A development approved for Brunswick Street is not too tall for the area, Nova Scotia’s highest court ruled on Thursday.
It’s likely the end of the line for the Heritage Trust of Nova Scotia’s fight against the proposal from developer Adam Barrett’s Brunswick Street Developments Ltd. for a 42-unit, eight-storey residential building at 2267 Brunswick St. — behind the old rectory building next to St. Patrick’s Church.
Halifax and West Community Council approved the development in July 2019, and the Heritage Trust appealed that decision to the provincial Utility and Review Board (UARB), arguing the council’s decision failed to protect the heritage of the area. The UARB dismissed the appeal in June 2020, as the Halifax Examiner reported at the time.
In March, the Heritage Trust appealed the UARB decision to the Nova Scotia Court of Appeal, and a panel of three judges — Justices Michael Wood, Cindy Bourgeois, and Joel Fichaud — heard arguments from lawyers representing the Heritage Trust, the developer, and the municipality.
As the Examiner reported in March:
Lawyer Richard Norman, representing the Heritage Trust, argued that the community council’s decision in approving the development proposal, which he described as nine storeys, was “ad hoc and unguided by principle.”
“What council was doing here when it approved this development agreement was fitting a square peg in a round hole,” Norman said.
“It decided to impose a nine-storey contemporary apartment building on a low-rise special heritage district area, and it did so without any architectural advice.”
The municipal planner who advised the community council on the project had no architectural experience, Norman noted. That is the norm for planning applications.
The Court of Appeal should amend the development agreement to reduce the height to six storeys, Norman argued.
Jason Cooke, lawyer for AMK Barrett Investments Inc., formerly called Brunswick Street Developments Ltd., argued the court doesn’t have the authority to do that.
“Respectfully, this court does not have the jurisdiction to order that,” Cooke said.
“I see nothing, either in the UARB Act, the Halifax Charter, or the civil procedure rules, that would empower the court to make that kind of remedy, so I simply don’t think that it’s available.”
In a written decision released Thursday, Fichaud, with Wood and Bourgeois concurring, dismissed the appeal. The court agreed with arguments from the developer and the municipality that the community council’s decision was supported by the land-use planning policies for the area.
“Counsel for Heritage Trust makes a forceful submission that the Council’s approval offends the unequivocal language of the Policies,” Fichaud wrote. “I have to disagree.”
The “bare words” of those policies “do not illuminate a linear path to a distinct outcome,” Fichaud wrote.
“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.”
Fichaud noted the Heritage Trust’s primary concern was the height of the development, which exceeds the roofline of St. Patrick’s Church but comes in well under its steeple. But Fichaud said the applicable land-use policies don’t stipulate height.
“The appropriate height for an addition to a complementary streetscape is a discretionary matter for Council to decide reasonably,” Fichaud wrote. “The design revisions adopted in the approved development agreement reasonably addressed the concerns about height of the Development in the streetscape.”
Fichaud awarded no costs to any party.