Two recent decisions of the BC Supreme Court have raised questions about the purpose and effect of regional growth strategies and the extent to which they actually will serve as a legally enforceable framework for regional planning goals in the face of municipal decision-making.
The cases involved two areas of land located within the Agricultural Land Reserve. GVRD had designated the area as “Green Zone” in its “Strategic Plan”. The GVRD’s Liveable Region Strategic Plan contained general statements regarding protection of the Green Zone.
The Langley OCP included, in its regional context statement, a general statement of consistency with the Strategic Plan and included a reference to Langley’s Rural Plan, and how that protects the Green Zone established by the Strategic Plan by “setting minimum lot sizes to preserve a land base for agricultural production (sections 5.5 and 5.6)”. The Rural Plan contained other language generally supporting agricultural uses and indicating that non-agricultural uses that didn’t comply with the provisions of the Rural Plan would not be permitted.
A proposal came forward to Langley involving property knows as the A.C.T. Stock Farm property owned by the respondent Wall, as well as properties in which Trinity Western University had an interest.
Under the conditions established by the Agricultural Land Commission on an application for creation of a residential subdivision within the A.C.T. Stock Farm property, 57% of the farm was set aside for future agricultural use and 33% was to be given to Langley for salmon habitat enhancement.
In addition to facilitating the residential development of part of the A.C.T. Stock Farm, the OCP amendment adopted by Langley created a “university district” within the Green Zone that allowed for residential uses for the purpose of reducing the need to travel to and from Trinity Western University and for commercial uses to provide for day to day services for the academic and residential population that was envisaged in the area.
The GVRD objected to the new OCP bylaw on the basis that it undermined the Green Zone and that it was illegal because it created inconsistency between the Official Community Plan and the regional context statement contrary to section 866(3) of the Local Government Act.
The Court rejected the GVRD’s position, and in coming to its conclusion made a number of rulings that will likely affect the strength and enforceability of principles contained in regional growth strategies in future.
First, the Court rejected GVRD’s argument that the question of consistency was to be determined using the test of “correctness”, instead preferring to find that the decision of Langley council should be reviewed on the standard of “reasonableness” and develop the test as follows:
“The OCP and regional context statement are consistent if a reasonable body, informed by all applicable factors, could determine that they are.”
In coming to that conclusion, the Court dismissed an argument that as two levels of local government, the GVRD and Township of Langley were essentially equivalents and that the decision of one body, as reflected in its Strategic Plan, should not be less valid than the decisions of a municipal council reflected in its OCP and zoning bylaw. The Court found that the two parties were not equal, emphasizing the nature of a municipal council as a body composed of officials elected directly by the residents, as opposed to a regional board whose members consist of appointed representatives of its member municipalities as well as the weighted vote that created disparity between Langley and other larger municipalities at the Board table.
GVRD argued that the inconsistency under the zoning bylaw arose because it permitted an inconsistent minimum lot size and failed to maintain, retain or enhance the rural character of the Green Zone.
The Court again rejected the arguments put forward by GVRD. With respect to lot size, the Court found that the reference to the Rural Plan was not intended to incorporate language in the Rural Plan regarding the establishment of minimum parcel sizes, but simply constituted a passing mention of the Rural Plan without the intent or effect of establishing a clear standard.
With respect to the preservation of the rural character of the Green Zone, the Court found that the OCP was essentially a visionary document, as was the Strategic Plan, and that it was up to Langley council to make its decision in a reasonable manner balancing the objectives included in the planning documents. Secondly, the Court noted that area to be included within the development area would represent only 1/50 of 1% of the land in the Agricultural Land Reserve within Langley, and that this could not be seen as undermining the objectives stated in the Strategic Plan.
The Court also found that the GVRD had exaggerated the legal impact of the regional context statement and found that the regional context statement did not create enforceable duties but rather “guidelines for long term planning”. The Court accepted the position that the regional context statement within the OCP created a visionary set of policies that could not be interpreted with the same rigour as legislation.
The Court accordingly concluded that the municipality had been reasonable when it determined that Bylaw 4947 was consistent with the regional context statement and concluded that section 866(3) of the Act had not been violated.
A companion case decided at the same time, Greater Vancouver Regional District v. Langley (Township) and Hendricks, came to the same conclusion with respect to a challenge to another OCP amendment bylaw that changed the designation within the GVRD designated “Green Zone” from small farms/country estates to “rural residential”.
In a sense, these decisions are very much a follow-up to the approach taken by the courts in Residents and Ratepayers of Central Saanich Society v. Central Saanich (District), a decision of the BC Court of Appeal that upheld as valid a decision by the Council of Central Saanich to amend the zoning of agricultural land so as o permit development of a higher density residential development on a clustered basis while preserving another part of the land for future agricultural use. Yet the Central Saanich case involved two documents created by the same legislative body. The GVRD cases involved a planning document that must be accepted by all municipalities and that includes a regional context statement that similarly must be accepted by the regional district.
Unless overturned on appeal, the question of determining consistency based on the Central Saanich decision and the Langley decisions, will now reside essentially in the hands of municipal councils alone, who have a fairly broad latitude to determine whether proposed new developments are consistent not only with Official Community Plans but also regional context statements regardless of what the ‘reasonable’ opinion of the regional district might be.