Initial preliminary hearing by conference call
Once a notice of appeal has been filed, the Clerk of the Board will immediately contact the parties by letter to set out the responsibilities of the respective parties in the conduct of the appeal and to schedule a preliminary hearing to set the dates for the public hearing and for the filing of evidence and documents by the parties. The letter will propose a time line leading to the public hearing on the merits.
The Board will hold the preliminary hearing within two weeks after receiving the notice of appeal. This preliminary hearing will be conducted by telephone conference call. The Board will initiate the call. After the preliminary hearing, the Board will issue a Hearing Order confirming the dates and giving the parties directions on disclosure and procedure.
Appeal record filed by Town or Municipality
The Municipal Government Act (the "MGA") and the Halifax Regional Municipality Charter (the "HRM Charter") set out strict time lines for the conduct of planning appeals. Under s. 250A(1) of the MGA or s. 266(1) of the HRM Charter, the Municipality must file a complete Appeal Record within 14 business days of the Municipality being notified by the Board of the filing of the notice of appeal. The Municipality must also provide a copy of the Appeal Record to the appellant. The Appeal Record must contain all the information which was before municipal council or the development officer at the time the decision was made. The public hearing of the appeal must begin within 45 days of the Appeal Record being filed.
Public advertisement and notification to nearby assessed owners
Following the scheduling of a hearing date, a notice of hearing will be prepared by the Clerk of the Board and published two times in a local newspaper. The newspaper will invoice the appellant directly for the cost of these advertisements in accordance with Rule 20 of the Municipal Government Act Rules.
The Clerk will also send the appellant a letter directing that a copy of the notice of hearing be served on all assessed owners within a distance of 500 feet of the subject property. The Clerk will co-ordinate with the Director of Assessment at Property Valuation Services Corporation to provide the appellant with the names and addresses of the assessed owners on the basis of the appellant's written undertaking that this information will be used solely for the purpose of delivering the notice of hearing.
Within three business days of receiving the list, the appellant must serve a copy of the notice of hearing and a letter (both prepared by the Board) on all assessed owners of land on the list provided by P.V.S.C.. The service of the notice of hearing may be carried out in one or more of the following ways: by personally serving an occupant of the house or business; by leaving a copy at the house or business; or by sending a copy by ordinary prepaid mail addressed to the occupant or business. The appellant must advise the Board how the service was carried out as soon as service is completed. This may be done by affidavit, letter or email.
Filing of evidence, including expert reports
In addition to the Appeal Record, the appellant, the Municipality and any formal intervenors will be required to file with the Board, and each other, all written evidence or visual evidence upon which they intend to rely at the hearing. Written evidence includes any reports, documents, letters, hard copies of overhead projection sheets, and other data, while visual evidence includes any photographs, maps, audio tapes, videos, charts, models, overlays, and computer generated images.
In the event the appellant, the Municipality or a formal intervenor want an "expert" to testify in planning matters, or other fields, he or she must file a curriculum vitae, a report, and any written or visual evidence prepared by the expert in advance of the public hearing.
Prior to the public hearing, the Board may convene a further preliminary hearing by telephone to determine issues about procedure with the parties, or to make preliminary rulings on such issues as: whether the appellant is an "aggrieved person" under the MGA or the HRM Charter, whether the grounds of appeal are within the Board's jurisdiction, and the admissibility of certain documents at the public hearing.
Hearing - general procedure
The public hearing is normally held in the Municipality where the appeal arises. In HRM, the hearings are held in the NSUARB hearing room at Lower Water Street in Halifax, while appeals outside HRM are usually heard in municipal council chambers or other rooms within the municipal building.
Parties are not required to be represented by legal counsel, but they are free to do so. Municipalities and developers are usually represented by a lawyer.
In an appeal, the burden of proof rests upon the person filing the appeal to show, on the balance of probabilities, that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land-use by-law or the subdivision by-law.
At the public hearing itself, the Board member opens the hearing by briefly describing the appeal and then asking the parties to identify themselves. The Board's hearings are all recorded electronically by a recording clerk who sits near the Board member hearing the appeal. The recording clerk is also responsible for handling the exhibits discussed during the hearing.
Before any evidence is presented, the Board member will allow the parties to make brief opening statements, if they wish, outlining the issues and evidence which they intend to address in the evidence they will present.
During the hearing, a party presents evidence through the examination of its witnesses. When a witness is called to give evidence, he or she is first sworn in or affirmed (whichever their preference) to testify. The witness should then be introduced to the Board, giving his or her name, the community in which he or she resides, and his or her relationship to the appeal (e.g., a resident living near the development, a municipal official, a member of a community association or group, or another occupation or position related to an aspect of the matter).
The witness first answers questions asked by the party who has called him or her to testify. When that party has finished asking questions, the other parties (or their lawyers) have the right to cross-examine that witness. After cross-examination, the Board may ask additional questions of the witness. Finally, the party who originally called the witness may re-examine the witness. Re-examination is usually very limited and is only permitted to clarify points brought out during cross-examination or in questions from the Board member. The entire process is repeated for each witness.
The appellant is the first party to present evidence at the hearing, followed by the Municipality. The Municipality will typically call a municipal planner as a witness, asking the Board to qualify him or her to testify as an "expert" in planning matters. The Board determines whether a witness is entitled to provide opinion evidence as an expert. In presenting its case initially, the appellant may wish to call an expert of its own (e.g., a planner), subject to the Board's approval of the witness’ qualification.
All evidence and argument at the hearing must be limited to the issue under review in the appeal.
The Board will provisionally schedule an optional evening session, commencing at 6:30 or 7:00 p.m. on the date of the hearing for members of the public to make representations to the Board. However, this will only occur (as the notice of hearing will explain) if at least one person writes the Board to express a wish to speak at the evening session. If no one asks to be heard, no evening session will be held.
Most planning hearings take one or two days, while some can take several days. At the conclusion of the presentation of evidence at the hearing, the Board allows each party the chance to make oral submissions to summarize their position, including their view of the evidence, highlighting any past Court or Board cases, or any provision of the MGA or the HRM Charter, the municipal planning strategy, or the land-use by-law, which they believe is relevant to their position. In matters involving complex legal issues or voluminous evidence, the Board may request written submissions following the hearing.
The Board normally issues a written decision within 60 days following the hearing or final submissions. Past planning decisions of the Board can be accessed through the Decision Archive.