Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Planning and zoning – Judicial review – Evidence – Compliance with legislation – Standard of review – Correctness
Pucci v. North Vancouver (City),  B.C.J. No. 1001, 2010 BCSC 743, British Columbia Supreme Court, May 26, 2010, A.F. Cullen J.
The petitioners wished to renovate and stratify their existing duplex into two strata lots with an accessory rental dwelling unit in each stratified unit. The Council, however, rejected their application to rezone their property. The petitioners sought an order setting aside the Council’s decision on the basis that the Council based its determination on extraneous and/or improper grounds and because the Council failed to disclose relevant documents.
At the public hearing, the dominant issue was the applicant’s history of non-compliance with the zoning bylaws. In assessing whether the Council acted in excess of jurisdiction by considering the petitioner’s non-compliance, the court held that the applicable standard of review was correctness. The court agreed with the Council and held that the petitioner’s history of non-compliance was a relevant consideration as it addressed issues of public confidence in the integrity of the zoning process. In considering those issues, however, the court questioned whether the Council relied on evidence or information that was inadequate or incomplete as the court found this to be the real issue. The court found that the Council was also required to consider the several formally endorsed moratoriums, Council resolution and the City’s subsequent forbearance from any attempts at enforcement. This is because such factors were all matters of considerable relevance engaging the issue of what has been characterized as “rewarding bad behaviour”.
The court rejected the petitioner’s alternative argument, that the Council failed to disclose relevant documents, because the court found that the missing material was not sufficiently significant or unique to impair the petitioner’s ability to mount an adequate response or to make their case.
The court set aside the Council’s decision and remitted the matter for reconsideration.
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