The petitioning companies successfully applied for judicial review of a decision of the Board of Variance allowing a third-party appeal of a decision to approve development permit applications where the Court held that the legislation did not create a general right of appeal for third parties to challenge the decision of the Director of Planning

28. November 2006 0

Administrative law – Municipalities – Planning and zoning – Decisions of administrative tribunals – Board of Variance – Third parties – Appeals – review – Compliance with legislation

Richard Niebuhr Enterprises Ltd. (c.o.b. Niebuhr Constructions) v. Vancouver (City) Board of Variance, [2006] B.C.J. No. 2144, British Columbia Supreme Court, September 21, 2006, Goepel J.

The petitioning companies owned adjoining properties in Vancouver and successfully applied for development permits to construct two-storey family dwellings on each property. A couple of neighbours appealed the decision to the Board of Variance, which allowed the appeal and set aside the Director of Planning’s decision to approve the applications. The petitioning companies sought to quash that decision, arguing that the Board did not have jurisdiction to hear the appeal and/or that the decision was patently unreasonable.

The application for judicial review was granted by the Court and the appeal decision was set aside. The Court found that the legislation did not create a general right of appeal for third parties to challenge the decision of the Director of Planning. The legislation contained no provisions regulating such appeals and such a right was incompatible with the legislative scheme that empowered the City to plan its own development. The legislature did not give the Board, a lay panel with no professional training, the power to veto developments approved by the Director of Planning.

The determining issue was whether the third parties were entitled to appeal the decision of the Director of Planning as “persons aggrieved” such that they fell within the provisions of s.573(1)(a) of the Vancouver Charter. The legislature drew a distinction between persons “aggrieved” and persons “affected”. Persons “affected” were entitled to notice of any application to the Director of Planning and the Director of Planning is obliged under the statutory scheme to take their concerns into account in deciding whether or not a particular development permit will be allowed and what conditions might be attached to it. However, the Court held that persons “aggrieved” were only individuals for which the bylaw would impose an unreasonable restraint or unnecessary hardship on the use of their property, which was inconsistent with the general purpose and intent of the zoning bylaw. In this case, the third parties were merely neighbours and were not entitled to challenge a decision that did not limit the use of their property.

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