Kings County succeeded in its appeal of a decision by the Nova Scotia Utility & Review Board, which had overturned a decision of the Municipal Council to enter into a Development Agreement allowing a property owner to carry on an excavation business in an area not zoned for that activity. The court found that the Board did not consider the appropriate issue of whether the Development Agreement carried out the intent of the Municipal Planning Strategy and instead, based its decision on improper factors, including complaints of nuisance by neighbouring landholders.

Administrative law – Municipalities – Planning and zoning – Utility and Review Board – Jurisdiction

Kings (County) v. Lutz, [2003] N.S.J. No. 56, Nova Scotia Court of Appeal, February 18, 2003, Glube C.J.N.S., Chipman and Saunders JJ.A.

Robert Parker carried on an excavation business from his residence in Kings County. His father had carried on this business before him since at least 1992. The property was located in a Forestry District Zone (“F-1 Zone”). As the business grew, there was an increase in truck traffic to and from the property. This increased activity prompted complaints from the neighbours about the legality of the Parker operation. Municipal staff determined that the storage of excavation material and the processing of that material amounted to an industrial use, a use not permitted in an F-1 Zone. On October 15, 1998, Parker applied to the Municipality to have his property rezoned from F-1 to resource industrial (M-4) or to enter into a Development Agreement to continue with his excavating business. On September 1, 1999, the Council amended its Municipal Planning Strategy (“MPS”) to permit the Parker business to carry on its operations in the Forestry District. The decision of the Council to enter into the Development Agreement under the MPS was appealed by the residents. The Nova Scotia Utility & Review Board (the “Board”) allowed the appeal of the residents and reversed the Council’s decision. Kings County then appealed the decision of the Board.

The court characterized the issue as whether the Board erred in law and exceeded its jurisdiction in reversing the Council’s decision to approve the Development Agreement on the basis that the Agreement did not reasonably carry out the intent of the MPS.

The appeal was made pursuant to section 247(2) of the Municipal Government Act, S.N.S. 1998, c. 18. This provision restricts an appeal to questions of law or jurisdiction. The court held that where aggrieved property owners sought to appeal Council’s decision to enter into an amended Development Agreement with Parker, the Board was not entitled to interfere unless persuaded by the property owners – on a balance of probabilities – that the Council’s decision did not reasonably carry out the intent of the MPS.

The court was satisfied that the Board exceeded its jurisdiction by focusing solely upon the evidence of the aggrieved residents and arriving at a conclusion that the Parker’s excavating business was entirely incompatible with their use of their own residential property. The Board failed to answer the real and only question before it: whether or not the amended Development Agreement reasonably carried out the intent of the MPS. The court noted that despite the fact that the Board’s decision identified the leading authorities and acknowledged that it could not interfere with the actions of the Council unless the decision did not reasonably carry out the intent of the MPS; the Board failed to address that very question.

The court reviewed the leading authorities, including Mahone Bay Heritage & Cultural Society v. 3012543 Nova Scotia Ltd. (2000), 186 N.S.R. (2d) 201 (C.A.) and held that the Board was obliged to look at the MPS as a whole in order to ascertain whether the Council’s decision was consistent with the intent of the MPS. The court then reviewed the Kings County MPS in its entirety and held that it clearly encouraged industrial development and the broadening of the economic base within the Municipality. The court found that the Board consistently preferred the evidence of the aggrieved property owners with respect to nuisance rather than the economic potential of the operation approved under the Development Agreement. The court noted that the Council had been live to these issues and it was not the function of the Board’s review to reconsider these factors. In the result, the court held that the Board exceeded its jurisdiction by asking itself the wrong question and ordered that the decision of the Council to enter into the amended Development Agreement with Parker be restored.

To stay current with the new case law and emerging legal issues in this area, subscribe here.