the Board must ask is: Assuming the ground is proven, is it absolutely unsustainable or clear beyond any doubt that it cannot show that Council’s decision does not reasonably carry out the intent of the MPS? If there is any chance that the ground could demonstrate that Council’s decision does not reasonably carry out the intent of the MPS, then the ground should not be struck. If it is absolutely unsustainable or clear beyond any doubt that it could not show that Council’s decision does not reasonably carry out the intent of the MPS, then the ground should be quashed. If there is doubt, the notice should not be quashed.

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Even at this stage in the proceedings the Appellants should be permitted to amend their Notice of Appeal to correct a defect in form, subject to any prejudice to the parties that cannot be addressed by other remedies. The Board finds that by ensuring that the ground meets the Board’s limited jurisdiction of potentially showing a Council’s decision does not reasonably carry out the intent of the MPS, the ground has met the strict jurisdictional parameters of the MGA. All other defects in the form are of a procedural nature for which the Board is given broad procedural jurisdiction to do what is fair between the parties. This includes being provided with the ability to exercise other remedies such as amendments and adjournments.

[Re Dow, para. 251-255]

[105] In Elderkin v. M.I.R. I Developments Inc., 2004 NSUARB 65, the Board

recognized that a notice of appeal in a planning appeal to the Board is different from a

statement of claim in a judicial proceeding. It would not be appropriate to impose the

same test as a court might when considering an application to strike a statement of claim.

[106] In municipal planning appeals to the Board, Appellants are often self-

represented, and frequently appear without the assistance of lawyers or planners. In Re

Thompson, 2020 NSUARB 52, the Board noted:

The Board does not consider that the purpose of a notice of appeal is to evaluate an appellant’s ability to meticulously examine and show every aspect of a municipal planning strategy that may have a bearing on their concerns. These are not always easy documents to work with, especially for those not used to them. The notice of appeal should, however, articulate concerns that can form grounds of appeal that have a basis in the municipal planning strategy. They should be clear enough that the respondent understands the issues to be addressed in the appeal.

[Re Thompson, para. 87]

[107] The Appellants filed a Notice of Appeal consisting of the Board’s standard

form with a 28-page attachment. In response to the question on the Board’s standard

form Notice of Appeal that asked them to specify each policy in the Municipal Planning

Strategy, the intent of which they allege Council’s decision has not reasonably carried

out, the Appellants listed 15 separate items:

• Section 8.5.1 - exceeds maximum building height;

• Section 8.5 - exceeds “limited residential uses” (density);

• Intent of RC zone circumvented;

• ED34-C – requirements for development on RC land will not comply when intended subdivision occurs;

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• 10.2.4 – establishing the true high watermark in a high risk flood zone;

• C9-EN5 – neglect of setback from watercourse;

• 3.2.6 – not allowing for appropriate setback from ‘watercourse 4’;

• MPS Section 6 – no allowance for gradual separation between low density (rural) and high density;

• 8.2.3 – lack of buffer between development and agricultural land;

• C-6 Section RD2: Development does not preserve or enhance neighbourhood integrity;

• C-9 Environment: Municipality does not fulfill mandate as environmental stewards;

• C-9 Stormwater management – EN10 – concerns regarding lack of best practices regarding stormwater management;

• Non-adherence to procedural flowchart regarding final decisions made by Council;

• Procedural concerns regarding scheduling a Public Hearing during a pandemic;

• Procedural concerns regarding the live-stream public hearing.

[108] The attachment to the Notice of Appeal supplied further details about these

items and raised others. In written submissions to the Board, Counsel for the Municipality

restated the items listed in the Notice of Appeal and the additional commentary, by

combining them into four groups of related items based on: (1) procedural grounds; (2)

grounds based on alleged violations of the Land-use By-law; (3) grounds based on

alleged violations of the Municipal Planning Strategy; and (4) other grounds (“Financial

Impact” and “Community Impact”).

[109] In response to the Municipality’s motion to strike many of the proposed

grounds of appeal, the Appellants provided more information to support many of the

impugned grounds of appeal. In some cases, this information referred to policies in the

Municipal Planning Strategy not referenced in their Notice of Appeal. At the hearing to

deal with the motion, the Appellants sought leave to amend their Notice of Appeal to the

extent necessary to include these references. In their written pre-hearing submissions,

the Appellants also confirmed that they would not be continuing with some of the grounds

listed in the Notice of Appeal.

[110] The Board’s analysis will follow the grounds listed in the Notice of Appeal,

and those arising from a review of the attachment to the notice. However, as the

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Municipality’s objections to many of them were based on the grounds being either based

on alleged procedural errors or irregularities or alleged contraventions of the Land-use

By-law rather than the Municipal Planning Strategy, these topics will be considered first.

Procedural Errors or Irregularities

[111] The Notice of Appeal and attachment filed by the Appellants raises various

procedural concerns. These include questions relating to Council’s reconsideration of the

proposed development agreement after a motion to approve entering into a development

agreement was defeated on December 18, 2019. The applicant for the development

agreement did not appeal that decision, but instead changed the location of the building

and resubmitted the development proposal that Council accepted.

[112] In the information provided with their appeal, the Appellants also expressed

concern over the hearing processes used to consider the revised application. In

particular, the Appellants said that municipal staff did not supply answers to questions

they had asked and information they had requested. They also said that the live stream

format for the Council hearing that considered the matter, which was used instead of an

in-person hearing because of the COVID-19 pandemic, did not provide for equal access

to all members of the public. In the Appellants’ view, the “hearing should have occurred

at a later time when people could participate in a fair and democratic manner.”

[113] Relying on the Court of Appeal decision in Maskine v. Halifax (County)

(1992), 118 N.S.R. (2d) 356 (C.A.) and the Board’s prior decisions in Colborne et al,

[1994] N.S.U.A.R.B. No. 42 and Federation of Nova Scotian Heritage (Re), 2005

NSUARB 105, the Municipality submitted that the Board does not have the jurisdiction to

determine procedural issues raised by the Appellants. Consistent with those decisions

and, more recently, Leonhard (Re) 2020 NSUARB 31 (para. 58), the Board accepts the

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Municipality’s submissions and finds that the grounds of appeal relating to the Appellants’

concerns about process and access to public meetings and information should be struck.

Contraventions of the Land-use By-law

[114] In support of some grounds set out in the Notice of Appeal, the Appellants’

refer to requirements in the Land-use By-law, but do not reference any relevant policies

in the Municipal Planning Strategy. The Municipality submitted that non-compliance with

the Land-use By-law is not a valid ground for challenging or overturning Council’s decision

to enter into a development agreement and supported this argument with reference to the

Nova Scotia Court of Appeal decision in Canada Life Assurance Company v. Colchester

(County) (1996), 152 N.S.R. (2d) 234 (C.A.).

[115] In responding to this argument, the Appellants referenced s.251(2) of the

Municipal Government Act and noted, in particular, that the language permitting the Board

to allow an appeal based on a conflict with the provisions of the land-use by-law:

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. [Emphasis added]

[116] At the videoconference hearing for the motion, the Municipality submitted

that the argument was based on a misinterpretation of the provision. The Municipality

said that the wording in s.251(2) reflects the fact that appeals may be brought to the Board

not only from decisions of a municipal council, but also from certain decisions made by a

development officer. The decisions of the development officer may be appealed if they

do not comply with a land-use by-law or a subdivision by-law. As such, the Municipality

said that s.251(2) must be read in the context of these provisions in s.251. The Board

concurs. The position advanced by the Municipality is consistent with past judicial and

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Board decisions interpreting the Board’s jurisdiction in appeals from municipal council

decisions relating to the approval of development agreements.

[117] Development agreements can and do override land-use by-laws, so the fact

that a proposed development does not comply with a requirement in a land use by-law

does not, in and of itself, establish that the decision to approve a development agreement

for such a development does not reasonably carry out the intent of a municipal planning

strategy. That is not to say, however, that a standard established in a land-use by-law

cannot be a relevant factor to consider when assessing whether the Municipality has

interpreted and applied a policy in its municipal planning strategy in a manner that it can

reasonably bear.

[118] Planning decision appeals in Nova Scotia have recognized that reflexivity

exists between a municipal planning strategy and a concurrently adopted land-use by-

law. When a municipal council adopts a municipal planning strategy or makes

amendments to its strategy involving policies regulating land use and development, the

municipality must, at the same time, also adopt or amend a land-use by-law to implement

those policies (Municipal Government Act, s. 219).

[119] In J & A Investments Ltd. v. Halifax (Regional Municipality), [2000] N.S.J.

92 (S.C.), where the meaning of an land-use by-law was in issue, Justice Davison

reasoned that s. 219(1) of the Municipal Government Act means that a municipal planning

strategy may be used to help determine the intent of the land-use by-law.

[120] The language of s. 219(1) of the Municipal Government Act is similar, but

not identical to, s. 51(1) of the Planning Act, which requires council to "concurrently" adopt

or amend the land-use by-law. Referring to s. 51(1) of the Planning Act, the Court of

Appeal, in 3012543 Nova Scotia Limited v. Mahone Bay et al., 2000 NSCA 93, stated that

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a review of the land-use by-law may assist in "throwing light on the intent" of the municipal

planning strategy and, therefore, used a provision of Mahone Bay’s land-use by-law to

assist in interpreting its municipal planning strategy:

A search for the intent of a municipal planning strategy requires a careful review of the strategy represented by the policies of the municipality and, very often, a review of the By-laws implementing the strategy as the by-laws adopted concurrently with the MPS may assist in throwing light on the intent of the strategy. [para. 95]

[121] Thus, according to Nova Scotia’s present case law, the Board considers

one may use a municipal planning strategy to help determine the intent of the land-use

by-law (J & A Investments), and use the land-use by-law to help determine the intent of

the municipal planning strategy (Mahone Bay).

Grounds in Notice of Appeal

(a) Ground 1 - Section 8.5.1 - Maximum Building Height

[122] Section 8.5.1 of the Land-use By-law restricts as-of-right development in

the Regional Commercial Zone to a maximum building height of 16 metres. The proposed

six-storey and four-storey buildings exceed this with heights of 18.3 metres and 17.4

metres. The Appellants said that this development would include the highest buildings in

the Municipality. The Appellants did not refer to any policy in the Municipal Planning

Strategy, and as such, the Municipality argued that non-compliance with the height

requirement in the Land-use By-law was not a valid ground of appeal.

[123] In response, the Appellants offered an interpretation of Policies ED27 and

ED31 suggesting that, in this case, the flexibility of Council to override development

requirements in the Land-use By-law did not extend to building height. These provisions

read:

ED27. Council shall establish provisions for the Regional Commercial (RC) Zone under the Land Use Bylaw including requirements for permitted uses, lot coverage and area, frontage, height and floor area, yard setbacks, building height, lighting, signage, and vehicle access.

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ED31. Given the changing face of medium and large scale commercial retail development, and increasing demand for same in the Elmsdale area, Council shall provide for additional development options and relaxed standards in the Regional Commercial (RC) zoned area. Such options are consistent with the overall intent of the RC Zone to provide for a wide range of commercial activity to foster economic growth, and include a removal of the building square footage maximum, reduced minimum lot sizes, development by right-of-way easement (removal of lot frontage requirements) and variations in the signage provisions of the LUB.

[124] As the Board understands the argument, the Appellants are suggesting that

Policy ED27 directs Council to establish specific development requirements in the Land-

use By-law, and that Policy ED31 only authorizes Council to relax some of those

requirements and, in particular, does not allow Council to relax the standards relating to

height. While this interpretation may not be the only possible interpretation of the

requirements of the Municipal Planning Strategy, the Board is unable to conclude that the

argument is absolutely unsustainable.

[125] Additionally, it appears to the Board that the Appellants are not suggesting

that the only problem with the height of the building is that it does not adhere to the height

limitations in the Land-use By-law. They believe it is too high for the area. As set out in

the attachment to their Notice of Appeal, “The location, size, height and scope of the

proposed buildings, the supporting infrastructure and the number of inhabitants will

directly and negatively impact the way of life and livability of the area residents invest in,

pay taxes on, and call home.”

[126] Policies IM27 and IM28 list the criteria that Council must consider when

evaluating any development agreement application and the terms and conditions in the

agreement to ensure consistency with the policies in the Municipal Planning Strategy and

sustainable development practices. Under IM27, Council must consider the impact of the

proposed development agreement on existing uses in the area with particular regard to

various factors including the size of the proposed structures (IM27(a)) and that the

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proposed development is compatible with existing development forms in respect of

several factors, including height (IM27(i)). Under IM28, Council must include terms and

conditions in the development agreement to ensure consistency with the Municipal

Planning Strategy policies, where applicable, relating to the size of structures (IM28(a))

and height (IM28(d)). The Board considers that the concerns the Appellants have raised

about the inappropriateness of the proposed height of the of the development trigger

these aspects of the Municipal Planning Strategy.

(b) Ground 2 - Section 8.5 – Limited Residential Uses

[127] The Appellants refer to s.8.5 of the Land-use By-law which says the intent

of the Regional Commercial Zone is to provide for commercial uses. While the zone

allows mixed-use development agreements, s.8.5 refers to limited residential

development.

[128] In the attachment to the Notice of Appeal, the Appellants expressed the

view that the proposed development “is not ‘more denser form of commercial

development’ but a high density residential application to an RC Zone.” They also said,

“[i]nstead of a commercial development, this area is now being developed as high density

residential.” Once again, the Appellants did not refer to any policy in the Municipal

Planning Strategy, and as such, the Municipality argued that non-compliance with the

Land-use By-law was not a valid ground of appeal.

[129] In their response to the Municipality’s motion to strike this ground, the

Appellants referred to the Regional Commercial (RC) Policy Goal:

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Council’s goal is to facilitate the development of a regional, large-scale service-based commercial area with a wide range of retail goods and services, and business uses in a land-intensive, vehicle dependent environment. A regional-scale commercial area will allow for a convenient shopping environment for East Hants residents and the traveling public and for large-scale commercial development with minimal impact to the built and natural environment.

[Exhibit C-2, Municipal Planning Strategy, Section C7 – Page 5]

[130] Although set out under the heading addressing the height of the proposed

development, the Appellants also refer to similar statements in Policies ED24 to ED26:

ED24. Council shall establish the Regional Commercial (RC) Designation with the intention of allowing for the development of a wide range of largescale commercial activity including warehousing, retailing of goods and services, food and beverage facilities, accommodation, entertainment facilities, office and business services, drive-thru restaurants, services stations, shopping malls, and other vehicle dependent uses within a concentrated area, thus having minimal impact on the built and natural environment. ED25. Council shall apply the Regional Commercial (RC) Designation to specific, pre-designated lands to foster economic growth and to encourage a desirable and functional growth pattern on lands near arterial highway interchanges. ED26. Council shall require that the provisions of the Regional Commercial (RC) Zone be consistent with the overall intent of the Regional Commercial (RC) Designation and that the purpose of the RC Zone shall be to allow for a range of intensive goods and services uses in a controlled built and natural environment.

[Exhibit C-2, Municipal Planning Strategy, Section C7 – Pages 5-6]

[131] While the Municipal Planning Strategy allows mixed-use developments, the

Appellants characterize this development as a high-density residential development and

not the commercial development contemplated for the zone. In support of this, they also

compare the residential density of the proposed development to other developments and

said that the proposed development would have a residential density exceeding other

existing and planned development in the Municipality.

[132] The Board finds that this ground is connected to the referenced policies in

the Municipal Planning Strategy and may be pursued by the Appellants in this appeal.

(c) Ground 3 - Intent of RC Zone Circumvented if Subdivision Occurs

[133] The essence of this ground of appeal is that after the development occurs,

the property may be subdivided in a way development would not have been allowed to

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occur in the first place. More specifically, although Policy ED34 in the Municipal Planning

Strategy permits Council to consider a development agreement for a mixed use

development in the Regional Commercial Zone, certain requirements must be met

including that the proposed residential uses must have frontage on the Nine Mile River

(ED34(c)), the proposed commercial ground floor must equal or surpass the residential

ground floor area (ED34(e)), and the proposed residential uses should be in the rear yard

or above commercial uses (ED 34(f)). In this case, the plans included in the development

agreement application showed a potential future subdivision of the property that would

leave the six-storey multi-unit residential building on its own parcel divorced from any

commercial uses and the four-storey mixed-use building would not be on a parcel that

had frontage on the Nine Mile River.

[134] In their Notice of Appeal, the Appellants noted that there was some

discussion about restricting subdivision as-of-right in the development agreement at the

Council meeting that approved the agreement. This potential change to the development

agreement was not pursued based on advice from the Municipality’s Director of Planning

and Development that this would be a substantial change that would not be appropriate

to make at the public hearing. The Appellants said, “[t]he issue of allowing subdivision of

this property must be dealt with in the current development agreement.”

[135] The Municipality objected to this ground of appeal on the basis that the

Appellants did not specify any basis for this ground of appeal in the Municipal Planning

Strategy. Additionally, the Municipality noted that this ground addressed a concern about

a future and speculative subdivision and not the currently impugned Council decision.

[136] In their response to the Municipality’s submission, the Appellants referred

to Policy UD42(e), which requires that Council specify matters regarding subdivision of

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lands in a development agreement for the development of any Walkable Comprehensive

Development District (incorporated by reference for the Regional Commercial Zone by

Policy ED 34). At the videoconference hearing, the Municipality acknowledged that if the

Appellants were alleging that Council’s decision failed to comply with Policy UD42(e) that

would be a valid ground of appeal; however, the Municipality submitted that this was not

reflected in the Notice of Appeal, and that an amendment would be required for the

Appellants to proceed with this ground.

[137] While not specifically set out in the Notice of Appeal, the Board finds that

the general position advanced by the Appellants, that the current development agreement

should have dealt with whether a subdivision of the property would be permitted in light

of the requirements set out in Policy ED34(c), (e) and (f) is connected to Policy UD 42(e).

The Appellants can continue with this ground of appeal.

(d) Ground 4 - ED34(c) - Requirements for Development in RC Zone Will Not Be Met When Intended Subdivision Occurs

[138] This is a restatement of the ground just discussed in (c) above and does not

require further comment.

(e) Ground 5 - 10.2.4 - Establishing the True High-Water Mark in a High-Risk Flood Zone

[139] The proposed development agreement requires the developer to keep a 30-

metre landscape buffer from the property boundary with the ordinary high-water mark of

the Nine Mile River and prohibits the building of permanent structures within the buffer.

The Appellants said that their concern is about how the buffer is measured, and they are

seeking clarification to evaluate if the establishment of the high water mark is in

compliance with the Municipal Planning Strategy and Land-use By-law regarding

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watercourses. The Municipality said this is not a valid ground of appeal but appears to

be a request for information. The Board concurs.

[140] The development agreement clearly established the requirement for the

buffer. While the development agreement did not define “ordinary high water mark,” Part

2 of the Land-use By-law defines it:

Ordinary High Water Mark means the limit or edge of a body of water where the land has been covered by water so long as to wrest it from vegetation or to mark a distinct character upon the vegetation where it extends into the water or upon the soil itself.

[Exhibit C-2, Land-use By-law, Page 2-12]

[141] The Appellants seem to be concerned about where this mark exists

physically on the ground, as a question of fact, or a matter of surveying opinion. If the

Appellants are concerned with whether the ordinary high-water mark will be appropriately

found to accurately measure the 30-metre buffer, the Board finds this to be a question of

compliance with the development agreement. This is not a valid ground of appeal in this

proceeding.

(f) Ground 6 - C9-EN5 - Setback from Nine Mile River

[142] The Appellants referred to Section C9 of the Municipal Planning Strategy,

and specifically to Policy EN5, which directs Council to require that development is

setback from watercourses, including lakes, permanent watercourses, intermittent

watercourses, and seasonal watercourses. The Appellants also refer to s.3.26 in the

Land-use By-law, which shows setback distances for structures near watercourses.

[143] In the pre-hearing submissions, the Appellants confirmed that their concern

about setback distances from watercourses relates to Watercourse 4, which is addressed

in the next part of this decision. The Appellants said that they are not pursuing a ground

of appeal based on a setback requirement for the development from Nine Mile River.

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(g) Ground 7 - 3.26 – Setback from Watercourse 4

[144] The basis for this ground of appeal is in Section C9 of the Municipal

Planning Strategy generally and EN5 specifically as discussed above. In addition, the

Appellants have also emphasized the related policies in Section C9 (EN5 to EN 8) in their

response submissions:

EN5. Council shall require that development is setback from watercourses including lakes, permanent watercourses, intermittent watercourses and seasonal watercourses. EN6. Council shall regulate the development of residential and commercial properties abutting or near any watercourses or wetlands, to sufficiently reduce the level and nature of pollutants entering the Municipality’s water systems. EN7. Council shall encourage that lands within the setback are maintained as vegetated greenbelts to aid the control of pollutants, sedimentation, erosion, and subsurface and surface flows. EN8. Council shall control the alteration of land levels within the watercourse setback to control soil erosion and sedimentation.

[Exhibit C-2, Municipal Planning Strategy, Section C9 – Page 3]

[145] The Municipality acknowledges that this is a valid ground of appeal except

to the extent that it relies on s.3.26 in the Land-use By-law, which the Municipality said

should be struck. As discussed above, the alleged contravention of the Land-use By-law

cannot, in and of itself, prove that the decision of Council did not reasonably carry out the

intent of the Municipal Planning Strategy. However, s.3.26 may help to interpret the

policies set out in the Municipal Planning Strategy and, to that extent, might be of some

relevance in addressing the valid ground of appeal based on the watercourse related

policies in Section C9 of the Municipal Planning Strategy.

(h) Ground 8 - Municipal Planning Strategy Section 6 - Allowance for Gradual Separation of Uses of Different Densities

[146] With reference to Community Priority 6, the Appellants alleged that the

development agreement should have required more of a transition between use densities.

The Municipality acknowledges that this is a permitted ground of appeal.

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(i) Ground 9 - 8.2.3 - Buffer for Adjacent Agricultural Land

[147] The Appellants allege that buffering or screening is needed for agricultural

property on the southeast property boundary of the proposed development and refer to

s.8.2.3 of the Land-use By-law. The Municipality objected on the basis that the alleged

contravention of the Land-use By-law does not prove that the decision of Council does

not reasonably carry out the intent of the Municipal Planning Strategy.

[148] A review of the Notice of Appeal and the submissions filed in response to

the Municipality’s objection makes it clear that the Appellants are objecting to a conclusion

reached in the policy analysis undertaken by the Municipality’s planning staff. The

comment made by planning staff was in respect of Policy IM27(g); however, staff also

made related comments in relation to Policies IM27(a), and IM28(c):

IM27. Council shall consider the following evaluation criteria for any development agreement application: a) The impact of the proposed development on existing uses in the area with particular

regard to the use and size and of proposed structure(s), buffering and landscaping, hours of operation for the proposed use, and other similar features of the proposed use and structures.

g) Adequacy of the size of the lot to ensure required buffering and screening can be

carried out. IM28. Terms and conditions of the agreement to ensure consistency with Strategy policies and the employment of sustainable development practices shall include, but are not limited to the following where applicable: c) Provisions for adequate buffering and screening to minimize the impacts of the

development on adjacent uses, such buffering and screening to be designed with consideration given to the types of impacts that may be felt by adjacent properties (ie. noise, headlights, dust, etc.).

[Exhibit C-2, Section E2 – Pages 8-9]

[149] These policies are related to the concern raised by the Appellants, and as

such, the Board finds that this ground of appeal may be pursued in this proceeding. As

discussed previously, any non-compliance with s.8.2.3 of the Land-use By-law does not,

in and of itself, prove that the decision of Council did not reasonably carry out the intent

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of the Municipal Planning Strategy. However, that does not mean that s.8.2.3 may not

be able to inform the interpretation of the policies set out in the Municipal Planning

Strategy and, to that extent, might be of some relevance in addressing the screening and

buffering provisions in Policies IM 27 and IM 28 of the Municipal Planning Strategy.

(j) Ground 10 - C-6 Section RD2: Neighbourhood Integrity

[150] As noted previously, the Appellants submitted, “[t]he location, size, height

and scope of the proposed buildings, the supporting infrastructure and the number of

inhabitants will directly and negatively impact the way of life and livability of the area

residents invest in, pay taxes on, and call home. In this context, the Appellants noted

Policy RD2 in the Municipal Planning Strategy requires Council to encourage context

sensitive intensification and infill residential development that complements surrounding

homes and preserves or enhances neighbourhood integrity.

[151] The Municipality pointed out that Policy RD2 applies to formal residential

zones in the Municipal Planning Strategy, and not the Regional Commercial Zone. This

statement is correct, but the obvious concern of the Appellants is that the development,

in their view, is not compatible with the existing uses in the area. As was discussed in

Ground (1) relating to the height of the proposed development, these concerns are

connected to the criteria that Council must evaluate for any development agreement in

Policies IM27(a) and (i), and may be advanced by the Appellants in this proceeding on

that basis.

(k) Ground 11 - C-9 Environment: Environmental Stewardship

[152] The Appellants assert that, in approving the development agreement, the

Municipality failed in its responsibilities under Section C9 of the Municipal Planning

Strategy to function as a steward for the environment to ensure the sustainability of

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natural resources. The Municipality acknowledges that this is a permitted ground of

appeal.

(l) Ground 12 - C-9 and EN 10 - Stormwater Management Best Practices

[153] The Appellants assert that, in approving the development agreement, the

Municipality has failed in its responsibilities under Section C9 of the Municipal Planning

Strategy in respect of stormwater management. Section C9 includes a subsection that

sets out several policies relating to stormwater management. The Appellants have also

referenced Policy EN10 as well. The Municipality acknowledges that this is a permitted

ground of appeal.

(m) Ground 13 - Non-adherence to Council’s Final Decision

[154] Council originally rejected an application for a development agreement by

the developer at a meeting on December 18, 2019. After making an adjustment to the

location of one of the buildings, the application was resubmitted and later approved by

Council on April 29, 2020. The Appellants object to the fact that although the December

2019 Council decision was not appealed, the developer was allowed to resubmit an

application that, in the Appellant’s view, was substantively the same and that Council

reached a different conclusion.

[155] The Municipality said that this was a procedural issue that was beyond the

Board’s jurisdiction. The Board agrees with this submission and finds that this is not a

valid ground of appeal for the reasons set out above under the heading “Procedural Errors

and Irregularities.”

(n) Ground 14 - Procedural Concern - Public Hearing During a Pandemic

[156] In their pre-hearing submissions, the Appellants said that they are no longer

pursuing this ground of appeal.

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(o) Ground 15 - Procedural Concern - Live-stream Public Hearing.

[157] In their pre-hearing submissions, the Appellants said that they are no longer

pursuing this ground of appeal.

(p) Ground 16 - Financial Impact – Sidewalks

[158] In the Notice of Appeal, the Appellants discussed financial issues

associated with the construction of a sidewalk from the nearby Superstore along Highway

214 to the proposed development. Additionally, the Appellants also expressed the

concern that the contemplated sidewalk would not extend to the Elmsdale Shopping

Centre on the other side of the Highway 102 interchange, noting that sidewalks from that

location provided a connection to the Village Core.

[159] In response to an objection from the Municipality that this concern was

based on who would pay for the cost of the sidewalk, and not on any alleged failure to

comply with the Municipal Planning Strategy, the Appellants advised that they were not

pursuing an appeal based on the financial issues associated with the construction of the

sidewalk. However, the Appellants maintained their position that there was an issue with

the decision of Council because there was no connection between the Superstore and

the sidewalk at Elmsdale Shopping Centre leading to the Village Core. In support of this,

the Appellants referred to Policies TS1 and TS2:

TS1. Council shall maintain and upgrade sidewalks and pedestrian walkways within the municipality, as necessary, to provide for safe and convenient pedestrian movement. TS2. Council shall require developers to construct new sidewalks and walkways, as set out in the Subdivision Bylaw and Municipal standards, in order to provide pedestrians with continuous, integrated sidewalks and walkways for access to public facilities, shopping areas and residential neighbourhoods throughout the Municipality.

[160] At the videoconference hearing for these matters, the Municipality said that

a ground for the appeal based on Policy TS2 may be a valid ground to pursue but would

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require an amendment to the Notice of Appeal. The Board finds that the Appellants may

advance a ground of appeal based on the extension of sidewalks under Policy TS2 in this

appeal.

(q) Ground 17 - Community Impact

[161] In the attachment to the Notice of Appeal, the Appellants raised several

concerns, many of which overlap with the grounds of appeal considered already. New

concerns raised in this section include the impact of proposed development school

capacity and traffic issues. In its submissions to the Board, the Municipality noted that

although specific provisions of the Municipal Planning Strategy were not identified by the

Appellants, these concerns related to provisions applicable to Council’s decision, such as

Policies UD38, UD42 and IM27. As such, the Appellants may advance these concerns

in this appeal.

Policies at Issue in this Appeal

[162] As noted above, the Municipality submitted that some arguments advanced

by the Appellants in their pre-hearing submissions and evidence at the hearing related to

the Municipal Planning Strategy but were not included in the Notice of Appeal. The

Municipality said that the Appellants would need to amend the Notice of Appeal to include

those. The Appellants, in turn, requested leave to amend as necessary to include these

arguments. Although no formal motion to amend the Notice of Appeal was made in

advance of the hearing, the Board finds that it is able to deal with the request to amend

at the present time, and will not require a more formal request from the Appellants.

[163] As noted by the Board in Re Dow, the Board should allow amendments

subject to any prejudice to the other parties that cannot otherwise be addressed. Given

the early stage of this proceeding, and the nature of the evidence and submissions

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canvassed during the hearings, the Board finds that no prejudice would arise from

amendments at this time.

[164] In a number of cases, the Board finds that the essence of many concerns

advanced by the Appellants in their Notice of Appeal, while perhaps not specifically

associated with a specific policy in the Municipal Planning Strategy, can be readily related

to one or more policies as noted above. Further, the Board finds that, with some

exceptions noted below, the thorough canvassing of the proposed grounds of appeal by

the parties in advance of, and at the hearing, provides the Board with ample basis for

setting an outline for the issues that may be raised in this appeal. In these circumstances,

and given the format of the Notice of Appeal that was originally filed, the Board finds that

requiring a refiling of the Notice is unnecessary and would only further delay moving

forward with the substantive issues for this appeal.

[165] The exceptions where more information from the Appellants would be

helpful are in respect of Grounds 11 and 12 discussed above, dealing with Environmental

Stewardship and Wastewater Management. These were grounds that the Municipality

acknowledged were within the scope of Section C9 in the Municipal Planning Strategy.

However, the Board finds that it would be beneficial, given the extent of the issues raised

in this proceeding, for the Appellants to identify the specific policies in Section C9 that will

be addressed in dealing with these concerns. They are directed to do so before the date

of the preliminary hearing, yet to be scheduled, to set dates for the main hearing of this

appeal and the remaining pre-hearing processes.

[166] Based on the Notice of Appeal, and the evidence and submissions for this

hearing, the Appellants can advance the grounds of appeal outlined below in this appeal:

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• Section A.2 – Plan Direction

o Community Priority 6

▪ Whether a gradual separation between low-density and high-density uses is needed and has not been required in the development agreement

• Section C3 – Urban Design & Community Character

o Policy UD42(e) (incorporated by Policy ED34)

▪ Whether the development agreement should have included a provision restricting future subdivision to respect the requirements in Policies ED34(c), (e) and (f)

• Section C4 – Transportation

o Policy TS2

▪ Whether the development agreement should have included provisions requiring the construction of new sidewalks (connecting to the Elmsdale Shopping Centre)

• Section C7 – Economic Development

o Policies ED24 – ED26

▪ Whether the development is a residential development that does not carry out the intent of the Regional Commercial Zone

o Policy ED31

▪ Whether Council can relax the height requirements for the zone under Policy ED27

• Section C9 – Environmental

o Environmental Stewardship – specific policies to be identified by the Appellants.

o Stormwater Management – specific policies to be identified by the Appellants.

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o Policies – EN5 – EN8

▪ Whether a setback for the proposed development from Watercourse 4 is needed and has not been required in the development agreement.

o Policy EN10

▪ Whether Council has encouraged the use of stormwater best practices as part of a Stormwater Management Plan for the proposed development

• Section E2 – Administration

o Policy IM27 – Whether Council considered and evaluated the development agreement in a manner that reasonably carries out the intent of the Municipal Planning Strategy in respect of

▪ IM27(a) – the impact of the proposed development on existing uses

in the area (use, height, and screening/buffering)

▪ IM27(b) – the impact of the proposed development on school capacities

▪ IM27(c) – the impact of the proposed development on pedestrian and

motor traffic

▪ IM27(g) – the adequacy of the size of the lot to ensure required buffering and screening

▪ IM27(i) – the compatibility of the proposed development with existing

development (density and height)

o IM28 – Whether the development agreement includes applicable terms and conditions to ensure consistency with Municipal Planning Strategy policies and sustainable development practices relating to

▪ IM28(a) - the use and size of structures

▪ IM28(c) - adequate buffering and screening to minimize the impacts of the development on adjacent uses

▪ IM28(c) – height

▪ IM28(i) – methods of protection of the land and watercourses and mitigation practices during and after construction of the proposed development

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▪ IM28(j) – methods of stormwater management on-site during and after construction

[167] Other specific policies may be added to this list in response to the Board’s

direction to the Appellants to supply more specific policy references relating to their

concerns about environmental stewardship and wastewater management.

[168] As a final comment, the Board reiterates that, in identifying the grounds of

appeal that may be pursued in this proceeding, the test to be applied is whether the

potential ground is absolutely unsustainable. That is not a high threshold. At the hearing

on the merits of the appeal, however, the Appellants must meet a very different test, and

demonstrate on a balance of probabilities that Council’s decision does not reasonably

carry out the intent of the Municipal Planning Strategy. Additionally, the Board must

consider the Municipal Planning Strategy in its entirety, recognizing that the primary

responsibility for planning in the Municipality is vested in its elected and democratically

accountable Council. As such, if there are policies in the Municipal Planning Strategy

that are in conflict, Council is entitled to make a value judgment in choosing between the

policies. In such a case, barring an error of fact or principle, the Board must defer to the

Council's compromises of conflicting intentions in the Municipal Planning Strategy.

V SUMMARY AND CONCLUSION

[169] The Board finds that the Appellants are aggrieved persons and that they

may continue with this appeal.

[170] In Part IV of this decision, the Board reviewed the various grounds for

appeal set out in the Notice of Appeal filed in this proceeding, and those raised in the

various submissions and evidence relating to the motion to strike many of the grounds of

appeal. Based on this review, the Board provided directions for addressing the grounds

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raised by the Appellants, and new grounds arising from the Appellants’ evidence and

submissions that the Board allowed to be included in the Appeal. In two areas, dealing

with environmental matters and stormwater management, the Appellants are directed to

identify the specific policies in Section C9 of the Municipal Planning Strategy that are

implicated by the concerns they have raised in these areas.

DATED at Halifax, Nova Scotia, this 12th day of August, 2020. ______________________________ Stephen T. McGrath