Canada: Recent BC Decision Quashes Rezoning And Land Swap

Last Updated: February 4 2015
Article by Damon Chisholm

Co-authored by Amanda Magee, Student-at-Law

On January 27, 2015 the British Columbia Supreme Court issued its decision in Community Association of New Yaletown v. Vancouver (City), 2015 BCSC 117, in which it decided that the City of Vancouver (the "City") did not act fairly with respect to public hearings concerning a proposed development.

The action was launched by the Community Association of New Yaletown ("CANY"), a group of Yaletown residents and business-owners who sought a judicial review of two bylaws and a development permit that were passed by the City. The City had entered into a deal with Brenhill Developments Ltd. ("Brenhill"), the owner of an existing building at 1077-1099 Richards Street ("1099") containing its offices, a pre-school and a restaurant. Brenhill wished to purchase the property across the street at 508 Helmcken Street ("508"), known as Jubilee House, a social housing project containing 87 dwelling units which was in a state of disrepair. The deal stipulated that Brenhilll would build a 13-storey building at 1099 consisting of 162 social housing units in exchange for the City-owned property at 508, which the City would then rezone to allow for a 36-storey tower and the closure of an adjacent lane. Brenhill also gave the City $1 million towards tenant relocation costs, and agreed not to begin construction at 508 until it had fitted out and delivered 'turn-key' all units at 1099 to the City.

CANY grounded its petition on allegations that the City had breached the Vancouver Charter and the rules of procedural fairness by failing to disclose relevant documents at the public hearing concerning the development permit for 1099. It also sought a declaration from the Court that the agreement entered into by the City and Brenhill unlawfully fettered City Council, and that the bylaw rezoning of 508 was inconsistent with the Downtown Official Development Plan ("DODP").

CANY argued that the disclosure surrounding the public hearing for 1099 was inadequate because the City failed to divulge key documents including the agreements entered into between the City and Brenhill. While a land site is exempt from public tender if it is being used for "social purposes", CANY submitted that the land exchange meant that 508 would no longer be used for such purposes and so it should not be exempt.

The City countered that entering into the agreement with Brenhill was within its authority and that the agreement was not material to zoning issues so it served no useful purpose to tender it at a public hearing. It further argued that the land exchange itself was for "social purposes", and that City Council had not been fettered by the agreement because there was no guarantee to Brenhill that the rezoning application would succeed.

Brenhill submitted that even if the quashing of the zoning bylaw was warranted it should not be granted because of CANY's delay in bringing the petition and the consequential prejudice to Brenhill, which had incurred an estimated $7 million in expenses since construction of the 1099 project began in September 2013.

The Court found that the petition turned on whether the City had provided enough information in a comprehensible form to enable the public to fairly evaluate the pros and cons of both of the proposed developments as well as the land exchange itself. The Court stated that the package of material available to the public was highly technical, voluminous (nearly 100 pages), and full of peripheral information while only "interlaced" with the material vital to the issues. Furthermore, the dollar value estimates that the City provided to the public in touting the benefits of the social housing project were arbitrary, having no intelligible financial basis. The Court held that treating 508 and 1099 as separate and distinct issues for public hearing did not reflect the true substance of the project and residents should have been given a fair opportunity to make submissions related to the overall arrangement and whether the land exchange resulted in a net benefit or loss to the public, rather than being limited to a discussion on the density and dimensions of the two buildings.

The Court concluded that the public hearing and development permit processes were flawed, and ordered that the zoning bylaw pertinent to 508 as well as the development permit for 1099 be quashed and new public hearings held for each. It also quashed the City's bylaw amendment to the DODP, on the basis that the DODP cannot be amended to allow for a project that otherwise conflicted with the DODP.

The result of this decision on future public hearings and development permit processes is that the City:

  • must provide intelligible and understandable information to the public to allow for scrutiny and consideration;
  • must provide the public with a fair opportunity to communicate with City Council about the advantages and disadvantages of the proposal; and
  • must scrupulously consider the input from the public and cannot arrive at a pre-ordained conclusion.

Following the release of the Court's decision on January 27, 2015, the City issued a Stop Work Order on the construction at 1099 effective January 30, 2015.

While Brenhill has incurred an estimated $7 million in expenses with respect to the construction of the 1099 project the situation could have been worse had Brenhill also began marketing the development of the 508 project to the public under B.C.'s Real Estate Development Marketing Act ("REDMA").

Pursuant to REDMA a developer must file a new disclosure statement for their project when there has been a material change. The quashing of a development permit would constitute such a material change which would give purchasers under the original disclosure statement the right to rescind their purchases.

Developers and their lenders must now be aware of the risk that their development, even if it is under construction and being sold, could be stopped in its tracks in the event that any public hearing for rezoning or development permits have not been carried out adequately by the municipality.

At the time of writing this article it is unknown whether the parties plan to appeal.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
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).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.