Original language
English
Country
Canada
Date of text
Status
Unknown
Type of court
National - higher court
Sources
Court name
Nova Scotia Court of Appeal
Seat of court
Halifax
Reference number
2010 NSCA 66
Files
Justice(s)
Oland.
Abstract
A property owner replaced its application for a development agreement for the construction of 26 residential units with an application for subdivision approval as of right. On its subdivision application, the owner had initially certified that the subdivision was for a "vacant/residential" purpose. This it changed to a "vacant woodlot" purpose. Before subdivision approval was granted, the owner applied for development permits for the construction of 26 residential units on the lots. The Municipality's development officer had received that application before she granted subdivision approval of the property. The appellant applied for certiorari quashing the final subdivision plan approval and seeking declaratory relief. It argued that the granting of the subdivision application was supported by a false certificate by the owner that was accepted by the development officer with full knowledge of its falsity. It appeals the judge's dismissal of its certiorari application.
Appeal dismissed. The judge correctly observed that, unless it was unreasonable, deference must be paid to the decision of the development officer. His acceptance of her view that she could only review what was before her and decide whether it complies with the requirements did not amount to palpable and overriding error. There was no evidence and no finding that the owner proposed anything other than an on-site sewer system. Accordingly, the central sewer requirements were not applicable. The judge did not err in stating that the owner would have to comply with the same sewer services requirements whether it proceeded by way of development agreement and subdivision approval followed by development permits. The judge did not fail to address or make a finding as to the falsity of the certification. He stated that he was not satisfied that fraud had been established. The judge's refusal to grant declaration relief, a discretionary remedy, does not amount to an error in principle or give rise to a patent injustice.