DECISION  
2022 NSUARB 95  
M10373  
NOVA SCOTIA UTILITY AND REVIEW BOARD  
IN THE MATTER OF THE HALIFAX REGIONAL MUNICIPALITY CHARTER  
- and -  
IN THE MATTER OF AN APPEAL by JOHN TAWIL from a Decision of Halifax and West  
Community Council to refuse a rezoning application for properties located at 48 and 50  
Old Sambro Road, Halifax, Nova Scotia  
BEFORE:  
Richard J. Melanson, LL.B., Member  
APPELLANT:  
JOHN TAWIL  
Nancy G. Rubin, Q.C., Counsel  
RESPONDENT:  
INTERVENOR:  
HALIFAX REGIONAL MUNICIPALITY  
E. Roxanne MacLaurin, Counsel  
WILLIAMS LAKE CONSERVATION COMPANY  
Jamie Simpson, Counsel  
HEARING DATE:  
March 30-31, 2022  
FINAL SUBMISSIONS: April 14, 2021  
DECISION DATE:  
DECISION:  
June 13, 2022  
The appeal is allowed.  
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Table of Contents  
I
INTRODUCTION...................................................................................................... 3  
II ISSUE....................................................................................................................... 4  
III BACKGROUND........................................................................................................ 5  
Board Jurisdiction........................................................................................................ 5  
Witnesses.................................................................................................................. 10  
The Proposal ............................................................................................................. 11  
The MPS and Staff Review........................................................................................ 12  
Site Visit..................................................................................................................... 14  
IV ANALYSIS AND FINDINGS ................................................................................... 16  
Accuracy of Watercourse Buffers .............................................................................. 17  
Environmental, Wildlife, and Green Space Concerns................................................ 20  
Compatibility.............................................................................................................. 30  
Traffic......................................................................................................................... 34  
V CONCLUSION........................................................................................................ 38  
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I
INTRODUCTION  
John Tawil is appealing a decision of the Halifax and West Community  
[1]  
Council refusing an application to rezone 48-50 Old Sambro Road, Halifax Regional  
Municipality (Property) from R-2P (General Residential) to R-3 (Low Rise Apartment).  
The Property is currently vacant. Mr. Tawil intends to build a three-story, 13-unit  
apartment building if the rezoning is approved. If not, Mr. Tawil can apply to build, as-of-  
right, two 4-unit buildings on the Property.  
[2]  
Rezoning of the Property would take place through an amendment to zoning  
map ZM-12 in the Halifax Mainland Land Use Bylaw (LUB). Despite a positive  
recommendation from HRM planning staff, Community Council denied the requested  
rezoning application because of concerns related to the accuracy of watercourse setback  
requirements and environmental concerns.  
[3]  
The appellant says this decision does not reasonably carry out the intent of  
the Halifax Municipal Planning Strategy (MPS), which includes the Mainland South  
Secondary Planning Strategy (Secondary Strategy). HRM took no position on the appeal  
in the sense that it did not advocate for any particular result. It provided helpful  
submissions on various aspects of the MPS and the rezoning process. The Williams Lake  
Conservation Company (WLCC) intervened in the proceeding.  
[4]  
WLCC said the Community Council’s decision should be upheld because  
the proposed rezoning was not consistent with the MPS due to the potential impacts of  
Mr. Tawil’s proposal on Catamaran Pond, associated wetlands and a brook, which are all  
near the Property. The WLCC also raised issues about compatibility with the  
neighborhood along with traffic concerns. Other concerns raised by public speakers and  
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letters of comment filed with the Board were the impact of the proposed development on  
bird and wildlife habitat and the potential loss of a corridor to Long Lake Provincial Park.  
[5]  
The issue of the adequacy of the proposed watercourse setbacks was  
addressed to the Board’s satisfaction, on a factual basis, by the appellant. Traffic  
concerns were reasonably addressed, in the Appeal Record, by professionals in the field.  
The building is compatible with neighborhood density, including a larger apartment  
complex immediately next door.  
[6]  
Community Council reasons related to environmental concerns, or the  
positions taken by WLCC, and public comments, on this issue, are disconnected from the  
limited impact, if any, the appellant’s requested rezoning would have on the nearby  
watercourses. No evidence was presented to the Board in this appeal to reasonably  
conclude the proposed rezoning would result in impacts touching upon environmental or  
wildlife habitat concerns that were materially different than they would be for current as-  
of-right development under the LUB.  
[7]  
The Board finds Community Council’s decision does not reasonably carry  
out the intent of HRM’s MPS. The appeal is allowed, and Community Council is ordered  
to approve the requested rezoning.  
II  
ISSUE  
In this case, the Board must determine whether Mr. Tawil has shown, on a  
[8]  
balance of probabilities, that Community Council’s decision refusing to rezone the  
Property did not reasonably carry out the intent of the MPS.  
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III  
BACKGROUND  
Board Jurisdiction  
The Board notes that the Halifax Regional Municipality Charter, S.N.S.  
[9]  
2008, c.39 (HRM Charter) establishes that the Municipality has the primary authority for  
planning (s. 208). Under s. 30 of the HRM Charter, a community council stands in the  
place of HRM Council when considering rezoning applications, and Part VIII - Planning  
and Development - of the Charter applies to decisions of a community council.  
[10]  
An applicant for the approval of a rezoning application may appeal the  
refusal by a council to the Board (s. 262(1)). The grounds of an appeal of a council’s  
decision to refuse a rezoning application are set out in s. 265(1)(a) of the HRM Charter:  
Restrictions on appeals  
265  
(1)  
An aggrieved person or an applicant may only appeal  
(a) an amendment or refusal to amend a land-use by-law, on  
the grounds that the decision of the Council does not reasonably carry out  
the intent of the municipal planning strategy; [Emphasis added]  
[11]  
The Board’s remedial powers, and the restrictions on the exercise of these  
powers, are prescribed by s. 267 of the HRM Charter which provides:  
Powers of Board on appeal  
267  
(1)  
The Board may  
(a)  
(b)  
confirm the decision appealed from;  
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  
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reasonably carry out the intent of the municipal planning strategy or conflicts with the  
provisions of the land-use by-law or the subdivision by-law. [Emphasis added]  
[12]  
Thus, the Board must not interfere with the decision of council unless the  
Board determines that the decision does not reasonably carry out the intent of the MPS.  
[13] In appeals under the HRM Charter, the burden of proof is on the appellant.  
To be successful, the appellant must establish, on the balance of probabilities, that the  
decision of council does not reasonably carry out the intent of the MPS. If the appellant  
fails, then the Board must defer to the decision of council.  
[14]  
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  
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  
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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:  
[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,  
[Municipal Government Act] 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  
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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. …  
[15]  
Clearly, the Board is not permitted to substitute its own decision for that of  
council but must review the decision of council to determine if the decision of council can  
be said to reasonably carry out the intent of the MPS. In determining the intent of the  
MPS, the Board considers it should apply the principles of statutory interpretation which  
have been 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.  
[16]  
A part of the Intervenor’s submission dealt with alleged defects in the  
process used by HRM planning staff, especially as it relates to an online survey. As well,  
there were submissions about alleged defects in the HRM planning staff report and  
presentation to Community Council. The Board notes that it does not review Community  
Council’s decisions for procedural errors. As well, this is a hearing de novo and the Board  
will base its decision on the materials in the Appeal Record and the evidence presented  
during the hearing.  
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[17]  
The Intervenor made reference to documents which have not yet been  
incorporated into the MPS, such as the Spryfield Vision and the Green Network Plan.  
The Board has consistently held it does not consider such documents, which do not form  
part of the MPS, when interpreting its provisions.  
[18]  
The Intervenor also submitted that because the Property was currently  
zoned R-2P, this had to be consistent with the MPS. Therefore, as that would still be the  
case if the rezoning application was rejected, Community Council’s decision not to rezone  
had to be reasonably consistent with the MPS. Jennifer Chapman, who was the HRM  
planner leading the Team tasked with processing the application, did not agree with this  
proposition when she testified before the Board. She said any denial had to be based on  
MPS policies addressing rezoning. The Board agrees with this assessment.  
[19]  
Interestingly, HRM raised a similar argument in Re F.H. Construction  
Limited, 2017 NSUARB 153. The Board disagreed with this position. At paras [79]-[88],  
it stated:  
[79]  
In response, the Appellant argues that the position advanced by HRM would  
completely nullify an applicant’s right to appeal the refusal of a rezoning decision.  
[80]  
Mr. Latimer pointed to Mr. Zwicker’s evidence that the example of compelling  
or directive language cited by Ms. MacIntyre was very fact specific. The Board notes that  
while Ms. MacIntyre testified there were other examples, none were entered into evidence.  
Ms. MacIntyre herself indicated they would not be common, and the Board infers this would  
be a rare situation.  
[81]  
The Appellant says HRM’s position is inconsistent with the duty to provide  
reasons pursuant to s. 225(5) of the HRM Charter.  
[82]  
Mr. Latimer argues, while conceding the Board’s appellate powers are limited,  
that the Board must consider the reasons provided by Community Council, and these  
reasons, and Community Council’s decision, must be grounded in planning principles  
under the MPS. If they are not, the Board has jurisdiction to grant the appeal.  
[83]  
In response to Board questions concerning the implications of HRM’s position  
in rezoning refusal appeals, Ms. MacLaurin agreed that the task of the Board would be to  
determine if policies compelling rezoning existed where all other policy criteria had been  
met by the applicant. If not, the appeal would be dismissed.  
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[84]  
While accepting HRM’s argument would simplify the Board’s task in these  
types of appeals, the Board finds it is not supported by a purposive, pragmatic and  
functional approach to statutory interpretation.  
[85]  
Firstly, the Board agrees with Mr. Latimer that Community Council’s duty to  
give reasons, when refusing a rezoning application, must be given meaning and infers that  
something more than an indication that the current zoning complies with the MPS is  
required from Community Council.  
[86]  
Secondly, HRM’s approach would be inconsistent with the Court of Appeal’s  
directions in Archibald, that the Board undertake a thorough factual analysis. The only fact  
which the Board would have to ascertain, pursuant to HRM’s approach, would be whether  
or not the MPS contained mandatory provisions requiring Council to rezone, if the  
application were compliant with the MPS.  
[87]  
Thirdly, as exemplified in this case, under HRM’s approach, the Board would  
not have to address Community Council’s conclusions and reasons at all. Regardless of  
Community Council’s reasons for rejecting the application, the appeal would fail if no  
mandatory language was found. This would be at odds with the interpretation of the  
appellate scheme set out in Archibald, which undertook a pragmatic and purposive  
analysis, in relation to the statutory appellate provisions related to the approval or rejection  
of development agreements.  
[88]  
While it is true that Archibald involved a development agreement, and not a  
rezoning application, can it be said that rezoning applications are so different from  
development agreement applications, such that the Archibald principles are inapplicable?  
The short answer is no.  
[20]  
The Board has not changed its mind. The refusal to approve a rezoning  
application must be based on MPS policy grounds related to the rezoning and not simply  
on the basis that the status quo is reasonably consistent with the MPS.  
Witnesses  
[21]  
The Board held a virtual hearing on the GoToWebinar platform on March  
30 and 31, 2022. Counsel for the appellant called Mr. Tawil, Cesar Saleh, and Jennifer  
Chapman as witnesses.  
[22]  
Mr. Tawil, in addition to being the owner of the Property, is a mechanical  
engineer and the current construction manager of the family construction business. Mr.  
Saleh is a professional civil engineer. He is the Vice-President of Planning and Design  
with WM Fares Architects. He was responsible for preparing and marshalling the subject  
rezoning application through the HRM review process. Ms. Chapman is a licensed  
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professional planner employed by HRM. She was the senior and lead planner of the team  
assigned to review this application. She prepared a staff report to Community Council  
dated November 1, 2021, (Staff Report) recommending approval of the rezoning  
application.  
[23]  
WLCC called three lay witnesses. Murray Coolican is the President of  
WLCC and has lived on Williams Lake for 11 or 12 years. He has extensive experience  
in the public, private, and not-for-profit sectors, including having been the Deputy Minister  
of the provincial Departments of Energy and Business. Deborah Hall is a current director  
of WLCC. Dr. Melanie Dobson is the treasurer of WLCC. She is a retired Dalhousie  
University professor in molecular and cellular biology. She has been taking water  
samples of Williams Lake for 20 years.  
[24]  
The WLCC called Dr. Martin Willison as an expert witness. He submitted  
an expert’s report dated February 11, 2022. He was qualified to provide opinion evidence  
with respect to wetlands and ecologically important natural features.  
The Proposal  
[25]  
The Property consists of two vacant lots which are both owned by Mr. Tawil.  
It sits between a property with a three-story apartment building which is zoned R-4  
(Multiple Dwelling) and vacant lands owned by the Province which is zoned R-2P  
(General Residential). The Property is also in the R-2P zone as set out in Map ZM-12 of  
the LUB.  
[26]  
The Property is near the intersection of the Old Sambro Road and Dunbrack  
Street and directly across from Long Lake Provincial Park. This portion of Dunbrack  
Street was formerly known as Northwest Arm Drive. The former name appears in some  
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of the drawings in the Appeal Record. The site of the proposed development is  
graphically depicted below:  
[27]  
Mr. Tawil seeks to amend Map ZM-12 of the LUB so that the Property falls  
within the R-3 (Low-Rise Apartment) zone. If the application is approved, the appellant  
plans to build a three-story, 13-unit apartment building on the Property. In the R-2P zone,  
Mr. Tawil can currently, as of right, apply to build two 4-unit buildings on the Property.  
Details of any construction would be finalized at the permitting stage, where all LUB  
provisions must be met before a building permit is issued.  
The MPS and Staff Review  
[28]  
Based on their analysis, HRM planning staff recommended to Community  
Council that it consider and give first reading to Mr. Tawil’s proposed rezoning application,  
schedule a public hearing and, ultimately, approve the proposed rezoning. This included  
a policy review attached to Ms. Chapman’s staff report, which is reproduced for ease of  
reference:  
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