Heritage Trust of Nova Scotia v. AMK Barrett Investments Inc., 2021 NSCA 42

Nova Scotia Court of ApPEAL Citation: Heritage Trust of Nova Scotia v. AMK Barrett Investments Inc. 2021 NSCA 42 Date: 20210603 Docket: CA 499116 Registry: Halifax Between: Heritage Trust of Nova Scotia Appellant v. AMK Barrett Investments Inc., Halifax Regional Municipality, Nova Scotia Utility and Review Board, Attorney General of Nova Scotia, Ezra Edelstein, and Joanne Macrae Respondents Judge: The Honourable Justice Joel E. Fichaud Appeal Heard: March 23, 2021, in Halifax, Nova Scotia Subjects: Halifax Regional Municipality Charter , S.N.S. 2008, c. 39 ; Halifax Land Use By-Law; Halifax Municipal Planning Strategy – Policy CH-16; Peninsula North Secondary Planning Strategy – Policy 9.3

Summary: The Halifax West Community Council approved a development agreement for an apartment building in the Brunswick Street Heritage Area. Heritage Trust appealed the approval to the Utility and Review Board. It submitted the development offended the heritage protections in the municipal planning strategy, in particular Policies CH-16 and 9.3.2.1(

a) and (c). Those policies provided that a new development in this Heritage Area be similar to and compatible with, or that it complement the nearby heritage properties and the streetscape. The legislation says the Board may overturn the Council’s approval of a development agreement only if the Board determines the approval “does not reasonably carry out the intent of the municipal planning strategy”. The Board held that the Council’s decision reasonably carried out the intent of the municipal planning strategy and dismissed the appeal. Heritage Trust appealed to the Court of Appeal.

Issues: Did the Utility and Review Board err in law by finding that the Council’s decision to approve the development agreement reasonably carried out the intent of the Halifax Regional municipal planning strategy? Result: The Court of Appeal dismissed the appeal. The Council reasonably applied the municipal planning strategy as a whole, and Policies CH-16 and 9.3.2.1 in particular. The Board’s decision was correct. The municipal planning strategy and Policies CH-16 and 9.3.2.1 contemplated that the Council have discretion to reconcile and balance overlapping and vague planning strategies.

This discretion extended to the assessment of whether the development was similar to, compatible with, or complemented the nearby heritage properties and streetscape. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 21 pages. Nova Scotia Court of ApPEAL Citation: Heritage Trust of Nova Scotia v. AMK Barrett Investments Inc. 2021 NSCA 42

Date: 20210603 Docket: CA 499116 Registry: Halifax Between: Heritage Trust of Nova Scotia Appellant v. AMK Barrett Investments Inc., Halifax Regional Municipality, Nova Scotia Utility and Review Board, Attorney General of Nova Scotia, Ezra Edelstein, and Joanne Macrae Respondents Judges: Before Wood C.J.N.S., Fichaud and Bourgeois JJ.A. Appeal Heard: March 23, 2021, in Halifax, Nova Scotia Held: Appeal dismissed without costs, per reasons for judgment of Fichaud J.A.; Wood C.J.N.S. and Bourgeois J.A. concurring Counsel: Richard W.

Norman for the Appellant Roxanne MacLaurin for the Respondent Halifax Regional Municipality Jason Cooke and Danielle Keating for the Respondent AMK Barrett Investments Inc. The Respondents Nova Scotia Utility and Review Board, Attorney General of Nova Scotia, Ezra Edelstein and Joanne Macrae not participating Reasons for judgment: [ 1 ] The Halifax West Community Council approved a development agreement for an apartment building in the Brunswick Street Heritage Area. [ 2 ] Heritage Trust appealed the approval to the Utility and Review Board.

It submitted the development offended the heritage protections in the municipal planning strategy. The legislation says the Board may overturn the Council’s approval of a development agreement only if the Board determines the approval “does not reasonably carry out the intent of the municipal planning strategy”. The Board held that the Council’s decision reasonably carried out the intent of the municipal planning strategy and dismissed the appeal. [ 3 ] Heritage Trust appeals to this Court and says the Board erred in law.

Heritage Trust submits both the Board and the Council misapplied the municipal planning strategy, particularly respecting the difference in heights of the development and nearby heritage properties. The Municipality and the Respondent developer respond that the Council’s task was to reconcile and balance overlapping and vague planning strategies, some latitude is expected, the Council’s outcome was reasonable and the Board’s deference to the Council’s effort was correct.

Background [ 4 ] During the earlier stages of this litigation, the Respondent AMK Barrett Investments Inc. was known as “Brunswick Street Developments Ltd.”. I will call it Brunswick Developments. [ 5 ] In December 2015, Brunswick Developments applied to the Halifax Regional Municipality [“Municipality”] for a development agreement. The project was a multi-storey residential apartment building at 2267 Brunswick Street in Halifax [“Development”]. [ 6 ] The Development is in Zone R-2 (General Residential) under the Halifax Land Use By-Law. The Halifax Municipal Planning

Strategy subjects the Development to the Peninsula North Secondary Planning Strategy [“Secondary Planning Strategy”]. The Development is in the Brunswick Street Heritage Area.

The Secondary Planning Strategy, Policy 9.3, provides that in this Heritage Area a new building with over four residential units may proceed only with a development agreement and states principles to govern development agreements: Peninsula North Secondary Planning Strategy Overall Objective To create a lively and interesting environment in Peninsula North with a mixture of land uses and a physical environment that is aesthetically pleasing, safe, and well-maintained. … 1.

Residential Environments Objective: Stable residential communities in Peninsula North that offer a variety of housing types to meet the needs of a range of income and age groups. … 9.3 In order to preserve existing structures which are not registered heritage properties, and to promote new development which reflects the architectural character of existing heritage structures and maintains the streetscapes of Brunswick Street, the city shall, through the land use by-law, identify areas where specific architectural controls, standards for building placement, and criteria for building conversion would be desirable. … 9.3.2 In the area identified in the land use by-law pursuant to Policy 9.3 above, a new apartment house with over four dwelling units , or an addition to an existing building which produces an apartment house with over four dwelling units, may be permitted in areas zoned as general residential by development agreement ; any such residential development in the area zoned as general residential conversion and townhouse, multiple dwelling, or general business, shall only be by development agreement. 9.3.2.1 In considering agreements pursuant to Policy 9.3.2, Council shall consider the following: (

a) the building or addition shall complement adjacent properties and uses, particularly any registered heritage buildings ; … (

c) the new development shall complement or maintain the existing heritage streetscape of Brunswick Street, by ensuring that features, including but not limited to the following, are similar to adjacent residential buildings particularly any registered heritage properties in the area identified in the land use by-law pursuant to Policy 9.3 above, on which Council shall specify conditions to be met in the development agreement: (

i) architectural design including forms such as roofs, entrances, porches and dormers; (ii) height, scale and massing; (iii) location and style of building details such as doors, windows and exterior walls; (iv) front and side yard setbacks; (

v) building materials. [emphasis added] [ 7 ] In addition, the Halifax Regional Municipal Planning Strategy,

section 7.4, authorized Policy CH-16, which governs developments “abutting” a registered heritage property: Halifax Regional Municipal Planning Strategy CH-16 For lands abutting federally, provincially or municipally registered heritage properties, HRM shall , when reviewing applications for development agreements, rezonings and amendments pursuant to secondary planning strategies, or when reviewing the provision of utilities for said lands, consider a range of design solutions and architectural expressions that are compatible with the abutting federally, provincially or municipally registered heritage properties by considering the following: … (

b) ensuring that new development is visually compatible with yet distinguishable from the abutting registered heritage property. To accomplish this, an appropriate balance must be struck between mere imitation of the abutting building and pointed contrast, thus complementing the abutting registered property in a manner that respects its heritage value; (

c) ensuring that new developments respect the building scale, massing, proportions, profile and building character of abutting federally, provincially or municipally registered heritage structures by ensuring that they:

(

i) incorporate fine-scaled architectural detailing and human-scaled building elements[;] (ii) reinforce the structural rhythm ( i.e. , expression of floor lines, structural bays, etc.) of abutting federally, provincially or municipally registered heritage properties; and (iii) any additional building height proposed above the pedestrian realm mitigate its impact upon the pedestrian realm and abutting registered heritage properties by incorporating design solutions, such as stepbacks from the street wall and abutting registered heritage properties, modulation of building massing, and other methods of massing articulation using horizontal or vertical recesses or projections, datum lines, and changes in material, texture or colour to help reduce the apparent scale; … [emphasis added] [ 8 ] The Brunswick Street Heritage Area has been protected since the 1970s.

The submissions in this case addressed the heritage value of three structures near the Development: St. Patrick’s Church, the former St. Patrick’s Rectory and the Huestis House: • The Development abuts St. Patrick’s Church to the south. The Church was built in the 1880s with Victorian Gothic architecture. The Board (para. 16) described it as the “predominant landmark in the area” with “an iconic spire” 175 feet high. It is a registered heritage property. • The Rectory was also built in the 1880s in the Victorian Gothic style. It is a noted historic resource but is not a registered heritage property.

The Roman Catholic Episcopal Corporation of Halifax has sold the Rectory to Brunswick Developments to help finance the renovation of St. Patrick’s Church. The Rectory property has been converted into a multi-unit residential building on the same lot as the Development. The Rectory sits in the front near the street, while the Development’s building will occupy the rear of the property and adjoin the Rectory with a pedestrian bridge. • The residential property nearest to the Development is 2273-75 Brunswick Street, known as the Huestis House.

It is two storeys in the Second Empire style with a wood frame, wood shingle cladding, a mansard roof and gingerbread trim. A more recent two- storey rear addition is clad with blue metal siding. Huestis House lies north of the Development. It is separated from the Development by a 15-foot strip of vacant land owned by the Municipality, meaning the Development and Huestis House are not abutting properties. Huestis House is a registered heritage property. [ 9 ] The neighbourhood also has more conventional buildings.

Northward, these include several two and three-storey structures, townhouses and the multi-storey Harborview Apartments. Nearby on the west side of the street is the site of St. Patrick’s Alexandria School, a red brick building described by the Board as almost two city blocks in length.

Also visible from the Church, through a vacant lot, is the Spice Building, a six-storey apartment building. [ 10 ] Under the Halifax Regional Municipality Charter , S.N.S. 2008, c. 39 [“ HRM Charter ”], s. 31, a Community Council has the powers of the Halifax Regional Municipal Council respecting applications for development agreements.

The Halifax West Community Council [“Council”] considered Brunswick Developments’ application for a development agreement. [ 11 ] Following Brunswick Developments’ filing of the application in 2015, the Municipality’s Planning Department managed an extensive process of public consultation, internal study and design negotiations with Brunswick Developments. The outcome was a significant redesign by July 9, 2019, when the application finally came to Council for a vote.

These steps included: • The original application in December 2015 was for a 13-storey apartment building, 132 feet in height. • The Municipality sought public feedback through the Municipality’s website, site signage, correspondence to neighbours and a Public Information Meeting on November 30, 2016. • After the meeting, the feedback was collated and sent for comment to the relevant divisions of the Municipality. These included Development and Engineering, Halifax Water, Land Development, Subdivision, and Fire Protection. Because of the heritage implications, the application was sent to Heritage Planning.

The Municipality employs a heritage planner on the team that administers the Heritage Property Act , R.S.N.S. 1989, c. 199 for heritage properties in the Municipality. This planner was asked to comment. The process is termed a Team Review.

The Team Review’s feedback assists municipal staff to negotiate the proposed development agreement, evaluate compliance with the Municipal Planning Strategy and Secondary Planning Strategy and prepare the Staff Recommendation Report to Council. • After receiving comments from the Team Review, including a report from the heritage planner, the matter proceeded to the Municipality’s Planning Advisory Committee on May 29, 2017. The Committee recommended rejection of the application, as it stood, and suggested Brunswick Developments alter the design.

In a memo to Council, the Committee noted the application’s design “appears to not observe the principles of the heritage district, in that it overwhelms and subordinates the adjacent building (the church)” and “[t]he design would be more acceptable at a height of approximately 3-6 storeys, generally in keeping with the height of the church roof”. • Brunswick Developments revised the design to nine storeys and 51 units, with a pedway to the Rectory, set back the western edge to 62 feet 8 inches from the property line, aligned a cantilever on the fifth floor with the rear façade of the Rectory and the façades and balconies on the west elevation facing the Huestis House. • This amended application came to Council for first reading on October 9, 2018 and for a public hearing on November 14, 2018. • The Council deferred the matter and requested municipal staff to consider further design changes.

These included a suggested reduction of the height, with the revisions to receive comment by the Heritage Advisory Committee, and a Supplementary

Report to Council. • The Municipality’s planning staff then worked with Brunswick Developments and the Church to revise the design, in particular to reduce the development’s height and substitute building materials and details that better complemented the neighbouring structures.

The Supplementary Staff Report, dated March 27, 2019, included a further revised application for an eight-storey (the parking level being a ninth) 42-unit building with red brick for the Brunswick Street façade and a realigned penthouse in the centre of the façade. • The supplementary staff report was provided to the Heritage Advisory Committee for the Committee’s meeting of March 27, 2019. Following the staff consultation with that Committee, there were further design revisions to enhance compatibility with the Church and Rectory.

Parking spots were reduced from 8 to 4, brick similar in colour to that of the Rectory would clad the Brunswick Street elevation and two interior elevations, stone masonry would clad the first and second floor exterior, light coloured cladding and aluminum curtain walls would apply in some areas and the protruding balconies were removed from the elevation facing the Church. • On April 9, 2019, the matter returned to Council, which again deferred a decision.

The staff were directed to return once more to the Heritage Advisory Committee for revisions and to prepare another supplementary report to Council. • The staff prepared a Staff Recommendation Report dated May 9, 2019 and, on June 5, 2019, met with the Heritage Advisory Committee. The staff proposed additional design changes:

(1) The glazing was redesigned which, according to the staff’s supplementary report, “provides for a better balance of brick and glass on the Brunswick Street façade and these vertical expressions are in keeping with the local grain of vertical bays and gaps”.

(2) A voided corner on the Brunswick Street and Huestis House façades is “mirrored on the other side of the Brunswick Street elevation at the [corner] of the Brunswick Street and St. Patrick’s Church façades”, which: “contributes to the Brunswick Street façade symmetry and detracts from the ‘box’ effect”.

(3) The overhanging roof was eliminated which “alleviates the heavy look of the top level and decreases the perception of building mass”.

(4) There was a step back of the rooftop penthouse from 8 feet to 21 feet 10 inches, which “makes the top level less visible from the pedestrian realm and the street”.

(5) The Brunswick Street fa ç ade had two brick verticals, abutting glass verticals, with the remaining façades sporting stone, red brick and light coloured cladding.

(6) The wall facing Huestis House was designed with additional details such as recessed balconies. • On June 6, 2019, the Heritage Advisory Committee prepared a Recommendation Report to Council that attached the Staff Recommendation Report of May 9, 2019. • Finally, on June 11, 2019, Council gave notice of motion to consider the revised development agreement. • The Council convened on July 9, 2019.

That meeting received the Heritage Advisory Committee’s Recommendation Report of June 6, 2019, the Staff Recommendation Report of May 9, 2019, a memorandum from the Chair of the Halifax Peninsula Planning Advisory Committee and presentations from municipal staff and Brunswick Developments. The Council’s chair opened the session for public input. Two persons supported the development and three spoke against. The Council then passed a motion that approved the proposed development agreement. [ 12 ] The approved agreement states the Development’s height will not exceed 87.5 feet.

This is above the Church’s roofline but below its 175-foot spire. The set backs and the façades facing the Church, Brunswick Street and Huestis House, and the architectural treatment of windows, balconies and surfaces, were revised as discussed above. The agreement provides that foundations be architecturally detailed and walls also must be detailed, not blank.

It says vinyl siding is not permitted and mechanical systems and telecommunications equipment must be integrated into the design or screened from public view. [ 13 ] The HRM Charter , ss. 245(4) and (6) do not require written reasons for the Council’s approval of a development agreement. All that is needed is public notice of the approval and that there is a right of appeal. The notice was published. [ 14 ] Heritage Trust of Nova Scotia [“Heritage Trust”] is a non-profit organization that promotes the preservation of heritage properties in the Province.

Heritage Trust appealed the Council’s Decision to the Nova Scotia Utility and Review Board. [“Board”]. Everyone accepted that Heritage Trust was an aggrieved party and entitled to appeal. [ 15 ] The Board’s Decision summarized Heritage Trust’s position: [5] Heritage Trust appealed Council’s decision, arguing that the approval of the development agreement does not reasonably carry out the overall intent of the Municipal Planning Strategy (MPS) as the development “does not complement adjacent properties and uses,” specifically St.

Patrick’s Church and Huestis House, fails to maintain “the existing heritage streetscape … by ensuring that features … are similar to any adjacent residential buildings particularly any registered heritage properties,” and ignores Council’s past decisions on the development regarding height. [ 16 ] The appeal to the Board was governed by the HRM Charter , which says: 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 Council does not reasonably carry out the intent of the municipal planning strategy ; … 267(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.

[emphasis added] [ 17 ] On March 11 and 12, 2020, the Board’s three-person panel, chaired by Roberta J. Clarke Q.C., received evidence and submissions. The evidence included opinions of expert planners for Heritage Trust and the Municipality, two architects on behalf of Heritage Trust and a historian. The Board’s panel, accompanied by counsel, visited the site. [ 18 ] On June 1, 2020, by an 81-page Decision ( 2020 NSUARB 73 ), the Board dismissed Heritage Trust’s appeal.

The Board concluded Heritage Trust had not proven that Council’s approval of the Development Agreement failed to reasonably carry out the intent of the Municipal Planning Strategy.

The Board’s Decision summarized its reasoning: [7] … The Board considered the provisions of the MPS as a whole, and particularly Policy 9 of the Peninsula North Secondary Planning Strategy (PNSPS), and Policy CH-16 of the Regional Municipal Planning Strategy (RMPS), which address heritage resources. [8] These policy provisions lead the Board to conclude that it should defer to the decision of Council to approve the development agreement.

The Board finds that the language used in the policies requires Council to exercise a significant degree of subjectivity and discretion. [9] Under Policy CH-16, Council is required to consider a range of design solutions and architectural expression when assessing a proposed development in the context of abutting registered heritage properties. In this case, the Board finds that an

interpretation of the policy that focuses only on the compatibility of the proposed development with the Church is one that the policy can reasonably bear. [10] The Board also finds that, although Council is directed to consider certain heritage resources, in particular under Policy 9.3.2.1, the focus of Council’s consideration is different under the various subsections of the policy, and Council is not directed to consider those sections exclusively. An

interpretation of the policy that affords Council the discretion to approve a development that is more complementary to some resources than others is one that the policy can reasonably bear. [11] In addition, the Board considers that Council’s

interpretation of terms such as “complement”, “similar”, “compatible”, and “respect” are ones which the MPS policies can reasonably bear. Given the features of the proposed development, Council could reasonably carry out the intent of the MPS as a whole by concluding that the development complements adjacent properties and uses.

It would not be unreasonable for Council to conclude that the development could be more complementary to the Church and the Rectory than Huestis House. [12] Finally, the Board notes that the numerous factors that Council is directed to consider sometimes compete for Council’s attention and emphasis, both as between Policy CH-16 and Policy 9.3.2.1 and as between the sub-components within the policies themselves.

The compromises and choices required to resolve such competition is best left to the elected representatives who have the primary authority for planning in the municipality and making the required value judgments. [13] Guided by the body of case law, the Board finds this to be a matter in which it should defer to Council’s decision. It is up to Council, and not the Board, to make the choices under the MPS policies, even if there may have been other choices which might also be reasonable. Thus, the appeal is dismissed. [ 19 ] Heritage Trust appeals the Board’s Decision to this Court.

Issue and Standard of Review [ 20 ] The Utility and Review Board Act , S.N.S. 1992, c. 11, s. 30(1) permits an “appeal” to this Court on any question of the Board’s “jurisdiction” and “any question of law”. Issues of fact are not appealable. [ 21 ] Heritage Trust’s factum describes one central question of law: 29. Heritage Trust submits the NSUARB erred in a variety of ways. But this appeal concerns one central question.

The ultimate issue is whether the NSUARB erred in law by finding that HWCC’s decision to approve the development agreement reasonably carried out the intent of the HRM MPS. [ 22 ] When a court hears what the legislation terms an “appeal” from an administrative decision, the court applies the appellate standard of review, meaning correctness to issues of law: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , para. 37 ; East Hants (Municipality) v. Nova Scotia (Utility and Review Board) , 2020 NSCA 41 , paras. 10–12 .

Analysis [ 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: [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 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. … [ 26 ] Policies CH-16 and 9.3.2.1(

a) and (

c) contemplate that the Council have reasonable latitude to refine the general planning policies and strategies. This is apparent from the following: • Policy CH-16 says the Council shall “consider” a “range of design solutions and architectural expressions”, by “considering” whether the Development is “compatible with yet distinguishable from” an abutting heritage property and whether there is “an appropriate balance” for “complementing” the abutting heritage property.

The balancing involves the use of judgment. • The Secondary Planning Strategy’s “overall objective” is “to create a lively and interesting environment in Peninsula North with a mixture of land uses and a physical environment that is aesthetically pleasing, safe, and well-maintained”. The Residential Environments Objective is to “offer a variety of housing types to meet the needs of a range of income and age groups”. The Strategy as a whole has polycentric objectives. • Policy 9.3.2.1 says the Council is to consider similarity to nearby properties and the streetscape.

Those properties differ in appearance, structure and use. Some have more heritage value than others. No single design will be similar to all of them. Some pragmatic compromise and prioritization is unavoidable. • The Policies direct Council to “consider” compatibility, complementary design and similarity. The mandatory wording – i.e. to “ensure” the development is compatible, complementary or similar – is a subset of what Council is to “consider”. • “Similarity”, “complementary” and “compatibility” are value laden terms, not bright line tests.

They find their specific meaning with the Council’s exercise of discretion that responds to the context. • Policy CH-16 refers to the Church, the only abutting registered heritage property. Policy 9.3.2.1(

a) refers to the nearby buildings, and particularly heritage structures. Policy 9.3.2.1(

c) refers to the streetscape, not to any particular building. It is for the

Council to synthesize the differences of focus. • The Municipality and developer arrive at the development agreement with the benefit of public input, feedback from Team Reviews and directives from Council. The dynamics of negotiation weave the heritage protections into the development agreement. [ 27 ] Counsel for Heritage Trust makes a forceful submission that the Council’s approval offends the unequivocal language of the Policies. I have to disagree. The bare words of Policies CH-16 and 9.3.2.1 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. [ 28 ] Justice Hallett’s comments in Heritage Trust , 1994, reiterated in Archibald , embodied these views.

Justice Hallett said: • The plan is a “framework within which municipal councils make decisions”. • The approach should be “pragmatic” rather than “strict literal”. The policies “ought to be given a liberal and purposive

interpretation rather than a restrictive literal

interpretation”. • As the municipality is “primarily responsible for planning”, the municipality should be “accorded the necessary latitude in planning decisions”. • The policies “must be interpreted as part of the whole Plan”. • “Planning decisions often involve compromises and choices”, which “are best left to elected representatives who have the responsibility to weigh the competing interests and factors”. • There may be “more than one meaning that a policy is reasonably capable of bearing”.

This is “implicit ... in the limitation on the Board’s power to interfere with a decision of a municipal council to enter into development agreements”. [ 29 ] The Board’s job is to hear evidence, find the facts and determine whether the outcome – i.e. the Council’s approval of the development agreement – was reasonably consistent with the municipal planning strategy as a whole. It is not to micro-manage a de novo planning assessment.

If the Council’s approval was reasonably consistent, the Board must uphold the Council’s decision; that a different outcome from Council may also be reasonably consistent is immaterial. If it was not reasonably consistent, the Board must allow the appeal. [ 30 ] The Board’s appraisal of whether Council has “reasonably carried out the intent of the municipal planning strategy” is not confined to the events of July 9, 2019. The Municipality and the Council were engaged from the filing of the initial application in December 2015, as discussed above (paras. 11–12).

The revisions from the Development’s initial design to the final approved development agreement, evidence Council’s “consideration” of the heritage criteria in the municipal planning strategy. [ 31 ] This Court determines whether the Board erred in law. The Court does not review the Board’s findings of fact or weighing of evidence.

If the Board misapplied its standard of review and if Council’s approval of the development agreement did not reasonably apply the municipal planning strategy as a whole, then the Board erred in law. [ 32 ] The Board quoted and, at each node of its reasoning, said it applied the statutory standard – i.e. whether Council’s decision reasonably carried out the intent of the Municipal Planning Strategy and Secondary Planning Strategy.

The Board quoted and said it was applying the precepts outlined by this Court’s rulings in Heritage Trust , 1994 and Archibald. (Board Decision, paras. 8, 76, 79–89, 93, 103, 145, 161–2, 164, 204, 217, 232). [ 33 ] Heritage Trust maintains, despite what the Board said it was doing, the Board’s actual application of the standard of review erred in law. Heritage Trust says the Board misinterpreted Policies CH-16 and 9.3.2.1(

a) and (

c) and misapplied the expert evidence. [ 34 ] I will address these points in turn. [ 35 ] Policy CH-16: Policy CH-16 states that, for developments “abutting federally, provincially or municipally registered heritage properties”, HRM “shall … consider a range of design solutions and architectural expressions that are compatible with the abutting federally, provincially or municipally registered heritage properties”, listing several criteria to be considered. [ 36 ] Heritage Trust submits that the Development is not compatible with the abutting registered heritage properties. [ 37 ] The only abutting registered heritage property is the Church.

The Rectory is not registered. Huestis House is not abutting. [ 38 ] The principal concern has been the Development’s elevation. Heritage Trust said its height would overwhelm the Church. [ 39 ] The Council “consider[ed] a range of design solutions and architectural expressions” to enhance compatibility. Three and a half years passed from the initial application for a development agreement to the Council’s approval. During this span, Council twice remitted the application for the Municipality and developer to adjust the design.

This endeavour involved consultations with heritage and planning committees, recommendations, re-negotiations with the developer and revisions to the design. [ 40 ] The outcome was a significant reduction in the Development’s height (132 feet to 87.5 feet). The Church’s spire (175 feet) will be well above the top of the Development. Other mitigative alterations to lessen the visual impact included the Development’s 60-foot set back from Brunswick Street and a further recess at the penthouse level.

Further design changes to improve compatibility with the Church’s appearance included the type of brick and cladding, masonry design, façade and colouring, voided corners, punched windows and altered balconies. The details are discussed above (paras. 11–12).

[ 41 ] The Board held that Council had considered the Policy’s criteria and range of solutions and reasonably exercised its discretion. I agree. The Council reasonably applied Policy CH-16, and the Board’s decision was correct. [ 42 ] Policy 9.3.2.1(a): Policy 9.3.2.1(

a) says the development “shall complement adjacent properties and uses, particularly any adjacent registered heritage buildings”. Heritage Trust submits the Development does not complement the Huestis House or the Rectory and is too high to complement the Church. [ 43 ] The Board acknowledged the Development is not similar to Huestis House (para. 198). The Church, Rectory and Huestis House have different appearances, structures and uses. No development can fully complement all of them. A reasonable

interpretation of the Policy expects some prioritization. I agree with the Board’s conclusion on this point: [199] ... The closest registered heritage properties to the proposed development are the Church and Huestis House. These are two different styles of buildings, used for two different purposes. [200] In such a case, the Board finds that an

interpretation of the policy that would permit Council to choose which heritage property the proposed development should complement, and in what ways, is one that the policy can reasonably bear. Council might prefer that the development complement only one property, that it complements one more than the other, or perhaps that it complements both in different ways. [ 44 ] I also agree with the Board’s view that a primary focus on the Rectory and Church, instead of Huestis House, is a reasonable application of the Policy: • The Development will connect with the Rectory by a pedestrian bridge.

Both the Development’s proposed use and Rectory’s current use are residential. • The Church was the only registered heritage property that abuts the Development. It is the “iconic” heritage property on Brunswick Street and the dominant structure in the neighbourhood. [ 45 ] The main objection to the Development’s compatibility was that it was too high for the Church. I reiterate my comments form the discussion of Policy CH-16.

The revisions to the Development’s design from December 2015 to July 2019 reasonably (1) mitigated the impact of the Development’s height and (2) served to complement the features of the Church and Rectory. [ 46 ] The Board correctly determined that Council’s approval reasonably applied Policy 9.3.2.1(a). [ 47 ] Policy 9.3.2.1(c): Policy 9.3.2.1(

c) says Council is to “consider” that the Development “shall complement or maintain the existing heritage streetscape” by “ensuring” that its features are “similar to adjacent residential buildings particularly any registered heritage properties”, listing several criteria. Heritage Trust submits the Development does no such thing. Heritage Trust’s main concern again is the Development’s height. [ 48 ] A streetscape is more than one building. The Brunswick Street streetscape is a diverse series of structures.

The Development does not alter or displace any of them. [ 49 ] The other buildings in the immediate streetscape – the Rectory, Church and Huestis House – have different heights. The Huestis House is two storeys and the Rectory three storeys, while the Church spire attains 175 feet. The Rectory and Church are red brick, while Huestis House is wooden with some blue metal siding. The streetscape is varied already. [ 50 ] The Policy does not stipulate a maximum height for a new structure. The appropriate height for an addition to a complementary streetscape is a discretionary matter for Council to decide reasonably.

I reiterate my comments on height from the discussion of Policy CH-16. The design revisions adopted in the approved development agreement reasonably addressed the concerns about height of the Development in the streetscape. [ 51 ] The Policy lists criteria that Council may consider for “similarity”. The weight of each factor is for Council. [ 52 ] The Board correctly determined that the Council’s approval reasonably applied Policy 9.3.2.1(c). [ 53 ] Expert evidence: The Board accepted that Mr. Darrell Joudrey, a Planner with the Municipality, could offer an expert opinion on planning issues.

Heritage Trust filed opinions from several individuals, including Messrs. Gary Hanley and Brian MacKay-Lyons, whom the Board accepted as expert architects. The Board’s Decision gave more weight to Mr. Joudrey’s opinions than to the those of Messrs. Hanley and MacKay-Lyons. On appeal to this Court, Heritage Trust challenges the Board’s respective treatment of these expert opinions. [ 54 ] First, Heritage Trust submits Mr. Joudrey gave “architectural” opinions, for which he was not qualified, and the Board should have given those opinions no weight. [ 55 ] I respectfully disagree. [ 56 ] The Board cited Mr.

Joudrey’s evidence on planning issues, for which he was qualified to give opinion evidence. Mr. Joudrey was the HRM staff planner who recommended approval of the Development to the Council. His opinion related to the application of the Policies from a planning perspective. The Board noted aspects of Mr. Joudrey’s views were supported by Heritage Trust’s expert planner and were contemplated by the Policy CH-16 (Board Decision, para. 149). [ 57 ] Second, Heritage Trust submits the Board erred by giving little weight to the architectural opinions of Messrs.

Hanley and MacKay-Lyons. [ 58 ] The written opinions of Messrs. Hanley and MacKay-Lyons were conclusory with little supportive reasoning. The Board’s

Decision says: [153] ... The expert reports of Mr. MacKay-Lyons and Mr. Hanley were accepted into evidence but fall short of the requirements for expert reports in planning appeals. Subsection 15(1) of the Board’s Municipal Government Act Rules provides: Unless a copy of a report containing the full opinion of an expert, including the essential facts on which the opinion is based, a

summary of the expert’s qualifications, and a

summary of the grounds for each opinion expressed, has been served on each party and filed with the Board, as directed by the hearing order referred to in Rule 16(4), the evidence of the expert shall not be admissible at the hearing without leave of the Board. The Board noted their opinions did “not provide essential facts and grounds” for their opinions, and “[a]s such, the Board places very little weight” on their conclusions (Board Decision, paras. 155-157). [ 59 ] The weight given to the evidence of Messrs.

Joudrey, Hanley and MacKay-Lyons is an issue of fact that is not appealable to this Court. [ 60 ] Third, Heritage Trust submits the Board erred by not allowing Heritage Trust to call Messrs. Hanley and MacKay-Lyons to give oral testimony. [ 61 ] The Board’s Decision sets out the background: [154] Likely recognizing the problem with the format of the report that was given to the Board, Heritage Trust sought leave of the Board to conduct a direct examination of Mr. MacKay-Lyons, beyond the Board’s practice of having the expert adopt the report in advance of cross-examination.

The Board’s practice of having experts simply adopt their reports with no direct examination was specifically discussed in a pre-hearing conference on July 31, 2019, before the parties filed any expert reports in the proceeding. As a matter of ensuring fairness for the opposing parties in the proceeding, the Board declined to allow the filed report to be supplemented in this way at the oral hearing. [ 62 ] In this Court, Heritage Trust submits the Board should have alerted Heritage Trust that the weight due to the two reports was questionable and allowed Messrs.

MacKay-Lyons and Hanley to supplement their written opinions with direct testimony. [ 63 ] With respect, that is not how it works. It was up to Heritage Trust to file expert reports that complied with Rule 15(1) of the Board’s Municipal Government Act Rules . The Board was not obliged to warn counsel that an adverse finding is in the offing unless counsel’s witness bolsters his evidence. The Board was entitled to enforce its practice, of which Heritage Trust had notice, to require advance filing of expert opinion evidence so the opposing party is not surprised.

Conclusion [ 64 ] I would dismiss the appeal without costs. Fichaud J.A. Concurred: Wood C.J.N.S. Bourgeois J.A.