Consistency Revisited: Sevin v. Prince George (City)

In the recent decision of Sevin v. Prince George (City), the B.C. Supreme Court declared invalid a zoning bylaw amendment that would have allowed a former elementary school in a rural zone to be used as a 30-bed addiction treatment centre.  The Supreme Court found that the amendment was inconsistent with the City’s Official Community Plan (the “OCP”), contrary to section 884(2) of the Local Government Act which requires that all bylaws adopted after the adoption of an official community plan must be “consistent” with the plan.

As noted in our Winter 2012 issue, the Court of Appeal recently considered the requirement for consistency between an OCP and zoning bylaw in Residents and Ratepayers of Central Saanich Society v. Central Saanich.  In that case the Court of Appeal held that the courts should not interfere with any “reasonable interpretation” that is consistent with the OCP, and that decisions applying the OCP necessarily involve balancing a variety of objectives and policies under the OCP.

In Sevin, the proposed re-development of the now-closed elementary school into a treatment facility required a rezoning of the land from AR2 Rural Residential to Z16 Therapeutic Community zoning.  After holding a public hearing, the City passed the zoning amendment.  A staff report that Council considered had suggested the zoning amendment was consistent with the OCP. In particular, the staff report referred to statements contained in the land use policies for “Residential (Urban)” lands that were said to support the establishment of community residential facilities throughout the municipality.  The Petitioner was a resident of the area near the proposed site for the treatment centre, and brought an application for judicial review of the bylaw amendment.  The petition asserted that the amendment was invalid and should be quashed for being inconsistent with the OCP. The OCP designated the land as Rural B for “moderate intensity rural residential use.”

The Petitioner argued that although the OCP included an initiative to support community care facilities that these provisions applied only to urban areas designated under the OCP, and not to rural or agricultural areas.  The Petitioner further argued that the institutional nature of the recovery facility was at odds with the rural, residential use of the lands.

Ultimately, the court found in favor of the Petitioner and held that the zoning amendment was invalid, due to being inconsistent with the OCP. In particular, the Court held that the statements supporting community residential facilities in the land use policies for Residential (Urban) lands had no application to lands designated as Rural and Agricultural, based on the wording of the OCP.

In reaching its decision, the court referred to the reasonableness standard to the re-zoning amendment, citing with approval the recent B.C. Supreme Court decision of Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2.  The application of the reasonableness standard was restricted to the consideration of whether passing the zoning amendment fell within a reasonable range of alternatives available to the City, in light of the legislative scheme and contextual factors relevant to the exercise of power.  The decision was not based on whether the treatment facility was a reasonable use of the building or whether the provisions proposed by the developer to limit disruption to the neighbours were reasonable.  While these considerations were valid matters for Council when considering the amendment, they were not matters the court held relevant to the question of whether the proposed bylaw was consistent with the OCP .

In Catalyst, the Supreme Court of Canada stated at paragraph 24 of that decision: “The fact that wide deference is owed to municipal councils does not mean that they have carte blanche.”  The Sevin decision may serve as a reminder to municipal Councils that there are limits on the broad discretion afforded to Council when interpreting an OCP. If statements or policies in an OCP are to referred to in support of a consistency analysis, care should be taken to ensure that they do in fact have relevance to the decision in question.