Administrative law – Municipalities – Planning and zoning – Change of by-laws – Validity – Public hearings – Judicial review – Compliance with legislation – Rules and by-laws – Procedural requirements and fairness – Jurisdiction
Pacific Playground Holdings Ltd. v. Comox-Strathcona (Regional District),  B.C.J. No. 941, British Columbia Supreme Court, April 27, 2005, Ehrcke J.
Pacific Playground owned 148 acres of land in Saratoga Beach in the Regional District. It contended that the land was adversely affected by a zoning bylaw adopted by the Regional District Board (the “Board”).
In order to obtain public input on the draft zoning bylaw as it developed, an initial series of 11 public meetings were held in three affected electoral district areas over a 10-month period. During this process, the Board substantially amended an earlier version of the bylaw. On August 25, 2003, the Board resolved to hold a public hearing in respect of the bylaw on October 7, 2003. The public hearing was attended by the directors of four of the electoral areas but not by the directors from four other affected electoral areas. At the meeting, a number of speakers expressed concern about the bylaw’s impact relating to Pacific Playground. After the public hearing, the Board met and received a Planning Department Report and the memo from the committee of directors who attended the public hearing (the “Committee”). The Board gave the amended bylaw a third reading and adopted it. Pacific Playground sought to quash the bylaw on, amongst other grounds, the basis that the delegates did not report the views expressed at the public hearing to the Regional Board in the manner required by the Act.
S. 890(6) of the Act requires that a written report of each public hearing, containing a summary of the nature of the representations respecting the bylaw that were made at the hearing, must be prepared and maintained as a public record. S. 891(2) of the Act provides that the local government must not adopt the bylaw that is the subject of the hearing until the delegate reports to the local government, either orally or in writing, the views expressed at the hearing.
The Court noted that minutes of the public hearing were prepared by staff but were never presented to the Board. The report of the Committee was also provided to the Board but merely mentioned that some areas of concern were discussed. The Court found that these brief comments did not amount to a report of “the views expressed at the hearing”. The Court stated that the reporting requirement is not an empty formality and that one of the primary reasons for conducting a public hearing is to ensure that those affected by a proposed bylaw had a reasonable opportunity to make submissions.
The Court indicated that a party seeking to set aside a bylaw is not restricted to arguing that there has been a breach of the common law duty of procedural fairness; a bylaw may also be quashed where there has been a failure to comply with the statutory conditions for its enactment, as per the ruling of Esson J.A. in Canadian Pacific Railway Company v. Vancouver (city) (2004), 234 D.L.R. (4th) 40 (B.C.C.A.).
In this case, the Court concluded that the Regional District failed to comply with the requirements of the Act since the views expressed by Pacific Playground at the public hearing were never reported by the delegated Directors to the other Directors prior to their vote to adopt the bylaw. This constituted a failure of a condition precedent to the Board’s authority to adopt the bylaw and, consequently, the Bylaw should be quashed irrespective of whether the Board acted in good faith or whether there was actual prejudice to Pacific Playground.
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