The Appellant, the McLean Lake Residents Association, successfully challenged the validity of a zoning bylaw on the basis that it contravened the City of Whitehorse’s Official Community Plan

Administrative law – Decisions of administrative tribunals – Municipal councils – Jurisdiction – Power to enact by-laws – Municipalities – By-laws – Validity – Planning and zoning – Judicial review – Compliance with legislation

McLean Lake Residents Association v. Whitehorse (City), [2009] Y.J. No. 109, 2009 YKCA 11, Yukon Territory Court of Appeal, August 21, 2009, I.T. Donald, S.T. Frankel, and D.M. Smith JJ.A.

The Appellant, the McLean Lake Residents Association, relying on the Municipality Act, R.S.Y. 2002, c. 154 (the “Act”), challenged the validity of a zoning bylaw permitting the construction and operation of a concrete plant on a piece of land in the McLean Lake area.

The Residents Association argued that the City Council had exceeded its jurisdiction when it enacted the zoning bylaw because it acted it in a manner that was opposed by a large number of residents. The Court of Appeal dismissed this argument, holding that a decision properly taken is not otherwise invalid simply because it is not supported by a large number of residents.

The Residents Association further argued that the zoning bylaw was invalid because it contravened the City’s Official Community Plan (“OCP”). The Act requires municipalities to have an OCP and stipulates that a municipality cannot enact any provision that is “contrary to” or “at variance with” the OCP. In this case, the McLean Lake area was designated “Natural Resource” in the OCP, meaning that quarry activity and related activities would be permitted, but that environmental review and restoration operations would be carried out upon termination of quarry activity. The Residents Association took the position that although the concrete plant was a related activity, the OCP only permitted the plant to be operated in conjunction with a quarrying activity taking place on the same parcel of land.

The Court of Appeal accepted this argument. In doing so, it declined to follow a line of cases holding that a bylaw has to be in “absolute and direct collision” with an OCP in order to be declared invalid. Giving the words “contrary to” or “at variance with” their ordinary and natural meanings, the Court held that the OCP’s long-term vision for land from which gravel be extracted is that the land be returned to its natural state once the gravel has been depleted, and that related activities must also stop when the quarrying stops. By authorizing a concrete plant to operate on a permanent standalone basis within the McLean Lake area, the city council acted “contrary to” or “at variance with” the OCP. The Court therefore found the bylaw invalid.

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