The province’s highest court heard an appeal Tuesday from the Heritage Trust of Nova Scotia, which asked the court to shrink a development proposal for Brunswick Street by two storeys.
The Heritage Trust appealed the Halifax and West Community Council’s July 2019 decision to approve a development agreement with developer Adam Barrett’s Brunswick Street Developments Ltd. for a 42-unit, eight-storey residential building at 2267 Brunswick St.
As the Halifax Examiner reported in June 2020, the Nova Scotia Utility and Review Board (UARB) dismissed the appeal:
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 [last June], 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.
The Heritage Trust’s argument centred around a municipal policy that “directs the community council “to consider a range of design solutions and architectural expressions that are compatible with abutting registered heritage properties.”
The height of the proposal is incompatible with that of the church, the Heritage Trust argued, so the community council must not have considered that policy.
The UARB disagreed, writing, the “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 the policy.
The Heritage Trust appealed that UARB decision, and on Tuesday, a three-judge panel of the Nova Scotia Court of Appeal — Chief Justice Michael Wood, Justice Joel Fichaud, and Justice Cindy Bourgeois — heard the case, with the proceedings broadcast live online.
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.
Broadening the original Heritage Trust argument, Norman also argued that the community council didn’t consider the other neighbouring heritage building, Huestis House, in making its decision. The community council contemplated the building’s relationship to St. Patrick’s Church, but not Huestis House, Norman argued.
“Council is not given the discretion to choose which of the two heritage properties it will consider and which it will completely ignore,” Norman said.
Huestis House would be a better comparator, Norman argued, because like the proposal, it’s a residential building.
The community council has broad discretion to approve developments, as the UARB noted in its decision, but Norman argued there comes a point where its discretion “veers into arbitrary and unreasonable decisions.”
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.”
Cooke argued council didn’t ignore Huestis House, and nor did the UARB.
“I’m not sure exactly what my friend means by ‘ad hoc,’ but I would not characterize the decision of either council or the board as ad hoc, and I certainly would take issue with any characterization that it was unprincipled,” Cooke said.
Halifax Regional Municipality lawyer Roxanne MacLaurin argued the community council’s decision, and by extension the UARB’s decision, was correct, and the appeal should be thrown out.
The appeal panel reserved its decision, meaning it will file a written decision in the coming months.