DECISION  
NSUARB-PL-06-14-15-16-17  
2007 NSUARB 122  
NOVA SCOTIA UTILITY AND REVIEW BOARD  
IN THE MATTER OF THE MUNICIPAL GOVERNMENT ACT  
- and -  
IN THE MATTER OF APPEALS by HERITAGE TRUST OF NOVASCOTIA, FEDERATION  
OF NOVA SCOTIAN HERITAGE, THE HERITAGE CANADA FOUNDATION and  
PENINSULASOUTHCOMMUNITYASSOCIATIONof theapprovalof a decision byHalifax  
Regional Council on March 21, 2006, which approved a development agreement with  
United Gulf Developments Limited for a mixed-use development containing hotel and  
residential towers, commercial uses and underground parking located at the northern half  
of the block bounded by Granville, Sackville, Hollis and Salter Streets, Halifax, Nova Scotia  
BEFORE:  
Wayne D. Cochrane, Q.C., Panel Chair  
David J. Almon, Member  
Roland A. Deveau, Member  
COUNSEL:  
HERITAGE TRUST OF NOVA SCOTIA  
Ronald A. Pink, Q.C.  
David C. Wallbridge, LL.B.  
FEDERATION OF NOVA SCOTIAN HERITAGE, HERITAGE  
CANADA FOUNDATION, PENINSULA SOUTH COMMUNITY  
ASSOCIATION  
Howard M. Epstein, LL.B., MLA  
HALIFAX REGIONAL MUNICIPALITY  
Karen L. Brown, LL.B.  
Dawn Phillips, LL.B.  
UNITED GULF DEVELOPMENTS LIMITED  
Robert G. Grant, Q.C.  
David P. S. Farrar, Q.C.  
Rebecca C. Druhan, LL.B.  
HEARING DATES:  
February 5-9, 12-16, 2007; March 22 and 23, 2007  
FINAL SUBMISSIONS: April 27, 2007; May 2, 2007; June 4, 2007  
Document: 134716  
SITE VISIT:  
June 28, 2007  
DECISION DATE:  
DECISION:  
September 13, 2007  
Appellants’ appeals dismissed  
Document: 134716  
Table of Contents  
Para. No.  
INTRODUCTION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [1]  
ISSUE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [2]  
FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [3]  
December 16, 2005 Planning Staff Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [11]  
Supplementary Reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [38]  
February 24 Supplementary Report.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [39]  
March 15 Supplementary Report. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [45]  
Evidence of Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [66]  
Evidence of the Appellants.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [66]  
Robert N. Allsopp. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [66]  
Gary Porter.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [75]  
Dr. Philip Pacey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [87]  
Ronald H. McDonald. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [87]  
Carl Bray. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [103]  
Dr. Elizabeth Pacey. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [104]  
Judith Fingard. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [109]  
Evidence of HRM.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [111]  
Paul A. Sampson. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [111]  
Paul Dunphy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [123]  
Simpson McLeod. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [131]  
Ann G. Wilkie. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [142]  
Andrew W. Lynch. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [142]  
Evidence of United Gulf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [155]  
Hanqing Wu and Harry A. Baker (Wind Study Panel).. . . . . . . . . . . . [155]  
Peter M. Connor and Clay Radcliffe (Shadow Study Panel). . . . . . . . [162]  
Anne Muecke. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [167]  
Evening Session. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [168]  
Site Visit. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [169]  
ANALYSIS AND FINDINGS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [170]  
Correction of Erroneous References. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [170]  
Jurisdiction of the Board to hear this Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [171]  
Findings with Respect to the Board’s Jurisdiction. . . . . . . . . . . . . . . . . . . . . [185]  
Scope of the Board’s Review Powers: Did Council’s Decision Reasonably Carry  
Out the Intent of the MPS?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [195]  
The HRM MPS and LUB. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [213]  
Range of Arguments Raised in this Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . [213]  
“Should” and “Shall”.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [216]  
An MPS with a Variety of Themes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [220]  
Height.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [235]  
“The Vicinity of Citadel Hill”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [260]  
City-Wide Policy 6.3.2: The “Citadel Parade Square” Provision. . . . . [352]  
Document: 134716  
Heritage and Views. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [358]  
Allegedly Unfettered Discretion of Council. . . . . . . . . . . . . . . . . . . . . [370]  
Scale and Design Detail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [378]  
Complementary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [399]  
Block Pattern and Street Grid.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [429]  
Relationship Between City-Wide and CBD Provisions. . . . . . . . . . . . [442]  
Environment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [442]  
Wind.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [473]  
Wind and the Law of Nuisance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . [490]  
Shadow. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [497]  
“Testing the MPS” and the Notion of “Public Benefit”. . . . . . . . . . . . . [503]  
Barrington Street Historic District Revitalization Plan. . . . . . . . . . . . . [511]  
Credibility. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [517]  
Appellants’ Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [517]  
Respondents’ Experts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [525]  
SUMMARY AND FINDINGS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [529]  
APPENDIX A (By Page)  
Legislative Provisions Referred to in this Decision or During the Proceedings. . . . . . 225  
Municipal Government Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 225  
Heritage Property Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228  
Halifax Regional Municipality By-law E-200. . . . . . . . . . . . . . . . . . . . . . . . . . . 228  
Encroachment Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 228  
Development Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229  
1.3  
2.12 Wind Mitigation Measures.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 229  
2.5 Encroachments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229  
Applicability of Other Bylaws, Statutes and Regulations. . . . . . 229  
Municipal Planning Strategy.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229  
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230  
SECTION I  
BASIC APPROACH AND OVERALL OBJECTIVE. . . . 230  
SECTION II  
CITY-WIDE OBJECTIVES AND POLICIES. . . . . . . . . 230  
1. ECONOMIC DEVELOPMENT. . . . . . . . . . . . . . . . . . . . . . 230  
3. COMMERCIAL FACILITIES.. . . . . . . . . . . . . . . . . . . . . . . 231  
6. HERITAGE RESOURCES.. . . . . . . . . . . . . . . . . . . . . . . . 232  
7. COMMUNITY FACILITIES.. . . . . . . . . . . . . . . . . . . . . . . . 234  
8. ENVIRONMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234  
12. CITIZEN PARTICIPATION.. . . . . . . . . . . . . . . . . . . . . . . 235  
16. GENERALIZED LAND USE MAP. . . . . . . . . . . . . . . . . . 235  
SECTION III  
CENTRAL BUSINESS DISTRICT  
OBJECTIVES AND POLICIES. . . . . . . . . . . . . . . . . . . 235  
Document: 134716  
AREA DEFINITION.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235  
DEFINITION OF TERMS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 235  
1. ECONOMIC.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237  
SCHEDULE III.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238  
2. SOCIAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238  
3. CIRCULATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239  
4. HERITAGE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239  
5. OPEN SPACE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240  
6. VIEWS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 240  
7. SCALE AND DESIGN DETAIL.. . . . . . . . . . . . . . . . . . . . . 240  
SECTION IV  
HALIFAX WATERFRONT DEVELOPMENT AREA  
OBJECTIVES AND POLICIES. . . . . . . . . . . . . . . . . . . 241  
CONTEXT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 241  
3. CONSERVATION OF BUILDINGS AND SPECIAL FEATURES  
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242  
5. CIVIC DESIGN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242  
Views. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242  
Scale and Design Detail. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243  
SECTION VI  
PENINSULA CENTRE AREA PLAN  
OBJECTIVES AND POLICIES. . . . . . . . . . . . . . . . . . . 243  
8. SUB-AREA POLICIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . 243  
SECTION IX  
SPRING GARDEN ROAD COMMERCIAL AREA PLAN  
OBJECTIVES AND POLICIES. . . . . . . . . . . . . . . . . . . 244  
2. URBAN DESIGN. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244  
IMPLEMENTATION POLICIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244  
ZONING. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244  
Land Use Bylaw.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245  
LOT TO ABUT ON A STREET.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245  
PROTRUSIONS THROUGH VIEW PLANES.. . . . . . . . . . . . . . . . . . . 245  
BAND “A”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246  
CITADEL RAMPARTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246  
BUILDING PARALLEL TO A VIEW PLANE. . . . . . . . . . . . . . . . . . . . . 246  
SCHEDULE “F”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246  
Document: 134716  
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INTRODUCTION  
[1] Halifax Regional Council approved a development agreement for two 27  
storey towers (built on a single, common base, or podium) to be built in downtown Halifax,  
six blocks from Citadel Hill, and not far from the shore of Halifax Harbour. The proposed  
structure, if built, would be the second highest building in the Halifax Regional  
Municipality’s Central Business District, second only to the Maritime Centre. The decision  
was appealed by Heritage Trust of Nova Scotia, The Federation of Nova Scotian Heritage,  
Heritage Canada Foundation, and the Peninsula South Community Association.  
ISSUE  
[2]  
There is one central issue before the Board in this matter:  
!
Have the Appellants shown, on the balance of probabilities, that  
Halifax Regional Municipality’s decision to enter into a  
development agreement fails to reasonably carry out the intent  
of the Municipal Planning Strategy?  
For reasons explained below, the Board finds the answer to this question to be “no,” and  
dismisses the appeals.  
FACTS  
[3]  
In 2004, HRM tendered the former Texpark property (a multi-storey parking  
garage which had existed in Halifax for several decades) for sale and redevelopment.  
United Gulf Developments Limited was the successful bidder, eventually acquiring the  
Document: 134716  
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Texpark property from the City for a little over $5.3 million as well as the Blois Nickerson  
and Bryson Building and a portion of 1557 Granville Street.  
[4]  
The net result of these acquisitions was that United Gulf had the major part  
of the block bounded by Granville, Sackville, Hollis and Salter Streets. The portion of the  
block which United Gulf did not have was that occupied by MetroPark, a relatively new  
building which includes public parking.  
[5]  
In compliance with a requirement in HRM’s MPS and Land Use Bylaw, no  
part of the structure is visible over the Citadel ramparts from the Citadel Parade Square,  
at an eye height of 5.5 feet.  
[6]  
The MPS sets maximum heights for buildings, in certain restricted areas,  
through what are known as "view planes." The view planes can generally be described as  
triangles with two very long equal sides, beginning at a specified point on Citadel Hill, and  
extending to the harbour. There is only one of these view planes, View Plane 6, in the area  
of the subject property, and it just barely touches the southwestern corner of it (i.e., no view  
plane lies over the balance of the property and, in particular, no view plane lies over the  
site upon which it is proposed the two towers be built).  
[7]  
View Plane 6 can be imagined as a triangle with two very long equal sides,  
forming, very roughly, its north and south sides, rather like a long, narrow old fashioned  
megaphone. The mouthpiece of the megaphone is at the southeastern rampart of Citadel  
Hill, and the opening of the megaphone is just slightly offshore, roughly opposite Bishops  
Landing. View Plane 6 extends from the Citadel across Barrington Street, over the roofs  
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of the Mountain Equipment Co-op, Pacific, and the Freemason’s Hall buildings (which are  
all bounded by Barrington Street on the west and Granville Street on the east); then over  
the newer MetroPark and Four Points by Sheraton buildings (bounded by Granville Street  
on the west and Hollis Street on the east); and then passes over the Brewery Market  
buildings, and the new Salter's Gate project (the Courtyard Marriott), which was under  
construction at the time of the Board hearing into this appeal. The view plane then crosses  
over Lower Water Street, and passes over vacant land and Bishop's Landing. It ends,  
roughly at the point where the CBD boundary ends in Halifax Harbour.  
[8]  
The purchase of the Texpark property by United Gulf was not conditional  
upon any eventual approval by HRM Council of any development agreement which United  
Gulf might subsequently submit for approval, i.e., the purchase and redevelopment of the  
property were entirely at United Gulf’s risk.  
[9]  
In November 2004, United Gulf filed an application with HRM for a  
development agreement. The draft development agreement which was ultimately  
presented to Council, and approved more than a year after the initial application, included  
a hotel, residential condominium units, commercial uses, and an underground parking  
garage. More specifically, it included (as outlined in a report prepared by HRM Planning  
Staff):  
!
!
A mixed-use, two-tower development with a common 4-level podium base.  
The overall design is characterized by an asymmetrical, vase-shaped north (hotel)  
tower which “twists” slightly as it rises and a recessed, slightly curved south  
(condominium) tower.  
!
Overall building height is approximately 285 feet (27 storeys above Hollis Street and  
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26 storeys above Granville).  
!
The north tower contains a 260-room hotel. Hotel amenities, including restaurant,  
conference rooms, etc., are to be located within the podium base. The hotel  
entrance with a vehicular lay-by is located on Hollis Street.  
!
!
The south tower contains 250 condominium units with a separate pedestrian  
entrance off Granville Street with access to underground parking.  
Approximately 20,000 square feet of ground floor retail space and 42,000 square  
feet of office space, in addition to the restaurant and hotel amenities, would be  
located within the podium levels.  
!
!
Four levels of underground parking for approximately 400 vehicles and three  
vehicular loading bays within the building, with entrances/exits off Hollis Street.  
Exterior architectural materials will consist of glass curtain walls of clear and bronze  
tinted transparent glass on the towers and a mixture of stone, copper and other  
metal cladding on the base.  
!
!
Landscaping of the podium rooftop between the two towers and streetscape  
construction and amenities in accordance with HRM’s Capital District streetscape  
guidelines.  
Building encroachments into the street right-of-way at the intersection of Sackville  
and Hollis Streets, including portions of the upper levels of the hotel as well as  
entrance canopies above street level, requiring approval by Council of an  
Encroachment License.  
!
!
The use of the site for interim monthly parking prior to construction starting.  
Discharge of the existing Development Resolution for the MetroPark facility for that  
part of Lot 1A included with this proposal upon registration of the development  
agreement.  
[Exhibit H-1 (b) p. 399]  
[10]  
In January 2005, a Public Information Session with respect to United Gulf’s  
application was held at Queen Elizabeth High School. As is relatively common with  
municipalities, HRM has Planning Advisory and Heritage Advisory Committees, which  
provide advice and recommendations to Municipal Council on such matters as the United  
Gulf development agreement. The PAC and the HAC met a number of times in relation  
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to the proposed development, and received a wide range of information, including material  
from Planning Staff, as well as from supporters and opponents of the proposed  
development.  
December 16, 2005 Planning Staff Report  
[11]  
On December 16, 2005, Planning Staff of HRM prepared a report on the  
proposed development agreement, which recommended HRM approve it:  
Staff recommend approval of the proposed development and the draft development  
agreement attached to this report. The relevant objectives and policies of the MPS, when  
taken together in their entirety, support the proposal on this particular site . . .  
[Exhibit H-1(b), p. 398]  
The Board notes in passing that there are a number of sections in the MPS starting with  
Section I that sets out a broad overall objective contemplated for the area comprising the  
former City of Halifax. Section II (City-Wide Objectives and Policies) sets out a number of  
policies relating to the entire former City. The remaining sections contain secondary  
planning strategies for various regions of the former City. Section III contains policy  
objectives for the Central Business District of HRM - the Central Business District  
Secondary Planning Strategy, which includes the subject site of this appeal.  
[12]  
LUB, as well as various legislative provisions, which were referred to in this matter.  
[13] The December 16 Staff Report was prepared for consideration by the PAC  
Attached in Appendix A are various policies of the MPS and sections of the  
and by the HAC; it was, subsequently seen by HRM Council.  
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[14]  
The December 16, 2005 Planning Staff Report states that the proposed  
development is “similar in height to the tallest buildings in the CBD,” referring to Maritime  
Centre, Purdy’s Wharf Tower II and 1801 Hollis Street. The more detailed data supplied  
by Planning Staff later in their March 15, 2006 Supplementary Report shows this to be true.  
[15]  
by additional Staff Reports on February 24 and March 15, 2006.  
[16] The December 16 Staff Report comprises about 69 pages, including its  
The December 16 Staff Report is relatively detailed, and was supplemented  
various attachments. The main body of the December 16 Staff Report, and its  
attachments, include the following:  
!
!
a review of the MPS provisions;  
specific sections dealing with Tall Buildings in Halifax; Proposed Use; Scale  
and Design; Streetscape Improvements; Heritage; Views; Wind; Shadow;  
Economic; Traffic; Surface Parking; Public Meeting and Comments; Budget  
Implications; and HRM’s Financial Management Policies/Business Plan;  
!
!
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a Zoning and Location Map (Map 1);  
a View Planes and Notification Area Map (Map 2);  
a Draft Development Agreement (Attachment A);  
the text of relevant provisions of the MPS and LUB (Attachment B: Section  
II, City-Wide Objectives and Policies 1.2.2, 3.1.3, 3.2, 3.2.1, 6.1, 6.1.1, 6.2,  
6.3, 6.3.1, 6.3.2, 6.3.3, 6.4; Section III, CBD Objectives and Policies 1.1,  
1.1.1, 1.3.1, 1.4, 2.1, 2.1.1, 2.1.2, 2.1.2.1, 2.2, 3.1.2.1, 3.3.1, 3.4, 3.4.3,  
3.5.3, 3.5.3.1, 4.2, 5.2, 6.1, 6.2, 6.3, 7.1, 7.1.1, 7.1.2, 7.2, 7.2.1, 7.3, 7.3.1(I)  
and (ii), 7.5, 7.6; IMP Policy 3.5.1; LUB Policies 24, 26B, 77, 84);  
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public information meeting minutes (Attachment C);  
elevations, floor plans and details of the proposal (Attachment D1 - D17);  
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computer generated images of the proposal (Attachment E1 - E7), which  
included the following views of the proposal: the podium elevation from Hollis  
Street; a partial elevation, showing the lower parts of the building, from  
Sackville Street; a podium elevation from Granville Street; a podium detail  
from Hollis Street; a full-height view of the east side of the building as viewed  
from Hollis Street; a full-height view of the west side of the building, as  
viewed from Sackville Street; a view of the podium facade detail as seen  
from Granville Street; an aerial view of the building, from a vantage point  
over Halifax Harbour, looking northwest across Bishops Landing to the  
Citadel and beyond; a view of the building from Dartmouth, showing the  
existing Halifax skyline extending from north of Purdy’s Wharf to south of the  
Maritime Centre; a view of the building, showing George’s Island framed  
between the building and the Maritime Centre, from viewpoint “R” inside the  
Citadel; and a view of the building from the platform at the entrance to the  
Citadel.  
[17]  
The Executive Summary of the December 16 Staff Report states:  
The two towers have a unique asymmetrical design not yet seen in Halifax and which could  
not have been envisioned when the MPS was written more than twenty-five years ago. The  
Halifax MPS does not prescribe a particular design style. Instead it requires attention to  
context and the application of general design principles. Within this policy framework the  
MPS allows for evolving design trends and aesthetic tastes. The latitude for more modern  
designs varies depending upon the surrounding context. Given the varied nature of the area  
surrounding this site, Council has a high degree of latitude in determining:  
!
!
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what the desirable characteristics of this area are;  
which aspects of the area’s character should be reinforced; and  
what range of building heights and building massing are appropriate for the area.  
[Exhibit H-1(b), p. 398]  
[18]  
The December 16 Staff Report alerts Council (and its committees) to what  
Staff correctly foresaw as one of the likely areas of controversy, that being the height of the  
proposal. On this subject, the Staff Report states:  
Each time a tall building is proposed in Halifax, debate polarizes into supporters who see tall  
buildings as a sign of progress and opponents who believe they threaten the city’s intrinsic  
character. Each staff report is viewed as a litmus test to see which viewpoint staff supports.  
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The MPS does not express either view as a general policy statement. The MPS permits  
taller buildings in some locations and not in others. The MPS however does not explicitly  
identify which sites are appropriate for each type of building. The MPS presents a number  
of policies for guidelines such as the character of the surrounding area, the application of  
general design principles, proximity to Citadel Hill and the maintenance of view planes.  
The limited experience HRM has had with tall buildings has resulted in several tall buildings  
which have created harsh pedestrian environments and are unsympathetic to adjacent  
heritage assets. It is therefore not surprising that many citizens oppose taller buildings.  
Architecture and urban design, however, have come a long way towards understanding how  
to create liveable cities since the unadorned glass and concrete slabs which were  
constructed in the 1960's and 70's. There are numerous proven strategies for making taller  
buildings fit into and even enhance a city.  
Two recent approaches dominate the design of contemporary tall buildings. To date neither  
approach has been introduced to this region. The first approach emulates tall building design  
from the early twentieth century. These are point tower designs which step back and get  
narrower as their height increases, completed with an ornamental or signature top. The  
second and more recent trend has been asymmetrical or amorphous designs which seem  
to defy our expectations of what is physically possible. The United Gulf proposal represents  
this latter approach. Both approaches acknowledge the impact taller buildings have upon a  
city’s skyline and attempt to make visually interesting contributions by avoiding the simple  
rectangular shape topped by a plain mechanical penthouse. Regardless of which approach  
is taken, careful attention to detail on the lower storeys, especially at pedestrian level is  
required. [emphasis in original]  
[Exhibit H-1(b), p. 400]  
[19]  
Planning Staff stated in its December 16 Staff Report that:  
. . . Council is obligated to consider all relevant objectives and policies [of the MPS], and  
weigh their relative importance in relation to potential impacts of a proposal on the  
surrounding area and community.  
[Exhibit H-1(b), p. 400]  
[20]  
As already noted, the December 16 Staff Report contains a number of  
separate sections, including ones relatingto: proposed use, scale and design, streetscape  
improvements, heritage, views, wind, shadow, economic, traffic, surface parking, public  
meeting and comments, and budget implications.  
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[21]  
The December 16 Staff Report has the following to say with respect to  
summarizing the proposed use of the site:  
Proposed Use:  
The MPS policies for the Central Business District (CBD) call for the "development of  
mixed-use residential and commercial areas which are appropriate to the varied scale and  
character of the sub-areas of the CBD", and which "strengthen the development of the  
specific desirable characteristics of identified sub-areas of the CBD".  
This site is in Sub-area #10, "a sub-area of office and mixed-use between Hollis Street and  
the western side of Granville Street, and extending from Salter Street to Prince Street". In  
addition the MPS encourages the "creation of a lively, vibrant environment" through street  
level uses such as retail and restaurants along with attention to street level design  
treatments. Currently this block of Hollis and Granville Streets has relatively little pedestrian  
activity, display space or entrances. Numerous entrances, glass storefronts and canopies  
in the proposed development will enhance the area and increase pedestrian activity.  
[Exhibit H-1(b), p. 401]  
[22]  
Under the heading “Scale and Design,” the December 16 Staff Report  
contains the following:  
The MPS encourages attention to "design details such as massing, texture, materials, street  
furniture, and building lines." The MPS also encourages development to be compatible with  
the traditional city block pattern and discourages block consolidation and street closures to  
accommodate development.  
The area includes a broad mix of historic buildings and contemporary buildings with no  
dominant character. Buildings in the immediate area range in height from three storeys  
(Cooper and McDonald, 1669 Granville Street; Brooks Travel, 5181 Sackville Street) to 13  
storeys (Centennial Building, Sackville & Hollis; Joseph Howe Building, Prince & Hollis) as  
compared to the proposed 27 storey (approximately 285 feet) development. For comparative  
purposes the proposed development is similar in height to the tallest buildings in the CBD  
such as Maritime Centre, Purdy's Wharf Tower II and 1801 Hollis Street (at Hollis, Duke and  
Upper Water Streets).  
As illustrated in the attached drawings and model photographs (Attachments D and E),  
building mass and scale will be controlled by:  
!
a three storey base (podium) which is consistent with smaller scale buildings in the  
area;  
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!
segmenting the podium into distinct, identifiable sections;  
creating a series of protrusions and recesses on the face of the podium below the  
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residential tower, which breaks up the building mass and contributes to the human  
scale of the project;  
!
!
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utilizing numerous building entrances/exits and canopies at street level which add  
to a pedestrian-scaled streetscape;  
proposing the two-tower design itself, thereby creating the space between the towers  
instead of one massive tower over the entire site;  
proposed materials and texture are of high quality (glass, copper and masonry in  
various shades/appearances);  
street furniture and sidewalk reconstruction will comply with the Capital District  
streetscape guidelines; and  
no changes are proposed with respect to the size or shape of the block and the base  
of the proposed building is generally constructed up to the sidewalk which is  
traditional to Halifax architecture.  
As required by the MPS, this project has [paid] a great deal of attention to scale, massing,  
materials, street level treatment and the city's block pattern. The unique and dramatic design  
of the two towers certainly could not have been envisioned when the MPS was written more  
than twenty-five years ago. Having said that, the MPS is not intended to prescribe a  
particular design style. Provided the design principles outlined in the MPS are met, the MPS  
allows for evolving design trends and aesthetic tastes. The latitude for more modem designs  
will vary depending upon the surrounding context. Given the varied nature of this area and  
its surroundings, council has a high degree of latitude in determining:  
!
!
!
what the desirable characteristics of this area are;  
which aspects of the CBD's character should be reinforced; and  
what range of building heights and building massing are appropriate for the area.  
[Exhibit H-1(b), pp. 401-402]  
[23]  
The December 16 Staff Report contains the following with respect to  
streetscape improvements, in the context of the proposed development:  
Streetscape Improvements:  
MPS policies call for landscaping and streetscape elements to improve the physical and  
visual environment of the CBD. The applicant will reconstruct the sidewalk in accordance  
with Capital District guidelines. Street level amenities such as street trees, benches, bicycle  
racks and garbage receptacles will be provided. Rooftop landscaping above the podium will  
include vegetation suited to rooftop environments enabling this space to be utilized by  
building occupants/guests. This also creates an attractive view when seen from other  
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buildings in the area.  
The Halifax Short Term Pole Free Zone, adopted in 1977, provided cost-sharing for the  
placement of electrical and telecommunication utilities underground. In this case, however,  
the applicant will assume the costs associated with undergrounding electrical and  
telecommunication utilities adjacent to the development. This will complete the CBD portion  
of the Short Term Pole Free Zone at no additional cost to HRM.  
[Exhibit H-1(b), p. 402]  
[24]  
The Heritage section of the December 16 Staff Report includes references  
to buildings which Planning Staff thought could be considered “adjacent” within the  
meaning of the MPS. The significance of the term “adjacent” was a matter of interest  
throughoutHRM’s reviewof the proposeddevelopment agreement, and remained a matter  
of dispute in the hearing before the Board:  
Heritage:  
MPS policies related to heritage properties call for the exterior architectural design of new  
buildings to be sensitive and complementary to any adjacent ones of historic or architectural  
significance through:  
!
!
"encouragement of sensitive and complementary architecture in their immediate  
environs" and;  
"the careful use of materials, colour, proportion, and the rhythm established by  
surface and structural elements should reinforce those same aspects of the existing  
buildings".  
In considering the relative weight and importance of these policies, Council may wish to  
consider:  
!
the degree of historic significance of adjacent buildings (eg. landmark ones versus  
ones of lesser significance);  
!
!
their proximity to the subject site; and  
their visibility in relation to the site.  
The historic buildings which can be considered adjacent to the subject site are those fronting  
on Barrington Street, some of which also back onto Granville Street. While the historic  
character of many of the buildings on Barrington Street is evident from vantage points along  
that street, the rear portions backing onto Granville Street have less heritage significance.  
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In general, the rear facades do not have heritage details which create visual interest. In fact  
the rear facades have fewer windows and doors which contributes to the general lack of  
street level interest and activity in this area.  
It might also be argued that the site is adjacent to Founders Square, the Johnson Drug  
building, the Halifax Club and Keith's Brewery. All of these buildings however are physically  
and visually separated from the subject site by modem, non-registered buildings such as the  
Centennial building, Radisson Hotel, MetroPark, Ralston Building and Salters Gate.  
The proposed building avoids the use of grey concrete which has been common to many tall  
buildings in Halifax. Several traditional materials (stone, copper and glass) are used instead.  
These materials are used in a way which does not mimic or replicate traditional architecture  
but which are, nevertheless, complementary.  
[Exhibit H-1(b), pp. 402-403]  
[25]  
The Board noteshere that the Appellantsrepeatedly, and strongly, disagreed  
with the point of view expressed by Planning Staff in the paragraph above quoted: it was  
repeatedly submitted on behalf of the Appellants that the MPS requires that new buildings  
mimic or replicate traditional architecture.  
[26]  
The December 16 Staff Report has a number of portions which deal with the  
subject of views, particularly from the Citadel:  
Views:  
The MPS protects public views in the following ways:  
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!
Ten view planes have been established from the Citadel (see Map 2);  
Structures are not permitted to be seen over the Citadel ramparts from specific  
vantage points in the Citadel parade square;  
!
The height of buildings in the immediate vicinity of the Citadel are controlled in an  
attempt to ensure harmony and order among buildings which are in the foreground  
view; and  
!
Views to the harbour along east-west streets are protected.  
These view protection measures, in relation to the subject proposal, are elaborated below.  
View Planes:  
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The southernmost comer of the site is intersected by View plane #6. The proposed building  
does not protrude through and is not parallel to the view plane. The proposal meets this  
policy.  
Views From Within the Citadel Parade Square:  
Buildings cannot be visible over the fortifications from within the Citadel's inner parade  
square. The proposal meets this policy.  
Building Heights in Vicinity of Citadel:  
The MPS sets "low to medium rise" height limits "immediately adjacent to Citadel Hill and  
increasing with distance therefrom." Given that the proposed building is not immediately  
adjacent to Citadel Hill and is at some distance (six blocks) a taller building may be  
considered on this site.  
A September 21, 1984 staff report on the subject of building heights in the vicinity of the  
Citadel indicated that the intent of establishing height controls in this vicinity was to; "to seek  
a measure of harmony and order among building heights in the foreground of the view".  
While the project will clearly be visible from the Citadel, it is six blocks away. Therefore, it  
is not in close proximity to the fortress and despite its scale, cannot be considered a  
foreground view which intrudes on the Citadel.  
Panoramic Views:  
The proposed project is clearly large, highly visible and will block some panoramic views of  
the harbour (Attachment E). Having said that, the Halifax MPS offers no general protection  
of panoramic views. Instead, it protects the specific individual views summarized above. In  
a 1983 Utility and Review Board decision on A.T.C. Properties Ltd. (Cambridge Suites on  
Brunswick Street), the Board stated:  
It appears clear that the City having adopted its view plane legislation did not  
intend to preserve a generally open panoramic view of the harbour from  
Citadel Hill.  
Views Along East-West Streets  
The MPS states that; "views of and from the harbour along the east-west streets should be  
conserved." The proposed development abuts Sackville Street and includes minor  
encroachments into the street right-of-way which do not jeopardize the overall views along  
Sackville Street.  
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A canopy designed to protect pedestrians from weather and wind elements,  
encroaches approximately 5 feet over the Sackville Street sidewalk.  
The upper storeys of the hotel tower encroach over a portion of the Sackville Street  
sidewalk to accommodate the towers twisting design. The maximum encroachment  
at the penthouse level is 8' over the Sackville Street sidewalk.  
[Exhibit H-1(b), pp. 403-404]  
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[27]  
The December 16 Staff Report also contains sections on the issues of the  
wind and shadow effects of the proposed structure:  
Wind:  
The MPS calls for acceptable wind levels on sidewalks and public open spaces. Wind tunnel  
testing was done based upon the former Texpark building in place, and based upon the  
proposed development, with wind mitigation measures in place. The study concluded that  
the proposed development (with mitigation measures) did not significantly increase wind  
speeds in the area. Specific wind mitigation measures at street level, such as canopies, wind  
screens, landscaping and other measures (primarily on Sackville Street) will be required and  
should be determined at the detailed design stage. The draft development agreement  
requires that any mitigation measures which encroach into the street right-of-way or which  
are not in keeping with the conceptual design be approved by Council as a non-substantive  
amendment to the proposed agreement.  
Shadow:  
The MPS calls for "a minimal amount of shadow cast on public open spaces." The sun's  
path was modelled for the solstices (December 21st and June 21st) as well as the equinoxes  
(March 21st and September 21st). Shadow effects on public open spaces (Sackville Landing,  
Parade Square/ St. Paul's Church) and adjacent streets/sidewalks were reviewed. The  
shadow modelling found that:  
!
Shadows from the proposed towers will have minimal impact on Sackville Landing  
and the waterfront in the summer months. On June 21st, shadows will not impact  
Sackville Landing at all and only reach the boardwalk area north of Bishop's Landing  
after 7 p.m.  
!
!
!
On December 21st, when shadows are longest, they reach Sackville Landing at  
approximately 2:45pm and combine with those of other buildings and continue along  
the boardwalk area.  
On December 21st, shadows reach Parade Square and St. Paul's Church in the early  
to midmorning but leave by approximately 10:30 a.m. Shadows do not reach this  
location in spring, summer or fall.  
On March 21st and September 21st shadows from the hotel tower reach Sackville  
Landing in late afternoon (after 3 p.m.), combining with shadows already present  
from buildings in the area. Shadows from the proposed towers persist into the early  
evening, reaching the waterfront boardwalk area north of Bishop's Landing.  
Shadows on streets and sidewalks during different parts of the day are common in a  
downtown setting. As the MPS refers to "public open spaces" and not to streets/sidewalks,  
shadows on streets/sidewalks caused by buildings within the CBD are expected and  
generally acceptable. Based on the shadow modelling, there would be minimal shadowing  
on public open spaces and the proposal meets the intent of Policy 7.6.  
[Exhibit H-1(b), p. 404]  
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[28]  
The December 16 Staff Report contains the following summary in relation to  
the economic objective of the CBD:  
The economic objective of the CBD is "the strengthening of the Halifax CBD as a dynamic  
focus of governmental, commercial, retail, residential, recreational, and entertainment uses".  
This objective is reinforced by various policies which encourage a substantial increase in  
retail and commercial floor space, the provision of a wide range of consumer facilities and  
the development of major projects such as hotels. The proposal includes a major hotel,  
offices, retail and high density residential uses which are appropriate for the CBD.  
[Exhibit H-1(b), p. 405]  
[29]  
The December 16 Staff Report summarizes the effects upon traffic from the  
proposed development as follows:  
Traffic impacts from the development will be minimal, given the nature of traffic in a  
downtown setting. Vehicular entrances/exits, loading bays and lay-bys will be located off  
Hollis Street. Loading and unloading will be off-street and will not be permitted during  
morning and afternoon peak traffic hours. Pedestrian warning devices such as signs or  
pavement markings will be included in the loading area.  
[Exhibit H-1(b), p. 405]  
[30]  
The December 16 Staff Report recommended that the former Texpark site  
be used as a parking lot until construction is underway:  
The MPS Provides [sic] for the temporary use of land as a surface parking lot. The draft  
development agreement allows the site to be used for surface parking prior to the  
commencement of building construction.  
[Exhibit H-1(b), p. 405]  
[31]  
Lastly, the December16 Staff Report notes, in relation to budget implications,  
the assumption by the Developer of certain municipal costs associated with development:  
The applicant has agreed to assume the costs of the civil work associated with the  
undergrounding of electrical and telecommunication utilities adjacent to the development, the  
costs of reconstructing the sidewalk in accordance with the Capital District standards for  
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Barrington Street developed through its Urban Design Project and also provide street level  
amenities such as street trees, benches, bicycle racks and garbage receptacles.  
[Exhibit H-1(b), p. 405]  
[32]  
In the course of the various meetings of the PAC and HAC, at which the  
proposal was discussed, certain of the issues which eventually became matters of dispute  
before the Board were explored. For example, Paul A. Sampson (a Planner with HRM,  
and principal author of the Planning Staff Reports to Council) told the PAC, at a meeting  
on January 16, 2006, that “it is staff’s opinion that there is no panoramic view protection  
of the harbour from Citadel Hill.” The PAC had also heard on this subject from Philip  
Pacey (who took a strongly contradictory view), and thereafter decided to ask him for  
clarification as to why he did not agree with the Staff view.  
[33]  
Ultimately, the PAC decided to recommend approval of the project. The  
HAC, on the other hand, decided to recommend against approval. In its recommendation,  
HAC suggested that the terms “vicinity,” “adjacent,” or “significant” as they relate to  
“Heritage Properties and Heritage Policies within the Municipal Planning Strategy and  
Regional Plan” should be clearly defined. Otherwise, said the HAC, the words would be  
. . . open to the interpretation of the Nova Scotia Utility and Review Board . . .  
[Exhibit H-1(b), p. 465]  
[34]  
The Heritage Advisory Committee suggested that clear definitions would  
“leave little room for interpretation either by staff, Council, HAC or the Nova Scotia Utility  
and Review Board.” The Board here notes that, whatever amendments (if any) HRM may,  
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in its discretion, choose to make in future with respect to the definitions referred to by the  
HAC, the MPS which the Board must apply in the present proceeding is, and remains, that  
which was in existence at the time of the HAC recommendation.  
[35]  
At a meeting in January 2005, the PAC recommended approval by Regional  
Council of the development agreement, provided that the subject site could not be used  
on an interim basis for parking.  
[36]  
The proposal then moved to the stage of public hearing. In typical planning  
matters, a public hearing is conducted by Council often in less than an hour. Immediately  
following the public hearing (i.e., as soon as the public hearing terminates), Council returns  
to its normal session and votes upon the proposal. In the present instance, the public  
hearing was much more extensive: after receipt of the PAC and HAC reports, Regional  
Council’s public hearing occurred on two separate days, February 28 and March 7, 2006.  
On one occasion (February 28, 2006), Council voted to extend its hearing to 11:00 p.m.  
[37]  
The public hearing concluded on March 7, 2006. Thereafter, Council  
received further information from United Gulf, on wind and shadow studies which  
subsequently became a subject of an application by the Appellants to the Supreme Court,  
pointing to, among other things, the alleged impropriety of receiving the information after  
the completion of the public hearing. As noted elsewhere in this decision, the Court  
ultimately dismissed the Appellants’ application.  
Supplementary Reports  
[38]  
As already noted, the December 16 Staff Report was unusually lengthy, but  
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HRM Staff ultimately prepared two additional Supplementary Reports, one dated February  
24, 2006, and the other shortly thereafter, dated March 15.  
February 24 Supplementary Report  
[39]  
Planning Staff on the recommendations to Council from the HAC and PAC.  
[40] The February 24 Supplementary Report did not comment directly on HAC’s  
The February 24 Supplementary Report was, in essence, a commentary by  
recommendation against approval, but it did affirm Planning Staff’s continued  
recommendation in favour of the project, i.e., Planning Staff indirectly disagreed with the  
HAC recommendation. With respect to the HAC recommendation in relation to defining  
words, however, Planning Staff specifically agreed with the HAC:  
. . . that a review of the Halifax Municipal Planning Strategy policies with respect to the words  
“adjacent,” “vicinity” and “significant” is appropriate. Urban design issues related to heritage,  
along with other significant urban design issues will be considered in the proposed Urban  
Design Study. Staff will make a recommendation to Council with respect to the awarding of  
a contract for this work in the near future. The draft Regional Plan contains additional  
heritage policies.  
[Exhibit H-1(b), p. 559]  
[41]  
With respect to the PAC’s recommendation against approval of interim  
parking on the site, the February 24 Supplementary Report stated that Planning Staff had  
“no concerns or comments” as to whether interim parking was allowed or not.  
[42]  
The February 24 Supplementary Report told Council that it had three options  
in relation to the proposed development agreement: option one, it could approve it; option  
two, it could refuse to enter into the agreement; or option three, it could approve the  
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development agreement with modifications:  
1.  
Council may approve the development agreement. If this course of action is taken,  
Council should also discharge the existing development resolution for Lot1A as it  
pertains to this proposal (northwest portion of Lot1A only). This is the recommended  
course of action.  
2.  
Council may refuse to enter into the development agreement and, in doing so, must  
provide reasons based on conflict with existing MPS policy. Although this is not the  
alternative recommended by staff, Council has the discretion to choose this option  
for the reasons described above. This is the recommended course of action by the  
Heritage Advisory Committee.  
3.  
Council may choose to approve the development agreement with modifications  
which are acceptable to the applicant. Such modifications may require further  
negotiations with the applicant and/or revisions to the schedules attached to the  
agreement. This is the recommended course of action by the District 12 Planning  
Advisory [Committee] with respect to the interim parking lot which is specifically  
referenced in clause 2.11 of the draft development agreement. [emphasis in original]  
[Exhibit H-1(b), p. 560]  
[43]  
The February 24 Supplementary Report recommended the first option, i.e.,  
approval of the development agreement without change. With respect to the related third  
option, Planning Staff pointed out that approval with modifications was the PAC’s  
recommended course of action, in that the PAC wanted the interim parking lot referred to  
in the draft development agreement deleted. As already noted above, Planning Staff  
indicated that they had no objection to such deletion.  
[44]  
If Council refused to enter into the development agreement, Planning Staff  
said that Council:  
. . . must provide reasons based on conflict with existing MPS policy. Although this is not the  
alternative recommended by staff, Council has the discretion to choose this option for the  
reasons described above. This is the recommended course of action by the Heritage  
Advisory Committee. [emphasis in original]  
[Exhibit H-1(b), p. 560]  
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March 15 Supplementary Report  
[45]  
At the conclusion of the public hearing, members of Council had asked  
PlanningStaff for additional information and detailsrespectingthe proposed development.  
To comply with these requests, Planning Staff prepared a second Supplementary Report,  
dated March 15, 2006, for use at Halifax Regional Council’s meeting on March 21, 2006.  
The additional information and details requested are specifically identified in the March 15  
Supplementary Report and include:  
!
the applicability of general and specific MPS policies (Councillor Sloane);  
staff’s assessment of the wind and shadow studies (various);  
!
!
why wind and shadow studies are not undertaken by HRM (Councillor McClusky);  
. . .  
!
Halifax MPS policies on building height limits and view planes and their history  
(various);  
!
visibility of proposed buildings from within the Citadel Parade Square and from  
Barrington Street (Councillor Younger);  
!
!
how the proposed building heights compare with those of other buildings (various);  
previous staff interpretations of MPS policies and NSURB decisions related to  
projects such as the Midtown Tavern site (Councillor Younger);  
!
!
what the term “adjacent” means in the context of the MPS (Councillor Younger);  
whether or not the MPS compels Council to support projects which improve  
economic opportunity within the CBD (Councillor Younger);  
!
!
the capacity of municipal service systems to support the proposed development and  
whether there are economies of scale in comparison to other locations (various);  
why a lay-by access arrangement is supported by staff for the proposed hotel  
component but was not for other cases such as the Mariott Hotel (Councillor  
Sloane);  
!
whether or not the proposed development incorporates principles of “environmentally  
sustainable” building design (Councillor Harvey).  
[Exhibit H-1(b) p. 563]  
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[46]  
As the Board has already noted, the December 16 Staff Report was  
unusually long and detailed, with a number of attachments. At ten pages, not counting its  
extensive attachments, the March 15 Supplementary Report is also relatively long and  
detailed — indeed, longer than typical planning reports. The attachments include:  
!
!
!
Attachment A (entitled “Texpark Wind Study - Summary”), which is four  
pages long;  
Attachment B (entitled “Shadow Analysis for 1591 Granville Street (formerly  
Texpark)”), which is three pages long; and  
Attachment C (headed “PublicHearing- CityCouncil Amendments to Zoning  
By-law Re: Views from Citadel Hill,” minutes dated 1973), which is 13 pages  
long.  
[47]  
With respect to the matter of general and specific MPS policies (which  
became the subject of considerable evidence and submissions before the Board), the  
March 15 Supplementary Report states, in part:  
. . . any application made under a municipal planning strategy must be considered in light of  
the entire MPS and staff considers the entire MPS in forming a recommendation. However,  
MPS documents may contain many policies, some of which are general to an area and some  
of which are more specific. The Halifax MPS contains policies which are applicable “City-  
Wide”, which are general in nature, and policies that apply specifically to the CBD. The MPS  
policies that are referenced and attached to the December 16, 2005 staff report are in  
respect to both matters of general planning interest (City-Wide), and area-specific (CBD).  
In reference to the specific MPS sections and policies identified by Councillor Sloane, the  
overall objective of the MPS to preserve, create and maintain an interesting and livable city  
developed at appropriate scale and density, along with the Section on the environment, serve  
as a basis for preparing more detailed plans and policies which may apply to more specific  
areas or issues. Although these sections and policies of the MPS are considered in  
evaluating applications, the more specific policies applicable to detailed plan areas such as  
the CBD, are in staff’s opinion more relevant. Staff have concluded that, on balance, the  
proposal is consistent with the MPS.  
[Exhibit H-1(b), pp. 563-564]  
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[48]  
With respect to wind and shadow studies, the March 15 Supplementary  
Report states:  
Copies of the May 4, 2005 wind study prepared by RWDI Inc. are included in Council's report  
package. In addition, the applicant has provided a summary which has been reproduced as  
Attachment A of this report. Additional details on the staff’s analysis of the wind study is  
provided below.  
Wind Study  
The wind study was considered by staff in evaluating the proposal against MPS Policy 7.5  
(Section III) which states:  
"the design of new developments in the CBD should be such that normal  
wind levels on outdoor pedestrian routes and in public open spaces will be  
acceptable."  
The intent of this policy is to avoid unacceptable wind conditions associated with  
development proposals through the use of mitigative measures in the building design. Staff’s  
assessment of the wind study findings is based on the following assumptions:  
!
A building of significant height and scale will ultimately be constructed on this site  
and any building will result in wind impacts and/or be impacted by localized wind  
conditions.  
!
!
The subject site is in a CBD setting, characterized by a concentration of buildings of  
significant size constructed close together.  
The presence of taller buildings and general orientation of the CBD area (east/west  
and north/south street grid), contributes to the localized wind conditions in the area.  
Wind tunnel testing allows for the identification of problem areas and the incorporation of  
mitigative solutions. Many existing buildings in the CBD, such as Maritime Centre, were  
constructed prior to the MPS and did not undergo rigorous wind testing and incorporation of  
mitigation measures.  
In this case, the RDWI study concluded that:  
!
!
In some locations, the presence of the proposed building would slightly improve wind  
conditions over the existing condition while in others, conditions slightly worsened.  
The proposed development (with mitigation measures) would not significantly  
increase wind speeds in the area and therefore, impacts from the proposed building  
would be minimal.  
The mitigation measures identified in the wind study are conceptual and include such  
features as canopies, wind screens, landscaping and other measures (primarily on Sackville  
Street). Final design is to be determined at the detailed design and permit stage. Any  
mitigation measures which encroach into the street right-of-way or which vary from the  
conceptual design will require further approval by Council. As the design calls for a  
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significant degree of pedestrian interaction between the proposed building and abutting  
streets, it is in the developer's interest to ensure that any wind mitigation measures are both  
effective and aesthetic.  
Shadow Study  
A summary of the shadow study prepared by the applicant is provided as Attachment B to  
this report. The study was considered by staff in evaluating the proposal against MPS Policy  
7.6 (Section III) which states:  
"the design of new developments in the CBD should be such that there will  
be a minimal amount of shadow cast on public open spaces.”  
In contrast to Policy 7.5 (wind impacts), Policy 7.6 is concerned with impacts on public open  
spaces and does reference "pedestrian routes". The reasoning is that, building shadows on  
sidewalks and streets are acceptable in CBD settings due to the pattern of buildings being  
constructed up to the sidewalk (street line). With regard to the shadow impacts on Citadel  
Hill, the study concludes that:  
!
!
On June 21st, the proposed development does not shadow the citadel.  
on March 21st and September 21st, the proposed towers cast a shadow on the east  
side of the Citadel following sunrise for approximately 45 minutes.  
Therefore, the shadows from the proposed towers would have minimal impact on Citadel Hill.  
[emphasis in original]  
[Exhibit H-1(b) pp. 564-565]  
[49]  
With respect to the matter of building heights in relation to Citadel Hill, the  
March 15 Supplementary Report contains detailed references to various positions taken  
in the 1970's by those who advocated protection of panoramic views, and the City of  
Halifax, which “supported a lesser number of protected views.” For the purposes of the  
present proceeding, the Board specifically ruled that it would not give any weight to  
evidence about positions allegedly taken by various persons in the discussions leading to  
the adoption of the MPS policy in the 1970's and the 1980's (including the 1984 Staff  
Report), and in particular, that it would not give any weight to evidence about what Council  
was attempting to achieve (according to the recollection of those involved at that time)  
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when it chose to adopt particular provisions in the MPS [on this point, see, for example,  
Mahone Bay Heritage and Cultural Society v. Town of Mahone Bay and 3012543 Nova  
Scotia Limited, [2000] N.S.J. No. 245(C.A.)].  
[50]  
Accordingly, the Board will not here review, or analyse, any such references  
within the March 15 Supplementary Report. The Board does, however, note references  
in the report to the inclusion in the MPS in the 1970's and 1980's of particular new  
provisions:  
. . .  
!
!
!
In 1978, the new Municipal Planning Strategy and Land Use by-law was adopted for  
Halifax, which incorporated the 10 view planes adopted in 1974.  
Policies in support of the view plane regulations and heritage properties were  
adopted with the 1978 MPS & LUB.  
In order to provide a higher degree of control over development in the CBD area, the  
MPS limits any “as-of-right” development within the CBD to a height of 40 feet.  
Anything above this height may only proceed by development agreement.  
!
!
In 1984-85 . . . City Council chose to adopt specific building height limits only for an  
area along Brunswick Street (Band “A”).  
. . . City Council adopted Policy 6.3.2 - Section II. This stipulates that no  
development shall be permitted that is visible over the Citadel ramparts as viewed  
from an eye-level of 5 feet, six inches within the Citadel Parade Square. This  
viewing height is based on a person of “average” height (ie. 5 feet 9 inches).  
The proposed United Gulf development does not protrude through or encroach into a  
protected view plane, nor would it be visible from within the Citadel as per Policy 6.3.2.  
Although a small area in the southwestern corner of the subject property falls under View  
Plane #6, the proposed building at that location would fall below the view plane and therefore  
complies with the MPS. [emphasis in original]  
[Exhibit H-1(b), pp. 566-567]  
[51]  
With respect to previous Planning Staff and NSURB interpretations of the  
MPS (in particular, the Midtown appeal), the March 15 Supplementary Report states, in  
part:  
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In recommending refusal of the Midtown proposal, staff indicated that:  
!
!
!
the height of the proposed building did not reflect the historic and traditional scale of  
development in the vicinity of the Citadel;  
the height of the building was not complementary to the adjacent heritage building,  
the Halifax Visiting Dispensary Building; and  
the height of the proposed building was too high relative to other buildings in this part  
of the Central Business District, as development in the immediate area of the site  
was low rise in nature.  
In rendering its decision on Midtown, the NSURB agreed with staff’s interpretation of the  
MPS. The Board’s decision is consistent with a 1984 Municipal Board (now NSURB)  
decision to uphold a City of Halifax Council decision denying an application by A.T.C.  
Properties on what is now the site of Cambridge Suites at Brunswick and Sackville Streets.  
Both the Midtown and A.T.C. decisions involved a determination of what can reasonably be  
considered to be in the “vicinity” of Citadel Hill. In both cases, the NSURB considered the  
proximity of properties to view planes and Citadel Hill and determined that buildings of such  
height in such locations would not be consistent with MPS policies related to heritage  
properties and views from Citadel Hill. However, the Board’s decision in each case did not  
preclude the approval of tall buildings in other locations of the CBD.  
. . .  
In the case of the Midtown appeal, the Board considered the matter of appropriate building  
heights in the vicinity of Citadel Hill concluding:  
“The Board agrees with Mr. Porter that a very relevant question is what is  
a reasonable height of a building that will not overpower the Citadel. On  
cross-examination, he said it might be 12 storeys at this location. In any  
event, Mr. Porter’s opinion was, and the Board agrees, that a building which  
stands 259 feet above sea level, one city block from Citadel Hill, is not  
reasonably consistent with the policy directions in the M.P.S.”  
In recommending approval of the current (United Gulf) application, staff considered the MPS  
policies and past decisions of the NSURB and have concluded that the subject property, six  
blocks away and down slope from Brunswick Street and the base of Citadel Hill, is not in the  
vicinity of Citadel Hill and, therefore, not subject to same consideration of the two cases cited  
above. This position is consistent with previous staff recommendations and decisions of the  
NSURB. [emphasis in original]  
[Exhibit H-1(b), pp. 567-568]  
[52]  
On the matter of height, the March 15 Supplementary Report contains  
additional detailed information, including the following two tables (Exhibit H-1(b), pp. 568-  
569):  
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TABLE 1  
Citadel Heights - Point Elevations:  
Elevation  
(above sea level)  
Topmost line of Earthworks on Citadel Ramparts  
Viewing positions (B, C, E, R)  
Range: 238 ft. - 248 ft.  
Range: 208.6 ft. - 240 ft.  
Table 2 identifies the approximate heights of various buildings in the CBD. For ease of  
comparison, the examples include some of the tallest buildings in the CBD as well as some  
lower buildings within close proximity to the subject site. These heights are approximate  
based on the most accurate information available to staff. Tables 1 & 2 indicate that a  
number of buildings in the CBD are above the elevation of citadel hill. [underlining in original]  
TABLE 2  
Building Heights - Halifax CBD (Approximate)  
Building  
# of Floors1  
Height (ft.)  
(lowest to highest  
points)  
Elevation (above  
sea level)  
Maritime Centre  
Purdy’s Wharf II  
23 (office)  
22 (office)  
310  
347  
304  
292 (grade)  
304 (water)  
1801 Hollis St.  
22 (office)  
290  
300  
United Gulf  
(Texpark)  
27(residential/hotel)  
*(incl. penthouse)  
285  
317  
Founders Square  
15  
14  
205  
185  
221  
215  
Centennial Bldg.  
1
Note: The number of building storeys does not coincide with overall building  
heights due to differences in floor heights of residential/hotel buildings versus office  
buildings. Office buildings typically have a higher floor to floor height (12 to 13 feet,  
depending on the building’s age and design). Residential and/or hotel buildings typically  
average 9 feet per storey  
[53]  
The March 15 Supplementary Report also contains the following comments  
under the heading “Interpretation of ‘Adjacent’ ”:  
In both the A.T.C. and Midtown decisions, the proposals were deemed to be “adjacent” to  
heritage properties (“adjacent” is found in policy 7.2.1, Section III). In the A.T.C. case, the  
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Board found that the proposal could be considered adjacent to both the School Board  
Building and the Halifax Visiting Dispensary Building which was over a block away. In the  
Midtown decision, the Board indicated that:  
“. . . in the context of the M.P.S. in the present instance, “adjacent” refers to  
a building which lies “close to or near” another building, and not necessarily  
adjoining or touching.”  
The December, 2005 staff report indicates that Council has discretion in determining the  
relative weight of the applicable heritage policies given the location of the subject property  
within the CBD (adjacent to the Barrington block with historic buildings, and adjacent to the  
block opposite east having no historic buildings) in considering this proposal. The Heritage  
Advisory Committee has recommended that Council request staff to review the MPS in order  
to specifically define terms such as “adjacent”, “vicinity”, and “significant” as they apply to  
heritage properties. Staff have indicated that this can be undertaken in conjunction with the  
Capital District Urban Design project. [emphasis in original]  
[Exhibit H-1(b), p. 569]  
[54]  
After consideration of the March 15 Supplementary Report, Council decided  
on March 21 (by a 15:5 vote) to enter into the development agreement with United Gulf.  
At the same time, it decided to:  
. . . Subject to signing of the development agreement, approve in principle the  
encroachments as shown on the Schedules of Attachment “A.” (Staff will bring this item back  
to Council at the appropriate time . . .  
[Exhibit H-1(a), p. 390]  
[55]  
In April 2006, the various Appellants in the present proceeding (the Heritage  
Trust of Nova Scotia, The Federation of Nova Scotian Heritage, the Heritage Canada  
Foundation, and Peninsula South Community Association) filed Notices of Appeal with the  
Board, appealing HRM’s decision. While each of the Appellants filed separate Notices of  
Appeal, the grounds for appeal were identical in their wording, alleging the following  
grounds:  
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1.  
HRM Council’s decision to approve the development agreement cannot reasonably  
be said to carry out the intent of the relevant municipal planning strategy. Specific  
policies which are in contravention include, but are not limited to:  
(I)  
The Overall Objective of the Municipal Planning Strategy, Section I which is  
stated to be “The enhancement of the physical, social, and economic well-  
being of the citizenry of Halifax through the preservation, creation, and  
maintenance of an interesting and livable City, developed at a scale and  
density which preserve and enhance the quality of life.”  
(ii)  
Policy Objective 6, Heritage Resources, Section II, including policy 6.1, 6.2,  
6.3, and 6.4 in that the height, scale, and design of the development  
proposal are contrary to the requirements of these policies, in particular:  
a.  
b.  
c.  
d.  
the proposal does not “make every effort to preserve or restore”  
views from Citadel Hill”,  
the proposal does not “reflect the historic and traditional scale of  
development”,  
the agreement would deem that Policy 6.3.2 waives “any other  
height or angle controls”,  
the proposal would not be “sensitive and complementary” to the  
areas, sites, streetscapes, structures and/or conditions” in its  
immediate environs.  
(iii)  
(iv)  
Policy Objective 6. Views, Section III including policy 6.2 in that the proposal  
is not “visually attractive” from Citadel Hill nor would it maintain, conserve  
or enhance “views of and from the Harbour along the east-west streets.”  
Policy Objective 7. Scale and Design Detail, Section III, including policies  
7.1.2, 7.2, 7.2.1, 7.3, 7.4, 7.5, and 7.6 in that the proposal does not “reflect  
the architectural, heritage and topographical characteristics of the CBD”;  
The “architectural form and scale” of the proposal would not be “compatible  
with the block pattern”’ the proposal would not reinforce the character of the  
CBD due to its “massing, texture, material . . . and building lines”; the  
proposal would not complement or reinforce adjacent buildings “designated  
as being of historic significance or important to the character of the CBD”;  
the proposal would not “control the height of new development within the  
CBD in the vicinity of Citadel Hill”; the proposal does not “respect the  
proportion and character of the existing Barrington Street streetscape”;  
“wind levels on outdoor pedestrian routes” would not be “acceptable”; the  
proposal would cast more than “a minimum amount of shadow” on the  
Citadel, Sackville Landing, and the waterfront, all being “public open  
spaces”;  
(v)  
Policy Objective 2. Social, Section III, including policy 2.2 in that the  
proposal would not be appropriate to the “scale and character” of sub-area  
10, the Granville Street Area;  
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(vi)  
Policy Objective 3. Circulation, Section III in that the proposal, as a  
generator of wind would not give “priority to the pedestrian”;  
(vii)  
Policy Objective 1. Economic, Section III, including policy 1.1 in that the  
proposal does not “strengthen the development of the specific desirable  
characteristics” of sub-areas 3, 6, 7, 8 and 10 of the CBD “to ensure the  
viability of all parts of the CBD.”  
(viii)  
Policy Objective 8, Environment, Section II, including policy 8.1, 8.2, 8.3 and  
8.8 in that no energy balance study of the development proposal was  
conducted, and the proposal will have a net negative environmental effect;  
and in that the proposal would not “assure the greatest possible degree of  
compatibility” with “desirable aspects or characteristics of the surrounding  
man-made and natural environment”, and in that the proposal is not “human  
in scale and in harmony with the natural and man-made environment”, and  
in that the proposal would not “protect vistas and views of significant  
interest”;  
(ix)  
(x)  
Policy Objective 2. Residential Environments, Section II, including policy  
2.1.1 in that the development proposal is not compatible with the existing  
neighbourhood due to its height and design;  
Policy Objective 5. Civic Design, Section IV, including policies 5.4, 5.7, 5.8,  
in that the proposal would block views, create wind levels that are not  
acceptable, and create more than a minimal amount of shadow on public  
open spaces;  
(xi)  
Implementation Policy 3.5.4 which requires that Council “shall be guided by  
the policies contained in Section III of this Plan and shall not enter into  
agreements which are inconsistent with the policies of this Plan.”  
(xii)  
Policy Objective 1. Economic Development, Section II including policy 1.1.  
(xiii)  
Policy Objective 12, Citizen Participation, Section II, including policy 12.4,  
in that the Municipality did not pay adequate “attention to the timing of public  
access to information” and did not allow “individuals and groups to have an  
adequate time period for review” of information, “prior to final City Council  
decisions”;  
2.  
3.  
The proposal does not afford Halifax Regional Municipality as a whole benefits,  
contrary to sections 225, 227 and 230 of the Municipal Government Act.  
Such further and other grounds as the Nova Scotia Utility and Review Board may  
deem to be appropriate. [underlining in original]  
[Exhibit H-3(a) to (d)]  
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[56]  
On May 2, 2006, Heritage Trust also filed an application for judicial review  
of HRM Council’s decision. This application was to the Supreme Court of Nova Scotia (the  
Board has no jurisdiction in relation to applications for judicial review).  
[57]  
tentatively set hearing dates for the weeks of November 20, 27, and December 11, 2006.  
[58] In late summer, the scheduled Supreme Court hearing for the judicial review  
A week later, on May 9, the Board held a prehearing conference, and  
application was postponed until December, having originally been scheduled for mid  
August. While the Appellants asked that the Board cancel its November hearing dates,  
counsel for HRM and United Gulf opposed this request.  
[59]  
At a prehearing conference in October 2006, the Board heard submissions  
from the various parties, and on October 20, issued its decision. It postponed the hearing  
on the merits until the Court of Appeal had issued its decision in Midtown; however, it  
decided that the hearing on the merits would thereafter occur whether or not the  
application for judicial review to the Supreme Court had been completed.  
[60]  
On October 24, the Court of Appeal issued its decision in Midtown, upholding  
the Board’s decision to reverse HRM’s decision to approve the Midtown tower. On  
November 3, the Board scheduled the hearing on the merits for two weeks in February  
2007.  
[61]  
In November of 2006, Mr. Epstein, counsel for the Appellants, requested a  
further preliminary hearing to deal with two evidentiary issues, and also raising arguments  
against the Board having jurisdiction to hold the hearing on the merits at all. The Board’s  
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rulings on the evidentiary issues were dealt with by the Board at that time, and need not  
be a subject of the present decision. On January 18, 2007, the Board dismissed Mr.  
Epstein’s arguments with respect to the matter of jurisdiction, i.e., the Board found that it  
had jurisdiction to hold a hearing on the merits in this matter and issue a decision.  
[62]  
With the concurrence of the parties, the Board reserved its reasons for that  
decision to the final decision on the merits: the Board’s reasons with respect to jurisdiction  
appear at para. 171, below.  
[63]  
dismissed the Appellants’ application for judicial review of Council’s decision.  
[64] The Board commenced its hearings on the merits in February, with hearings  
eventually occurring February 5 to 9, February 12 to 16, and March 22 and 23, 2007.  
[65] In reaching its decision in the present proceeding, the Board also had the  
On February 26, 2007, Justice Hood of the Nova Scotia Supreme Court  
benefit of extensive written briefs from counsel for all of the parties, which were prepared  
in the months subsequent to the conclusion of the hearings themselves. The first written  
submissions were received by the Board on April 27, and the last on June 4.  
Evidence of Witnesses  
Evidence of the Appellants  
Robert N. Allsopp  
[66]  
Mr. Allsopp is a landscape architect, a member of the Canadian Institute of  
Planners, and a registered professional planner, and is a partner in an urban design firm,  
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duToit Allsopp Hillier, which deals with both public sector and private sector clients.  
Qualified by the Board to give evidence as an expert, he testified that, since 1990, he has  
been involved in studies with the National Capital Commission dealing with the protection  
of views in the national capital. Mr. Allsopp commented on a number of policies,  
particularly in Section III - CBD, as they relate to height and views. He described the City-  
Wide Policy 6.1 of the MPS as the overall pattern, both temporally and physically, of the  
development of the CBD in relation to Citadel Hill. That is:  
. . . its streets and spaces, that is focused on George and Barrington, the Parade Square as  
its centre, low-rise, mid-rise buildings that step down the hill, the street grid being both along  
and down the slope, perpendicular to the slope . . .  
[Transcript, February 5, 2007, p. 70]  
Mr. Allsopp opined that the pattern would be severely broken by the proposed  
development.  
[67]  
With respect to the views from Citadel Hill, he said he considered that:  
. . . anything that's in the foreground of the view-shed of the view towards Dartmouth and the  
harbour from Citadel Hill . . . anything that's between Citadel Hill and the water . . .  
[Transcript, February 5, 2007, p. 72]  
to be in the vicinity. The proposed development is, in Mr. Allsopp’s opinion, in the vicinity  
of Citadel Hill. However, during cross examination, Mr. Allsopp agreed that “within the  
CBD in the vicinity of Citadel Hill,” as used in CBD Policy 7.3, means something less than  
the entire area of the CBD. Mr. Allsopp added that the proposed development does not  
meet the intent of City-Wide Policy 6.3.1, respecting height controls. He also testified the  
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proposal does not maintain the integrity of the area, as it “interferes with and destroys the  
pattern of those things.”  
[68]  
With respect to City-Wide Policy Set 8 dealing with “Environment,” Mr.  
Allsopp testified that, in looking at the man-made and natural environment of the proposed  
location, he believes that the development as proposed does not meet the standard as  
outlined in Policy 8.3, nor does it meet the intent of the City-Wide Policy 8.8, because  
development would block “a very major component of the views.” Mr. Allsopp added:  
. . . That proposed development will severely limit the visibility, therefore it will interrupt the  
view, or break the integrity of that view. As I had pointed out earlier, I believe, as a broad  
view, it's not a single -- not a set of single snapshot pieces between, it has integrity, or should  
have integrity, so that this development as proposed will severely destroy that part of the view  
and break its integrity.  
[Transcript, February 5, 2007, p. 89]  
[69]  
Mr. Allsopp admitted on cross examination that the determination of what  
height is permitted in areas not covered by the view planes did, indeed, involve judgment  
on the part of Council:  
Q.  
In areas covered by view planes, it is clear the maximum height beyond which  
Council may not approve a building.  
A.  
Q.  
A.  
Q.  
Yes.  
Right. In the areas not covered by view planes there is no such rigid restriction.  
That is correct. Yes. It's not rigid.  
Right. And determining what height is permitted in those areas not covered by view  
planes involves judgment on the part of Council, would you agree with that?  
A.  
That is correct. Yes.  
[Transcript, February 5, 2007, p. 138]  
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[70]  
Mr. Allsopp reviewed the wind study (Exhibit H-10) showing the corner of  
Sackville and Hollis Streets, and suggested that the combination of elements incorporated  
into the design of the proposed development — canopy and staggered panels — will block  
the view as you either “walk up or down Sackville on that south side,” and are therefore  
contrary to CBD Policy 6.2.  
[71]  
Mr. Allsopp also expressed the opinion that the proposed project does not  
meet the intent of the MPS in that it offends the policies of the Plan pertaining to the scale  
and architectural design detail, which is outlined in CBD Policy Set 7. He described the  
proposed project as:  
. . . grotesque or gross by comparison with the heritage forms that one finds in other parts  
of the CBD, the heritage and contributing buildings. The topographic characteristics it seems  
that the architecture is, in a sense, competing with the topographical features by rising so --  
in a sort of challenging way to the importance, the totemic importance of the Citadel Hill.  
[Transcript, February 5, 2007, p. 83]  
[72]  
As well, Mr. Allsopp testified that the proposed development does not  
reasonably carry out the intent of the policies with respect to scale and design of  
development, noting:  
Again, it is overwhelming as a massing relative to the other elements which are to be  
protected and enhanced. The building is overpowering in its height combined with  
overpowering in its lateral dimensions. Although it is two buildings, from many points of view  
those two buildings overlap each other visually so it becomes one solid very wide mass as  
well as being very tall, which is inconsistent with -- again with the pattern that exists and  
which is to be enhanced.  
[Transcript, February 5, 2007, p. 87]  
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[73]  
Mr. Allsopp’s evidence was also that the proposed development is not  
complementary to adjacent buildings as intended by CBD Policy 7.2.1, noting:  
When I think of exterior architectural, I'm now thinking of the materials and proportions. The  
proposal appears to be almost entirely of glass with rather thin glazing members, curtain wall  
or some other system. The existing buildings are predominantly masonry or framed buildings  
with wooden sidings with holes for windows, I mean holes within the body of the building.  
They form repetitive patterns. None of these characteristics, masonry, window, architectural  
details, are repeated or referred to in the new development. So I would say, then, that it is  
not complementary to any of the adjacent ones.  
[Transcript, February 5, 2007, p. 88]  
[74]  
Summarizinghisopinionthattheproposeddevelopmentdoesnotreasonably  
carry out the intent of the MPS, Mr. Allsopp said as follows:  
Q.  
A.  
Mr. Allsop, then, to conclude, can you provide the Board with your opinion as to  
whether or not this development reasonably carries out the intent of the MPS taking  
into account those policies we have reviewed here this morning.  
It fails to meet the requirements of the MPS in a number of ways. I've focused in this  
latter half on the question of the views, and that seems to be the – in my mind  
because of the experience that I've had and the expertise that I've now developed  
in this regard in the studies in Ottawa, and in other places but particularly in Ottawa,  
that the commentary on the views is important, and there's no question in my mind  
that this development is very destructive to the views to and from Citadel Hill. It  
diminishes -- the development, I think, is an attempt to create its own landmark when  
Halifax has its own landmark, it's already there, it's the Hill, and respect for the Hill  
is what development and the MPS requires through its MPS and through the  
sections of the MPS. This development simply does not stand up to that test. In  
other regards, the question of its compatibility, its enhancement, its neighbourliness  
with the existing buildings, the heritage buildings and the block pattern, again it is --  
it fails that test, too, very badly. W ith regard to the views down the street, as I say,  
there's some mystery as to what all those elements are but from what we can see  
from this photograph of the model, it will visually block a portion of the view down  
Sackville Street, which is not what the MPS says. The MPS says the opposite,  
should maintain the views down the streets. In terms of its architectural qualities, it's  
a handsome building but it's not a handsome building in the context of Halifax. It is  
not compatible with, neighbourly with, enhancing the heritage buildings and the  
traditional buildings, nor the scale of the buildings in Halifax.  
[Transcript, February 5, 2007, pp. 98-99]  
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Gary Porter  
Mr. Porter worked for the City of Halifax and Halifax Regional Municipality for  
[75]  
over 30 years, retiring on January 31, 2005. He was a Planner II and was qualified to  
testify as an expert able to give opinion evidence on planning matters, and the MPS under  
review. He testified that a development does not have to be consistent with every single  
policy in the MPS because:  
. . . it’s a balance to a certain extent . . . I think earlier testimony touched on the "should" and  
the "shall", you know, there are policies that are mandatory and there are some that are less  
than mandatory, and, you know, you have to look at them all and get a sense as to whether  
there's a reasonable level of compliance with what all of the policies are directing you to do.  
[Transcript, February 5, 2007, pp. 213-214]  
[76]  
He testified that there are two particular policy categories that the proposal,  
in his opinion, does not meet: the policies dealing with views from the Citadel, as set out  
in City-Wide Policy Set 6 and CBD Policy Set 6, and the policies respecting scale and  
design found in City-Wide Policy Set 6 and CBD Policy Sets 1, 4 and 7.  
[77]  
Mr. Porter testified that the objective of City-Wide Policy Set 6 of the MPS is  
the preservationandenhancement of areas, sites, structures, streetscapes, andconditions  
in Halifax which reflect the city’s past historically and/or architecturally. He suggested that  
Council has little latitude in approving a building which would block the view of the harbour  
from Citadel Hill, particularly when City-Wide Policy Set 6 uses such words as “retention,”  
“preservation,” “rehabilitation,” “restoration,” “maintain,” “recreate,” “conserve” and  
“enhance” when giving direction as to what is expected with respect to Halifax’s history, the  
Citadel and the views of Halifax Harbour. Mr. Porter maintains that the proposal is  
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inconsistent with City-Wide Policy 6.2 in that it does not “make every effort to preserve the  
viewfrom Citadel Hill,” and City-Wide Policy 6.3 in that it does not “maintain a sensitive and  
complementary setting” for Citadel Hill.  
[78]  
It was Mr. Porter’s opinion that the proposed development is in the vicinity of  
Citadel Hill. He claimed that the area described in City-Wide Policy 6.3.2 (bounded by  
North, Robie, and Inglis Streets and the Harbour) is in the vicinity of Citadel Hill:  
. . . So I think given the size and the views from Citadel Hill, and policy 6.3.2, that the CBD  
is definitely within the vicinity of Citadel Hill.  
[Transcript, February 5, 2007, p. 221]  
Mr. Porter indicated that it is only reasonable that the word “vicinity” include all of the land  
lying between Citadel Hill and the harbour from the easterly limit of View Plane 1 to the  
westerly limit of View Plane 10.  
[79]  
Mr. Porter also commented on City-Wide Policy 6.4, saying that the height  
of the proposed building is not sensitive and complementary to buildings that surround it.  
He interpreted CBD Policy 6.3 of the MPS, which encourages rooftop landscaping, as  
reinforcing the view that buildings in the CBD are not to be taller than the Citadel.  
[80]  
Mr. Porter stated that the proposed development does not meet the intent of  
the policies regarding views and height:  
I don't think that it reasonably does because these policies with respect to views all talk about  
maintaining and using words of that nature which suggest to me that the views that are  
remaining, there's some sense that they should be protected, you know, to a certain degree.  
And, you know, in this case, the building completely blocks all the harbour behind it, as well  
as the shoreline, and even the sky. I mean, it's a tall building, so it's not a case where there  
was a partial obstruction allowed through development of this building, it just -- it wiped out  
the whole thing.  
[Transcript, February 5, 2007, p. 227]  
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Page 43  
[81]  
With respect to the scale and design of the proposal, Mr. Porter testified that  
the building is taller than policies allow. In terms of size, he testified that it is more than the  
height which offends the MPS, noting that the width of the building is a concern when you  
are looking at it in terms of the policies that relate to the views in that the  
. . . width of the building obliterates so much of the view of the harbour.  
[Transcript, February 6, 2007, p. 237]  
[82]  
Mr. Porter described CBD Policy 4.2 as restating the City’s general policy  
stance on heritage preservation, which is outlined in City-Wide Policy Set 6, pointing out  
the importance of integrating new development with existing structures so as to not  
negatively impact on the retention, preservation, rehabilitation and restoration of heritage  
areas, sites, streetscapes, buildings, features and spaces in the CBD. It was his view that  
the proposal does not meet the obligation under CBD Policy 4.2:  
We're going back to 6, particularly 6.1 and 6.2 which talk about preserving the views. I don't  
think that it's consistent with 4.2 because the building – there's no attempt made to preserve  
any of the views that it blocks out.  
[Transcript, February 6, 2007, p. 245]  
[83]  
With respect to the views along east-west streets, Mr. Porter testified that  
CBD Policy 6.2 requires that views of and from the harbour along the east-west streets  
should be conserved and enhanced, which he testified, include views along the sidewalks.  
It was his opinion that the wind abatement measures in the form of vertical panels (Exhibit  
H-10) would interrupt pedestrian views of the harbour.  
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[84]  
Mr. Porter’s interpretation of CBD Policy 7.1.2 requires the architectural form  
and scale of new developments to be compatible with the block pattern, and shall  
discourage those which do not respect it. He said that there is nothing other than the  
Maritime Centre comparable to the proposed building, which he regarded as an “anomaly.”  
[85]  
Mr. Porter said that CBD Policy 7.2 calls for reinforcement of the character  
of the CBD through the control of urban design details, including massing, texture,  
materials, street furniture and building lines. The massing of the proposed development  
was of particular concern to Mr. Porter who testified that the building is “completely out of  
scale” with the characteristics of the area. This was, in his opinion, further reinforced by  
looking at the definition in CBD Policy 7.2.1, which is to be complementary to what  
currently exists:  
Q.  
A.  
And let's look at the further definition in 7.2.1.  
Yeah.  
"The exterior architectural design of new buildings should be  
complementary to adjacent ones which are designated as being of  
historic significance or important to the character of the CBD. In  
such instances, the careful use of materials, colours, proportion and  
the rhythm established by the surface and structural elements  
should reinforce those same aspects of the existing buildings."  
So, again, this policy is telling you that we like what's in the CBD and we want new  
development to be complementary to it, to blend in and not really stand out.  
[Transcript, February 6, 2007, p. 252]  
[86]  
In Mr. Porter’s opinion, the proposed development does not reasonably carry  
out the intent of the MPS:  
Q.  
And you've already commented on those over in the other sections, so we won't ask  
you to comment again. Now, Mr. Porter, then in -- can you provide the Board with  
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your opinion whether or not this development agreement carries out -- reasonably  
carries out the intent of the MPS.  
A.  
No, I don't believe that it does.  
. . .  
Q.  
And had you been in the position that Mr. Sampson was in, had you not retired, what  
would your recommendation to Council have been?  
A.  
I don't see how I could have recommended approval of this. It would be not for  
approval.  
[Transcript, February 6, 2007, pp. 254-255]  
Dr. Philip Pacey  
[87]  
Philip Pacey and Elizabeth Pacey are both entitled to the honourific “Dr.”;  
nevertheless, to avoid confusion between the two in the main text of the decision, they are  
referred to, respectively, as “Philip Pacey” and “Elizabeth Pacey.”  
[88]  
Philip Pacey is a professor of Chemistry at Dalhousie University and is  
president of Heritage Trust of Nova Scotia. The Board accepted his qualifications to give  
opinion evidence in relation to municipal planning and policy development in the HRM and  
in optics. He explained in some detail how he prepared a variety of images of the  
development as an overlay over photographs of various buildings, “To have an idea of  
what it will look like from various perspectives.”  
[89]  
Referring to the MPS, Philip Pacey testified that it was clear from the outset  
that scale and density are considered to be essential criteria in determining the quality of  
life for people in Halifax.  
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[90]  
He testified that the Citadel, the Old Town Clock, and an area which he  
described as containing low to medium-rise buildings, establish the identity of Halifax,  
which is protected by several policies, including: City-Wide Policies 6.2, 6.3, 6.3.1, and 8.8  
and CBD Policy 7.3. He stressed that City-Wide Policy 6.2 requires the City to “make  
every effort” to preserve or restore views from Citadel Hill.  
[91]  
Philip Pacey told the Board that the proposed development would dominate  
the views of the central harbour and George’s Island from the Citadel, creating a “walling-  
off effect” on the panorama and would block more of the view to the southeast than any  
other building, blocking off the view between the Centennial Building and the Maritime  
Centre.  
[92]  
He said the proposed development does not affect the street grid, but it does  
affect the block pattern, which he says is contradictory to CBD Policy 7.1.2, and that the  
massing, texture, materials and building lines of the proposal would not reinforce the  
character of the CBD, which he opines is contrary to CBD Policy 7.2.  
[93]  
Philip Pacey explained in some detail his view of CBD Policy 7.2.1, which  
requires the design of new buildings be complementary to adjacent heritage properties.  
It was his opinion that, for a heritage property to be appreciated and respected, it must not  
have an “unsympathetic” building built adjacent to it. It was also his opinion that the  
materials, colour, proportion, and rhythm of the proposed development would not reinforce  
these elements of the adjacent buildings, contrary to the policy.  
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[94]  
Philip Pacey discussed the meaning of City-Wide Policy 6.2, which requires  
the City to “make every effort” to preserve or restore views from Citadel Hill. He said that  
Policy 6.3 (Section II - City-Wide Objectives and Policies) requires HRM to maintain a  
sensitive and complementary setting for Citadel Hill, and that this cannot be achieved by  
approving the proposed development which would be higher than the ramparts of the  
Citadel, as well as the roadway around it. He also testified that this would block out a  
major portion of the view. In further review of City-Wide Policy 6.3, Philip Pacey said the  
policy addresses the issue of the “vicinity” of Citadel Hill, protecting an area which, in his  
view, goes at least down to the harbour and would also have to extend to the south and  
north of Citadel Hill.  
[95]  
Philip Pacey also testified that, to interpret the word “vicinity,” the entirety of  
City-Wide Policy 6.3 must be considered with the overall purpose of City-Wide Policy  
Set 6:  
. . . The view planes do not stop two or three blocks down the hill, the view planes go all the  
way to the water. That makes it clear that the City is concerned about the view from the  
Citadel all the way to the water, and that also goes into the South End as well. We can look,  
as Mr. Porter did, at Policy Set 6 -- Policy 6.3.2, and that is a group of policies – 6.3, 6.3.1  
and 6.3.2 -- which are nested and which must be looked at as a group, and so to interpret  
them you need to look at them as a group. And 6.3.2 is subordinate to 6.3 and yet 6.3.2  
encompasses everything from Inglis Street to Robie Street to North Street to the harbour,  
and yet it is a subordinate policy to 6.3. So, it means that 6.3, when it uses the word "vicinity,"  
must be referring to at least that entire area, because in that entire area the Citadel is  
important and we have to pay attention to the Citadel. And, furthermore, we can note that  
here we have a proposal which is so large that it would cast a shadow on the Citadel, and  
that, I think, takes me back again to my purposive definition, that is the idea of we must look  
at the purpose of this definition, and if our objective is to protect the visual integrity of the  
Citadel we've got to consider "vicinity" has a wide enough scope that it can do its job.  
[Transcript, February 6, 2007, pp. 423-424]  
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[96]  
He also referred to a comparison of the Midtown and United Gulf towers,  
which he provided as part of his written evidence (Exhibit H-3, Tab 8, p. 3). He testified  
that the proposed development would block 10 degrees of view from Viewpoints R and C,  
compared to the rejected Midtown tower which would have blocked 8 degrees. He also  
testified that the proposed development would be 77 feet higher than a viewer on the  
Citadel, compared with the Midtown proposal which would have been 19 feet higher than  
a viewer on the Citadel.  
[97]  
With respect to the wind analysis prepared by the consultants RWDI (Rowan  
Williams Davies and Irwin), it was his opinion that the report indicates a lack of compliance  
with CBD Policy 7.5. He maintained that it would not be sufficient for the Developer to  
place wind mitigation measures around the structure, saying:  
. . . They really need to totally redesign this building, possibly greatly reduce its size, in order  
to reduce the winds across the street.  
[Transcript, February 7, 2007, p. 480]  
He noted that there were a number of violations of the safety rating used by the wind  
consultants, and it was not sufficient for the Developer to place mitigation measures  
around the base of the proposed building.  
[98]  
Philip Pacey held the same opinion with respect to the shadow study,  
suggesting that the proposed development would cast shadows on open spaces, and  
arguing that this did not reasonably carry out the intent of the MPS as it relates to shadow.  
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Ronald H. McDonald  
Dr. McDonald is the cultural resource manager for Parks Canada in the  
[99]  
Atlantic Service Centre. He is responsible for the management of archeological services,  
historicalresearch, collectionsmanagement, conservationservicesandterritorialservices.  
He was qualified as an expert able to provide opinion evidence with respect to history,  
particularly the history of the Halifax Citadel and the Halifax defence complex. He testified  
that he was speaking on behalf of Parks Canada, which had been approached by the  
Appellants to provide evidence in relation to the history and heritage associated with the  
Citadel. He testified that the United Gulf proposal raises serious concerns for the Halifax  
Citadel, a National Historic Site.  
[100]  
In his evidence, he told the Board about the founding of Halifax and the  
creation of the Citadel and its strategic importance and operation as a defence complex.  
He stressed the importance of the topography of the Citadel:  
. . . Why topography is important is that anybody that's trying to defend a position needs to  
have, should we say, you know, a dominating view of the surrounding territory. You have to  
be able to see what you're defending. And the highest point on the peninsula was Citadel  
Hill. You had to have 360 degrees of view. You had to be able to -- height is tremendously  
important to a defender. You always want to take the high ground, they say. That's where  
that saying comes from. It's much easier if an enemy is lower than you are because they  
have to climb up the hill. So I mean, obviously, strategically, the hill and its topography and  
its commanding sort of view of the Halifax peninsula was absolutely essential as to why they  
built those Citadels in that location. The other thing was that it gave complete communication  
with the surrounding area. You know, as I suggested, for example, you must look at the  
Citadel as part of a complex of defences. And if you notice at the Halifax Citadel today, there  
are signal masts at the Citadel. The reason that those are there was that they were to  
provide coordination and communication with all of the other military sites in Halifax . . .  
[Transcript, February 7, 2007, pp. 629-630]  
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[101]  
Dr. McDonald testified that the proposed development would have a negative  
impact on the historical and topographical relationship between the City and the Harbour  
and Citadel Hill:  
. . . The fact of the height of the building tends to diminish sort of the topographical  
significance of the Citadel. You know, because it is such a tall building, it distorts the  
relationship of the Citadel to the town, to the harbour, both by blocking the view and sort of  
geographically or topographically in reading the topography. Because of the height of the hill,  
all of a sudden, you lose that sense of the dominating sort of reality of the Citadel, which was  
essential to its -- its sort of establishment and its function.  
[Transcript, February 7, 2007, p. 657]  
[102]  
Dr. McDonald further testified that there were four problems with the  
proposed building: the height, the mass or width, the orientation and the location:  
Q.  
A.  
Briefly would you give us what your problem is with each one of those four things?  
Sure. You know, from our point of view, the -- one of the concerns is with the height  
of the building in that the building is actually higher than the Citadel, and actually,  
looked at, say, from a topographic point of view, will dominate the Citadel. It will be  
higher than the Citadel. It will destroy the relationship in many ways between the  
Citadel and the town and the harbour, and certainly this is the consensus of  
information that landscape architects in Parks Canada have about sort of the height  
of the building. In other words, what it does from our point of view is it makes the  
Citadel seem smaller, I guess, you know, looked at from an historian's point of view.  
You know, you look tall [if] you're six feet until somebody six six comes along and  
stands beside you.  
Q.  
A.  
Q.  
A.  
I know that problem.  
And all of a sudden, you don't look so big any more.  
Okay. Secondly you talked about mass and width -- mass or width.  
Well, the thing about the mass is that, you know, it blocks the maximum percentage  
or degree of the view. It's not quite at right angles to the Citadel, but it's oriented in  
such a way that it blocks a significant portion of that important view. Other buildings  
like the Maritime Centre, for example, which are angled, if that building was turned  
around, it would block, you know, a tremendous amount of the view. But angled in  
the way that it is, it sort of minimizes the impact on the view. So that from our point  
of view, there's – this particular building maximizes the blockage of view, you know,  
because of its orientation and its mass.  
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Q.  
A.  
Okay. And finally, location, because that deals with both mass and orientation.  
Yeah. The location -- and I think I spoke about that, you know, earlier -- is that it's  
in a location that's one of the more important views of the harbour from the Citadel  
to the other elements, say, of the defence complex and to the inner harbour, so that,  
in effect, it's going to sort of, you know, block a very sort of important and historic  
view of Halifax Harbour. So if that building was somewhere else, you know, we  
wouldn't have a concern, but where it's located, it's in a very sort of sensitive  
location, from our point of view, as far as important historical views of Halifax  
Harbour are concerned. And that's why, you know, we have some concerns about  
that.  
Q.  
A.  
And then just to conclude, Dr. McDonald, overall, your view on whether or not this  
proposed development impairs the heritage value of the Citadel and its relationship  
to Halifax.  
It's the conclusion of Parks Canada that this development as it's now presented  
impairs the commemorative integrity of the Halifax Citadel.  
[Transcript, February 7, 2007, pp. 662-664]  
Carl Bray  
[103]  
Dr. Bray is a heritage planner and landscape architect with graduate degrees  
in urban design and cultural geography. He has 25 years of professional experience in  
both the public and private sectors. He was qualified as an expert able to provide opinion  
evidence with respect to heritage planning and landscape architecture. He reviewed City-  
Wide Policy Set 6 - “Heritage Resources”; City-Wide Policy Set 8 - “Environment”; and  
CBD Policy Set 7, dealing with scale and design detail. Dr. Bray concluded the proposed  
development is not compliant with the policies in Section II and III:  
. . . in terms of its scale, in terms of its use of architectural design, both at the podium level  
and -- well the street scape level, the podium level and at the level of the tower. Basically it  
is completely different from the established development pattern and the established  
development pattern is what is being supported and enhanced and even restored in the  
policies that I see before me. So it is a deliberate departure from those and at a scale and  
in a location that seems to be in conflict with, in my opinion, the policies that I see before me.  
So in conclusion I would say that I cannot see how this new development could be  
considered to be compatible with the policies in set 2 and set 3 that we've been discussing.  
[Transcript, February 8, 2007, pp. 839-840]  
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Dr. Elizabeth Pacey  
Elizabeth Pacey was qualified to give opinion evidence in relation to Halifax’s  
[104]  
architectural history, the history of Halifax, and the history of the Halifax Citadel and the  
view from Citadel Hill, and with respect to planning policy development.  
[105]  
She contends that the proposed development is not complementary to  
adjacent heritage buildings, referring to a draft of the Barrington Street Historic District  
Revitalization Plan, as well as her book Historic Halifax. The Revitalization Plan was  
drafted, according to Elizabeth Pacey, so that Barrington Street might be registered as a  
whole under the Heritage Property Act, R.S.N.S. 1989, c. 199. She noted that 26 buildings  
on Barrington Street have been registered for their historical and architectural significance  
under the Heritage Property Act.  
[106]  
It was her evidence that the United Gulf development would diminish the  
prominence of Citadel Hill and detract from the central harbour view. Not only would the  
27 storey towers rise higher than the ramparts, but they would block out wide sections of  
views of the central harbour and George’s Island as seen from the roadway around the  
Citadel. She said that City-Wide Policy 6.2 requires that “every effort” shall be made to  
preserve or “restore” conditions such as views from Citadel Hill. In her opinion, the other  
view policies support this fundamental directive. She noted that City-Wide Policy 6.3  
affirms the City shall “maintain, recreate a sensitive and complementary setting for Citadel  
Hill,” by controlling the heights. City-Wide Policies 6.2, 6.3, 6.3.1, 6.4, and CBD Policy 7.3,  
along with the 40 foot height limit outlined in IMP Policy 3.5.1 (and Policy 84 of the LUB),  
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are important parts of the view protection system as the triangular view planes have gaps  
between them. She said that, if high buildings were built between the view planes, they  
would block the view and undermine the protection scheme.  
[107]  
She also gave evidence on the issue of the application of CBD Policies 7.2  
and 7.2.1. She says in her prefiled report:  
For example, Policy 7.2.1 requires that the architectural design of new buildings be  
complimentary [sic] to adjacent “ones which are designated as being of historic significance  
or important to the character of the CBD.” The way that such buildings are designated is by  
consideration of their historic and architectural significance by the Heritage Advisory  
Committee and registration as a heritage property.  
For further clarity, for a heritage building to be of value to the community, three conditions  
must apply: Firstly, it must be well maintained to avoid deterioration. Municipal, provincial  
and federal grant programs can assist with this. Secondly, it must not be altered  
unsympathetically or demolished. This is controlled by the Heritage Property Act. Thirdly,  
it must not have an unsympathetic building built adjacent to it. This is controlled through  
Policy 7.2.1 and the Implementation Policies.  
More specifically, Policy 7.2.1 lists four properties (materials, colour, rhythm, and proportion)  
of new buildings which must reinforce the same aspects of the heritage buildings. The word,  
reinforce, means strengthen. The predominant material of the proposal would be glass. The  
materials of the proposal would not reinforce the predominant materials, like brick, wood, and  
stone, of the heritage buildings. The predominant colour of the proposal would be the grey,  
black, or bluish of the glass, depending on lighting. The dominant colour would contrast with  
the traditional colours. The heritage buildings generally have walls of brick or wood  
punctuated by many windows, in a symmetrical rhythm or pattern. The massive  
asymmetrical, twisted towers would contrast with, instead of reinforcing, the rhythm, as  
required.  
The most noticeable way in which the two towers do not reinforce the architecture of the  
heritage buildings is in the aspect of proportion. The enormous scale, the sheer height and  
broad massing, of the towers is wildly out of proportion with the adjacent heritage buildings  
on Barrington Street. The collective character and ambience that the heritage buildings  
create would be seriously damaged if the two huge towers were to have such a domineering  
presence.  
[Exhibit H-3, Tab 2, pp. 4-5]  
[108]  
ElizabethPaceytestified that the proposaldoesnotreinforcethearchitectural  
features of the heritage buildings, detracting from the interpretation and enjoyment of their  
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architectural styles. It was her opinion that the proposal is not consistent with the intent of  
the MPS.  
Judith Fingard  
[109]  
Dr. Fingard is a professor in the Department of History at Dalhousie  
University. She is the author of books and numerous articles about the history of Halifax.  
She was qualified as an expert in the history and heritage of Halifax.  
[110]  
She reviewed a number of “historic visuals” depicting the prominence of the  
Citadel and the harbour as the two prevailing features of the city. It was her belief that any  
new development in the vicinity of Citadel Hill should reflect the historic and traditional  
scale of development.  
Evidence of HRM  
Paul A. Sampson  
[111]  
Mr. Sampson is a Planner I with the HRM and has been employed since  
January of 2001 in that capacity. Prior to that, he was employed as a Development  
Technician with HRM and the Halifax County Municipality since October 1992. He is the  
principal author of HRM’s Staff Reports (dated December 16, 2005, February 24, 2006,  
March 15, 2006), to the PAC, HAC and the Halifax Regional Council. Excerpts from these  
appear in the section entitled “Facts,” beginning at para. 17.  
[112]  
Throughout his testimony, Mr. Sampson referred to his Summary of Opinion  
which had been previously filed with the Board (Exhibit H-6, Tab 6). He said Council’s role  
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is to consider all relevant objectives and policies and weigh their relative importance in  
relation to potential impacts of the proposal on the surrounding area and community. He  
suggested that, if you look at the definitions of every word in the policy, and you look at the  
policy as a whole,  
. . . you can pretty much determine which ones are mandatory and which ones allow room  
for some flexibility for Council.  
[Transcript, February 12, 2007, p. 1143]  
[113]  
Mr. Sampson testified the MPS policies for the CBD call for the development  
of mixed-use residential and commercial areas which are appropriate to the varied scale  
and character of sub areas of the CBD. The proposed site is in sub-area 10, which is an  
area of office use and mixed-use between Hollis Street, and the western side of Granville  
Street, and extending from Salter Street to Prince Street. He noted that the scale of the  
surrounding neighbourhood is varied, with a number of different land uses, including the  
MetroPark parking garage, Mountain Equipment Co-op building, the Four Points Sheraton  
hotel, and the Salter’sGate development which is still under construction. He further noted  
that the northern portion of sub-area 10 includes the Centennial Building and Joe Howe  
Building, which are “both substantial in height.” It is his opinion that the proposed  
development is appropriate to the scale and character of the area and will help to ensure  
the viability of the sub-area by providing activity at street level throughout the day and  
evening.  
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[114]  
With respect to the issue of compatibility with the block pattern, he testified  
that the primary intent of CBD Policies 7.1 and 7.1.2 was to discourage “some of the large  
mega-block developments” such as the Scotia Square complex and the Metro  
Centre/World Trade Centre developments, in which former blocks were consolidated to  
accommodate these structures. He said that the intent of this policy was to discourage that  
from happening in the future. The proposed development is compatible with the block  
pattern; although the proposed towers are somewhat higher than most of the buildings in  
the area, the inclusion of the two narrower towers, instead of one massive 27 storey  
building, would, in his opinion, increase its level of compatibility.  
[115]  
Mr. Sampson indicated that CBD Policy 7.2.1 and City-Wide Policy 6.4 are  
advisory policies with respect to the complementarity of heritage properties. He said that  
the policies were not mandatory, and provide flexibility in their application. He cited as an  
example Barrington Street, where a number of otherbuildings form the backdrop, including  
the Maritime Centre on the south end, and the bank towers on the north end of Barrington  
Street. He suggested that the taller buildings “don’t necessarily take away or destroy the  
integrity of the heritage buildings.” It was his opinion that the proposed development  
reasonably meets the intent of CBD Policies 7.2 and 7.2.1.  
[116]  
As the proposal includes a major hotel, offices, retail and high density  
residential uses, he deemed these as appropriate for the CBD, and therefore meets the  
economic objective in the MPS which is the strengthening of the Halifax CBD as a  
“dynamic focus of governmental, commercial, retail, residential, recreational and  
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entertainment uses . . .”  
[117] The MPS protects public views through the use of view planes, views from  
within the Citadel Parade Square, building heights in the vicinity of the Citadel and  
conservation of the views along the east-west streets. Mr. Sampson testified that the  
southern most corner of the subject site is intersected by View Plane 6, but the proposed  
building does not protrude through and is not parallel to the view plane, thus meeting the  
corresponding policy. As well, he noted that the proposed development cannot be visible  
over the fortifications from within the Citadel Parade Square, which, he noted, complies  
with that policy.  
[118]  
Mr. Sampson testified that the intent of CBD Policy 6.2 is to prevent the  
blockage of existing views of the harbour and of the Citadel along the east-west streets and  
to enhance or add new views in the future. With the proposed development, Mr.  
Sampson’s evidence was that there is no view of the Citadel looking up Sackville Street,  
nor will there be a blockage of views of the harbour down Sackville Street. While the  
proposed development abuts Sackville Street, and includes minor encroachments into the  
street right-of-way, it is his opinion that the overall views along Sackville Street will not be  
jeopardized.  
[119]  
With respect to building heights in the vicinity of the Citadel, Mr. Sampson  
noted that the MPS sets “low to medium rise” height limits “immediately adjacent to Citadel  
Hill and increasing with the distance therefrom.” He notes that the project will be visible  
from the Citadel, however, it is six blocks distance and is not in close proximity to the  
fortress:  
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I don't feel the entire CBD beyond Band A [the Brunswick/Market Street block] for the  
purpose of this policy is in the vicinity of Citadel Hill . . .  
[Transcript, February 12, 2007, p. 1202]  
[120]  
Mr. Sampson also testified that the MPS, in his opinion, does not provide  
protection for panoramic views.  
[121]  
He testified that, in termsof CBDPolicies7.5and7.5.1, investigationsshould  
be carried out to consider wind issues and decide what is appropriate and reasonable for  
wind mitigation measures. He noted that the study concluded that the proposed  
development, with the mitigation measures, did not significantly increase wind speeds in  
the area. He stressed that wind mitigation measures at street level such as the canopies  
and wind screens are conceptual in nature and would be further studied and agreed upon  
by Council, adding that, in order for the Developer to actuallyget a development permit and  
a building permit to start construction, the wind mitigation measures will have to be  
acceptable. It was his opinion that the overall wind conditions created by the proposed  
development are either similar to, or better than, what existed before and, therefore, meet  
the intent of the MPS.  
[122]  
Mr. Sampson also noted that CBD Policy 7.6 is again general in nature and  
deals only with shadows on public open spaces. In his written report, he said that shadows  
on sidewalks in a downtown setting are to be expected and are generally considered to be  
acceptable, considering even a one storey building will cast shadows on its abutting  
sidewalks (see text entitled “Shadow,” at para. 27, above).  
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Paul Dunphy  
Mr. Dunphy is the Director of Community Development for the HRM. Before  
[123]  
assuming that position, he was the Director of Planning and Development Services, which  
involved the preparation and review of planning policies and the direction of staff on  
development applications. He was qualified as an expert in the area of municipal land use  
planning.  
[124]  
Hetestified that the December 16, 2005 and February24, 2006 Staff Reports  
were prepared and edited under his supervision and approved by him, adding that the  
March 15, 2006 Staff Report was also prepared under his supervision and reflected his  
opinions. His evidence addressed the matters of building heights, views and compatibility  
with adjacent heritage properties.  
[125]  
Mr. Dunphy testified that the MPS is an evolving document which contains  
general policies giving direction for further study and detailed planning. He emphasized  
that Council needs to balance the competing values and interests in interpreting and  
applying policies contained in the MPS. Regarding the height of buildings in the CBD, he  
testified that the MPS includes policies which require a number of factors to be considered  
in determining the acceptable height of a proposed building. He referred to the Midtown  
project, noting that it was subject to specific policies relevant to the Brunswick Street area,  
which significantly limit the height of buildings in the foreground view of the Citadel. It was  
his opinion that the MPS, however, allows buildings to increase in height with distance from  
the Citadel given the topography of the city and their increasing distance from the  
foreground view. He testified that this is  
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. . . an accommodation of those balances between sustaining an economically vibrant CBD  
and our heritage interests, which in this case would be centred around the Citadel.  
[Transcript, February 13, 2007, p. 1541]  
[126]  
City-Wide Policies 6.3, 6.3.1, 6.3.2 and 6.3.3 deal with the height of new  
development in the vicinity of Citadel Hill. Within the CBD policies, height of new  
development within the CBD, in the vicinity of Citadel Hill, is discussed also in CBD Policies  
7.3 and 7.3.1. Mr. Dunphy testified that “in the vicinity” of Citadel Hill within the meaning  
of City-Wide Policy 6.3 was not defined by City-Wide Policy 6.3.2, and was of the view that  
the proposed development is not within the vicinity of Citadel Hill as that term is used in the  
MPS.  
[127]  
Mr. Dunphy also gave evidence with respect to the status of the draft  
Revitalization Plan (Exhibit H-4), notingthat, while it was presented to Council and adopted  
in principle:  
. . . Before the ideas in that document can be effective, there are some legislative changes  
that are required to the Municipal Government Act to enable certain concepts in there. And  
there are amendments that are required to the Municipal Planning Strategy as well. The  
status of that study now is that it is one of many studies which may or may not go anywhere  
. . .  
[Transcript, February 13, 2007, p. 1517]  
[128]  
With respect to whether or not the proposed development is complementary  
to adjacent heritage buildings, Mr. Dunphy testified that you must look to their design.  
[129]  
He summarized his position in his prefiled report:  
There are six designated heritage properties nearby the United Gulf site, fronting on either  
Granville Street or Hollis Street. Of these, four buildings are most visible from the site  
(Freemasons Hall, Pacific Building, Green Lantern Building and Founders Square) and two  
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(Halifax Club and Johnson Drug Building) less so. Three of the most visible designated  
heritage buildings do not have significant facades or design elements on Granville Street.  
Their heritage designation was primarily based upon their significant and detailed Barrington  
Street facades. There is very little of design interest which can be drawn from their Granville  
Street facades as a reference for the design of a new building. The facades of all three  
function as the back entries for these buildings were not designed as the public face of the  
structures. In fact the standard of detailing and design interest which the MPS encourages  
for new buildings exceeds that found in these designated heritage properties.  
The Green Lantern Building is the closest designated heritage property to the proposed  
development. The Granville Street facade does not have any historic design elements  
exposed to view. The building has been clad in corrugated metal for more than twenty years  
with prominent modem exhaust vents and duct work on the Granville Street facade.  
Although it is the closest designated heritage property, The Green Lantern Building provides  
very little guidance for making quality design decisions. This analysis is consistent with a  
decision of Halifax City Council in 1985. Council authorized demolition of the Granville Street  
facade in conjunction with the construction of a twenty-storey hotel which the developer never  
built. The Barrington Street facade however was to be retained and restored.  
It is acknowledged that the Halifax Club, Johnson Drug Building and Founders Square have  
well designed historic facades on Granville and Hollis Streets and have been maintained and  
restored to fine condition. They are however less visible from the United Gulf site and  
certainly do not define the overall character of the area. When looking at the overall  
character of the area, it is reasonable to consider what weight to give these properties.  
The area surrounding the United Gulf site contains a predominance (both in number and  
scale) of modem buildings (Metropark, Mountain Equipment Co-op, Centennial Building,  
Radisson Hotel, Bank of Canada Building, Ralston Building, Four Points Sheraton). There  
are also underutilized parking lots nearby and the MPS encourages these to be redeveloped.  
Within this context, the modem design of the United Gulf project, while incorporating  
traditional building materials and a high level of design detail, is a reasonable approach and  
consistent with a weighing of all of the relevant MPS policies.  
[Exhibit H-6, Tab 4, p. 1-3]  
[130]  
It was Mr. Dunphy’s belief that Council exercised reasonable judgment in  
considering and weighing all of the relevant policies of the MPS. Further, it was his belief  
that Council’s decision is reasonably consistent with the Halifax MPS.  
Simpson McLeod  
[131]  
Mr. McLeod is a former Senior Planner and Manager of Property Services  
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with the Planning Department, City of Halifax. He was qualified to give opinion evidence  
with respect to planning matters.  
[132]  
At the outset, Mr. McLeod testified that policysets within the MPS are usually  
headed by an objective “which kind of sets the scene, followed by a list of policies.” A lot  
of the policies that are being read in isolation should, he opined, be read as part of a  
sequence.  
[133]  
He said that the purpose of City-Wide Policy Set 6 (Heritage Resources) is  
to control the height of new buildings to a height of about four traditional storeys in the  
immediate vicinity of Citadel Hill, increasing with distance therefrom, and to ensure that no  
new development should be visible over the top of the Citadel ramparts to a person of  
average height standing on the Parade Square within the Citadel.  
[134]  
In Mr. McLeod’sopinion, “in the vicinity” in City-Wide Policy6.3 does not refer  
to the entire area of the CBD. He does not consider the proposed development by United  
Gulf to lie within the “vicinity” of Citadel Hill. In his opinion, there is no intent in the MPS  
to preserve an open panoramic view of the harbour as a whole. He also told the Board that  
the area bounded by North Street, Robie Street and Inglis Street (as found in City-Wide  
Policy 6.3.2) did not define the “vicinity” of Citadel Hill.  
[135]  
Mr. McLeod reviewed CBD Policy Set 6 dealing with views in the CBD, noting  
that CBD Policy 6.2 seeks to protect existing views to and from the harbour along east-  
west streets. While acknowledging that there is an encroachment at the upper level of the  
proposed northern tower, he testified that it does nothing to hinder the view down Sackville  
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Street of the harbour. From his review of the architectural drawings, he could not observe  
any baffles or windbreaks at the pedestrian level, and while part of the wind protection  
canopy proposed in the development will project over a portion of the sidewalk, it was his  
opinion that it would not adversely impact on the views “to the detriment of the street or the  
view as a whole,” and at times, a canopy may “partly obstruct the view.”  
[136]  
He testified that he reviewed the drawings submitted by the Developer,  
highlighting the three to four storey podium on which the hotel tower and the residential  
tower are situate, which he said provides the necessary transition from the scale of the  
towers to a pedestrian scale at the sidewalk level. He believes this feature satisfies the  
requirements of CBD Policy 7.2.  
[137]  
Mr. McLeod also gave evidence with respect to CBD Policy 7.2.1 and the  
meaning of “adjacent.” In his prefiled report, he noted:  
. . . For a building to be considered "adjacent" in this context, I suggest that an observer has  
to be able to see both the building and the proposed development in the same street view,  
and further, the building and the proposed development have to be sufficiently close to each  
other that an observer can make a meaningful visual comparison of design detail between  
the two. How else is complementarity to be judged and appreciated?  
[Exhibit H-6, Tab 1, p. 5]  
His evidence was that the Green Lantern Building, the Pacific Building, and the  
Freemason’s Hall, all of which have their main frontage on Barrington Street, but extend  
back through the block to Granville Street, are clearly adjacent to the proposed  
development. The Halifax Club, the Johnson Drug Building, and the restored facades  
incorporated in Founders Square are, he deems, other designated historic buildings  
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adjacent to the proposed development which lie to the north. He stated that the design of  
the podium of the proposed development tries to emulate a sense of the street character  
in an earlier Halifax “in a contemporary idiom.”  
[138]  
Mr. McLeodwasaskedwhethertheproposeddevelopmentiscomplementary  
and meets the intent of the policy with respect to adjacent heritage buildings:  
Well, for a building to be judged complementary to adjacent heritage buildings it seems to  
me that they both have to be seen within the same street picture, you have to be able to see  
the new building, see the heritage building, see how or if they relate and, you know, make  
your comparison and make your judgment accordingly. I think the facades on -- of the  
heritage buildings on Barrington Street are good, high quality, but unfortunately the facades  
of these buildings on Granville Street are not. They're -- in my earlier days in architecture it  
was a kind of architecture that we referred to as Queen Anne at the front and Mary Anne at  
the back in the sense that all of the fanciness went onto the front and what happened at the  
back was whatever you needed to have happen, and we've got some examples here. I think  
we would be doing the citizens of Halifax a great disservice if we expected -- or if we directed  
that the architecture here be complementary to the adjacent heritage properties that we can  
see.  
[Transcript, February 16, 2007, p. 2263]  
[139]  
In his prefiled report, he noted that he agreed with the staff’s statement (in  
a report dated December 16, 2005):  
I agree with the staff statement in its report dated December 16, 2005 that we have in this  
proposal an example (and an excellent one in my view) of an asymmetrical, fluid design, the  
like of which we have not yet seen in Halifax, and which the MPS in no way could have  
contemplated. I believe that at street level, the proposed design is complementary to the  
more active streetscapes in the downtown, and fully meets the intent of the MPS in that  
regard. Although the new development does not rely on the kind of architectural detailing we  
have come to associate with historic complementarity, such as the use of classical proportion  
of openings, regular repetitions of solids and voids, cornices, arches, comer detailing and the  
like, that is irrelevant in my view, as the designated historic buildings on Granville Street are  
of such poor architectural quality that they do not deserve to be reflected in the new  
development. Therefore it is my opinion that this proposal meets the intent of advisory policy  
7.2.1.  
[Exhibit H-6, Tab 1, p. 6]  
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[140]  
Regarding the wind levels, referring to Policy 7.5 in Section III, he noted that,  
following wind tunnel tests, and some detailed modification to the building design near  
street level on the Hollis/Sackville Street corner, wind conditions in the area will either be  
the same as, or marginally improved, over the wind conditions prior to construction of the  
proposed development. He viewed CBD Policy 7.5 as advisory, concluding the proposed  
project of United Gulf meets the intent of the policy.  
[141]  
He was of the same opinion with respect to the shadow study conducted by  
the experts for the Developer, noting that since CBD Policy 7.6 is advisory only, “it creates  
no mandate for seeking major change.”  
Ann G. Wilkie  
[142]  
Ms. Wilkie is an environmental lawyer and environmental and land use  
planner with experience in the public, private and academic sectors. She is currently Vice  
President (Environment) at CBCL Limited and was previously employed by the City of  
Halifax as an urban planner responsible for the development of the policy framework for  
the CBD and the waterfront areas for the City of Halifax in the late 1970's.  
[143]  
Ms. Wilkie described the proposed development in terms of the grid and view  
planes and the mix uses as one that  
. . . fits within the context and intent of the policies and generates an important new centre  
in a part of the Central Business District core which has been under utilized and has basically  
been an unattractive block for a very long time.  
[Transcript, March 22, 2007, p. 2474]  
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[144]  
Ms. Wilkie testified that the proposal brings a mix of uses: residential, visitor  
accommodation, the hotel use and retail space, which is a mixed use development in the  
downtown area and, therefore, it fits within the context of the social policies of the CBD.  
[145]  
She told the Board that the proposed development does not impinge on the  
view planes policies. It respects the east-west views in the downtown core and it does not  
impinge on the intent of the CBD strategy.  
[146]  
She noted:  
It will introduce new elements to the views as you walk around the downtown and across the  
Citadel and around the Citadel. Changing the dynamics of those views, I think, lends a  
degree of excitement. I like going up to the Citadel and watching what has -- what is under  
construction, what is changing. This adds new elements to that perception within the context  
of the view planes . . .  
[Transcript, March 22, 2007, pp. 2477-2478]  
[147]  
With respect to the scale and design detail policies in CBD Policy Set 7, she  
testified that the project respects the street grid and city block pattern in the CBD, which  
accommodates many architectural styles, including the many different historic facades on  
Barrington Street which, to the extent that is feasible, should be protected. It was her  
evidence that the architectural detailing of the buildings adjacent and in proximity to the  
proposed site do not warrant reflection in the proposed structures, noting:  
. . . The immediate environs of this property are not adjacent to facades with any architectural  
merit. The backs of the buildings on Grafton Street -- the buildings that face onto Barrington  
Street -- the backs of Grafton Street -- those rear facades are -- apart from the Mountain  
Co-op, are downright ugly and utilitarian, regardless of the facades on Barrington Street. The  
other buildings in the immediate vicinity are modern, have little distinctive characteristics.  
The best is probably the hotel building or the conversion. There is nothing in the immediate  
surroundings of architectural merit.  
[Transcript, March 22, 2007, p. 2486]  
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[148]  
She described the proposed building as “a rather exciting mixed-use  
development that could further enhance the economic diversity and the vibrancy of our  
downtown core.” With respect to height, she said that height, in and of itself, is not  
intrinsically wrong, or somehow detrimental to a historic business area.  
Andrew W. Lynch  
[149]  
Mr. Lynch is an architect, urban designer and a founding partner of Lydon  
Lynch Architects Limited. He was qualified as an expert able to give opinion evidence with  
respect to architecture and urban design. Mr. Lynch spoke to Section II - City-Wide  
Objectives and Policies, and Section III - CBD Objectives and Policies.  
[150]  
With respect to the City-Wide Objectives, he noted that one of the objectives  
is for the provision of commercial facilities appropriately located in relation to the city. He  
described the proposed development as a well designed response to all the desirable  
objectives contained within this section. He also noted that the city must preserve and  
enhance areas, sites, structures, and streetscapes which reflect the city’s past. City-Wide  
PolicySet 6 provides for the preservation and enhancement of areas, sites, structures, and  
streetscapes which reflect the city’s past historically and architecturally. He further noted,  
particularly, that City-Wide Policies 6.2, 6.3, and 6.3.1 apply to developments in the vicinity  
of the Citadel which, while they were important and relevant to the Midtown Tavern  
proposal, are not applicable to the present proposal because of the proposal’s extended  
distance away from the Citadel. The development, he notes, will not be visible over the top  
of the Citadel’s ramparts as defined in City-Wide Policy 6.3.2. He stated that the economic  
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polices of the MPS call for the City to encourage developments like this one in the CBD.  
[151]  
It was Mr. Lynch’s further opinion that the project design addresses heritage  
in a complementary way by the scale of its podium, which is consistent with a sidewalk,  
pedestrian friendly kind of scale, not unlike the existing heritage scale.  
[152]  
Mr. Lynch commented on his understanding of CBD Policy 7.2 in terms of  
massing, texture, materials, street frontage and building lines:  
Well, first of all, in terms of massing, I again talk about these two scales. So you have the  
massing broken into podium and towers, and the podium is really quite -- I think quite  
thoughtfully designed to relate to that pedestrian and historic kind of three/four-storey scale  
that exists downtown, or exists with a lot of heritage structures. And the -- and that's the  
scale that you're aware of when you're at sidewalk level. And the towers themselves, as I  
said, really relate more to the CBD scale as seen in the panorama either from Dartmouth or  
from a distance. Texture is perhaps the use of those materials. The podium has a fine  
texture to it -- a use of a number of materials, but broken down -- it's not one slick wall, if you  
will. It's not one smooth texture facade at that pedestrian level. It's in fact a series of  
recessed entrances, sidewalk protection, urban design details, commercial activity, store  
windows, transparency, and solid materials to break down the scale and texture at the street  
level. And I think that's what's really the success of that scale. The materials, as I said, are  
not the same materials that exist on the buildings close by. Nevertheless, the materials are  
quite compatible with those surrounding buildings and not out of -- not out of place at all. I  
would say materials that are compatible with other buildings. They don't try to mimic them,  
but they are compatible and complement adjacent heritage and other buildings. Also, you  
know, the -- the sidewalk perimeter to the whole building has been, I think, quite thoughtfully  
done. They have thought about weather protection. They've thought about -- they've thought  
about wind. They've thought about weather protection. They've thought about people being  
able to pass through the building, and it's not a fortress at sidewalk level at all.  
[Transcript, March 22, 2007, pp. 2598-2599]  
[153]  
Mr. Lynch believes that buildings can contrast and still be complementary  
with no need to be the same size or to use the same materials as adjacent buildings.  
[154]  
He summarized his opinion as:  
. . . as far as I'm concerned, it's totally within the policy and design direction that comes out  
of the planning strategy, that it's a very thoughtful response at all levels to the policies that  
are there, to the point where I find very little to say against it, that it's been a very thoughtful  
response, I think, to -- and in particular, to the scale and design detail in a much more  
sophisticated way than I had originally imagined . . .  
[Transcript, March 22, 2007, p. 2605]  
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Evidence of United Gulf  
Hanqing Wu and Harry A. Baker (Wind Study Panel)  
[155]  
Dr. Wu is a senior specialist with RWDI where he has been employed since  
1998. His area of specialization includes pedestrian wind, thermal comfort, cladding and  
structural wind loads, snow drifting, rain infiltration, and air quality.  
[156]  
Mr. Baker is Project Director with RWDI where he has been employed since  
1973. He is in charge of the wind and micro climatic services provided through the Calgary  
office.  
[157]  
RWDI was retained by the Developer to conduct a pedestrian wind study for  
the proposed redevelopment of the former Texpark site. The purpose of the study was to  
assess the wind environment around the development in terms of pedestrian comfort and  
safety. The objective was achieved through wind tunnel testing of a 1:400 scale model of  
the proposed Texpark site for the following two large building configurations: Configuration  
A, which consisted of existing surroundings without the proposed Texpark site  
redevelopment, and Configuration B, which comprised the existing surroundings with the  
proposed Texpark site redevelopment, which included canopies and screens near ground  
level. The results were compiled in a report dated May 4, 2005, and submitted to the  
Developer.  
[158]  
The wind studypaneltestified that, throughthe course of the study, theywere  
presented with documents on the MPS pertaining to CBD Policy Set 7, and City-Wide  
Policy Set 8 of the MPS.  
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[159]  
The principal results indicated that wind comfort for the proposed  
development was predicted to be acceptable at grade for most of the locations tested; wind  
conditions along Sackville Street were similar in the existing and proposed configurations,  
indicating that the proposed development did not significantly increase wind speeds in the  
area; the installation of screens and a solid drop panel at the northeast corner of the  
development improved wind conditions along the north facade of the development and  
should be included in the final design; and in the existing configuration, 21 of the 45  
locations failed the wind safety criterion during at least one season. In the proposed  
configuration, 21 of the 47 locations failed the wind safety criterion during at least one  
season.  
[160]  
recommended in the RWDI report, including a drop panel and use of various screens.  
[161] Mr. Bakerdescribedtheproposedmeasuresandconfirmed thattheyresulted  
in normal wind conditions for Halifax:  
The wind study panel referred to a number of mitigation measures  
Q.  
A.  
Q.  
Okay. And what did you discover with respect to those proposed mitigative  
measures?  
(HB) They reduced the wind speeds to produce what we would call normal wind  
conditions for Halifax.  
You described that a component of the mitigative measures were baffles, a  
component of the mitigative measures that you've studied were baffles.  
A.  
(HB) Screens, yes.  
Q.  
Screens, okay. And where were the screens intended to be placed relative to the  
property line?  
A.  
(HB) They were on -- well, they were placed primarily within the property or the  
project, or beneath the canopy along Sackville Street. One of the primary concerns  
that we have, we're very aware of the fact that you have to create or allow public  
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access along the sidewalk next to the street. So that was being considered in this  
situation.  
Q.  
A.  
Okay. Where do screens work best?  
(HB) They work best -- in this situation would work best next to the building where  
the winds tend to be channelled along the face of the building and then they break  
the wind speeds up at that location.  
Q.  
A.  
Q.  
A.  
Okay. So your study proved that these mitigative measures, the concepts work.  
(HB) Yes, they did.  
Where do you go from here?  
(HB) Well, we provide a concept at this point which, as in the photo, shows a series  
of small plastic panels. As the design is now in sort of a conceptual design we will  
remain part of the design team as these areas are being developed by the architect  
and the landscape architect. It's very common that we will be asked to look at these  
and give direction as they create a solution or a workable concept in the design to  
the point where we will retest to confirm that whatever it is they come up with will  
actually work and produce the same results. So it is very common to see a change  
in that plan but in general concept and effectiveness the result will be there.  
[Transcript, February 15, 2007, pp. 2056-2058]  
Peter M. Connor and Clay Radcliffe (Shadow Study Panel)  
[162]  
Mr. Connor is an architect and the principal of Connor Architects and  
Planners.  
[163]  
Mr. Radcliffe is an associate designer for Connor Architects and Planners,  
whose training and expertise is in the area of AutoCAD 3D and solid modelling.  
[164] The shadow study panel was retained by the Developer to undertake two  
studies: the shadow effects of the proposed development, and the study of images of the  
project from the perspective of a drive along Barrington Street. Computer animation was  
used for the shadow study.  
[165]  
The evidence of the shadow study panel was that there was no significant  
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additional shadow on public open spaces and it was their evidence that the proposed  
development complied with City-Wide Policy 8.6 which states that the city should make  
every effort to ensure that developments do not create adverse wind and shadow effects.  
[166]  
Subsequent to the hearing, pursuant to an undertaking, Connor Architects  
and Planners provided a slightly revised report. The revisions so supplied are not, in the  
opinion of the Board, significant, in the context of the MPS and the matter before it.  
Anne Muecke  
[167]  
Ms. Muecke is a co-principal of Griffiths Muecke Associates and has been  
involved in environmental and community research, analysis, planning, and policy  
development. Ms. Muecke’s evidence centred on what steps the Developer could take to  
comply with Section 2.12 of the Development Agreement, which deals with wind mitigation  
measures. She testified that the Developer, in conjunction with HRM Staff, would have to  
determine the mitigation measures that would be part of the final design for the proposed  
development:  
A.  
. . . this is -- the approval by Council is approval of the concept, and there is then a  
major detailed design process that is -- represents the next stage, and as part of that  
the detailed review of wind mitigation on the corner of -- in particular on the corner  
of Hollis and Sackville, those details would be identified. Typically what you -- what  
one would do would be to identify measures that are options essentially, possibly put  
together alternative combinations, test them out and then ultimately select the best  
combination.  
Q.  
A.  
Q.  
A.  
And when you say "test them out," what do you mean?  
Well, they go back into the wind tunnel.  
Yes.  
There's further wind tunnel testing.  
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Q.  
A.  
Okay.  
The -- and this is done in conjunction with HRM staff and whoever else HRM feels  
should have input into that process.  
Q.  
A.  
Okay. And once a mitigative measure is selected, then what is required of the  
developer under the development agreement?  
The -- so, there has to be a final testing to ensure that the end product meets the  
overall undertaking - that -- the overall results that came from the initial wind study  
that was approved as part of the development agreement.  
Q.  
Right. Who bears the risk as to whether the actual mitigative measures utilized can  
reach that tested level?  
A.  
The developer does.  
Q.  
And what provision is there in the development agreement with respect to the form  
of the mitigation and its compliance with the concept design as already approved?  
A.  
Provided the mitigation measures are generally, in the opinion of the development  
officer, in accordance with the approved concept, the development officer can  
approve the final version. It's -- obviously the report has to be prepared by qualified  
engineers.  
[Transcript, March 23, 2007, pp. 2822-2823]  
Evening Session  
The Board held an evening session on Wednesday, February 7, 2007.  
[168]  
Fourteen speakers spoke at the evening session. Persons who supported the appeal  
were: Graham Read, Iain Taylor, Beverly Miller, Aubrey Fricker, and Charles Lapp.  
Speaking against the appeal and in favour of the proposal were: Clary Kempton,  
Amber-Leigh Golding, Patrick Leroy, Charles Baurin, Scott Marquardt, Stephen Terauds,  
David Bortolussi, Dr. Ed Kinley, and David Hopper. The Board also received written  
submissions from various members of the public, some in support and some opposing the  
appeals.  
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Site Visit  
On June 28, 2007, the Board conducted a site visit alone (counsel for all the  
[169]  
parties had previously indicated that they would not accompany the Board). The site visit,  
which is described below, took an entire afternoon:  
!
!
The perimeter boundaries outlined in City-Wide Policy 6.3.2. - North Street,  
Robie Street, Inglis Street.  
The perimeter of the Central Business District (CBD) - Cogswell Street,  
Brunswick Street, Spring Garden Road, Barrington Street, a boundary  
between Maritime Centre and St. Matthew’s Church to the Harbour.  
!
Prince Street, corner of Brunswick Street, (i.e., facing west and southeast)  
to consider the impact of the buildings in the Spring Garden Road sub-area.  
!
!
!
!
!
Parade Square of the Citadel looking up through the ramparts.  
Grand Parade in front of City Hall.  
The southwest corner of Argyle and Carmichael Streets.  
The south side of Blowers Street, between Argyle and Grafton Streets.  
The west side of Barrington Street between George Street and Spring  
Garden Road.  
!
!
!
!
A complete circuit of the roadway around Citadel Hill.  
All designated View Planes viewing points.  
The viewing platform referenced by Ms. Muecke.  
Both east side and west side of Sackville Street from the Royal Artillery  
[Artillery Place] to Hollis Street. (as requested by counsel for Heritage Trust)  
!
Sackville Street, both roadway and sidewalk, from Royal Artillery Park down  
to Hollis Street (i.e., facing east). (as requested by counsel for Peninsula  
South)  
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!
!
From the front of the Summit Place building looking west, so as to include a  
view of the Maritime Centre and the subject site.  
From the corner of Bishop Street proceeding north to George Street, east  
down George Street and north on Granville Street to Salter Street.  
!
!
South on Hollis Street from George Street to Salter Street.  
The perimeter of sub-area 10 of the CBD - Salter, Granville, Prince, Hollis  
Streets.  
!
!
!
!
Any heritage buildings in sub-area 10 not yet seen.  
The perimeter of the site on Sackville, Granville, and Hollis Streets.  
Along the waterfront boardwalk from Bishop's Landing to Sackville Landing.  
Along the waterfront from George Street to Salter Street (including view of  
Sackville Landing).  
ANALYSIS AND FINDINGS  
Correction of Erroneous References  
[170]  
The Board will note at the outset that counsel for various parties, in their  
written or oral submissions, sometimes misidentified provisions in the City-Wide part of the  
MPS for those in the CBD part, and vice versa. Similar errors also sometimes occurred  
with respect to directional references (e.g., northeast, southwest, etc.). Where the Board  
has detected such erroneous references, it has, in this decision, simply made appropriate  
changes, without comment. In the view of the Board, such mistakes are easy for any  
witness or counsel to make, in the context of a complex proceeding such as the present  
one, and are indeed mistakes which a tribunal likewise may make in the course of a  
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proceeding or a decision.  
Jurisdiction of the Board to hear this Appeal  
[171]  
The following are the Board’s reasons for its dismissal, on January 18, 2007,  
of the Appellants’ arguments with respect to the matter of jurisdiction (referred to above,  
at para. 62).  
[172]  
In a letter dated November 21, 2006, Mr. Epstein raised an issue with respect  
to the Board's jurisdiction to hear this appeal. He asserted, on the grounds set out below,  
that no legal decision was made by HRM Council to approve a development agreement.  
Thus, he alleged that there was no legal decision of Council to trigger the Board's  
jurisdiction under s. 251(2) of the Municipal Government Act, S.N.S. 1998, c. 18.  
[173]  
The Board received written submissions from all parties on this jurisdictional  
issue and it held a preliminary hearing on January 10, 2007, at which time it also received  
oral argument. In a letter dated January 18, 2007, the Board dismissed Mr. Epstein's  
jurisdictional application and it determined that the Board possessed the jurisdiction to hold  
a hearing on the merits, adding that its reasons would be set out in this decision, following  
completion of the hearing.  
[174]  
According to Mr. Epstein, the jurisdictional issue arises as a result of  
Council's treatment of an encroachment of the subject development onto the public street.  
Due to the twisting design of the proposed building, the north tower will protrude over the  
public street between the 15th and 22nd storeys. The encroachment will protrude into the  
air space above the street, covering approximately the entire width of the sidewalk below.  
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[175]  
Mr. Epstein notes that, pursuant to s. 314 of the Municipal Government Act,  
HRM has adopted By-law E-200 (i.e., Encroachment By-law). Section 314 (2) provides:  
314 (2)  
A council may, by by-law, regulate encroachments upon, under or over streets,  
including stipulating the period of time an encroachment may remain and the  
entering into of agreements, including terms and conditions, for particular  
encroachments.  
[176]  
He submits that s. 314(2) allows a municipality to "regulate" encroachments,  
but does not allow a municipality to "permit" or "grant" the alienation of the street right-of-  
way. Mr. Epstein adds that, according to s. 227 of the Municipal Government Act, "no  
development agreement may deal with matters that are not also subject to regulation  
through the land use by-laws."  
[177]  
The basis of Mr Epstein's argument is that, in his view, HRM Council  
approved a development that could not be authorized by a land use by-law, and is not  
otherwise authorized by the Municipal Government Act. He asserts that no decision of  
Council exists if it dealt with a matter it could not authorize.  
[178]  
Mr. Epstein asserts that the Board has the power to determine all questions  
of law, based on the authority conferred upon it by the Utility and Review Board Act, S.N.S.  
1992, c. 11. In his view, statutory tribunals have typically exercised the jurisdiction to rule  
upon the scope of their own jurisdiction. However, he acknowledged that the Board has  
been reluctant to address such jurisdictional issues. In oral argument, he stated:  
. . . although the Board is vested with the power to decide questions of law that come before  
it, there has to be a relevance to the proceeding that its dealing with. What's striking about  
the decisions that the Board has issued has been that there is, I would say, an excessively  
modest approach to the interpretation of the statutory power that this Board has been granted  
when it comes to deciding questions of law, and indeed, when it comes to what I think is a  
traditional administrative tribunal power, that is, jurisdiction to rule on your own jurisdiction.  
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[179]  
After commenting that the Board normally does not hesitate to decide issues  
of standing of "aggrieved persons" under s. 191(a) of the Municipal Government Act, an  
issue which he asserts is more related to a determination of the Board's jurisdiction to hear  
the appeal rather than a consideration of the typical substantive issue heard by the Board  
in planning appeals, Mr. Epstein urged the Board to extend the scope of its review in this  
appeal to the point raised by him respecting the validity of Council's treatment of the  
encroachment. He continued:  
What gives the Board the power to make that determination is exactly what I've been  
indicating. That is the power that the Board has under the Utility and Review Board Act to  
deal with questions of law that arise in the course of the proceedings, combined with the  
general view that, prima facie, an administrative tribunal has jurisdiction to decide on its own  
jurisdiction. The question, I think, is how far that power is exercisable.  
[180]  
In the present instance, he asserts that the Board's power extends to a  
determination of the issue which he has raised.  
[181]  
In support of his submission, Mr. Epstein refers to the decision of the Ontario  
Court of Appeal in Toronto (City) v. Goldlist Properties Inc. (2003), 67 O.R. (3d) 441. In  
that decision, the Court concluded that the Ontario Municipal Board had the authority,  
before the tribunal engaged in a review of the substantive planning issues, to rule on the  
legal validity of amendments made to the City's official plan.  
[182]  
Counsel for United Gulf and for HRM oppose Mr. Epstein's jurisdictional  
argument.  
[183]  
In his written submissions, Mr. Grant stated:  
At the outset, it is submitted that the issue of whether HRM Council has exceeded its  
jurisdiction is one beyond the jurisdiction of the Board, and may only be raised on judicial  
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review. The grounds of appeal to the Board and the Board's powers on appeal are conferred  
by ss. 250 and 251 of the Municipal Government Act ("Act"). The Board's power is limited  
by the scope of those provisions . . .  
In any event, there is simply no basis to assert that HRM Council is unable to approve a  
Development Agreement for a design proposal which incorporates an encroachment. The  
Act authorizes Council to regulate encroachments, and Council has done so under HRM By-  
law E-200 ("Encroachment By-law"). The Development Agreement itself affirms the separate  
requirement for approval and licensing of the proposed encroachment. Any ongoing  
compliance requirement under By-law or otherwise does not render Council's decision non-  
existent or invalid.  
. . .  
"Regulate", as defined in the Act, includes the power to license:  
71 (1) Subject to Part VIII, in this Act, the power to  
(b)  
regulate, includes the power to license; ...  
The Encroachment By-Law regulates encroachments as authorized under s. 314(2) of the  
Act, and allows for the construction and maintenance of encroachments under certain  
circumstances, including where a license is obtained or where Council enters into an  
Encroachment Agreement:  
License Required  
3
No person shall construct or maintain any encroachment or make use  
of a street for construction or restoration purposes in the municipality  
unless an encroachment license has been issued by the municipality.  
Encroachment Agreements  
10 Notwithstanding the provisions of this bylaw, Council may  
(a) enter into an agreement permitting any person to construct or  
maintain an encroachment upon such terms and conditions as  
Council may deem appropriate, and the provisions of this bylaw  
shall not apply to such encroachments provided that consideration  
for such agreement shall not be less than the fees payable by a  
licensee for a similar structure pursuant to subsection 5(2) and  
section 6 of this bylaw.  
The Development Agreement itself recognizes the continuing applicability of By-laws, and  
specifically states that encroachments shall require the approval of Regional Council and a  
separate license as per the requirements of the Encroachment By-law:  
. . .  
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HRM Council, on the basis of the Act and the Encroachment By-law, has the authority to  
authorize the encroachment either by license or by agreement. The terms of the  
Development Agreement are consistent with Council's authority.  
Furthermore, whether such a license or agreement has been issued or reached at the time  
the Development Agreement is approved is irrelevant to the validity or existence of Council's  
decision. It is a misconstruction to say that no "decision" exists where Council has approved  
a Development Agreement which will nonetheless be subject to compliance with By-laws,  
policy or any other enactments. The Development Agreement constitutes a "decision" which  
is clearly subject to appropriate approval and licensing in compliance with the Encroachment  
By-law.  
The Development Agreement in issue is subject to compliance with a relevant municipal By-  
law. This compliance requirement does not render Council's decision non-existent. Rather,  
Council has simply authorized a Development Agreement which is subject to a condition  
subsequent, consistent with the Encroachment By-law. In this sense it is no different from  
the need for the developer to obtain a building permit before it commences construction of  
a development pursuant to a Development Agreement . . .  
[United Gulf Submission, January 5, 2007, pp. 1-4]  
[184]  
In her written submission on behalf of HRM, Ms. Brown submitted that the  
jurisdiction of the Board is restricted to that which is outlined in the Municipal Government  
Act:  
In relation to the jurisdiction of the Board generally, it submitted that the Board does not have  
the ability to review Council's process leading to its decision. Rather, the fundamental  
question before the Board is: does Council's decision reasonably carry out the intent of the  
MPS" As the Court of Appeal noted in the recent Midtown case [2006] N.S.J. No. 418, to  
answer this question, the Board embarks on a fact-finding mission to determine the exact  
nature of the proposal in the context of the applicable MPS and corresponding by-laws which  
may include the reception of evidence as to the intent of the MPS (at para. 51). This  
jurisdiction requires a decision of Council, otherwise, section 250 of the MGA is not triggered  
since there is "no decision" of Council to assess whether it reasonably carries out the intent  
of the MPS. Such reasoning is consistent with the Board's own rulings on such matters and  
its recognition that there is a limited right of appeal reflected in the statute and the inability  
of the Board to consider submissions in relation to natural justice.  
It submitted that if Mr. Epstein wishes to make an argument that Council did not have the  
jurisdiction to make the decision that it did, that is a matter for judicial review for the Nova  
Scotia Supreme Court. The Board does not have the legislative authority to say that Council  
did not have the jurisdiction to make the decision in the first place as it would then be making  
a decision without answering the very question to which its statutory authority is granted, that  
is whether the decision of Council reasonably carries out the intent of the MPS.  
It is submitted that in our case there is no question that Council made a decision. It is part  
of the Record. The decision was to approve the entering into of the development agreement.  
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The only jurisdiction this Board has is to review that decision in light of the applicable MPS  
policies.  
[HRM Submission, January 2, 2007, pp. 4-5]  
Findings with Respect to the Board’s Jurisdiction  
[185]  
In past decisions, the Board has consistently held that it does not possess  
the statutory authority to address jurisdictional arguments respecting the process followed  
by the council of a municipality in approving a development agreement: Re Peninsula  
South Community Assn., [2002] N.S.U.R.B.D. No. 7 (Q.L.), 2002 NSUARB 7 [Tsimiklis],  
at pages 57-61 [reversed on other grounds on appeal: 2003 NSCA 30]; Re Almon  
Investments, [2005] NSUARB 59, at paras. 66 - 73; and Midtown Tavern and Grill Ltd.,  
[2005] N.S.U.R.B.D. No. 101 (Q.L.), 2005 NSUARB 105, at paragraphs 123 -137 (upheld  
on appeal: 2006 NSCA 115).  
[186]  
In the above decisions, the Board relied primarily on the Court of Appeal  
decision in Halifax (County) v. Maskine, [1992] N.S.J. No. 292, where Jones, J.A. held:  
While the correct question is posed in that passage, with respect, a review of the decision  
shows that the Board did not answer the question. The Board entered into a detailed  
examination of the procedures followed by the Council in arriving at its decision. Those  
issues were not relevant to the issue before the Board. Nowhere does the Board make a  
finding that the decision to reject the application was inconsistent with the intent of the  
Municipal Planning Strategy.  
[187]  
Mr. Epstein submits that Maskine has been "over read." In his view, the  
Board's earlier decisions with respect to jurisdiction are limited to instances dealing with  
due process orproceduralirregularities. Heassertsthathispresentjurisdictionalchallenge  
is a substantive challenge which goes directly to the jurisdiction of the Board to hear this  
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appeal, due to the alleged invalidity of Council's decision in approving a development with  
an unauthorized encroachment.  
[188]  
In the opinion of Mr. Epstein, the Board has the authority to consider the  
above jurisdictional issue under the following provisions of the Utility and Review Board  
Act:  
Jurisdiction  
22 (1) The Board has exclusive jurisdiction in all cases and in respect of all matters in  
which jurisdiction is conferred on it.  
Questions of law and fact  
(2) The Board, as to all matters within its jurisdiction pursuant to this Act, may hear and  
determine all questions of law and of fact.  
. . .  
Written decision with reasons  
27 (1) A final decision of the Board shall be in writing and shall set forth reasons for the  
decision.  
Content of reasons  
(2) The reasons for the final decision shall include  
(a) any agreed findings of facts;  
(b) the findings of fact on the evidence; and  
(c) the conclusions of law based on the findings referred to in clauses (a) and (b).  
. . .  
Appeal  
30 (1) An appeal lies to the Appeal Division of the Supreme Court from an order of the  
Board upon any question as to its jurisdiction or upon any question of law, upon filing  
with the Court a notice of appeal within thirty days after the issuance of the order.  
[emphasis added]  
[189]  
He also relies on Goldlist, the decision of the Ontario Court of Appeal wherein  
the Court held that the Ontario Municipal Board had the jurisdiction to rule on the legality  
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of an amendment to the City of Toronto's official plan. The Court considered s. 35 of the  
Ontario Municipal Board Act which, in effect, is identical to s. 22(2) of the Utility and Review  
Board Act. The following excerpts were cited by Mr. Epstein:  
[7]  
In June 1999, several property owners, developers, and associations of owners of  
rental residential property appealed the adoption of OPA 2 to the OMB. On a preliminary  
motion, decided before it engaged in any review of the planning issues, the OMB ruled that  
it had jurisdiction to rule on the legality of OPA 2. The OMB found that OPA 2 was illegal and  
invalid on the two grounds: (1) that it falls outside the powers conferred upon the municipality  
by the Planning Act, and (2) that it conflicts with the Tenant Protection Act.  
. . .  
[19]  
We accept, of course, that these provisions confer jurisdiction on the courts to decide  
the validity of by-laws. This does not, however, mean that the courts necessarily have the  
exclusive jurisdiction to consider issues of this nature in the circumstances of a case such  
as the present one. We shall, shortly, consider this further.  
. . .  
[23]  
With respect to s. 35, we think it is implicit that one matter within the Board's  
jurisdiction to decide in a proceeding, for the purpose of carrying out its mandate, is the  
scope of its jurisdiction in that proceeding. We have indicated that its power in this regard  
is not exclusive. Nor is it final. W e shall, in the next part of these reasons, address the  
question of the standard of appellate review of the Board's decisions on its own jurisdiction.  
[24]  
There are practical reasons supporting this view of the Board's power. One is based  
on expedition. Waiting for the decision of the Divisional Court on a stated case, or of a court  
on an application, may involve delay. Also, in cases like the present, the Board has had  
considerable experience in dealing with official plans and what they typically include or do not  
include. This would, undoubtedly, be of some assistance in ruling on the outer legal  
boundaries of what may be included in an official plan.  
[190]  
Having reviewed the submissions of the parties, the Board concludes that it  
must proceed on the basis of the issue which is ultimately before it in planning appeals:  
i.e., whether the decision of Council reasonably carries out the intent of the Municipal  
Planning Strategy, in accordance with s. 251(2). In this regard, the Board refers to its  
reasons in the Midtown decision at paragraphs 129-137:  
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[129]  
Since Maskine, the Board has (as was done in Colborne) defined its task in an  
appeal such as the present one as being solely that of determining whether or not the  
approval, or refusal to approve, by a council is one which can be seen as reasonably  
consistent with the intent of the M.P.S., or not. How council got to that decision – e.g.,  
whether by an allegedly bad procedure or a good one, or by an allegedly bad thought  
process, or a good one – is a matter which the Board (applying its interpretation of Maskine)  
has repeatedly stated to be irrelevant. The Board has regarded such alleged errors, and the  
granting of a remedy, if any, to be a matter solely within the jurisdiction of the Nova Scotia  
Supreme Court, and lying outside the jurisdiction of the Board.  
[130]  
Mr. Epstein urges the Board to abandon this approach. He asserts that Maskine has  
been "over read," and that the Court of Appeal's decision should be read in the context of the  
Board's decision in the same case, which he characterized as having focused at great length  
upon the process followed by Council, while giving short shrift to procedural issues which Mr.  
Epstein argues relate to the issue of reasonable consistency.  
[131]  
While Mr. Epstein acknowledged that the Supreme Court has jurisdiction to deal with  
alleged errors in Council's decision making process, he maintained that the Board has an  
equal and parallel jurisdiction, meaning that a person alleging procedural or other such  
defects in a council's process may choose to go either to the Supreme Court by way of  
judicial review, or to the Board, by way of appeal, and get exactly the same remedy, if  
successful, i.e., an order remitting a matter to a council for reconsideration.  
[132]  
In the view of the Board, one can, as Mr. Epstein argues, perceive in the  
development of the case law in recent years (some of which was cited by Mr. Epstein in  
argument) some signs which may indicate a tendency on the part of the Courts to attribute  
greater powers to certain statutory tribunals, such as the Board: see, for example, Nova  
Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation  
Board) v. Laseur, [2003] S.C.C. 54, in which the Supreme Court of Canada reversed a  
finding by the Nova Scotia Court of Appeal that the Workers' Compensation Appeal Tribunal  
lacked power to find that provisions of a statute were contrary to the Charter.  
[133] While the Board has carefully reviewed Mr. Epstein's arguments, the Board does not  
agree that it has the jurisdiction he asserts. The Board's reasoning in relation to this point  
includes the words of the Act itself, as well as the case law.  
[134]  
Applying the purposive approach to the Act (as directed by the Court of Appeal in  
such decisions as Heritage Trust of Nova Scotia et al. v. Nova Scotia Utility and Review  
Board et al. (1994), 128 N.S.R. (2d) 5 (C.A.), the Board concludes that, while the legislation  
intends to provide for an appeal to the Board, it also intends to restrict the scope of such  
appeals. In the Board's view, this is clearly demonstrated by the language of both s.  
251(1)(b), and s. 251(2). Section 251(1)(b) says that a person "may only appeal . . . on the  
grounds that the decision of the council does not reasonably carry out the intent" of the  
M.P.S. [emphasis added]. Section 251(2) reinforces this by saying that the Board, in dealing  
with such an appeal, "shall not allow" the appeal "unless" it decides that council's decision  
failed to "reasonably carry out the intent of the M.P.S." [emphasis added]  
[135]  
Acceptance of Mr. Epstein's position would mean that the Board could allow an  
appeal without making a finding on whether Council's decision reasonably carried out the  
intent of the M.P.S. – a position that the Board sees as inconsistent with the language of ss.  
251(1)(b) and 251(2), which it has just quoted.  
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[136]  
Apart from the Act itself, the Board considers that the guidance given to it on the  
point by the Court of Appeal in interpreting the relevant provisions is clear, and likewise  
contrary to Mr. Epstein's position.  
[137]  
In the result, the Board finds that it is the effect of the Municipal Government Act,  
together with such decisions as Maskine, that the Board has only limited jurisdiction in  
appeals of the type presently before it. In the view of the Board, if a party were to establish  
that council had misconducted itself in a matter (whether with respect to fairness, natural  
justice, or, as Mr. Epstein would argue, an action of such grievous significance as to amount  
to a "flouting" of the M.P.S.), the only remedy for such a procedural error would be through  
judicial review, i.e., through recourse to the Supreme Court, not to this Board.  
[191]  
The Board determines that the Goldlist decision provides no assistance to  
Mr. Epstein. While it was decided after Maskine, the latter decision remains the  
authoritative statement on the issue of the Board's authority respecting issues relating to  
its jurisdiction. While this matter has not been addressed directly in other decisions of the  
Nova Scotia Court of Appeal, the Court in the Midtown decision recently reiterated the  
"fundamental question" before the Board in planning appeals, that is, whether the decision  
of Council reasonably complies with the intent of the municipal planning strategy. The  
Board considers that it would require direction from the Court of Appeal that it has  
jurisdiction over such matters before it would embark on the issues urged by Mr. Epstein  
in this case.  
[192]  
In the view of the Board, the methodology adopted by HRM Council in  
approving the development agreement, including its treatment of the potential  
encroachment, amounts, in effect, to a decision to defer HRM's treatment of the  
encroachment. By proceeding in this fashion, Council effectively detached consideration  
of the encroachment from the development agreement to other means. The Board  
considers that in approving the development agreement, Council appropriately provided  
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for treatment of the encroachment as a condition subsequent, consistent with the  
Encroachment By-law. In proceeding in the fashion, the Board finds that Council acted in  
accord with s. 227 of the Municipal Government Act, which provides:  
Content of development agreement  
227 (1)  
A development agreement may contain terms with respect to  
(a) matters that a land-use by-law may contain;  
(b) hours of operation;  
(c) maintenance of the development;  
(d) easements for the construction, maintenance or improvement of watercourses,  
ditches, land drainage works, stormwater systems, wastewater facilities, water  
systems and other utilities;  
(e) grading or alteration in elevation or contour of the land and provision for the  
disposal of storm and surface water;  
(f) the construction, in whole or in part, of a stormwater system, wastewater  
facilities and water system;  
(g) the subdivision of land;  
(h) security or performance bonding.  
A development agreement may include plans or maps.  
A development agreement may  
(2)  
(3)  
(a) identify matters which are not substantive or, alternatively, identify matters that  
are substantive;  
(aa) identify if the variance provisions are to apply to the development agreement;  
(b) provide for the time when and conditions under which the development  
agreement may be discharged with or without the concurrence of the property  
owner;  
(c) provide that upon the completion of the development or phases of the  
development, the development agreement, or portions of it, may be discharged  
by council;  
(d) provide that if the development does not commence or is not completed within  
the time specified in the development agreement, the development agreement  
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or portions of it may be discharged by council without the concurrence of the  
property owner.  
[193]  
Having provided for the approval of the encroachment as a condition  
subsequent, the Board finds that Council has treated such approval in like fashion to other  
approvals typically required to be obtained by developers prior to issuance of a  
development permit, e.g., provincialenvironmentapprovalforsewage treatment and water  
drainage, provincial transportation approval for highway access and federal fisheries  
approval respecting developments potentially impacting upon fish habitat or navigable  
waters.  
[194]  
In the end, the Board is left with Council's decision to approve a development  
agreement as contemplated by ss. 220 and 227 of the Municipal Government Act. While  
the Board will proceed below to a review of the development agreement in terms of the test  
set out in s. 251(2) of the said Act, the consideration of the issue raised by Mr. Epstein  
remains, in the view of the Board, in the sole jurisdiction of the Court.  
Scope of the Board’s Review Powers: Did Council’s Decision Reasonably  
Carry Out the Intent of the MPS?  
[195]  
This matterinvolves appeals from HRM Council’s approval of a development  
agreement.  
[196]  
The Municipal Government Act states, as one of its purposes:  
Purpose of Act  
2
The purpose of this Act is to  
. . .  
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(b)  
enhance the ability of councils to respond to present and future issues in  
their municipalities  
[197]  
The Act specifically identifies municipalities as the primary authority for  
planning:  
Purpose of Part  
190  
The purpose of this Part is to  
. . .  
(b)  
enable municipalities to assume the primary authority for planning within  
their respective jurisdictions, consistent with their urban or rural character,  
through the adoption of municipal planning strategies and land-use by-laws  
consistent with interests and regulations of the Province  
[198]  
The status of municipal councils as the “primary authority” was underscored  
in Midtown, MacDonald, C.J.N.S., stating:  
[46] . . . I believe Council and not the Board to be the primary decision maker when it  
comes to this type of planning issue . . .  
[47]  
Despite the Board's detailed hearing, it must be remembered that members of  
Council are elected and accountable to the citizens of HRM. As such they exercise discretion  
and are accordingly entitled to deference . . . This decision fell within Council's discretion,  
provided it reasonably reflected the intent of the MPS. As elected officials, their decisions  
must be respected . . .  
[199]  
In keeping with the concept of councils being the “primary authority,” s.  
250(1)(b) of the Municipal Government Act limits the grounds for appealing to the Board  
a decision by a municipal council in relation to a development agreement:  
250 (1) An aggrieved person or an applicant may only appeal  
(b)  
the approval or refusal of a development agreement or the approval  
of an amendment to a development agreement, on the grounds that  
the decision of the council does not reasonably carry out the intent  
of the municipal planning strategy;  
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[200]  
[201]  
The powers of the Board are similarly limited on such an appeal:  
251 (2) The Board shall not allow an appeal unless it determines that the decision of council  
or the development officer, as the case may be, does not reasonably carry out the  
intent of the municipal planning strategy or conflicts with the provisions of the land-  
use by-law or the subdivision by-law. [emphasis added]  
Thus, the Board must not interfere with the decision of Council unless it  
determines that the decision of Council to enter into the development agreement does not  
reasonably carry out the intent of the MPS, including the intent of the policies relating to  
the CBD. The burden of proof is on the Appellants to establish, on a balance of  
probabilities, that in the words of s. 251(2), “. . . the decision of council . . . does not  
reasonably carry out the intent of the municipal planning strategy.”  
[202]  
Accordingly, if the Appellants can show, on the balance of probabilities, that  
Council’s decision does not reasonably carry out the intent of the MPS, the Board must  
reverse Council’s decision to enter into the development agreement. If, however, the  
Appellants fail to meet this standard of proof, it is the Board’s duty to defer to Council’s  
decision (see Heritage Trust, supra).  
[203]  
The Nova Scotia Court of Appeal has, in a number of cases, considered the  
standard by which this Board must review a council’s decision. Clearly, the Board is not  
permitted to substitute its own decision for that of Council. The Board’s mandate is  
restricted to the jurisdiction conferred upon it by the Municipal Government Act (formerly  
the Planning Act), as noted by Hallett, J.A., in Kynock v. Bennett et al. (1994), 131 N.S.R.  
(2d) 334 (C.A.), and Heritage Trust, supra. The extent of the Board’s jurisdiction in  
planning appeals generally, and in appeals respecting development agreements  
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specifically, is described in Heritage Trust at pages 34-35:  
[99]  
In reviewing a decision of the municipal council to enter into a development  
agreement the Board, by reason of s. 78(6) of the Planning Act, cannot interfere with the  
decision if it is reasonably consistent with the intent of the municipal planning strategy. A  
plan is the framework within which municipal councils make decisions. The Board is  
reviewing a particular decision; it does not interpret the relevant policies or bylaws in a  
vacuum. In my opinion the proper approach of the Board to the interpretation of planning  
policies is to ascertain if the municipal council interpreted and applied the policies in a  
manner that the language of the policies can reasonably bear. This court, on an appeal from  
a decision of the Board for alleged errors of interpretation, should apply the same test. This  
is implicit in the scheme of the Planning Act and the review process established for appeals  
from decisions of municipal councils respecting development agreements. There may be  
more than one meaning that a policy is reasonably capable of bearing. This is such a case.  
In my opinion the Planning Act dictates that a pragmatic approach, rather than a strict literal  
approach to interpretation, is the correct approach. The Board should not be confined to  
looking at the words of the Policy in isolation but should consider the scheme of the relevant  
legislation and policies that impact on the decision . . .  
This approach to interpretation is consistent with the intent of the Planning Act to make  
municipalities primarily responsible for planning; that purpose could be frustrated if the  
municipalities are not accorded the necessary latitude in planning decisions . . .  
[100]  
Ascertaining the intent of a municipal planning strategy is inherently a very difficult  
task. Presumably that is why the Legislature limited the scope of the Board’s review of  
enacting s. 78(6) of the Planning Act. The various policies set out in the Plan must be  
interpreted as part of the whole Plan. The Board, in its interpretation of various policies, must  
be guided, of course by the words used in the policies. The words ought to be given a liberal  
and purposive interpretation rather than a restrictive literal interpretation because the policies  
are intended to provide a framework in which development decisions are to be made. The  
Plan must be made to work. A narrow legalistic approach to the meaning of policies would  
not be consistent with the overall objective of the municipal planning strategy. The Planning  
Act and the policies which permit developments by agreement that do not comply with all the  
policies and by-laws of a municipality are recognition that municipal councils must have the  
scope for decision-making so long as the decisions are reasonably consistent with the intent  
of the plan. Very often ascertaining the intent of a policy can be achieved by considering the  
problem that policy was intended to resolve.  
The Court of Appeal in Heritage Trust further held:  
[164]  
The Planning Act imposes on municipalities the primary responsibility in planning  
matters. The Act gives the municipal council the authority to enter into development by  
contract which permits developments that do not comply with all the municipal bylaws (s. 55  
of the Act). In keeping with the intent that municipalities have primary responsibility in  
planning matters, the Legislature has permitted only a limited appeal from their decisions (s.  
78 of the Act). Planning policies address a multitude of planning considerations some of  
which are in conflict. Most striking are those that relate to economics versus heritage  
preservation. Planning decisions often involve compromises and choices between  
competing policies. Such decisions, are best left to elected representatives who have the  
responsibility to weigh the competing interests and factors that impact on such decision . . .  
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Neither the Board nor this court should embark on their review duties in a narrow legalistic  
manner as that would be contrary to the intent of the planning legislation. Policies are to be  
interpreted reasonably so as to give effect to their intent; there is not necessarily one correct  
interpretation. This is implicit in the scheme of the Planning Act and in particular in the  
limitation on the Board’s power to interfere with a decision of a municipal council to enter into  
development agreements . . . [emphasis added]  
[204]  
The Board will note here a matter which it will also refer to later, in relation  
to the text which the Board has italicized in paragraph 164 of Heritage Trust, above. The  
bulk of the evidence filed by the Appellants and, in particular, all of the evidence filed by  
the two experts Dr. Bray and Mr. Allsopp, refer only to policies relating to heritage  
preservation, i.e., they omit all reference, much less analysis, to provisions such as  
economics, as referred to by the Court of Appeal in the above-noted passage.  
[205]  
In Tsimiklis, the Nova Scotia Court of Appeal made the following comments  
regarding a number of subjective and imprecise terms which appeared in the MPS:  
. . . Such notions as "appropriate development" and "undue impact" as applied to the  
appellant's project are primarily for the consideration of Council, not the Board. There is no  
sharp line of division in these policies as they relate to the appellant's proposal that were  
crossed by Council. [para. 63]  
[206]  
The role of the Board in discerning the intent of an MPS was further  
canvassed in the decision of the Nova Scotia Court of Appeal in Mahone Bay Heritage and  
Cultural Society v. Town of Mahone Bay and 3012543 Nova Scotia Limited, [2000] N.S.J.  
No. 245. The Court in Mahone Bay, while affirming the principles in Kynock and Heritage  
Trust, cautioned that the principles referred to in Heritage Trust "were made in the context  
of the issues raised by the facts of that appeal," and need not be applied "when the intent  
of the strategy is clear," as the Court found it to be in Mahone Bay.  
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[207]  
In Mahone Bay, the Court of Appeal decided that the reverse could also be  
true. The Court in Mahone Bay said that the intent of the Town’s Municipal Planning  
Strategy in that case was clear, thereby not requiring the application of Heritage Trust;  
nevertheless, the Court also said that provisions in the Land Use Bylaw could be used to  
help determine the intent of the MPS, by “throwing light on the intent of the strategy” [para.  
95 Mahone Bay].  
[208]  
Section 219 (1) of the Municipal Government Act describes the relationship  
between an MPS and LUB:  
219 (1)  
Where a council adopts a municipal planning strategy or a municipal planning  
strategy amendment that contains policies about regulating land use and  
development, the council shall, at the same time, adopt a land-use by-law or  
land-use by-law amendment that shall enable the policies to be carried out.  
In J & A Investments Ltd. v. Halifax (Regional Municipality), [2000] N.S.J. 92 (S.C.), where  
the meaning of an LUB was in issue, Davison, J., reasoned that s. 219 (1) means that an  
MPS may be used to help determine the intent of the LUB.  
[209]  
In 3034875 Nova Scotia Limited v. Halifax (City), [2005] N.S.U.R.B.D. No. 85  
(Q.L.), 2005 NSUARB 90, the Board (referring to the Court’s use of the L.U.B. to interpret  
the MPS) said:  
“. . . In Tsimiklis v. Nova Scotia Utility and Review Board et al., [2003] N.S.J. No. 64 (Q.L.),  
2003 NSCA 30 (), the Court reviewed a Board decision which attempted to apply the  
Mahone Bay principle of using the L.U.B. to interpret the M.P.S. The Board had reversed a  
decision by a community council which would have allowed the development to occur.  
Both Mahone Bay and Tsimiklis refer to the simultaneous adoption of the M.P.S. and L.U.B.  
provisions as a factor to be taken into account when using the L.U.B. to interpret the M.P.S.  
In Tsimiklis, the two had not been adopted together, and the Court observed that, “. . . that  
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great caution must be exercised in using a subsequently enacted L.U.B. or amendment to  
an L.U.B. in the interpretation of a previously enacted M.P.S.” [para. 56] Even if they had  
been adopted together, the L.U.B., while it can be a tool for interpreting an M.P.S., ought not  
to “be used to tie council’s hand . . . [para. 59].” [paras. 120-121]  
[210]  
Thus, according to Nova Scotia’s present case law, it seems one may use  
the MPS to help determine the intent of the LUB (J & A Investments), and use the LUB to  
help determine the intent of the MPS (Mahone Bay), although the circumstances in which  
the LUB may thus be used are limited, and perhaps increasingly so (Tsimiklis). In the  
present case, it is the intent of the MPS which is in issue.  
[211]  
With respect to the primacy of a municipal council (in relation to planning  
matters), the Board notes that, at certain points in the hearing, Mr. Pink referred to the  
MPS as a document made by the public (impliedly ignoring the role of Municipal Council  
in relation to the development and adoption of the MPS). For example, he referred to the  
MPS as a document “which was prepared by the citizens of Halifax with the assistance of  
planning staff . . .”  
[212]  
While the Board considers that nothing turns upon the point in the present  
decision, it notes that it rejects this proposition: the Municipal Government Act clearly  
establishes that the MPS is a document prepared by, and ultimately adopted by, municipal  
councils. Councils must consult with the public, but the final decision (absent ministerial  
approval to have the MPS come into force) as to whether an MPS is to be adopted, and  
in what form, is one which belongs to Council alone.  
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The HRM MPS and LUB  
Range of Arguments Raised in this Appeal  
[213]  
In keeping with the significance which it was apparent both the Appellants  
and Respondents attached to this appeal, the Board was faced with, by a significant  
margin, a far greater volume of evidence than ever before in a planning appeal. Likewise,  
there were more matters raised as separate issues than, insofar as the Board is aware,  
has ever occurred in any other planning appeal. The Board has concluded that it would  
be inappropriate for it to attempt to give even a pretense of exhaustively addressing each  
of the points that had been raised before it.  
[214]  
The Board will note here, however, as it will elsewhere, that it considered all  
the points submitted to it, and ultimately concluded that none of the arguments of the  
Appellants satisfied it on the balance of probabilities that the decision by HRM Council to  
enter into the development agreement in question was one which failed to reasonably carry  
out the intent of the MPS.  
[215]  
The Board will also note that, while it has provided separate categories for  
certain items (such as “heritage and views” and “height”), it does not consider that these  
items, or indeed certain others which the Board has, for convenience, placed into individual  
categories, are independent of one another. In the Board’s view, the HRM MPS manages,  
more than once, to touch upon several of these categories in a single provision. The  
Board considers that, in deciding whether a Council’s decision reasonably carries out the  
intent of an MPS, one must ultimately look at all of the provisions together, in the context  
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of the particular development under consideration.  
“Should” and “Shall”  
[216]  
The Halifax Municipal Planning Strategy, like all planning strategies in the  
Board’sexperience,containssome provisionswhichsayCouncil“should”do certainthings,  
and other provisions which say that Council “shall” do certain things.  
[217]  
In Midtown Tavern and Grill Ltd., [2005] N.S.U.R.B.D. No. 101 (Q.L.), 2005  
NSUARB 105, the developer argued, in effect, that “should” should be interpreted in the  
Halifax MPS as meaning “shall,” and vice versa. The Board rejected that assertion, a  
finding not criticized by the Court of Appeal. Adopting the interpretations given in s. 9(3)  
of the Interpretation Act, R.S.N.S 1989, c. 235, the Board determined that “shall” would be  
regarded as “imperative,” and “may” would be “permissive.” Noting that there was no  
definition of the word “should” in the Interpretation Act, the Board stated that its  
. . . interpretation of “should” is that it lies somewhere between the mandatory “shall” and the  
permissive “may” . . .  
. . .  
The Board finds that the word "should," as used in the present context, carries with it  
significantly less importance than the word "shall," and, in particular, does not carry with it the  
uniform requirement for compliance which is ordinarily attributed to "shall." [para. 181]  
The Board notes that, in the present proceeding, Mr. Allsopp (testifying on behalf of the  
Appellants) likewise agreed that, where “should” appears, rather than “shall,” Council has  
more latitude and discretion” in determining the extent to which the policy may be  
addressed.  
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[218]  
For purposes of the present proceeding, the Board adopts its analysis in  
Midtown of “should” and “shall.” In doing so, it also notes, and agrees with, various of the  
comments made by Mr. Dunphy and Mr. Sampson in relation to this point. Mr. Dunphy,  
in the course of his evidence, said that “shall” can sometimes be used in the Halifax MPS  
in a way which is not as “predictive” as one might otherwise think the use of the term “shall”  
would be. For example, he said, a phrase such as “Council shall consider” requires  
Council to look at a certain set of information, or to consider certain alternatives, or to  
consider a set of policies, but does not bind Council to a particular outcome.  
[219]  
In similar vein, Mr. Sampson said that the presence of the word “shall” in an  
MPS did not always mean that such a statement was “entirely mandatory.” He contrasted  
the “clearly mandatory” requirements of CBD Policy 7.3.1 (setting a basic building height  
of 60 feet, and then stating that “no building shall exceed 75 feet in overall height or  
penetrate a view plane”) with policies which use the word “shall” in conjunction with words  
such as “attempt,” “generally,” and “encourage” (as found, for example, in City-Wide Policy  
6.4, and CBD Policies 7.1 and 7.1.2).  
An MPS with a Variety of Themes  
[220]  
While a great deal of the evidence and submissions to the Board was  
focused upon matters of heritage, views, height, and architectural appearance, the Halifax  
MPS, in fact, has a number of other different themes, such as (in the order in which they  
appear in the City-Wide part of the MPS):  
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!
!
!
!
Economic Development  
Commercial Facilities  
Heritage Resources  
Community Facilities  
[221]  
As can be seen above, the first of the City-Wide objectives and policies is  
“Economic Development,” while “Heritage Resources” does not appear until Policy Set 6.  
Within City-Wide Policy Set 1 “Economic Development,” City-Wide Policy 1.6 directs that  
the location of development occur in a manner consistent with “economic, social and  
environmental objectives.”  
[222]  
City-Wide Policy Set 3 is entitled “Commercial Facilities,” and contains the  
directive that the CBD is to be “the principal business centre” for Halifax-Dartmouth, with  
these activities to include office, shopping, finance, government, residential, recreation,  
hotel, and entertainment.  
[223]  
Asnoted, “Heritage”doesnotappearin the City-Wide policiesuntil PolicySet  
6; “Environment” does not appear until Policy Set 8. In noting the sequence, the Board  
does not wish to imply that it regards the order in which the MPS deals with these items  
asbeingamatterof particularsignificance(althoughtheRespondentssuggested atcertain  
points in their submissions that some weight should be afforded to this). Nevertheless, the  
Board does consider that the order of the policies in the City-Wide section (and, as will be  
seen shortly, in the CBD section) is not consistent with the at least implied, and sometimes  
expressed, position of the Appellants that heritage matters (including such things as views  
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from Citadel Hill) have a greater importance than other provisions. In the view of the  
Board, while that argument can be made, it is at least equally possible to interpret the MPS  
as according equal importance to such matters as economic or commercial activity within  
the CBD.  
[224]  
When one turns to the CBD provisions, which are in Section III of the MPS,  
one finds the following topics (reproduced here in the order in which they appear in the  
MPS):  
!
!
!
!
!
!
!
Economic  
Social  
Circulation  
Heritage  
Open Space  
Views  
Scale and Design Detail  
[225]  
Thus, just as in the City-Wide provisions, “Economic” is the first policy in the  
CBD part; “Heritage” is in fourth position. Once again, the Board does not attach particular  
significance to this, and does not consider that fact that “Economic” is the first item which  
appears in the CBD, just as it is the first item that appears in the City-Wide, means that  
“Economic” is more important than other matters, such as “Heritage,” “Views,” or “Scale  
and Design Detail.”  
[226]  
CBD Policy Set 1 states, as an objective, the strengthening of the CBD “as  
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a dynamic focus” of a number of activities, including commercial and residential.  
[227]  
The overwhelming importance to the Appellants of heritage (and related  
matters such as views, scale, and design detail), as opposed to economic, commercial, or  
the many other matters which are found in the MPS, was a frequent thrust of the  
Appellants’ arguments. A subtle example of this, in the Board’s opinion, is Mr. Epstein’s  
reference to “scale as a fundamental value,” asserting that, when taken together with the  
respect found in the MPS for heritage, views and design:  
. . . it is not reasonable to read the MPS as subordinating these policies to the economic  
policies. On the contrary, it implies that any legitimate economic objective should be pursued  
in a way that supports the other policies. Any other approach would not be reasonable.  
[Mr. Epstein Final Submission, p. 48]  
[228]  
TheBoardseesthisassertion ashavingtwo fundamental arms. The firstarm  
relates to the notion that the Respondents, HRM and the Developer, were arguing to the  
Board that the MPS should be read as subordinating policies such as heritage, views, etc.,  
to the economic (and commercial) policies. The Board did not perceive this as being a  
central argument on the part of HRM or the Developer, or indeed an argument upon which  
they really appeared to be placing any significant weight at all.  
[229]  
This is not to say, of course, that the Respondents did not argue that  
economic issues were important — they did, but in the context of taking into account all  
of the provisions of the MPS as a whole, and not just concentrating (as the significant part  
of the Appellants’ evidence did) solely upon matters related, directly or indirectly, to  
heritage.  
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[230]  
The second arm relates to Mr. Epstein’s argument that any legitimate  
economic objective “should be pursued in a way that supports the other policies.” He then  
goes on to say that “any other approach would not be reasonable.”  
[231]  
With respect, the Board thinks that one might reasonably infer this argument  
to be, at least on certain levels, a skillful way of in effect arguing — in reverse — exactly  
the position which he attributed to HRM and the Developer. In other words (in saying that  
economic objectives “should be pursued in a way that supports the other policies”), Mr.  
Epstein is impliedly saying, at least in part, that the MPS should be read as, to some  
degree, subordinating economic objectives to the other policies, such as heritage, views,  
etc.  
[232]  
Whatever may have been intended by Mr. Epstein’s argument, it is the view  
of the Board that it would be just as incorrect for it to regard the economic objectives of the  
MPS to be subordinate to the heritage ones (for example), as a matter of principle, as it  
would be for it to regard the heritage objectives as being automatically subordinate to  
economic ones.  
[233]  
That heritage is important in the MPS, that views are important, that scale  
and design detail are important, that economic issues are important, that social issues are  
important, and that a number of other issues are important as well, are (in the view of the  
Board) truths which should be self evident to any objective reader.  
[234]  
One crucial question, then, is — in the context of this particular development  
agreement, on this particular site — the weight to be accorded to individual policies (e.g.,  
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economic and commercial, social, heritage, height, views, etc.). That is the task which  
faces HRM Council, under its present MPS, whenever it deals with matters such as this.  
The Board’s task, on appeal, is to not ask itself whether it would have reached the same  
conclusion that Council did, but whether Council’s decision can be seen as reasonably  
carrying out the intent of the MPS.  
Height  
[235]  
In one of his submissions, Mr. Epstein asserted that no party objected to the  
development of the site, or to the use proposed for it, but said that the focus of the dispute:  
. . . is on height and its implications for the Citadel, for the adjacent designated heritage  
buildings, and for future development in the rest of the CBD.  
[Mr. Epstein Final Submission, p. 40]  
Some of the submissions on behalf of the Appellants pointed to tall buildings always being  
unacceptable, at least in the CBD. Mr. Epstein, for example, in response to the question  
“Where can tall buildings go?” replies:  
. . . the proposition presupposes tall buildings are appropriate or necessary. The existence  
of successful low to medium rise projects in the CBD answers that.  
[Mr. Epstein Final Submission, p. 51]  
The Board does not consider that this position, as enunciated by Mr. Epstein, is  
inconsistent with that taken, at least at certain times, by others who testified on behalf of  
his client, or on behalf of Mr. Pink’s clients (such as Dr. Bray).  
[236]  
The Board sees submissions of this sort as being directed towards what a  
good MPS (from the point of view of Mr. Epstein or of his clients) would contain, i.e., that,  
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from their point of view, only low to medium-rise buildings are appropriate or necessary in  
the CBD. With respect, the Board finds such submissions — however useful they might  
be to a municipal council which is reviewing the content of its MPS — to be irrelevant. As  
noted elsewhere in this decision, its task under the Municipal Government Act is not to  
criticize the policy choices made by a municipality in adopting a particular MPS with  
particular provisions. The Board’s task — and its only task — is to decide whether or not  
a council’s decision to enter into a development agreement reasonably carries out the  
intent of the MPS which council itself chose to adopt.  
[237]  
As the Board has just noted in the section above, one must consider not only  
specific provisions, such as those relating to height, but the MPS as a whole, which  
includes many other provisions on topics other than heritage or height (including, for  
example, “Economic”). Nevertheless, the height of theproposed development was, without  
doubt, a topic frequently raised, and explored at length, in the evidence before the Board,  
and in the submissions from counsel for the various parties.  
[238]  
No one, including HRM and the Developer, disputes that the proposed  
development is one of the tallest ever proposed for HRM. The parties, however, disagree  
— strenuously — as to whether or not the height of the proposed development reasonably  
carries out the intent of the MPS.  
[239]  
Before exploring certain of the submissions made to it in relation to height,  
and offering its own conclusions with respect to the height of the proposed development  
and the MPS, the Board considers it useful, in understanding the approach of the HRM  
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MPS to the matter of height, to briefly refer to some of the types of approaches which can  
be taken by municipalities to height. It is possible, for example, for a municipality to simply  
set maximum heights for buildings in particular areas. According to the evidence of Mr.  
Allsopp (a witness for the Appellants), such fixed limits were adopted in Washington D.C.,  
thereby restricting building heights on Pennsylvania Avenue to 160 feet above grade, the  
heights of buildings in surrounding districts to 130 feet, and in residential areas to 90 feet.  
In similar vein, Ottawa, in a 1914 bylaw, imposed a height restriction, according to Mr.  
Allsopp, of 110 feet, with that simple height restriction remaining in force for the next half  
century.  
[240]  
Halifax has not taken that simple approach. It has, instead, adopted a  
mixture of different approaches.  
[241]  
In making this observation, the Board is in no way, implicitly or explicitly,  
criticizing Halifax for doing this. Under the Act, it would be wrong for the Board to offer an  
opinion as to which method of height control (if any), among the various which are  
available, would be most appropriate for the CBD, or indeed other parts of Halifax. The  
Board’s task (a point referred to elsewhere in this decision) is not to critique the approach  
taken by a municipality to its MPS, but rather simply to measure a decision by a municipal  
council (in this case, to enter into a development agreement for the Texpark property)  
against the MPS which the municipality has chosen to adopt.  
[242]  
As noted, in the case of Halifax, one finds in the MPS a mixture of  
approaches relating to height: some of the provisions in the MPS establish fixed, or  
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“objective,” heights for the areas to which they apply, while at the other end of the  
continuum, some other provisions in the MPS establish criteria which can relate to height,  
but which can be described as qualitative, rather than objective.  
[243]  
The best known of the objective criteria relating to height in the Halifax MPS  
are theviewplanes, which were established around1974, andincorporatedinto theHalifax  
MPS when it was adopted in 1978. There are 10 view planes, and it is undisputed by the  
parties that they create an absolute upper limit for the construction of buildings on sites  
which are located below them (the only exception to this is where an existing building  
protrudes through a view plane, and a new one may be built in its place as long as it  
protrudes no more than the previous one did).  
[244]  
As the Board has already noted, the two proposed towers are not under a  
view plane.  
[245]  
View Plane 6 does touch the southwestern corner of the property, the portion  
of the property in which the towers are not located. The proposed towers, then, would not  
be under a view plane, but would be adjacent to one. Another objective requirement within  
the Halifax Planning Documents relates to the orientation of a building which is near, but  
not under, a view plane. Section 77 of the LUB (quoted in Appendix A) requires that,  
where a proposed building is adjacent to a view plane, the sides of the proposed building  
must not be parallel to the view plane, unless the edge of the view plane is parallel to the  
immediate streetline. It is undisputed that the subject property does not contravene this  
requirement.  
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[246]  
A further type of objective requirement found in the MPS, relating to height  
control, and capable of being exactly determined, is that found in City-Wide Policy 6.3.2,  
which states:  
6.3.2  
W ithin the area bounded by North Street, Robie Street and Inglis Street, no  
development shall be permitted that is visible over the top of the reconstructed  
earthworks of the Citadel ramparts, from an eye-level of 5.5 feet above ground level  
in the Parade Square of the Citadel.  
It is possible to exactly determine, through surveying calculations, whether or not a  
proposed structure complies with this rule. Again, it is undisputed that the proposed  
structure does so comply.  
[247]  
A further criterion which objectively relates to height is found in CBD Policy  
7.3.1, relating to Band A, on Brunswick Street. It sets a basic maximum height for  
buildings of 60 feet, with one additional foot allowed for every foot and a half of setback,  
to an absolute maximum of 75 feet. The subject property is not in Band A. It is five blocks  
away from Band A, and much lower down the hill, nearer the harbour.  
[248]  
more qualitative provisions found elsewhere in the MPS.  
[249] In City-Wide Policies 6.3 and 6.3.1, one finds provisions which contain some  
objective elements, but significant qualitative or subjective ones.  
One then turns from these fixed, objective, or formulaic criteria to the much  
[250]  
City-Wide Policy 6.3 states as follows:  
6.3  
The City shall maintain or recreate a sensitive and complimentary setting for Citadel  
Hill by controlling the height of new development in its vicinity to reflect the historic  
and traditional scale of development.  
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The Board notes that the word “complimentary” (spelled with an “I”) appears in City-Wide  
Policy 6.3. This is, so far as the Board is aware, the only place in the MPS in which this  
spelling appears: elsewhere, the word, although used in a similar context, is spelled  
“complementary.”  
[251]  
There is no definition, anywhere in the MPS, of the terms “complementary,”  
“setting,” or “vicinity.”  
[252]  
City-Wide Policy 6.3.1 establishes a maximum height of “approximately four  
traditional stories” for new structures which are to be built “immediately adjacent to Citadel  
Hill and increasing with distance therefrom.” Neither this provision, nor other provisions  
within the MPS, however, define “immediately adjacent,” nor do they provide any formula  
for the rate of increase in height with distance from the Citadel.  
[253]  
As the Board pointsout elsewhere in this decision, it considers that (following  
the direction given to the Board by the Court of Appeal in various previous decisions)  
determining the answer to the question before it (whether or not Council’s decision  
reasonably carries out the intent of the MPS) cannot normally be properly determined  
merely by looking at a single provision; instead, it considers that the direction given the  
Board in past decisions by the Court of Appeal requires it to look at the MPS as a whole,  
and to examine even specific provisions within the context of that whole. In the view of the  
Board, the approach taken by HRM Planning Staff is consistent with this view. Their  
written reports, and oral evidence, were, in the main, a reasonable and balanced attempt  
to explore the MPS as a whole, and the specific provisions relating to height, and other  
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matters, in the context of the proposed development.  
[254]  
In their March 15 report to Council, Planning Staff showed the height above  
sea level of the proposed development, as well as that of certain other existing buildings.  
The Board will note here that various heights for various existing buildings appeared within  
the evidence before it. While some emphasis may have been placed upon one person’s  
estimate allegedly being more accurate than another, the Board considers that any  
variations in height which may have been pointed to by particular witnesses are not, in the  
view it takes of the evidence and law in the matter before it, material to the outcome.  
[255]  
Planning Staff show the Earthworks on the Citadel ramparts as being  
between 238 and 248 feet above sea level, with viewing positions B, C, E and R being  
between 208.6 feet and 240 feet.  
[256]  
The proposed development is estimated by Planning Staff in their March 15  
report at 317 feet above sea level, which is 30 feet shorter than Maritime Centre, and only  
a few feet taller than Purdy’s Wharf Tower II and 1801 Hollis Street (by 13 feet and 17 feet,  
respectively). It is about 100 feet taller than the Centennial Building, which is adjacent to  
the subject property, and a little under 100 feet taller than Founders Square.  
[257]  
The Board will note here that both the Centennial Building and Founders  
Square (the latter being a structure for which most witnesses indicated some degree of  
approval, although Philip Pacey was critical of its height as well), exceed the height of at  
least some of the viewing positions from Citadel Hill, and are only slightly lower (to a  
maximum of 33 feet) than the highest of the topmost line of Earthworks on the Citadel  
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ramparts.  
[258]  
PlanningStaff’sMarch 15 report alsomadespecificreferenceto the Midtown  
appeal, in which the Board had reversed a decision by Council which had approved the  
entering into a development agreement at the Midtown Tavern site, a Board decision  
upheld by the Court of Appeal. Planning Staff made extensive reference to findings by the  
Court of Appeal, as well as reference to some of the statements appearing in the Board’s  
decision.  
[259]  
They noted that Mr. Porter (who was later to give evidence in the present  
proceeding) had expressed the opinion, in the course of the Midtown appeal, that the  
proposed 17 storey Midtown structure, which was to stand 259 feet above sea level (i.e.,  
58 feet lower than the structure which is the subject of the present proceeding), on a site  
in the vicinity of Citadel Hill (only one block below Brunswick Street), was a proposal not  
reasonably consistent with the policy directions of the MPS. Mr. Porter, however, had  
indicated that, if the Midtown structure had been proposed for 12 storeys, he might well  
have approved it.  
“The Vicinity of Citadel Hill”  
[260]  
The Board will devote a significant amount of space to this point, as the  
concept of “vicinity,” in relation to Citadel Hill, has an important relationship to the impact  
of certain provisions of the MPS upon this proposed development, particularly with respect  
to a variety of matters, including height.  
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[261]  
In a nutshell, the Appellants say the subject property lies in the vicinity of  
Citadel Hill; the Respondents say it does not.  
[262]  
As the Board has already noted, the burden of proof in an appeal of this type  
rests, in general, upon an appellant.  
[263]  
In the present instance, to succeed, in relation to the matter of “vicinity” (and  
in relation to the other points they raised), the Appellants have to prove not simply that their  
position (that the subject property is within the vicinity of Citadel Hill) reasonably carries out  
the intent of the MPS, but that HRM’s position does not. On this point, as in others  
throughout the proceeding, the Respondents, HRM and the Developer, put forth both  
evidence and legal argument intended to rebut the Appellants’ argument. The  
Respondents’ position with respect to the Appellants’ vicinity argument was simply that to  
regard the subject property as lying outside the vicinity of the Citadel was an interpretation  
which reasonably carries out the intent of the MPS. As on all points of difference which are  
material to the statutory test which the Board must apply in this proceeding, the Board  
prefers the Respondents’ position on this point to that of the Appellants.  
[264]  
Not surprisingly, a significant amount of evidence and argument before the  
Board in the present proceeding was directed at the question of the extent of lands which  
could be properly considered to be within the “vicinity” of Citadel Hill.  
[265]  
The term “vicinity” appears in City-Wide Policy 6.3 (“controlling the height of  
new development in its vicinity”) and in CBD Policy 7.3 (“control the height of new  
development within the CBD and the vicinity of Citadel Hill”):  
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6.3  
7.3  
The City shall maintain or recreate a sensitive and complimentary setting for  
Citadel Hill by controlling the Height of new development in its vicinity to  
reflect the historic and traditional scale of development.  
The City shall control the height of new development within the CBD in the  
vicinity of Citadel Hill, pursuant to Policies 6.3, 6.3.1, 6.3.2 and 6.3.3 of  
Section II of this Plan.  
[266]  
Before exploring the opinions expressed to it by the various witnesses, the  
Board will first note, once again, that the term “vicinity” is not defined within the MPS. In  
general, the Board considers that, in attempting to interpret the meaning of such a word,  
the Board can turn to such tools as ordinary dictionaries, as well as the opinions of experts.  
The Board considers that the evidence of the experts does not point to a firm technical  
definition of the word “vicinity.”  
[267]  
With respect to the ordinary dictionary definition, the following definition of  
“vicinity” appears in the Compact Edition of the Oxford English Dictionary (Oxford  
University Press, 1981):  
1. The state, character, or quality of being near in space; propinquity, proximity. 2. Nearness  
in degree or quality; close relationship or connextion; resemblance, likeness . . . 4. In the  
vicinity (of), in the neighbourhood (of), near or close (to)  
[268]  
The Board notes here, as well, a definition for “setting” as found in the  
Compact Edition of the Oxford English Dictionary (Oxford UniversityPress, 1981) includes:  
2. The manner or position in which anything is set, fixed or placed. 6., the manner in which  
a jewel is “set” or mounted; concr. the frame or bed (of precious metal or the like) in which  
a jewel is set, 6b the environment or surroundings in which a person or thing is “set”; the  
literary framework of a narrative or other composition; the mounting of a play.  
[269]  
HRM Planning Staff told Council that, unlike the Midtown proposal, the  
property which is the subject of the present proceeding, being:  
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. . . six blocks away and down slope from Brunswick Street and the base of Citadel Hill, is not  
in the vicinity of Citadel Hill . . . [emphasis in original]  
[Exhibit H-1(b), p. 568]  
It was, therefore, in their opinion, not subject to all of the same considerations as found in  
Midtown and in ATC Properties.  
[270]  
The Planning Staff Reports, then, were unequivocal about their opinion that  
the subject property is not in the vicinity (as the term is used for the purposes of the MPS)  
of Citadel Hill. The evidence placed before the Board on behalf of the HRM and the  
Developer was of similar import.  
[271]  
emphatically of the view that the subject property lay within the vicinity of Citadel Hill.  
[272] Mr. Allsopp used a variety of different terms in describing the vicinity, but the  
Those testifying on behalf of the Appellants, on the other hand, were  
Board concluded from his comments overall that he considered, at a minimum, that  
“anything that’s between Citadel and the water” is in the vicinity of the Citadel, for the  
purposes of the MPS. He used similar terms in relation to the word “setting” as well.  
[273]  
In his submissions, Mr. Epstein argued that “buildings by their very size have  
the potential to be de facto in the vicinity of Citadel Hill,” going on to argue that this meant  
that the Maritime Centre is in the “vicinity” of Citadel Hill.  
[274]  
Philip Pacey appeared to be of the view that anything within the CBD was  
likewise within the vicinity of Citadel Hill. At certain points in his evidence, however, he  
also seemed to be saying that “vicinity” included everything “between the view planes,”  
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whether or not it was in the CBD (“you don’t need the words ‘within the CBD’ either . . .”).  
[275]  
In Midtown, the proposed development was one block below Brunswick  
Street, which runs along the perimeter of Citadel Hill. The Board in Midtown, affirmed by  
the Court of Appeal, concluded that the subject property in Midtown lay within the “vicinity”  
of Citadel Hill, for the purposes of, for example, City-Wide Policies 6.3 and 6.3.1.  
[276]  
The Court of Appeal, in referring to City-Wide Policy 6.3.1, and its reference  
to properties “immediately adjacent to Citadel Hill” found that the Midtown site “. . . would  
certainly be ‘in the vicinity,’ ” although not immediately adjacent. City-Wide Policy 6.3.1  
refers to, for properties that are in the immediately adjacent area, a “generally low to  
mediumrisecharacterof development in thearea of approximatelyfourtraditionalstoreys.”  
[277]  
In Midtown, the Board concluded that City-Wide Policy 6.3.1:  
. . . is "not an absolute direction" because of the use of the words "generally" and  
"approximately". Midtown also points out, correctly, that there is no formula within the M.P.S.  
to determine how much height can increase from that existing in the area immediately  
adjacent to Citadel Hill.  
While the Board agrees with submissions made by counsel for Midtown that this enables  
Council to exercise some discretion with respect to heights outside the view planes, the  
Board finds that Section 6.2, 6.3 and 6.3.1 cannot reasonably bear an interpretation which  
would permit construction of a 17-storey tower two blocks from Citadel Hill, with an elevation  
of 259 feet, some 30 or 40 feet above Viewpoints B and C, and 19 feet above Viewpoint R,  
at the top of the Citadel; and, at the same time, meet the intent of making every effort to  
preserve the views from the Citadel and maintaining a complementary setting for the Citadel.  
Thus, the Board concludes that the decision of Council does not reasonably carry out the  
intent of the M.P.S. with respect to height. [paras. 229 and 230]  
[278]  
The Court of Appeal considered that, in reaching its ultimate conclusion  
(reversing Council), the Board “. . . both articulated and applied an appropriate level of  
deference to Council’s decision.”  
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[279]  
In Midtown, the development site was two blocks from Citadel Hill, and, in the  
opinion of the Court of Appeal, as well as of the Board (and, in essence, of the parties to  
that proceeding), in the “vicinity” of the Citadel. In the present instance, the former Texpark  
site is six blocks away from the Citadel. The MPS which the Board must apply in this  
proceeding is the same as that which applied in Midtown. Just as in Midtown, it is the  
opinion of the Board that there is no formula to determine how high a structure which is  
built upon the former Texpark site can be.  
[280]  
TheMarch15 StaffReportinthe presentproceedingmadespecificreference  
to the Board decision in Midtown, as well as the earlier Municipal Board decision in ATC,  
made in respect of the present Cambridge Suites site, saying:  
Both the Midtown and A.T.C. decisions involved a determination of what can reasonably be  
considered to be in the “vicinity” of Citadel Hill. In both cases, the NSURB considered the  
proximity of properties to view planes and Citadel Hill and determined that buildings of such  
height in such locations would not be consistent with MPS policies related to heritage  
properties and views from Citadel Hill. However, the Board’s decision in each case did not  
preclude the approval of tall buildings in other locations of the CBD.  
[Exhibit H-1(b), p. 567]  
and quoting the following from the Board’s decision in Midtown:  
The Board agrees with Mr. Porter that a very relevant question is what is a reasonable height  
of a building that will not overpower the Citadel. On cross-examination, he said it might be  
12 storeys at this location. In any event, Mr. Porter’s opinion was, and the Board agrees, that  
a building which stands 259 feet above sea level, one city block from Citadel Hill, is not  
reasonably consistent with the policy directions in the M.P.S. [emphasis in original]  
[Exhibit H-1(b), p. 568]  
[281]  
As the Board has previously noted (in “Facts” para. 17, above) the first report  
from Planning Staff in December 2005 (December 2005 Planning Report), in similar vein,  
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stating that the proposed structure would not be “immediately adjacent to Citadel Hill” and  
that because the site is six blocks away, “a taller building may be considered.”  
[282]  
Whilestrenuouslyopposingtheproposeddevelopment,Mr. Allsoppon cross-  
examination acknowledged that Council had authority to exercise judgment in such  
circumstances:  
Q.  
. . . determining what height is permitted in those areas not covered by view planes  
involves judgment on the part of Council, would you agree with that?  
A.  
That is correct. Yes.  
[Transcript, February 5, 2007, p. 138]  
Further, he acknowledged that there is a difference in height above sea level between  
Brunswick Street and Lower Water Street of about 130 feet, with the height of the School  
BoardBuildingonBrunswickStreetbeingfourstoreys(approximately40feet),whichwould  
mean that a building standing 170 feet above sea level on Granville Street would,  
according to this calculation at least, be about the same height as the School Board  
Building. The development proposed for the former Texpark site would stand 317 feet  
above sea level. Having said that, however, he said that this did not amount to his  
accepting that a building of such height could be built under the MPS.  
[283]  
Mr. Allsopp, as the Board has already noted, takes the view that the decision  
by HRM Council to enter into the development agreement was a decision which failed to  
reasonably carry out the intent of the MPS. In evaluating the Board’s view of the  
significance (or, rather, the relative lack thereof) of Mr. Allsopp’s opinion on this point, the  
Board will first note (although it places no significant weight upon this point alone) that his  
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“Summary of Opinion” is unusually brief for an opinion in a planning matter. Excluding its  
various attachments, most of which the Board considered to be irrelevant to the matter at  
hand, it is less than three pages of typed text. Moreover, more than a page and a half of  
that text is a description of the height control approach used in Ottawa, with some  
references to Washington, D.C.  
[284]  
His explanation as to why, in his opinion, Council’s decision to enter into this  
development agreement is inconsistent with the MPS is little more than a page in length.  
Within that limited text, he expresses his opinion with respect to height, as well as with  
respect to scale, massing, and views, making reference to the following MPS provisions:  
City-Wide Policies 6.2, 6.3, 6.3.1, 6.4, and 8.8; CBD Policies 7.1, 7.1.2, 7.2, and 7.2.1. It  
does not quote in full any of these provisions, and in certain instances, contains no  
language at all from the provisions.  
[285]  
Further, while the Allsopp Summary of Opinion is somewhat cryptic with  
respect to the provisions just enumerated, it contains no reference whatsoever to anyother  
provisions contained within the MPS (other than those just enumerated). More particularly,  
the Allsopp Summary of Opinion contains no reference to those matters which (in the  
judgment of the Board) must, on any objective reading of the MPS, be matters of some  
importance — even if one, having considered them, were still to conclude that heritage  
related provisions must govern. For example, the City-Wide provisions of the MPS contain  
(in addition to City-Wide Policy Set 6 - “Heritage Resources,” to which Mr. Allsopp  
referred), other sections, such as Economic Development (City-Wide PolicySet 1, one and  
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a half pages), Commercial Facilities (City-Wide Policy Set 3, six pages), Community  
Facilities (City-Wide Policy Set 7, four pages), Environment (City-Wide Policy Set 8, two  
pages). The Allsopp Summary of Opinion omits all reference to these provisions.  
[286]  
One finds similar remarkable omissions from his opinion in relation to the  
CBD provisions. His opinion entirely ignores the existence of CBD provisions dealing with  
such topics as “Economic” (CBD Policy Set 1, which occupies three pages in the MPS),  
“Social” (CBD Policy Set 2, which occupies two pages in the MPS), and “Circulation” (CBD  
Policy Set 3, which occupies three pages in the MPS).  
[287]  
In short, the Allsopp Summary of Opinion ignores even the existence of any  
provisions in the MPS other than those matters in which Mr. Allsopp is interested (his  
focus, the Board finds, being upon heritage matters, including such things as height, view,  
design details, etc.).  
[288]  
The Board also notes that the Allsopp Summary of Opinion also, surprisingly,  
omits any reference to City-Wide Policy 6.1 (in the “Heritage Resources” section), as well  
as CBD Policy Set 4 “Heritage.” Given Mr. Allsopp’s clear interest in, and even  
commitment to, matters of heritage, this is a surprising omission. One may infer (although  
the Board need make no finding upon it) that this occurred inadvertently, and perhaps  
reflects some of the circumstances in which he came to reach his opinion and draft his  
Summary of Opinion in the first place. The Board also notes (as it mentions below in its  
review of the evidence of Dr. Bray) that Dr. Bray’s evidence likewise omits all reference to  
CBD Policy 6.1 and CBD Policy Set 4 “Heritage”; indeed (as the Board outlines in detail  
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in a table below), the provisions which Dr. Bray chose to include in his report, and the  
provisions which are omitted from his report, largely parallel those provisions included in,  
or ignored, in Mr. Allsopp’s report. Notably, both the Allsopp and the Bray reports omit all  
reference to CBD Policy 6.1, under which the view planes bylaw is established.  
[289]  
The reference in the report of Mr. Allsopp (and also of Dr. Bray) to heritage  
related matters exclusively, and omission of such other relevant matters as “Economic,”  
etc., can be viewed in the context of how he came to be engaged to provide expert  
evidence in this matter, and the information which he had available to him when he  
developed his opinion. Mr. Allsopp had been a speaker at a Heritage Canada Conference  
in Ottawa, which was also attended by Philip Pacey, and by Dr. Bray, another person who  
gave expert evidence on behalf of the Appellants.  
[290]  
In cross-examination by counsel for the Developer, Mr. Allsopp admitted that  
he did not, when he prepared his “Summary of Opinion,” have a copy of the MPS and LUB.  
He had only excerpts of it, and those excerpts were ones given to him (as he recalled) by  
Philip Pacey. He was asked on cross-examination whether he had read any other  
provisions in the MPS apart from the excerpts given to him by Philip Pacey:  
A.  
I believe that's -- there are some provisions that are presented in the Midtown  
evidence and conclusions, so there may be other parts of the MPS that come  
through that route, but on the whole what you've asked me, in answer to your  
question I think that's reasonably correct, yes.  
Q.  
A.  
Would you agree that, as a general rule, in interpreting a planning document you  
should interpret it as a whole?  
Yes.  
[Transcript, February 5, 2007, p. 132]  
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Mr. Allsopp’s report contains no reference to CBD Policy 6.1, the view planes provision.  
[291]  
While Mr. Allsopp had been in Halifax at one point 17 or 18 years prior to the  
hearing, he had not been in the city since, and did not visit the site in advance of preparing  
his opinion.  
[292]  
Even if one overlooks the fact that Mr. Allsopp drew his conclusions, and  
drafted his Summary of Opinion, without having examined the MPS, his analysis of those  
provisions which he did choose to refer to is brief.  
[293]  
For example, his written Summary of Opinion (like Dr. Bray’s, as will be seen  
shortly) ignores the concept of “vicinity.” City-Wide Policy 6.3 and CBD Policy 7.3 both  
refer to controlling the height of new development in the “vicinity” of Citadel Hill: being in  
the “vicinity” of Citadel Hill is a precondition for these provisions to have any effect. As a  
reflection of the importance of this term, a significant amount of oral and written evidence,  
as well as submissions from various counsel, addressed this question, i.e., they address  
the question of whether or not the subject property is within the vicinity of the Citadel. Mr.  
Allsopp’s opinion does not explore this issue.  
[294]  
Not only does he fail to give any analysis at all of whether or not the subject  
property falls within the vicinity of Citadel Hill, but the word “vicinity” itself is entirely omitted  
from the text of his three page Summary of Opinion. At best, one might interpret Mr.  
Allsopp’s failure to explore, or even acknowledge, the issue of “vicinity” as reflecting his  
view that the point could not be controversial, i.e., that it would be generally accepted and  
not even a matter worthy of discussion that the subject property is within the “vicinity” of  
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the Citadel. For him to have drawn such a conclusion, however, would indicate either that  
he had never read, or had forgotten the existence of, the explorations of that very issue by  
Planning Staff in the report documentation which they had submitted to HRM Council (as  
well as reference by the Board to the topic of “vicinity” in Midtown, a decision Mr. Allsopp  
said he had reviewed). At worst, one might infer that he simply was unaware of the issue,  
just as (more or less by his own admission) he was unaware of any of the other issues  
within the MPS which were in provisions not supplied to him by Philip Pacey.  
[295]  
While Mr. Allsopp placed heavy emphasis on the importance of heritage  
designated properties, the Board concluded from his evidence that he did not know — and  
indeed admitted as much on cross-examination — which properties on Barrington Street  
(located between the Citadel and the subject property) are designated as heritage  
properties.  
Q.  
. . . Do you know yourself which of the buildings depicted on Exhibit H-19 have  
designated heritage status?  
A.  
I don't know individually.  
Q.  
Okay. Let me help you . . .  
[Transcript, February 5, 2007, p. 168]  
Further, he could not identify the properties (designated or not) on the west side of  
Barrington Street which are part of the proposed Barrington Street Historic District  
Revitalization Plan — even though, in his evidence, he had indicated much importance  
should attach to them. Indeed, Mr. Allsopp accepted, without argument, the individual  
identification by counsel for the Developer of those buildings, of their classification by style,  
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and whether or not they were designated as heritage properties.  
[296]  
While Mr. Allsopp’s written summary entirely ignored the issue of whether or  
not the subject project is in the “vicinity,” he provided oral opinions on the point, saying that  
the term “vicinity” means anything “to the east of the Citadel,” down to the waterfront. He  
also said that the “setting” of the Citadel extends all the way from the ramparts down to the  
waterfront, and that the “setting” and the “vicinity” are interchangeable:  
A.  
If I could just bring you back to [City-Wide Policy] 6.3, my interpretation of that is  
fixed on this expression "sensitive and complementary setting." In my view, the  
setting of Citadel Hill includes the area in front of Citadel Hill when seen from the  
harbour, that is, the area between the water and the base of the hill.  
Q.  
A.  
Okay. And so you're saying -- but you're saying the term, the phrase, "in its vicinity"  
refers to anywhere to the east of the Citadel.  
I'm saying it refers to its setting, and the setting, I believe, includes the area all the  
way down to the harbour, yes, between there, Citadel Hill, and the harbour. That is  
its setting referred to in [City-Wide Policy] 6.3.  
Q.  
A.  
Okay. So is it your evidence that [City-W ide] policy 6.3, the thrust of that policy is to  
control the image of the Citadel from the harbour or from the Dartmouth side? Is  
that the thrust of that policy?  
I don't think it's only that. I think it works the other way, too. It refers quite frequently  
to the views from the Citadel. It has the effect of controlling that, as well.  
[Transcript, February 5, 2007, pp. 145-146]  
[297]  
As the Board has already noted, Mr. Allsopp admitted on cross-examination  
that he did not refer, in either his written report or his direct oral examination, to CBD Policy  
6.1, which forms the foundation of the view planes bylaw in the LUB. CBD Policy 6.1  
states as follows:  
6.1  
All new buildings shall be located so that views to the harbour from Citadel Hill, as  
specifically delineated in the City of Halifax zoning bylaw, are maintained. These  
areas in the CBD are illustrated generally on Map 12.  
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The “areas in the CBD . . . illustrated . . . on Map 12" are the view planes within the CBD.  
Mr. Allsopp agreed that it is CBD Policy 6.1 which “supports the view planes bylaw.” Mr.  
Allsopp admitted under cross-examination that:  
Q.  
. . . there are several significant areas in the Central Business District which are not  
covered by view planes?  
A.  
That is correct.  
[Transcript, February 5, 2007, p. 136]  
[298]  
When Mr. Allsopp was asked on cross-examination about the spaces  
between the view planes, i.e., those areas of land not under the view planes, he at first said  
that he was not “prepared to go along with” the suggestion that where there are no view  
planes and no other specific height restrictions, that “Council would have greater latitude  
in approving taller buildings.” However, under further cross-examination, he admitted that,  
in the areas to the north of the subject property which are not covered by view planes, “tall  
buildings . . . have been constructed.” Included in these areas are the various bank towers,  
1801 Hollis Street, Scotia Square Towers and Purdy’s Wharf Towers.  
[299]  
The Board sees the analysis by Dr. Bray as being cryptic in a similar fashion  
to that of Mr. Allsopp. While he opposes the height of the structure proposed in this  
proceeding, and reaches his conclusions with great firmness, he does so without any  
reference at all to the other provisions in the MPS, such as those relating to economic  
matters, such as growth, and social matters, such as the creation of a vibrant downtown  
within the CBD. Like Mr. Allsopp, Dr. Bray met Philip Pacey at the Heritage Canada  
Conference in Ottawa which all three were attending in the fall of 2006, and at which both  
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he and Mr. Allsopp were speaking. Mr. Allsopp and Dr. Bray have, according to the  
evidence before the Board, worked together previously. Philip Pacey approached Dr. Bray  
(just as he had Mr. Allsopp) to seek his assistance in relation to the matter before the  
Board.  
[300]  
The preamble of his opinion indicates that he had “reviewed the following  
documents”:  
!
International charters and declarations regarding new development in historic  
contexts  
!
!
Venice Charter  
Charter for the Conservation of Historic Towns and Urban Areas  
[Exhibit H-3, Tab 5, p. 1]  
The Board considers these items, however useful they might be in other circumstances,  
to be irrelevant for the task before the Board.  
[301]  
are:  
The second set of items that he refers to as having been reviewed by him  
!
Municipal Planning Strategy  
!
!
Overall objective  
Sect. II Heritage Resources: (6) Objective, Policies 6.2, 6.3, 6.3.1  
and 6.4  
Environment: 8.8  
Sect. III CBD: (7) Objective, Policies 7.1, 7.1.2, 7.2, 7.2.1,  
!
!
[Exhibit H-3, Tab 5, pp. 1-2 ]  
While the above refers to the MPS, Dr. Bray (like Mr. Allsopp) prepared his Summary of  
Opinion without having available to him a copy of the complete MPS and LUB, and without  
having made reference to it.  
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[302]  
Having expressed his opinion that development should be restricted in the  
CBD to low and medium-rise buildings, he acknowledged that he had reached this  
conclusion without examining (even up to the day of the hearing) the remaining portions  
of the MPS:  
Q.  
. . . I take it you have not reviewed the remaining portions of the municipal planning  
strategy to see whether or not that fits in with other sections of it.  
A.  
No, not specifically.  
[Transcript, February 8, 2007, pp. 864-865]  
[303]  
Just as Mr. Allsopp had in his report, Dr. Bray’s report omitted any reference  
to CBD Policy 6.1, and the subsections of that policy. In response to a specific question  
on cross-examination, he was asked:  
Q.  
And so that from your point of view the extent of development that we can have in  
the CBD in the future is low to medium rise?  
A.  
I don't see any reason why not and I don't see a reason why that is a bad thing.  
[Transcript, February 8, 2007, p. 864]  
At one point in his evidence, he referred to buildings of seven to 10 storeys as medium-  
rise.  
[304]  
While Dr. Bray expressed certain points of view that “vicinity” must include  
at least the CBD, he agreed, however, on cross-examination, that the direction in the MPS  
that the City shall control the height of new development “within the CBD in the vicinity of  
Citadel Hill” had a plain meaning that being “within the CBD” is modified by the words “in  
the vicinity of Citadel Hill.” When asked to agree that this meant that the vicinity of Citadel  
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Hill must be something less than the CBD, he replied, however, “not necessarily,” and then  
relied on his concept of “visual vicinity” (discussed below at para. 306).  
[305]  
Somewhat confusingly, at least from the Board’s perspective, he then  
expressed the view that the language of the provision could be interpreted as meaning “a  
reduced area from the CBD as a whole. If that's the case then it would be only a slightly  
reduced area.”  
[306]  
In the context of the policies under consideration, he testified that “visual  
vicinity” meant views primarily from Citadel Hill, but also of Citadel Hill from the water.  
When asked by the Board if it would be correct to infer from his evidence that visual vicinity  
could include points on the horizon visible from a particular high point, such as the Citadel,  
Dr. Bray said, in reference to his own visit to the Citadel the previous day:  
. . . you're right, your eye is drawn to the horizon. . . . more particularly your eye is drawn out  
towards the harbour, across George's Island, McNabs, out to the ocean. . . . Your eye is  
drawn across that to the water, to the far shore, to the sky and then out that way . . .  
[Transcript, February 8, 2007, p. 908]  
[307]  
At least at certain points, one might have inferred from Dr. Bray’s remarks  
that he was claiming that the “vicinity” for the Citadel stretched to the horizon. When asked  
by the Board about the specific meaning he attributed to “visual vicinity” in the context of  
City-Wide Policy 6.3, he said that vicinity meant:  
. . . not just one or two blocks from the Citadel but further afield down to the waterfront within  
the CBD.  
[Transcript, February 8, 2007, p. 909]  
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When then asked by the Board if he was now saying that “visual vicinity,” for the purposes  
of City-Wide Policy 6.3, extended just to the Halifax waterfront, he replied:  
Well, that's the core of it. As I was explaining, though, when you're standing on Citadel Hill,  
what you take in as a viewer is a longer view. So in terms of [City-Wide Policy] 6.3 your  
primary focus is on what's happening if you will, in the foreground. But what happens in the  
foreground affects that longer view.  
[Transcript, February 8, 2007, p. 909]  
When asked by the Board what the difference was between his term “visual vicinity” and  
the term “view” in relation to, for example, the Dartmouth waterfront, he said that:  
. . . the visual vicinity is a sub-set of the larger view that the vicinity as I mentioned in this  
case, is primarily the CBD. But I find it difficult to separate the two out completely, because  
again, when you're standing on the Citadel your eye range is across the foreground which  
in this case is the CBD to the horizon and out towards the ocean. So that the two are  
interlinked if you will . . .  
[Transcript, February 8, 2007, pp. 909-910]  
Subsequently on questioning from the Board, he said that “visual vicinity” was a term which  
he had “invented.” When asked by the Board his purpose in inventing this term, he  
answered that he had done so “for the purposes of trying to explain my viewpoint in [City-  
Wide Policy] 6.3.” The Board also observes that, in his Summary of Opinion, filed in  
advance of the hearing, Dr. Bray made no mention of “visual vicinity.”  
[308]  
Many of the Board’s observations in relation to the Allsopp evidence apply  
equally well to the evidence of Dr. Bray. Dr. Bray’s Summary of Opinion contains about  
three and a half pages of text. Of these three and a half pages, more than one page is  
focused not upon the Halifax MPS, but upon the concepts and principles contained in  
“international charters and declarations,” such as the Venice Charter, with which Dr. Bray  
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was intimately familiar. In the view of the Board, such material might possibly be of interest  
to a municipal council which was developing new provisions for an MPS. Following a  
preliminary hearing on the issue, the Board concluded, however, that such material, and  
Dr. Bray’s observations upon it in relation to the proposed project, had no relevance to the  
Board’s task.  
[309]  
The items included, and omitted, from Mr. Allsopp’s summary are mirrored  
in Dr. Bray’s report. Like Mr. Allsopp’s summary, Dr. Bray’s report identifies City-Wide  
Policies 6.2, 6.3, 6.3.1 and 6.4; like Mr. Allsopp’s summary, it also refers to City-Wide  
Policy 8.8 (Environment). The Bray Summary of Opinion also refers to the same CBD  
policies as Mr. Allsopp, i.e., CBD Policies 7.1, 7.1.2, 7.2, and 7.2.1. Just as with the  
Allsopp Summary of Opinion, the Bray Summary of Opinion omits any reference to City-  
Wide Policy 6.1 (in the “Heritage Resources” section), as well as CBD Policy Set 4, even  
though these are provisions dealing with heritage. The Bray and Allsopp opinions likewise  
omit any reference to CBD Policy 6.1 relating to View Planes. Also, just like the Allsopp  
Summary of Opinion, the Bray Summary of Opinion makes no reference to any other  
relevant provisions of the MPS, such as City-Wide Policy Set 1 “Economic Development,”  
and CBD Policy Set 1 “Economic.”  
[310]  
As with the Allsopp Summary of Opinion as well, the Bray Summary of  
Opinion does not identify as an issue the question of whether the subject property is in the  
vicinity of the Citadel, much less contain any discussion or analysis as to why it should be  
considered to be within the vicinity. As with Mr. Allsopp, the only evidence on this point  
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from Dr. Bray occurred in his oral examination. The following table summarizes the  
material included in, and omitted from, the Bray-Allsopp reports:  
BRAY/ALLSOPP MPS PROVISIONS COMPARISON OF POINTS  
INCLUDED AND EXCLUDED FROM THEIR REPORTS  
CARL BRAY  
ROBERT ALLSOPP  
Municipal Planning Strategy  
Municipal Planning Strategy  
Section I - Overall Objective  
(Listed H-3, Tab 5, p. 1)  
—
Section II City-Wide 6 - Heritage Resources  
Objective  
Section II City-Wide 6 - Heritage Resources  
—
6.2  
6.3  
6.2  
6.3  
6.3.1  
6.4  
(Listed H-3, Tab 5, p. 2; discussed on p. 3)  
6.3.1  
6.4  
(H-3, Tab 6, p. 3)  
Section II City-Wide 8 - Environment  
8.8  
(Listed H-3, Tab 5, p. 2; discussed on p. 3)  
Section II City-Wide 8 - Environment  
8.8  
(H-3, Tab 6, p. 3)  
Section III CBD 7 - Scale and Design Detail  
Objective  
Section III CBD 7 - Scale and Design Detail  
—
7.1  
7.1.2  
7.1  
7.1.2  
7.2.  
7.2.1  
(Listed H-3, Tab 5, p. 2; discussed on p. 3)  
7.2  
7.2.1  
(H-3, Tab 6, p. 3)  
Both Dr. Bray and Mr. Allsopp omitted reference to CW 6.1, 6.1.1, and 6.1.2, which appear in City-  
Wide Policy Set 6 “Heritage Resources”; CBD Policy Set 4 “Heritage”; CBD Policy 6.1 (View  
Planes).  
Both also omitted any reference to any other non-heritage related provisions, including (but not  
limited to) City-Wide Policy Set 1 “Economic Development,” City-Wide Policy Set 3 “Commercial  
Facilities,” and CBD Policy Set 1 “Economic,” CBD Policy Set 2 “Social,” and CBD Policy Set 3  
“Circulation.”  
[311]  
Dr. Bray was cross-examined at some length with respect to the items of  
information which he had at hand in preparing his opinions. He could not remember the  
extent of the information he had on the development agreement. On cross-examination,  
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after some hesitation, he ultimately maintained that he had two reports from 2006  
produced by the Planning Staff, although he admitted that he did not refer in his Summary  
of Opinion to having had seen those prior to writing it.  
[312]  
Although it is likewise not referred to in his Summary of Opinion as an item  
which he reviewed prior to preparing his conclusions, he testified that he had a copy of the  
Barrington Street Historic District Revitalization Plan. He had referred to this in preparing  
his opinion, describing it as “useful” in relation to the history of downtown, the “photo  
elevations” (i.e., pictures taken from the front) of buildings on the east side of Barrington  
Street, and in general for the “physical context and historical context.” The Revitalization  
Plan is not a part of the MPS and LUB. Moreover, while a Revitalization Plan was  
approved in principle, that Plan had now been referred to Planning Staff for their review  
and advice and, as counsel for HRM put it, it “may or may not go anywhere.” She  
suggests:  
. . . the Plan is irrelevant to the [United Gulf] appeal and the Board ought to be cautious when  
considering expert’s evidence who considered this document in formulating their opinion.  
[HRM Final Submission, p. 26]  
The Board agrees.  
[313]  
On further cross-examination, he said that he had also been “aware of the  
witness statements of other witnesses,” referring in particular to evidence given on behalf  
of the Appellants with respect to the historical development of Halifax. The statements had  
been supplied to him by Heritage Trust. On further cross-examination, however, he now  
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expressed uncertainty as to whether he had seen the evidence or statements of other  
witnesses prior to preparing his opinion, or just prior to preparing to testify at the hearing.  
[314]  
Dr. Bray admitted that, based on, at most, the above described materials  
(some of which he was uncertain he had prior to preparing his opinion or just prior to  
testifying) he had drawn the conclusion that the development agreement failed to  
reasonably carry out the intent of the MPS. He drew his conclusions without having  
examined the whole of the MPS and LUB and, indeed, did not even have a copy of it in his  
possession when he drew those opinions. Further, he did not visit the site of the subject  
property or its environs until long after having drafted his written opinion, his visit occurring  
the day prior to his giving oral testimony to the Board. When he did visit the site, he did  
so in the company of Mr. Porter, the former HRM Planner who likewise gave evidence on  
behalf of the Appellants. His last previous visit to Halifax had occurred in the early 1990's.  
[315]  
When asked ondirectexaminationabout theconcept of vicinity, Dr. Braysaid  
that, in the context of City-Wide Policy 6.3 (which he described as “a policy dealing  
specifically with height”), that “visual vicinity” was to be considered. Given the Citadel’s  
position on the hill, Dr. Bray argued that vicinity would include the CBD. On direct  
examination, he said that he had also referred to a “commemorative integrity statement”  
prepared by Parks Canada officials. He testified about the relationship between the fort  
on the top of Citadel Hill, and otherfortifications, includingguns, signal towers, etc., located  
around the harbour.  
[316]  
The Board does not consider that a definition of the word “vicinity” in military  
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terms, provided by a witness who was not, in any event, qualified in the context of military  
matters, and based upon a document which is not part of the MPS, or even referred to in  
that document, can be regarded as helpful in any significant way in assisting the Board with  
its task.  
[317]  
Mr. Porter also gave evidence with respect to whether or not the proposed  
project would lie within the vicinity of the Citadel, and also with respect to the height of the  
proposed project. The Board saw his oral and written evidence, however, as being, at  
least to a small degree, contrasting with positions taken by him previously in such matters  
as Midtown. Moreover, the Board saw his evidence in this matter as not internally  
consistent. In his report, Mr. Porter chose to omit any reference to those provisions in the  
MPS which related to anything other than height, massing, etc.  
[318]  
Unlike the Allsopp and Bray reports, however, Mr. Porter’s report, in  
asserting that the proposed development is too high to comply with City-Wide Policy 6.3,  
specifically addresses the question of vicinity. As the Board saw his evidence, he gave  
varying definitions of what “vicinity” might include under the MPS.  
[319]  
In his written report, Mr. Porter asserted what was, even among the  
Appellants’ witnesses, much the largest area claimed to be included within the “vicinity” of  
the Citadel. He maintained in that report that:  
. . . it is only reasonable that the word vicinity include, all of the land lying between Citadel Hill  
and the Harbour from the easterly limit of Viewplane 1 to the westerly limit of Viewplane 10.  
[Exhibit H-3, Tab 4, p. 4]  
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An appreciation of the enormous size of the “vicinity” of the Citadel claimed by Mr. Porter  
in this statement requires reference to such things as the View Map, which shows view  
planes for the City of Halifax. Mr. Porter, in the definition of “vicinity,” quoted above, refers  
to View Plane 1 and View Plane 10. View Plane 1 runs roughly north from the Citadel,  
while View Plane 10 runs, roughly, south from the Citadel.  
[320]  
More precisely, the eastern boundary of View Plane 1 extends roughly  
northward from the Citadel all the way towards wharfs at Canadian Forces Base Halifax,  
at a point not far short of the Angus L. MacDonald Bridge (the Board notes that the western  
boundary of View Plane 1 crosses the approach road to the Angus L. MacDonald Bridge,  
and the first part of the bridge lies under the northern end of View Plane 1).  
[321]  
The western boundary of View Plane 10 extends, roughly, southerlyfrom the  
Citadel, crossing the railway cut (which runs east-west on the Halifax Peninsula) at a point  
just east of Young Avenue, continues into Point Pleasant Park, and then enters Halifax  
Harbour at the very southern tip of Point Pleasant Park.  
[322]  
In this proceeding, then, Mr. Porter claims that the “vicinity” of the Citadel,  
extends, as the crow flies, roughly two miles (by the Board’s estimate) south of the viewing  
positions on the ramparts of the Citadel, and roughlythree quarters of a mile or more north.  
It includes not only all of the CBD, but a much larger area besides that: it includes such  
things as: to the south, the railway cut near Point Pleasant Park, with its accompanying  
tracks; park benches overlooking the water at the extreme southern end of Point Pleasant  
Park; and, to the north, Barrington Street near the Angus L. MacDonald Bridge, and the  
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CFB Halifax piers below it.  
[323] In his oral evidence, Mr. Porter’s evidence seemed somewhat different,  
although, from the Board’s perception at least, it also shifted ground at certain points. At  
one point, he seemed to be saying that “vicinity” meant the CBD, or at least the CBD at a  
minimum. At other points, however, he appeared to be asserting, and at some length, that  
the “vicinity” of Citadel Hill is defined by City-Wide Policy 6.3.2 (the Citadel Parade Square  
definition). It will be recalled that this provision states:  
6.3.2  
W ithin the area bounded by North Street, Robie Street and Inglis Street, no  
development shall be permitted that is visible over the top of the reconstructed  
earthworks of the Citadel ramparts, from an eye-level of 5.5 feet above ground level  
in the Parade Square of the Citadel.  
[324]  
In short, the Board inferred that he was saying the vicinity of the Citadel was  
the area bounded by North, Robie and Inglis Streets, and by Halifax Harbour. In similar  
fashion to Mr. Porter, Philip Pacey said that the “vicinity” of the Citadel “must” include this  
area.  
[325]  
On this point, the Board notes Mr. Dunphy’s oral evidence to the Board, in  
which he, in effect, expressed surprise that Mr. Porter would make such an assertion, i.e.,  
that City-Wide Policy 6.3.2 defines the “vicinity” of the Citadel. Related to this, although  
specifically in relation to the matter of height, Mr. Dunphy also expressed surprise at Mr.  
Porter’s assertion that a building ought not to be permitted to exceed the height of the  
Citadel. By way of explanation, he said Mr. Porter was the planner of record on both the  
Summer Gardens and Tsimiklis projects, both of which are located in the area bounded  
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by City-Wide Policy 6.3.2, and both of which were approved to reach or exceed the height  
of the Citadel. Mr. Dunphy described Summer Gardens as a 21 storey building, approved  
in 1985, which is “kitty corner” to the Public Gardens:  
. . . he [Mr. Porter] was the planner-of-record on two projects within that area that exceed the  
height of the Citadel. They don't exceed the vertical height defined here over the ramparts.  
They are below that vertical view plane. But he was the planner-of-record on Summer  
Gardens and the [Tsimiklis] project . . .  
[Transcript, February 13, 2007, p. 1545]  
The project which was the subject of the Tsimiklis proceeding was:  
. . . a 21-storey building on South Street. It's being built as a lower building now, but in its  
initial form with the Board, it was a taller building.  
[Transcript, February 13, 2007, p. 1536]  
He testified that Mr. Porter had concluded (at that time) that neither the Summer Gardens  
nor Tsimiklis projects were within the vicinity of the Citadel, and that neither violated City-  
Wide Policy 6.3.2. Mr. Dunphy testified that he agreed with Mr. Porter’s former position,  
but not with the one which he was taking in the present proceeding, remarking:  
. . . I won't try and guess what was in Mr. Porter's mind between his recommendation of those  
projects and his testimony the other day at the Board.  
[Transcript, February 13, 2007, p. 1545]  
The Board notes that it estimates the former Texpark site to be only a few hundred feet  
closer to the nearest rampart of the Citadel than is Summer Gardens, which it estimates  
to be not more than 2,000 feet from the Citadel’s ramparts.  
[326]  
The opinion of Philip Pacey on the matter of vicinity was explored in cross-  
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examination. He agreed that the height restriction in CBD Policy 7.3 had:  
Q.  
. . . two conditions. It has to be in the CBD and it has to be in the vicinity of Citadel  
Hill.  
A.  
That is correct.  
[Transcript, February 7, 2007, p. 532]  
Having said that this was correct, however, he then maintained that, even if these two  
criteria were not met, City-Wide Policy 6.3 could be gotten to “by another route . . . which  
is through the heritage section of this plan.”  
[327]  
The evidence presented on behalf of HRM and the Developer stands in stark  
contrast to the expansive vision of the word “vicinity” put forward by witnesses for the  
Appellants, such as Mr. Porter.  
[328]  
Mr. Lynch (a founding partner of Lydon Lynch Architects Limited) addressed  
the matter of whether or not the subject property is in the vicinity of the Citadel directly and  
succinctly in his report:  
6.2, 6.3, 6.3.1 apply to developments in the vicinity of the Citadel and although these clauses  
were relevant to the Midtown Tavern and Grill proposal, they are not important to this  
proposal because of the extended distance away from the Citadel.  
. . .  
•
The proposed development is not within the vicinity of the Citadel  
[Exhibit H-6, Tab 2, p. 2 and 3]  
[329]  
Mr. Sampson also referred to the concept of vicinity in his report. Before  
exploring his evidence on the point, the Board will first deal with a criticism of Mr. Sampson  
in the written submissions of Mr. Epstein, wherein, he suggested (taking into account other  
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assertions which he made as well in relation to Mr. Sampson’s evidence) the Board should  
find that Mr. Sampson’s evidence had a “fundamental lack of credibility.” Specifically, Mr.  
Epstein said that Mr. Sampson was identified by Justice Hood in the Supreme Court  
proceeding as having mishandled pertinent information, apparently referring to Mr.  
Sampson’s original failure to provide certain documentation, which reflected his  
interpretation of the Freedom of Information and Protection of Privacy Act, S.N.S. 1993,  
c. 5. The Board notes, however, that Justice Hood, in her decision, merely said  
Certainly there were flaws in the provision of information, but perfection is not the standard.  
[para. 154]  
In the view of the Board, there are circumstances in which counsel may, with justification,  
urge a tribunal to make a negative finding with respect to the credibility of a witness, based  
upon a credibility finding made by another tribunal. In the view of the Board, however, that  
issue need not be explored here, because, in the Board’s judgment, the passages in  
Justice Hood’s decision cited in Mr. Epstein’s brief do not support the assertion for which  
he argues.  
[330]  
Mr. Epstein makes reference as well to what he refers to as various  
misrepresentations or omissions from the Staff Report to Council. As the Board has  
observed elsewhere, it considers that overall, Planning Staff’s attempts to inform Council  
of the various factual and legal issues surrounding the project were reasonably balanced  
and thorough. As the Board has noted elsewhere (see, for example, Midtown), its task is  
not to judge the process, and make a finding upon, the process by which a municipal  
council reaches a decision (including the advice provided by its planning staff, or the  
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thoroughness of Council’s review of a particular matter): instead, its task is to evaluate  
whether or not the decision itself reasonably carries out the intent of the MPS.  
[331]  
Mr. Sampson, in his report, suggested that a “literal approach” to the word  
“vicinity,” in the context of CBD Policies 7.3 and 7.3.1, together with City-Wide Policies 6.3  
and 6.3.1, would mean that the “vicinity” of the Citadel would include only Band A and  
extend no further (the Board notes, for the sake of clarity, that there is no other Band than  
Band A, i.e., there is no such thing as Band B or Band C):  
. . . my opinion would be that Band A along Brunswick Street and Band A along Sackville  
Street in the Spring Garden Road area plan is the vicinity -- clearly the vicinity of Citadel Hill --  
Q.  
A.  
Q.  
A.  
Q.  
What about ---  
--- as intended by the policy but not beyond that.  
Not beyond Band A?  
That's correct.  
So, what is your opinion with respect to whether or not the entire CBD would be  
considered within the vicinity of Citadel Hill within the meaning of the MPS?  
A.  
I don't feel the entire CBD beyond Band A for the purpose of this policy is in the  
vicinity of Citadel Hill . . .  
[Transcript, February 12, 2007, pp. 1201-1202]  
[332]  
Mr. McLeod who (like Mr. Porter) is now retired from HRM’s Planning  
Department, takes a contrary view to that of Mr. Porter as to the definition of “vicinity,”  
asserting that City-Wide Policy 6.3 cannot be construed as meaning that the subject  
property is within the “vicinity” of Citadel Hill.  
[333]  
Mr. McLeod’‘s oral evidence contemplates the “vicinity” of the Citadel as  
including certainly the first block below the Citadel, and possibly the second:  
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. . . I think what can reasonably be thought of as the vicinity of Citadel Hill in relation to the  
CBD are the blocks that are immediately adjacent to Citadel Hill on Brunswick Street, and it  
has been suggested that that may continue to the next block. That's possible, I have no firm  
view of that, but certainly the blocks adjacent to Citadel Hill are in the vicinity.  
[Transcript, February 15, 2007, pp. 2233-2234]  
[334]  
In essence, Band A is the first block below the Citadel on the harbour side.  
Mr. Pink suggested that Mr. Dunphy restricted the meaning of the word “vicinity” in the  
context of the provision in question to Band A and one block down. In the view of the  
Board, this is not an accurate representation of Mr. Dunphy’s evidence. Mr. Dunphy’s  
report was expressly limited in its scope: it made reference to the report by, in particular,  
Mr. Sampson, and then offered Mr. Dunphy’s comments with respect to limited aspects of  
building heights, views and compatibility with adjacent heritage properties as put forward  
by the Appellants. In his oral evidence, he said that it is “reasonable to come to a  
conclusion that the vicinity” of Halifax Citadel is “somewhere in between” Band A and the  
whole CBD. He remarked that, in his opinion, if “the idea” of the policy in question was to  
include the entire CBD within the definition of “vicinity,” then “that’s what you would say.  
I don’t think you would come about it in a convoluted fashion.”  
[335]  
Mr. Dunphy said that the lack of a definition of the term “vicinity” meant that  
Council had to exercise “reasonable judgment”:  
Well I read Policy 6.3, 6.3.1 and 3.2 and 3.3 together, and "vicinity," I believe, is a word that  
hasn't been defined and therefore requires Council to exercise judgement, reasonable  
judgement. That judgement is in the context of a variety of policies. When we go on and  
look at that policy set, the very first subset, Policy 3.1 talks about the area which is closest  
to the Citadel and establishing a generally low to medium-rise development in that area of  
four storeys, four traditional storeys. So it's placing the highest degree of sensitivity to the  
area of potential development which is in closest proximity to the Citadel Hill. And it then  
says, "increasing with distance therefrom." It doesn't define how you increase in distance  
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therefrom, to what amount, at what rate. Staff certainly agreed that in the case of the  
Midtown, going from four to 17 storeys in a one-block distance was not a transition and that  
that was still generally within the vicinity. But most importantly that the concept of gradually  
increasing therefrom had not been met. The further down you go on the hillside, two things  
happen. One is the topography changes. So as I said, the base of the building is going down  
anyway. Second is that the building becomes a more distant view. So again, going back to  
6.3, 6.3.1, the closer you are -- you know, to use kind of a slang phrase, the more in your  
face a building is, the more distant it is, I believe the more latitude you have. . . .  
[Transcript, February 13, 2007, pp. 1542-1543]  
[336]  
On the issue of vicinity, counsel for the Developer noted that Section IV of  
the MPS is entitled “Halifax Waterfront Development Area.” The Board notes that the  
authorization for the establishment of the CBD is in the subsection just prior to City-Wide  
Policy 3.2.3, in City-Wide Policy 3.2.2. The HWDA, however, while established in the  
same way as the CBD, is itself, in part, a subset of the CBD, as explicitly established in the  
first heading in Section IV, entitled “Context.” The western boundary of the HWDA, within  
the CBD, is just across the street from the site of the proposed development. Counsel for  
the Developer points to the provisions which appear in the HWDA section as support for  
the view that the HWDA is not within the “vicinity” of the Citadel, within the meaning of the  
MPS.  
[337]  
In essence, he notes that the HWDA section contains policies respecting  
views and scale, which repeat those found elsewhere in the MPS (HWDA Policies 5.4,  
5.4.1, 5.4.2, 5.4.3, 5.4.4, 5.6 and 5.6.1). It does not, however, contain any policy  
comparable to CBD Policies 7.3 and 7.3.1.  
[338]  
CBD Policies 7.3 and 7.3.1, it will be recalled, deal specifically with the height  
of new developments within the CBD in the vicinity of Citadel Hill. No equivalent of those  
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provisions appears in Part IV. As counsel for the Developer notes, HWDA does contain  
equivalents of other key CBD provisions — for example, Policy 5.4 (dealing with views of  
the harbour and of the Citadel along east-west streets) and HWDA Policy 5.6.1 (a  
repetition of CBD Policy 7.2.1., referring to “exterior architectural design of new buildings”  
being “complementary to any adjacent ones of historic or architectural significance, or  
important to the character of Halifax.”). He argues that:  
. . . the absence of a policy in the HWDA section dealing with height controls in the vicinity  
of the Citadel demonstrates that the HW DA is not considered to be in the vicinity of the  
Citadel. It is not unreasonable to reach the conclusion that the Tex Park site, adjacent to the  
HWDA boundary, is not in the vicinity of the Citadel either. The repetition in HW DA Policy  
5.6.1 of CBD Policy 7.2.1 illustrates that where policies of the CBD section are intended to  
apply in the HW DA they are expressly restated in the HW DA section.  
[United Gulf Final Submission, p. 33]  
[339]  
The Board sees a certain measure of ambiguity in the manner in which the  
MPS handles the HWDA: on the one hand, City-Wide Policy 3.2.3 says that the HWDA  
provisions in Section IV are to “constitute the basis for decision-making” in the HWDA, but  
on the other hand, the HWDA is a subset of the CBD. This can lead, in the Board’s view,  
to a conclusion that the CBD provisions with respect to height could be applicable in the  
HWDA, through the operation of the following reference in City-Wide Policy 3.2.3:  
3.2.3  
. . . For clarity, Section IV may be interpreted by reference to Section III where  
appropriate.  
[340]  
For these and other reasons, the Board does not accept the argument by  
counsel for the Developer that the absence of height controls in the vicinity of the Citadel  
in the HWDA section (while other provisions are repeated) conclusively, or “definitively”:  
. . . demonstrates that the HWDA is not considered to be in the vicinity of the Citadel.  
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Nevertheless, while not accepting that the point is a conclusive or definitive one, the Board  
does consider that it is yet another argument in favour of the Respondents’ position — that  
seeing the subject property as outside the vicinity of the Citadel is an interpretation which  
reasonably carries out the intent of the MPS.  
[341]  
As the Board noted earlier in this decision, the ordinary dictionary definitions  
of “vicinity” include such terms as “being near in space,” “in the neighbourhood of,” and  
“near or close to.” In the Board’s view, even such definitions as these must be considered  
in the light of the context in which they are being used, i.e., the Board considers that the  
term “vicinity” could, in different contexts, contemplate areas of different sizes.  
[342]  
Taking into account the provisions of the MPS, and the ordinary meaning of  
the term “vicinity,” the Board considers that some aspects, at least, of the evidence  
provided on behalf of the Appellants are not at all consistent with the ordinary meaning of  
the term “vicinity.” They may, in fact, reflect, to some degree, the passionately (and, the  
Board does not doubt, sincerely) held views of the witnesses testifying on behalf of the  
Appellants, rather than actually reflecting the language of the MPS itself. On the evidence  
and submissions before it, its review of the MPS and the site visit to the various points  
referred to elsewhere in this decision, the Board considers it would have no difficulty  
deciding, on the balance of probabilities, which interpretation it prefers — the Board sees  
the position put forward by the evidence provided on behalf of HRM and the Developer as  
the more reasonable. The only matter the Board need decide, however, is whether the  
Appellants have satisfied the Board that Council’s decision to enter into this development  
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agreement is not reasonably consistent with the MPS, with respect to the matter of vicinity.  
The Board has no difficulty whatever in finding that the Appellants have so failed.  
[343]  
Is the proposed building so high as to fail to be reasonably consistent with  
the intent of the MPS? The Appellants (along with their various witnesses, including one  
retired member of HRM Planning Staff) urged that it would be. Those testifying on this  
point, on behalf of HRM (which included, in addition to existing Planning Staff, two retired  
members of HRM Planning Staff, and Mr. Lynch (the Halifax architect and urban designer),  
considered that it would reasonably carry out the intent of the MPS.  
[344]  
Mr. Porter, in addressing the question of height, does make reference to  
various of the provisions which might apply. In certain ways, some of his conclusions may  
be seen as a close paraphrase of some of the findings, and of the approach, adopted by  
the Board (as approved by the Court of Appeal) in Midtown. In the view of the Board,  
however, one critical difference between Midtown and the subject property is the fact that  
the subject property is six blocks away from the Citadel. The Board has already noted that  
Mr. Porter advanced various positions as to what area of land lies within the “vicinity” of the  
Citadel. At one point, Mr. Porter argued that the “vicinity” of the Citadel stretches all the  
way to the tip of Point Pleasant Park, on the south, and to just short of the Angus L.  
MacDonald Bridge, on the north. At another point, he referred to the area bounded by the  
“Citadel Parade Square” definition found in City-Wide Policy 6.3.2.  
[345]  
As the Board has also noted previously, in its discussion of the issue of  
“vicinity,” Mr. Porter (who was the planner of record in each instance) did not have difficulty  
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with the height of the buildings proposed for the Summer Gardens and Tsimiklis projects.  
He recommended approval of both structures, even though both lie within the “vicinity” of  
the Citadel (if one accepts the “Citadel Parade Square” definition urged by Mr. Porter, at  
one point in his evidence, in the present proceeding), and both projects, as approved,  
reached the height of the Citadel, according to the evidence of Mr. Dunphy. In making this  
observation, the Board recognizes that neither of these structures is within the CBD, and  
that both lie more southerly, or southwesterly, of the Citadel.  
[346]  
The Board also notesthat it concluded from Mr. Porter’sevidence in Midtown  
that he could have recommended entering into a development agreement permitting a 12  
storey tower on the Midtown site, i.e., he could have seen such a structure as reasonably  
carrying out the intent of the MPS. As the Board has noted, the Midtown site was only a  
block from Brunswick Street, just below the Citadel. The subject property is six blocks from  
the Citadel, and downhill.  
[347]  
The Appellants also placed considerable emphasis on CBD Policy 6.3,  
claiming that compliance with it necessarily meant that a building could not be taller than  
the Citadel:  
6.3  
The City should encourage rooftop landscaping in any new developments which can  
be seen from the Citadel, from taller buildings, or from other parts of the City.  
In essence, their argument is that the reference to “rooftop landscaping in any new  
development which can be seen from the Citadel” means that the top of any new  
development cannot be higher than the Citadel because otherwise, landscaping could not  
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be visible on top of it. Mr. Porter, for example, said that his interpretation of the provision  
was that “. . . you should be able to see the roofs . . .”  
[348]  
HRM and the Developer say that the provision means no such thing. For  
example, Mr. Sampson, the planner testifying on behalf of HRM, said that, in his opinion,  
the provision was not “saying that all rooftops should be visible from the Citadel,” but  
simply that if the rooftops are visible, there should be some landscaping to make them  
more visually pleasing.  
[349]  
The Board has reviewed this provision, and the arguments advanced by the  
Appellants, as well as the evidence of the Respondents. Having considered all of the  
arguments, the Board rejects the Appellants’ claim that CBD Policy 6.3 means that a  
decision permitting a building which is higher than the Citadel fails to reasonably carry out  
the intent of the MPS.  
[350]  
As a preliminary point, the Board notes that CBD Policy 6.3 is not a “shall”  
provision, but is a “should” provision; moreover, the provision simply says that the City  
“should encourage” rooftop landscaping. The Board considers that the Respondents’  
position (that the provision simply means that, if rooftops are visible from the Citadel, they  
should be landscaped) is an eminently reasonable one. In rejecting the Appellants’  
argument, the Board concludes that (just as with other various arguments advanced by the  
Appellants) it need make no finding that the Appellants’ position (i.e., that a requirement  
for landscaping on the top of new buildings means that all new buildings must be shorter  
than the Citadel, so that landscaping can be seen) is unreasonable. Instead, it need only,  
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as it has with respect to other aspects of the Appellants’ arguments, find that the  
Appellants’ have failed to show that HRM, in entering into a development agreement which  
permits a structure, the top of which cannot be seen from the Citadel, did not reasonably  
carry out the intent of the MPS. To put it another way, as it relates to CBD Policy 6.3, the  
Board considers that permitting a building the top of which is taller than the Citadel is an  
act which reasonably carries out the intent of the MPS.  
[351]  
Mr. Sampson also testified withrespectto newtall, residential buildings, such  
as the Paramount and the Montebello, which have been permitted in the Spring Garden  
Road area to the south of the Citadel. The Spring Garden Road Commercial Area Plan  
is found in Section IX (it will be recalled that the CBD is, formally, Section III and the City-  
Wide is Section II). The Spring Garden Road Commercial Area Plan contains in Policy Set  
2, entitled “Urban Design,” the following objective:  
Objective  
The retention of the present scale and character of the Spring Garden Road  
and its enhancement as an environment for pedestrian activity.  
The retention of a sensitive and complementary setting for Citadel Hill  
through the control of the height of new development in its vicinity.  
Policies 2.5 and 2.5.1 address the control of height of new development in that area:  
2.5  
The City shall control the height of new development within the Spring  
Garden Road Commercial Area in the vicinity of Citadel Hill, pursuant to  
Policies 6.3, 6.3.1, 6.3.2, and 6.3.3 of Part II, Section II of this Plan.  
2.5.1  
In Band A, as shown on Map 2 of this Spring Garden Road Plan, the  
following height controls shall apply:  
(I)  
the basic height of a building shall be 60 feet. This height may be  
exceeded provided there is one and one half feet of setback from  
the Sackville Street streetline for every foot of additional height  
above the 60 foot level. No such setbacks are required from other  
streetlines or property lines.  
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(ii)  
notwithstanding the above, no building shall exceed 75 feet in  
overall height or penetrate a viewplane.  
Mr. Sampson testified that buildings such as the Paramount and the Montebello had been  
permitted to be built:  
. . . as tall as they may be constructed without being visible from the Citadel Parade Square  
over the Spring Garden Road commercial area in the vicinity of Citadel Hill, pursuant to Policy  
6.3.2 . . .  
MR. SAMPSON, DIRECT EXAM. BY MS. BROW N:  
A.  
. . . the Paramount Building fronting on South Park Street and the Martello  
Tower . . . which are just outside of Band A . . . those buildings basically go  
up to a point where they're not visible from within -- inside the Citadel but  
they're up – probably constructed as high as they possibly could be.  
Q.  
A.  
When you say "as high as they possibly could be," what does that mean?  
Without violating the policy and the regulation with regards to the Citadel  
ramparts so that someone in the parade square of the Citadel will not see  
these two buildings.  
Q.  
A.  
Q.  
Are those -- did you see those buildings yourself?  
Yes.  
All right. And are those buildings higher than the Citadel, the two that you're  
referring to?  
A.  
Yes, they are. Yes.  
Q.  
Okay. And the policy you were referring to that they don't violate is 6.3.2 in  
the City-wide?  
A.  
In the City-wide section, that's correct.  
[Transcript, February 12, 2007, p. 1207]  
City-Wide Policy 6.3.2: The “Citadel Parade Square” Provision  
[352]  
The Board also considers City-Wide Policy 6.3.2 (which has been discussed  
in the context of the meaning of “vicinity,” particularly in the Board’s references to the  
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evidence of Mr. Porter and Philip Pacey) is expressly relevant to the matter of height. City-  
Wide Policy 6.3.2 states:  
6.3.2  
Within the area bounded by North Street, Robie Street and Inglis Street, no  
development shall be permitted that is visible over the top of the reconstructed  
earthworks of the Citadel ramparts, from an eye-level of 5.5 feet above ground level  
in the Parade Square of the Citadel.  
In the Board’s view, City-Wide Policy 6.3.2 necessarily means, in all instances, and without  
exception — as a matter of geometric necessity — that any building outside the Citadel’s  
ramparts (whether by a few inches, or several hundred feet, or even more), and which is  
built to the maximum height which will comply with City-Wide Policy 6.3.2, will always be  
higher than the Citadel’s ramparts. Moreover, the greater the distance a building lies from  
the Citadel, the taller it can stand, while still satisfying City-Wide Policy 6.3.2.  
[353]  
The Board sees an important aspect of the Appellants’ position as being, in  
essence, that no building can be built higher than the Citadel (at the very least, on the side  
of the Citadel facing the CBD). In the view of the Board, one could reasonably argue this  
position to be inconsistent with the very existence of City-Wide Policy 6.3.2: if indeed the  
Appellants are right, and any structure higher than the Citadel cannot reasonably carry out  
the intent of the MPS, then why does City-Wide Policy 6.3.2 not simply say that within the  
area bounded by North, Robie and Inglis Streets, no building can be built above the height  
of the ramparts?  
[354]  
The distinction (and the consequences arising from it) between the latter  
approach, and the much more complex one adopted in the MPS, are not small ones, from  
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a practical perspective, and this would not have been lost, in the Board’s view, upon those  
preparing the MPS in the first place.  
[355]  
The height above sea level of the ramparts, or other identifiable parts of the  
Citadel, is known. Determining the height above sea level of any building (existing or  
proposed) within the area bounded by North, Robie and Inglis Streets (and the Harbour),  
is relatively easily determinable.  
[356]  
Complyingwith the requirement of City-Wide Policy 6.3.2, on the other hand,  
involves: assuming a hypothetical eye height of 5.5 feet above the Citadel Parade Square,  
inside the ramparts of the Citadel; calculating the distance from the viewing point to the site  
of the proposed structure; and calculating a line of sight from a hypothetical eye position  
within the Citadel Parade Square, across the top edge of the ramparts, to a point above  
the subject site. Thereafter, a surveyor must certify that, based upon these calculations,  
the top of the proposed structure if built to its full intended height will not be visible to the  
hypothetical viewer in the Citadel Parade Square.  
[357]  
Havingreviewedtheevidence and submissionson thispoint,theBoardfinds,  
on the balance of probabilities, that the Appellants have failed to show that Council’s  
decision, as it relates to height (including such matters as vicinity), does not reasonably  
carry out the intent of the MPS.  
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Heritage and Views  
TheMPSforHalifaxincludestwoseparate sectionsthetitlesof whichcontain  
[358]  
a specific reference to “heritage.” The first is City-Wide Policy Set 6 “Heritage Resources”;  
the second is CBD Policy Set 4 “Heritage.”  
[359]  
The stated objective for the City-Wide Policy Set 6 “Heritage Resources” is:  
Objective  
The preservation and enhancement of areas, sites, structures, streetscapes  
and conditions in Halifax which reflect the City’s past historically and/or  
architecturally.  
[360]  
[361]  
The objective for CBD Policy Set 4 “Heritage” is:  
Objective  
The conservation or rehabilitation of areas, streetscapes, buildings,  
features, and spaces which mark the sequence of development in Halifax,  
and which identify the CBD as the City’s cultural and heritage centre.  
Various otherprovisions were identified, at certain pointsin the evidence and  
submissions, as likewise relating to heritage. Provisions dealing, in whole or in part, with  
height, views, and scale and design detail all interrelate, to one degree or another, with the  
subject of heritage, and with each other. Included among these, with particular relevance  
to the subject of views, are the following City-Wide policies:  
CW 6. HERITAGE RESOURCES  
CW 6.2  
The City shall continue to make every effort to preserve or restore those  
conditions resulting from the physical and economic development pattern of Halifax which  
impart to Halifax a sense of its history, such as views from Citadel Hill, public access to the  
Halifax waterfront, and the street pattern of the Halifax Central Business District.  
CW 6.3  
The City shall maintain or recreate a sensitive and complimentary (sic)  
setting for Citadel Hill by controlling the height of new development in its vicinity to reflect the  
historic and traditional scale of development.  
CW 6.3.1  
The intent of such height controls shall be to establish a generally low to  
medium rise character of development in the area of approximately four traditional storeys  
in height immediately adjacent to Citadel Hill and increasing with distance therefrom.  
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CW 6.3.2  
Within the area bounded by North Street, Robie Street and Inglis Street, no  
development shall be permitted that is visible over the top of the reconstructed earthworks  
on the Citadel ramparts, from an eye-level of 5.5 feet above ground level in the Parade  
Square of the Citadel.  
CW 6.3.3  
controls.  
Policy 6.3.2 above shall not be deemed to waive any other height or angle  
CW 6.4  
The City shall attempt to maintain the integrity of those areas, sites,  
streetscapes, structures, and/or conditions which are retained through encouragement of  
sensitive and complimentary architecture in their immediate environs.  
[362]  
Other City-Wide and CBD policies provide:  
CW 8.8  
The City should protect vistas and views of significant interest.  
CBD 7. SCALE AND DESIGN DETAIL  
Objective: A high quality of design and construction of buildings to reflect the  
architectural, heritage and topographical characteristics of the CBD.  
CBD 7.3 The City shall control the height of new development within the CBD in the  
vicinity of Citadel Hill, pursuant to Policies 6.3, 6.3.1, 6.3.2 and 6.3.3 of Section II of this Plan.  
CBD 7.3.1  
In Band A, as shown on Map 12A, the following height controls shall apply:  
(I) the basic height of a building shall be 60 feet. This height may be exceeded provided  
there is one and one-half feet of setback from the Brunswick Street streetline for every foot  
of additional height above the 60 foot level. No such setbacks are required from other  
streetlines or property lines.  
(I) notwithstanding the above, no building shall exceed 75 feet in overall height or  
penetrate a viewplane.  
[363]  
The Board considers that, in part, the position of the Appellants can be seen  
as asserting that City-Wide Policy 6.2, with its statement that “The City shall continue to  
make every effort to preserve or restore . . . views from Citadel Hill . . .” means that no new  
building can obstruct an existing view of the harbour. As the Board has noted elsewhere,  
the HRM Planning Staff directly addressed the issue of panoramic views in the written and  
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oral reports they gave to HRM Council and its committees, stating that, in their opinion, the  
MPS affords no panoramic view protection of the harbour from Citadel Hill.  
[364]  
The passionately held opposing view of the Appellants (that, in essence, the  
MPS must be seen as affording what amounts to an absolute protection of all existing  
harbour views) led, for example, Philip Pacey (the president of Heritage Trust) to maintain  
that Founders Square ought not to have been approved in its present form, because its tip  
blocks a small view of the harbour and horizon.  
[365]  
The Board, having reviewed all of the evidence and submissions, ultimately  
concluded that it was puzzled by the position of the Appellants, in insisting that the MPS  
protects panoramic views from the Citadel. In remarking on this, the Board notes that the  
burden of proof upon the Appellants would not be simply to establish that their position  
reasonably carries out the intent of the MPS, but to show that the contrary point of view  
does not. In part at least, the Appellants’ position (although, from the Board’s perspective,  
this was not always consistently expressed) amounts to a claim that all remaining views  
of the water and horizon, as seen from Citadel Hill, are to be protected against all except  
the most minor of intrusions.  
[366]  
The Appellants expressed this belief in a variety of ways, in relation to a  
variety of provisions. For example, City-Wide Policy 8.8 says that HRM “should protect  
vistas and views of significant interest.” On this point, Mr. Allsopp was asked by the Board  
about the word “vista,” which dictionary definitions sometimes characterize as being  
synonymous with “view,” but at least as frequently characterize as being, in essence, a  
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view between vertical lines, or what might be termed a “framed view.” For example, the  
Canadian Oxford Dictionary definition of “vista” includes two meanings:  
1. a long narrow view as between rows of trees; 2. a scenic wide view, a prospect or  
panorama.  
Thus, one of the meanings of “vista” (a view between vertical lines, or a framed view) is  
precisely the opposite of what the Appellants urge the Board to see as the only way to look  
at the MPS, which is that it protects panoramic (and frameless) views. “Vista,” as a framed  
view, points towards views which are isolated between vertical barriers of some sort or  
other. In the dictionary, the barriers are trees; atop Citadel Hill, the barriers, as viewed  
from the ramparts, are tall buildings. Mr. Allsopp’s way of dealing with this definition of  
“vista” was to simply say that it was inapplicable to the Halifax MPS, as he envisions it,  
saying that this meaning would:  
. . . not apply to the views from Citadel Hill. We're not dealing with vistas in that sense from  
Citadel Hill. It is and has been, and you can see from the old photograph, it is the highest  
point, and views from that are not confined by some sort of frames . . . [emphasis added]  
[Transcript, February 5, 2007, p. 181]  
[367]  
It is the view of the Board that “vistas” (in the sense of a framed view) are  
indeed visible from Citadel Hill, have been visible from Citadel Hill for a very long time, and  
certainly were visible at the time the MPS was produced. As the Board has already noted,  
the vertical barriers, or frames, are formed by tall buildings, which are continually visible  
as one stands on the top of Citadel Hill, and moves one’s eyes in an arc from the Angus  
L. MacDonald Bridge south along the waterfront, and past Maritime Centre. What Mr.  
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Allsopp was referring to was, in the opinion of the Board, his vision of how the harbour  
views from the Citadel should look, rather than the way they are. In describing what vista  
must mean in the context of the present day MPS, he chose (instead of talking about the  
vistas and views that actually exist at present) to refer to an “old photograph” to describe  
the views which were his focus — views “that are not confined by some sort of frames.”  
[368]  
In the view of the Board, if it was indeed the intent of HRM Council to protect  
all existing views of the water, there was a wide range of obvious, and much simpler,  
remedies available for inclusion in the MPS, any one of which would very easily have  
achieved the goal (preservation of existing views) which the Appellants insist the MPS is  
meant to achieve. Council did not choose any of those simple approaches. As the Board  
has already noted elsewhere, Council originally chose to adopt a limited number of view  
planes. It did not — even when adding certain later provisions upon which the Appellants  
urged the Board to place great store — add (as it very easily could have done) additional  
view planes to fill in all the spaces between the existing ones. This would have made  
Halifax’s view planes provision continuous. Alternatively, it could have adopted one of the  
approaches referred to with approval by Mr. Allsopp, such as absolute fixed heights for  
buildings in all of the areas between the Citadel and the harbour, to ensure that all existing  
views would remain. Council did not do this, adopting a much more complex, nuanced,  
approach. Under the Halifax MPS, the only fixed upper limits are relatively restricted in  
scope: the view planes; the four storey reference (City-Wide Policy 6.3.1) with respect to  
Brunswick Street; the prohibition of a building so high (within the North, Robie, Inglis  
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Streets and Harbour rectangle specified in City-Wide Policy 6.3.2) as to be visible by a  
person standing on the Citadel Parade Square; and CBD 7.3.1, which fixes the height of  
buildings on Brunswick Street at 60 feet (although allowing an additional foot of height for  
every one and half feet of setback), up to an absolute maximum on Brunswick Street of 75  
feet.  
[369]  
Outside the scope of the above provisions, the decision as to how high a  
building can be is not fixed by a formula. Mr. McLeod put this succinctly in the course of  
his examination:  
Q.  
. . . So the further away that you get from the Citadel can buildings increase in  
height, in your opinion, pursuant to the MPS?  
A.  
Q.  
A.  
Certainly.  
Okay. Do you have an opinion as to how much they can increase?  
That's Council's decision. I do not -- I do not see any policy guidance in the MPS  
that puts a specific height limit on buildings. I think that Council has this discretion.  
[Transcript, February 16, 2007, pp. 2246 and 2236]  
Allegedly Unfettered Discretion of Council  
[370]  
The Board does not consider (contrary to suggestions by Mr. Pink and Mr.  
Epstein on behalf of the Appellants) that such references to Council’s “discretion” were  
meant to suggest that Council has utterly unfettered discretion to make whatever decision  
it wants. In the view of the Board, while Council’s ability to make a choice in matters of this  
type is (as outlined above) not restricted by any fixed formula, Council cannot exercise its  
discretion in a completely “unfettered” manner. To the contrary, any decision by Council  
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of this type must, to stand, be one which reasonably carries out the intent of the MPS as  
a whole. As but one illustration of the Board’s conclusion on this point, the Board observes  
that in Midtown, the proposed structure was not so high as to be visible from the Citadel  
Parade Square, and was not on Brunswick Street, so that it was not subject to the limitation  
of about four storeys. It was, however, in the next block. Council undoubtedly had a  
measure of discretion in making a decision to approve, or not approve, the Midtown  
project. Nevertheless, the Board concluded in that proceeding that, taking into account the  
directly relevant provisions of the MPS, in the context of the MPS as a whole, Council’s  
decision to authorize a 17 storey tower one block away from Brunswick Street, where a  
four storey limit applied, failed to reasonably carry out the intent of the MPS. It will be  
recalled that Mr. Porter had indicated he could have considered a 12 storey structure  
(which would have obstructed some views of the harbour and horizon) on the Midtown site  
to have reasonably carried out the intent of the MPS, i.e., he saw a decision by Council to  
approve such a structure as being within Council’s discretion. The MPS provisions which  
the Board must apply in the present proceeding are the same as those which it applied in  
Midtown.  
[371]  
The Board hasalreadynoted that Mr. Allsopp acknowledgedthatdetermining  
the height of buildings between view planes was a matter which would involve “judgment  
on the part of Council.” Mr. Allsopp, on cross-examination, acknowledged that nothing in  
the MPS said that “one should be able to see a band of water in the harbour from the  
Citadel,” or that “one should be able to see the Dartmouth landscape from the Citadel.”  
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[372]  
Mr. Epstein, in his brief, draws attention to City-Wide Policy 8.8  
(Environment) and its admonition that “The City should protect vistas and views of  
significant interest.” Mr. Epstein suggests that:  
The Board has already identified the Halifax MPS as having only one reasonable meaning  
with respect to views. The Board’s conclusion was that the views policies, so far as they  
relate to Citadel Hill and the Halifax CBD, function to connect the Citadel to Halifax Harbour.  
The policies are designed to maintain the integrity of the setting of the Citadel, meaning  
maintaining a sense of the history and heritage of the city of Halifax . . .  
[Mr. Epstein Final Submission, p. 29]  
[373]  
The Board will here briefly observe that it does not agree with this  
characterization of its decision in Midtown. In the view of the Board, its comments in  
Midtown and the comments of the Court of Appeal in reviewing that decision, must be  
viewed in the context of the Midtown project itself. In particular, the Board considers that  
a very significant difference between the present proposal and that in Midtown is that  
Midtown was demonstrably within the vicinity of the Citadel, being just in the next block  
from Brunswick Street, where a maximum four storey height prevails. The subject property  
is six blocks away. For the Appellants to fail on this point, the Board need not (as it has  
already remarked) find the Appellants’ assertion that the subject property is within the  
vicinity of the Citadel to be unreasonable: the Board need only find that the Appellants  
failed to establish that the HRM position (i.e., that the subject property is outside the vicinity  
of the Citadel) is an unreasonable one. This, the Board has no hesitation in doing, i.e., it  
finds, on the evidence and submissions before it, that, to regard the subject property as  
outside the vicinity of the Citadel is an interpretation of the MPS which reasonably carries  
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out its intent.  
[374]  
The Board will refer here briefly to only a few passages, to underscore its  
opinion, at least, of the principles applied by it and by the Court of Appeal in Midtown —  
principles which it still considers to be applicable:  
[183]  
In the view of the Board, an objective reading of the M.P.S. leads irresistibly to two  
conclusions. The first is that heritage is an important theme in the M.P.S., both on a city-wide  
basis, and for the Central Business District, or CBD, in which the subject property is located.  
The second is that, while all heritage matters have a measure of importance in the M.P.S.,  
none are more important than Citadel Hill and its fortifications, and – quite probably – none  
approach it in importance.  
[375]  
In the view of the Board, this passage expresses the idea that heritage is an  
“important theme” and has “a measure of importance.” Nevertheless, the Board did not  
consider in Midtown (and still does not) that heritage governs all decisions under the  
Halifax MPS to the exclusion of the other important issues (a matter to which the Court of  
Appeal drew some attention in Heritage Trust), identified within that document. These  
include not just economic issues, but other matters as well.  
[219]  
The Board agrees with Mr. Porter that the M.P.S. recognizes Citadel Hill and its view  
as a defining element in the character of Halifax. The Board finds that the overriding intent  
of these policies is, in part, to protect the setting of the Citadel, and the views from the  
Citadel, by controlling the height and scale of buildings in its vicinity.  
. . .  
[221]  
Approval of such a building does not, to the Board, seem reasonably consistent on  
its face with the directions in the policy to make “every effort to preserve the view from Citadel  
Hill” or “to maintain a sensitive and complementary setting by controlling the height of new  
development in its vicinity.”  
. . .  
[224]  
The Board also notes that the view planes were adopted in 1978. The Heritage  
Resources Policies were adopted in 1984 (as was Section 84 of L.U.B.). Clearly the timing  
of the adoption of these latter Policies imply they were enacted to ensure additional protection  
for the Citadel, over and above the protection already afforded by the view planes. The  
Board accepts the evidence of Philip Pacey on this point.  
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. . .  
[226] The Board agrees with Mr. Porter that — when the policies are read as a whole - they  
require preservation of various aspects of Citadel Hill, and that a building with an elevation  
significantly higher than Citadel Hill conflicts which such an intent.  
. . .  
[228]  
The Board does not accept the evidence of Mr. Fowler that Council was free to  
negotiate an “18 or 22 storey” building at the site so long as they were achieving other  
worthwhile objectives, and that such a decision of Council would still be consistent with the  
M.P.S. In the view of the Board, the predominant policy direction in the M.P.S. limits the  
height of new development in the vicinity of Citadel Hill. A 17-storey building — much less  
an 18 to 22 storey one — would offend that intent. [Midtown decision]  
[376]  
The conclusions which the Board reached with respect to what is acceptable  
with respect to such things as height and views and heritage, in relation to the Citadel, in  
Midtown, relate to that site.  
[377]  
Havingreviewedtheevidence and submissionson thispoint,theBoardfinds,  
on the balance of probabilities, that the Appellants have failed to show that Council’s  
decision, as it relates to the matters discussed above, under the heading “Heritage and  
Views,” does not reasonably carry out the intent of the MPS.  
Scale and Design Detail  
[378]  
The evidence and submissions of the Appellants with respect to scale and  
designdetail(andrelatedcommentswhichutilizedsuchtermsas“massing”and“heritage”)  
said that the proposed development failed to reasonably carry out the intent of the MPS  
with respect to such matters. The provisions in the MPS relied upon by the Appellants in  
their evidence included:  
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7. SCALE AND DESIGN DETAIL  
Objective  
7.1  
A high quality of design and construction of buildings to reflect the  
architectural, heritage and topographical characteristics of the CBD.  
The City shall generally retain the remaining street grid and City block  
pattern in the CBD.  
7.1.1  
The City should not undertake substantial street widenings in the CBD which  
would materially alter the character of the street grid.  
7.1.2  
The City shall encourage the architectural form and scale of new  
developments to be compatible with the block pattern, and shall discourage  
those developments which do not respect it.  
7.2  
The character of the CBD should be reinforced through the control of urban  
design details such as massing, texture, materials, street furniture, and  
building lines.  
7.2.1  
The exterior architectural design of new buildings should be complementary  
to any adjacent ones which are designated as being of historic significance  
or important to the character of the CBD; in such instances, the careful use  
of materials, colour, proportion, and the rhythm established by surface and  
structural elements should reinforce those same aspects of the existing  
buildings.  
. . .  
[379]  
City-Wide Policy 6.3.1 says that height of new developments which are  
immediately adjacent to Citadel Hill (which refers to Band A, or Brunswick Street) should  
be “low to medium rise,” approximately four traditional storeys in height. Implicitly at least,  
much of the evidence and submissions made on behalf of the Appellants in relation to the  
phrase “the character of the CBD,” as referred to in CBD Policy 7.2, and “the architectural,  
heritage and topographical characteristics of the CBD,” as stated in the Objective of CBD  
7, assumed that this could only mean buildings of the type which the Appellants (by their  
standards) regarded as satisfactory. A common thrust of much of the Appellants’  
evidence, as summarized by Mr. Pink in a post-hearing submission, was the claim that the  
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dominant architectural characteristic of the CBD is low to medium rise buildings. Taken  
at face value, at least some of the evidence of the Appellants appear to describe the area  
between the top of Citadel Hill and the harbour shore as populated entirely with low-rise  
(and some mid-rise) buildings.  
[380]  
For example, Mr. Allsopp, in response to a question on another provision of  
the MPS, said that  
. . . the built stuff of the CBD is fundamentally defined by the things that have occurred before  
the Second World War. . .  
[Transcript, February 5, 2007, p. 77]  
He went on to describe “the overall pattern” of development of the CBD in relation to  
Citadel Hill as being “low-rise, mid-rise buildings that step down the hill” and claiming that:  
. . . that pattern is severely broken by the proposed development . . .  
[Transcript, February 5, 2007, p. 70]  
[381]  
The Board inferred from remarks of this type from Mr. Allsopp, as well as  
other evidence and submissions provided on behalf of the Appellants, that, a vision of  
Halifax was being portrayed which is not consistent with the reality. The Board simply  
observes that the construction of a high rise building on the former Texpark property will  
not lead to the breaking of an “overall pattern” of low to mid-rise buildings between the  
Citadel and the harbour, because that overall pattern simply did not exist at the time of the  
making of the MPS, or at the time Mr. Allsopp gave his evidence to the Board. Low to mid-  
rise buildings do exist between the Citadel and the harbour, but so do buildings of much  
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greater height, which can only be described as high rises.  
[382]  
As counsel for the Developer remarked in a written submission, there are at  
least 15 buildings in the CBD that are over 160 feet in height, and five which are in excess  
of 215 feet above sea level. These tall buildings within the CBD were readily apparent to  
the Board during its site visit, including its observations from the top of the Citadel. The  
description given by the witness in the above-noted passage, as well as language used in  
other aspects of the Appellants’ evidence and submissions, simply ignores that fact.  
These claims by Mr. Allsopp are similar to the equally incorrect (from the Board’s  
perspective at least) claims by Dr. Bray, whose report said, for example, that the proposed  
development contemplated by the development agreement would be:  
. . . at odds with established pattern of development in the downtown . . .  
[Transcript, February 8, 2007, pp. 852-853]  
[383]  
The evidence just quoted by the Board was repeated, in various forms, by  
various of the Appellants’ witnesses, as well as by counsel for the Appellants. Mr. Epstein,  
for example, remarked in relation to the MPS overall objective (which refers to  
development “at a scale and density which preserve and enhance the quality of life”):  
. . . Scale clearly means the “approximately four traditional stories in height” that has  
characterized Halifax for two and a half centuries.  
[Mr. Epstein Final Submission, p. 32]  
[384]  
With respect, the Board sees nothing in the MPS to support the notion that  
scale must mean four traditional storeys in height, and cannot mean something higher;  
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further, the Board considers that any claim that Halifax is “characterized” by, or has an  
“established pattern of” four storeys is simply not consistent with the facts.  
[385]  
In the view of the Board, such statements are simply wrong — not as a  
matter of opinion, but as a matter of fact.  
[386]  
In the view of the Board, the reality of the CBD is much more accurately  
reflected in the Reports prepared by HRM Planning Staff, or the report of Mr. Lynch, than  
in the reports provided on behalf of the Appellants (in particular, the reports of Dr. Bray and  
Mr. Allsopp). The HRM Planning Staff Reports point to a variety of buildings within the  
CBD, varying in height, age, style and condition.  
[387]  
It is the opinion of the Board that, when one considers the “architectural  
characteristics” of the CBD, it is (as HRM’s planners thought) a reasonable interpretation  
of the MPS that these terms refer to buildings in general within the CBD — and not just to  
buildings which the Appellants happen to like. Some buildingsmayindeed contribute more  
than others to the architectural characteristics or flavour of the CBD (and “heritage”  
buildings are undoubtedly accorded importance under the MPS), but all form part of the  
mix.  
[388]  
In the Board’s judgment, it is not reasonable to say that three to four storey  
buildings are the “dominant” architectural characteristic of the CBD. Its characteristics  
include a variety of buildings, including the much maligned Maritime Centre (which most  
witnesses seemed to take some opportunity to criticize in the course of their evidence), as  
well as other tall buildings, such as the Purdy’s Wharf towers, 1801 Hollis Street, or the  
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Centennial Building, across the street from the subject property.  
[389]  
The Board neither criticizes nor applauds the Maritime Centre (or any other  
high rises in the CBD). Instead, it sees it, and them, as, plainly, part of the existing  
buildings and structures of the CBD. The Maritime Centre simply is. In the view of the  
Board, to ignore this fact, as the Appellants urge it to do, would be to misread the MPS.  
[390]  
On this point, CBD Policy 2.2 states:  
The City shall promote the development of mixed-use residential and commercial areas which are  
appropriate to the varied scale and character of the sub-areas of the CBD. [emphasis added]  
The Board considers that this provision amounts to an explicit acknowledgment within the  
MPS that the scale and character of the CBD, and its various sub-areas, are not uniform.  
The Board sees this as inconsistent with the theme repeatedly advanced by the Appellants  
in much of their evidence, to the effect that the predominant scale is low to medium rise.  
[391]  
Mr. Pink, on behalf of the Appellants, remarked that “the proposed  
development in ATC was found not to be appropriate when compared to the scale of  
buildings in the sub-area,” quoting ATC to the effect that “to inject into the sub-area two  
high rise buildings . . . would not be appropriate to the varied scale and characteristic of  
Sub-Area 3.” The Board notes, first, that the proposed structure, in the present  
proceeding, is not in Sub-Area 3: it is in Sub-Area 10. The property in ATC, in Sub-Area  
3, faced the Citadel, with no other building intervening: the towers would have been entirely  
visible from the Citadel, the corner site upon which they were to be erected being  
diagonally across from the corner of Sackville and Brunswick Streets which forms the  
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southeastern corner of the Citadel property itself. Moreover, the proposed ATC site (which  
today is occupied by Cambridge Suites) is, to a visitor driving east on Sackville Street, in  
the same field of view as the fronts of various historic buildings on Brunswick Street to the  
north of Sackville Street which, themselves, are directly across the road from the Citadel.  
[392]  
Sub-Area 10 is described (Schedule III.1, at p. III-6 of the MPS) as:  
a sub-area of office and mixed-use between Hollis Street and the western side of Granville  
Street, and extending from Salter Street to Prince Street.  
“Mixed-use” is defined at the beginning of Section III - CBD as including residential uses.  
Thus, the proposed development, which includes residential, hotel, office, and retail space  
is consistent with the definition of the policies relating to Sub-Area 10. Counsel for the  
Developer notes that there is in the Sub-Area 10 description, no reference to “historic  
buildings,” unlike, for example, Sub-Area 7 (between Granville Street and the Ferry  
Terminal) which does incorporate such a reference.  
[393]  
In the viewof the Board, however, the Appellants’ evidence and submissions  
were not merely incorrect with respect to their descriptions of the nature of development  
between the Citadel and the harbour, but in the legal significance — or, rather, legal  
insignificance — which they attributed to such structures as Maritime Centre. Dr. Bray  
referred to 20th century buildings in the CBD as being “anomalous.” Likewise, Mr. Porter  
said that “the Maritime Centre is really an anomaly.” Mr. Pink, in his submissions, says:  
. . . it is generally agreed that the Maritime Centre is [an] anomaly, built prior to the MPS, and  
it should be ignored.  
[Mr. Pink Reply Submission, p. 12]  
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In the view of the Board, Mr. Pink’s statement is an accurate summary of the position  
consistently put forward by the Appellants. In the Board’s opinion, however, that position  
is not consistent generally with the evidence before the Board in this proceeding, nor is it  
consistent with the intent of the MPS.  
[394]  
The position of witnesses testifying on behalf of the Respondents was the  
opposite of that of the Appellants. For example, Mr. Dunphy did not agree with the  
assertion that buildings such as 1801 Hollis Street and others, were essentially mistakes.  
He remarked in the course of his evidence:  
. . . W hen the MPS was adopted, Halifax had historic buildings, it had modern buildings, and  
almost everywhere that you are in the CBD, you are going to be aware of a heritage building.  
You're going to be able to see one or you're going to be near one. That doesn't necessarily  
indicate that that's the predominant character of that area of the CBD. W e've seen many  
views over the past week of the east side of Barrington Street with traditional architecture and  
some registered heritage properties there. So that would suggest that that's the predominant  
character of the area surrounding this project. If we look at -- if we walk out the front door  
of this building -- and again I would encourage the Board to do a site visit -- you see quite a  
different image of the downtown. You see parking lots, you see open and closed parking  
structures. You see several 1960s era office structures, and you see the rear of the  
Barrington Street buildings, and you see the vacant lot. And that's over -- rather than a two-  
dimensional view of the facades of the side of the Barrington streetscape, you're actually  
seeing a three-dimensional view across a two/three/four-block area of the CBD. So I think  
in this area, there isn't -- there aren't heritage properties which are dominating the character  
of the area. And back to your original question about are modern buildings and taller  
buildings in the CBD mistakes, no. And in an area like this where there's actually a  
predominance of either under-developed sites or modern buildings, I think again without a  
prescriptive direction in the planning strategy, it's reasonable for Council to determine what  
emphasis it wants to place on modern versus traditional architecture, as well as scale  
[emphasis added]  
[Transcript, February 13, 2007, pp, 1550-1551]  
[395]  
Inprinciple, theBoard considersthatan MPScouldcertainlybedrafted which  
expressly, or by necessary implication, established that buildings of a certain type, or even  
certain specific buildings, were not to be taken into account when evaluating the  
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consistency or compatibility of proposed new structures with the existing building stock.  
[396]  
In the view of the Board, however, the MPS for Halifax does not contain  
language which would cause it to consider that a Municipal Council, in making a decision  
which took into account existing building stock, including various high rises such as  
Maritime Centre, would be failing to reasonably carry out the intent of the MPS. On this  
point, the Board considers that the Court of Appeal decision in Tsimiklis is of interest. In  
that case, the Court of Appeal concluded that Fenwick Towers could be taken into  
consideration. The Court concluded:  
In my opinion, Fenwick Tower could be, and was properly, taken into consideration by  
Council in applying the policies of the MPS with respect to notions of scale and compatibility  
with the neighbourhood. The Board erred in law and exceeded its jurisdiction in deciding that  
Council was wrong in taking it into consideration in determining the intent of the MPS with  
respect to the appellant's application as it pertains to notions of scale and compatibility with  
the neighbourhood. [para. 61]  
[397]  
The Board, in referring to Tsimiklis, is not suggesting that the situation in  
Tsimiklis is exactly like that in the present proceeding (the Board notes, for example, that  
the principle of a non-conforming structure played a part in Tsimiklis, but does not in the  
present proceeding), or that exactly the same provisions are applicable. The Board  
considers, however, that the principle which the Court of Appeal was pointing towards is  
one which would mean that it would be incorrect for the Board to consider (as the  
Appellants urged it to do) that buildings such as the Maritime Centre (even though it was  
built before the MPS was adopted), 1801 Hollis Street, or Purdy’s Wharf Towers, among  
others, ought to be steadfastly ignored when evaluating the proposed development.  
[398]  
The Board reached a similar conclusion in Eaton et al. v. Bridgetown Town  
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Council, [2004] N.S.U.R.B.D. No. 96 (Q.L.), 2004 NSUARB 100, at paragraph 65:  
Mr. Pettit argued that the seniors' complex on Centennial Drive should not be taken into  
account by the Board, as it was built before the MPS was adopted. The Board does not  
agree: it considers that municipalities, in adopting a new MPS and LUB, do not solely concern  
themselves with future development, but with future development in the context of the  
development which is already present at the time the MPS is adopted. Thus, it would be  
improper for the Board to ignore (as Mr. Pettit urged) the presence of the seniors' complex.  
The Board further notes that, if it were to accept the appellants' submission that the seniors'  
complex should be ignored because it was built prior to the adoption of the MPS, the Board  
would likewise have to ignore the presence of the much older two and three-storey, stately  
homes on nearby Granville Street -- a presence which the appellants, and the Board, see as  
significant.  
Complementary  
[399]  
A large amount of written and oral evidence was focused upon the term  
“complementary,” which appears more than once within the MPS. City-Wide Policy 6.3,  
for example, states:  
6.3  
The City shall maintain or recreate a sensitive and complimentary setting for Citadel  
Hill by controlling the height of new development in its vicinity to reflect the historic  
and traditional scale of development.  
As the Board has already noted, the word complimentary (spelled with an “I”) appears in  
City-Wide Policy 6.3, but elsewhere the word, although used in a similar context, is spelled  
“complementary” (spelled with an “e”).  
[400]  
CBD 7.2.1 states:  
7.2.1  
The exterior architectural design of new buildings should be complementary to any  
adjacent ones which are designated as being of historic significance or important to  
the character of the CBD; in such instances, the careful use of materials, colour,  
proportion, and the rhythm established by surface and structural elements should  
reinforce those same aspects of the existing buildings.  
[401]  
The Board has alreadynoted (at paras. 22-24, above) that the HRM Planning  
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Staff reports suggested that to be “complementary” did not mean that new buildings had  
to have “traditional architecture.”  
[402]  
Before exploring this point further, the Board notes that CBD Policy 7.2.1  
refers to buildings being “complementary” to “adjacent” ones which are of “historic  
significance” or buildings which are “important to the character of the CBD.” It is possible,  
of course, that a building could fall in both classes — for example, a building which is of  
historic significance might well also be important to the character of the CBD. While the  
Appellants appeared to argue at various points that being of “historic significance” and  
being “important to the character of the CBD” were synonymous, the Board does not  
(however reasonable that interpretation of Appellants might be) consider it to be the only  
reasonable interpretation of the provision: it also accepts as a reasonable interpretation of  
the MPS that buildings which are of “historic significance” or “important to the character of  
the CBD” are two different classes of buildings.  
[403]  
[404]  
The Board further notes that CBD Policy 7.2.1 is a “should” policy.  
The Board will explore (relatively briefly, in comparison to the large amount  
of evidence and submissions on the point) its view of the term “complementary,” as used  
in the HRM MPS, in the context of the particular circumstances of this proceeding.  
[405]  
Evidence and submissions on behalf of the Appellants repeatedly asserted  
— both explicitly and implicitly — that the term “complementary” could only mean that new  
structures must “mimic” older designs. Thus, for example, Mr. Epstein said:  
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. . . the MPS as now written simply calls for sympathetic, mimicking architecture.  
[Mr. Epstein Final Submission, para. 9]  
[406]  
Mr. Pink uses similar language, flatly stating that mimicking “is what is  
required by CBD Policy 7.2.1.” It was clear from the submissions and evidence of the  
Appellants that the architecture which is to be “mimicked” is the architecture of older  
looking buildings, having, preferably, maximum heights of three to four storeys, although  
buildings having a few storeys more were considered tolerable in some circumstances to  
the Appellants. The Board notes, however, that — even if the Board were to assume that  
the Appellants’ view as to there being a height maximum was correct — it was not clear to  
the Board just what kinds of older designs the Appellants preferred, and considered should  
be emulated.  
[407]  
The Appellants took a similar view of CBD Policy 7.2, which states:  
7.2  
The character of the CBD should be reinforced through the control of urban design  
details such as massing, texture, materials, street furniture, and building lines.  
[408]  
Once again, the Appellants appeared to interpret the term “reinforced” as  
requiring (even though it is in a “should” provision) that new buildings “replicate or mimic”  
the “heritage” styles favoured by the Appellants.  
[409]  
The evidence of experts who testified on behalf of the Respondents was  
contrary to that of the Appellants on the matter of the meaning of “complementary” in the  
context of the MPS. Typical of this evidence was that of Mr. Lynch who, in response to a  
question as to the meaning of “complementary,” in the context of CBD Policy 7.2.1 and  
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“heritage buildings that are adjacent or nearby,” stated, in part:  
. . . it is a bit subjective, what is complementary. In fact, sometimes buildings can contrast  
and still be complementary . . .  
[Transcript, March 22, 2007, p. 2600]  
[410]  
With respect to the question of whether or not the United Gulf proposal is  
“complementary to adjacent or nearby heritage buildings,” Mr. Lynch was firmly of the view  
that it was (see the excerpt from his testimony, beginning at para. 420, below).  
[411]  
The Appellants repeatedly equated the term “complementary” with “mimic.”  
It was notable, however, that, while the Appellants asserted that the word “complementary”  
meant the same thing as “to mimic or be similar,” the expert witnesses who testified on  
their behalf failed to provide any significant evidence with respect to an independent  
definition, technical or otherwise, which supported their claims. The Board, then, has in  
its opinion no evidence of a technical definition of the term “complementary,” and no  
definition in the MPS or Municipal Government Act of the term.  
[412]  
The Board remarked in Director of Assessment v. Ocean Produce  
International, [2002] N.S.U.R.B.D. No. 10 (Q.L), 2002 NSUARB 10:  
Additionally, one must also consider whether the dictionary definitions under consideration  
were in use or commonly accepted at the time of the enactment of the provision. Section  
2(1)(g), with its definition of "farm property," was incorporated into the Assessment Act no  
later than 1975. André Côté's Interpretation of Legislation in Canada (3rd edition, 2000)  
states that words in statutes should be given  
"their ordinary meaning at the time of the legislation's adoption . . . the  
meaning of a statute should not be altered by a change in the ordinary  
meaning of the word . . . A statute should not be modified by mere semantic  
evolution. Reference to written material that is contemporary to the  
enactment of the statute may elucidate the ordinary meaning of the word  
at that time. [pp. 267-268]” [para. 31]  
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The bulk of the dictionary definitions of the word “complementary” appear, from the Board’s  
perspective at least, to be inconsistent with the point of view put forward by the Appellants.  
Moreover, the dictionary definitions of the term “complementary” seem, to the Board, to be  
largely consistent with the interpretation of that word taken by various of the witnesses for  
the Respondents, including the HRM planners and Mr. Lynch.  
[413]  
Before referring briefly to these definitions, the Board will note that the word  
“complementarity” appeared to be used in evidence before the Board with a frequency  
approachingthat of “complementary.” “Complementarity” does not appearas a word in the  
dictionaries consulted by the Board, but the Board has assumed equivalency between the  
two terms.  
[414]  
The definition of “complementary” in the Compact Edition of the Oxford  
English Dictionary (Oxford University Press, 1981) (a date, the Board notes, roughly  
approximating a period in which the MPS was adopted and later amended) includes the  
following:  
1. Forming a complement, completing, perfecting . . . The muscular system . . . with a  
complementary skeleton . . . Of two (or more) things: mutually complementing or completing  
each other’s deficiencies . . . Complementary colours . . . which in combination produce white  
or colourless light . . . bluish green, the complementary colour to red.  
The American Heritage Dictionary of the English Language (American Heritage Publishing  
Co., Inc., 1969) dictionary definition of “complementary” includes the following:  
1. Forming or serving as a complement; completing. 2. Supplying mutual needs or offsetting  
mutual lacks.  
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[415]  
The Board does not see either of these definitions, which are, broadly  
speaking, representative of various other dictionary definitions which the Board consulted  
(but has not reproduced here), as being consistent with the position of the Appellants: their  
position is, in essence, that the only possible meaning of the term “complementary” in the  
MPS is that the MPS requires that new development be the same, or, to put it another way,  
“replicate or mimic” heritage buildings.  
[416]  
The Appellants are unhappy with the size (including both its height and its  
bulk) of the proposed project, and also with its exterior detail. Mr. Allsopp, for example,  
testified that, in his opinion, with respect to “urban design details such as massing,” the  
proposed project:  
. . . it is overwhelming . . . overpowering in its height . . . overpowering in its lateral  
dimensions . . .  
[Transcript, February 5, 2007, p. 87]  
[417]  
The point of view of other evidence and submissions on behalf of the  
Appellants is similar. The witnesses for the Appellants were likewise not happy with the  
appearance of the podium upon which the towers would stand, which makes no pretense  
of mimicking an older style of any sort seen in HRM.  
[418]  
The expert evidence on behalf of the Respondents, however, directly  
contradicts the perspective of the Appellants. The Reports by Planning Staff to Council  
acknowledge that the proposed development will, if built, be one of the largest in HRM;  
they likewise were clear that the proposed project did not “mimic” older designs.  
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[419]  
The December 16, 2005 Planning Staff Report includes in its main body a  
section referring to “Scale and Design” (quoted above at para. 22). The Planning Staff  
Report asserts, and the Board (on the evidence before it, which it sees as consistent with  
its site visit) agrees, that:  
The area includes a broad mix of historic buildings and contemporary buildings with no  
dominant character . . .  
[Exhibit H-1(b), p. 401]  
[420]  
The HRM Planning Staff noted that the podium, as designed, does not have  
a plain, homogenous surface, but rather a variety of different materials, as well as  
numerous entrances and exits to the building, and canopies at street level. These  
remarks, together with others of similar substance (such as the report’s note that the  
proposed building “avoids the use of grey concrete”) were echoed in the evidence of Mr.  
Lynch. In referring to matters of scale and design, including whether or not the United Gulf  
proposal is “complementary to adjacent or nearby heritage buildings,” Mr. Lynch said:  
A.  
Well, I think with this podium tower design, that the podium relates very well, not just  
to -- there's not that much adjacent heritage, but there is that -- that fine scale of  
Halifax from, say, 100 years ago, that sort of three and four-storey scale throughout  
the downtown that it relates exceptionally well to, both on Granville and Hollis, where  
you know, it doesn't use the same materials, but the scale and the texture of that  
podium, I think, are complementary to that historic scale that you find throughout the  
downtown.  
Q.  
A.  
What about the use of the materials, Mr. Lynch?  
Well, again, it's not the same materials that are used through downtown. It -- there's  
a use of -- there's a use of concrete, there's a use of stone, there's a use of copper  
and coloured glass and clear glass, and it's that texture that I find interesting, that  
they have paid attention to really what the pedestrian is seeing and touching at  
sidewalk level -- not through -- not through the use of the same materials but through  
the use of complementary materials.  
[Transcript, March 22, 2007, pp. 2602-2603]  
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[421]  
Speaking more broadly, however, Mr. Lynch said that the proposed project:  
. . . it's totally within the policy and design direction that comes out of the planning strategy,  
that it's a very thoughtful response at all levels to the policies that are there, to the point  
where I find very little to say against it, that it's been a very thoughtful response, I think, to --  
and in particular, to the scale and design detail in a much more sophisticated way than I had  
originally imagined. And it was only when I went through all these documents that I -- and  
went through the plans in some detail that I saw the sophistication of this particular project.  
[Transcript, March 22, 2007, p. 2605]  
The Board also notes Mr. Lynch’s comments with respect to heritage and scale at various  
points in his testimony, describing the proposed structure as showing:  
. . . a thoughtful consideration for its environment, with respect to the urban design issues,  
with respect to heritage . . .  
[Transcript, March 22, 2007, p. 2587]  
and  
. . . I feel that the design of this complex addresses heritage in a complementary way by the  
scale of its podium . . . it almost operates at two scales . . . the pedestrian scale . . . along  
Granville, Sackville and Hollis Streets as it relates to at a pedestrian level, almost at a fine  
scale of -- not unlike the heritage scale where you can literally touch and feel. And you have  
another scale to this project which is -- which is . . . a macro scale relating more to the CBD  
itself.  
[Transcript, March 22, 2007, p. 2592]  
[422]  
The Board considers the following observation by Mr. Lynch (which it has  
already quoted at para. 152, above), and which was done specifically in response to a  
question respecting CBD Policy 7.2 as being an eminently reasonable one, in the context  
of the MPS.  
Well, first of all, in terms of massing, I again talk about these two scales. So you have the  
massing broken into podium and towers, and the podium is really quite -- I think quite  
thoughtfully designed to relate to that pedestrian and historic kind of three/four-storey scale  
that exists downtown, or exists with a lot of heritage structures. And the -- and that's the  
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scale that you're aware of when you're at sidewalk level. And the towers themselves, as I  
said, really relate more to the CBD scale as seen in the panorama either from Dartmouth or  
from a distance. Texture is perhaps the use of those materials. The podium has a fine  
texture to it -- a use of a number of materials, but broken down -- it's not one slick wall, if you  
will. It's not one smooth texture facade at that pedestrian level. It's in fact a series of  
recessed entrances, sidewalk protection, urban design details, commercial activity, store  
windows, transparency, and solid materials to break down the scale and texture at the street  
level. And I think that's what's really the success of that scale. The materials, as I said, are  
not the same materials that exist on the buildings close by. Nevertheless, the materials are  
quite compatible with those surrounding buildings and not out of -- not out of place at all. I  
would say materials that are compatible with other buildings. They don't try to mimic them,  
but they are compatible and complement adjacent heritage and other buildings. Also, you  
know, the -- the sidewalk perimeter to the whole building has been, I think, quite thoughtfully  
done. They have thought about weather protection. They've thought about -- they've thought  
about wind. They've thought about weather protection. They've thought about people being  
able to pass through the building, and it's not a fortress at sidewalk level at all.  
[Transcript, March 22, 2007, pp. 2598-2599]  
[423]  
When asked his opinion as to whether the proposed development was  
complementary and met the intent of the MPS with respect to adjacent heritage buildings,  
Mr. McLeod remarked:  
Well, for a building to be judged complementary to adjacent heritage buildings it seems to  
me that they both have to be seen within the same street picture, you have to be able to see  
the new building, see the heritage building, see how or if they relate and, you know, make  
your comparison and make your judgment accordingly . . .  
[Transcript, February 16, 2007, p. 2263]  
[424]  
The front facades of the heritage buildings on Barrington Street are markedly  
superior to the appearance of the rear of those same buildings, which are on Granville,  
facing the site of the proposed structure (the Board notes that the front and rear facades  
of the buildings between Barrington and Granville Streets are in two different sub-areas of  
the CBD).  
[425]  
The comments by HRM Planning Staff in their report to Council with respect  
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to the appearance of the rear portions of the buildings were understated. In his oral  
evidence, Mr. McLeod was more direct, remarking that:  
. . . I think we would be doing the citizens of Halifax a great disservice if we . . . we directed  
that the architecture here be complementary to the adjacent heritage properties that we can  
see.  
[Transcript, February 16, 2007, p. 2263]  
Other witnesses, including even some testimony given on behalf of the Appellants  
themselves, were more critical of the appearance of those rear facades than was the report  
of HRM Planning Staff.  
[426]  
As the Board has noted, the towersof theproposedstructurewould bevisible  
behind the facades of the heritage buildings located on the east side of Barrington Street,  
to a person walking south, on the west side of Barrington Street. This prospect caused Mr.  
McLeod no concern:  
. . . You will certainly see the top of them but you won't see -- you won't be able to discern  
detail or any of that. There will just be a shape, and a shape clothed in glass as far as we  
can make out, or at least as far as the hotel is concerned. That happens in so many cities  
of Halifax's character, you know, as I've said, up and down the Eastern Seaboard, that it's  
an accepted part of urban life, and I do not think that's a factor.  
[Transcript, February 16, 2007, pp. 2265-2266]  
[427]  
Mr. McLeod answered as follows to the question:  
Q.  
A.  
. . . is it complementary in terms of those adjacent heritage buildings?  
It's -- no, it's not complementary to the facades on Barrington Street, because I -- it's  
my belief that you have to be able to see the new building and the older buildings in  
the same view picture. Otherwise, you know, how is this business of  
complementarity to be assessed and judged?  
[Transcript, February 16, 2007, p. 2265]  
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[428]  
It was suggested by counsel for Heritage Trust, Mr. Pink, that Mr. McLeod  
had stated that the building would not be complementary. In the view of the Board,  
another reasonable interpretation of the evidence of the witness was, in essence, that the  
issue of being complementary simply did not arise, in his view, because, as he had said  
in response to an earlier question:  
. . . for a building to be judged complementary to adjacent heritage buildings it seems to me  
that they both have to be seen within the same street picture . . .  
[Transcript, February 16, 2007, p. 2263]  
His evidence quite clearly was that they were not within the same street picture.  
Block Pattern and Street Grid  
[429]  
CBD Policy 7.1 refers to “generally” retaining “the remaining street grid and  
City block pattern in the CBD,” to not “. . . widening streets which would materially alter the  
character of the street grid” (CBD Policy 7.1.1), and to encouraging new developments to  
have an “architectural form and scale” which is “compatible with the block pattern” (CBD  
Policy 7.1.2). There is, however, no definition of “street grid” or of “block pattern.”  
[430]  
The Board received a significant amount of evidence on the meaning of  
“street grid” and “block pattern” in this proceeding. As the Board does not consider that a  
firm definition of, or distinction between, these terms is possible, with the evidence and  
submissions before it, it will not explore this point at great length (at least, relative to the  
amount of submissions it received upon the point).  
[431]  
On this point, the Board notes that a third term, “street pattern,” appears in  
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City-Wide Policy 6.2, in the context of “the street pattern of the Halifax Central Business  
District”; there is, just as with the terms “street grid” and “block pattern,” no definition in the  
MPS of this term, and no indication as to what differences in meaning, if any, the drafters  
of the MPS intended to be accorded to the term.  
[432]  
The Board considers that there is no general understanding, even among  
those experienced in planning matters, as to the difference in meaning, if any, between the  
two commonly used terms (“street grid” and “block pattern”), or, for that matter, the third  
term “street pattern.” The Board will note that it found in Midtown the evidence of various  
experts who testified as to the meaning of “street grid” and “block pattern” to be  
inconsistent and unclear. The Board did not find the evidence in the present proceeding  
to be significantly different in that regard.  
[433]  
The Appellants asserted firmly in the present proceeding that the term “block  
pattern” was three dimensional, this point being referred to, for example, by Mr. Pink in his  
opening remarks. The notion of a three dimensional block pattern is one which is found,  
according to the evidence before the Board, in the Barrington Street Historic District  
Revitalization Plan. As the Board has already noted, this document, while important to the  
Appellants, does not form part of the MPS. Moreover, it has been adopted only in principle  
by HRM Council. Nevertheless, Dr. Bray and Mr. Allsopp were given a copy of the  
Revitalization Plan (but not a copy of the complete MPS), and they both used it in  
developing their opinions in the present proceeding. The document discusses the term  
“block pattern” as a three dimensional concept, in its section dealing with guidance in  
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interpreting MPS Policy Set 7 on Barrington Street.  
[434]  
Counsel for HRM notes that Mr. McLeod and Ms. Wilkie testified that they  
thought block pattern was a two dimensional concept, while Mr. Sampson and Mr. Dunphy  
thought the term could relate to three dimensional matters. At the same time, Mr.  
Sampson and Mr. Dunphy thought that, even if the term “block pattern” were to be given  
a three dimensional meaning, the development which is the subject of this proceeding  
would still be consistent with the MPS.  
[435]  
One indication of the degree of uncertainty as to the meaning of these terms  
may be gathered from a brief exploration of the evidence of Mr. Porter (who, as the Board  
has already noted elsewhere testified on behalf of the Appellants in the present  
proceeding, but had testified on behalf of HRM in the Midtown hearing). In the present  
proceeding, Mr. Porter testified on direct examination that the term:  
. . . "street grid" refers to the 2-dimensional layout of the streets and the lots and the block  
pattern then adds the third dimension of the masses that are built on the grid.  
[Transcript, February 6, 2007, pp. 248-249]  
In Midtown, Mr. Grant had cross-examined Mr. Porter, referring to CBD Policy 7.1.2:  
Q.  
. . . this is a policy which is a subsidiary policy of 7.1, the city shall generally retain  
the remaining street grid and city block pattern . . .  
A.  
Q.  
A.  
Q.  
Yeah.  
. . . in the CBD.  
Yeah.  
And the intent of that policy -- policy set, I would suggest to you, is to avoid further  
street closings and blocking off of streets in the [Central Business District].  
A.  
That seems to be the main thrust, yes.  
[Midtown Transcript, May 9, 2005, p. 152]  
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[436]  
On cross-examination in the present proceeding, however, the following  
exchange occurred between Mr. Grant and Mr. Porter:  
Q.  
Let me turn you now to Policy 7.1.2 in Section III, just above Policy 7.3. This is the  
policy that says that:  
"The City shall encourage the architectural form and scale of new  
developments to be compatible with the block pattern and shall  
discourage those developments which do not respect it."  
Right?  
Yes.  
A.  
Q.  
You'd agree with me that the main thrust of this policy is to avoid further street  
closings and the blocking off of streets in the [Central Business District]?  
A.  
No, I don't think that's the main thrust of that policy.  
[Transcript, February 6, 2007, pp. 315-316]  
Mr. Grant thereupon referred Mr. Porter to his evidence in the Midtown case; Mr. Porter  
acknowledged that the questions and answers quoted from the Midtown transcript were  
correct.  
[437]  
If the meaning of “street grid” is simply the existing pattern of streets (a point  
upon which there was much less dispute, both in this proceeding and in Midtown), the  
Board notes, and agrees with, the submission by counsel for the Developer:  
. . . Major office buildings which respect the street grid pattern of the CBD are necessarily tall  
buildings . . .  
[United Gulf Final Submission, p. 41]  
Counsel for the Developer goes on to assert in the next sentence:  
This was contemplated in the MPS for areas not affected by view planes such as the Tex  
Park site. As Simpson McLeod comments, there are limited sites remaining for development  
in the CBD and the CBD would not have its intended prominence if development were  
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restricted to six or ten storey buildings . . .  
[United Gulf Final Submission, p. 41]  
The latter quotation is, in the Board’s view, a matter of opinion, but one which is reasonably  
compatible with the intent of the MPS.  
[438]  
The Board also notes that, whether one accepts a three dimensional  
definition of “block pattern” (which the Board considers to be one of, but not the only,  
reasonable interpretation of the term), or a two dimensional definition (which the Board  
likewise considers to be a reasonable interpretation, based on the evidence), one is still  
left with the question of just what the applicable “block pattern” is.  
[439]  
Some evidence before the Board points to “block pattern” simply relating to  
not changing the existing pattern of streets (a matter referred to elsewhere in the MPS as  
well). The proposed development will not modify the street pattern in any way. If one  
thinks of “block pattern” in terms of buildings, one is then left with the question of just how  
extensive the pattern to be referred to is. The term “block” might be taken as referring to  
simply the block in which the building is to be located; alternatively, it might, according to  
the evidence, extend to a broader area. The actual block upon which the proposed  
development is to be built consists of a vacant lot, the Blois Nickerson Building (1568 Hollis  
Street), and the MetroPark garage. The buildings directly across the road include low-rise  
three or four storey buildings, such as the Green Lantern (many with markedly unattractive  
rear facades on Granville), and high rise buildings, such as the Centennial Building and the  
Radisson Hotel, just across the street to the north of the subject site. The “pattern” is not  
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one which is homogenous, but rather one which reflects the evidence of various of the  
witnesses testifying on behalf of HRM to the effect that there is in the subject area, just as  
there is throughout the CBD, a mix of buildings — new and old, low and high, etc.  
[440]  
CBDPolicies7.1and 7.1.2, while theycontain theword “shall,”are provisions  
of the type referred to by Mr. Dunphy and Mr. McLeod when they pointed out, in essence,  
that “shall” provisions vary in the degree to which compliance is mandated. The Board  
sees a difference between, for example, a hypothetical provision which might say “new  
developments shall be compatible with” as opposed to (as occurs in CBD Policy 7.1.2),  
“the City shall encourage . . . new developments to be compatible,” or (as a further  
example, which occurs in CBD Policy 7.1) “the City shall generally retain . . .” This  
distinction becomes even more marked if, as in the Halifax MPS, there is generally no  
specific reference to the style, mass, height, etc. of the buildings which are to be emulated.  
These provisions are, therefore, in the judgment of the Board, rendered somewhat less  
mandatory.  
[441]  
Havingreviewedtheevidence and submissionson thispoint,theBoardfinds,  
on the balance of probabilities, that the Appellants have failed to show that Council’s  
decision, as it relates to the matter of “scale and design detail” and related topics, does not  
reasonably carry out the intent of the MPS.  
Relationship Between City-Wide and CBD Provisions  
[442]  
The Board will briefly deal with an argument which was repeatedly returned  
to by both counsel for the Appellants (and responded to by the Respondents). In part at  
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least, this argument attempted to assert a requirement to preserve views, as expressed in  
City-Wide Policy 6.2 (“make every effort to preserve . . . views from Citadel Hill”) and to  
assert that this provision (with all of the implications which the Appellants firmly deduced  
from it) meant that clear implications, or even expressed statements, within the CBD  
provisions, should be, in effect, superceded, or at least read narrowly so as to be  
consistent with the Appellants’ view of what is and is not permitted under the MPS.  
[443]  
The Board notes, first, City-Wide Policy 6.2 simply refers to the City having  
to “make every effort to preserve.” As the Board explores elsewhere in this decision, the  
Board does not see this as a provision which is as mandatory as the Appellants would  
urge. To put it another way, the point of view taken by experts testifying on behalf of HRM  
(that an interpretation which suggests that this provision provides important guidance, but  
is not obligatory, is an interpretation which reasonably carries out the intent of the MPS)  
seems to the Board to be a reasonable one.  
[444]  
When one reads City-Wide Policy 6.2 in the context of CBD provisions, one  
finds the subject of views in relation to Citadel Hill were dealt with specifically. Thus, CBD  
Policy 6 states as its objective, “A CBD which is visually attractive . . . from Citadel Hill, and  
from the harbour.” It then goes on in CBD Policy 6.1 to refer to the view planes, and in  
CBD Policy 6.2, to views along east-west streets, and in CBD Policy 6.3, to providing for  
rooftop landscaping if the top of a new building were visible from the Citadel. On the  
matter of height (which, as the Board has repeatedly noted elsewhere is intimately  
interconnected with the subject of views), CBD Policy 7.3 says that the height of new  
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developments “within the CBD in the vicinity of Citadel Hill” are to be governed “pursuant  
to Policies 6.3, 6.3.1, 6.3.2 and 6.3.3 of Section II of this Plan.”  
[445]  
In other words, CBD Policy 7.3, in dealing with the matter of height in the  
vicinity of Citadel Hill, specifically identifies four City-Wide policies as being the basis for  
the controlling of height, but City-Wide Policy 6.2 (upon which the Appellants, at least at  
certain pointswithintheir evidence and submissions, placed considerable emphasis) is not  
one of them.  
[446]  
The Board inferred from some of the submissions made by the Appellants  
that they were urging the Board to, in effect, restrict its interpretation of the CBD policies,  
arguing that the City-Wide policies are dominant.  
[447]  
The Board does not accept this argument. In reaching this conclusion, the  
Board is conscious of, and believes its decision consistent with, the statement by the Court  
of Appeal in Midtown that:  
The MPS relevant to this appeal dates back to 1978 and to what was then the City of Halifax.  
Following an introductory Section I, Section II sets out sixteen City-Wide Objectives and  
Policies. They are the foundation of the decision-making with regard to Halifax's physical,  
social and economic development . . . [para. 62]  
[448]  
MPS which deal with specific areas, such as the CBD.  
[449] The introduction to the MPS makes reference to “area plans,” one of which  
The City-Wide Policies contemplate the establishment of policies within the  
is the CBD. The introduction concludes with the following sentence:  
. . . These area plans are enabled by city-wide policies in Part II, Section II and define the  
detailed policy directions which the City of Halifax will employ in decision-making for these  
specific areas. [emphasis added]  
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City-Wide Policies 3.2 and 3.2.1 have this to say about the CBD:  
3.2  
The Halifax Central Business District shall be regarded as the principal business  
centre in the Halifax-Dartmouth region, and shall include office, shopping, finance,  
government, residential, recreation, and entertainment facilities as well as desirable  
types of harbour-related businesses and industries.  
3.2.1  
Major office projects, hotels, cultural facilities and government office activities, which  
would strengthen and enhance Halifax as the dominant centre of Atlantic Canada,  
should be induced to locate in the Central Business District. This policy shall remain  
in effect until City Council determines that the Central Business District is self-  
sustaining.  
[450]  
[451]  
City-Wide Policy 3.2.2 says:  
3.2.2  
Section III of this Plan details Policy 3.2 and shall constitute the basis for decision-  
making by the City in the Halifax Central Business District. [emphasis added]  
Thus, the MPS introduction says that the CBD provisions are to “define the  
detailed policy directions which the City of Halifax will employ in decision-making” in the  
CBD, and City-Wide 3.2.2 states that the CBD provisions are the means by which Policy  
3.2 is to be detailed, and shall “constitute the basis for decision-making by the City in the  
Halifax Central Business District.” In the view of the Board, a reasonable interpretation of  
these provisions would be that, if ambiguity exists in relation to how a City-Wide policy  
applies to the CBD, one may look to the CBD provisions in Section III as (to paraphrase  
the introduction to the MPS) “defining the detailed policy directions” which HRM is to apply  
there.  
[452]  
The City-Wide policies, then, “enable” the area plans (as the MPS  
introduction states); the Court of Appeal describes the City-Wide policies as the  
“foundation” of decision-making. Nevertheless, it is the Board’s view that it would be a  
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mistake to infer from either of these statements that one must therefore import the law with  
respect to statutory interpretation, as it applies to a statute, and to the regulations which  
that statute enables: at least at certain points, the Board inferred that this was what  
counsel for the Appellants was urging it to do.  
[453]  
In the view of the Board, it seems obvious that Section II (the City-Wide  
provisions) is not a statute, and Section III (the CBD provisions) is not a set of regulations.  
Instead, both the City-Wide and CBD provisions are part of the same MPS, and should be  
read together, in the holistic and purposive fashion suggested by Heritage Trust, and a  
succession of Court of Appeal decisions thereafter. Using this approach, it appears to the  
Board that the plain language of the MPS is that Council made certain general rules which  
are applicable to the City as a whole (including the CBD) under Section II, and then turned  
its mind, under Section III, to the more detailed needs of specific areas of concern, one of  
which is the CBD.  
[454]  
The Board does not consider to be persuasive the arguments which the  
Appellants raised which, impliedly or expressly, suggested that the language of the City-  
Wide policies should be used to limit the possible meaning of the CBD policies.  
[455]  
Indeed, even some of the case law referred to by the Appellants to bolster  
their arguments appeared to the Board to be supportive of the opposing point of view. For  
example, Mr. Pink made reference to Re Chater, [2005] N.S.U.R.B.D. No. 54 (Q.L.), 2005  
NSUARB 59, paraphrasing the Board’s decision in that instance as saying:  
. . . where they do not conflict with those policies in the Area Plan, the City-W ide policies  
warrant equal weight.  
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This paraphrase appears to have been drawn from paragraph 96 of the Board’s decision  
in Chater. The full paragraph states:  
In his testimony, Mr. Sampson, the Planner for HRM, downplayed the significance of the  
"City-Wide Objectives and Policies", relying primarily on the policies in Section XI (i.e., the  
PNSPS). In the view of the Board, the "City-Wide Objectives and Policies" warrant equal  
weight where they complement or supplement the policies in the PNSPS. In the event of  
conflicting policies, the Board considers that the policies in the PNSPS should prevail.  
The reference to PNSPS is the Peninsula North Secondary Planning Strategy, a planning  
document which is specific to the northern peninsula area of HRM. In like fashion, in the  
present proceeding, Section III of the MPS is, of course, specific to the CBD.  
[456]  
In the view of the Board, the paragraph quoted in Chater, when read in full,  
is consistent with the position put forward by the Respondents, and not consistent with that  
of the Appellants: the Board was saying that the City-Wide policies warranted “equal  
weight” only when they complemented or supplemented the policies, and in the event of  
conflict, the specific policies should prevail. In the view of the Board, this is quite a  
different thing from asserting (as the Appellants in substance did repeatedly) that the City-  
Wide policies should somehow prevail over the CBD policies.  
[457]  
If nothing else, the Board considers the language of City-Wide Policy 3.2.2,  
as well as the introduction, to be a powerful argument against any such proposition. In the  
view the Board takes of this present proceeding, however, it need make no express finding  
as to the relative precedence of the City-Wide and CBD provisions (or indeed, of the City-  
Wide provisions and those provisions relating to areas other than the CBD, such as Spring  
Garden Road). The Board need only find that, in its view, the Appellants have failed, on  
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the balance of probabilities, to show that the interpretation taken by HRM’s planning staff  
(that the CBD provisions are not subordinate in the way that the Appellants argue they are,  
and that the CBD provisions can be regarded as “constituting the basis for decision-  
making” in the CBD and containing “the detailed policy directions” which are to be applied  
in the CBD) is an interpretation which fails to reasonably carry out the intent of the MPS.  
Environment  
[458]  
The Board was likewise unpersuaded by the Appellants’ arguments, which  
were varied, in relation to the City-Wide provisions in the MPS dealing with environment:  
8. ENVIRONMENT  
Objective  
8.2  
The preservation and enhancement, where possible, of the natural and  
man-made environment, and especially of those social and cultural qualities  
of particular concern to the citizens of Halifax.  
In reviewing public and private land use proposals, including its own capital  
program, the City will take into account the social, physical, economic and  
aesthetic effects on the natural and man-made environment, and will  
establish and maintain appropriate procedures to take such effects into  
consideration in the approval process for such land uses.  
8.3  
The City shall develop the means to assure the greatest possible degree of  
compatibility between new developments and desirable aspects or  
characteristics of the surrounding man-made and natural environment  
through regulatory procedures or special permit procedures, such as  
contract zoning, conditional zoning, etc. Preference should be given to  
development which is aesthetically pleasing, human in scale, and in  
harmony with the natural and man-made environment. A requirement for  
an environmental impact statement should be implemented subsequent to  
completion and adoption of the Environment Strategy Statement as called  
for in Part III of this document.  
8.6  
The City should make every effort to ensure that developments do not  
create adverse wind and shadow effects. The means by which this policy  
shall be implemented shall be considered as part of the study called for in  
Part III.  
8.8  
The City should protect vistas and views of significant interest.  
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The Board will deal with this particular point only relatively briefly.  
[459]  
Mr. Epstein suggests that there is no evidence before the Board with respect  
to the heating or cooling approaches to the building, or the net greenhouse gas emissions  
of it, suggesting that HRM's Planning Staff ignored this policy set.  
[460]  
point to an inconsistency between the proposed development and this provision.  
[461] Second, the Board notes that there was a significant amount of reference in  
The Board notes here, first, that the burden of proof is on the Appellants to  
the evidence before it to possible environmental advantages associated with cutting down  
on commuting by increasing the number of available housing units in downtown Halifax.  
[462]  
Third, Mr. McLeod suggested that the reference to “manmade environment”  
in the Objective to City-Wide Policy Set 8 - “Environment” is a reference to manmade  
parks. Mr. Epstein characterizes this as "completely unreasonable." The Board, however,  
observes that Mr. Epstein’s argument that "manmade environment" must refer to buildings  
as well is not one which it considers to be obvious.  
[463]  
For example, the MPS refers constantly to buildings and structures, and to  
suggest that "manmade environment" must include buildings is not, in the view of the  
Board, an interpretation which it regards as intuitively correct. In urging his interpretation  
that “manmade environment” includes buildings, Mr. Epstein refers the Board to the  
definition of "environmental effect" in the Environment Act, S.N.S. 1994-95, c. 1, which  
includes a reference to effects upon "any structure." The Board has reviewed the  
Environment Act, including its definition of the term "environment" (to which Mr. Epstein did  
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not refer). It does not find this legislative reference to be particularly helpful to his  
argument.  
[464]  
In any event, the Board does not consider, as a matter of general practice,  
that the definition of a term appearing in one statute governs the meaning of that term in  
another statute (or other instrument, such as a Municipal Planning Strategy). Thus, the  
fact that a definition of environment appears in the Environment Act does not point to the  
definition which must apply in the MPS. Absent specific definitions in the MPS, the Board  
is, once again, inclined to use the ordinary meaning of the word which it can determine  
through various means, including dictionaries.  
[465]  
The Compact Edition of the Oxford English Dictionary (Oxford University  
Press, 1981) definition of “environment” includes:  
the objects or the region surrounding anything . . . The conditions under which any person  
or thing lives or is developed; the sum total of influences which modify and determine the  
development of life or character . . . the sum-total of the external conditions of life.  
[466]  
In the view of the Board, even if one accepts that the word “environment” can  
include buildings (as Mr. Epstein, in part, argues), little, if any, weight is added to the  
Appellants’ argument overall.  
Vibrant Environment  
[467]  
CBD Policy Set 2 is entitled “Social.” The question of a “vibrant” environment  
for the CBD was one which was revisited a number of times in the course of the evidence.  
The Board notes as well that CBD Policy 2.4.2 uses a different term, “vitality,” with a  
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perhaps overlapping meaning.  
[468]  
CBD Policy Set 2 states as its objective:  
Objective:  
The creation of a lively, vibrant environment throughout the CBD which  
promotes and supports a wide variety of living, leisure, and working activities  
throughout the day and evening.  
[469]  
CBD Policy Set 2 “Social” was simply one of the many provisions which Dr.  
Bray and Mr. Allsopp did not touch upon in their written evidence. In the view of the Board,  
the evidence and submissions put forward by the Appellants, who carried the burden of  
proof, did not show that a decision by Council to approve a project which would increase  
the amount of pedestrian traffic in the downtown, and support the development of the CBD  
as the “principal business centre” and a place with a “lively, vibrant environment,” among  
other things, would fail to reasonably carry out the intent of CBD Policy Set 2 “Social.”  
[470]  
Witnessestestifyingon behalf of the Appellantsinessence agreed, on cross-  
examination, that the area of Barrington Street which is to be included in the Revitalization  
Plan is one which can be characterized as having, at least in part, buildings with dilapidated  
store fronts, store fronts which have been so modified as to be completely out of keeping  
with the historic nature of the upper storeys, historic structures which are entirely or almost  
entirely vacant on upper floors, historic structures which have not been maintained  
adequately, and historic structures which have at their rear, particularly at the rear of  
Barrington Street facing the area of the subject property, an appearance which is  
unattractive by any standard, no matter what style of architecture one may purport to apply  
to them.  
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[471]  
When asked about matters of vibrancy and the direction within City-Wide  
Policy 3.2 that the CBD “be regarded as the principal business centre,” Mr. Allsopp in  
essence did not disagree with the thrust of any of the questions put to him on cross-  
examination by counsel for the Developer. When asked whether he could describe the  
CBD as a principal shopping centre at present, he answered:  
I really have no way of judging that. I can’t claim to be an expert on regional shopping.  
[Transcript, February 5, 2007, p. 160]  
When asked, “Isn't that something you'd have to know to express an opinion with respect  
to the intent of the MPS,” the Board saw Mr. Allsopp as expressing confusion with the  
question. When asked if he regarded the CBD as the principal shopping centre, he  
answered,  
A.  
As I say, I really can't answer that question with any kind of certainty . . .  
. . .  
A.  
I don't know its competitors. I mean, I don't know how it stacks up in any kind of  
analysis of turnover . . .  
[Transcript, February 5, 2007, pp. 163-164]  
He agreed that he was not aware of any department stores in the CBD, or jewelry stores,  
or a men’s clothing store, and that he could only say that he “would assume” that  
Barrington Street at one time was the principal shopping centre for Halifax. When asked  
to acknowledge that Barrington Street “is not a vibrant street today,” he answered initially  
“It could be a lot more vibrant,” and then said, “I haven’t seen it vibrant.” He agreed that  
it is an area that needs more pedestrian traffic, and lastly asked about the establishment  
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of a major hotel and residential use (such as that proposed in the present proceeding) as  
a generator of pedestrian traffic on Barrington Street, he answered that “more people living  
here, more people visiting here would be an improvement.” In similar vein, in his  
testimony, Dr. Bray acknowledged that “parts” of the downtown are in an economic and  
visual decline, acknowledged that a lack of pedestrian traffic can be a common cause of  
such a decline, and that “to rectify a situation like that” one can “try to get more people into  
the downtown core.”  
[472]  
Taking into account the evidence and submissions on this point, the Board  
finds, on the balance of probabilities, that the Appellants have failed to show that Council's  
decision, as it relates to social policies, does not reasonably carry out the intent of the  
MPS.  
Wind  
[473]  
City-Wide 8.6 provides as follows:  
8.6  
The city should make every effort to ensure that developments do not create adverse  
wind and shadow effects. The means by which this policy shall be implemented  
shall be considered as part of the study called for in part III.  
[474]  
[475]  
CBD Policy 7.5 states:  
7.5  
The design of new developments in the CBD should be such that normal wind levels  
on outdoor pedestrian routes and in public open spaces will be acceptable.  
There is a specific provision in the development agreement at clause 2.12:  
2.12  
Wind Mitigation Measures  
The Developer shall submit a report to the Development Officer prepared by a professional  
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engineer experienced in wind engineering which outlines proposed wind mitigation measures  
for the development. The report shall specify various mitigation measures/solutions which  
will result in acceptable wind conditions as identified in the wind study report dated May 4,  
2005. Appropriate mitigation measures/solutions shall be approved by the Development  
Officer prior to the issuance of a Development Permit except those which, in the opinion of  
the Development Officer, involve a substantial change in the design of the building, those  
which are not in accordance with the Capital District standards and/or those which require  
an encroachment license. In these instances, such measures shall be considered by  
Regional Council as per Sections 2.5 and 3.1(d) prior to the issuance of a Development  
Permit. Mitigation measures/solutions shall be shown on the building plans submitted for  
Development Permit approval and completed prior to the issuance of an occupancy permit.  
[476]  
It was argued by counsel for the Appellants that the wind consequences of  
the construction of the proposed towers would fail to reasonably carry out the intent of the  
MPS. The Board, however, sees relatively little evidence from the Appellants in support  
of this, and a significant amount of evidence from HRM and the Developer which  
contradicts that position.  
[477]  
As the Board has already noted, the Developer engaged RWDI to conduct  
a wind study for the proposed redevelopment of the former Texpark site. There is no legal  
requirement under the MPS for such study to be done. RWDI has extensive experience  
in this area, and indeed, the Board had evidence before it with respect to RWDI having  
itself developed standards with respect to wind acceptability and management, which have  
been accepted in large cities elsewhere in Canada, and around the world.  
[478]  
The issue was addressed at some length in the December 16, 2005 Staff  
Report, and likewise in the March 15, 2006 Supplementary Report by Planning Staff, and  
discussed by Council. There is no fixed objective standard in the MPS or LUB for wind,  
and no fixed objective mandatory standard applying legislatively to this project was cited  
to the Board. Indeed, it might be said that some of the most highly regarded standards  
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generally — according to the evidence — are those generated by RWDI, whose experts  
testified before the Board on behalf of the Developer. They gave evidence with respect  
to their observations in relation to winds likely to be encountered in the event the project  
is built. The wind study carried out by RWDI involved using a model of the former Texpark  
building, and a model of the proposed towers.  
[479]  
The Appellants seemed to suggest that the right standard of comparison  
would be of the existing wind situation at the now vacant lot (Texpark having been torn  
down in 2005), but the Board sees nothing inconsistent with the MPS in RWDI’s decision  
to assume the existence of the former Texpark building for the purposes of the study: it  
accepts Mr. Sampson’s evidence on this point that it would be “unreasonable to compare  
the existing vacant site with the proposed towers, as the vacancy is temporary and not  
meant to be long-term.” Mr. Sampson notes that:  
. . . the development agreement requires even further study into the detailed mitigation  
measures at the detailed design stage and, therefore, goes above and beyond what the  
policies call for.  
[Exhibit H-6, Tab 3, p. 8]  
[480]  
The Appellants were critical of some of the modelling done by RWDI — for  
example, with respect to a failure to have a parking garage model simulate open sides,  
rather than solid ones. On the evidence before it, however, the Board does not consider  
that such omissions are material for the purposes of this decision.  
[481]  
While Philip Pacey indicated concern about wind (as indeed he did about  
most aspects of the project), Mr. Porter (the former HRM Planner who gave evidence on  
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behalf of the Appellants) admitted on cross-examination that he was not asserting that the  
project was inconsistent with the MPS on the matters of wind (or shadow), as referred to  
in CBD Policies 7.5 and 7.6:  
Q.  
Mr. Porter, you have not offered an opinion that this proposed development is  
contrary to Policy 7.5 or 7.6 of the CBD policies, that's the wind and shadow.  
A.  
Q.  
A.  
Q.  
Yes.  
That's correct, you agree with me?  
Yes, I have not. That's right.  
So, your opinion is that they do not -- this development is not inconsistent with those  
policies?  
A.  
Well, I guess my first response -- I guess I really have no opinion on that, but if I  
have to say yes or no, would say that it's not inconsistent with those.  
[Transcript, February 6, 2007, pp. 320-321]  
[482]  
The evidence on behalf of HRM (including, in particular the evidence of  
RWDI) can be summarized as saying that the tests point towards the wind situation around  
the building after construction as being roughly similar to that of the former Texpark  
building. With respect to the effect of the development agreement in relation to wind  
mitigation measures, Mr. Dunphy observed that, just as with any development agreement,  
“the project will not get a development permit . . . if doesn’t satisfy . . . the development  
agreement.”  
[483]  
The Board concludes from the evidence before it, particularly from that of  
RWDI, that Halifax, positioned as it is on the North Atlantic, is commonly exposed to much  
more severe winds than are usually encountered in inland places, such as Edmonton. The  
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Board also concludes that the former Texpark site (on a steep, east facing slope, close to  
and facing the harbour, on a street which runs east-west down the hill), is one which, even  
for Halifax, is unusually exposed to the effects of the severe easterly winds often  
associated with winter storms. Thus, very strong east winds can be expected to blow from  
time to time up the street, especially in the winter.  
[484]  
The Appellants suggested that it will not be as good, while others (such as  
Mr. Sampson) suggested that the evidence can be taken to point towards a result which  
might even be “better than what existed before.”  
[485]  
The Board accepts the evidence of RWDI that winds related to buildings may  
arise not simply because a building is high (with winds being, so-called, “down washed”  
from a high tower to the street), but also even where a building is relatively low, such as  
three to four storeys. In the present instance, the Board concludes that there is strong  
evidence in support of the notion that any failure to meet wind criteria in RWDI’s wind  
simulations would be mainly related not to the height of a building (the down wash effect),  
but to the channelling of high speed winds between buildings, at ground level. The high  
speed winds would be roughly the same, whether the buildings creating the channel are  
three to four storeys high, or high rises. As RWDI’s evidence at the hearing indicated:  
. . . a three or four storey building could create a channelling of that wind to a point that you  
get a certain number of safety events, you know, two or three, and I think that's very typical,  
which I would call normal for Halifax.  
[Transcript, February 15, 2007, p. 2054]  
[486]  
Severe winds may simply occur through the alignment of two or three  
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relatively short buildings. Mr. Baker, one of the RWDI witnesses, illustrated this point by  
referring to having walked through Historic Properties to a restaurant the night before the  
hearing:  
. . .there was a point where I nearly could not walk because the winds were strong enough  
blowing between those three- and four-storey buildings. So it's not always a result of the  
highrise building that's causing it, it can be a smaller building with the flow being channelled  
between those two buildings.  
[Transcript, February 15, 2007, pp. 2044-2045]  
[487]  
Consistent with this conclusion, the RWDI evidence indicated that tower  
removal (as well as other, less radical, changes to the project) led to results which:  
. . . proved to be very similar to what the original design provided. So we're realizing that the  
flows tend to be more horizontal flowing along Sackville that there was a need then to look  
at the solutions that we ultimately recommended, those being the drop panel and various  
screens recommended.  
. . .  
They reduced the wind speeds to produce what we would call normal wind conditions for  
Halifax.  
[Transcript, February 15, 2007, p. 2056]  
[488]  
The mitigation measures proposed by RWDI are merely “conceptual.” The  
specific measures to be developed are, under clause 2.12 of the development agreement,  
to lead to a report being submitted by the Developer which outlines the actual proposed  
wind mitigation measures. These may be approved, or rejected, by a development officer,  
an approach which is common to all development agreements, and not unusual to this one  
(on a related point, see para. 193, above). If — again, following the usual practice with  
development agreements generally — the development officer concludes that the actual  
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wind mitigation measures amount to a substantial change, then those changes must be  
submitted to Council for approval. Counsel for the Appellants at various points seemed  
to suggest that this approach involved an inappropriate delegation of authority to a  
development officer, and therefore amounted, it seemed, to a failure to reasonably carry  
out the intent of the MPS. The Board does not agree.  
[489]  
The provisions relating to wind are “should” policies rather than “shall”  
policies. Even if they were “shall” policies, however, the Board would be of the view that  
the Appellants failed to establish, on the balance of probabilities, that the decision of  
Council to enter into the development agreement in this proceedingfailed, because of wind  
effects, to reasonably carry out the intent of the MPS.  
Wind and the Law of Nuisance  
[490]  
The Board will now review an argument raised by Mr. Epstein in relation to  
wind and the law of nuisance, which it ultimately concluded to be irrelevant to its  
considerations under the Municipal Government Act. Mr. Epstein raised an argument in  
relation to the allegedly “inherent aspect” of the proposed structure as a “nuisance.” He  
defines the tort of nuisance as, in essence:  
. . . “conduct that unreasonably interferes with activity on nearby lands.  
[or]  
“unreasonably interference with the use and enjoyment of land” by its occupier or with the use  
and enjoyment of a public right to use and enjoy public rights of way.”  
[Mr. Epstein Final Submission, p. 44]  
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[491]  
He goes on to argue that buildings “may themselves amount to nuisances.  
Unsafe wind levels generated by a building clearly are consummate with the basic idea of  
nuisance.”  
[492]  
The Board has reflected on these and other submissions on behalf of the  
Appellants with respect to nuisance. The Board considers that, whatever the validity of Mr.  
Epstein’s comments may be in relation to the creation of nuisance by a building, he is,  
implicitly at least, arguing that the Board has the authority under the Act to make a series  
of findings in relation to nuisance: first, to find that construction of the proposed building  
would inherently be a public nuisance; second, to conclude that it is “not a reasonable  
interpretation” of the MPS that it could authorize the construction of a building that would  
be a nuisance; and finally, that the construction of the building ought not, therefore, to be  
allowed, on public nuisance grounds.  
[493]  
In the view of the Board, what Mr. Epstein invites it to do is to make a  
determination which lies entirely, and exclusively, in the jurisdiction of the Supreme Court,  
i.e., to determine whether or not a civil action for nuisance could succeed in relation to  
these particular buildings.  
[494]  
Less importantly, the Board sees another difficulty with Mr. Epstein’s  
argument: at the same time that he argues it is not reasonable that a policy in the MPS can  
be read as authorizing a building “that would inherently be a public nuisance,” he also  
states:  
. . . that compliance with authorized land use under local government authorization such as  
zoning or development permission such as a development agreement is no answer in a tort  
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action based on nuisance.  
[Mr. Epstein Final Submission, p. 45]  
[495]  
In the view of the Board, a reasonable inference to draw from this statement  
is that, according to Mr. Epstein’s argument, a tort action in nuisance could be launched  
in relation to a building, even when the construction of that building is lawfully permitted by  
the planning documents. This argument is not, in the view of the Board, consistent with  
his first (that it would not be “a reasonable interpretation” of the MPS to authorize the  
construction of a building which would be a nuisance).  
[496]  
As already stated, it is the Board’s task — and, in its view, the only task which  
it is permitted to do under the Act in proceedings such as the one presently before it — to  
determine whether or not the decision of Council to enter into the development agreement  
fails to reasonably carry out the intent of the MPS. Whether a building which complies with  
the MPS might (hypothetically, in a hypothetical civil action which has not been  
commenced, and which, if commenced, could not be before the Board but before the  
Supreme Court) be found to create a public nuisance is a matter which the Board  
considers — given its clearly defined, and restricted powers under the statute — to be  
irrelevant to its task. In saying this, the Board is not in any way implying that difficulties for  
the public, such as pedestrians, which might be created by the construction of a new  
building are matters which are simply, and always, to be ignored. The standard, however,  
the Board must apply is how those difficulties are to be viewed in the context of the MPS,  
not in the context of some extraneous and irrelevant body of civil law, such as that of  
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nuisance, which is within the jurisdiction of the Supreme Court.  
Shadow  
[497]  
The Appellants likewise pointed to the shadows which would be cast by the  
proposed structure, suggesting that these shadows meant that Council’s decision to enter  
into the development agreement failed to reasonably carry out the intent of the MPS. Just  
as with the arguments raised in relation to wind, the Board found the Appellants’  
submissions on this point to be unpersuasive. The Board will deal with this issue even  
more briefly than it did with the subject of wind.  
[498]  
The Board did not consider any of the variations in the evidence before it with  
respect to such things as the size or duration of shadows to be material to the outcome.  
Extensive detail was supplied by Planning Staff to Council in both the December 2005 and  
March 2006 reports with respect to predicted shadow effects, particularly in the context of  
open public spaces (identified by the Appellants as Barrington Street, Granville Mall,  
Sackville Landing, St. Paul’s Church and Grand Parade), and Citadel Hill. Counsel for  
HRM points out that Mr. Sampson, in his evidence, stated that:  
. . . The study illustrates that the shadows from the proposed towers on public open spaces  
are minimal. Generally, there is greater shadow impact from buildings which are next to or  
very close to public open spaces. In the case of Sackville Landing, there are more shadow  
impacts created by Summit Place than by the proposed towers. The World Trade and  
Convention Centre creates more shadow impacts on Grand Parade than the proposed  
towers, while, in the case of Citadel Hill, the buildings fronting on Brunswick Street cast many  
more shadows and for longer periods of the early morning than those of the proposed towers.  
[Exhibit H-6, Tab 3, p. 9]  
[499]  
Moreover, the shadow policies, just like the wind policies, are all “should”  
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policies. As the Board has already noted, Mr. Porter, who gave evidence on behalf of the  
Appellants, accepted in relation to shadow (just as he had in relation to wind) that Council’s  
decision could not be said to fail to reasonably carry out the intent of the MPS, because  
of the shadow effects.  
[500]  
Nevertheless, the Appellants, and their counsel, submittedthat the proposed  
structure did not meet the intent of the MPS. Mr. Pink asserted that this was so:  
. . . because it would cast shadows on all the significant open public spaces in the MPS.  
[Mr. Pink Final Submission, p. 110]  
While acknowledging that “. . . the shadows may only reach some of these open public  
spaces for short periods,” he nonetheless argued that “to meet the intent of City-Wide  
Policy 8.6 and CBD Policy 7.6,” the height and mass of the proposed development should  
have been reduced.  
[501]  
A reasonable inference from this assertion by counsel for the Appellants is  
that he is, in effect, arguing that as long as a shadow from a proposed structure, however  
briefly and infrequently, touches all of the “significant open public spaces” in the CBD, that  
structure must be reduced.  
[502]  
The Board is not persuaded by this submission, or by any of the other  
arguments on behalf of the Appellants, that Council’s decision to enter into this  
development agreement fails to, in relation to shadow effects, reasonably carry out the  
intent of the MPS.  
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“Testing the MPS” and the Notion of “Public Benefit”  
[503]  
The Board has also considered, and rejected, an argument put forward by  
Mr. Epstein with respect to the public benefit, or lack therereof, of the proposed project.  
[504]  
Mr. Epstein argued:  
. . . the test of any policy in an MPS is whether it is to the benefit (and not just economic  
benefit) of the municipality as a whole.  
[Mr. Epstein Final Submission, p. 50]  
He cites as authority for this s. 213 of the Municipal Government Act. That section in its  
entirety is as follows:  
Purpose of municipal planning strategy  
213  
The purpose of a municipal planning strategy is to provide statements of policy to  
guide the development and management of the municipality and, to further this  
purpose, to establish  
(a)  
(b)  
(c)  
(d)  
policies which address problems and opportunities concerning the  
development of land and the effects of the development;  
policies to provide a framework for the environmental, social and economic  
development within a municipality;  
policies that are reasonably consistent with the intent of statements of  
provincial interest; and  
specify programs and actions necessary for implementing the municipal  
planning strategy.  
[505]  
The Board sees nothing in s. 213 which justifies Mr. Epstein’s position that  
“the test” of any MPS policy is whether it is “to the benefit (and not just economic benefit)  
of the Municipality as a whole.”  
[506]  
Moreover, and more importantly, the Board considers that its task under the  
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Municipal Government Act is not to, in some way, “test” policies of an MPS to determine  
whether they are good or bad. To the contrary, the Board considers that the Municipal  
Government Act specifically contemplates that the Board will not engage in such activity  
in a proceeding such as this: in the Board’s view, it is Council alone which decides what  
policies are to be included, or excluded, from an MPS.  
[507]  
In short, Council decides what is to be in an MPS. The Municipal  
Government Act empowers the Board simply to determine whether a decision by a  
municipal council reasonably carries out the intent of the MPS which Council has adopted.  
Whether the Board agrees with the Municipality’s MPS or not is, in its view, not only  
irrelevant to its task, but a matter which (if the Board were to base its decision upon it)  
would mean the Board had committed a reversible error.  
[508]  
In a perhaps related argument, Mr. Epstein asserts that certain provisions in  
the Municipal Government Act (ss. 225, 227 and 230) require that a development  
agreement afford benefits to the Municipality as a whole. With respect to the present  
proposal, he says,  
. . . there is no public aspect to the project. The project is not itself a public building, such as  
an art gallery or performance space. The project, has no public space such as a viewing  
look-off or publicly accessible roof garden.  
[Mr. Epstein Final Submission, p. 62]  
He closes by saying,  
. . . no attempt was made to obtain any public benefits, nor are any manifest in the project  
itself. This is another way in which the project fails to meet the reasonable intent of the MPS.  
[Mr. Epstein Final Submission, p. 63]  
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[509]  
Mr. Epstein did not refer the Board to MPS provisions which might lead it to  
believe that any development agreement which does not have the type of “public benefit”  
or “public aspect” referred to by Mr. Epstein is one which fails to reasonably carry out the  
intent of the MPS.  
[510]  
Although it is not entirely clear to the Board what the foundation for his  
assertion is, Mr. Epstein says “. . . there is no overwhelming or compelling foundation in  
the MPS for this project . . .” In the view of the Board, it is not necessary that there be an  
overwhelming or compelling foundation in the MPS for a project. All that is necessary is  
that, first, a Council chooses to exercise its discretion by approving a project, and second,  
that its decision reasonably carries out the intent of the MPS. Whether the case for a  
particular project is or is not overwhelming or compelling (a matter upon which the Board  
makes no finding in the present proceeding) is, in the view of the Board, a matter of  
complete irrelevance, whether under the statute or under the case law governing how the  
Board must decide appeals of this type.  
Barrington Street Historic District Revitalization Plan  
[511]  
In a written submission, Mr. Pink asserts as follows:  
HRM states that the Barrington Street [Historic District] Revitalization Plan is irrelevant to the  
instant case (Page 26). First, notwithstanding the Plan, Barrington Street includes a number  
of protected heritage properties that are adjacent to the proposed development. The Plan  
recognizes the historical importance of the heritage properties and the historic significance  
of Barrington Street. The historic significance of Barrington Street is not dependent on the  
final approval of the Plan. The Plan, and the work of the Barrington Street Historic District  
Steering Committee, is a significant effort by HRM to protect and revitalize Barrington Street.  
The Plan, and the adoption of the Plan in principle by Council, are relevant and demonstrate  
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the importance of Barrington Street, the registered heritage properties on Barrington Street,  
and other buildings on Barrington Street that have historic significance, and are important to  
the CBD and HRM.  
[Mr. Pink Reply Submission, p. 13]  
The Board does not accept this argument, and gives little weight to the Revitalization Plan.  
The fact that the Revitalization Plan has been adopted in principle does not mean that it  
will ever actually be adopted by Council and approved by the Minister. Moreover, even if  
it is, the Board has no way of knowing whether it might be adopted with significant  
changes, the nature of which the Board cannot anticipate. Further, even then, the Board  
cannot anticipate what changes, if any, might be made by HRM to its MPS in  
consequence.  
[512]  
Lastly, the Board does note that an argument can perhaps be made that a  
little more weight be given to this Plan (given its approval in principle) than the weight the  
Board chose to give to the Gardner Report in 3034875 Nova Scotia Limited v. Halifax  
Regional Municipality, [2005] N.S.U.R.B.D. No. 85 (Q.L.), 2005 NSUARB 90 (Sheppards  
Island). The Gardner Report had been submitted to Council, but neither approved in  
principle nor adopted at the time of the hearing.  
[513]  
While the Board gives little weight to the Revitalization Plan itself, it is  
nevertheless, in the view of the Board, entirely appropriate, and indeed necessary, for it  
to take account — as it has — of evidence before it respecting the existence of older  
buildings in the relevant area on Barrington Street, particularly those designated as  
heritage properties (including details of certain of those properties referred to in the  
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Revitalization Plan).  
[514] In other words, the Revitalization Plan can be seen as some evidence of the  
heritage importance of certain of the buildings (or at least, their fronts, or portions of their  
fronts) on Barrington Street. That heritage is an important element of the MPS is a matter  
acknowledged by the Board elsewhere in this decision, as well as in the earlier Midtown  
decision. The Board sees, however, no basis for using the Revitalization Plan in the  
manner at least impliedly urged by the Appellants, i.e., as a major interpretive tool in  
attempting to determine the reasonable intent of the MPS.  
[515]  
In somewhat similar vein, there were occasional references, in evidence and  
submissions to the Board, to a new MPS being developed by HRM. For example, Mr.  
Epstein says:  
. . . No one took issue with the general idea of a more compact urban form for HRM, as  
enunciated as an objective in the new regional plan . . . the new regional plan was adopted  
after Council dealt with this development agreement proposal.  
[Mr. Epstein Final Submission, p. 50]  
In determining whether or not the Appellants have succeeded in establishing that Council’s  
decision fails to reasonably carry out the intent of the MPS, the Board has given no weight  
whatever to any references to any matters which were taken into account in developing a  
new Regional Plan, or the provisions contained within such a Plan.  
[516]  
The task given the Board by the relevant legislation, as interpreted by the  
Court of Appeal, is to evaluate the proposed development against the MPS as it existed  
at all relevant times during the consideration of the project and Council’s eventual decision  
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to enter into a development agreement authorizing it. Thus, whether HRM has considered  
the utility of increasing the density of population in the downtown or in other areas, or  
whether it indeed may have adopted such a policy, is of no relevance to the matter before  
the Board, and the Board considers it would be committing an error if it were to take such  
considerations into account.  
Credibility  
Appellants’ Experts  
Philip Pacey and Elizabeth Pacey  
[517]  
The Respondents had requested, in an interlocutoryapplication heard bythe  
Board in a preliminary hearingdated January 10, 2007, that Philip and Elizabeth Pacey not  
be permitted to testify as experts. The Respondents likewise objected to evidence being  
given by Judith Fingard, Ronald McDonald, Gary Porter, Dr. Carl Bray, Robert Allsopp, Dr.  
Julio Militzer, and Arthur Carter. Dr. Militzer and Mr. Carter were ultimately withdrawn by  
the Appellants as witnesses. In its decision letter of January 18, the Board chose to allow,  
with certain limitations, all of the other witnesses to testify.  
[518]  
In reaching its decision, the Board noted that, for example, Philip Pacey had  
on five occasions between July 2005 and March 2006, in written communications to HRM,  
or oral presentations and appearances before HRM committees, stated his opposition to  
the proposed development, specifically asking HRM to reject the application. Elizabeth  
Pacey, for her part, told HRM that the proposal which is the subject of this proceeding as  
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the “. . . most damaging development ever proposed for downtown Halifax.”  
[519]  
After Council decided to enter into the development agreement, and the  
Appellants appealed Council’s decision to the Board, Philip Pacey (as the Board has  
outlined elsewhere in this decision) chose to supply Dr. Bray and Mr. Allsopp with selected  
excerpts from the MPS, rather than giving them the entire MPS itself.  
[520]  
Philip Pacey omitted from his report any discussion of the significance of the  
economic or commercial policies in the MPS, a topic which was explored in the reports of  
HRM planning staff to Council.  
[521]  
While ultimately permitting all of the Appellants' proposed expert witnesses  
to testify, the Board made the following observation (in its decision at the preliminary  
hearing in question) about the evidence of Elizabeth Pacey, as well as that of other of the  
Appellants’ experts who might be seen to be, to one degree or another, advocates:  
. . . It considers that, given her position as a person who has argued extensively on behalf  
of heritage groups in Halifax, and specifically against this project, her evidence must be  
approached with caution, and may well, in many (if not necessarily all) circumstances,  
therefore be given less weight than it otherwise might be given.  
[Board January 18, 2007 Decision Letter, p. 5]  
[522]  
The Paceys are, undoubtedly, among the most passionate and sincere  
defenders of Halifax heritage buildings, and they have often successfully influenced how  
particular developments in Halifax have proceeded. Nevertheless, the Board did see their  
evidence as, at times, unduly influenced by their personal views and experience, and it  
accords somewhat less weight to their evidence as a result.  
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Carl Bray and Robert Allsopp  
[523]  
The Board, having taken into account all of their evidence, written and oral,  
likewise gives somewhat less credibility to the evidence of Dr. Bray and Mr. Allsopp than  
would otherwise be expectedwithrespecttopersonsof their qualifications and experience.  
The Board’s reasons for reaching this conclusion include, but are not restricted to:  
!
Dr. Bray and Mr. Allsopp reaching their opinions (that the proposed project  
fails to reasonably carry out the intent of the MPS) from selected materials  
supplied to them by Philip Pacey, without having read, or even obtained, the  
MPS prior to reaching their opinion;  
!
the failure of Dr. Bray and Mr. Allsopp, in both their written reports, to make  
any reference to any provisions of the MPS other than heritage related ones.  
Mr. Allsopp acknowledged on cross-examination that “. . . as a general rule,  
in interpreting a planning document you should interpret it [the MPS] as a  
whole.” Both he and Dr. Bray, however, admittedly failed to do so, contrary  
to the direction of the Court of Appeal in such cases as Heritage Trust;  
!
both witnesses, in varying degrees, described the existing building stock  
between Citadel Hill and the harbour as being characterized by buildings of  
three to four storeys (or, at best, low to medium-rise). This is inconsistent  
with the overwhelming preponderance of the evidence before the Board,  
which establishes that the area is actually a mix of buildings of widely varying  
height, type and age, ranging all the way from buildings in the three to four  
storey range through to high rise structures;  
!
!
both witnesses failed to visit the site until shortly before giving evidence, and  
long after having reached their conclusions;  
while they did not consider the MPS as a whole before preparing their  
opinion, there is evidence before the Board to indicate that they took into  
account the Revitalization Plan, a document which is not part of the MPS,  
and which has only been approved in principle by Council. On the balance  
of probabilities, the Board finds that they used at least certain definitions  
found in the Revitalization Plan in reaching their conclusions as to the  
meaning of the MPS, while not having read the MPS itself;  
!
their brief reports (each of which were similar in length in relation to the text  
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devoted to the proposed project and the Halifax MPS) contained practically  
identical references to the same items, and practically identical omissions of  
certain other items. As the Board has already noted, neither witness made  
reference in his written report to the non-heritage related provisions found  
within the MPS, the importance of which the Court of Appeal had noted in  
various decisions, including Heritage Trust. Each witness likewise omitted  
particular provisions (the same ones, in each report) relating to heritage,  
even though heritage is, the Board finds, a matter of both professional and  
personal importance to them.  
Gary Porter  
[524]  
While Mr. Porter is a plannerof longpersonalexperience with the HRM MPS,  
the Board gives somewhat less weight to Mr. Porter’s evidence in the present proceeding  
than it did in Midtown. The Board’s reasons for doing this include:  
!
!
The Board sees Mr. Porter’s position with respect to the implications of the  
MPS upon such matters as heights and views as being somewhat  
inconsistent, on the balance of probabilities, with that which he expressed in  
Midtown;  
Mr. Porter’s position with respect to such matters as the vicinity of the  
Citadel, and the possibility of a structure being built higher than the Citadel  
seemed, in this proceeding, to be inconsistent with that which the evidence  
points to him having taken in relation to the Summer Gardens project, and  
the project which was the subject in Tsimiklis;  
!
related to the earlier points, Mr. Porter appeared in this proceeding to have  
a variety of definitions of the term “vicinity,” including one extraordinarily  
broad definition which extended two miles to the tip of Point Pleasant Park,  
and up to the naval dockyard, just short of the Angus L. MacDonald Bridge.  
One may perhaps infer that Mr. Porter’s tolerance for the height of buildings, and for the  
obstruction of harbour views, diminished significantly between the evidence which he gave  
at Midtown and the evidence which he gave before the Board in the present proceeding.  
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Respondents’ Experts  
[525]  
HRM’s experts were drawn from their current Planning Staff, two retired  
planners, and Andrew Lynch, a qualified and experienced architect and urban designer in  
private practice in Halifax. On behalf of the developer, expert evidence with respect to  
wind and structures was provided by Dr. Wu and Harry Baker of RWDI, and by Peter  
Connor and Clay Radcliffe in relation to a computer simulation of views of the proposed  
structure from various vantage points, including a simulated drive on Barrington Street.  
[526]  
In relation to all of these witnesses, the Board observes that it saw them —  
in general — as taking an appropriate, professional, and balanced approach to answering  
the questions which were put to them, as well as to producing the expert reports which  
were filed with the Board.  
[527]  
With respect to the planning evidence in particular, the Board saw the  
evidence provided by the present and former HRM planners and Mr. Lynch as being  
(particularly in comparison to the evidence of Dr. Bray and Mr. Allsopp) appropriately  
comprehensive in relation to the variety of provisions in the MPS. They attempted to base  
their opinions upon the MPS as a whole, not just one set of provisions which were of  
particular interest to them (as, for example, Dr. Bray and Mr. Allsopp did).  
[528]  
The evidence of all of these witnesses for the Respondents was also (again,  
particularly in comparison to the evidence of Dr. Bray and Mr. Allsopp) appropriately  
specific in referring to actual buildings and streets around Citadel Hill. They related their  
view of particular provisions of the MPS to particular items of interest, such as views, older  
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buildings(identifying the locations of those buildings in relation to the subjectproperty), etc.  
In contrast, Mr. Allsopp (for example)appeared to often speak in generalprinciples, without  
relating particular provisions of the MPS to particular, identified, actual aspects of  
downtown Halifax. He could not identify any of the buildings which have been designated  
as heritage structures on Barrington Street, even though he, and Dr. Bray, placed heavy  
emphasis upon the importance of those structures.  
SUMMARY AND FINDINGS  
[529]  
Taking into account all of the evidence and submissions, including the MPS  
as a whole (with particular reference to the policies relating to height, vicinity, heritage and  
views, scale and design detail, complementary issues, block pattern and street grid, social,  
economic, environment, and wind and shadow), the Board finds, on the balance of  
probabilities, that the Appellants did not succeed in their attempt to show that Council’s  
decision to enter into thedevelopment agreement in questionfailed to reasonablycarry out  
the intent of the MPS. The Board will now briefly summarize various of its reasons for this  
finding.  
[530]  
The property which is the subject of this appeal lies six blocks from the  
Citadel, on the site of the former Texpark site. The structure which is proposed for it  
consists of two towers, reaching to a height of 27 storeys, perched on a single four storey  
“podium,” or base, which is wider than the towers themselves. If built, the towers would  
stand 317 feet above sea level. This compares with Maritime Centre (347 feet above sea  
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level), Purdy’s Wharf Tower II (304 feet above sea level), or 1801 Hollis Street (300 feet  
above sea level). The towers would be about 96 feet higher than Founders Square (221  
feet above sea level), and 102 feet higher than the Centennial Building (215 feet above sea  
level).  
[531]  
There are certain buildings which are designated as heritage buildings which  
are near the subject site — for example, there are some buildings on Barrington Street, the  
fronts of which are markedly superior to their rear facades on Granville Street, facing the  
subject property. Apart from the buildings on Barrington Street, there are some historic or  
heritage buildings on other streets in the area — for example, the Halifax Club.  
[532]  
There are in the area of the subject property buildings of a wide range of size,  
some relatively low-rise, and some being modern high rises, including, as already noted,  
the Centennial Building and the Radisson Hotel.  
[533]  
The proposed structure does not seek to emulate buildings from past eras:  
it is tall; it contains two towers on one podium (a new approach for Halifax); the proposed  
structure curves or twists at the upper levels; it makes no pretense of attempting to mimic  
older building styles, whether in overall shape, or in detailing.  
[534]  
On the other hand, it does not present a plain concrete face to passers-by,  
as some earlier high rises, from past eras in Halifax, have — the podium has a variety of  
different textures (including stone, copper and other metal cladding), as well as a variety  
of different openings such as windows, entrances, and canopies of various sorts, at street  
level. The towers atop the podium are entirely faced with clear and bronze tinted glass.  
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[535]  
The upper storeys of the hotel tower encroach over a portion of the Sackville  
Street sidewalkto accommodate the towers'twistingdesign. The maximum encroachment  
at the penthouse level is eight feet over the Sackville Street sidewalk. As well, canopies  
above the street level entrances on the podium would encroach over the sidewalk by five  
feet.  
[536]  
While the structures will be tall, they do not violate any of Halifax’s view  
planes which extend from the top of the Citadel to the harbour. For the locations where  
they do exist, these view planes set absolute maximum heights for buildings.  
[537]  
The rules respecting view planes are found in HRM’s Municipal Planning  
Strategy and Land Use Bylaw which govern development in Halifax. Under the Municipal  
Government Act, the MPS and LUB for each municipality are developed and adopted  
entirely by the municipal council — in this case, HRM. The MPS and LUB which HRM  
chose to adopt require that a building more than 40 feet high, in the area in which the  
subject property is located, can only be built pursuant to a development agreement.  
[538]  
The MPS and LUB contain a mix of rules with respect to height. On the one  
hand, certain provisions contain strict requirements, setting absolute maxima for heights;  
on the other hand, the MPS also contains height requirements which cannot be precisely  
calculated at all, can only be characterized as qualitative, and which require a measure of  
judgment in reaching decisions with respect to particular proposals, on particular lots,  
within particular parts of the CBD.  
[539]  
The strict requirements with respect to height include, in addition to view  
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planes, a requirement that the top of the proposed building not be visible to a person  
standing on the Citadel Parade Square, with an eye height of 5.5 feet. Additionally, as the  
Board has noted at para. 247, CBD 7.3.1 contains an absolute height restriction for  
buildings on Brunswick Street (several blocks up the hill) of 75 feet. The proposed  
structure meets all of the precise, objective, limits which are found in the MPS, i.e., the  
ones which are capable of being calculated.  
[540]  
Beyond the detailed, strict limitations, the MPS and LUB, as the Board has  
already noted, do not contain a simple set of rules by which one can easily compute  
whether a building is too high for a particular area. To give but two examples, the MPS  
contains no provisions which expressly state (as they could) that there shall be a  
“maximum height of (say) 250 feet above sea level for all buildings” located in the CBD;  
similarly, there is no provision in the MPS stating that “no new building can obstruct any  
existing view of the harbour from the Citadel’s ramparts.”  
[541]  
HRM Council voted to enter into a development agreement. The Appellants  
(Heritage Trustof Nova Scotia, The Federation of Nova Scotian Heritage, Heritage Canada  
Foundation and Peninsula South Community Association) appealed Council’s decision to  
the Nova Scotia Utility and Review Board.  
[542]  
Appeals of this type to the Board are governed by the Municipal Government  
Act, as well as by the relevant case law (the latter being, principally, decisions of the Nova  
Scotia Court of Appeal).  
[543]  
In essence, the combined effect of the Act and the case law is that the Board  
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is prohibited from simply substituting its preferences for that of a municipal council.  
[544]  
Instead, the Board must ask itself a very narrow question: whether or not the  
evidence shows, on the balance of probabilities, that a municipal council’s decision to enter  
into a development agreement fails to reasonably carry out the intent of the MPS. Thus,  
for example, it is not enough for an appellant to simply convince the Board that a different  
approach from that taken by council might have been a better one: as long as the  
approach taken by a council can be said to reasonably carry out the intent of the MPS, the  
fact that there may be more attractive alternatives (in the minds of the Appellants, or even  
of the Board) is irrelevant.  
[545]  
This does not mean that a council has free rein to do whatever it wants,  
permitting it to, in effect, ignore its own MPS, under the guise of exercising its discretion.  
It does mean that, as long as a council’s decision can be seen as reasonably carrying out  
the intent of the MPS, the fact that it has made a choice which is not one that the Board  
would have made (a point upon which, with respect to the proposed development in the  
present proceeding, the Board makes no finding, express or implied) is irrelevant, and its  
decision should (following the Act and the Court of Appeal’s decisions guiding the Board  
in matters such as this) be left untouched by the Board.  
[546]  
To put the matter as succinctly as possible: the MPS and LUB are the rules  
for development in a municipality, which each municipal council sets for itself. The Board’s  
only role is to determine whether or not a council’s decision reasonably carries out the  
intent of the very rules which that same council set for itself.  
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[547]  
The Municipal Government Act states that municipal councils have the  
primary authority with respect to planning, and the Court of Appeal in Midtown expressly  
reaffirmed that the Board owes such bodies a measure of deference. In its 1994 decision  
in Heritage Trust, the Court stated:  
. . . Planning decisions often involve compromises and choices between competing policies.  
Such decisions, are best left to elected representatives who have the responsibility to weigh  
the competing interests and factors that impact on such decisions . . . [para. 163]  
[548]  
The fundamental basis of the Appellants’ attack upon Council’s decision in  
this matter related to the Appellants’ view as to the correct approach to various heritage  
related matters, such as the height of the proposed towers, their bulk, their effect upon  
views of the harbour from the Citadel, views along east/west streets, the nature of their  
overall architectural design, and their detailed appearance, and whether the proposed  
building was complementary to adjacent heritage properties. Not surprisingly, therefore,  
a great deal of the evidence and submissions were focussed upon those provisions in the  
MPS which relate to, or at least arguably relate to, such matters.  
[549]  
Nevertheless, the case law under which the Board operates makes it clear  
that any municipal decision must be measured not just against such provisions as those  
just enumerated (relating, in essence, to heritage related matters), but against the MPS as  
a whole. With respect to the HRM MPS in particular, the Court of Appeal, in its 1994  
decision inHeritage Trust(which likewise involved oppositionbyheritage groups, including  
one involved in the present proceeding, to a new development), specifically noted that  
provisions dealing with other matters, such as economic, are likewise of importance. The  
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Court of Appeal stated that City-Wide Policy 6 (relating to heritage):  
. . . is simply a policy that the City must consider along with all other planning policies as  
outlined in the Plan when considering applications for development by agreement.  
As important as Policy 6 of Section II of the Plan is to the matters under review one cannot  
lose sight of other city-wide objectives of the Plan including those set out under Policy 1 -  
Economic Development . . . [paras. 35 and 36]  
[550]  
The Court went on to state:  
. . . In keeping with the intent that municipalities have the primary responsibility in planning  
matters, the Legislature has permitted only a limited appeal from their decisions (s. 78 of the  
Act). Planning policies address a multitude of planning considerations some of which are in  
conflict. Most striking are those that relate to economics versus heritage preservation.  
Planning decisions often involve compromises and choices between competing policies.  
Such decisions are best left to elected representatives who have the responsibility to weigh  
the competing interests and factors that impact on such decisions. So long as a decision to  
enter into a development contract is reasonably consistent with the intent of a municipal  
planning strategy the Nova Scotia Utility and Review Board has no jurisdiction to interfere  
with the decision (s. 78(6)) . . . [para. 163]  
[551]  
A further complexity (which introduces additional nuances into any attempt  
to measure a development agreement against the MPS) is that many of the provisions in  
the Halifax MPS (as is typical of MPS’s generally) are “shall” clauses (which are at least  
nominallymandatory), and manyare “should” clauses. Further, manyof the “shall”clauses  
merely mandate that Council do something such as “consider” certain factors, or “attempt”  
something in relation to a particular matter, but do not bind Council to a particular outcome  
(on this point, see the discussion at para. 216, above).  
[552]  
In this proceeding, the Board heard a great deal of opinion evidence from  
persons whom it had qualified as experts. Nevertheless, the ultimate question — whether  
Council’s decision fails to reasonably carry out the intent of the MPS — must be reached  
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by the Board itself. Decision-making in a proceeding such as this is not merely a task of  
sorting through the expert evidence, and deciding which team of witnesses was the more  
persuasive: ultimately, the Board itself must decide the issue.  
[553]  
To the extent, however, thatthe evidence, and credibility, of expert witnesses  
are relevant in a matter such as this (and the Board does consider both to be relevant), the  
Board has accorded in general more credibility to the evidence of the witnesses for the  
Respondents (i.e., HRM and the Developer), than for the Appellants (the Board is here  
referring specifically to Drs. Philip and Elizabeth Pacey, Dr. Bray, Mr. Allsopp, and Mr.  
Porter). In particular, two key witnesses for the Appellants (who testified about the MPS  
and the proposed project) surprised the Board by, among other things, admitting that they  
had not read the MPS prior to reaching their conclusions. Remarkably, they had reached  
their conclusions after having been given selected provisions from the MPS by Philip  
Pacey, President of Heritage Trust. Further, they produced written reports which focused  
entirely upon heritage related matters, and which entirely ignored reference to, much less  
an analysis of, the provisions of the MPS dealing with non-heritage related matters, such  
as economic. The importance of such matters, as outlined in decisions of the Court of  
Appeal, such as Heritage Trust, has already been noted by the Board.  
[554]  
In their evidence and submissions, the Appellants referred to a large number  
of different ways in which they claimed that Council’s decision to enter into the  
development agreement which is the subject of this proceeding failed to reasonably carry  
out the intent of the MPS through reference to provisions throughout the MPS, but  
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principally in the heritage related provisions found in the City-Wide and CBD sections.  
[555]  
For example, they claimed that the structure would be too high to be  
reasonably consistent with the MPS. While acknowledging that the structure would not  
violate any view plane, they argued that the MPS does not permit any new buildings to  
obstruct, except in a very minor way, any view of the harbour, or of the Dartmouth shore,  
from the Citadel.  
[556]  
They further claimed that the MPS requires that new buildings must “mimic”  
(their word) old buildings in their appearance. In making the latterassertion, the Appellants  
never made it clear (from the perspective of the Board at least) just what styles of older  
building (apart from being low, to at most, mid-rise) they regard as the correct ones to  
mimic.  
[557]  
As part of this argument, they insisted that the term “complementary”  
(referred to at length in the MPS, as well as in this decision) means the same, or similar,  
and requires that a new building “mimic” old ones. The term “complementary” is not  
defined in the MPS, and is not a term of art which has a special, agreed upon meaning  
within the planning or architectural professions. In such circumstances, the Board  
considers that it can turn to dictionaries to determine the ordinary meaning. In the view of  
the Board, the ordinary dictionary meaning is consistent with the approach to the term  
“complementary” taken by HRM and the Developer. For example, Andrew Lynch, an  
architect and urban design expert testifying on behalf of HRM, said that “complementary,”  
rather than meaning that two items must be the same, meant that two items could “contrast  
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and still be complementary.”  
[558] The Board likewise finds that the Appellants failed to show that it is  
unreasonable to interpret the MPS, in some circumstances, as allowing buildings higher  
than the Citadel, or as allowing buildings to block views from the Citadel.  
[559]  
With respect to wind (which is dealt with in the MPS "should" provisions), the  
Appellants likewise maintained (unsuccessfully, in the Board's judgement) that the  
building’s height and bulk would create wind and shadow problems which would be  
inconsistent with the MPS. The Board concludes from the expert evidence before it that  
height is not the only, or even necessarily a significant, factor with respect to generating  
wind on this site: instead of “downwash” from the tall towers being a problem, the weight  
of evidence before the Board suggests that a “channelling” effect on Sackville Street as it  
climbs up the hill from the harbour (with strong winds blowing from the east, for example,  
in winter) means that strong winds would be as likely to be experienced by pedestrians in  
the streets and sidewalks around the subject property if the building height were reduced  
to just a few storeys, as opposed to the proposed 27.  
[560]  
The Board has taken into account all of the arguments presented by the  
Appellants, in the context of the specific MPS provisions which were brought to its attention  
by the various parties, and also (as directed by the Court of Appeal) in the context of the  
MPS as a whole. The Board finds that the Appellants did not succeed in their attempt to  
establish that Council’s decision to enter into this development agreement failed to  
reasonably carry out the intent of the MPS.  
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[561]  
[562]  
The Board accordingly dismisses the Appellants’ appeals.  
An Order will issue accordingly.  
DATED at Halifax, Nova Scotia, this 13th day of September, 2007.  
________________________________  
Wayne D. Cochrane  
________________________________  
David J. Almon  
________________________________  
Roland A. Deveau  
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APPENDIX A  
Legislative Provisions Referred to in this Decision or During the Proceedings  
Municipal Government Act  
Purpose of Act  
2
The purpose of this Act is to  
(a)  
give broad authority to councils, including broad authority to pass by-laws,  
and to respect their right to govern municipalities in whatever ways the  
councils consider appropriate within the jurisdiction given to them;  
(b)  
enhance the ability of councils to respond to present and future issues in  
their municipalities;  
Purpose of Part  
190 The purpose of this Part is to  
. . .  
(b)  
enable municipalities to assume the primary authority for planning within  
their respective jurisdictions, consistent with their urban or rural character,  
through the adoption of municipal planning strategies and land-use by-laws  
consistent with interests and regulations of the Province;  
(c)  
establish a consultative process to ensure the right of the public to have  
access to information and to participate in the formulation of planning  
strategies and by-laws, including the right to be notified and heard before  
decisions are made pursuant to this Part;  
Interpretation  
191  
In this Part and Part IX, unless the context otherwise requires  
(a) "aggrieved person" includes  
(I)  
an individual who bona fide believes the decision of the council will  
adversely affect the value, or reasonable enjoyment, of the person's  
property or the reasonable enjoyment of property occupied by the  
person,  
(ii)  
an incorporated organization, the objects of which include  
promoting or protecting the quality of life of persons residing in the  
neighbourhood affected by the council's decision, or features,  
structures or sites of the community affected by the council's  
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decision, having significant cultural, architectural or recreational  
value, and  
(iii)  
an incorporated or unincorporated organization in which the majority  
of members are individuals referred to in subclause (I)  
Purpose of municipal planning strategy  
213  
The purpose of a municipal planning strategy is to provide statements of policy to  
guide the development and management of the municipality and, to further this  
purpose, to establish  
(a)  
(b)  
(c)  
(d)  
policies which address PROBLEMS AND OPPORTUNITIES concerning the  
development of land and the effects of the development;  
policies to provide a framework for the environmental, social and economic  
development within a municipality;  
policies that are reasonably consistent with the intent of statements of  
provincial interest; and  
specify programs and actions necessary for implementing the municipal  
planning [planning] strategy.  
Content of development agreement  
227 (3) A development agreement may  
(a)  
identify matters which are not substantive or, alternatively, identify  
matters that are substantive;  
(aa)  
(b)  
identify if the variance provisions are to apply to the development  
agreement;  
provide for the time when and conditions under which the development  
agreement may be discharged with or without the concurrence of the  
property owner;  
(c)  
(d)  
provide that upon the completion of the development or phases of the  
development, the development agreement, or portions of it, may be  
discharged by council;  
provide that if the development does not commence or is not completed  
within the time specified in the development agreement, the  
development agreement or portions of it may be discharged by council  
without the concurrence of the property owner.  
Nonconforming structure for residential use  
239 (1)  
Where a nonconforming structure is located in a zone that permits the use made  
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of it and the structure is used primarily for residential purposes, it may be  
(a)  
rebuilt, replaced or repaired, if destroyed or damaged by fire or  
otherwise, if it is substantially the same as it was before the destruction  
or damage and it is occupied by the same use;  
(b)  
enlarged, reconstructed, repaired or renovated where  
(I)  
the enlargement, reconstruction, repair or renovation does not  
further reduce the minimum required yards or separation  
distance that do not conform with the land-use by-law, and  
(ii)  
all other applicable provisions of the land-use by-law except  
minimum frontage and area are satisfied.  
(2)  
A nonconforming structure, that is not located in a zone permitting residential  
uses and not used primarily for residential purposes, may not be rebuilt or  
repaired, if destroyed or damaged by fire or otherwise to the extent of more than  
seventy-five percent of the market value of the building above its foundation,  
except in accordance with the land-use by-law, and after the repair or rebuilding  
it may only be occupied by a use permitted in the zone.  
Restrictions on appeals  
250 (1) An aggrieved person or an applicant may only appeal  
(a) an amendment or refusal to amend a land-use by-law, on the grounds that the  
decision of the council does not reasonably carry out the intent of the municipal  
planning strategy;  
(b) the approval or refusal of a development agreement or the approval of an  
amendment to a development agreement, on the grounds that the decision of  
the council does not reasonably carry out the intent of the municipal planning  
strategy;  
(c) the refusal of an amendment to a development agreement, on the grounds that  
the decision of the council does not reasonably carry out the intent of the  
municipal planning strategy and the intent of the development agreement.  
Powers of Board on appeal  
251 (1) The Board may  
(a) confirm the decision appealed from;  
(b) allow the appeal by reversing the decision of the council to amend the land-use  
by-law or to approve or amend a development agreement;  
(c) allow the appeal and order the council to amend the land-use by-law in the  
manner prescribed by the Board or order the council to approve the  
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development agreement, approve the development agreement with the changes  
required by the Board or amend the development agreement in the manner  
prescribed by the Board;  
(d) allow the appeal and order that the development permit be granted;  
(e) allow the appeal by directing the development officer to approve the tentative or  
final plan of subdivision or concept plan.  
(2) The Board shall not allow an appeal unless it determines that the decision of council  
or the development officer, as the case may be, does not reasonably carry out the  
intent of the municipal planning strategy or conflicts with the provisions of the  
land-use by-law or the subdivision by-law.  
Street encroachment  
314(1) Where any part of a street, other than the travelled way, has been built upon and it  
is determined that the encroachment was made in error, the engineer may permit,  
in accordance with any by-law made pursuant to subsection (2), the encroachment  
to continue until such time as the building or structure encroaching upon the street  
is taken down or destroyed.  
(2) A council may, by by-law, regulate encroachments upon, under or over streets,  
including stipulating the period of time an encroachment may remain and the  
entering into of agreements, including terms and conditions, for particular  
encroachments.  
Heritage Property Act  
[563] Interpretation  
In this Act,  
(ea)  
3
"heritage conservation district" means an urban or rural area with historic or  
architectural value that is established as a heritage conservation district  
pursuant to this Act  
Halifax Regional Municipality By-law E-200  
Encroachment Agreements  
10  
Notwithstanding the provisions of this bylaw, Council may  
(a)  
enter into an agreement permitting any person to construct or maintain an  
encroachment upon such terms and conditions as Council may deem appropriate,  
and the provisions of this bylaw shall not apply to such encroachments provided that  
consideration for such agreement shall not be less than the fees payable by a  
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licensee for a similar structure pursuant to subsection 5(2) of section 6 of this bylaw.  
(b)  
(c)  
waive all or any of the fees otherwise payable pursuant to any provisions of this  
bylaw in respect of overhead pedways or underground pedestrian tunnels, if in the  
opinion of Council, the pedways or tunnels provide a public benefit.  
enter into an agreement with gas distribution company which has been approved by  
the Nova Scotia Utility and Review Board to distribute gas within the municipality, or  
communications company licensed by the Canadian Radio-television  
Telecommunication Commission, permitting the construction or maintenance of an  
encroachment upon such terms and conditions that Council may deem appropriate.  
The provisions of this by-law shall not apply to such encroachments, and the fees  
payable shall be determined by Council.  
Development Agreement  
1.3  
Applicability of Other Bylaws, Statutes and Regulations  
Further to Section 1.2, nothing in this Agreement shall exempt or be taken to exempt the  
Developer, lot owner or any other person from complying with the requirements of any by-law  
of the Municipality applicable to the Lands (other than the Land Use By-law to the extent  
varied by this Agreement), or any statute or regulation of the province of Nova Scotia, and  
the Developer or lot owner agrees to observe and comply with all such laws, by-laws and  
regulations in connection with the development and use of the Lands.  
2.12  
Wind Mitigation Measures  
The Developer shall submit a report to the Development Officer prepared by a professional  
engineer experienced in wind engineering which outlines proposed wind mitigation measures  
for the development. The report shall specify various mitigation measures/solutions which  
will result in acceptable wind conditions as identified in the wind study report dated May 4,  
2005. Appropriate mitigation measures/solutions shall be approved by the Development  
Officer prior to the issuance of a Development Permit except those which, in the opinion of  
the Development Officer, involve a substantial change in the design of the building, those  
which are not in accordance with the Capital District standards and/or those which require  
an encroachment license. In these instances, such measures shall be considered by  
Regional Council as per Sections 2.5 and 3.1(d) prior to the issuance of a Development  
Permit. Mitigation measures/solutions shall be shown on the building plans submitted for  
Development Permit approval and completed prior to the issuance of an occupancy permit.  
2.5  
Encroachments  
The proposed building encroachments into the street rights-of-way, illustrated on the attached  
Schedules, shall require the approval of Regional Council and a separate encroachment  
license as per the requirements of the Encroachment By-law (By-law E-200).  
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Municipal Planning Strategy  
INTRODUCTION (Exhibit H-2; MPS p. 1)  
In accordance with the planning process described in Part I of this document, there are ten  
detailed policy sections in this part which set out statements of policy for the Central Business  
District (Section III), the Halifax Waterfront Development Area (Section IV), the South End  
Area (Section V), the Peninsula Centre Area (Section VI), the Fairview Area (Section VII), the  
Bedford Highway Area (Section VIII), the Spring Garden Road Commercial Area (Section IX),  
the Mainland South Area (Section X), the Peninsula North Area (Section XI) and the Quinpool  
Road Commercial Area (Section XII) respectively. These area plans are enabled by city-wide  
policies in Part II, Section II and define the detailed policy directions which the City of Halifax  
will employ in decision-making for these specific areas. [emphasis added]  
. . .  
SECTION I  
BASIC APPROACH AND OVERALL OBJECTIVE (p. I-1 MPS)  
The basic decision-making approach to the City of Halifax with respect to development is  
that:  
Objectives, policies, plans, and programs SHALL be identified and SHALL be the  
foundation for decision-making with regard to the physical, social and economic  
development of Halifax. In consideration of development matters, alternative courses  
of action SHALL be identified and evaluated, whereupon the proper course of action  
can be selected.  
The overall objective to the Halifax Municipal Development Plan and for ongoing planning is:  
The enhancement of the physical, social, and economic well-being of the citizenry of  
Halifax through the preservation, creation, and maintenance of an interesting and  
livable City, developed at a SCALE and density which preserve and enhance the  
quality of life. [emphasis in original]  
SECTION II  
CITY-WIDE OBJECTIVES AND POLICIES  
1. ECONOMIC DEVELOPMENT (p. II-1 MPS)  
Objective  
The development of the City as a major business, cultural, government, and  
institutional centre of Atlantic Canada, while enhancing its image as a place  
to live and work.  
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1.1  
The City should encourage an economic climate conducive to development  
and the growth of employment opportunities.  
1.1.1  
The City should take action on matters within its jurisdiction to compete  
effectively in the Atlantic Region and the metropolitan area for potential  
development opportunities that add to its position in Atlantic Canada.  
1.1.2  
The City shall monitor its growth and development to ensure that current  
objectives and policies reflect changing national and regional economic  
environments.  
1.2  
The City should strive to expand its tax base so that it can maintain its tax  
rates at levels that are competitive with other municipalities of the region.  
1.2.1  
The City should seek to provide municipal services commensurate with the  
capacity of its tax base and the high standard of living and working  
environments essential to encourage growth and change.  
1.2.2  
1.5  
In considering new development regulations and changes to existing  
regulations, and development applications, the City shall give consideration  
of any additional tax revenues or municipal costs that may be generated  
therefrom.  
The City should provide a policy environment within which development can  
respond to changing market demands, while clarifying the intentions of the  
City and ensuring that development conforms to a pattern that is cost-  
effective for the City.  
1.6  
1.7  
The City should direct the location of development in a manner consistent  
with its capital program, and economic, social and environmental objectives.  
The City should establish land-use regulations that promote the  
development of high quality commercial, industrial, and residential areas.  
3. COMMERCIAL FACILITIES (p. II-12 MPS)  
Objective  
The provision of commercial facilities appropriately located in relation to the  
City, or to the region as a whole, and to communities and neighbourhoods  
within the City.  
3.1.2  
Minor commercial centres should service several neighbourhoods. They  
should locate along principal streets with adequate provision for pedestrian,  
transit, service and private automobile access. Parking provision should be  
allowed on surface lots servicing single businesses, as long as conditions  
preclude nuisance impact on adjacent residential areas. Access to any  
parking area from the principal street should be controlled. The City should  
define the geographic limits of minor commercial centres, and shall  
encourage contiguity of commercial or associated uses within those limits.  
Minor commercial centres should offer a wider range of services than  
neighbourhood shopping facilities including local coffee, restaurants,  
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cinemas, health centres and multi-service centres. Notwithstanding any  
other policy in the Municipal Planning Strategy or Secondary Planning  
Strategies, billboards advertising off-site goods and services shall be  
prohibited in Minor Commercial areas. This policy shall serve as a guideline  
in rezoning decisions in accordance with implementation Policies 3.1 and  
3.2 as appropriate.  
3.1.3  
Major commercial centres should service a market area comprising most or  
all of the City. These centres may include major offices and hotels, in  
addition to uses suggested for minor commercial centres. The City should  
encourage parking facilities in these centres to serve several businesses in  
order to limit nuisance impact. The City’s policy for major commercial  
centres in all other respects should be identical to Policy. 3.1.2.  
3.2  
The Halifax Central Business District shall be regarded as the principal  
business centre in the Halifax-Dartmouth region, and shall include office,  
shopping, finance, government, residential, recreation, and entertainment  
facilities as well as desirable types of harbour-related businesses and  
industries.  
3.2.1  
Major office projects, hotels, cultural facilities and government office  
activities, which would strengthen and enhance Halifax as the dominant  
centre of Atlantic Canada, should be induced to locate in the Central  
Business District. This policy shall remain in effect until City Council  
determines that the Central Business District is self-sustaining.  
3.2.2  
3.2.3  
Section III of this Plan details Policy 3.2 and shall constitute the basis for  
decision-making by the City in the Halifax Central Business District.  
[emphasis added]  
Section IV of this Plan shall constitute the basis for decision-making by the  
City in the Waterfront Development Area. For clarity, Section IV may be  
interpreted by reference to Section III where appropriate.  
6. HERITAGE RESOURCES (p. II-23 MPS)  
Objective  
The preservation and enhancement of areas, sites, structures, streetscapes  
and conditions in Halifax which reflect the City’s past historically and/or  
architecturally.  
6.1  
The City shall continue to seek the retention, preservation, rehabilitation  
and/or restoration of those areas, sites, streetscapes structures, and/or  
conditions such as views which impart to Halifax a sense of its Heritage,  
particularly those which are relevant to important occasions, eras,  
personages in the histories of the City, Province, or the nation or where are  
deemed to be architecturally significant. Where appropriate, in order to  
assure the continuing viability of such areas, sites, streetscapes structures,  
and/or conditions, the City shall encourage suitable reuses. [emphasis  
added]  
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6.1.1  
The criteria by which the City shall continue to identify such areas, sites,  
structures, streetscapes and/or conditions identified in Policy 6.1 are set out  
in the official City of Halifax report entitled An Evaluation and Protection  
System for Heritage Resources in Halifax (City Council, 1978). [italics  
added]  
6.1.2  
6.2  
The City should designate those properties which meet the adopted criteria  
as registered heritage properties or registered heritage conservation areas  
and protect them within the terms of the Heritage Property Act.  
The City shall make every effort to preserve or restore those conditions  
resulting from the physical and economic development pattern of Halifax  
which impart to Halifax, a sense of history, such as views from Citadel Hill,  
public access to the Halifax waterfront, and the street pattern of the Halifax  
Central Business District.  
6.3  
The City shall maintain or recreate a sensitive and complimentary setting for  
Citadel Hill by controlling the Height of new development in its vicinity to  
reflect the historic and traditional scale of development.  
6.3.1  
The intent of such height controls shall be to establish a generally low to  
medium rise character of development in the area of approximately four  
traditional storeys in height immediately adjacent to Citadel Hill and  
increasing with distance therefrom.  
6.3.2  
Within the area bounded by North Street, Robie Street and Inglis Street, no  
development shall be permitted that is visible over the top of the  
reconstructed earthworks of the Citadel ramparts, from an eye-level of 5.5  
feet above ground level in the Parade Square of the Citadel.  
6.3.3  
6.4  
Policy 6.3.2 above shall not be deemed to waive any other height or angle  
controls.  
The City shall attempt to maintain the integrity of those areas, sites,  
streetscapes, structures, and/or conditions which are retained through  
encouragement of sensitive and complementary architecture in their  
immediate environs. [emphasis added]  
6.7  
6.8  
The City shall investigate the possibility of establishing Heritage  
Conservation Zones to protect registered heritage conservation areas and  
registered heritage streetscapes under the provisions of the Planning Act.  
The results of such investigation Should be incorporated as amendments  
to this Plan and to the Land Use By-law.  
In any building, part of a building, or on any lot on which a registered  
heritage building is situated, the owner may apply to the City for a  
development agreement for any development or change in use not  
otherwise permitted by the land use designation and zone subject to the  
following considerations:  
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(I)  
that any registered heritage building covered by the agreement shall  
not be altered in any way to diminish its heritage value;  
(ii)  
that any development must maintain the integrity of any registered  
heritage property, streetscape or conservation area of which it is  
part;  
(iii)  
(iv)  
that any adjacent uses, particularly residential use are not unduly  
disrupted as a result of traffic generation, noise, hours of operation,  
parking requirements and such other land use impacts as may be  
required as part of a development;  
that any development substantially complies with the policies of this  
plan and in particular the objectives and policies as they relate to  
heritage resources.  
7. COMMUNITY FACILITIES (p. II-26 MPS)  
7.9 In consideration of applications for subdivision, resubdivision, lot  
consolidation, rezoning, or development agreements, it shall be the policy  
of the City to examine the availability of adequate recreational open spaces,  
and to grant approval to such applications only where the legally enforceable  
standards of the City can be reasonably met.  
8. ENVIRONMENT (p. II-30 MPS)  
Objective  
The preservation and enhancement, where possible, of the natural and  
man-made environment, and especially of those social and cultural qualities  
of particular concern to the citizens of Halifax.  
8.2  
In reviewing public and private land use proposals, including its own capital  
program, the City will take into account the social, physical, economic and  
aesthetic effects on the natural and man-made environment, and will  
establish and maintain appropriate procedures to take such effects into  
consideration in the approval process for such land uses.  
8.3  
The City shall develop the means to assure the greatest possible degree of  
compatibility between new developments and desirable aspects or  
characteristics of the surrounding man-made and natural environment  
through regulatory procedures or special permit procedures, such as  
contract zoning, conditional zoning, etc. Preference should be given to  
development which is aesthetically pleasing, human in scale, and in  
harmony with the natural and man-made environment. A requirement for  
an environmental impact statement should be implemented subsequent to  
completion and adoption of the Environment Strategy Statement as called  
for in Part III of this document.  
8.6  
The City should make every effort to ensure that developments do not  
create adverse wind and shadow effects. The means by which this policy  
shall be implemented shall be considered as part of the study called for in  
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Part III.  
The City should protect vistas and views of significant interest.  
8.8  
12. CITIZEN PARTICIPATION (p. II-37 MPS)  
12.4 The City shall develop procedures for consulting with the public on decisions  
which will affect the planning or development of the City. These procedures  
shall pay particular attention to the timing of public access to information,  
the methods of providing it, and the need of individuals and groups to have  
an adequate time period of review prior to final City Council decisions.  
16. GENERALIZED LAND USE MAP (p. II-56 MPS)  
16.1  
16.2  
Map 9 shall be considered as the expression of intent of the City of Halifax  
for a future land use pattern based on the policies outlined heretofore.  
The areas of future land use shown on Map 9 shall be determined primarily  
by the objectives and policies which correspond to the primary use shown.  
All other objectives and policies shall apply as appropriate, but shall be  
subordinate to the primary objectives and policies.  
16.2.1  
Pursuant to Policy 15.2, for those areas where a detailed area plan forms  
a part of this Plan, and where the areas of future land use are shown on a  
Generalized Future Land Use Map for such area, as indicated on Map 9, the  
City shall determine the areas of future land use in accordance with the  
policies of the detailed area plan. In addition to the requirements of Policy  
15.2 above, where the matter under consideration is not addressed by the  
policies of the detailed area plan, the policies of Part II, Section II of this  
Plan shall apply as appropriate.  
SECTION III  
CENTRAL BUSINESS DISTRICT  
OBJECTIVES AND POLICIES  
AREA DEFINITION  
For the purposes of this Plan, the Halifax Central Business District is as illustrated on Map  
10 herein and includes all of the area bounded by the centre line of Brunswick Street, the  
centre line of Cogswell Street, Halifax Harbour, the centre line of Spring Garden Road to  
Barrington Street, the western and southern boundary of the Maritime Centre, and the  
eastern extension of the southern boundary line of Maritime Centre to the Harbour.  
DEFINITION OF TERMS (p. III-1 MPS)  
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Term  
Commercial  
Definition  
The term "commercial" includes offices, retail stores,  
service shops and premises, public service, protection,  
utility premises and undertakings, and places of  
amusement and entertainment, all such uses being  
consistent with the General Business Zone.  
Cultural Uses  
Grain  
The term "cultural" includes all uses oriented towards the  
arts and the improvement of knowledge and skills.  
The pattern established by the relative positions and sizes  
of buildings in the Plan.  
Grid/Street Grid  
The pattern of intersecting street spaces.  
Housing - High  
Density/Low Rise  
Walk-up (patio) housing, 4 storeys, 200 persons/acre  
maximum, inclusive of access roads and parking.  
Interim Use  
Landmark  
The use of land or buildings during the period between  
dislocation of previous use and the commencement of  
construction for new development.  
"Landmark" as defined in Ordinance Number 123 is an  
area of land including any building or structures thereon,  
deemed by resolution of Council to be representative of the  
social, commercial, or political history of the City, or to have  
some aesthetic or architectural merit.  
Marine-Related Use  
One which has as its purpose any of the following:  
(I)  
(ii)  
utilization of Harbour as "working water";  
provision of a direct commercial service to any use  
of utilizing the Harbour as "working water";  
activities or events historically associated with the  
waterfront;  
(iii)  
(iv)  
provision of water-related uses which are  
essentially public in nature.  
Mixed-Use Developments  
The physical integration of three or more identifiable uses  
(such as retail, office, residential, hotel, recreation, etc.) or  
differing intensities of uses in a development which  
demonstrates significant functional and physical integration  
of components including pedestrian connections in  
accordance with the policies of this Plan to surrounding  
uses.  
Open Space  
Areas of outdoor space including circulation space, hard  
landscaped areas, parks and recreational space to which  
people have physical and/or visual access.  
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Parking - Long Term  
Parking - Short Term  
Parking space provided for private automobiles and used  
for periods of time greater than five hours; often to  
accommodate the downtown employees.  
Parking space designed and managed to facilitate a high  
turnover of occupancy often used for purposes of shopping  
or for personal business reasons.  
Phasing/Development  
Phasing  
[NIL]  
The dates for construction of each building or part of a  
building within a development plan of a proposed  
development.  
Population Density  
The term “population density” means the number of  
persons occupying a building or a lot per one acre of gross  
lot area. In determining population density, the number of  
persons occupying a building on a lot shall be calculated on  
the basis of one person for each habitable room contained  
therein.  
Retail Services  
Those commercial enterprises providing for the sale of  
goods and services, including entertainment and  
recreational services, to the public.  
Service Vehicles  
Street Space  
Vehicles delivering goods and services, including taxis and  
other vehicles picking up and dropping off people.  
The space between the building lines on either side of the  
street.  
Walkway  
A pathway designed for use by pedestrians.  
Weather-Protected  
Giving some protection, but not necessarily totally  
enclosed.  
1. ECONOMIC (p. III-4 MPS)  
Objective:  
The strengthening of the Halifax CBD as a dynamic focus of governmental,  
commercial, retail, residential, recreational, and entertainment uses, and the  
appropriate development of the waterfront to promote the City as the major  
business and cultural centre of Atlantic Canada.  
1.1  
It shall be the City’s policy to strengthen the development of the specific  
desirable characteristics of identified sub-areas of the CBD, as defined on  
Map 11 and in Schedule III.1 to provide the impetus necessary to ensure the  
viability of all parts of the CBD. The City shall accomplish the intent of this  
policy and all policies in Part II, Section III, Subsection I of this Plan, by  
Implementation Policy 3.5.  
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1.1.1  
1.3.1  
1.4  
The City shall seek, encourage, and facilitate developments which respond  
positively to this concept and discourage those which respond negatively.  
The City should encourage development by continuing to seek upgrading  
of the immediate environment; for example, by landscaping and  
underground wiring.  
The CBD should be strengthened as a principal shopping centre in the  
region, through the development of a substantial increase in retail and  
commercial floor space, and the provision of a wide range of consumer  
facilities.  
SCHEDULE III.1 (p. III-6 MPS)  
The following sub-areas have been identified within the Central Business District:  
. . .  
10.  
Granville Street Area - a sub-area of office and mixed-use between Hollis Street and  
the western side of Granville Street, and extending from Salter Street to Prince  
Street.  
2. SOCIAL (p. III-7 MPS)  
Objective  
The creation of a lively, vibrant environment throughout the CBD which  
promotes and supports a wide variety of living, leisure, and working activities  
throughout the day and evening.  
2.1  
The City shall seek and encourage appropriate non-office land and water  
uses which will generate human activity in the CBD area throughout the day  
and evening.  
2.1.1  
The construction of office and retail buildings in the CBD should be those  
which reinforce the image of the City as the regional centre of activity, and  
should generate the need for services and amenities (hotels, entertainment,  
restaurants, etc.) which will provide an active CBD.  
2.1.2  
The City should require that space adjacent to areas of pedestrian  
circulation, including walkways at any level, be developed for retail activities  
and such other uses as generate and encourage the desired degree of  
public interest and activity.  
2.1.2.1  
The City should require that any vertical surface between a pedestrian  
circulation area and any retail or such other use as referred to in Policy 2.1.2  
respond to such functions, or through design treatment of surface elements,  
be visually stimulating to the pedestrian.  
2.2  
The City shall promote the development of mixed-use residential and  
commercial areas which are appropriate to the varied scale and character  
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of the sub-areas of the CBD.  
2.4.2  
The City shall encourage the phasing of mixed-use development, including  
residential, which will support the objective of sustaining vitality throughout  
the CBD at all times within the waterfront development area.  
3. CIRCULATION (p. III-9 MPS)  
Objective  
The creation within the CBD of a circulation framework which gives priority  
to the pedestrians, but which accommodates the transit, automobile and  
service requirements of the area.  
3.1.2.1  
The City should seek the provisions of weather protection for pedestrians,  
particularly at street level, where new development or major alterations to  
building facades abut pedestrian routes in the CBD.  
3.3.1  
3.4  
Long-term parking facilities should be located on the periphery of the CBD,  
and the City shall actively pursue their location in appropriate sites.  
The City should encourage the development of short-term parking facilities,  
available to the public, preferably combined with new development in the  
CBD.  
3.4.3  
Provided they are for public use, surface parking lots may be permitted as  
an interim use in order to meet immediate needs. Such parking lots should  
not become permanent features in the CBD, unless they are located and  
managed in such a way that their continuation is consistent with the entirety  
of Policy. 3.4  
3.5.3  
Truck loading and unloading which is required as a service to the  
businesses of the CBD should be accommodated, but should not  
unnecessarily impede nor disrupt automobile or transit movement and  
should not discourage or endanger pedestrian movement.  
3.5.3.1  
The City should require loading and unloading for large new developments  
to be accommodated off-street.  
4. HERITAGE (p. III-12 MPS)  
Objective  
The conservation or rehabilitation of areas, streetscapes, buildings,  
features, and spaces which mark the sequence of development in Halifax,  
and which identify the CBD as the City’s cultural and heritage centre.  
4.1  
In order to further define the planning framework for the CBD, the City  
hereby designates George and Barrington Streets as the axis of the CBD,  
and acknowledges the Grand Parade as the symbolic City centre.  
4.1.2  
The City shall encourage development bordering on the Grand Parade to be  
sympathetic in scale to the civic and historic buildings and open space in the  
area.  
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4.2  
4.3  
The City shall continue to seek the retention, preservation, rehabilitation and  
restoration of areas, streetscapes, buildings, features and spaces in the  
CBD consonant with the City’s general policy stance on heritage  
preservation (see Section II, Policy Set 6).  
The City shall investigate the possibility of establishing Heritage  
Conservation Zones to protect registered heritage conservation areas and  
registered heritage streetscapes under the provisions of the Planning Act.  
The results of such investigations should be incorporated as amendments  
to this Plan and to the Land Use By-law.  
5. OPEN SPACE (p. III-14 MPS)  
5.2 The City shall seek the incorporation of vegetation and landscaping as  
essential elements in the design of new developments in the CBD, and shall  
encourage the provision of planting throughout the CBD.  
6. VIEWS (p. III-15 MPS)  
Objective:  
6.1  
A CBD which is visually attractive from its major approach roads, from  
Citadel Hill, and from the harbour.  
All new buildings shall be located so that views to the Harbour from Citadel  
Hill, as specifically delineated in the City of Halifax Zoning Bylaw, are  
maintained. These areas in the CBD are illustrated generally on Map 12.  
6.2  
6.3  
Views of and from the Harbour along east-west streets should be conserved  
where existing, and when opportunity arises, such views should be  
enhanced and new views added.  
The City should encourage rooftop landscaping in any new developments  
which can be seen from the Citadel, from taller buildings, or from other parts  
of the City.  
7. SCALE AND DESIGN DETAIL (p. III-16 of MPS)  
Objective  
7.1  
A high quality of design and construction of buildings to reflect the  
architectural, heritage and topographical characteristics of the CBD.  
The City shall generally retain the remaining street grid and City block  
pattern in the CBD.  
7.1.1  
The City should not undertake substantial street widenings in the CBD which  
would materially alter the character of the street grid.  
7.1.2  
The City shall encourage the architectural form and scale of new  
developments to be compatible with the block pattern, and shall discourage  
those developments which do not respect it.  
7.2  
The character of the CBD should be reinforced through the control of urban  
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design details such as massing, texture, materials, street furniture, and  
building lines.  
7.2.1  
The exterior architectural design of new buildings should be complementary  
to any adjacent ones which are designated as being of historic significance  
or important to the character of the CBD; in such instances, the careful use  
of materials, colour, proportion, and the rhythm established by surface and  
structural elements Should reinforce those same aspects of the existing  
buildings.  
7.3  
The City shall control the height of new development within the CBD in the  
vicinity of Citadel Hill, pursuant to Policies 6.3, 6.3.1, 6.3.2 and 6.3.3 of  
Section II of this Plan.  
7.3.1  
In Band A, as shown on Map 12A, the following height controls shall apply:  
(I)  
the basic height of a building shall be 60 feet. This height may be  
exceeded provided there is one and one-half feet of setback from  
the Brunswick Street streetline for every foot of additional height  
above the 60 foot level. No such setbacks are required from other  
streetlines or property lines.  
(ii)  
notwithstanding the above, no building shall exceed 75 feet in  
overall height or penetrate a viewplane.  
7.4  
7.5  
The City shall prepare design criteria, including guidelines on appropriate  
street furniture and signs, that respect the proportion and character of the  
existing Barrington Street streetscape.  
The design of new developments in the CBD should be such that normal  
wind levels on outdoor pedestrian routes and in public open spaces will be  
acceptable.  
7.5.1  
7.6  
The City should investigate ways to regulate design to mitigate the effects  
of wind on pedestrian routes (see Section II, Policies 8.1 - 8.6).  
The design of new developments in the CBD should be such that there will  
be a minimal amount of shadow cast on public open spaces.  
SECTION IV  
HALIFAX WATERFRONT DEVELOPMENT AREA  
OBJECTIVES AND POLICIES  
CONTEXT  
Pursuant to Part II, Section II, Policy 3.2.3, the objectives and policies contained in this  
section constitute the City’s plan for the Halifax Waterfront Development Area (HWDA). The  
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intent of Part II, Section IV, Subsections 2, Land Use, and 5 Civic Open Space, shall be  
accomplished by Implementation Policy 3.5. [emphasis in original]  
The HW DA governed by this section is shown on Map 13 and includes all of the area  
bounded by the southern edge of Pier 2, the Harbour line, the centre line of Terminal Road,  
and the centre line of Hollis Street. For the purposes of this section, the HWDA is divided  
into three sub-areas which are shown on Map 14:  
-
-
the northern sub-area, being that portion of north of the so-called DND lands  
to Pier 3  
the CBD sub-area, which conforms to the Central Business District  
boundary and is coterminous with the Intergovernmental Waterfront  
Committee (IWC) conceptual plan, considered by City Council in March,  
1976  
-
the southern sub-area, between the CBD and the southern boundary of the  
HWDA  
3. CONSERVATION OF BUILDINGS AND SPECIAL FEATURES (p. IV-8)  
Objective  
The conservation or rehabilitation of areas, streetscapes, buildings,  
features, and spaces which mark the sequence of development in Halifax,  
and which demonstrate the historic and architectural character of the City.  
3.1  
The City shall continue to seek the retention, preservation, rehabilitation and  
restoration of areas, streetscapes, buildings, features, and spaces in the  
HWDA consonant with the City’s general policy stance on Heritage  
Preservation (see Section II, Policy Set 6).  
5. CIVIC DESIGN (p. IV-13 MPS)  
Views  
Objective  
The preservation of existing views of the HWDA from both land and water,  
through the HW DA to the Harbour and from the HW DA in all directions and,  
where possible, the creation of new views.  
5.4  
views of the Harbour and of the Citadel along the east-west streets and  
open space elements of this Plan within the CBD should be opened up as  
redevelopment provides opportunity. No part of any proposed new building  
should block these views.  
5.4.1  
Views of the Harbour should be retained at the following locations: (a) from  
the archway at Keith’s Brewery on Water Street; (b) between the Ralston  
and Bank of Canada Buildings; (c) between the Court House and Historic  
Properties; (d) between Historic Properties and the Department of National  
Defence area parking.  
5.4.2  
Views of the Harbour should be opened up as development opportunities  
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allow along the axis of Cheapside.  
5.4.3  
5.4.4  
Views of the Harbour from Citadel Hill shall be preserved as specified in the  
Views Bylaw.  
Roof areas of new developments, which can be seen from the Citadel, from  
taller buildings, or from other parts of the City, should be designed to be not  
only visually attractive, but, where appropriate, to provide open space for  
public use and circulation.  
Scale and Design Detail  
Objective  
A high quality of design and construction of buildings of human scale which  
reflect the architectural and topographical characteristics of the HW DA and  
of the CBD.  
. . .  
5.6  
The character of the HW DA should be reinforced through the control of  
urban design details such as massing, texture, materials, street furniture,  
and building lines.  
5.6.1  
The exterior architectural design of new buildings should be complementary  
to any adjacent ones of historic or architectural significance, or important to  
the character of Halifax. In such instances, the careful use of materials,  
colour, proportion, and the rhythm established by surface and structural  
elements should reinforce the similar aspects of the existing buildings.  
SECTION VI  
PENINSULA CENTRE AREA PLAN  
OBJECTIVES AND POLICIES  
8. SUB-AREA POLICIES (p. VI-21 MPS)  
Sub-Areas  
Definition  
For the purpose of setting out the detailed sub-area policies of this Plan,  
sub-areas shall be identified as shown on Map 1.  
SPRING GARDEN ROAD SUB-AREA  
8.1  
8.1.1  
The City shall amend its zoning bylaws to include a height restriction on  
development in the vicinity of the Public Gardens so as to ensure a  
minimum of shadow casting on the Public Gardens.  
8.1.2  
The City shall consider an application under the provisions of Section  
33(2)(b) of the Planning Act for a development in the Spring Garden Road  
Sub-Area north of Spring Garden Road which would exceed the height  
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precinct so established through Policy 8.1.1 above, and, in so doing, the City  
shall require that any proposed development not cast a significant amount  
of shadow on the Public Gardens during that period of the year during which  
the Public Gardens is open to the public.  
. . .  
8.1.4  
For the area designated “High-Density Residential” on the southwest  
intersection of Spring Garden Road and Summer Street and extending to  
College Street, the City may consider applications for residential  
developments under the development agreement provisions of the Planning  
Act beyond the height precincts established pursuant to Policy 8.1.1,  
provided that no development shall be permitted which would cast shadows  
on the Public Gardens any day between February 21 and October 21 each  
year.  
SECTION IX  
SPRING GARDEN ROAD COMMERCIAL AREA PLAN  
OBJECTIVES AND POLICIES  
2. URBAN DESIGN (p. IX-4 of MPS)  
Objective  
The retention of the present scale and character of the Spring Garden Road  
and its enhancement as an environment for pedestrian activity.  
. . .  
2.5  
The City shall control the height of new development within the Spring  
Garden Road Commercial Area in the vicinity of Citadel Hill, pursuant to  
Policies 6.3, 6.3.1, 6.3.2, and 6.3.3 of Part II, Section II of this Plan.  
2.5.1  
In Band A, as shown on Map 2 of this Spring Garden Road Plan, the  
following height controls shall apply:  
(I)  
the basic height of a building shall be 60 feet. This height may be  
exceeded provided there is one and one half feet of setback from  
the Sackville Street streetline for every foot of additional height  
above the 60 foot level. No such setbacks are required from other  
streetlines or property lines.  
(ii)  
notwithstanding the above, no building shall exceed 75 feet in  
overall height or penetrate a viewplane.  
IMPLEMENTATION POLICIES  
ZONING (p. IMP-1 MPS)  
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3.5  
For those areas identified in Sections III and IV, Maps 10 and 14  
respectively of this Plan, the City shall, pursuant to the authority of Section  
33(2)b) of the Planning Act, establish such development control regulations  
as are necessary to implement the policies of this Plan.  
3.5.1  
Further to Policy 3.5 above, the areas identified on Map 10 of this Plan as  
the Business District, excepting that area of the CBD which falls within the  
Halifax Waterfront Development Area as identified on Map 14, shall be  
identified on the zoning map and within such area no development permit  
for a development of over 40 feet shall be issued, except under an  
agreement with Council pursuant to Section 34(1) of the Planning Act.  
3.5.3  
Further to Policy 3.5 above, the area identified on Map 14 of this Plan as the  
“CBD” sub-area of the Halifax Waterfront Development Area shall be  
identified on the zoning map and within such area no development permit  
for a development of over 25 feet shall be issued, except under an  
agreement with Council pursuant to Section 34(1) of the Planning Act.  
3.5.4  
3.5.6  
In entering into agreements pursuant to Policy 3.5.1 above, Council shall be  
guided by the policies contained in Section III of this Plan and shall not enter  
into agreements which are inconsistent with the policies of this Plan.  
Prior to entering into any agreements pursuant to Policies 3.5.1, 3.5.2 and  
3.5.3, Council shall advertise its intention to do so and shall hold a public  
hearing at which time any objections shall be heard.  
Land Use Bylaw  
LOT TO ABUT ON A STREET (p. 22 LUB)  
7
Every lot, or some part of every lot, shall abut on a street and a building shall be  
deemed to abut on the street opposite to its principal entrance or, if such entrance  
is not opposite to a street, then upon the street from which it gains its principal  
access, provided that:  
(a)  
Where such street is less than sixty feet in width, no portion of any building  
shall be located at a lesser distance from the center line of such street than  
thirty feet;  
(b)  
No building shall be erected on lands abutting or fronting on a private  
thoroughfare unless such building is located at least twenty feet from the  
center line of such thoroughfare.  
PROTRUSIONS THROUGH VIEW PLANES (p. 36 LUB)  
24  
Notwithstanding any provisions of this bylaw, no building shall be erected,  
constructed, altered, reconstructed, or located in any zone so as to protrude through  
a View Plane except in the following circumstances:  
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(a)  
Where an existing building protrudes through a View Plane, a new building  
may be erected and may protrude through the View Plane, provided such  
new building or structure shall not enlarge upon the existing protrusion  
through the View Plane when viewed:  
(I)  
in the case of View Planes 1, 3, and 5 from viewing position B;  
(ii)  
in the case of View Planes 2, 4, 7, 8 and 10 from viewing position  
C;  
(iii)  
(iv)  
in the case of View Plane 9 from viewing position E; and  
in the case of View Plane 6 from viewing position R.  
BAND “A” (p. 37 LUB)  
26A  
Notwithstanding Section 58 and 59N(c) in addition to the requirements of Section 47,  
buildings erected, altered or used in Band A as identified on Zoning Map ZM-17  
(Height Precinct Map) shall conform to the following height requirements:  
(I)  
The basic height of a building shall be 60 ft. This height may be exceeded  
provided there is one and one half feet of setback from the Brunswick Street  
and Sackville Street street lines for every foot of additional height above the  
60 ft. level. No such setbacks are required from other street lines or  
property lines;  
(ii)  
Notwithstanding the above, no building shall exceed 75 ft. in overall height  
or penetrate a view plane.  
CITADEL RAMPARTS (p. 37 LUB)  
26B  
In addition to all other provisions of this bylaw, no development permit shall be  
issued for any development within Schedule A that is greater than 90 ft. in height,  
unless such development will not be visible above the topmost line of the earthworks  
of the Citadel ramparts from an eye level 5.5 ft. above ground level at any of the  
specified viewing positions in the Parade Square of the Citadel. Elevations and  
coordinate values for the viewing positions in the Parade Square of the Citadel and  
elevations to the topmost line of the earthworks on the Citadel ramparts are shown  
on ZM-17 (Height Precinct Map).  
BUILDING PARALLEL TO A VIEW PLANE (p. 128 LUB)  
77  
If a proposed building or structure is to be located under or adjacent to either or both  
edges of a View Plane, then the sides of the proposed building or structure lying  
outside but adjacent to an edge of a View Plane shall not be parallel to the edge of  
the View Plane, unless the edge of the View Plane is parallel to the immediate street  
lines.  
SCHEDULE “F” (p. 130 LUB)  
Document: 134716  
       
Page 246  
84  
In any area shown as Schedule “F”, any use shall be permitted which is permitted  
by the zoning designation of such area, provided that:  
(a)  
(b)  
(ba)  
(c)  
Uses permitted in the C-2 Zone shall not exceed 40 feet in height;  
No parking lot shall be permitted;  
No amusement centre shall be permitted;  
No parking garage shall be permitted;  
(d)  
Council may, after public hearing and by resolution, approve any specific  
development requested which would not otherwise be permitted by this  
byalw, provided that no approval shall be given inconsistent with the  
Municipal Planning Strategy, or inconsistent with Sections 7, 24, 26A or 26B  
of this bylaw;  
(e)  
Approval by Council under subsection (d) above shall only be granted  
subject to the condition that the registered owner of the land upon which the  
development is to occur shall enter into an agreement with Council  
containing such terms and conditions as Council may direct.  
Document: 134716  


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