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?