A group of petitioner residents applied to quash two rezoning bylaws adopted by the council of the District of West Vancouver. The application alleged that West Vancouver city council had breached procedural fairness by receiving a report from the Director of Planning regarding the rezoning issue following the close of a public hearing. The report was not made available to the public prior to the council adopting the bylaws, which had the effect of allowing three lots that were formerly used for single family dwellings to be redeveloped for 10 residential townhouses.

Administrative law – Municipalities – Planning and zoning – Change of by-laws – Appeals – Judicial review – Public hearings – Procedural requirements and fairness – Disclosure

Hubbard v. West Vancouver (District), [2003] B.C.J. No. 2546, British Columbia Supreme Court, October 28, 2003, Stromberg-Stein J.

The court held that there was a breach of procedural fairness in the adoption of the bylaws. Council was held to have a clear obligation to disclose to the public, prior to the public hearing, all information which council would consider and rely upon in the course of adopting or deciding to adopt or reject the bylaws. If council considered new information which addressed the issues and offered fresh facts and opinions, then this information should be available to the public even if council acquired the information after the close of the public hearing. Procedural fairness involves disclosure of all such relevant information and material as an essential feature of a fair and transparent public process.

The court referred to the decision of Mr. Justice Esson in Eddington v. Surrey (District of), [1985] B.C.J. No. 1925 where he stated:

What will satisfy the requirements of procedural fairness is something that is not susceptible to rigid rule; it will depend on the circumstances of each case.

The Eddington case was also cited for the proposition that no one can be expected to mount an intelligent response at a public meeting without reasonable prior access to reports, including reports of consultants and staff of a given city council. The court also referred to the case of Pitt Polder Preservation Society v. Pitt Meadows (District of) (2000), 189 D.L.R. (4th) 219 (B.C.C.A.) wherein Madam Justice Rowles made the following statement regarding the legal standard of procedural fairness:

In my opinion, the cases to which I have just referred support the view that in order to provide the opportunity for informed, thoughtful, and rational presentations in relation to proposed land use and zoning bylaws it is necessary that interested members of the public have the opportunity to examine in advance of a public hearing not only the proposed bylaws but also reports and other documents that are material to the approval, amendment or rejection of the bylaws by local government.

In the result, the court quashed the bylaws and the Petitioners were awarded costs.

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