The Heritage Trust of Nova Scotia’s appeal of a development approval on Brunswick Street has been thrown out by the provincial Utility and Review Board (UARB).
Adam Barrett’s Brunswick Street Developments Ltd. received approval for a development agreement for a 42-unit, eight-storey residential building at 2267 Brunswick St. from Halifax and West community council after a public hearing in July 2019.
The Heritage Trust of Nova Scotia appealed that decision to the UARB in August 2019, arguing that council “erred in approving the development agreement” because it “did not reasonably carry out the overall intent of the municipal planning strategy” (MPS), specifically with regard to the protection of heritage in the area.
In a decision released Monday, the UARB upheld the community council decision, writing that the Heritage Trust “has not met the burden to persuade the Board, on the balance of probabilities, that Council’s decision fails to reasonably carry out the intent of the MPS as a whole, and in particular those policies which address heritage properties, areas, and resources.”
The development is situated behind the former St. Patrick’s rectory and between Huestis House, built in 1887, to the north and St. Patrick’s Church, built in 1885, to the south. Both neighbours are registered heritage properties and the entire area is a heritage precinct known as the Brunswick Street Heritage Area.
The developer originally applied in 2015 to build 13 storeys behind the rectory, which is now a residential building, but amended the proposal down to nine storeys due to concerns about height from city heritage planners and the public. It was further reduced to eight storeys, along with some design changes, in response to a request from the community council in November 2018 — limiting the height to less than St. Patrick’s steeple but more than its roofline.
The community council approved the development agreement after a public hearing during which two people spoke in favour and three against.
In March, the UARB held its appeal hearing. Before making its decision, the board heard from planners on behalf the municipality; a planner, two architects and a historian on behalf of the Heritage Trust; and it visited the site of the development.
One of those architects was Brian MacKay-Lyons, who was qualified as an expert witness. He told the board that “the development could put the heritage character of the area at risk,” and contravened the intentions of the municipal planning strategy.
The Heritage Trust’s argument centres around one portion of the municipal planning strategy, policy CH-16, which directs the community council “to consider a range of design solutions and architectural expressions that are compatible with abutting registered heritage properties.”
The Heritage Trust argued the policy wasn’t considered by municipal planners or the community council in part “because the height of the proposed development is not compatible with the Church.”
“It said the height of the proposed development would surpass the roofline of the Church and detract from its iconic steeple,” the decision says.
The board wrote that it’s difficult to assess how much weight the community council gave to the policy because it doesn’t need to provide reasoning for its decisions, but that the policy was mentioned in the city’s reports. It also said the policy is subjective.
“Although the evidence before the Board suggests that others might have made a different choice than Council, the choice was Council’s to make,” the decision says, “and the Board finds that Heritage Trust has not met the burden on it to demonstrate, on the balance of probabilities, that the decision of Council to approve the development at its final proposed height did not reasonably carry out the intent of Policy CH-16.”
So the outcome threatens the integrity of the Brunswick St heritage precinct, but the Board concludes that “on the balance of probabilities” it can’t conclude that Council didn’t carry out the intent of the policy. This is a fine piece of legal gymnastics.
Based on the elevation presented at the beginning of the article, the new building plus the existing heritage properties look like they will make one ugly architectural mess.