Board of Variance: Third Party Appeals

Posted by Johannes Schenk on September 26th, 2006 — Posted in Municipal Law

Planning matters, whether they relate to development permits, building permits or zoning changes can get pretty heated. Can you say NIMBY? The Salisbury Gardens matter in Vancouver City is a perfect example of a planning matter gone sideways. A developer bought some land and obtained development permits from the City of Vancouver. The neighborhood thought that the land should be a park and two of the neighboring property owners appealed the Director of Planning’s approval of the development permits. The Vancouver Board of Variance overturned the permit approval and denied the development permits.

The decison was reviewed by the BC Supreme Court in Niebuhr et al. v. Vancouver (City) Board of Variance, 2006 BCSC 1425. The Court held that third parties do not have a right to appeal a development permit decision of the Director of Planning to the Vancouver Board of Variance. Third parties do get notice of an appeal hearing and may have standing to judicially review the Director’s decison. However, the right of appeal to the Board of Variance is restricted to the individual applying for the development permit and affected by the Director’s decision. NIMBY be gone.

The decision does away with individuals not materially affected meddling and tying up the development process but, having said that, direct neighbors are now in an unfortunate position of having little recourse to deal with zoning decisions made by the Director of Planning.

Take a look at the approach in Ontario, their Notice of Decision for Regulation and the Development Permits regulation. In developing the development permit system consideration was given to third party appeals and finally rejected.

Contrast this with the approach taken by the City of Calgary Subdivision and Development Appeal Board. Individuals materially affected have an appeal right.

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