On July 3, 2014, the BC Court of Appeal issued a decision which sheds light on an important but previously unanswered question: the meaning of "density of use" in the Local Government Act.
In Society of Fort Langley Residents for Sustainable Development v. Langley (Township) , 2013 BCSC 2273, a group of residents from the Township of Langley asked the BC Supreme Court to set aside a heritage alteration permit issued by the Township's Council for a mixed-use residential and commercial building in the heart of Fort Langley. The heritage alteration permit varied the provisions of the Township's zoning bylaw which regulated the height, lot coverage and setbacks of the building but did not vary the only zoning bylaw provision which expressly regulated the density of the building (in particular, the residential density of the building). The residents argued that by varying the bylaw provisions which regulated the height, lot coverage and setbacks of the building, Council effectively varied the "density of use" of the building, contrary to section 972(4)(a) of the Local Government Act.
The BC Supreme Court agreed with the residents, finding that although the heritage alteration permit did not vary the express "density of use" provision in the applicable zoning bylaw, common sense dictated that variances to the applicable height and lot coverage provisions varied the building's "density of use", contrary to section 972(4)(a) of the Local Government Act.
On appeal, the BC Court of Appeal agreed with the Township, who were represented throughout by Dan Bennett Q.C. and Erika Lambert of Bull Housser. In the Court of Appeal's view, the Township's power to regulate the density of a building is distinct from its power to regulate the siting, size and dimensions of a building. Only heritage alteration permits which vary zoning bylaw provisions which expressly regulate the density of a building will vary "density of use" contrary to section 972(4)(a) of the Local Government Act. As the heritage alteration permit issued for the Fort Langley building did not vary the zoning bylaw provision which expressly regulated the density of the building, it was lawfully issued by the Township's Council and not contrary to section 972(4)(a) of the Local Government Act.
The Court of Appeal's decision provides much needed clarification on the meaning of "density of use" in the Local Government Act and provides local governments with greater certainty as to which zoning bylaw provisions may be varied by heritage alteration permits and which may not. Additionally, as the legislative prohibitions on varying density through the issuance of a development permit and a development variance permit contain similar wording to the legislative prohibition considered in this case, the decision also provides local governments with guidance as to which zoning bylaw provisions may be varied by development permits and development variance permits.
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