The City of Vancouver and Brenhill Developments Ltd. successfully appealed the January 27, 2014, decision of the BC Supreme Court (BCSC) in Community Association of New Yaletown v Vancouver (City),2015 BCSC 117. The appeal (2015 BCCA 227) overturned a decision of the BCSC that imposed extensive public disclosure requirements on the City which, in theory, would have served to stop Brenhill’s construction of a social housing project roughly nine months after it was approved by the City. We previously wrote about the BCSC decision (No Stone Undisclosed: City of Vancouver and Developer Appeal New Public Disclosure Standards for Development Projects).

Background Facts

Brenhill and the City negotiated a proposal whereby, among other things, Brenhill would build a new social housing project (508 Helmcken) and expand an older social housing project (1099 Richards). In August 2013, following the mandated public consultation process, the City approved a development permit to build the project at 1099 Richards. In March 2014, the City enacted the rezoning bylaw to allow the tower at 508 Helmcken.

The Community Association of New Yaletown (CANY) advanced a petition under the Judicial Review Procedure Act in May 2014 which ultimately resulted in the BCSC quashing the rezoning bylaw and the project’s permit development after nine months of construction performed by Brenhill. Following an appeal of the BCSC decision by both Brenhill and the City to the BC Court of Appeal (BCCA), CANY argued that the appeal was moot because the City issued a new development permit for 1099 Richards and adopted a new rezoning bylaw for 508 Helmcken, largely replacing those that were quashed.

BCSC Decision

In delivering reasons on CANY’s petition, the BCSC ruled that the City acted unfairly during the public consultation process for the rezoning of City-owned property in the Yaletown area and the development permit for an adjacent property. The BCSC held that, for a valid public hearing, the City must provide the public with transparent, complete and comprehensible description of any proposed project, including:

  • details of the confidential agreements entered into by the City with the developer;
  • advantages and disadvantages of the project; and
  • the City’s financial justifications for the project and the analysis and assumptions underlying those justifications.

The Court held that without such disclosure, the public cannot offer informed commentary for the City Council to consider before making its discretionary decisions on matters of land use and other development approvals.

BCCA Ruling

In written reasons released on May 21, 2015, the BCCA overturned the BCSC’s decision. On a preliminary basis, the BCCA dismissed CANY’s argument that the appeal was moot on the grounds that certain rights would vest in Brenhill’s favour if the original zoning bylaw was restored and, in any case, the appeal raised general issues of public importance concerning the disclosure that must be made in advance of public hearings. The BCCA proceeded to disagree with the BCSC’s ruling regarding disclosure requirements for reasons including the following:

  • the public does not need to see the details of the development permit application to make informed, thoughtful and rational comments on whether property should be rezoned for a planned development;
  • pursuant to the Vancouver Charter, the City has statutory authority to enter into real estate transactions without direct oversight of the public;
  • the City Council did not have the details of the land exchange contract before it when it decided to rezone 508 Helmcken, and the BCSC rejected CANY’s argument that the City had exceeded its legislative discretion by entering into that contract;
  • the development permit application for 1099 Richards was not at issue at the public hearing, except to the limited extent that the development was a condition of the rezoning of the property at 508 Helmcken. In any event, the City disclosed “a great deal” of information about the overall land exchange; and
  • the BCSC failed to give separate consideration to the 1099 development permit, which was a separate matter from the 508 Helmcken rezoning bylaw. Accordingly, any deficiencies with the disclosure for the public hearing of the 508 rezoning bylaw (of which there were none), could not affect the validity of the 1099 development permit.

The BCCA concluded that when the City is considering rezoning a property, local residents have a right to sufficient information to allow them to make an informed, rational and thoughtful opinion on the merits of the rezoning, and the right to express their opinion to the City at a public hearing. However, citizens that disagree with the City’s view of public interest must seek change through the political process rather than through the courts, as judicial review has strictly defined limits.

Future Impact and Considerations

Because the BCCA decided that the case failed on its merits, the BCCA concluded that it did not have to deal with the arguments advanced by the City and Brenhill that they had been prejudiced by CANY’s delay in filing its petition outside of the one month deadline prescribed in the Vancouver Charter. However, the BCCA’s comments suggest that future petitioners attempting to challenge similar rezoning enactments through judicial review proceedings after the statutory challenge period under theVancouver Charter has expired may face procedural hurdles in doing so, and that citizens who disagree with the City’s view of the public interest must seek change through the political process rather than through the courts.