The City of Vancouver and Brenhill Developments Ltd. have
appealed the January 27, 2014 decision of the BC Supreme Court in
Community Association of New Yaletown v Vancouver (City),
2015 BCSC 117 (the Brenhill/New Yaletown decision). The appeal
challenges a decision that imposed extensive new public disclosure
requirements on the City and stopped Brenhill's construction of
a social housing project nearly nine months after it was approved
by the City.
In Brenhill/New Yaletown, Mr. Justice McEwan of the BC Supreme
Court ruled that the City had acted unfairly in its public
consultation process for the rezoning of a City-owned property in
the Yaletown area and a development permit for an adjacent
property. The background facts were that Brenhill and the City had
negotiated a proposal in which Brenhill would:
build a new 13-storey social housing
project at a property owned by Brenhill (1099 Richards) to replace
and expand older social housing at an adjacent property owned by
the City (508 Helmcken);
upon completion of the new project at
1099 Richards (which required a development permit), transfer
ownership of 1099 Richards to the City in exchange for 508 Helmcken
and the closure of an adjacent lane;
provide a cash contribution of $1
million to the City; and
(after the residents of 508 Helmcken
moved to 1099 Richards) proceed with development of a new 36-storey
tower at 508 Helmcken (which required a rezoning by-law).
In August 2013, after a public consultation process, the City
approved a development permit to build the social housing project
at 1099 Richards and in March 2014, enacted the rezoning by-law to
allow the tower at 508 Helmcken.
On April 25, 2014, Community Association of New Yaletown (New
Yaletown) was incorporated, and in May 2014, New Yaletown brought
an application under the Judicial Review Procedure Act
(JRPA) which ultimately resulted in the Court quashing the rezoning
by-law and the project's development permit. This relief was
granted despite that the developer, Brenhill, had started
construction in September 2013 and spent approximately $7 million
in reliance on the City's project approvals.
The Court held that for a valid public hearing, the City must
provide the public with a transparent, complete and comprehensible
description of any proposed project, including details of
confidential agreements entered into by the City with the
developer, the project's advantages and disadvantages, the
City's financial justifications for the project and the
analyses and assumptions underlying those justifications. The
presumption is that without such disclosures, the public cannot
offer informed commentary for City Council to consider before
making its discretionary decisions on matters of land use and other
The Brenhill/New Yaletown decision has left many Vancouver
development projects in a state of uncertainty. The additional
disclosure mandated by the Court in Brenhill/New Yaletown have
increased the risk that public hearings held in respect of other
already-approved development projects could be challenged and found
to have been conducted unfairly because of an alleged lack of
fulsome disclosure. Of equal concern was the Court's
willingness to allow New Yaletown to initiate JRPA proceedings many
months after the expiry of the one month post-enactment period
during which a by-law or resolution can be challenged under the
Vancouver Charter, and despite that Brenhill had started
construction more than eight months before.
The City and Brenhill are expected to seek an expedited appeal
process that could result in a decision from the British Columbia
Court of Appeal as early as late May 2015. As the appeal process
plays out, developers with projects underway in Vancouver will be
left in legal limbo for at least a few more months.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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