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More breaking news from the mundane world of municipal law: don't pick the cherries

The British Columbia Supreme Court may be poised to adopt a new doctrine in municipal law. In two recent cases, both featuring broad ranging and similarly worded but wholly unsuccessful attacks on local government land use decisions, justices of our province’s senior trial court admonished the petitioners for attempting to “cherry pick” from plans or reports on which the responding local governments had relied.

Dong v Bowen Island Municipality, 2016 BCSC 553 arose after three large private docks were constructed on newly subdivided estate lots on Cape Roger Curtis, extending into the central Straight of Georgia. A new municipal council, some members of which had been part of a “stop the docks” campaign, passed a dock-stopping bylaw before two more would-be dock builders secured provincial permits. The dockers argued (unsuccessfully on all counts) that the bylaw was inconsistent with the Official Community Plan, discriminatory, and was passed by biased councillors in haste and in bad faith, following improper procedures. The court invoked the “no cherry picking” rule to dismiss the OCP inconsistency claim. Though certain policies in Bowen’s 193-page OCP suggested the docks might have been acceptable and even compatible with the community’s vision, Justice Punnett said “no specific policy … constitutes a “direct or head on collision” with [the bylaw being challenged] and … on a standard of reasonableness the bylaw is consistent” with the OCP.

In Cummings v City of Vancouver, 2016 BCSC 1918 the petitioners were upset about the City’s decision to designate as “protected heritage property” all buildings built before 1940 in the tony “First Shaughnessy” neighbourhood. The City relied on the report of a heritage consultant in making the designation, but neither the City nor its consultant conducted “an actual assessment of the individual properties toward making a specific determination as to whether they were of sufficient heritage merit to justify conservation”. As in Dong, the petitioners attacked, and failed, on many fronts. They said the move to protect their old houses from demolition was beyond the jurisdiction of the City, unreasonable, enacted in bad faith, and the product of an unlawful delegation. Madam Justice Fitzpatrick agreed with the City that a property-by-property heritage assessment was not required, and rejected the petitioners’ claim that the consultant’s report misled the public into believing such as assessment had been conducted. That claim, she said, relied on cherry picking from the report rather that considering it “in its entirety”, along with other material made available to the public.

If nothing else, these cases reinforce some well-entrenched tenets of municipal law, and as Chief Justice Bauman said in Langley Society of Fort Langley Residents for Sustainable Development v. Langley (Township), 2014 BCCA 271 at para 9 “It is never trite law to recall a number of basic principles when approaching the construction of municipal legislation”. So here are a few of the cherries:

• The interpretation of municipal legislation requires a broad and purposive approach, not a narrow one.
• The application of the reasonableness standard to municipal councils involves a higher level of deference given councillors are answerable to their constituents at elections and have experience relating to the needs and objectives of their community.
• Making different rules for different properties is not unlawful discrimination.
• Procedural fairness requires the public have access to documents material to the bylaw approval. Municipal councils are not obliged to make available all information that could be potentially relevant, but the information provided must be considered in its entirety when assessing the sufficiency of disclosure.

The lesson? If you sue a local government for carefully exercising its provincially-delegated powers to regulate the use of land in the public interest, just because you don’t like how the regulations affect your land, you’ll probably lose.

Guy Patterson

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