BC COURT GIVES DIRECTION REGARDING HOW REGIONAL GROWTH STRATEGIES IMPACT DEVELOPMENT APPROVALS

By Peter Kenward

Peter Kenward

The BC Supreme Court has released its decision in Greater Vancouver Regional District v Langley, TWU and Wall. The decision has significant implications for private sector developments confronted with assertions by a Regional District related to the implications of its Regional Growth Strategy for development applications.

The decision arose from a challenge by the Greater Vancouver Regional District ("GVRD") to an Official Community Plan Bylaw ("OCP") amendment bylaw enacted by the Township of Langley, further to applications by Trinity Western University and a private sector land owner. We were counsel for the private sector applicant in the case.

If you require legal advice regarding the potential implications of a Regional Growth Strategy for circumstances you may be facing, feel free to give us a call.

1. Municipal jurisdiction over land use, relative to the Regional District's jurisdiction

The Court's decision includes numerous statements regarding the role of the Regional District's relative to municipalities in connection with land use planning, including the following:

Other paragraphs to a similar effect are paragraphs 57 and 59, noted below.

2. Issues before the Court

The Court summarized the four issues raised by the proceeding as follows:

3. The standard of review the Court is to apply

The "standard of review" issue relates to the standard that a Court is to apply when examining the decision to enact the OCP Bylaw amendment.

The Court held that the appropriate approach was to determine whether the municipality's decision to enact the OCP Bylaw amendment was 'reasonable' (ie – within the range of decisions that the municipality could reasonably make).

This is a preferable standard from the municipal (and property owner) perspective than what the GVRD had argued for, which was that the Court was to determine whether the 'correct' decision has been made, taking the perspectives of both the GVRD and Langley into account.

The Court's reasoning included that:

4. The test the Court is to use to evaluate "consistency"

Section 866(3) of the Local Government Act provides that:

The Court held, applying previous case law related to the application of OCP bylaws, that:

5. The application of the 'inconsistency' test to the particular OCP amendment

On the facts of the case, the GVRD had alleged that the particular OCP amendment in question created an inconsistency between the OCP and the Regional Context Statement in two ways, being that it:

The GVRD's first argument required the "incorporation by reference" of certain minimum lot size provisions in Langley's Rural Plan. (That was because the Regional Context Statement only referenced minimum lot sizes generally, and the specific minimum lot sizes that the GVRD said was violated was in the Rural Plan.)

The Court held that the test for 'incorporation by reference' was not met, because:

Turning to the "impact on the rural character of the Green Zone" argument, the Court indicated that:

adding that:

6. Whether the OCP amendment was an "unauthorized amendment" to the Regional Context Statement

Finally, the Court made two points in response to the GVRD's argument that the OCP Bylaw amendment was an unauthorized amendment of the Regional Context Statement.

First, the Court noted that the argument relied on the proposition that the Rural Plan provisions had been "incorporated by reference" into the Regional Context Statement (which the Court had already rejected).

Second, the Court noted that:

The Court then made the further statements at paragraphs 68 to 72 noted above, in response to other arguments made by the GVRD in support of its assertions of an 'unauthorized amendment'.

Peter Kenward