Dalhousie University is seeking judicial review of regional council’s decision to add its property to the municipal heritage registry.
Council voted in October to register 1245 Edward St., built in 1897. The university bought the property in 2021 and hoped to demolish it. But residents rallied to save it, and submitted an application to council’s Heritage Advisory Committee. The committee scored the property 64 out of 100 points, recommending registration to council.
At last month’s council meeting, as the Halifax Examiner reported, lawyer Peter Rogers argued on behalf of the university that the old house is a “failed,” “mongrel” structure unworthy of protection. He also alleged HRM’s process didn’t give Dalhousie enough time to make a case against registration.
Rogers is taking those arguments to the Supreme Court of Nova Scotia in an application for judicial review dated Nov. 21. The filing names HRM, the Halifax University Neighbourhood Association (HUNA), Peggy Walt, and William Breckenridge.
He submitted three grounds for judicial review:
(a) The decision was made without respect for the statutory purposes of the public notification provisions of the Heritage Property Act, which allow purchasers of property to know whether a property is constrained by its heritage status, and is accordingly ultra vires the Act;
(b) The decision was made without allowing a sufficient standard of fairness and due process commensurate with the factual and statutory context; and
(c) The decision was substantively unreasonable as HRM assigned unreasonably high scores on its heritage scoring of the Property, without having attempted to see the building interior necessary to evaluate its deteriorated condition and the significant changes made to its original architectural style.
None of Rogers’ allegations in the filing has been proven in court. There’s a hearing scheduled for Jan. 3, 2023.
Lawyer alleges HRM didn’t follow procedure
Dalhousie first applied for a demolition permit in May, Rogers wrote, after determining the building was “in poor condition, and uneconomic to responsibly restore for a use that would preserve the exterior shell of the building.”
“Unbeknownst to Dalhousie,” Rogers wrote, Walt and Breckenridge “became aware of Dalhousie’s demolition intentions and, on behalf of HUNA, submitted to HRM on May 9, 2022 an Application Form for Heritage Registration of the Property.”
“Neither HUNA representatives nor HRM contemporaneously provided a copy to Dalhousie or even informed Dalhousie that the Application had been made,” Rogers wrote, but the university was notified a month later.
Once the application was in, the Heritage Advisory Committee (HAC) moved its next meeting ahead.
“The meeting was accelerated deliberately for the purpose of pre-emptively nullifying Dalhousie’s demolition permit application. HRM did not give notice to Dalhousie of the new meeting date,” Rogers wrote.
Dalhousie learned of the new date “from other sources,” Rogers wrote. That’s likely the university’s employee who sits on the committee.
Committee didn’t have time to consider submission
There is never an opportunity during those meetings for property owners, whether they’re in favour of or opposed to registration, to present to the committee. But Rogers argued there should have been, and Dalhousie asked HRM to allow it to present to the committee. HRM denied the request, and the university “cobbled together a written submission, together with an engineering report on the building’s condition and a video. It submitted that less than an hour before the meeting.
“The Chair and many other HAC members did not have adequate time to read the text and view the video before the 1 pm start of the meeting but HAC nevertheless proceeded with the meeting and made its substantive recommendation regarding the Property,” Rogers wrote.
The committee voted to recommend council register the property, triggering a freeze on the university’s demolition permit.
Before council, Rogers wrote that Dalhousie asked for 20 minutes to present, rather than the 10 minutes allotted to any other prospective heritage property owner. That request was denied.
During his presentation to council, Rogers referenced an independent report scoring the property 32 out of 100 points. He alleged municipal staff “held back its critique of the heritage architect’s report until after Dalhousie’s presentation, effectively splitting the case in favour of registration in a manner that denied Dalhousie the opportunity for comment upon HRM staff’s critique.”
Dalhousie ‘not afforded a standard of fairness’
The university “was not afforded a standard of fairness/natural justice commensurate with the nature and consequences of the decision under review,” Rogers wrote.
He argued the municipality and the neighbourhood association had decades to register the property, but waited until Dalhousie bought it.
And as he argued before council, Rogers alleged municipal staff inflated the property’s scoring.
“HRM staff made an unreasonable, hasty and biased evaluation of the Property, calculated to achieve registration rather than to objectively score the Property’s heritage attributes and short-comings,” Rogers wrote.
“Dalhousie requests an order quashing the decision and requiring HRM to remove 1245 Edward St., Halifax from HRM’s registry of municipal heritage properties and seeks costs.”