In this decision (released on May 12, 2015), the Court of
Appeal limits a municipality's jurisdiction to regulate
quarries and declares the subject by-law invalid.
In June, 2011 Northern Construction filed an application with the
Nova Scotia Department of Environment to develop and operate an
aggregate quarry on lands owned by Northern Construction near the
Halifax Stanfield International Airport. The Nova Scotia Department
of Environment required proof of municipal authorization for the
In April, 2012 the Halifax Regional Municipality ("HRM")
refused to issue a Development Permit to Northern Construction on
the basis that the proposed operations would comprise
"extractive facilities" prohibited under section 2.29 of
the Land Use By-law for planning districts 14 and 17
("LUB") made pursuant to the HRM Charter. HRM's
refusal led to the rejection of Northern's application with the
Nova Scotia Department of Environment in July, 2012.
Northern Construction then appealed HRM's refusal to the Nova
Scotia Utility and Review Board. In January, 2013 the Board
dismissed the appeal. Northern Construction then applied to the
Nova Scotia Supreme Court to declare HRM's by-law invalid. HRM
argued that rock crushing and associated equipment in a quarry
could be regulated by HRM in its LUB and that it was prohibited at
the proposed site. Northern's application was refused and the
by-law was upheld, which led to the appeal to the Nova Scotia Court
On the appeal, the Court of Appeal considered whether HRM had
authority to regulate by Land Use By-law the use of rock crushing
equipment and other essential aggregate production activities
within an aggregate quarry. In short, was section 2.29 of the
by-law a valid exercise of municipal authority?
The Court cited the broad and purposive approach to the
interpretation of municipal legislation set out in Halifax
(Regional Municipality) v Ed DeWolfe Trucking Ltd, and explained
that the modern municipality requires "greater flexibility in
carrying out its statutory responsibilities".
One of the expressed purposes of the HRM Charter is to protect the
Province's interest in the use and development of land. The
court declared that the Province has exclusive jurisdiction over
the location of quarries and by granting authority to HRM through
the HRM Charter the Province excluded any authority over the actual
quarries and only development adjacent to quarries could be
regulated by the municipality.
The court found that the extraction process at quarries involves
blasting operations and all activities fundamental to it, which
could include a crushing spread, a scale house, a wash station and
a staging area for equipment and storage. The court held that the
by-law limited activities fundamental to extraction and
unilaterally restricted the Province's authority to regulate
the location of quarries where crushing and other related
activities were performed, since the by-law prohibited any
associated work at an extraction site other than blasting of
Ultimately, the Court of Appeal overturned the Supreme Court of
Nova Scotia's decision by declaring section 2.29 of HRM's
by-law invalid and held that Northern Construction does not require
HRM's approval but, rather, only a provincial approval for the
proposed quarry. The Court also directed that any replacement
provision for section 2.29 must apply only to land "adjacent
to . . . quarries" as described in the decision.
There is no automatic right of appeal to the Supreme Court of
Canada from the decision. In order to overturn the decision, a
party would require leave to appeal from the Supreme Court of
While HRM's by-law was created based on the HRM Charter, the
Municipal Government Act contains an identical enabling provision
that allows municipalities in the Province to "regulate the
location of developments adjacent to pits and quarries". The
recent decision should prompt municipalities to review existing
by-laws and practices with respect to regulation of quarry
facilities. It remains to be seen how the Province will respond to
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