Saturday, 26 May 2012


            Under s. 573 of the Vancouver Charterany person aggrieved by a decision on a question of zoning by any official charged with the enforcement of a zoning bylaw” has a right of appeal to the Board of Variance. It was assumed by the City and citizens alike for at least sixty years that this gave the neighbors of a permit holder the right to appeal to the Board and have a permit set aside. 

              They were wrong.

            The City of Vancouver issued a development permit to my client to build two duplexes on two 30 foot lots. He requested minor zoning relaxations. The next door neighbor filed an appeal to the Board of Variance in which she argued that (1)the  two existing houses on the lot had heritage merit, and (2) the City should buy the property and make it a park. She was supported by many neighbors and activists who  considered the heavily treed lots in East Vancouver, known to them as Salisbury Gardens to be quasi public property.  The Board of Variance sympathized  and quashed the permits.

The builder, applied to the Court to set aside the decision. I argued that none of the matters raised by the lady next door dealt with the impact of the requested relaxations on her house or upon other neighbors.

Mr. Justice Goepel agreed but went much further. He held in  the case of Niebuhr v. Board of Variance that upon a close reading of the Vancouver Charter the Board had no jurisdiction to hear third party appeals at all.

The neighbor appealed. Then matters heated up and the NPA Council fired the entire Board of Variance. The replacement Board appointed by Mayor Sullivan did not appeal. The Neighbor's appeal eventually reached the Court of Appeal who declined to hear it on the merits because she had failed to properly apply to be a party to the action. Leave  was denied by the Supreme Court of Canada.

As things stand any person who wants to challenge a development permit issued to a neighbor that adversely affects his or her enjoyment of his property no longer has that right.  Citizen groups have been asking  the VISION Council for several years to seek a Vancouver Charter amendment to allow what everyone thought was already the law.  That is the last thing the development industry or the planners want and so it has not happened.

The decision by Judge Goepel was correct. The demands of the neighbors were outrageous and the decision of the Board was completely unreasonable.  The Vancouver Charter was poorly drafted and ambiguous on the point.    It should, however, be carefully studied and then amended to allow affected neighbors to appeal planners’ decisions on specified legitimate grounds. For example if the planner in deciding to allow a conditional use fails to properly apply guidelines his decision should be reviewable.   

It is fundamentally unfair that bureaucrats can make discretionary decisions that take from one neighbor and give to another without a right to have the decision reviewed.

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