Consistency Between an Official Community Plan and Zoning Bylaw

On April 18, 2011, the BC Supreme Court delivered its reasons for judgment in Residents and Ratepayers of Central Saanich Society v. Central Saanich (District). This decision builds on the existing case law that addresses the issue of consistency between official community plans (OCP) and zoning bylaws. Section 884(2) of the Local Government Act requires that all bylaws adopted after the OCP must be consistent with that plan.

Until recently, the leading case providing guidance on the meaning of “consistency” was the 1983 BC Supreme Court decision in Rogers v. Saanich. Under the test suggested in that case, a bylaw would be considered inconsistent with the OCP only where there was an “absolute and direct collision” between them.

Then, in 2009, the Yukon Territory Court of Appeal in McLean Lake Residents’ Association v. Whitehorse (City) suggested a stricter test, namely “compatibility”.

In rejecting the “absolute and direct collision” test, the court in McLean Lake said:

“…what council cannot do is authorize land-use that is incompatible with an OCP’s long-term vision for that land… [Absolute and direct collision] terminology suggests that the line a municipal council cannot cross is higher than it actually is, as it implies that a council is authorized to act in a manner that is incompatible with an OCP, provided what it does is not too incompatible.  This is not to suggest that a finding of incompatibility should be readily made.  To the contrary, such a conclusion can only be reached after the impugned bylaw (or action) and the OCP have been subjected to careful scrutiny.”

While the McLean Lake decision did not create a binding precedent on courts in B.C., there has been a growing sentiment among local government lawyers that the compatibility test put forward in that case would replace the test in Rogers. The lawyers could only wait until the courts revisited the issue.  The wait may have ended on April 18, 2011.

In Residents and Ratepayers of Central Saanich Society v. Central Saanich (District), the plaintiff Society petitioned the court to quash a zoning bylaw on the grounds that it was inconsistent with the OCP.  The OCP had designated as “rural” an area in which a development was proposed. The zoning bylaw in question permitted the subdivision of a 13 hectare portion of private farmland into 57 residential lots. The primary issue was whether that development, as permitted under the bylaw, qualified as “rural”.

Despite planning staff’s opinion that the zoning bylaw was inconsistent because the development could not qualify as “rural” within the meaning of that designation under the OCP, Council adopted the bylaw.  As a pre-condition to adopting the bylaw, Council required the registration of a section 219 covenant.

The covenant required, among other things, the prohibition of further subdivision of two larger parcels, the establishment of park land and public pathways, a 25 year lease over 3 hectares of land for use as a public garden, a nuisance easement over the lands being subdivided permitting the farm related noises and odours from the lands that would continue to be used for farming, and that the proposed residences would be constructed to the EnerGuide Rating 80 or higher.

In determining whether the bylaw was inconsistent with the OCP, the court avoided applying the tests formulated in the McLean Lake and Rogers cases mentioned above.  Instead, the court opted to defer to Council’s interpretation of the OCP, provided that interpretation was reasonable:

“Whether the development permitted by the bylaw was inconsistent with the concept of rural, as set out in the District’s Official Community Plan, is a matter of interpretation.  An Official Community Plan is not drafted in the terms of a statute but rather, in terms of objectives and policies, which are necessarily much less specific than statutory terms.  It is obviously not possible to promote each of the many objectives of the Official Community Plan equally in a single instance, therefore decisions applying that plan must involve the exercise of judgment in balancing various objectives in each case.

The Court in considering a bylaw passed by a municipal council is not dealing with an adjudicative tribunal, but a decision by elected council members, who have concluded in the exercise of their judgment, how best to accommodate the various policies and objectives they must serve. This does not empower council to misinterpret the Official Community Plan but it does suggest that the court ought not to interfere with any reasonable interpretation consistent with the OCP.”

In coming to this conclusion, the court referred to the fact that while the zoning bylaw permitted an increase in density, that density remained significantly less than permitted in urban zones. In the court’s view the bylaw and the covenant achieved a number of the objectives of the OCP, including by consolidating the land that was actually suited for farming and further restricting it from development. It was appropriate to consider the covenant and the bylaw together when examining whether the bylaw was consistent with the OCP, because the approval of the bylaw put into place the measures agreed to in the covenant.  The court concluded that having considered the OCP, the staff report and the benefits conferred by the covenant, council was acting reasonably in adopting the zoning bylaw.

This decision may be subject to appeal and thus caution should be taken in relying on it extensively.  Nonetheless, it acknowledges that publicly elected bodies are best placed to consider the many objectives and policies set out in the OCP and to decide whether a particular development application strikes an appropriate balance among those various policies.  The decision also suggests that a council’s requirement for covenants (and possibly other agreements) aimed at promoting conservation or achieving other policies in the OCP (e.g. development vs. environmental protection), may be considered in the analysis of consistency between a rezoning bylaw and OCP.