Carfra Lawton LLP | Victoria BC

Wide Discretion Exercisable by Council in Issuance of Development Variance Permits

In 1139652 B.C. Ltd. v. Whistler (Resort Municipality), 2018 BCSC 1806, the petitioners had sought a permit to vary development setback requirements in order to build a home on a small, irregularly shaped piece of land. Given the shape of the property, setback requirements under Whistler’s zoning bylaw only permitted a building footprint of 197 square feet. Neighboring property owners had opposed the permit application, expressing concern about the adverse effects of the proposed construction. Council refused to permit the variance. The petitioners then applied for judicial review of council’s decision on the basis of procedural fairness and that council’s refusal of the variance was unreasonable.

The court upheld council’s decision, noting that there are no express statutory criteria to guide the exercise of council discretion in considering applications to vary certain requirements of zoning bylaws, including setback requirements. The court found that council’s decision to deny the variance was grounded by consideration of relevant factors which included: the impact on the community of permitting a development on a small, irregular lot that had not been created by a conventional subdivision; the precedent it might set by permitting the variance; the strain that development would place on already marginal road access; the impact it might have on real estate prices; and that it was overwhelmingly opposed by the local community. The court held that, given the wide discretion exercisable by the council in assessing the application, the refusal of the development variance permit fell within the range of reasonable outcomes.

Case law summary by Caroline Alexander