DECISION  
2022 NSUARB 92  
M10429 and M10444  
NOVA SCOTIA UTILITY AND REVIEW BOARD  
IN THE MATTER OF THE HALIFAX REGIONAL MUNICIPALITY CHARTER  
- and -  
IN THE MATTER OF APPEALS by TREVOR CLONEY and LISA FRYE from a decision  
of the North West Community Council to approve a development agreement for a 374-unit  
development on land at Windgate Drive, Beaver Bank, Nova Scotia, identified as PIDs  
41043597, 40010514, 41398694, 41401159  
BEFORE:  
Stephen T. McGrath, LL.B., Chair  
APPELLANTS:  
TREVOR CLONEY  
LISA FRYE  
APPLICANT:  
MARQUE INVESTMENTS  
Robert G. Grant, Q.C.  
RESPONDENT:  
HALIFAX REGIONAL MUNICIPALITY  
E. Roxanne MacLaurin, Counsel  
Kelsey Nearing, Counsel  
INTERVENORS:  
SHELDON BENOIT  
WILLIAM BURDEN  
SUE ROBB  
RYAN THOMAS  
JANICE THOMAS  
April 11 – 13, 2022  
HEARING DATES:  
FINAL SUBMISSIONS: April 13, 2022  
DECISION DATE:  
DECISION:  
June 7, 2022  
The appeals are dismissed.  
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TABLE OF CONTENTS  
1.0  
2.0  
3.0  
INTRODUCTION .....................................................................................................3  
ISSUE......................................................................................................................5  
BACKGROUND .......................................................................................................5  
3.1  
3.2  
Board Jurisdiction..........................................................................................5  
Planning Application......................................................................................9  
3.2.1 The Proposed Development...............................................................9  
3.2.2 Planning Context ..............................................................................11  
3.2.2.1 Designations and Zoning....................................................11  
3.2.2.2 Open Space Design Development .....................................16  
3.2.3 North West Planning Advisory Committee........................................18  
3.2.4 Public Engagement ..........................................................................19  
3.2.5 Staff Assessment of Traffic Related Issues ......................................20  
3.2.6 Community Council Decision............................................................21  
Appeal to the Board.....................................................................................22  
Site Visit ......................................................................................................25  
3.3  
3.4  
4.0  
ANALYSIS AND FINDINGS...................................................................................27  
4.1  
4.2  
4.3  
4.4  
Appellants’ Position.....................................................................................27  
Traffic Related Policies in the Municipal Planning Strategy.........................30  
“Shall Consider”...........................................................................................31  
Policy S-15(b) – Traffic Capacity.................................................................34  
4.4.1 Findings............................................................................................42  
Policy S-15(n) and Policy IM-15(a)(iv) – Road Design/Road Networks.......43  
4.5.1 Findings............................................................................................53  
Policy IM-15(b)(iii) – Controls to Reduce Land-use Conflict from Traffic  
Generation, Access and Parking.................................................................54  
4.6.1 Findings............................................................................................57  
4.5  
4.6  
5.0  
CONCLUSION.......................................................................................................58  
SCHEDULE “A” - REVIEW OF RELEVANT PLANNING POLICIES .................................61  
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1.0  
INTRODUCTION  
On January 17, 2022, the North West Community Council (Community  
[1]  
Council) approved a development agreement to allow Marque Investments Ltd. (Marque)  
to create an open space design development residential subdivision on land along the north  
side of Windgate Drive in Beaver Bank, Nova Scotia. The location of the proposed new  
subdivision is between two existing residential subdivisions. The proposal would extend  
streets in the existing subdivisions to connect the new subdivision to those neighbourhoods.  
[2]  
Trevor Cloney and Lisa Frye filed separate appeals with the Board from the  
Community Council’s decision to approve the development agreement. Mr. Cloney and  
Ms. Frye both live on Elise Victoria Drive, in the Capilano Country Estates subdivision,  
which is one of the existing residential subdivisions next to the proposed development.  
[3]  
Following the publishing and delivery of the Notice of Public Hearing for these  
appeals, other neighbourhood residents, Sheldon Benoit, William Burden, Sue Robb, Ryan  
Thomas and Janice Thomas, applied for and were granted leave to intervene. As the  
Appellants and intervenors share a common interest in these appeals, they are, for  
convenience, referred to collectively as the “Appellants” in this decision.  
[4]  
The plan for the road network for the proposed new subdivision would result  
in an extension of Elise Victoria Drive, a municipally owned street that currently ends in a  
cul-de-sac at the boundary of the proposed development site. The Appellants note that the  
road network for the proposed development would allow drivers travelling between Fall  
River and the Beaver Bank Road to bypass Windgate Drive, the main through-road in the  
area, and instead travel through the residential subdivisions on the north side of Windgate  
Drive.  
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[5]  
The Appellants believe known problems with the Windgate Drive approach to  
the Beaver Bank Road will motivate drivers to shortcut through these subdivisions. They  
are particularly concerned about increased traffic and speeding in these residential  
neighbourhoods.  
[6]  
The Appellants say they do not oppose the proposed subdivision. However,  
they do not believe the subdivisions should be connected through an extension of Elise  
Victoria Drive. They submit there are other streets and road reserves the developer could  
use for this purpose and say that, of all the possible choices, a connection at Elise Victoria  
Drive would have the most negative traffic impacts.  
[7]  
The Appellants submit that, under the Halifax Regional Municipal Planning  
Strategy, the Community Council had to place controls on the proposed development to  
reduce conflict with adjacent or nearby land uses from traffic generation, access to and  
egress from the site, and parking. They say that by allowing the developer to connect the  
subdivisions in a way that results in more negative traffic impacts than other available  
options, the Community Council’s decision did not reasonably carry out the intent of HRM’s  
Municipal Planning Strategy.  
[8]  
The Board finds it is likely that some motorists will avail themselves of the new  
road network created by the proposed development, but based on the evidence presented,  
this is not likely to be significant. The Board also finds there are controls on the  
development to limit traffic impacts. Mechanisms are also available through the approved  
development agreement and HRM’s Subdivision By-law to require that, if necessary, the  
developer undertake further measures to control traffic, both within the proposed  
development site and in neighbouring areas. These may include traffic calming, signage,  
the creation of turning lanes and other measures.  
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[9]  
More fundamentally, the Board concludes that the policies in the Municipal  
Planning Strategy at issue in these appeals do not direct the Community Council to make  
a specific decision or impose specific controls to mitigate the impacts of a proposed  
development. The policies set out factors that the Community Council must consider in  
making its decision but leave the assessment and balancing of these factors to the  
Community Council’s judgment. In such cases, the Board must defer to the choices made  
by the elected officials who are the primary authority for planning in the municipality.  
[10]  
The appeals are dismissed.  
2.0  
ISSUE  
[11]  
In this case, the Board must decide whether the Community Council’s  
decision to approve Marque’s development agreement application does not reasonably  
carry out the intent of HRM’s Municipal Planning Strategy.  
3.0  
BACKGROUND  
3.1  
[12]  
Board Jurisdiction  
Municipalities in Nova Scotia, through the adoption of municipal planning  
strategies and land-use by-laws, are the primary authorities for planning within their  
boundaries. In certain circumstances, municipal planning decisions may be appealed to  
the Board. However, planning decisions made by municipal councils are entitled to a  
degree of deference from the Board. The Board may only allow an appeal from a municipal  
council decision if the Board finds the decision does not reasonably carry out the intent of  
the municipality’s planning strategy.  
[13]  
In this case, the Appellants are appealing a Community Council decision to  
approve a development agreement. Under s. 31(2) of the Halifax Regional Municipality  
Charter, S.N.S. 2008, c. 39 (HRM Charter), and Administrative Order Number 48, the  
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Community Council Administrative Order, s. 3A(1)(a), the Community Council may approve  
a development agreement applicable to its community. In doing so, the Community Council  
stands in the place of HRM Council, and Part VIII of the HRM Charter, which deals with  
planning and development, applies to its decisions.  
[14]  
The right to appeal a Community Council decision is set out in s. 265(1)(b) of  
the HRM Charter:  
265 (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;  
…
[15]  
Section 267 of the HRM Charter prescribes the Board’s remedial powers and  
restrictions on the exercise of these powers:  
267  
(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 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;  
…
(2)  
The Board may not allow an appeal unless it determines that the decision of  
the 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.  
[16]  
In municipal planning appeals, the Board follows statutory requirements and  
guiding principles identified in various Nova Scotia Court of Appeal decisions. The Court  
summarized the principles in Archibald v. Nova Scotia (Utility and Review Board), 2010  
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NSCA 27 and, more recently, Heritage Trust of Nova Scotia v. AMK Barrett Investments  
Inc., 2021 NSCA 42:  
[23]  
I will start by summarizing the roles of Council, in assessing a prospective  
development agreement, and the Board on a planning appeal.  
[24]  
In Heritage Trust of Nova Scotia v. Nova Scotia (Utility and Review Board), [1994]  
N.S.J. No. 50, 1994 NSCA 11 [“Heritage Trust, 1994”], Justice Hallett set out the governing  
principles:  
[99]  
… 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 by-laws 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. … 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…. 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 made. …  
…
[163]  
… 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. … 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.  
[25]  
These principles, enunciated under the former Planning Act, continue with the  
planning scheme under the HRM Charter. Archibald v. Nova Scotia (Utility and Review  
Board), 2010 NSCA 27, para. 24, summarized a series of planning rulings by this Court since  
Heritage Trust, 1994:  
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[24]  
… I will summarize my view of the applicable principles:  
(1)  
... The Board should undertake a thorough factual  
analysis to determine the nature of the proposal in the  
context of the MPS and any applicable land use by-law.  
(2)  
The appellant to the Board bears the onus to prove  
facts that establish, on a balance of probabilities, that the  
Council’s decision does not reasonably carry out the intent  
of the MPS.  
(3)  
The premise, stated in s. 190(b) of the MGA, for the  
formulation and application of planning policies is that the  
municipality be the primary steward of planning, through  
municipal planning strategies and land use by-laws.  
(4)  
The Board’s role is to decide an appeal from the  
Council’s decision. So the Board should not just launch its  
own detached planning analysis that disregards the  
Council’s view. Rather, the Board should address the  
Council’s conclusion and reasons and ask whether the  
Council’s decision does or does not reasonably carry out the  
intent of the MPS. ...  
(5)  
There may be more than one conclusion that  
reasonably carries out the intent of the MPS. If so, the  
consistency of the proposed development with the MPS  
does not automatically establish the converse proposition,  
that the Council’s refusal is inconsistent with the MPS.  
(6)  
The Board should not interpret the MPS  
formalistically, but pragmatically and purposively, to make  
the MPS work as a whole. From this vantage, the Board  
should gather the MPS’ intent on the relevant issue, then  
determine whether the Council’s decision reasonably carries  
out that intent.  
(7)  
When planning perspectives in the MPS intersect,  
the elected and democratically accountable Council may be  
expected to make a value judgment. Accordingly, barring an  
error of fact or principle, the Board should defer to the  
Council’s compromises of conflicting intentions in the MPS  
and to the Council’s choices on question begging terms such  
as “appropriate” development or “undue” impact. …  
(8)  
The intent of the MPS is ascertained primarily from  
the wording of the written strategy. …  
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[17]  
In considering the intent of a municipal planning strategy, the Board applies  
the principles of statutory interpretation adopted by the Court of Appeal, as well as the  
provisions of s. 9(1) and s. 9(5) of the Interpretation Act, R.S.N.S. 1989, c. 235.  
3.2  
Planning Application  
3.2.1 The Proposed Development  
[18]  
This appeal is from the Community Council’s approval of a development  
agreement with Marque for a 374-unit classic open space design development subdivision  
on approximately 381 acres of land along Windgate Drive in Beaver Bank, Nova Scotia.  
This land is currently undeveloped and consists of several parcels (PIDS 41043597,  
40010514, 41398694 and 41401159) sitting between the existing Monarch-Rivendale and  
Capilano Country Estates subdivisions. Marque named the proposed development  
Windgate Village in the materials it filed with HRM, and the Board uses that name to refer  
to the proposed development in this decision.  
[19]  
Windgate Village’s key features include:  
374 residential units consisting of:  
o
o
a minimum of 201 single unit dwellings  
a maximum of 173 senior citizen housing units including a maximum of:  
.
.
3 multiple unit dwellings  
45 townhouse dwelling units  
60% of the subject site is retained as common open space  
5% parkland dedication (including an expansion of the Monarch-Rivendale Park)  
a trail connecting Monarch-Rivendale Park to Duck Lake Brook Greenway Park at  
the end of Valerie Court  
new public roads connecting to Windgate Drive, Rivendale Drive, Elise Victoria Drive,  
Galloway Drive and Briancrest Road.  
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[20]  
The phasing plan attached to the development agreement approved by the  
Community Council shows the design for Windgate Village and is reproduced below:  
[21]  
There are two stages in HRM’s consideration of open space design  
development proposals. Stage 1 involves site analysis and a preliminary site design  
process to identify the open space areas to be preserved and potential areas for  
development. Stage 2 is the conceptual design stage. At this stage, the locations of  
proposed roads, private shared driveways, building sites and other physical design features  
of the development are determined.  
[22]  
Marque started its stage 1 application in late 2013 and the application was  
considered complete in March 2014. HRM staff reviewed the stage 1 application, provided  
the applicant with comments, highlighted relevant planning policies and outlined the  
information the applicant would need to proceed with a stage 2 application.  
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[23]  
Marque submitted a stage 2 application in March 2015. At that time, the  
proposed development included 265 residential units consisting of a mix of single detached,  
semi-detached, townhouse and multi-unit dwellings. Marque also proposed commercial  
uses on about 25 acres of land near Windgate Drive. The proposal included public  
community facilities consisting of parks, a community amphitheater, a soccer field, and a  
walking trail.  
[24]  
As is the nature of development agreements, the process between the  
developer and HRM staff was iterative. HRM staff reviewed information about the proposed  
development from Marque and provided comments to the developer. As time went on,  
Marque proposed various changes to the design of the development based on its needs,  
new information or feedback from HRM staff. As changes were made, HRM staff would  
review and comment on the new design and these comments would often feed into the next  
changes in the proposal.  
3.2.2 Planning Context  
3.2.2.1 Designations and Zoning  
[25]  
When Marque’s stage 1 application for Windgate Village was completed,  
development in HRM was subject to the municipality’s 2006 Regional Municipal Planning  
Strategy (2006 Plan). On June 25, 2014, HRM Council passed a new Regional Municipal  
Planning Strategy (2014 Plan).  
[26]  
Policy G-18 in the 2014 Plan contemplated that the policies under previous  
plans would apply to development agreement applications received before HRM’s first  
notice of its intention to adopt the new regional plan:  
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G-18 Where any completed development agreement application was received by HRM  
prior to Council’s first notification to adopt this Regional Plan, the application shall be  
considered in accordance with the Regional Plan policies in effect at the time the  
application was received.  
[Exhibit C-3, p. 309]1  
[27]  
HRM decided that Marque’s application was subject to Policy G-18, so it was  
considered under the policies in the 2006 Plan.  
[28]  
The Windgate Village site is in the Rural Commuter Designation under the  
2006 Plan. Policy S-6 in the 2006 Plan described the Rural Commuter Designation as  
follows:  
S-6  
HRM shall establish the Rural Commuter Designation, shown on the Generalized  
Future Land Use Map (Map 2), as the area within commuting distance of the Regional  
Centre that has been heavily influenced by low-density residential development. The  
primary intent of this designation shall be to protect the character of rural communities  
and conserve open space and natural resources by focussing growth within a series  
of centres, as shown on Settlement and Transportation Map (Map 1), and carefully  
controlling the amount and form of development between centres. The three types of  
centres within the designation are the Rural Commuter, Rural Commuter District and  
Rural Commuter Local centres.  
[Exhibit C-3, p. 53]  
[29]  
Under Policy IM-1 in the 2006 Plan, the Beaver Bank, Hammonds Plains and  
Upper Sackville Municipal Planning Strategy (Beaver Bank Plan) adopted by HRM in 1999  
became a Secondary Planning Strategy under the 2006 Plan. In this decision, the Board  
refers to the 2006 Plan and the Beaver Bank Plan as HRM’s Municipal Planning Strategy.  
[30]  
Approximately 140 acres of land in the northern end of Windgate Village is in  
the Rural Resource Designation under the Beaver Bank Plan. The Rural Resource  
Designation is described in Policy P-48, and Policy P-49 identifies Council’s intention to  
establish an MR-1 (Mixed Resource) Zone for this designation:  
P-48 It shall be the intention of Council to establish the Rural Resource Designation as  
shown on the Generalized Future Land Use Maps (Map 1A, 1B, 1C, 1D, 1E). Within  
the designation, it shall be the intention of Council to recognize the area as a priority  
1 In many instances there are differences between the page number printed or showing on a page and the  
page number in the electronic .pdf file. When referring to page numbers in exhibits throughout this decision,  
the Board used the page numbers for the electronic .pdf file.  
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for resource development. The designation shall encourage and support resource  
development, resource based economic growth and recreation uses while supporting  
measures to protect the natural environment.  
P-49 Within the Rural Resource Designation, it shall be the intention of Council to establish  
a MR-1 (Mixed Resource) Zone which permits continued resource use, resource  
industries, recreation uses, and communication transmission stations, and reflects  
the intent of the designation in ensuring low density development by permitting  
development of single unit dwellings, mobile dwellings and business activities in  
association with residential uses on lots which have a minimum area of eighty  
thousand (80,000) square feet. Further, it shall be the intention of Council that  
separation distances from industrial development in a MR-1 (Mixed Resource) Zone  
to abutting R-1 (Single Unit Dwelling) or R-6 (Rural Residential) Zones be  
established, that a visual and physical buffer be provided within the required  
separation distance, and that access through R-l (Single Unit Dwelling) Zone be  
restricted except where no other access can be granted by the Department of  
Transportation or Halifax Regional Municipality.  
[Exhibit C-3, pp. 432-433]  
[31]  
Lands in the southern part of the Windgate Village (approximately 240 acres)  
are in the Mixed Use A Designation under the Beaver Bank Plan. The Mixed Use A  
Designation is described in Policy P-7, and Policy P-8 identifies Council’s intention to  
establish an MU-1 (Mixed Use 1) Zone within this designation; however, Policy P-28 also  
provides for an I-1 (Mixed Industrial) Zone:  
P-7  
It shall be the intention of Council to establish the Mixed Use A and B Designations  
as shown on the Generalized Future Land Use Maps (Map 1A, 1B, 1C, 1D, 1E).  
Within these designations, it shall be the intention of Council to support the  
continuation of the existing semi-rural mixed use environment, characterized by low  
density residential development, community facilities and a mixture of light industrial,  
resource and small scale commercial uses, often located on residential lots. It shall  
further be the intention of Council to reflect certain community differences regarding  
future development within its policies for each designation.  
P-8  
Within the Mixed Use A and B Designations, it shall be the intention of Council to  
establish a Mixed Use 1 Zone which permits single and two unit dwellings, open  
space uses, existing mobile dwellings, boarding and rooming houses and bed and  
breakfast establishments, the limited use of residential properties for business  
purposes, small scale commercial and resource related activities and most  
institutional uses. Controls on open storage and parking will be established to  
address compatibility concerns with surrounding development. Forestry uses and  
larger scale agricultural operations, with the exception of intensive agriculture  
operations, shall be permitted subject to separation distance requirements designed  
to promote compatibility with surrounding land uses.  
…
P-28 Notwithstanding the provisions of Policy P-8, it shall be the intention of Council to  
establish a I-1(Mixed Industrial) Zone in the land use by-law which permits light  
industrial and service industries, resource uses, limited scale general commercial  
uses, and residential uses in association with industrial and resource related uses.  
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The zone shall establish controls on site design details such as outdoor storage and  
display, parking and loading areas. Any obnoxious operation which produces wastes  
which cannot be treated by an on-site sewage disposal system, or involves  
hazardous materials, shall not be permitted within the zone. This zone shall be  
applied to existing industrial uses. In considering amendments to the schedules of  
the land use by-law to permit new industrial uses in the Mixed Use A and B  
Designations, Council shall have regard to the following:  
(a)  
the potential for adversely affecting adjacent residential and community facility  
development by virtue of either the nature or scale of the proposed industrial  
operation;  
(b)  
(c)  
(d)  
(e)  
(f)  
that the use is not obnoxious and does not create a nuisance for adjacent  
residential or community facility development by virtue of noise, dust or smell;  
the impact of the industrial use on traffic circulation and in particular sighting  
distances and entrance and exit to the site;  
that the use can be serviced with an on-site sewage disposal system and does  
not involve the use of dangerous chemicals;  
that the industrial operation shall not require access through a R-l (Single Unit  
Dwelling) or R-2 (Two Unit Dwelling) Zone;  
that no rezoning from a R-l (Single Unit Dwelling) Zone or a R-6 (Rural  
Residential) Zone to a I-1(Mixed Industrial) Zone shall be considered; and  
(g)  
the provisions of Policy P-137.  
[Exhibit C-3, pp. 366-367; 381-382]  
[32]  
Until recently, the zoning for the Windgate Village site was split between the  
MR-1 (Mixed Resource) Zone (in the area under the Rural Resource Designation) and the  
I-1 (Mixed Industrial) Zone (in the area under the Mixed Use A Designation). The Land-use  
By-law for Beaver Bank, Hammonds Plains and Upper Sackville (Beaver Bank Land-use  
By-law) allows the following uses in these zones:  
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PERMITTED USES  
Part 19: I-1 (Mixed Industrial) Zone  
Part 21: MR-1 (Mixed Resource) Zone  
Agriculture uses  
Industrial Uses  
Any manufacturing, processing, assembly  
or warehousing operation which is not  
obnoxious and which is conducted and  
wholly contained within a building  
Service industries  
General contracting storage yards and  
services  
Transport facilities and maintenance  
yards  
Heavy machinery sales and service  
Building materials outlets  
Greenhouses  
Existing asphalt plants  
Trucking, landscaping, excavating and  
paving services  
Intensive agriculture uses  
Kennels  
Forestry uses  
Fishing uses  
Communications transmission stations  
Single unit dwellings  
Mobile dwellings  
Business uses in conjunction with  
permitted dwellings  
Open space uses  
Hunting and fishing lodges  
Recreation uses  
Composting operations (see section 4.29)  
Cannabis production  
Communication transmission stations  
Commercial and office uses accessory to  
permitted industrial uses  
Cannabis production facilities  
Resource Uses  
Agriculture uses  
Forestry uses  
Composting operations (see section 4.29)  
General Commercial Uses  
Any commercial use permitted under  
Section 16.1  
Residential Uses  
Single unit dwellings and mobile dwellings  
in association with permitted industrial  
and resource uses  
[Exhibit C-3, p. 597 and 901]  
[33]  
The zoning of the Windgate Village site did not allow the senior citizen  
housing Marque proposed, but as mentioned above, the permitted zoning in the Mixed Use  
A Designation also allows for the MU-1 (Mixed Use 1) Zone. Permitted uses within this  
zone include senior citizens housing. As such, Marque’s planning application included a  
request to rezone approximately 48 acres of land near Windgate Drive from I-1 to MU-1.  
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3.2.2.2 Open Space Design Development  
[34]  
The 2006 Plan recognized a tension between large scale residential  
development and maintaining the character of rural communities. Large scale residential  
development was discouraged in the Rural Commuter Designation but could be considered  
through a development agreement if it was an open space design. These developments  
conserve a connected system of open space and protect conservation areas such as  
riparian buffers, wetlands, vernal pools, natural corridors, slopes exceeding 30%, rock  
outcropping, archeological sites, floodplains, and natural resources. Building sites are  
generally in areas best suited for development with the rest of the site kept as common  
open space for active and passive recreation purposes as well as for the location of  
infrastructure needed to service the development. In the proposed development, 60% of  
the site must be common open space.  
[35]  
The primary policies in the 2006 Plan for open space design developments  
are S-15 and S-16:  
S-15 HRM shall permit the development of Open Space Design residential communities,  
as outlined in this Plan, within the Rural Commuter and Rural Resource designations  
and within the Harbour designation outside of the Urban Service Area, but not within  
the portions of the Beaver Bank and Hammonds Plains communities as identified in  
the Subdivision By-law under Policy S-25 and within the Rural Area Designation  
under the Eastern Passage/Cow Bay Plan Area. HRM will consider permitting the  
maximum density of such developments to one unit per hectare of gross site area. In  
considering approval of such development agreements, HRM shall consider the  
following:  
(a)  
where the development is to be serviced by groundwater and as determined  
through a hydrogeological assessment conducted by a qualified  
professional, that there is an adequate supply of ground water to service the  
development and that the proposed development will not adversely affect  
groundwater supply in adjacent developments;  
(b)  
(c)  
that there is sufficient traffic capacity to service the development;  
the types of land uses to be included in the development which may include  
a mix of residential, associated public or privately-owned community  
facilities, home-based offices, day cares, small-scale bed and breakfasts,  
forestry and agricultural uses;  
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(d)  
(e)  
whether soil conditions and other relevant criteria to support on-site sewage  
disposal systems can be met;  
the lot frontages and yards required to minimize the extent of road  
development, to cluster building sites on the parcel and provide for  
appropriate fire safety separations;  
(f)  
that the building sites for the residential units, including all structures,  
driveways and private lawns, do not exceed approximately 20% of the lot  
area;  
(g)  
approximately 80% of the lot is retained as a non-disturbance area (no  
alteration of grades, except for the placement of a well or on-site sewage  
disposal system in the non-disturbance area shall be permitted and provision  
shall be made for the selective cutting of vegetation to maintain the health of  
the forest);  
(h)  
(i)  
that the development is designed to retain the non-disturbance areas and to  
maintain connectivity with any open space on adjacent parcels;  
connectivity of open space is given priority over road connections if the  
development can be sited on the parcel without jeopardizing safety  
standards;  
(j)  
(k)  
(l)  
trails and natural networks, as generally shown on Map 3 or a future Open  
Space Functional Plan, are delineated on site and preserved;  
parks and natural corridors, as generally shown on Map 4 or a future Open  
Space Functional Plan, are delineated on site and preserved;  
that the proposed roads and building sites do not significantly impact upon  
any primary conservation area, including riparian buffers, wetlands, 1 in 100  
year floodplains, rock outcroppings, slopes in excess of 30%, agricultural  
soils and archaeological sites;  
(m)  
the proposed road and building sites do not encroach upon or are designed  
to retain features such as any significant habitat, scenic vistas, historic  
buildings, pastoral landscapes, military installations, mature forest, stone  
walls, and other design features that capture elements of rural character;  
(n)  
(o)  
that the roads are designed to appropriate standards as per Policy T-2;  
views of the open space elements are maximized throughout the  
development;  
(p)  
(q)  
opportunities to orient development to maximize the capture of solar energy;  
the proposed residential dwellings are a minimum of 800 metres away from  
any permanent extractive facility;  
(r)  
the proposed development will not significantly impact any natural resource  
use and that there is sufficient buffering between any existing resource use  
and the proposed development to mitigate future community concerns; and  
(s)  
consideration be given to any other matter relating to the impact of the  
development upon surrounding uses or upon the general community, as  
contained in Policy IM-15.  
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S-16 Further to Policy S-15, within the Rural Commuter, Rural Resource and Agricultural  
Designations, HRM shall permit an increase in density for Open Space Design  
Developments up to 1 unit per 4000 square metres, or greater in centres as may be  
provided for in secondary planning strategies, where approximately 60% or more of  
the site is retained in single ownership of an individual, land trust, condominium  
corporation or the Municipality. Notwithstanding Policy E-5, the parkland dedication  
shall be relaxed to a minimum of 5% for this type of development. In considering  
approval of such development agreements, HRM shall consider the following:  
(a)  
the criteria specified in Policy S-15, with the exception of items (f) and (g);  
and  
(b)  
that the common open space cannot be used for any other purpose than for  
passive recreation, forestry, agriculture or conservation-related use except  
for a portion of which may be used as a village common for active recreation  
or the location of community facilities designed to service the development.  
[Exhibit C-3, pp. 61-62]  
3.2.3 North West Planning Advisory Committee  
[36]  
The North West Planning Advisory Committee considered Marque’s planning  
application on January 6, 2016, November 1, 2017, and July 15, 2020. At each instance,  
the Planning Advisory Committee recommended approval of the application subject to  
further consideration of several matters, including some that related to traffic issues.  
[37]  
After the first meeting, the committee asked that further consideration be  
given to having only public roads within Windgate Village. The committee also asked for  
consideration of the installation of traffic lights at the intersection of Beaver Bank Road and  
Windgate Drive with a contribution from the developer. The committee also requested  
further consideration of the installation of lights at this intersection, with a contribution from  
the developer, after its second meeting about the development .  
[38]  
The third and final time the Planning Advisory Committee considered  
Marque’s application, Deputy Mayor Blackburn tabled a petition signed by 99 area residents  
asking for an adjustment to remove the proposed connection to Elise Victoria Drive.  
Residents expressed concern that a connection to Elise Victoria Drive would “become a  
main artery for vehicles travelling from Beaver Bank Road and Fall River instead of the  
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quiet and peaceful dead-end street it currently is.” The Planning Advisory Committee  
recommended approval of the application with consideration given to several factors,  
including receiving an updated traffic study for the intersection at Beaver Bank Road and  
Windgate Drive, that traffic calming measures be put in place in areas of connectivity to  
surrounding subdivisions, and that there be no connection to Elise Victoria Drive.  
3.2.4 Public Engagement  
[39]  
In a report to the Community Council that planning staff prepared for Marque’s  
application (Staff Report), staff concluded that the community engagement process for the  
application was consistent with the intent of the HRM Community Engagement Strategy.  
Staff said the level of community engagement was consultation, achieved by supplying  
information and seeking comments through the HRM website, signage posted on the  
subject site, letters mailed to property owners within the notification area and two public  
information meetings held on Wednesday, November 18, 2015, and Monday, August 28,  
2017. A mailout was also sent to area residents for feedback in May 2020.  
[40]  
The public information meeting on November 18, 2015, was at the Beaver  
Bank Kinsac Community Centre and approximately 62 people attended. Traffic related  
concerns raised by some of those in attendance were primarily about the Beaver Bank  
Road and Windgate Drive intersection.  
[41]  
The public information meeting on August 28, 2017, was also at the Beaver  
Bank Kinsac Community Centre. Approximately 40 people attended. As with the meeting  
in 2015, attendees again expressed concern about the intersection of Beaver Bank Road  
and Windgate Drive. They also raised concerns about increased traffic from this and other  
proposed developments in the area. Residents were also worried about the possibility of  
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drivers taking shortcuts through the neighbourhood, speeding and a lack of sidewalks in  
the area.  
3.2.5 Staff Assessment of Traffic Related Issues  
[42]  
The Staff Report recommended that the Community Council approve  
Marque’s development agreement application. The Staff Report included a matrix with  
staff’s analysis of the policies in HRM’s Municipal Planning Strategy they considered to be  
most relevant in considering Marque’s application. A copy of the analysis matrix from the  
Staff Report is attached as Schedule “A” to this decision.  
[43]  
HRM planning staff explicitly noted, "[t]he proposal will potentially impact local  
residents and property owners" (Exhibit C-2, p. 475). Overall, HRM planning staff viewed  
the proposed development, with its mix of residential uses, as more in keeping with the  
surrounding residential subdivisions than the types of land uses allowed under the current  
I-1 and MR-1 zoning. As listed previously, these zones allow a wide range of commercial,  
industrial, and resource uses.  
[44]  
HRM planning staff concluded that the road networks near the proposed  
development were adequate. They noted that traffic assessments completed for the  
application concluded that the proposed development would not significantly affect the  
performance of Windgate Drive and nearby intersections. Planning staff also noted that  
HRM Engineering and Traffic staff reviewed these assessments and the proposed road  
network for the new development and found them acceptable.  
[45]  
Planning staff advised that the proposed development includes connections  
with neighbouring subdivisions and highlighted the fact that residents expressed concern  
about the proposed road network. However, staff said that the proposed street connections  
followed HRM’s Municipal Design Guidelines and were acceptable. Staff also mentioned  
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that the proposed connections allowed for a looping of water pipes to make the water  
system more resilient and limit the number of impacted customers if there was a break.  
Planning staff noted that the design of new streets in the proposed development must follow  
the most recent engineering standards, which include requirements to mitigate any  
concerns about traffic volumes, travel speeds, and safety.  
[46]  
The Staff Report discussed the intersection at Windgate Drive and Beaver  
Bank Road and described the public’s concerns. Staff advised the Community Council that  
HRM Traffic Services reviewed this intersection both in 2007 and 2019 and considered  
whether traffic signals or other infrastructure upgrades were needed based on traffic  
volumes and movements, travel lanes, speeds, sightlines and visibility, and past collision  
data. Staff also referenced a study prepared for HRM in 2016 by Griffin Transportation  
Group Inc., which found that the volumes at the intersection did not warrant traffic signals.  
Griffin also concluded that the intersection was operating near expected safety performance  
based on Highway Safety Manual guidelines, although it identified some safety concerns.  
[47]  
HRM planning staff also noted there is a rail line running diagonally through  
the intersection. Although this rail line has been inactive for about 15 years, staff said the  
current owner said it had plans for the rail line. Planning staff said the presence of the  
railway crossing infrastructure limits HRM’s ability to install traffic lights or a modern  
roundabout to improve sightlines and queues approaching the intersection.  
3.2.6 Community Council Decision  
[48]  
As noted above, Marque’s application required an amendment to the Beaver  
Bank Land-use By-law to allow for senior citizen housing in the southern end of Windgate  
Village near Windgate Drive. The requested rezoning was a prerequisite for the  
development agreement application.  
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[49]  
In these circumstances, the Community Council held a public hearing for both  
the rezoning request and the development agreement application on December 13, 2021.  
Following the public hearing, the Community Council approved the requested Land-use By-  
law amendment to rezone part of the site to the MU-1 Zone. The Community Council  
deferred its consideration of the development agreement application pending public notice  
of its decision to amend the Land-use By-law and the appeal period for that decision. When  
there was no appeal from the Community Council’s decision to amend the Land-use By-  
law, the Community Council went ahead with its consideration of the development  
agreement application on January 17, 2022, and approved it at that time.  
3.3  
[50]  
Appeal to the Board  
Mr. Cloney filed a Notice of Appeal with the Board on January 24, 2022  
(M10429). Ms. Frye filed a Notice of Appeal with the Board on February 3, 2022 (M10444).  
The Notices of Appeal raise the same issue and, during a preliminary hearing telephone  
conference on February 14, 2022, it was decided that both appeals would be heard  
together. A timeline for the proceeding was also discussed and a Notice of Public Hearing  
and Hearing Order were issued on February 16, 2022.  
[51]  
Following the timeline set out in the Hearing Order, Mr. Burden, Mr. Benoit,  
Mr. Thomas, Ms. Thomas and Ms. Robb asked to be added as intervenors in the  
proceeding. These requests were approved; however, the Board considered that the  
appellants and intervenors had the same interests in the proceeding. The Board asked  
them to consider naming a spokesperson for the purposes of making submissions to the  
Board and cross-examining witnesses put forward by Marque and HRM at the hearing. The  
Board was advised that Mr. Cloney would be their spokesperson.  
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[52]  
In advance of the hearing, the Appellants sought subpoenas for two HRM  
councillors on the Community Council. HRM and Marque opposed the issuance of  
subpoenas for these individuals.  
[53]  
The Board held a preliminary hearing, by way of telephone conference, on  
April 1, 2022. At that time, the Board heard submissions on the subpoena issue from Mr.  
Cloney, on behalf of the Appellants, and from legal counsel for Marque and HRM.  
[54]  
In a letter dated April 5, 2022, the Board denied the Appellants’ request for  
the issuance of the subpoenas. For the reasons set out in that letter, the Board concluded  
that the evidence intended to be obtained from the proposed witnesses related to the  
processes used by the Community Council in reaching its decision and whether the  
information before the Community Council was incomplete, inaccurate or misleading. The  
Board found that the evidence intended to be solicited from the proposed witnesses was  
not relevant to the issue before the Board in these appeals: namely, whether the decision  
made by the Community Council does not reasonably carry out the intent of the Municipal  
Planning Strategy.  
[55]  
At the appeal hearing, the Board heard testimony from both formal appellants,  
Mr. Cloney and Ms. Frye, and a few of the intervenors (Mr. Burden, Ms. Robb and Mr.  
Benoit). HRM called three witnesses at the hearing. Marque called two witnesses.  
[56]  
HRM called Stephanie Salloum, who is employed as a Planner 3 by HRM and  
was the planner assigned to Marque’s application. Ms. Salloum testified about the  
processing of Marque’s application and HRM did not ask to qualify her as an expert witness  
in this proceeding.  
[57]  
HRM also called Thea Langille, who is HRM’s Principal Planner on its Rural  
Policy and Applications Team. Ms. Langille holds a Bachelor’s Degree in Design and  
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Environmental Planning and a Diploma in Planning Technology. She is a full member of  
the Canadian Institute of Planners, the Atlantic Institute of Planners, and the Licensed  
Professional Planning Association of Nova Scotia.  
[58]  
Ms. Langille’s qualifications were not opposed by the Appellants, and she was  
qualified by the Board as an expert in land use planning, capable of giving expert evidence  
on land use planning matters, including the interpretation and application of HRM’s  
Municipal Planning Strategy and the extent to which the January 17, 2022, decision of the  
North West Community Council was reasonably consistent with the intent of HRM’s  
Municipal Planning Strategy. In advance of her testimony, Ms. Langille filed a report  
providing the Board with her opinions relating to these appeals.  
[59]  
HRM also called Ashley Blissett. Ms. Blissett holds a Bachelor of Science  
degree in Civil Engineering and is a professional engineer in the province of Nova Scotia.  
She is currently a Program Manager for Development Engineering within HRM’s Planning  
and Development Section.  
[60]  
The Appellants did not oppose Ms. Blissett’s qualifications, and she was  
qualified as an expert engineer capable of giving opinion evidence on subdivision design  
and traffic impacts related to development proposals, including the interpretation and  
application of traffic impact studies and statements, and the adequacy of the street network,  
access routes and access to and from development sites. Ms. Blissett filed a report  
providing the Board with her opinions relating to these appeals.  
[61]  
Marque called Gregory O’Brien. Mr. O’Brien holds a Diploma in Engineering  
and a Bachelor of Engineering, Civil. He is a professional engineer in Nova Scotia, New  
Brunswick, Prince Edward Island and Newfoundland and is a member of the Canadian  
Institute of Transportation Engineers and the Transportation Association of Canada. He is  
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the Practice Manager Atlantic for WSP Canada Inc. (WSP) in the field of traffic engineering  
and transportation planning.  
[62]  
Mr. O’Brien’s qualifications were not opposed by the Appellants, and he was  
qualified by the Board as a traffic and transportation engineering specialist, capable of  
giving expert opinion evidence on conceptual and detailed traffic design, site access review  
and design, route location, traffic impact, traffic calming, safe transportation networks,  
compliance with Municipal Design Guidelines 2021 (HRM) and controls placed on  
developments to reduce conflict with nearby land uses by nearby traffic generation. Mr.  
O’Brien filed a report providing the Board with his opinions relating to these appeals.  
[63]  
Marque also called Jessica Harper. Ms. Harper holds a Bachelor of  
Community Design (City Planning) and is a member of the Canadian Institute of Planners  
and the Licensed Professional Planners Association of Nova Scotia. She is a Project  
Manager – Planning with WSP.  
[64]  
Ms. Harper’s qualifications were not opposed by the Appellants and she was  
qualified by the Board as an expert witness in land use planning, capable of giving expert  
opinion evidence on land use planning matters, including the intent of the 2014 Plan, the  
2006 Plan, the Beaver Bank Plan, the Beaver Bank Land-use By-law, and the extent to  
which Council’s decision about the proposed development reasonably carries out the intent  
of the policies within the Municipal Planning Strategy. Ms. Harper filed a report providing  
the Board with her opinions relating to these appeals.  
3.4  
[65]  
Site Visit  
At the conclusion of the hearing, the Board discussed the possibility of taking  
a view of the areas considered in the evidence before the Board. The parties agreed the  
Board should take a view and do so unaccompanied by the parties or counsel.  
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[66]  
The Board travelled to the area on April 27, 2022. The Board approached the  
area of the proposed subdivision by travelling north on the Beaver Bank Road. The Board  
arrived at the intersection of Beaver Bank Road and Windgate Drive at approximately 12:30  
pm and turned right onto Windgate Drive.  
[67]  
The Board continued along Windgate Drive, driving past the proposed  
development site. The Board continued along Windgate Drive to the intersection with  
Windsor Junction Road. The Board turned left towards Fall River.  
[68]  
The Board continued driving along Windsor Junction Road until it reached its  
intersection with Taylor Drive. The Board tuned left and entered Capilano Country Estates.  
The Board travelled along Taylor Drive, observing the residential character of the  
neighbourhood and the width and condition of the road and the gravel shoulders. The  
Board encountered a few speed tables (wide speed bumps) while travelling on Taylor Drive,  
including one next to Taylor Drive Park.  
[69]  
At the end of Taylor Drive, the Board turned right onto Peter Thomas Drive  
and continued a short distance until it ended at Elise Victoria Drive. The Board turned left  
and travelled to the eastern end of Elise Victoria Drive where the Board saw the road ended  
with no cul-de-sac or turning circle.  
[70]  
The Board turned around and headed west along Elise Victoria Drive. The  
Board encountered a few speed tables travelling from the eastern end of Elise Victoria Drive  
to where it intersected with Capilano Drive and Briancrest Road.  
[71]  
The Board turned right onto Briancrest Road. The Board travelled to the end  
of Briancrest Road and saw the turning circle / cul-de-sac where it ended. The Board  
doubled back along Briancrest Road, turning right on Elise Victoria Drive.  
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[72]  
The Board observed the wide turning circle / cul-de-sac at this end of Elise  
Victoria Drive. The Board navigated the turning circle and headed back easterly on Elise  
Victoria Drive observing the straight road and slight downhill grade as it approached the  
intersection with Capilano Drive and Briancrest Road.  
[73]  
The Board turned right onto Capilano Drive and travelled past the area of the  
road reserve. The Board continued on Capilano Drive until it came to Valerie Court. The  
Board turned right onto Valerie Court and saw the turning circle / cul-de-sac at the end of  
Valerie Court.  
[74]  
The Board doubled back on Valerie Court, turning right onto Capilano Drive.  
The Board traversed a speed table on Capilano Drive after the intersection and was  
momentarily stopped because of what appeared to be a construction project for Halifax  
Water.  
[75]  
The Board encountered other speed tables just before and just after turning  
right onto Ashlea Drive. The Board travelled to the end of Ashlea Dive and turned right on  
Windgate Drive, exiting Capilano Country Estates.  
[76]  
The Board travelled along Windgate Dive to the intersection with Beaver Bank  
Road. The Board navigated the left-hand turn described in the written and oral evidence in  
the appeal and then left the area, heading south on Beaver Bank Road at approximately  
1:03 pm.  
4.0  
ANALYSIS AND FINDINGS  
4.1  
[77]  
Appellants’ Position  
The Appellants do not oppose the proposed development; however, they do  
not believe Windgate Village should be connected to the Capilano Country Estates  
subdivision through Elise Victoria Drive. In their view, connecting the subdivisions in this  
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way does not carry out the intent of HRM’s Municipal Planning Strategy. They say other  
connection points are available that would create fewer negative traffic impacts. Mr. Cloney  
said this quite directly at the hearing:  
So in the end, my position is the development should proceed. It is needed. It should not,  
however, connect to Elise Victoria Drive, as that would be a direct contradiction with the intent  
of the 2006 Municipal Planning Strategy as it is represented by Policy IM-15.  
[Transcript, p. 48]  
[78]  
Mr. Cloney reiterated this position at the end of his closing submissions to the  
Board:  
Finally, I will end with the fact that I am not against this development. However, I am against  
the connection at Elise Victoria Drive, and I truly believe that if any other connection was  
chosen, we would not be here today.  
[Transcript, p. 642]  
[79]  
The Appellants are concerned that the proposed new road network for  
Windgate Village, which connects the Monarch-Rivendale and Capilano Country Estates  
subdivisions, will create a new pathway through these subdivisions between Fall River and  
Beaver Bank Road. They said there is already an issue with people shortcutting through  
the Capilano Country Estates subdivision, at excessive speeds, between Fall River and  
Windgate Drive. They cite the recent installation of speed tables as a recognition by HRM  
of the speeding problem in the neighbourhood.  
[80]  
In their view, notorious traffic problems on the Beaver Bank Road, especially  
at the intersection of Beaver Bank Road and Windgate Drive, will make the existing  
shortcutting problem worse. They submit the creation of a new possibility for travelling  
between Fall River and Beaver Bank Road will be attractive to drivers looking to avoid the  
troublesome intersection (or at least the Windgate Drive approach to the intersection). They  
suggest the new pathway would cause traffic to divert from Windgate Drive, which is  
classified as a major collector, onto the streets within the residential subdivisions.  
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[81]  
The Appellants further submit that, of all the available options for connecting  
Windgate Village to Capilano Country Estates, a connection through Elise Victoria Drive  
creates the most negative impacts. In particular, the Appellants note that Elise Victoria  
Drive runs through the middle of the subdivision and has the longest straight stretch in  
Capilano Country Estates. The also said Elise Victoria Drive is the only street drivers can  
use to travel through Capilano Country Estates uninterrupted by any stop signs. As a result,  
a connection to Windgate Village through Elise Victoria Drive would not discourage drivers  
travelling at higher speeds through the subdivision. Furthermore, they noted that the  
eastern end of Elise Victoria Drive, which currently is a dead end, has the potential of being  
extended through to Windsor Junction Road. They feel that such an extension, if it were to  
occur, would compound their concerns about a connection through Elise Victoria Drive.  
Finally, they said of all the options for connecting through to Windgate Village from Capilano  
Country Estates, the western end of Elise Victoria Drive was the only one marketed to  
residents as being a cul-de-sac when the developer of that subdivision sold those  
properties.  
[82]  
The Appellants framed the appeals in this case around the Community  
Council’s consideration of traffic related issues under Policy IM-15(b)(iii) of the 2006 Plan.  
As a result, the comments and analysis in this decision focus on traffic issues. The decision  
does not reference everything that occurred during the review and assessment of Marque’s  
application by HRM planning staff, but it is important for background and context to note  
that the planning application was complex. Approximately seven years elapsed between  
Marque’s stage 1 application and the Community Council’s approval of its development  
agreement. The Appeal Record filed by HRM exceeds 700 pages and shows a multi-  
disciplinary review involving different departments within HRM and external agencies.  
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4.2  
[83]  
Traffic Related Policies in the Municipal Planning Strategy  
Several traffic related policies in the 2006 Plan were referenced in this appeal.  
These include S-15(b), S-15(n), IM-15(a)(iv) and IM-15(b)(iii). Policy P-137 in the Beaver  
Bank Plan was also referenced but is quite similar to Policy IM-15. The most relevant parts  
of Policies S-15 and IM-15 are reproduced below (the HRM planning staff policy analysis  
matrix in Schedule “A” includes the complete policies and Policy P-137):  
S-15 HRM shall permit the development of Open Space Design residential communities,  
as outlined in this Plan, within the Rural Commuter and Rural Resource designations  
and within the Harbour designation outside of the Urban Service Area, but not within  
the portions of the Beaver Bank and Hammonds Plains communities as identified in  
the Subdivision By-law under Policy S-25 and within the Rural Area Designation  
under the Eastern Passage/Cow Bay Plan Area. HRM will consider permitting the  
maximum density of such developments to one unit per hectare of gross site area. In  
considering approval of such development agreements, HRM shall consider the  
following:  
…
(b) that there is sufficient traffic capacity to service the development;  
…
(n) that the roads are designed to appropriate standards as per Policy T-2;  
[Exhibit C-3, pp. 61-62]  
IM-15 In considering development agreements or amendments to land use by-laws, in  
addition to all other criteria as set out in various policies of this Plan, HRM shall  
consider the following:  
(a) that the proposal is not premature or inappropriate by reason of:  
…
(iv) the adequacy of road networks leading to or within the development;  
…
(b) that controls are placed on the proposed development so as to reduce conflict  
with any adjacent or nearby land uses by reason of:  
…
(iii) traffic generation, access to and egress from the site, and parking; [Emphasis  
added.]  
[Exhibit C-3, pp. 147-148]  
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[84]  
The Notices of Appeal specifically referenced Policy IM-15(b)(iii) as the policy  
not reasonably carried out by the Community Council’s decision to approve the  
development agreement. In its analysis in this decision, the Board also considers the other  
traffic related polices noted above. The Board did this for a few reasons.  
[85]  
First, guidance from the Court of Appeal, referenced by both HRM and  
Marque in this proceeding, directs the Board not to confine itself to looking at the words of  
a policy in isolation but to consider the scheme of the Municipal Planning Strategy and  
policies that impact on the decision. Second, the Board considered that these are related  
policies that are not entirely discrete. Specific traffic issues or concerns may be relevant to  
an analysis under more than one policy. Third, since Policy IM-15(b)(iii) focusses on  
controls to reduce conflict from “traffic generation, access to and egress from the site, and  
parking,” which could involve a broad range of traffic related impacts, it is helpful to consider  
the traffic impacts canvassed in the other policies. This informs the analysis because these  
are potential impacts the Municipal Planning Strategy would be concerned about controlling  
under Policy IM-15(b)(iii).  
4.3  
[86]  
“Shall Consider”  
Policy S-15 sets out several items that HRM “shall consider” when deciding  
whether it should approve a development agreement for an open space design residential  
community. Policy IM-15 deals with development agreements or amendments to land use  
by-laws more generally, but likewise sets out a list of things that Council “shall consider”  
when doing so.  
[87]  
At the appeal hearing, Mr. Cloney commented on the use of these words:  
“Shall consider”, two words that should never be used together. You can tell a lawyer must  
have developed these policies.  
Definition of “shall”, expressing an instruction or command. The definition of “consider”, to  
take something into account when making an assessment or judgment.  
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So for instance, if I tell somebody to -- they shall go to the store, it’s easy. It can be measured,  
did they go or did they not go. But if I say you should consider going to the store, I cannot, in  
fact, measure it. I only have their consideration about whether or not they thought about going  
to the store.  
So the words “shall” and “consider” are not helpful, so I will fall back onto the intent of IM-15.  
The intent of the policy is clear, to reduce conflict with nearby land uses by reason of traffic  
generation.  
[Transcript, pp. 10-11]  
[88]  
Mr. Cloney then suggested that to assess whether the Community Council  
met its obligation to reduce conflict, one must assess the alternatives that were available to  
the developer when designing the project:  
As Einstein said, everything is relative. I must review the alternatives that both the developer  
and HRM should have considered and compare them to what was chosen to determine  
whether conflict has been reduced or increased.  
If, relatively speaking, the option chosen increases conflict due to traffic generation, then I  
would surmise that a decision in this development agreement does not reasonably carry out  
the intent of the MPS as it relates to IM-15 of the 2006 Municipal Planning Strategy.  
[Transcript, pp. 16-17]  
[89]  
In his closing submissions on behalf of Marque, Mr. Grant submitted that Mr.  
Cloney’s criticism of the use of the phrase “shall consider” highlighted a lack of  
comprehension of the responsibility of the Community Council in reviewing a project against  
the requirements of the Municipal Planning Strategy and a misunderstanding about the  
function of the Board in reviewing such decisions. He said Mr. Cloney’s lack of comfort with  
the phrase “shall consider” showed a lack of appreciation of the degree of deference owed  
to Community Council decisions and the primacy of the Community Council in making value  
judgments when faced with conflicting choices under the Municipal Planning Strategy.  
[90]  
In his submission, Mr. Grant said the language of the policies required the  
Community Council to make a subjective assessment:  
And I would note that that policy begins with the phrase, "Council shall consider," and then  
following thereafter, there are dozens or so issues for Council to consider.  
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Those issues which Council are required to consider don't require a positive checkmark  
against each issue. Council -- it's up to Council to consider them, to weigh them, to form their  
own view as to the weight and importance of those various factors.  
These factors have littered through them words such as "appropriateness" and "suitability,"  
which as the Board well knows, is a signal to an area which is subjective, and which is for  
Council's determination.  
[Transcript p. 668]  
[91]  
In support of these submissions, Mr. Grant referred to the Board’s decision in  
Re Monaco Investments Partnership, 2012 NSUARB 155. That case involved a  
developer’s appeal from an HRM Council decision to refuse to approve a rezoning  
application. Although the issues were different, the policies considered in that case used  
similar language to the ones at issue in this appeal. One of the policies considered in that  
case, Policy IP-5(b), was explicitly compared to Policy IM-15(b) (at issue in this appeal) and  
the Board noted similarities between the two policies.  
[92]  
The Board discussed the subjective nature of the policies and said:  
[530] In the Board’s view, Council’s task in relation to DMPS Policy IP-5 can, in fact, be  
seen as having multiple layers of subjective judgments.  
[531] Council is to “consider” the “adequacy” (a subjective term according to all of the  
evidence before the Board) of such aspects of a proposal as “bulk,” “height,” “scale,”  
“compatibility,” etc., (which are themselves likewise subjective).  
[532] Further, Council is simply required to “consider” these items. In the view of the Board,  
the Court of Appeal’s decisions make it clear that (while “consideration” of such aspects as  
bulk, height, etc., by Council is mandatory), the weight which Council chooses to give the  
particular criterion or criteria being considered is – as long as Council’s decision remains  
reasonably consistent with the MPS – a matter for Council to determine.  
[533] To complicate matters further, the planning considerations found in DMPS Policy IP-  
5 must not be evaluated in isolation, but again, following the repeated direction on this point  
given by the Court of Appeal – in the context of the MPS as a whole. Thus, the concepts  
enumerated above must also be evaluated in the context of such planning considerations in  
the MPS as – to take but one of a number of examples – population densification (a theme  
of particular importance to Mr. Heseltine and Ms. Young).  
[2012 NSUARB 155, pp. 117-118]  
[93]  
In a similar vein, Ms. MacLaurin’s closing submissions on behalf of HRM  
highlighted the words “adequacy” and “sufficiency” in the policies. She submitted that it  
was for Council to consider the adequacy of the road network and sufficiency of traffic  
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capacity given the facts of the case. She noted that the policies do not tell Council how to  
make these determinations. Council must exercise its judgment in these matters.  
[94]  
In the Board’s view, Policy IM-15(b)(iii) does not specifically direct the  
Community Council to reduce conflict with nearby land uses by reason of traffic generation.  
Nor does it direct the Community Council to assess every conceivable option for the  
development to go ahead and then limit the Community Council to approving only the option  
that, objectively, results in the least amount of conflict. If that were the case, then any  
development with any impact on traffic could never go ahead because the alternative of not  
developing, thereby reducing the impact to nothing, would always exist.  
[95]  
The submissions from counsel for Marque and HRM are consistent with the  
guiding principles outlined by the Court of Appeal and followed by the Board. The traffic  
related policies bearing upon the Community Council’s decision in this matter use  
discretionary language that requires the Community Council to consider several factors.  
Ultimately, the Community Council must exercise its judgment to decide whether its  
consideration of these factors, overall, warrants the approval or rejection of a proposed  
development. As was the case with the policies considered in Heritage Trust, the policies  
considered in these appeals:  
…do not illuminate a linear path to a distinct outcome. They leave the Council, Municipality  
and developer with work to do. They contemplate Council will consider the overlapping  
planning perspectives, weigh a range of solutions, make value judgments, perhaps remit the  
negotiation to the Municipality for amendment and, if feasible, find an appropriate balance for  
a development agreement but, if not feasible after a reasonable application of the policies’  
criteria, refuse the development agreement. (para. 27)  
4.4  
[96]  
Policy S-15(b) – Traffic Capacity  
Policy S-15(b) requires the Community Council to “consider” that there is  
“sufficient” traffic capacity to service the development. The Appeal Record shows that this  
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was an issue considered during the assessment of Marque’s planning application and  
addressed in a variety of reports the developer filed with HRM as part of its application.  
[97]  
Marque’s stage 1 application included a traffic impact statement prepared by  
JRL Consulting in November 2013. This report provided a high-level overview of the  
proposed development, including estimates of site generated traffic and an initial review of  
existing traffic counts in the general area of the proposed development. For this report,  
JRL assumed that Windgate Village would include up to 350 single family homes and  
50,000 square feet of light industrial development along Windgate Drive.  
[98]  
JRL concluded that Windgate Village would generate a significant amount of  
new traffic in the Beaver Bank-Windsor Junction area and recommended a detailed traffic  
impact study to properly assess the potential traffic impacts of the proposed development.  
HRM staff told Marque that the traffic impact assessment was acceptable for the stage 1  
application, but it would need to provide a full traffic impact study with its stage 2  
submission.  
[99]  
Marque’s stage 2 submission in March 2015 included a traffic impact study  
recently completed by WSP. The traffic study considered nearby roads and intersections  
and assessed the impact of traffic from the proposed development. Overall, WSP  
concluded it did not expect site generated trips to have a significant impact on traffic  
performance in the study area.  
[100]  
The study also considered whether signal lights were warranted at nearby  
Windgate Drive intersections with Windsor Junction Road and Beaver Bank Road. WSP  
concluded that traffic signals were not expected to be needed at either intersection because  
of the proposed development. However, WSP identified excessive delays and queue  
lengths at the Windgate Drive approach to Beaver Bank Road in the afternoon peak hour  
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(both with and without the proposed development). WSP recommended consideration of  
the installation of signal lights at the intersection to improve the unacceptably high delays  
seen at peak times.  
[101]  
As time passed, and as Marque made changes to the proposed road network  
for Windgate Village and its connections to adjacent subdivisions, WSP prepared addenda  
to its 2015 traffic impact study. There were three in total dated, June 2017, July 2019 and  
June 2020. In each case WSP concluded that it did not expect the road network design  
changes to significantly affect the performance of nearby intersections from what was  
shown in its earlier study. Following a review of the third addendum in 2020, HRM planning  
staff told Marque the addendum was acceptable to HRM Development Engineering and  
Traffic Management.  
[102]  
In their evidence, and through questions on cross-examination, the  
Appellants raised a concern about the age of the data supporting the WSP 2015 study and  
addenda. The 2015 study used data from machine counts in October 2013 and manual  
counts in March 2015. The reported vehicle counts were projected to future periods to  
account for growth over time.  
[103]  
When asked about this issue by Mr. Cloney on cross-examination, Ms.  
Blissett said she believed the escalation factors used in the traffic study and addenda were  
in line with the current growth rate in the area. Mr. Cloney also asked Ms. Blissett about a  
statement in s. 4.2.1 of HRM’s Municipal Design Guidelines about the use of up-to-date  
data:  
Q. Okay. So in section 4.2.1, can you read that bottom paragraph that is there?  
A. Thank you for scrolling up. Thanks:  
The most recent traffic counts available should generally be used. It may also  
be possible to use counts or forecast data from other recent TIS reports  
conducted for development proposals in the same area. Usually, traffic counts  
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more than two years old should be updated. Where the available traffic count  
data is not representative of current conditions,...  
Do you mind scrolling up, please?  
Q. That’s good, Ms. Blissett. I really just wanted that much. Thank you. My question is; in  
this case were the traffic counts more than two years old, with the Traffic Impact Study?  
A. I’m sorry; you broke out there. I didn’t hear the end of the question.  
Q. So it says usually traffic counts more than two years old should be updated. My question  
is; in this case, the Windgate Village development and the applicable Traffic Impact Study,  
are they older than two years, the traffic count?  
A. Well, we were -- a number of traffic -- well, a traffic statement specifically for -- a traffic  
study, sorry, specifically for this, a number of addendums were looked at over a number of  
years. The traffic in the area had not grown so much, so we were looking at, basically, similar  
data that was there. So, you know, the information we were looking at was felt acceptable at  
the time.  
Q. So the Traffic Impact Study was, in fact, dated March 2015. The first addendum was June  
2017, the second one was July 2019, and the third addendum was June 2020. My question  
is; where do the traffic counts come from, the March 2015, or are they updated in each  
successive addendum?  
A. The traffic counts in the original TIS 2015, I believe were prepared by the traffic consultant  
for the Applicant. We did not require them to update the traffic counts for any further  
addendums.  
Q. Perfect. And that means that you’ve -- you went against the recommendation within this -  
- within the policy, within P-14, Exhibit F, section 4 ---  
A. No.  
Q. Is that true?  
A. No, not necessarily because they did provide a growth rate in there. So the Guidelines do  
allow us to use traffic counts, and then as well as added growth rate.  
Q. Okay. So what is the intent of, “Usually, traffic counts more than two years old should be  
updated”? What does that mean, in your expert opinion?  
A. When we’re looking at applications, depending on the location of them, depending on  
where their areas are, where the proposal is, sometimes we do require that the traffic counts  
are updated because there could have been a change in growth; there could have been a  
change in connection; there could have been a change that we need to have a study.  
Q. Okay, thank you.  
[Transcript, pp. 412-415]  
[104]  
Ms. Blissett also noted during re-direct examination that traffic data since the  
onset of the COVID-19 pandemic would not be helpful.  
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[105]  
In the report she filed with the Board, Ms. Blissett also specifically considered  
the capacity of the streets within the Monarch-Rivendale and Capilano Country Estates  
subdivisions. She noted that local streets were designed to carry an average daily traffic  
volume of 3,000 vehicles. She further noted that Rivendale Drive, Galloway Drive and Elise  
Victoria Drive were all classified as “minor collector roads,” which can carry 12,000 vehicles  
per day. Ms. Blissett’s report went on to note that “the Monarch/Rivendale and Capilano  
subdivisions have traffic volumes well below the local street classification limit and  
experience less than 1,100 and 600 vehicles per day respectively.” At the hearing, Ms.  
Blissett said HRM obtained these counts in 2019.  
[106]  
Ms. Blissett went on in her report to note:  
The proposed subdivision is expecting to generate approximately 238 residential vehicle trips  
in the AM peak hour (58 trips inbound and 180 trips outbound) and 310 residential vehicle  
trips in the PM peak hour (195 trips inbound and 115 trips outbound). These trips are  
expected to use the various access points throughout the common road network between  
the Monarch/Rivendale, Capilano and proposed subdivisions to access Beaver Bank Road,  
Windgate Drive and Windsor Junction Road. The traffic generated by the proposed  
subdivision is not expected to exclusively use the road network through the Capilano  
subdivision. However, any trips generated from the proposed subdivision that may chose to  
use access connections at Elise Victoria Drive or Briancrest Drive, can be accommodated  
within the current capacity of the road network without the need to upgrade intersections. The  
various TIS and addendums provided in Tab 1 of the Appeal Record found that the proposed  
development would not have a significant impact on intersections in the study area.  
[Exhibit C-6, p. 7]  
[107]  
The evidence before the Board about the intersection of Beaver Bank Road  
and Windgate Drive did raise some concerns about its capacity, particularly for left-hand  
turns from Windgate Drive onto Beaver Bank Road. As discussed previously, the 2015  
WSP traffic impact study concluded that the intersection was below the warrant threshold  
for signal lights but recommended these be considered to address some concerns with the  
functioning of the intersection.  
[108]  
While it does not appear to have been directly related to the HRM staff review  
of Marque’s application, HRM engaged Griffin Transportation Group Inc. to review the  
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operation and safety of the intersection of Beaver Bank Road and Windgate Drive in 2016.  
The review considered the safety of the intersection, intersection approach speeds,  
intersection traffic operations and traffic signal warrants. Griffin’s final report is dated  
November 2016.  
[109]  
The safety assessment was based on five years of collision data. Griffin  
analyzed the data and calculated a five-year collision rate of 0.55 collisions per million  
vehicles entering the intersection and an annual collision rate of 4.2 collisions per year,  
which was near the expected frequency. Overall, Griffin concluded that the intersection  
appeared to have operated with an expected level of safety performance over the study  
period. However, Griffin observed that 81% of the collisions involved vehicles turning left  
from Windgate Drive.  
[110]  
To assess intersection approach speeds, Griffin collected data using a hand-  
held radar unit at each of the three approaches. The 85th percentile operating speed for  
traffic on Beaver Bank Road was observed at 14 or 15 km/h higher that the posted 50 km/h  
limit. For the Windgate Drive approach, it was about 5 km/h lower than the posted 70 km/h  
limit. Griffin concluded that the higher speeds on Beaver Bank Road increased the risk  
associated with this intersection.  
[111]  
Griffin considered historical data about traffic operations as well as data it  
collected during the study and data collected by HRM while the study was in progress.  
Comparing the data sets, Griffin observed that the morning peak data was similar, but the  
afternoon peak data was notably higher in the data it collected. To be conservative, Griffin  
used its own data in its analysis. The only issue with operations noted by Griffin was that  
the capacity of the intersection was exceeded for the left-hand turn from Windgate Drive  
during the afternoon peak, resulting in delays and queueing.  
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[112]  
There was a notable difference in Griffin’s analysis and the earlier WSP study.  
The analysis in the Griffin safety review suggested the then current state of operation of the  
intersection was closer to the 100-point warrant threshold than in the 2015 WSP study. In  
response to questions from the Board at the hearing, Mr. O’Brien acknowledged this  
difference but did not feel it was significant for this intersection as both assessments  
projected an upcoming need for traffic signals. He said the Griffin study suggested the  
intersection was possibly approaching the threshold sooner than previously thought. Mr.  
O’Brien also agreed that the proposed development will add warrant points to the analysis  
but said this would not all be on day one. Traffic would increase over time as development  
continued.  
[113]  
On cross-examination, Ms. Langille accepted there were some traffic  
concerns about Beaver Bank Road and its intersection with Windgate Drive. She noted  
that HRM was watching these issues:  
Q. Would you agree that Beaver Bank Road has a traffic problem?  
A. What I can say is that Beaver Bank Road has been identified as a street that does have  
some challenges, that’s why the Beaver Bank Road itself has been placed within this growth  
control. And I do know that other departments of HRM are continuing to look at that, and it is  
something that is considered with all of our applications in and around the area. There are  
portions of the Beaver Bank Road that are able to proceed with development, and then there  
are other areas outside of it that have special conditions applied.  
Q. And would you also -- is it your understanding that there’s a traffic issue with respect to  
the Beaver Bank and Windgate Drive intersection?  
A. I do know there’s a very long history with respect to the Beaver Bank-Windsor Junction  
crossroad. I do know that separate of this particular planning application, there are motions  
of Council to continue to study and review that particular intersection and look at potential  
solutions. My understanding is that there’s a court matter associated with that at the moment.  
And any time we do have planning applications, we do ask that this intersection is --  
consideration is given to it, and that is something that is reviewed by our development  
engineers when they’re looking at development proposals in and around this area. Yes, I am  
aware that there’s some traffic concerns. Also aware that there’s motions of Council that are  
asking staff to continue to explore solutions.  
[Transcript, pp. 336-337]  
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[114]  
Although Ms. Langille referenced the Beaver Bank-Windsor Junction  
crossroad in her last response, from the question and the context of her response, it is clear  
to the Board that she was talking about the Beaver Bank Road and Windgate Drive  
intersection.  
[115]  
Ms. Blissett’s testimony in response to questions from Mr. Cloney was similar:  
So we have an existing subdivision -- or, sorry; an existing intersection at Beaver Bank and  
Windgate Drive. Concerns have come up from the public and as well as from Council about  
how that intersection operates. HRM has studied the intersection and it’s -- you know,  
currently traffic signals are not warranted.  
We understand that that intersection, you know, could -- you know, when it gets upgraded,  
there’s probably some realignment that needs to take place. There certainly are some  
challenges with property in that area, private property as well as the CN track that are limiting  
you know, work to take place. But HRM is monitoring that intersection, and we’re monitoring  
that intersection as new developments are being proposed, and we’re also monitoring that  
intersection, and, you know, looking forward to the Aerotech connector, which, you know,  
those traffic studies have indicated that some of -- will alleviate some of the pressure on the  
Beaver Bank and Windgate and Windsor Junction Fall River Roads.  
So that intersection, HRM is monitoring, and based on the information that we have from  
other developments, it’s not on one developer to upgrade. And sometimes in these complex  
areas, HRM chooses to take the monitoring and the, you know, future upgrades of those  
intersections on themselves. And that’s what I understand is taking place here, that HRM  
continues to monitor this intersection. We have some proposed suggestions, short-term and  
long-term. We also have -- for upgrades. And we also, you know, have some existing  
challenges with ownership and other, you know, utilities or interests in the area as well.  
So it’s -- there’s a lot going on in this area and HRM is monitoring it. And I just want to go  
back to the comment I had made, that HRM is looking to do an overall transportation study  
in the whole entire area, you know, that takes a look at all the traffic in the area, not just  
related to the Windgate or -- the Windgate subdivision or the intersection at Beaver Bank and  
Windgate Road.  
[Transcript, pp. 498-499]  
[116]  
As a final comment on the various traffic reports included in the Appeal  
Record in this proceeding, the Board notes that the JRL Consulting traffic impact statement  
and the WSP traffic impact study and addenda also addressed a concern about the  
adequacy of stopping sight distances for the proposed entrance to Windgate Village from  
Windgate Drive. It appears this issue was addressed to the satisfaction of HRM staff, and  
it was not an issue the Appellants focused on.  
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4.4.1 Findings  
Except for the operation of the intersection of Beaver Bank Road and  
[117]  
Windgate Drive, the Board finds that the nearby roads and intersection, including the streets  
within the Monarch-Rivendale and Capilano Country Estates subdivisions, have the  
capacity to serve the proposed development. None of the traffic assessments relating to  
the proposed development that were provided to HRM during its consideration of Marque’s  
application identified concerns with the capacity of the nearby road networks and  
intersections to accommodate the traffic expected from the proposed development (except  
for the Beaver Bank Road and Windgate Drive intersection).  
[118]  
The Appellants have not persuaded the Board that it should disregard the  
conclusions in the reports because of the age of the data used in the analysis in those  
reports. Ms. Blissett’s evidence supported the conclusions in the reports and it was her  
opinion that the traffic assessments reasonably accounted for growth.  
[119]  
The concerns about the intersection of Beaver Bank Road and Windgate  
Drive were focused particularly on delays and queueing when making a left-hand turn from  
Windgate Dive onto Beaver Bank Road, to head south towards Sackville, during the  
afternoon peak. This was a factor for the Community Council to consider and the Staff  
Report explicitly referenced concerns about this intersection. Furthermore, the evidence  
from Ms. Langille and Ms. Blissett noted that HRM was actively monitoring this intersection  
and considering ways to address the identified concerns. The Board concludes it was open  
for the Community Council to consider the concerns and still exercise its judgment to  
approve the development agreement.  
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4.5  
[120]  
Policy S-15(n) and Policy IM-15(a)(iv) – Road Design/Road Networks  
Policy S-15(n) requires the Community Council to “consider” that the roads  
are designed to “appropriate” standards as per Policy T-2. Policy T-2 of the 2006 Plan  
requires HRM to develop rural local road standards:  
T-2  
Further to Policy S-30, HRM shall develop a specific rural local road standard for  
public streets, that will complement the character of rural communities while ensuring  
that safety and servicing standards are met. (Exhibit C-3, p. 79)  
[121]  
Policy S-30 requires HRM to “consider” establishing a public rural road  
standard for open space design developments and directs HRM to prohibit the creation of  
new private roads:  
S-30 HRM shall, through the Subdivision By-law, prohibit the creation of new private roads  
within the Municipality. To reduce the impact of road development on rural areas and  
to provide for the creation of more effective Open Space Design developments, HRM  
will consider establishing a public rural road standard as outlined in Policy T-2.  
[122]  
Policy IM-15(a)(iv) requires HRM to “consider” that the proposal is not  
premature or “inappropriate” by reason of … the “adequacy” of road networks leading to or  
within the development.  
[123]  
Marque’s first proposals for the road network within Windgate Village did not  
include a connection between the northern and southern ends of the proposed  
development. In March 2015, the proposed access to the northern part of the development  
was through neighbouring subdivisions via connections at O’Leary Drive and Briancrest  
Road. Marque proposed that the southern part of the development be accessed through a  
new connection to Windgate Drive and via Rivendale Drive and Capilano Drive.  
[124]  
Upon review of the proposed road network, HRM staff told Marque that  
another developer was currently constructing an extension to Galloway Drive and  
suggested that the proposed street design and connections be revisited. HRM staff noted  
there were a number of HRM owned streets surrounding the proposed subdivision that  
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could be extended or joined with streets in Windgate Village, but connections to existing  
public streets would have to be designed and constructed as public streets:  
Rivendale Drive, O’Leary Drive, Briancrest Road, Elise-Victoria Drive and Valerie Court are  
HRM owned and maintained streets that surround the proposed subdivision. These streets  
have the possibility to be extended and/or joined. Any proposed streets/extensions must  
meet HRM Design Guidelines 2013 edition and adhere to the Street By-law S-300.  
[Exhibit C-2, pp. 283-284]  
[125]  
Marque submitted a redesigned road network in June 2017. The new design  
still had no internal connection between the north and south ends of Windgate Village, but  
changed the proposed access points with the neighbouring subdivisions. Connections to  
the northern part of Windgate Village were, at that point, contemplated via O’Leary Drive,  
Galloway Drive and Briancrest Road. The southern part of the development had proposed  
access from the new connection to Windgate Drive and via Rivendale Drive and Elise  
Victoria Drive.  
[126]  
In July 2019, the road network was changed again and the proposed  
connection to O’Leary Drive in the northern end of Windgate Village was removed. After  
reviewing the changes, HRM staff made a number of comments and recommendations to  
Marque about the road network:  
HRM staff noted that while Policy S-15 contemplates road networks would be  
minimized in an open space design development, new public roads were  
recommended to improve connectivity between the two existing  
developments and to allow for more efficient connections to existing water  
service infrastructure.  
HRM advised Marque that the proposed development agreement would  
require that it build all public streets according to the most recent HRM  
specifications as set out in the Municipal Design Guidelines.  
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HRM said a redesign of public roads in Windgate Village was required to  
ensure that the public right-of-way extending from Galloway Drive in the  
northern part of the development did not connect to Briancrest Road through  
a private road. HRM staff noted that public rights-of-way must be  
continuously connected.  
HRM staff recommended that the roads be redesigned to connect the  
northern and southern ends of the development to provide better traffic  
circulation and for the convenience of residents.  
[127]  
Marque submitted revised plans to HRM in or about March 2020. These plans  
included a redesign of the road network based on the HRM staff comments in 2019. In  
particular, the north and south ends of Windgate Village were proposed to be internally  
connected and all roads were proposed to be public roads. Comments from HRM staff in  
May 2020 note that HRM Development Engineering supported the revised road network.  
In July 2020 staff informed Marque that:  
The proposed street network has been reviewed and is generally accepted by Development  
Engineering and Traffic Management. Detailed design of streets will be discussed during the  
Final Subdivision review process. Streets should be intentionally designed to encourage  
appropriate speeds and driver behaviour for a residential area. Minor changes to the  
horizontal alignment or alternative cross-sections may be discussed on the straight section  
of proposed Street A which intersects with proposed Street C, to encourage slower travel  
speed.  
[Exhibit C-2, p. 457]  
[128]  
Although details about the proposed development continued to be refined,  
there were no material changes to the design of the road network between March 2020 and  
the Community Council’s approval of the proposed development agreement on January 17,  
2022. In the report she filed with the Board for these appeals, Ms. Blissett confirmed that  
HRM Development Engineering supported the final road layout of the proposed subdivision.  
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[129]  
Mr. Cloney asked Ms. Salloum whether the extension of Elise Victoria Drive  
into the new subdivision was required by HRM or the developer. She responded that HRM  
did not specifically request this connection:  
So what I remember from our back-and-forth discussions, there -- there was no -- HRM did  
not specifically request connection onto Elise Victoria. HRM receives proposals and reviews  
those proposals against the applicable requirements of policies and regulations, and the  
proposal that was in front of us for review met the requirements of the policy.  
[Transcript, p. 195]  
[130]  
In her report Ms. Blissett said HRM Development Engineering’s focus during  
its review of Marque’s application was on ensuring that the conceptual road layout, site  
servicing and traffic generation met engineering standards and requirements. To guide  
their review, they use HRM’s Municipal Design Guidelines, its Guide for the Preparation of  
Transportation Impact Studies, and the Regional Subdivision By-law.  
[131]  
Ms. Blissett’s report noted the Municipal Design Guidelines provide the  
minimum design and construction standards for new municipal services within HRM and  
details for the following aspects of roadway design: road layout, access, right-of-way  
classification, intersection design and separation, driveway location, geometric design,  
cross section elements, signs, street lighting design, construction and acceptance. Ms.  
Blissett said that Marque’s application was considered under the 2013 Municipal Design  
Guidelines but, since then, the guidelines were updated in 2021. The proposed  
development agreement requires the developer to follow the most current edition of the  
Municipal Design Guidelines.  
[132]  
Ms. Blissett’s report noted that the road connections in the proposed  
subdivision were consistent with the following requirements in the Municipal Design  
Guidelines (2013):  
Section 4.2.3.1 Streets must be laid out wherever possible in prolongation of existing streets,  
either in the same subdivision or in adjacent subdivisions.  
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Section 4.2.3.3 In general, the use of continuous streets is encouraged, and the number of  
cul-de-sacs shall be limited where the land can be effectively serviced by the continued  
extension of the road system.  
[Exhibit C-6, p. 7]  
[133]  
To help the public understand the proposed development during the review  
of Marque’s planning application, HRM planning staff prepared a “Frequently Asked  
Questions” document. Question 12 considered connections between subdivisions:  
12.  
Are infrastructure connections to Monarch Rivendale and Capilano Estates required  
by HRM and Halifax Water?  
The HRM Municipal Design Guidelines identify requirements which are to be  
considered when new subdivisions are proposed. The subdivision design should  
consider mitigating new traffic problems from happening while also providing for  
convenient access, mobility and community connectivity. The general principles for  
designing streets include:  
(i)  
accommodating through traffic;  
(ii)  
linking local streets to higher classification streets to provide good access to  
other parts of the community;  
(iii)  
(iv)  
prolonging existing streets in the same subdivision or adjacent subdivisions;  
using road reserves that were left for future connections (road reserved were  
provided in both the Monarch Rivendale and Capilano Estates subdivisions);  
and,  
(v)  
limiting cul-de-sacs where the lands can be effectively serviced, and the road  
system can be continuously extended.  
(vi)  
Looping of watermains (connecting water pipes instead of having the pipes  
run to a dead end) is always a preferred servicing strategy as it provides  
resiliency and limits the number of impacted customers in the event of a  
break.  
[Exhibit C-2, pp. 531-532]  
[134]  
In his report filed with the Board for these appeals, Mr. O’Brien noted:  
As indicated above and shown in Figure 5, the proposed development includes multiple  
access points. There is a primary site access to Windgate Drive, and secondary access  
locations to existing adjacent neighbourhoods. Having multiple access locations adds to the  
resiliency of the street network and provides a connection between existing Rivendale /  
Monarch Estates and Capilano Estates Subdivisions. Having connections is good practice  
and improves traffic circulation for residents of these neighbourhoods, while creating  
opportunity for improvement to servicing the area with winter maintenance, solid waste  
collection, school bus routing and emergency services.  
Municipal Design Guidelines 2021 (HRM) includes Section 2.2.1 that provides guidance and  
requirements for the layout of a road network.  
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Section 2.2.1 (a) indicates that:  
(a) Street networks must be continuous and create a connected grid network  
wherever possible. Grid networks provide:  
(i) more than one access for emergency vehicles and more than one  
egress route in the event of an emergency,  
(ii) ease of municipal services accessing individual lots, and,  
(iii) improved accessibility of the neighbourhood by all modes of  
transportation, such as improved access to bus stops, and shorter  
routes for active transportation.  
The latest development plan meets these guidelines as it provides continuous streets  
and creates a connected network.  
Section 2.2.1 (b) indicates that:  
(b) Streets must be laid out in prolongation of existing streets, either in the  
same subdivision area or in adjacent subdivision areas.  
The latest development plan provides connection through prolongation of multiple  
existing streets including Rivendale Drive, Galloway Drive, and Elise Victoria Drive  
as required by the Municipal Design Guidelines.  
Section 2.2.1 (e) indicates that:  
(e) Culs-de-sac pose challenges for winter operations and limit access for  
transit, emergency vehicles and active transportation networks, and are  
discouraged. Culs-de-sac may be considered when their use avoids:  
(i) development on steep slopes,  
(ii) fragmentation of environmental corridors,  
(iii) natural features,  
(iv) when a temporary street layout is required ahead of a future  
urban expansion,  
(v) when developing infill sites that are unable to create a through  
connection.  
The latest development plan reduces the number of culs-de-sac in the area. By prolongation  
of adjacent streets, three existing culs-de-sac are removed, and the development plan  
includes two new culs-de-sac. With the current development plan there is one less cul-de-  
sac in the area which meets the intent and desire of the Municipal Design Guidelines.  
[Exhibit C-7, p. 25]  
[135]  
The Appellants contend that the benefits of connecting the subdivisions were  
available without an extension of Elise Victoria Drive. They point out that alternative  
connection points between Capilano Country Estates and Windgate Village exist at the end  
of Valerie Court, at the end of Briancrest Road and through road reserves connecting to  
Capilano Drive and Briancrest Road (the latter of which is already used as a connection  
point in the plan approved by the Community Council). They contend a connection through  
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Elise Victoria Drive would have the worst traffic related impacts compared to the other  
options.  
[136]  
On direct examination, Ms. Salloum was asked if HRM staff had considered  
removing the connection at Elise Victoria Drive. She said it was discussed because of the  
concerns raised by residents, but the connection proposed by the developer met the  
policies and guidelines, so staff went ahead with a positive recommendation. During cross-  
examination, Ms. Salloum was asked why the proposed connection was at Elise Victoria  
Drive rather than through the road reserve off Capilano Drive. Her response reiterated what  
she said earlier on direct. Ms. Langille’s testimony also discussed the connection at Elise  
Victoria Drive and noted it met the requirements in the Municipal Design Guidelines.  
[137]  
In response to questions from the Board at the hearing, Ms. Langille said it  
was her understanding that a rural road standard, as referenced in Policy T-2, was created  
through HRM’s Municipal Design Guidelines. Ms. Blissett advised the Board that the  
sections of the Municipal Design Guidelines that she referred to in her report (ss. 4.2.3.1  
and 4.2.3.3) would be included in the rural road standards contemplated in Policy T-2. In  
HRM’s closing submissions, Ms. MacLaurin also noted that the policy evaluation matrix in  
the staff report for the Community Council (reproduced in this decision as Schedule “A”)  
noted in the analysis for Policy S-15(n):  
The proposed development would require that all public streets are built according to the  
most recent HRM specifications as set out in the Municipal Design Guidelines. Staff have  
reviewed the proposed road connections and advise that they generally follow the Municipal  
Design Guidelines.  
[Exhibit C-2, p. 508]  
[138]  
In his closing submissions, Mr. Cloney expressed doubt that the Municipal  
Design Guidelines included a specific local road standard for public streets as required by  
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Policy T-2 or that it complemented the character of rural communities. However, he  
highlighted the following provisions:  
4.1.1 General  
This Design Guideline provides standards for urban and rural areas and applies to  
new construction as well as to major reconstruction. The design of the roadway  
system has to respond to different constraints and possibilities depending on the  
situation. There are basic design concepts that apply in all situations but the  
expression of the objectives will necessarily vary depending on the situation.  
…
In the ‘rural’ areas, increased sensitivity to users other than motor vehicles is required  
of designers by the Municipality and by residents to meet goals of environmental  
quality.  
When considering developments in areas now undeveloped (in either ‘urban’ or ‘rural’  
contexts) the emphasis is on creation of plans that will keep traffic problems from  
developing while at the same time providing for convenient access and mobility. A  
well-conceived street system can segregate through traffic from local traffic and  
assure that collector and higher classed roads as well as local-serving streets are  
designed and constructed to standards that reinforce their intended use. Attention  
should be given to layouts that are suitable for bus operations (with appropriate lane  
widths, pavement strengths, turning radii and so forth) and to the provision of facilities  
that permit and encourage non-motorized travel - bikeways/walkways and sidewalks.  
…
4.1.3 General Principles for Design of Streets  
…
Local streets should be linked to higher classification streets in a way that  
provides good access to other parts of the community and region, and  
minimizes the chances of the local streets’ use by through traffic. [Emphasis  
added to identify the passages highlighted by Mr. Cloney]  
[Exhibit C-12, pp. 114-15]  
[139]  
The Board understands that the Appellants’ dominant concern in these  
appeals is about through traffic. They expect that drivers will begin using the new road  
networks created by the proposed subdivision to travel between Fall River and the Beaver  
Bank Road through the Capilano Country Estates, Windgate Village and Monarch-  
Rivendale subdivisions. While no connections through to Beaver Bank Road currently exist  
(outside of using Windgate Drive), the Appellants said the neighbourhood was already  
experiencing problems with people shortcutting through Capilano Country Estates.  
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[140]  
The Appellants suggest the new pathway between Fall River and Beaver  
Bank Road would divert traffic from Windgate Drive through the subdivisions as drivers  
would look to avoid the troublesome intersection at Windgate Drive and Beaver Bank Road.  
In response to a question from the Board, Ms. Langille acknowledged that this was a  
relevant concern that the Community Council could have considered under the relevant  
policies relating to the approval of the development agreement for Windgate Village.  
[141]  
On cross-examination, Ms. Blissett agreed that it is possible that some traffic  
from Fall River Road will go through Capilano Country Estates and either use the proposed  
Victoria Elise Drive or Briancrest Road extensions through Windgate Village. She accepted  
that some people who were not comfortable with the intersection at Beaver Bank Road and  
Windgate Drive would probably find another route. However, she said a route through the  
subdivisions would be very meandering so she would not refer to it as shortcutting.  
[142]  
Similarly, in response to a question from the Board, Mr. O’Brien agreed it was  
likely that some drivers would use the new pathway through the subdivision. Mr. O’Brien  
also agreed that the WSP traffic assessments for the proposed development did not include  
an explicit assessment of this potential. He said WSP would have given it some  
consideration in the preparation of the traffic impact study, but traffic volumes in the area  
did not suggest it would be a significant concern.  
[143]  
The report Mr. O’Brien filed for these appeals explicitly considered the  
potential for drivers to cut through the residential subdivisions:  
While the intersection of Beaver Bank Road at Windgate Drive is recognized to have delays  
for traffic turning from Windgate Drive due to high traffic volumes on Beaver Bank Road, this  
difficulty is not anticipated to result in a significant shift in travel patterns through new street  
connections made available with the site development. While traffic volume on Beaver Bank  
Road is high, volume on Windgate Drive is low to moderate. Traffic from Capilano Estates is  
unlikely to travel through the development to Majestic Drive to reach destinations south of  
Windgate Drive such as Sackville Drive since travel distance and travel times are higher and  
drivers would still encounter difficulty turning left to Beaver Bank Road at Majestic Drive. The  
connection through the development will become quite attractive for traffic from Capilano  
Estates destined for Beaver Bank-Monarch Drive Elementary School.  
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The majority of the traffic on Windgate Drive is travelling to and from the south on Beaver  
Bank Road. As discussed, this traffic is not expected to shift travel patterns as a result of new  
street connections available through the development. There is potential that some of the  
traffic on Windgate Drive travelling to and from the north may shift travel routes through the  
area. The desire to shift routes to avoid the Beaver Bank Road at Windgate Drive intersection  
is lower since there is less difficulty experienced for right turning traffic from Windgate Drive  
versus left turning. The volume of traffic to and from the north is also lower resulting in fewer  
potential vehicles that could shift travel routes. In the AM peak there is only 5 vehicles, and  
55 vehicles during the PM peak hour turning right from Windgate Drive as shown in Figure 6.  
[Exhibit C-7, p. 27]  
[144]  
In response to questions from the Board about this part of his evidence, Mr.  
O’Brien said he considered the volume of traffic currently using the origin-to-destination  
pathways that might consider travelling though Capilano Country Estates to be low to  
moderate. He said increasing or even doubling those volumes for growth would not  
significantly change his views.  
[145]  
In response to questions from Mr. Cloney, Mr. O’Brien did not feel it was likely  
that traffic currently making the problematic left-hand turn from Windgate Drive to Beaver  
Bank Road would consider travelling through the proposed new pathways through the  
residential subdivisions to turn left on Beaver Bank Road further north of the Windgate Drive  
intersection. Mr. O’Brien said there would be a longer route involved and the driver would  
still have a similar experience turning left on Beaver Bank Road. The following exchange,  
involving cross-examination (on matters arising from Board questions) and re-direct  
examination of Mr. O’Brien, outlines his thoughts on this issue:  
Q. Perfect. I just -- I don’t want to keep saying the same thing, but I don’t know how to say it.  
My understanding, and if we put up the map, is this new connection at Elise Victoria Drive  
will allow Fall River to be connected all the way to Beaver Bank Road for the first time as a  
new connection to Beaver Bank Road north of Windgate Drive, which will funnel traffic from  
Fall River to Beaver Bank north of Windgate Drive, enabling drivers to not have to utilize this,  
I’ll say, terrible intersection. And that’s what they will do until it’s fixed. Do you concur?  
A. No.  
Q. Thank you, Mr. O’Brien.  
THE CHAIR: Mr. Grant, any follow-up from Board questions or re-direct?  
(SHORT PAUSE)  
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RE-EXAMINATION BY MR. GRANT  
Q. Mr. O’Brien, may I ask you to provide your reasons for which you don’t concur with the  
proposition Mr. Cloney posed to you in his last question?  
A. I believe the question was referring to will people travel north through the development on  
-- to get to a intersection further north on Beaver Bank Road to avoid turning left at this  
intersection, and it’s unlikely that drivers, with the price of fuel and everything, are going to  
travel multiple kilometres out of their way rather than really (indiscernible) at an intersection  
where you have to turn left. A little bit north, the speeds are higher on Beaver Bank Road, so  
that does create a little more challenge sometimes for turning left onto Beaver Bank Road.  
So that -- I guess the same challenge for turning left onto Beaver Bank Road as well as the  
additional travel distance creates an unlikely situation that people will not use this intersection  
to travel to the south.  
[Transcript, pp. 598-599]  
4.5.1 Findings  
[146]  
HRM Engineering Development supported the final road design for Windgate  
Village as did Ms. Blissett’s evidence in this proceeding. The Board finds that the evidence  
in this proceeding supports a conclusion that the design of the roads for the proposed  
subdivision follows appropriate standards.  
[147]  
The interconnections between the new and existing subdivisions are  
consistent with the Municipal Design Guidelines and provide a number of benefits to  
residents living in these subdivisions such as improved and easier servicing of the area for  
winter maintenance, solid waste collection, school bus routing and emergency services.  
The Appellants did not dispute that there were benefits from having the subdivisions  
interconnected, but in their view, the interconnection with Elise Victoria Drive would result  
in traffic travelling through the intersections at higher speeds than it would through other  
connection points. They submitted the same benefits from the interconnection of the  
subdivisions could be achieved through another route that would better mitigate the impacts  
of through traffic. The Board considers this issue later in this decision in relation to Policy  
IM-15(b)(iii).  
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[148]  
The Board finds that the proposed interconnection of Windgate Village with  
the existing subdivisions will likely create new through traffic. However, the Board accepts  
the expert evidence of Ms. Blissett and Mr. O’Brien that this is not likely to be significant.  
As such, the Board concludes that the new pathway is unlikely to become the dominant  
path for through traffic in the area.  
[149]  
As Ms. Blissett observed, the path through the subdivisions would be  
meandering. It is now also impeded by the installation of speed tables in Capilano Country  
Estates and consideration is being given to the installation of more speed tables in that  
subdivision and in the Monarch-Rivendale subdivision.  
[150]  
The Board also accepts Mr. O’Brien’s opinion that traffic on pathways most  
likely to benefit from cutting through these subdivisions is low to moderate and that the  
higher volumes of traffic headed to destinations south of the Windgate Drive and Beaver  
Bank Road will be less inclined to cut through these subdivisions as a result of the new  
pathways that would be created by the proposed subdivision.  
4.6  
Policy IM-15(b)(iii) – Controls to Reduce Land-use Conflict from Traffic  
Generation, Access and Parking  
[151]  
Policy IM-15(b)(iii) requires HRM to “consider” that controls are placed on the  
proposed development to reduce conflict with any adjacent or nearby land uses by reason  
of traffic generation, access to and egress from the site, and parking. In her closing  
submission on behalf of HRM, Ms. MacLaurin emphasized that the policy does not dictate  
that the Community Council implement specific controls:  
It's very important to note that Policy IM-15(b)(iii) does not dictate what controls are to be  
placed on the development. This is for Council to decide. In this case, the North West  
Community Council gets to decide not only what controls should be in place, they get to  
determine whether those controls are adequate in the circumstances.  
[Transcript, p. 658]  
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[152]  
At the end of his cross-examination of each HRM witness, Mr. Cloney asked  
them to identify, from their perspective, any controls on the proposed development to  
reduce conflict with adjacent land uses by reason of traffic generation. Their responses  
were similar and identified several aspects of the proposed development and development  
agreement they viewed as limiting the traffic related impacts. These included:  
(1) The proposed development agreement establishes a maximum number of  
dwelling units that may be developed. It also limits the uses that can occur.  
As such, the traffic to be expected from the proposed development is  
constrained by those uses and limits.  
(2) The proposed development agreement also requires that the intended senior  
citizen multi-unit buildings and townhouses be near Windgate Drive. This  
provides residents and visitors of those dwellings with easy access to enter  
and leave the subdivision rather than to have to travel through the rest of the  
subdivision. These dwellings account for approximately two-thirds of the  
density in the proposed development.  
(3) The road network for the proposed development is designed to direct traffic  
to the new intersection with Windgate Drive. Having multiple secondary  
connections throughout the development also helps to spread traffic out  
rather than funnelling all through one location.  
(4) The development must be completed in phases. Ms. Salloum testified that  
phasing helps to avoid building too much density off one access point as the  
subdivision is built and tries to mitigate impacts in the surrounding  
neighbourhoods during construction.  
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(5) The development agreement includes the following provisions to control  
traffic speeds in Windgate Village:  
4.1.1 All design and construction of primary and secondary service systems shall satisfy  
the Regional Subdivision Bylaw and the most current edition of the Municipal Design  
Guidelines and Halifax Water Design and Construction Specifications unless otherwise  
provided for in this Agreement and shall receive written approval from the Development  
Engineering prior to undertaking the work.  
4.1.2 Further to 4.1.1, design elements may be required at the discretion of the  
Development Engineer through the subdivision approval process to mitigate speeds within  
the development.  
[153]  
Although s. 4.1.2 of the development agreement relates specifically to speed  
mitigation within the proposed development, other mechanisms were identified in the  
evidence before the Board that could apply in the neighbouring subdivisions. The Staff  
Report noted Administrative Order 2015-004-OP and Ms. Salloum and Ms. Langille  
discussed this in their testimony. Through this, residents can ask that traffic calming  
measures be implemented on existing public streets.  
[154]  
In her testimony, Ms. Blissett discussed s.17 of HRM’s Subdivision By-law,  
which allows HRM to require infrastructure improvements to the surrounding road network  
at the subdivision approval stage of a development. This could include upgrading, paving,  
traffic control, traffic calming, left turn lanes and traffic signals. She confirmed s. 17 could  
be used, for example, to consider whether the intersection of Capilano Drive and Elise  
Victoria Drive could be made a four-way stop. This was one of the potential traffic calming  
measures that WSP noted in a presentation to the Community Council on December 13,  
2021, on behalf of the developer (Exhibit C-2, p. 584).  
[155]  
Ms. Blissett also noted that HRM has started a broader program to assess  
various subdivisions throughout HRM for the installation of traffic calming measures. She  
said that it was her understanding that there had been one request for traffic calming on a  
couple of streets in the Capilano County Estates subdivision, but because the HRM  
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program had more funds this year, HRM decided to install speed tables throughout  
Capilano Country Estates. She said:  
Between 2020 and 2021 HRM has installed speed tables as a traffic calming measure within  
the Monarch/Rivendale and Capilano subdivisions on Monarch Drive, Ashlea Drive, Elise  
Victoria Drive, Terry Drive, Taylor Drive, Ethan Drive and Capilano Drive. Two additional  
speed tables are proposed on Capilano Drive for 2022/23. Further data collection continues  
for various streets with the Monarch/Rivendale subdivision to assess the need for speed  
tables in the future.  
[Exhibit C-6, p. 8]  
[156]  
Mr. Cloney suggested to witnesses that the speed tables were installed to  
address an existing issue with speeding. The responses he received did not support the  
suggestion that these measures were purely reactionary. Regardless, the traffic calming  
measures now exist and will help to control traffic in the neighbourhood.  
[157]  
As far as impact relating to parking, there was little evidence in this  
proceeding about parking, so the Board concludes it is not a significant concern. In his  
report, Mr. O’Brien said:  
…It is also understood that each land parcel in the development will include parking. The  
residential land uses are unlikely to spill over parking demand to adjacent or nearby lands.  
[Exhibit C-7, p. 28]  
4.6.1 Findings  
[158]  
The Board finds that there are features of the proposed development that, by  
their design or by their nature, will help to control its traffic related impacts. These were  
listed by each of HRM’s witnesses in response to questions from Mr. Cloney. Ms. Blissett  
discussed traffic calming options in detail in her testimony before the Board.  
[159]  
The evidence and submissions in these appeals make it clear that the  
Appellants believe the Community Council should have imposed one particular control: the  
elimination of Elise Victoria Drive as a choice for connecting the proposed development to  
the Capilano Country Estates subdivision. In the Board’s view, the Community Council’s  
election not to do so was within the allowed scope of its discretion and judgment.  
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[160]  
Regarding the Appellants’ position that the connection through Elise Victoria  
Drive has more negative traffic impacts than others, Ms. Blissett noted that the developer  
may have to implement traffic calming measures at the subdivision approval stage, both  
within Windgate Village and in adjacent areas. The need for these measures will be  
assessed at that time and, if needed, could reduce or eliminate any differences in traffic  
related impacts among the options available for connecting the subdivisions.  
[161]  
Even if it were the case that the connection through Elise Victoria Drive would  
have more of an impact than other alternatives, Policy IM-15(b)(iii) does not direct the  
Community Council to assess every possible alternative way for the development to  
proceed and does not limit it to approving only the one that, objectively, results in the least  
amount of conflict. Policy IM-15 lists factors that the Community Council must consider,  
but it is not a checklist of items upon which the Community Council must be fully satisfied  
on every count. The Community Council may be satisfied on some and less satisfied, or  
even dissatisfied on other factors, but, after balancing the factors, may still exercise its  
judgment to approve a development agreement.  
[162]  
Finally, the evidence and submissions of the parties did not identify anything  
in the Municipal Planning Strategy that would require the Community Council to demand a  
different connection point because it is at a specifically designated road reserve rather than  
an extension of a publicly owned street, was specifically marketed to residents by an  
unrelated party as being on a cul-de-sac, or is not the preferred choice of residents who  
signed a survey.  
5.0  
CONCLUSION  
Overall, the Board concludes that the Appellants have not met the burden of  
[163]  
demonstrating, on a balance of probabilities, that the Community Council decision does not  
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reasonably carry out the intent of the Municipal Planning Strategy. In considering the  
application before it, the Community Council had to balance several factors and interests  
and exercise its judgment about the proposed development. It may have been open for the  
Community Council to reach a different conclusion, but the Board finds that the Community  
Council based its decision on relevant considerations supported by the evidence before the  
Board. As such, the Board finds it must defer to the Community Council’s choices in this  
matter.  
[164]  
Policy IM-15(b)(iii) required the Community Council to place specific controls  
on the proposed development to reduce conflict with adjacent or nearby land from traffic  
generation, access to and egress from the site, and parking. This is one of several factors  
that the Community Council had to consider under Policy IM-15.  
[165]  
The Board finds there are controls on the development to limit traffic impacts  
and mechanisms are available through the approved development agreement and HRM’s  
Subdivision By-law to require the developer to take further measures if necessary. These  
may include such things as traffic calming, signage, the creation of turning lanes and by  
other measures.  
[166]  
The control measure most desired by the Appellants, the elimination of the  
connection of Windgate Village and Capilano Country Estates by way of an extension of  
Elise Victoria Drive, was not one the Community Council decided to adopt. Nor was it  
required to do so for its decision to reasonably carry out the intent of the Municipal Planning  
Strategy.  
[167]  
Policy IM-15(b) does not direct the Community Council to make a specific  
decision or impose specific controls to mitigate the impacts of a proposed development.  
Policy IM-15 set out factors that the Community Council had to consider when it made its  
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decision but left the assessment and balancing of these factors to the Community Council’s  
judgment. In such cases, the Board must defer to the choices made by the elected officials  
who are the primary authority for planning in the municipality.  
[168]  
[169]  
The appeals are dismissed.  
An Order will issue accordingly.  
DATED at Halifax, Nova Scotia, this 7th day of June, 2022.  
______________________________  
Stephen T. McGrath  
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SCHEDULE “A” - REVIEW OF RELEVANT PLANNING POLICIES  
2014 Regional Municipal Planning Strategy  
Policy  
Staff Comments  
G-18 Where any completed development  
A complete application for an Open Space  
agreement application was received by HRM Development on the subject property was  
prior to Council’s first notification to adopt this received on March 24, 2014, prior to  
Regional Plan, the application shall be  
considered in accordance with the Regional  
Plan policies in effect at the time the  
application was received.  
Council’s first notification to adopt the 2014  
Regional Plan. Therefore, this application is  
being reviewed in accordance with the Open  
Space policies of the 2006 Regional Plan.  
2006 Regional Municipal Planning Strategy  
Policy  
Staff Comments  
S-15 HRM shall permit the development of Open Space Design residential communities, as  
outlined in this Plan, within the Rural Commuter and Rural Resource designations and within  
the Harbour designation outside of the Urban Service Area, but not within the portions of the  
Beaver Bank and Hammonds Plains communities as identified in the Subdivision By-law  
under Policy S-25 and within the Rural Area Designation under the Eastern Passage/Cow  
Bay Plan Area. HRM will consider permitting the maximum density of such developments to  
one unit per hectare of gross site area. In considering approval of such development  
agreements, HRM shall consider the following:  
On May 24, 2016, Regional Council approved  
amendments to the Regional Subdivision  
Bylaw for an extension of the Water Service  
Area to include the lands off Windgate Drive  
between Capilano Estates and Monarch-  
Rivendale Subdivisions, which includes the  
subject properties. Therefore, the proposed  
Open Space development is eligible for  
municipal water service and a  
(a) where the development is to be  
serviced by groundwater and as  
determined through a hydrogeological  
assessment conducted by a qualified  
professional, that there is an adequate  
supply of ground water to service the  
development and that the proposed  
development will not adversely affect  
groundwater supply in adjacent  
developments;  
hydrogeological assessment is not required.  
(b) that there is sufficient traffic capacity to  
service the development;  
A Traffic Impact Study (TIS) and  
amendments to the study were submitted in  
support of the development. The TIS as  
amended was deemed acceptable to  
Development Engineering and Traffic  
Services.  
A mix of residential uses, single unit  
(c) the types of land uses to be included in  
the development which may include a mix  
of residential, associated public or  
privately-owned community facilities, home-  
based offices, day cares, small-scale bed  
and breakfasts, forestry and agricultural  
uses;  
dwellings and seniors citizen housing in the  
form of townhouses and four-storey multiple  
unit buildings, associated facilities, and  
home-based offices are proposed. Rezoning  
a portion of the subject site to the MU-1  
(Mixed Use 1) Zone of the Beaver Bank,  
Hammonds Plains and Upper Sackville Land  
Document: 295781  
 
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Use By-law is proposed to enable seniors  
citizen housing pursuant to Policies P-8 and  
P-131 of the Beaver Bank Hammonds Plains  
and Upper Sackville Municipal Planning  
Strategy.  
Shared wastewater treatment plants (WWTP)  
are currently proposed for each  
(d) whether soil conditions and other  
relevant criteria to support on-site sewage  
disposal systems can be met;  
condominium. Alternative systems may be  
considered as on-site sewage disposal  
systems are administered by Nova Scotia  
Environment and Climate Change. Approval  
of on-site services is required under the  
proposed development agreement prior to  
the issuance of a development permit.  
(e) the lot frontages and yards required to  
minimize the extent of road development, to  
cluster building sites on the parcel and  
provide for appropriate fire safety  
separations;  
The subject properties are located between  
two established residential neighbourhoods:  
Monarch-Rivendale to the west and Capilano  
Estates to the east. While the policy aims to  
minimize road development, new public  
roads are recommended to improve  
connectivity between the two existing  
developments and to allow for looping and  
more efficient connections to existing water  
service infrastructure. Single unit dwellings  
are generally shown along proposed public  
roads. This form is compatible with the  
adjacent existing subdivisions. Seniors  
housing units in the form of townhouses and  
multiple unit dwellings are clustered along  
shared private driveways and along a  
proposed public cul-de-sac. Staff advise the  
proposed locations for the seniors units allow  
for appropriate separation and buffering from  
existing development. In addition, the location  
of townhouse units provides a transition from  
the low density single unit dwellings to the  
higher density multiple unit dwellings.  
N/A as per Policy S-16 (a).  
(f) that the building sites for the residential  
units, including all structures, driveways  
and private lawns, do not exceed  
approximately 20% of the lot area;  
N/A as per Policy S-16 (a).  
(g) approximately 80% of the lot is retained  
as a non-disturbance area (no alteration of  
grades, except for the placement of a well  
or on-site sewage disposal system in the  
non-disturbance area shall be permitted  
and provision shall be made for the  
selective cutting of vegetation to maintain  
the health of the forest);  
Document: 295781  
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The proposed development retains 60% of  
(h) that the development is designed to  
retain the non-disturbance areas and to  
maintain connectivity with any open space  
on adjacent parcels;  
the gross area as open space. Primary  
conservation areas including riparian buffers  
and wetlands are protected as open space.  
An expansion to the existing Monarch-  
Rivendale Park asset is proposed with a trail  
and new park to connect to Valerie Court and  
the Duck Lake Brook Greenway in the  
Capilano Estates subdivision.  
It is staff’s opinion that connectivity of open  
space is given priority over road connections.  
While proposed Road A runs across Duck  
Lake Brook, the proposed concept shows  
primary conservation areas protected as  
open space and proposed parks that allow for  
connections to existing park assets and  
protection of mature trees.  
(i) connectivity of open space is given  
priority over road connections if the  
development can be sited on the parcel  
without jeopardizing safety standards;  
Trails and natural networks shown on Map 3  
of the Regional Plan and Map 5 of the Green  
Network Plan are protected as open space  
on the proposed concept.  
(j) trails and natural networks, as generally  
shown on Map 3 or a future Open Space  
Functional Plan, are delineated on site and  
preserved;  
There are no natural corridors shown on Map  
4 which run through the subject site.  
Furthermore, there are no essential or  
important corridors, identified on Map 5 of the  
Green Network Plan, that run through the  
subject properties.  
(k) parks and natural corridors, as generally  
shown on Map 4 or a future Open Space  
Functional Plan, are delineated on site and  
preserved;  
Primary conservation features are generally  
protected as non-disturbance areas  
throughout the development. There is only  
one location where proposed public Road A  
crosses Duck Lake Brook. Staff advise that  
the proposed developed areas are  
strategically located to minimise the impact  
on the primary conservation areas. An  
archaeological impact assessment was  
submitted as part of the original application.  
Most of the activity observed through the  
archaeological assessment was considered  
to be of low significance. There were two  
locations on the site where the archaeological  
significance was unknown and further testing  
was recommended. The proposed  
(l) that the proposed roads and building  
sites do not significantly impact upon any  
primary conservation area, including  
riparian buffers, wetlands, 1 in 100 year  
floodplains, rock outcroppings, slopes in  
excess of 30%, agricultural soils and  
archaeological sites;  
developable areas attempt to avoid  
reconnaissance findings within the subject  
lands. However, the proposed development  
agreement requires that the Developer  
contact the Coordinator of Special Places of  
the Nova Scotia Department of Communities,  
Culture and Heritage prior to any disturbance  
Document: 295781  
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of the Lands and comply with the  
requirements set forth by the Province in this  
regard.  
Since 60% of the site is retained as open  
space and primary conservation features are  
maintained as non-disturbed open space, it is  
staff’s opinion that the proposed road network  
and building sites are designed to protect  
features that capture the rural character of  
the site. Furthermore, given the proposed  
development is located between two  
established neighbourhoods, staff advise that  
the site layout and design is compatible with  
the lot fabric and rural character of adjacent  
development.  
(m) the proposed road and building sites do  
not encroach upon or are designed to  
retain features such as any significant  
habitat, scenic vistas, historic buildings,  
pastoral landscapes, military installations,  
mature forest, stone walls, and other  
design features that capture elements of  
rural character;  
The proposed development would require  
that all public streets are built according to  
the most recent HRM specifications as set  
out in the Municipal Design Guidelines. Staff  
have reviewed the proposed road  
(n) that the roads are designed to  
appropriate standards as per Policy T-2;  
connections and advise that they generally  
follow the Municipal Design Guidelines.  
It is staff opinion that the proposed concept  
maximises views of open space elements.  
For example, this is achieved through  
establishing a trail along primary  
(o) views of the open space elements are  
maximized throughout the development;  
conservation features connecting to existing  
park assets in adjacent neighbourhoods.  
Proposed buildings are generally located  
based on the proposed road network to  
improve road and service connectivity and to  
protect primary conservation features.  
Individual buildings orientation will not be  
specified in the development agreement to  
allow for flexibility and opportunity to  
maximise the capture of solar energy.  
(p) opportunities to orient development to  
maximize the capture of solar energy;  
There are no extractive facilities within 800  
metres of the subject site.  
(q) the proposed residential dwellings are a  
minimum of 800 metres away from any  
permanent extractive facility;  
The subject properties were formerly used for  
forestry; however, no resource use has  
operated on the site for several years.  
(r) the proposed development will not  
significantly impact any natural resource  
use and that there is sufficient buffering  
between any existing resource use and the  
proposed development to mitigate future  
community concerns; and  
No other concerns have been identified at  
this time.  
(s) consideration be given to any other  
matter relating to the impact of the  
development upon surrounding uses or  
upon the general community, as contained  
in Policy IM-15.  
Document: 295781  
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S-16 Further to Policy S-15, within the Rural Commuter, Rural Resource and Agricultural  
Designations, HRM shall permit an increase in density for Open Space Design  
Developments up to 1 unit per 4000 square metres, or greater in centres as may be  
provided for in secondary planning strategies, where approximately 60% or more of the  
site is retained in single ownership of an individual, land trust, condominium corporation  
or the Municipality. Notwithstanding Policy E-5, the parkland dedication shall be relaxed  
to a minimum of 5% for this type of development. In considering approval of such  
development agreements, HRM shall consider the following:  
See Policy S-15 above.  
(a) the criteria specified in Policy S-15, with  
the exception of items (f) and (g); and  
(b) that the common open space cannot be  
used for any other purpose than for passive  
recreation, forestry, agriculture or  
conservation-related use except for a  
portion of which may be used as a village  
common for active recreation or the  
location of community facilities designed to  
service the development.  
Areas delineated on the concept plan as  
common open space are proposed for active  
and passive recreation uses for residents of  
the development, public parkland for the  
general community, as well as conservation  
uses. In addition, since the wastewater  
treatment plants are community facilities to  
service the development, they may be  
considered within the 60% open space.  
IM-15 In considering development agreements or amendments to land use by-laws, in  
addition to all other criteria as set out in various policies of this Plan, HRM shall consider  
the following:  
(i) The developer would be responsible for  
the construction of all public roads and  
infrastructure proposed to service the  
development.  
(a) that the proposal is not premature or  
inappropriate by reason of:  
(i) the financial capability of HRM to absorb  
any costs relating to the development;  
(ii) the adequacy of municipal wastewater  
facilities, stormwater systems or water  
distribution systems;  
(iii) the proximity of the proposed  
development to schools, recreation or other  
community facilities and the capability of  
these services to absorb any additional  
demands;  
(iv) the adequacy of road networks leading  
to or within the development;  
(v) the potential for damage to or for  
destruction of designated historic buildings  
and sites;  
(ii) Halifax Water has reviewed the proposal  
and advised there is capacity to service the  
development with central water. The  
proposed public street connections to  
abutting neighbourhoods would allow for  
looping of pipes which is supported to  
improve the overall distribution system.  
(iii) Halifax Regional Centre for Education has  
advised that every person between the ages  
of 5-21 has the right to attend public school  
and they will work to ensure all students are  
provided access to an education.  
(iv) The proposed road network is supported  
by Development Engineering. Impacts on the  
existing road network were also evaluated  
including the intersection of Windgate Drive  
and Beaver Bank Road. Traffic signals at this  
intersection are not warrants for reasons  
identified in the staff report.  
(v) There are no designated historic buildings  
or sites in the area.  
The proposed development agreement would  
specify the types of residential uses,  
maximum number of units permitted, and the  
(b) that controls are placed on the  
proposed development so as to reduce  
Document: 295781  
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locations where different types of uses are  
conflict with any adjacent or nearby land  
uses by reason of:  
(i) type of use;  
(ii) height, bulk and lot coverage of any  
proposed building;  
permitted. In addition, controls will be placed  
on the seniors housing units by reason of  
height and size to reduce conflict with  
adjacent land uses and to ensure these units  
are designed appropriately for occupancy by  
senior citizens. The proposed development  
agreement also specifies where access to  
and egress from the site is proposed.  
(iii) traffic generation, access to and egress  
from the site, and parking;  
(iv) open storage;  
(v) signs; and  
Through the Stage I Open Design process,  
suitable areas for development were  
identified. Primary conservation areas  
identified in Stage I are retained as non-  
disturbed open space.  
(c) that the proposed development is  
suitable in terms of the steepness of  
grades, soil and geological conditions,  
locations of watercourses, marshes or bogs  
and susceptibility to flooding.  
Beaver Bank, Hammonds Plains and Upper Sackville Municipal Planning Strategy  
Policy  
Staff Comments  
To enable senior citizen housing in the mix of  
residential uses for the Open Space Design  
development, staff recommend that a portion  
of the subject site be considered for rezoning  
to the MU-1 Zone. The permitted location of  
senior citizen housing is specified in the  
proposed development agreement to ensure  
there is appropriate separation from adjacent  
low density residential uses.  
P-8 Within the Mixed Use A and B  
Designations, it shall be the intention of  
Council to establish a Mixed Use 1 Zone  
which permits single and two unit dwellings,  
open space uses, existing mobile  
dwellings, boarding and rooming houses  
and bed and breakfast establishments, the  
limited use of residential properties for  
business purposes, small scale commercial  
and resource related activities and most  
institutional uses. Controls on open  
storage and parking will be established to  
address compatibility concerns with  
surrounding development. Forestry uses  
and larger scale agricultural operations,  
with the exception of intensive agriculture  
operations, shall be permitted subject to  
separation distance requirements designed  
to promote compatibility with surrounding  
land uses.  
P-137 In considering development agreements and amendments to the land use by law,  
in addition to all other criteria as set out in various policies of this Plan, Council shall have  
appropriate regard to the following matters:  
Staff advise that the proposed rezoning and  
development agreement are reasonably  
consistent with the intent of this plan and all  
other relevant policies and regulations.  
(a) that the proposal is in conformity with  
the intent of this Plan and with the  
requirements of all other municipal by-laws  
and regulations;  
See Policy IM-15 (a) under the 2006  
Regional Municipal Planning Strategy above.  
(b) that the proposal is not premature or  
inappropriate by reason of:  
Document: 295781  
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(i) the financial capability of the Municipality  
to absorb any costs relating to the  
development;  
(ii) the adequacy of central or on-site  
sewerage and water services;  
(iii) the adequacy or proximity of school,  
recreation or other community  
facilities;  
(iv) the adequacy of road networks leading  
or adjacent to or within the  
development; and  
(v) the potential for damage to or for  
destruction of designated historic  
buildings and sites.  
(c) that controls are placed on the proposed  
See Policy IM-15 (b) of the 2006 Regional  
development so as to reduce conflict with any Municipal Planning Strategy above.  
adjacent or nearby land uses by reason of: (i)  
type of use; (ii) height, bulk and lot coverage  
of any proposed building; (iii) traffic  
generation, access to and egress from the  
site, and parking; (iv) open storage; (v) signs;  
and (vi) any other relevant matter of planning  
concern.  
(d) that the proposed site is suitable in terms  
of the steepness of grades, soil and  
geological conditions, locations of  
watercourses, marshes or bogs and  
susceptibility to flooding.  
See Policy IM-15 (c) of the 2006 Regional  
Municipal Planning Strategy above.  
(e) Within any designation, where a holding  
zone has been established pursuant to  
“Infrastructure Charges - Policy P-81”,  
Subdivision Approval shall be subject to the  
provisions of the Subdivision By-law  
respecting the maximum number of lots  
created per year, except in accordance with  
the development agreement provisions of the  
MGA and the “Infrastructure Charges”  
Policies of this MPS. (RC-Jul 2/02; E-Aug  
17/02)  
N/A  
Document: 295781  


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