June 10, 2015

Quarry Quandary - Case Comment

 Northern Construction Enterprises Inc. v Halifax (Regional Municipality)

Related Services

 In this decision (released on May 12, 2015), the Court of Appeal limits a municipality’s jurisdiction to regulate quarries and declares the subject by-law invalid.

In June, 2011 Northern Construction filed an application with the Nova Scotia Department of Environment to develop and operate an aggregate quarry on lands owned by Northern Construction near the Halifax Stanfield International Airport. The Nova Scotia Department of Environment required proof of municipal authorization for the project.

In April, 2012 the Halifax Regional Municipality (“HRM”) refused to issue a Development Permit to Northern Construction on the basis that the proposed operations would comprise “extractive facilities” prohibited under section 2.29 of the Land Use By-law for planning districts 14 and 17 (“LUB”) made pursuant to the HRM Charter. HRM’s refusal led to the rejection of Northern’s application with the Nova Scotia Department of Environment in July, 2012.

Northern Construction then appealed HRM’s refusal to the Nova Scotia Utility and Review Board. In January, 2013 the Board dismissed the appeal. Northern Construction then applied to the Nova Scotia Supreme Court to declare HRM’s by-law invalid. HRM argued that rock crushing and associated equipment in a quarry could be regulated by HRM in its LUB and that it was prohibited at the proposed site. Northern’s application was refused and the by-law was upheld, which led to the appeal to the Nova Scotia Court of Appeal.

On the appeal, the Court of Appeal considered whether HRM had authority to regulate by Land Use By-law the use of rock crushing equipment and other essential aggregate production activities within an aggregate quarry. In short, was section 2.29 of the by-law a valid exercise of municipal authority?

The Court cited the broad and purposive approach to the interpretation of municipal legislation set out in Halifax (Regional Municipality) v Ed DeWolfe Trucking Ltd, and explained that the modern municipality requires “greater flexibility in carrying out its statutory responsibilities”.

One of the expressed purposes of the HRM Charter is to protect the Province’s interest in the use and development of land. The court declared that the Province has exclusive jurisdiction over the location of quarries and by granting authority to HRM through the HRM Charter the Province excluded any authority over the actual quarries and only development adjacent to quarries could be regulated by the municipality.

The court found that the extraction process at quarries involves blasting operations and all activities fundamental to it, which could include a crushing spread, a scale house, a wash station and a staging area for equipment and storage. The court held that the by-law limited activities fundamental to extraction and unilaterally restricted the Province’s authority to regulate the location of quarries where crushing and other related activities were performed, since the by-law prohibited any associated work at an extraction site other than blasting of rocks.

Ultimately, the Court of Appeal overturned the Supreme Court of Nova Scotia’s decision by declaring section 2.29 of HRM’s by-law invalid and held that Northern Construction does not require HRM’s approval but, rather, only a provincial approval for the proposed quarry. The Court also directed that any replacement provision for section 2.29 must apply only to land “adjacent to . . . quarries” as described in the decision.

There is no automatic right of appeal to the Supreme Court of Canada from the decision. In order to overturn the decision, a party would require leave to appeal from the Supreme Court of Canada.

While HRM’s by-law was created based on the HRM Charter, the Municipal Government Act contains an identical enabling provision that allows municipalities in the Province to “regulate the location of developments adjacent to pits and quarries”. The recent decision should prompt municipalities to review existing by-laws and practices with respect to regulation of quarry facilities. It remains to be seen how the Province will respond to the ruling.

Kevin Latimer, Q.C. of Cox & Palmer, counsel to UNSM, practices in the areas of municipal and planning law, administrative and public law litigation and can be contacted at (902) 491-4212 or email at klatimer@coxandpalmer.com.

Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.