Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of Policy 4.5.24(c) of the Municipal Planning Strategy (MPS) regarding the meaning of “land used for intensive livestock operations.”

• Assessment of whether the Nova Scotia Utility and Review Board erred in law by adopting an interpretation that the language of the policy could not reasonably bear.

• Consideration of evidence regarding existing traffic conditions and whether the development would create excessive traffic hazards.

• The balancing of competing MPS objectives concerning agricultural protections and residential growth within Growth Centres.

• The relevance of definitions and provisions in the Land Use By-Law (LUB) in interpreting the MPS buffer requirements.

• The discretion afforded to Council in reconciling conflicting policies and determining appropriate controls based on scale and potential impact.

Facts of the case

Bradford and Constance Hopgood applied for a development agreement to build a multi-unit residential project in Port Williams, Nova Scotia, on land designated as “Residential” under the Municipal Planning Strategy (MPS) and primarily zoned as Comprehensive Neighbourhood Development (R5) and partly as Residential Mixed Density (R3). The project, located at 1207 Belcher Street, would occupy four lots on 12 acres and include three five-story buildings with 67 units, a two-unit dwelling, commercial space, community gardens, a playground, a community terrace, sidewalk connections, and trail upgrades. Cornwallis Farms Limited operates a livestock operation across Belcher Street from the proposed development. The farm opposed the project, arguing it failed to maintain the required 600-foot buffer from “land used for intensive livestock operations” under Policy 4.5.24(c) of the MPS and raised concerns about traffic hazards near the site.

The Municipality’s planning staff recommended approval, finding the proposal consistent with the MPS and Secondary Plan, and the Council approved the development agreement in July 2023. Cornwallis Farms appealed to the Nova Scotia Utility and Review Board (Board), which held a de novo hearing in December 2023. The Board dismissed the appeal on July 9, 2024. The Board found that Cornwallis’ pasture near the development was not “land used for intensive livestock operations” because its use was intermittent, seasonal, and not of the scale or impact that Policy 4.5.24(c) intended to regulate. The Board also found that the Traffic Impact Study, accepted by the Department of Public Works, adequately addressed traffic concerns and that the development would not create excessive traffic hazards.

Cornwallis Farms appealed the Board’s decision to the Nova Scotia Court of Appeal, arguing that the Board erred in its interpretation of Policy 4.5.24(c) and failed to consider dangerous traffic conditions. The Court heard the appeal on January 27, 2025.

Discussion of policy terms

Policy 4.5.24(c) of the MPS requires that “a separation distance of a minimum of 100 feet (30.5 metres) shall be maintained between any residential building and land actively used for crop land and 600 feet (183 metres) shall be maintained between any residential building and land used for intensive livestock operations.” The Court reviewed the Board’s interpretation of this policy and found that the Board correctly concluded the pasture was not “land used for intensive livestock operations.” The Board considered that the MPS and LUB focused buffer requirements on buildings or facilities for livestock, not on simple pasturing. Cornwallis’ pasture was used for rotational grazing, with cattle present intermittently and not in a manner that constituted intensive use.

The Court emphasized that the MPS provides discretion to Council to balance residential growth and agricultural protections, and terms like “intensive” are undefined and require judgment based on the scale of use and potential impact on neighbours. The interpretation adopted by the Board and endorsed by the Court was consistent with the intent of the MPS to mitigate land use conflict without unduly restricting residential development in Growth Centres.

Outcome

The Nova Scotia Court of Appeal dismissed the appeal, holding that the Board did not err in law and that the Council’s decision reasonably carried out the intent of the MPS. The Court found the interpretation of Policy 4.5.24(c) to be reasonable and supported by the evidence. It also found that the Board properly considered traffic issues, relying on the Traffic Impact Study approved by the Department of Public Works. No costs were awarded, consistent with usual practice in planning appeals where parties advance different interpretations of planning policies.