Court Finds that Zoning Bylaw is Consistent with Official Community Plan and Denies Challenge Brought by Community Association against High-density Development

The B.C. Supreme Court recently dismissed a judicial review petition challenging the validity of a Town of Gibsons zoning bylaw amendment on grounds that it conflicted with the Official Community Plan (OCP) by allowing for a new high-density residential development in Gibsons.

The Court’s decision, cited as O’Shea/Oceanmount Community Association v Town of Gibsons, 2020 BCSC 698,  canvasses a number of key issues relating to challenges brought against bylaws, including:

  • the applicable standard of review to be applied on this type of judicial review,
  • the nature of the evidence that is admissible before the Court, and
  • the scope of what is a “reasonable” decision by a local government legislative body.

Perhaps most notably, however, the Court discusses the nature of the relationship between an OCP and a zoning bylaw and the extent to which zoning bylaws must be consistent with the OCP.

The community association argued that the amending bylaw permits density that exceeds the limits set out in the OCP because the bylaw arbitrarily excludes the OCP units per hectare measurement and incorrectly alters the definition of floor space ratio from the OCP. Further, the association challenged that Town staff had incorrectly and misleadingly advised Council that the draft amending bylaw was compliant with the OCP despite these alleged inconsistencies.

The OCP describes the relevant residential zone as having “generally 20 to 25 units per hectare”, whereas the amending bylaw allowed for 48 units per hectare. The Court found that the word “generally” in the OCP was akin to “usually”, but was not the same as “always”, such that the OCP contemplates that there will be exceptions or circumstances in which there may be deviation from the 20-25 units per hectare provision.

Further, the applicable development permit area (DPA) provisions provided for “approximately” 40 units per hectare, whereas the proposed development would have approximately 5 additional units per hectare. The Court found that this deviation was “within the range of reasonable options open to Council” as it was “approximately” close to the DPA guidance.

Whereas the units per hectare provisions in the OCP were found to be general guidelines, the Town conceded that the floor space ratio (FSR) provisions are more specific. The petitioner argued that while the FSR of 0.75 in the amending bylaw was the same as the FSR set out in the OCP, the amending bylaw failed to include a requirement from the OCP that the FSR ratio was to be applied not against the entire land area, but only as against the net area after subtracting non-developable portions used for roads, parks, and ponds, etc. The table in the OCP setting out the applicable FSRs for various zones contained a footnote stating that “floor space ratio limits apply to the net surface area for individual properties, exclusive of areas that would be dedicated for roads, parks, etc.” The Court found that this footnote is not a definition and that “its location at the end of Table 5-1 in the OCP supports the conclusion that it is a guideline or explanatory note that helps explain the FSR Table at 5-1. To read anything more into it is to give the OCP more power than was intended.” The Court stated further that even if the footnote is taken to be a definition it does not require the subtraction of all areas for public use and access but only those lands to be used as “roads, parks, and the like”.

In dismissing the petition, the Court ultimately took a broad view of the decision by Council to adopt the amending bylaw, noting that “[w]hile there may appear to be some inconsistencies with the OCP when parsed out into smaller sections, those inconsistencies are minor, and when viewed as a whole they disappear”.

This decision, like the B.C. Supreme Court’s 2019 decision in Wells v Victoria (City), 2019 BCSC 2267, is yet another recent example that B.C. courts will grant wide discretion to local government legislative bodies in adopting zoning bylaws that may, at first instance, appear to be inconsistent with statements in an OCP. The courts consider consistency holistically and in conjunction with other considerations that may have factored into the making of the decision by the municipality. So long as it can be found that a “reasonable body, informed by all applicable factors, could determine that” there is consistency, then the court will not interfere with the challenged zoning bylaw.