Tawil v. Halifax and West Community Council

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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Site Visit

The Board conducted a site visit on April 28, 2022, at approximately 1:30

[29]

PM. Ms. MacLaurin and Mr. Simpson were present, along with Sara Nicholson of Stewart

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McKelvey, who attended on behalf of Ms. Rubin. All participants on the site visit went to

the Property in their own vehicles.

[30]

The Board proceeded along Herring Cove Road exiting onto Old Sambro

Road. The Board then drove along Old Sambro Road, until just beyond its intersection

with Dunbrack Street. The Board parked in a small parking area adjacent to Long Lake

Provincial Park. This parking area is on the opposite side of Old Sambro Road from the

Property, directly across from it.

[31]

The Board crossed Old Sambro Road at a crosswalk at the Dunbrack Street

intersection and proceeded to the Property. The Board was able to observe the steady

traffic at this intersection and along Old Sambro Road at this location. The Board was

also able to observe the slope and the bend in Old Sambro Road from both the north and

south. This curve and slope in the road are shown in some of the pictures and drawings

in the Appeal Record.

[32]

The Board joined Mr. Simpson and Ms. Nicholson in the Property’s

driveway. They were all joined by Ms. MacLaurin a short time later. The Board proceeded

to walk the roughly triangular Property, starting along the southern boundary of the

abutting apartment property. The Board reached the vicinity of Catamaran Pond, which

was clearly visible and is beyond the Property’s boundary.

[33]

The Board then walked along the brook, which is on provincial lands outside

the Property’s northern boundary, until reaching Old Sambro Road. After turning south

and reaching a survey marker, the Board followed the Property’s edge along Old Sambro

Road back to the driveway. The participants then left the Property in their own vehicles.

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[34]

The Board was able to observe the rugged, stony, steep terrain of the

Property, as it slopes down from a flatter area near Old Sambro Road, and the abutting

apartment building lands, towards the brook and Catamaran Pond. The Board observed

the relatively small size of the Property. The Board was able to see the relative positioning

of the Property in relation to Catamaran Pond and the brook. The Board also noted debris

strewn on the Property, as well as in the brook, including a shopping cart.

IV

ANALYSIS AND FINDINGS

[35]

The Board is satisfied that the rezoning proposal meets all of the criteria set

out in the MPS which were not the focus of discussion or evidence before the Board in

this proceeding. These criteria, including the adequacy of municipal services and

infrastructure, were addressed to the Board’s satisfaction in the Staff Report. The Board

will only address those matters related to MPS considerations raised by Community

Council, the WLCC, and through public participation before the Board in the form of letters

of comment and virtual presentations.

[36]

The Board would further note that while there was considerable public

opposition to the proposed rezoning, that is not, in and of itself, a reason to deny an

application brought under enabling provisions of the MPS. Public consultation is required

under the MPS and is encouraged by the Board. It can be very beneficial to obtain views

of citizens on matters that concern their community. That said, only opposition to a

proposal that is grounded in policy considerations supported by the MPS can be afforded

weight.

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[37]

The letters of comment and public presentations in this matter were

generally consistent with what had been submitted to Community Council by those

opposing the rezoning. They were also generally supportive of all the positions taken by

the WLCC.

Accuracy of Watercourse Buffers

[38]

Section 14QA(1)(a) and (b) of the LUB address watercourse setbacks and

buffers. No development permit can be issued for any structure within 20 metres of the

ordinary high-water mark of any watercourse. The buffer is increased by one metre for

each additional two percent of slope if the slope within the 20-metre buffer is greater than

20%. Pursuant to s. 14QA(6), a development officer must be satisfied that any proposed

structure meets the foregoing requirements. If the applicant cannot provide the necessary

contour drawing, survey plan, or other professional opinions required by the development

officer, construction cannot proceed.

[39]

As part of the review process, HRM planning staff requested confirmation

that the proposed development for which the rezoning was requested could meet this

LUB requirement. Ms. Chapman explained that, while a survey plan would ordinarily not

be required until the permitting stage, planning staff were interested in knowing if certain

aspects of the proposed development could meet the new zoning requirements. This is

presumably for efficiency and use of resources issues for both the applicant and HRM. It

would make little sense to proceed with a rezoning application for a planned development

that was doomed to failure at the permitting stage.

[40]

An architect prepared a drawing, which appears at p. 164 of the Appeal

Record, basing the rendering of the slope of the land on LiDAR data. This is topographical

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contour data compiled by the government and available online through HRM. The Board

is familiar with this data source, which is used extensively by the Halifax Regional Water

Commission when there is a dispute as to whether water flows into its stormwater system

from any particular property.

[41]

The drawing, with accompanying explanatory notes, prepared at the

direction of Mr. Saleh, showed that the rear property boundary line was 29 metres from

the high-water mark of Catamaran Pond. It did not show the brook on the provincial lands.

Public input, especially from WLCC, challenged the accuracy of the LiDAR data and the

sufficiency of the drawing. Ms. Chapman was satisfied the drawing was a sufficient

indication of compliance with the LUB watercourse setback requirements. Community

Council ultimately indicated the “lack of accuracy regarding the watercourse set back

requirements due to the slope of the site” raised a sufficient concern to reject the

application.

[42]

The Board generally agrees with Ms. Rubin’s submission that a rejection

based on concerns about the accuracy of the tendered drawing was premature. In a

rezoning application, compliance with other applicable HRM bylaws, by the rezoning

itself, is a specific requirement by virtue of Policy 4.1 in Part XVI of the MPS. Compliance

of a development proposal with the LUB, following approval of the rezoning proposal, is

not mentioned as a policy consideration in the MPS. The Board is satisfied, as suggested

by Ms. MacLaurin, that Policy 4.1 does provide sufficient policy direction to allow HRM

Planning Staff to investigate, and Community Council to consider, in a general sense,

whether a proposed development can meet the LUB requirements

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[43]

A successful rezoning does not authorize the applicant’s proposal, which is

conceptual in nature, and provided for context. If the final design and engineering plans

do not meet the applicable LUB requirements, no building permit will be issued. This

decision falls within the purview of a development officer. This is true if the property is

rezoned or if Mr. Tawil proceeds with as-of-right development.

[44]

Mr. Coolican, in email correspondence to Ms. Rubin, when the WLCC

requested cost sharing for a survey to determine the issue, indicated that obtaining a

survey at that stage was premature. He admitted the same on cross-examination. In any

event, Mr. Tawil ultimately declined to share in the cost of a survey. He provided access

to the WLCC to do so, which was declined. Mr. Coolican explained during cross-

examination there were other more significant issues to pursue.

[45]

Mr. Tawil eventually obtained a survey by a professional engineer dated

February 18, 2022. He explained his instructions to the qualified surveyor, which were to

determine the watercourse buffer required by the LUB. It is shown as a blue line on the

survey plan. It shows, to the Board’s satisfaction, that a buffer of 24 metres is required

to take account of the slope within the buffer towards Catamaran Pond. No additional

buffering, beyond 20 metres, is required in relation to the brook. The Property does not

extend into either of these buffers.

[46]

This is further consistent with the original LiDAR-based drawing provided

through Mr. Saleh, which appears in the Appeal Record. In fact, this original drawing

suggested a buffer of 25 metres around Catamaran Pond. While WLCC’s submissions

supported Community Council’s decision on this point, the ability to meet the LUB

watercourse requirements was not seriously challenged in the evidence presented by

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WLCC. Dr. Williston said he could not tell if the buffer requirements were met but has no

expertise to give an opinion on the issue.

[47]

The Board is satisfied that the survey results show that the Property is not

located within the watercourse buffer required by the LUB. Therefore, uncertainty

surrounding this issue cannot form a basis for denying the proposed amendment, as from

the Board’s perspective, on a factual basis, on a balance of probabilities, there is none.

Environmental, Wildlife, and Green Space Concerns

[48]

The second reason Community Council refused the rezoning application

was due to “the environmental implications regarding health of the watersheds”. The Staff

Report to Community Council indicated “no environmental implications were identified”.

While Ms. Chapman and her colleagues assessed the environmental concerns raised by

public input, no MPS environmental policies were identified in the Staff Report. Given

this, perhaps not surprisingly, Community Council did not refer to any MPS policies.

Community Council reasons did not address what environmental implications to the

watershed would arise if the rezoning application was granted.

[49]

Community Council had received considerable information from the public,

and the WLCC, about their concerns respecting the Williams Lake Watershed, which

includes Catamaran Pond and the nearby brook. There was technical and scientific

information from Dr. Dobson outlining her monitoring of the water levels and water quality

in the Williams Lake Watershed. She has been doing this work on a volunteer basis for

some 20 years. These reports outlined deteriorating water quality and decreasing water

levels in the Williams Lake watershed. Presumably, Community Council accepted that

this information, along with information on differences between the R-2P and R-3 zones,

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and the potential impacts of construction, established a valid reason for the concerns

expressed in its decision.

[50]

The WLCC did not seek to qualify Dr. Dobson as an expert. The Board

allowed Dr. Dobson to testify about the reports she had filed with Community Council.

These reports were in the Appeal Record as a matter of law, and it was helpful to the

Board, pursuant to s.19 of the Utility and Review Board Act, to have Dr. Dobson available

to comment on them and be subject to cross-examination.

[51]

While not qualified as an expert in this proceeding, Dr. Dobson is a highly

educated person who spoke in a manner which clearly demonstrated an analytical

scientific mind. She said that Catamaran Pond acts as a buffer for the Williams Lake

watershed. That said, she was careful not to overstate her views. She indicated her data

was observational and she could not prove a cause-and-effect relationship between more

intensive development surrounding Williams Lake and the observations she made about

water quality and water levels. There was a potential correlation as the time frame of her

observations coincided with more intense development. There was also some discussion

about the number of hot summers in the last few years and the potential impact on water

levels.

[52]

Dr. Dobson conceded there was a lack of quantifiable data in evidence

about waterflow at each point of the watershed and flowing into Catamaran Pond. She

also indicated water levels have dropped in concert with the annual rain levels. There

was also no quantifiable data to show the impacts, if any, runoff from developments

around Williams Lake have had on water quality.

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[53]

Dr. Dobson answered questions form Ms. Rubin about the HRM

Environmental and Sustainability Standing Committee report (ESSC Report). The ESSC

Report considered Dr. Dobson’s data and concluded that development in the area had

not had a significant impact on water levels. It concluded that the primary reason for the

lower water levels may be leakage caused by the deteriorating condition of a dam. As

well, the ESSC Report indicated it was unclear if water level changes had impacted water

quality.

[54]

In the end, Dr. Dobson was unable to establish that development in general,

and, more importantly in this appeal, the proposed development which could flow from a

rezoning approval in particular, will impact the water level or the water quality of the

Williams Lake watershed.

[55]

While Dr. Willison is not an expert in planning matters, his expert’s report

dated February 11, 2022, raised a number of MPS environmental policies which were not

discussed in the Staff Report to Community Council. He raised the City-Wide MPS Policy

8.5. as well as Policies 7 to 7.3 of the Secondary Strategy. These are reproduced for

ease of reference:

8.5

The City shall establish standards, insofar as it has the power, for maintaining lake

systems and their watersheds in a healthy state. These standards should address

the infilling of lakes or their tributaries, the preservation of natural resources which

are visually or ecologically complementary to those lakes and their tributaries, the

control of discharges into lakes or tributaries resulting from public or private

developments which would cause long-term degradation of the water quality, and

the prevention of any other environmentally damaging effects.

[Exhibit T-3, p. 42]

7.

ENVIRONMENT

Objective: Identify and protect environmentally sensitive and ecologically valuable

natural features.

7.1

Environmental sensitivity shall be considered as of the degree of

susceptibility of natural areas to deleterious effects of urban development.

Areas of high sensitivity are identified on the Environmental Sensitivity Maps.

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These maps shall be used as general resource documents in evaluating zone

changes and contract development applications.

7.1.1

7.1.2

Pursuant to Policy 7.1 the following features are used to identify such areas:

(a)

(b)

(c)

(d)

tree cover - 40 percent and greater in density;

exposed bedrock;

wetlands and streams;

slopes - 16 percent and greater.

Lands within 100 feet of the water's edge of any water body shall be

considered to be environmentally sensitive and the Land Use By-law shall

require a higher standard for new single-family lots adjacent to watercourses.

7.2

7.3

The Environmental Sensitivity Map may be used in assessing the effects of

capital work to be undertaken by the City.

Where development proposals are being considered through rezoning or

development agreement, the City shall protect environmentally sensitive

areas.

[Exhibit T-3, p. 188]

[56]

Like Dr. Dobson, Dr. Willison said Catamaran Pond acted as a buffer for the

Williams Lake watershed. He said that because the water leaving Catamaran Pond was

silt-free, while the water entering the brook into Catamaran Pond was contaminated with

silt, it was “…reasonable to presume that the wetland ecosystem associated with

Catamaran Pond…” was responsible for the water quality improvement.

[57]

Dr. Willison also summarized the ecosystem benefits of wetlands, including

mitigation of stormwater flows, protecting water quality, providing vegetation buffers to

stabilize stream banks and slopes, and providing nutrients for the core area. He also

stated that wetlands are unstable and unsuitable for building.

[58]

The Board summarizes the other key points of his February 11, 2022, report

as follows:

 The proposed building will occupy much of the Property and there will be “virtually

no permeable surface” between the hard surfaces and the provincial lands where

the brook flows;

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 It is not clear how construction of the proposed building could be done without

encroaching on the watercourse buffer; it would be difficult to meet the objectives

for on-site stormwater management;

 Catamaran Pond is identified as an environmentally sensitive significant natural

wetland and stream in the Secondary Strategy;

 The proposal cannot meet the 100-foot buffer provided in Policy 7.1.2 and fails to

protect this environmentally sensitive area pursuant to Policy 7.3;

 Building an apartment building with a large footprint, infilling, with the paved areas

and lack of vegetation is not consistent with protecting and enhancing

environmentally sensitive areas such as Catamaran Pond and the brook; and

 Preserving the R-2 zone with buildings with a smaller footprint would be more

consistent with the protection of Catamaran Pond and the brook.

[59]

City-Wide Policy 8.4 of the MPS provides general context and requires HRM

to “…identify areas of natural significance and natural areas which are environmentally

sensitive”. HRM is tasked with protecting these areas “…through such means as zoning,

development standards, and public education”. Mapping has been done to identify “highly

sensitive areas”.

[60]

City-Wide Policy 8.5 requires HRM to establish “standards” to accomplish

the goal of environmental protection of lakes and watersheds. This wording implies

formal creation and implementation of the criteria which will accomplish the goal. The

Board notes the rezoning does not involve infilling of any watershed. The Board agrees

with Ms. Rubin and Ms. MacLaurin that this policy has been implemented through the

watercourse buffer set out in s. 14QA of the LUB, along with all the various standards

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related to stormwater management, grade alterations, and other mandatory aspects of

the permitting process.

[61]

Regardless of whether it is relatively easy or very difficult to meet these

standards, they must be met, or no construction can proceed. Therefore, rezoning from

one form of multi-unit residential use to another similar one, in and of itself, does not raise

any inconsistencies with City-Wide Policy 8.5.

[62]

Secondary Strategy Policy 7.1 establishes Environmental Sensitivity Maps

for high sensitivity areas. It became apparent during the hearing that the Property itself

was not identified on the Environmental Sensitivity Map. That said, Catamaran Pond is

within the boundary of the map. Policy 7.1.2 requires a higher standard for new single-

family lots within 100 feet of a water body. The proposal does not involve a single-family

dwelling.

[63]

The question remains whether there is a distinction between “areas of high

sensitivity” and areas which are “environmentally sensitive”. Clearly, Secondary Strategy

Policy indicates lands within 100 feet of a watercourse are considered environmentally

sensitive whether or not they are identified on the Environmental Sensitivity Map. The

Board agrees with Ms. MacLaurin’s submission that a policy hierarchy is established by

reading the MPS as a whole. Taking a pragmatic and purposive approach to the

interpretation issue, when reading the environmental policies in the MPS as a whole,

protecting environmentally sensitive areas such as wetlands and streams goes beyond

identifying whether the Property which is the subject of a rezoning application is identified

on the Environmental Sensitivity Map. That said, the highest priority protection is

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provided to areas of high sensitivity through the specific reference in Policy 7.1.2, which

is not applicable in this case.

[64]

Policy 7.3 of the Secondary Strategy is more general in nature than the

specific requirements in Policy 7.1.2. The appellant submits the two provisions can be

read in harmony in that they both express a general intent to protect the environment,

while requiring more stringent standards for new single-family homes. This is a

reasonable interpretation of the interplay between the two provisions. Community Council

can still consider whether the rezoning will impact an environmentally sensitive area

outside the single-family home concept.

[65]

Section 228 of the HRM Charter indicates that the purpose of the MPS is

generally to provide policy statements to guide future development. A policy intent

expressed in the MPS is generally implemented through bylaws or other methods of

controlling development. These include the LUB, and other standards established by the

municipality that govern various aspects of construction. The appellant pointed to the

watercourse setbacks in s. 14QA of the LUB, and other standards provided by the Lot

Grading Bylaw, the Blasting Bylaw, the Tree Bylaw, and the Stormwater Management

Standards.

[66]

The difficulty the Board has with Dr. Willison’s analysis, and the water

sampling done by Dr. Dobson, and Community Council’s decision, is that they do not

show how the rezoning of this particular property will have any environmental impacts

that are materially different and more potentially negative than development which can

occur as-of-right under the current zoning. In the context of rezoning, as opposed to

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approval of a specific project by a development officer, in the Board’s view, this is really

what the general aspect of Policy 7.3 is meant to address.

[67]

Dr. Willison’s report suggests the development will be more intense, with a

larger impermeable footprint, under the R-3 zone, from an environmental perspective,

than what is allowed under the R-2P zone. He acknowledged this was to some extent

based on older plans in the Appeal Record. The WLCC argued that the extent of lot

coverage was considerably greater under the R-3 zone than the R-2P zone. It submitted

Community Council had discretion to decide the extent to which it was comfortable with

more intense development when considering environmental concerns. The WLCC

submitted that Community Council had ample evidence upon which to base its decision,

including the extensive documentation provided by the WLCC. The WLCC submitted the

Board should defer to this discretion. While conceptually the Board agrees there may be

some element of discretion, the exercise of that discretion must still be grounded in fact

and opinions related to those facts.

[68]

Lot coverage relates to the footprint of the building itself. Clearly the R-2P

zone restricts this aspect to 35 percent (although it must be kept in mind the property

consists of two lots, which would probably have to be reconfigured, in an as-of-right

development, to meet the parking design criteria), while the R-3 zone has no specific lot

coverage restriction. The building’s footprint is governed by angle controls, which would

allow for greater building lot coverage. That does not end the analysis.

[69]

A major concern raised by the WLCC relates to impermeable surfaces.

Because of the formulas used to establish setback requirements in the R-3 zone, Mr.

Saleh said that the side yard setbacks would be between 10 to 20 feet in the R-3 zone,

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while they were established at 6 feet in the R-2P zone. There are also open space

requirements, including landscaping, under the R-3 zone which do not exist in the R-2P

zone. The landscaping, while perhaps better than pavement, would still involve ground

disturbance, as pointed out by Dr. Williston. That said, as the two four-unit buildings

allowed on the Property by the R-2P zoning can be three storeys high, Mr. Saleh said the

built form combined with the impermeable areas were roughly the same in the two zones.

[70]

In the Board’s view, the environmental controls in place for R-2P zoning are

the same as the R-3 zone with respect to, for example, runoff, construction disturbance

issues, stormwater management, tree cutting, clearance, and watercourse setbacks. Any

applicable provincial or federal legislation would be the same.

[71]

The Board realizes that both the proposed R-3 development and the

potential as-of-right development are conceptual drawings, and the proposed apartment

design is at a more advanced stage. That said, the setbacks created by angle controls,

the requirements for green space, and other design features to address planning staff

concerns, such as the positioning of the driveway, could limit the proposed apartment

development’s impermeable footprint to a similar degree than two four-unit buildings

under the R-2P zone.

[72]

In this context, runoff towards the brook and Catamaran Pond, which was

a major focus of discussion, should not be materially different under both zones. In any

event, the stormwater management criteria would apply to both forms of development.

There was also a suggestion by Dr. Williston that blasting might be required for

underground parking. Mr. Saleh testified his company had never blasted in all the

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construction they had undertaken. He said a blasting permit was difficult to obtain and,

in any event, all the requirements of the applicable bylaw would have to be met.

[73]

As discussed in Armco Capital Inc. (Re), 2021 NSUARB 147, in overturning

Community Council’s decision, where somewhat general environmental concerns were

raised, any development must follow all applicable environmental legislation. All

applicable municipal standards and Bylaws, including the LUB must be followed.

Environmental concerns should not be considered in the abstract but focused on the

particular rezoning. The Board is satisfied nothing in the materials before Community

Council, or in the evidence before it, establishes that the foregoing relevant legislation,

bylaws and standards will be inadequate to address concerns between environmental

impacts that might differ, if at all, between the R-2P zone and the R-3 zone.

[74]

Neither this Board, nor Community Council, are experts in environmental

matters. That said, the Board’s fact-finding role and testing of the evidence before it is

important. The Board had the benefit of a more detailed presentation of the environmental

issues than did Community Council. The technical materials submitted by the WLCC

and, in particular Dr. Dobson, were subject to cross-examination.

[75]

In this case, it would appear any new environmental impacts created by the

rezoning of the Property are speculative at best. To the extent they are based on a

perceived inability to meet the relevant standards and bylaws, they are not relevant to the

analysis, as the rezoning would have no environmental impact where a proposed

development cannot be built.

[76]

The Board will briefly address the issue of preserving habitat for wildlife or

preserving green space for a potential corridor link with Long Lake Provincial Park. The

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only way this could be accomplished is if the Property were not developed at all. Indeed,

this is the preferred solution of the WLCC.

[77]

The fact remains that the Property can be developed under the current

zone. The protection of wildlife habitat and creation of green zones, or wildlife corridors,

is not currently a policy consideration for the Property under the MPS.

[78]

In the final analysis, this is not a case involving deferral to Community

Council based on discretionary choices and value judgments. This is a case where the

evidence does not support the position that rezoning will raise environmental concerns

that are materially different or environmental controls that are materially less stringent in

the R-3 zone as compared with the R-2P zone. The Board finds denial of the application

on this basis does not reasonably carry out the intent of the MPS.

Compatibility

[79]

Policy 1.3.1 of the Secondary Strategy is the primary enabling policy for the

application. It allows council to rezone properties to permit apartments no higher than

four storeys in areas designated as “Medium-Density Residential” on the Generalized

Future Land Use Map. The Property is in an area which is so designated.

[80]

Policy 1.3.1 lists two criteria for consideration which council “shall” consider.

They are “compatibility with the existing neighbourhoods and the adequacy of municipal

infrastructure”. Community Council did not list either of these criteria in its reasons for

denial of the application. The Board must still consider whether compatibility with the

existing neighbourhood forms a basis upon which a denial of the rezoning application

would reasonably carry out the intent of the MPS.

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[81]

The Board agrees with Ms. Chapman’s assessment that MPS City-Wide

Policies 2.1, 2.2, 2.3, 2.4, and 2.4.1 provide context which assist in determining what is

meant by compatibility with existing neighbourhoods. The utility of Policies 2.2 and 2.4.1

is impacted by the fact they refer to implementation policies which have been repealed.

Nevertheless, the set of policies, in conjunction with Policy 1.3.1 and 4.3 of the Secondary

Strategy, address the following factors which are relevant to the Board’s analysis:

 There is a clear intent to permit Medium-Density Residential where the Property is

located;

 Use or intensity of use different from the existing neighbourhood should be

addressed;

 The existing residential character of a predominantly stable neighbourhood should

be maintained; and

 As no new streets or commercial development are proposed, stability in this matter

is primarily addressed by considering and preserving the scale of the

neighbourhood.

[82]

The Board starts its analysis by indicating that it will address traffic concerns

separately. The Board agrees with Ms. Rubin’s submission that the Appeal Record

shows that all relevant HRM departments were consulted by planning staff. No concerns

were expressed with respect to the adequacy of relevant municipal services. The Board

is satisfied that none were raised by WLCC which would carry more weight than the

opinions offered by HRM’s professional staff to its planning department.

[83]

The WLCC said the proposed development was not compatible with the

existing neighbourhood. Mr. Coolican said there was only one other apartment building

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in the neighbourhood, which predominantly consisted of single-family dwellings. Videos

of the area filed by the WLCC provided some visual context.

[84]

The WLCC says the built form is predominantly single-family dwellings in

an area with considerable open space. This includes the Long Lake Provincial Park

across the street from the Property. The WLCC says the proposed apartment building is

completely out of place. The public participants said basically the same thing. What

constitutes the neighbourhood is not a question which can be answered with great

precision. This is particularly the case with this section of Old Sambro Road. The Board

acknowledges that a neighbourhood can be wider than the immediately adjacent

properties. How far beyond is a matter of judgment. Community Council’s decision does

not provide any guidance on this aspect. The Board has considered the adjacent

properties, along with properties in the vicinity and more generally, on Old Sambro Road.

[85]

The Board agrees with the appellant that compatibility with the existing

neighbourhood would not form a basis, grounded in MPS policy considerations, for

denying the rezoning application. Multi-unit buildings can be developed as-of-right on the

Property. The proposed apartment building would only increase the allowed density by

five units. Properties in the immediately surrounding neighbourhood are all zoned for

multi-residential buildings. There is a three-storey apartment building immediately next

to the Property. The provincial lands are vacant but are in the R-2P zone which allows

multi-residential buildings. Going a bit further afield, the WLCC videos illustrate other

multi-unit buildings in the larger neighbourhood and there are other apartment buildings

along Old Sambro Road. The proposed apartment building is consistent with the

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immediate neighbourhood and more generally with other neighbourhood development in

the Old Sambro Road area.

[86]

The R-3 zone provides controls on height. Density is addressed by

requiring a mix of bachelor, one bedroom, and two-bedroom units. Form is addressed

through angle controls, along with setback and open space requirements. All the

foregoing limits the impact on nearby properties. In any event, there are no single-family

dwellings abutting the Property and Old Sambro Road already contains a mix of

residential unit types.

[87]

The WLCC raised issues about the impact of one approval on future

applications. It was described in some evidence as the thin edge of the wedge. To some

extent, this was raised in relation to the environmental issues. The concern in both

instances is that while one rezoning approval may not have a significant impact, it opens

the door for future approvals. While built form in an area can be influenced by what has

been approved in the past, each application must be considered on its own merits.

[88]

The Board has considered the policy direction in Policy 1.3.1 of the

Secondary Strategy. It has taken into account the specific considerations in the relevant

City-Wide policies. This is not a case where deferral to Community Council’s discretion

or value judgements is required, as was the case in F.H. Construction, which was cited

by the Intervenor, since Community Council did not base its decision on this aspect at all.

The Board sees no basis for finding that the proposed rezoning should be denied based

on a compatibility MPS policy rationale.

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Traffic

The WLCC says the proposed development will have a negative impact on

[89]

traffic. This was also a concern raised before Community Council by members of the

public, and with the Board in the public participation component of the hearing. The

project opponents raised issues about the existing traffic on Old Sambro Road generally;

the bend and slope in the road near the Property; and the busy Dunbrack Street

intersection. As well, WLCC said the proposed driveway was too close to the Dunbrack

Street intersection and there would be issues with access and egress, particularly during

rush hours. Concerns were raised about the safety of pedestrian traffic. The WLCC took

the position the access and egress control measures suggested by the experts would

probably not work in practice and would generate more traffic on nearby streets.

[90]

WLCC’s evidence on this point was presented by Ms. Hall. She

acknowledged she was not an expert in the field of traffic engineering. The Board would

note that not all opinions require professional expertise. Where an opinion is based on

personal observations of the kind which most persons can make, they do not constitute

expert opinion evidence of the type that requires qualification. For example, to offer the

opinion that an intersection is busy, or close to a nearby driveway, or that traffic is queuing

at certain points in the day, based on observing and experiencing it, does not require any

expertise. A technical analysis of the rate of traffic flow, or a comparative analysis with

other intersections, and what flows from these observations, from a traffic engineering

standpoint, goes beyond lay opinion. To the extent Ms. Hall’s opinions ventured into

expert opinion evidence, the Board has given them no weight.

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[91]

The WLCC said City-Wide Policies 9.4 and 9.5 and Secondary Strategy

Policies 5.2 and 5.3 were relevant. City-Wide Policies 9.4 and 9.5 address transportation

systems that favour pedestrian traffic and minimize environmental effects. Secondary

Policies 5.2 and 5.3 seek to minimize through traffic. The rezoning application does not

envisage new transportation systems. The Board will discuss the anticipated traffic

impacts.

[92]

The Board agrees with the WLCC that Old Sambro Road has relatively high

traffic volume. It agrees that the intersection of Dunbrack Street and Old Sambro Road

is relatively busy. It further agrees with WLCC that the proposed driveway will be

relatively close to this intersection. The Board has observed the curve and slope of Old

Sambro Road near the Property. The Board does not agree that denial of the rezoning

application because of traffic issues would reasonably carry out the intent of the MPS.

[93]

The appellant obtained three traffic impact statement (TIS) reports from

Michael MacDonald, P.Eng., Senior Transportation Engineer with Harbourside

Transportation Consultants. These were reviewed by HRM traffic engineering staff and

the responsible provincial government department (NSTIR). It appears, based on Ms.

Chapman’s testimony, that the reports may not have been before Community Council.

She did summarize her assessment of their conclusions.

[94]

Regardless, the Board had the benefit of the reports. The Board agrees

with Ms. Rubin’s submission that all three TIS reports concluded the rezoning proposal

would have a negligible impact on traffic, which is what Ms. Chapman indicated to

Community Council, based on HRM Traffic Engineering’s review.

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[95]

The key points from the Harbourside reports, and their review by HRM staff

and NSTIR, are summarized as follows:

 There are existing operational and capacity problems at the Dunbrack Street

intersection;

 The proposed development is expected to generate one vehicle trip out and four

trips into the Property during the morning peak hour;

 The proposed development is expected to generate four trips in and two trips out

during the afternoon peak hour;

 The project is expected to contribute five or less vehicles to the Dunbrack Street

intersection;

 The driveway location meets HRM’s requirement of having a 30-metre distance

between it and an intersection controlled by a traffic light;

 The driveway location does not meet, and, because of the amount of street

frontage, cannot meet, the NSTIR requirements of about 50 metres separation

from the intersection;

 The new driveway would be an improvement, since the existing driveway is closer

than what is proposed;

 The slope and curve of Old Sambro Road were specifically considered as part of

Harbourside’s analysis of stopping sight distance and turning sight distance;

 Harbourside concluded the proposal met HRM by Design Guidelines which

incorporate the Transportation Association of Canada Geometric Design Guide for

Canadian Roads;

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 The proposed project would generate an additional one vehicle trip in each of the

morning and afternoon from an as-of-right eight-unit project;

 HRM engineering recommended that driveway access be restricted to right in/right

out only to prevent queuing and reduce intersection impacts. The appellant agreed

with this recommendation; and

 The impact on the access and egress restrictions is expected to impact one car

turning in, and one car turning out, in the morning peak and three cars turning in

only in the afternoon peak hours.

[96]

Mr. MacDonald was not called to provide expert opinion before the Board.

Harbourside’s TIS reports were accepted by HRM planning staff and form part of the

Appeal Record as a matter of law. No expert opinion evidence was presented to

challenge the conclusions in the Harbourside TIS reports, or HRM Traffic Engineering’s

assessment of the analysis and conclusions therein.

[97]

While there may be existing traffic concerns, particularly about the

Dunbrack Street intersection, based on the information in the TIS reports as assessed by

HRM Engineering and outlined above, the Board is satisfied the impacts on the

intersection, and traffic as a whole, resulting from the proposed apartment building, will

be negligible. This is particularly the case when compared with potential as-of-right

development. The Board is further satisfied the proposal has not raised any significant

traffic safety or design concerns, other than a potential issue with NSTIR requirements.

[98]

The only issue which requires further elaboration relates to not meeting the

NSTIR requirement of 50 metres of separation from the driveway on Old Sambro Road

to the Dunbrack Street intersection. Mr. Saleh was of the view that because there was

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an existing driveway, the property would be exempted from this requirement in an as-of-

right development. No evidence was presented about this beyond Mr. Saleh’s assertion.

That said, the discussion in the Appeal Record appears focused on a new driveway and

generally supports Mr. Saleh’s observation.

[99]

With respect to the proposed new driveway location, an email dated

October 23, 2020, from Jason Rae of NSTIR states the new proposed location of the

driveway is no longer in NSTIR’s area of control. NSTIR was aware of the purpose of

HRM staff’s consultation on this issue and did not raise concerns or oppose the

application. In any event, when final design plans are submitted, formal approval from

NSTIR will be required if the driveway falls within its area of control. Otherwise, the HRM

standard will apply. The Board is, therefore, satisfied, on the record before it, that traffic

concerns were adequately addressed by the appellant. Given the number of trips which

will be generated if the development proceeds, the impacts on both vehicular traffic,

including through traffic, will be negligible. The same can be said for the impact on

pedestrian safety. There is, therefore, no basis grounded in the MPS policies, for denying

the rezoning application based on traffic concerns.

V

CONCLUSION

The Board is persuaded the appellant met the burden upon it and finds

[100]

Community Council’s decision does not reasonably carry out the intent of the MPS. The

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appeal is allowed, and the Community Council is ordered to approve the rezoning

application.

[101]

An Order will issue accordingly.

DATED at Halifax, Nova Scotia, this 13^thday of June, 2022.

______________________________

Richard J. Melanson

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