Nova Scotia court dismisses citizen challenge to Fall River development

A Nova Scotia judge has dismissed a court challenge to a controversial development in the Halifax area, ruling it had not been filed during the required time period.

Last November, a group of residents asked the Nova Scotia Supreme Court to review the provincial government's approval of a Fall River development.

The group had raised safety concerns about the lack of emergency egress given it was on a dead-end road, and had a CN railway passing through the site.

Resident David Nunn, the primary applicant in the judicial review request, said Justice Ann Smith dismissed the case last Thursday because their group had filed the challenge after the required 25-day window.

"We don't even get a chance," Nunn said Friday. "There is no ability for the community to engage on any of the issues that were brought up."

Although the development was rejected by Halifax regional council in 2022, the province designated the site as a special planning area in February 2024. The designation allows the province to make decisions on developments in the municipality.

Municipal Affairs Minister John Lohr announced last August that the province had approved a development agreement with Perry Lake Developments for three multi-unit buildings on the 12-hectare site, creating about 120 housing units.

Provincial lawyers argued that the 25-day clock started then, Nunn said, and the judge ruled in their favour.

Nunn said the group's lawyer had argued the 25 days started after the development agreement had been registered in the registry of deeds — and even if that was not the case, asked the judge to use her discretion to allow the case to move forward.

Their group thought it was important to review the actual development agreement before filing a court challenge, which is why it waited until November, Nunn said.

The agreement ended up being similar to what was presented to Halifax council in 2022, but Nunn said if the group had moved forward without seeing the papers it would have been "guessing."

The situation highlights the need to move quickly for anyone thinking of challenging future developments in special planning areas, Nunn said. 

Nunn said he was especially disappointed to see the provincial executive panel on housing, which makes recommendations on special planning areas, took just 36 minutes to discuss the proposed Fall River development in a July 9, 2024 meeting.

"Close to the railway, you know, how did you deal with the safety, vibration? How did you deal with the noise issue? And a lot of that just could be as simple as … putting up a berm and a fence and requirement in the [development agreement] … or scale it back," Nunn said.

"But none of those points will ever get the light of day, nor were they ever considered, as far as we can determine."

The housing panel itself was divided about the project, with three of the five present members voting in favour and two against. The minutes don't reflect who voted in which way, but the panel has two Halifax planning and development municipal staff members. The other three are appointed by the province.

Nunn said the special planning area process, which includes no public participation, leaves residents in the dark about why certain sites are chosen.

The Fall River project does not fit most of the province's criteria for special planning areas, Nunn said.

CBC asked the province for a reaction to the court decision and resident's concerns about the development. This story will be updated with any response.

Nunn said their group is considering an appeal of the judge's decision.