Halifax has petitioned the Supreme Court of Nova Scotia to affirm that the municipal regulations restricting infilling in Dartmouth Cove in Halifax harbor are officially in place, challenging what the municipality deems as “unreasonable” provincial stipulations.
In November, Municipal Affairs Minister John A. MacDonald greenlit Halifax’s planning and bylaw amendments to restrict infilling in Dartmouth Cove with certain conditions. These conditions include demonstrating that all affected land parcels fall within the municipality’s boundaries and ensuring that the measures do not encroach on federal authority.
Despite the Halifax Regional Municipality and Mayor Andy Fillmore providing additional information to MacDonald and provincial officials in recent months, the minister remains dissatisfied. Consequently, last Friday, HRM filed a notice of judicial review seeking the Nova Scotia Supreme Court’s clarification on the minister’s conditional approval. The municipality is seeking a declaration that the original changes passed by Halifax council in October should be considered “in force and effect” without alterations by the minister.
HRM is also requesting a declaration that the minister’s amendments were “unreasonable and ultra vires the minister,” indicating actions beyond his legal mandate. Jill Brogan, co-founder of Friends of Dartmouth Cove, expressed optimism that Halifax is fully committed to these changes.
The notice for judicial review is described by Sarah Brannen, an HRM spokesperson, as a precautionary step that the municipality had to take. Both Brannen and a representative from Fillmore’s office expressed hope on Tuesday that the issue could be resolved without resorting to further legal action.
Residents and officials from various levels of government have urged Halifax to restrict infilling in Dartmouth Cove following a proposal by Atlantic Road Construction and Paving to infill their water lot with rock, claiming it would enhance water quality and wildlife in the cove.
Bruce Wood, the company’s CFO, lamented the potential costly legal battle with the province, drawing parallels to Halifax’s legal dispute with Annapolis Group developers. Wood warned that if the bylaw takes effect, they would pursue legal action based on constructive taking and spot zoning claims.
Meanwhile, Halifax raised concerns regarding the company potentially commencing construction on their water lot without authorization. Wood clarified that there were no immediate plans for physical work. Although Transport Canada has granted a permit, approval from Fisheries and Oceans Canada is still pending.
In its grounds for review, Halifax criticized MacDonald’s requirement for direct confirmation from Justice Canada on federal jurisdiction infringement, deeming it unreasonable. The municipality argued that MacDonald’s conditional approval is based on an action beyond HRM’s control and may never be satisfied.
Halifax also argued that under the Halifax Charter, the minister must approve, reject, or modify planning changes within 30 days of council approval, with no provision for extensions. The municipality contended that if the minister fails to decide within the 30-day period, the planning document is deemed approved.
Heather Fairbairn, a municipal affairs spokesperson, declined to comment as the matter is sub judice.