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
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
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).