Initial Preliminary Hearing by Conference Call
- Immediately after the filing of an Appeal, the Board will acknowledge the Appeal and notify all appropriate parties that an Appeal has been filed. The letter will also advise that the Board will hold an initial preliminary hearing with the parties to resolve any preliminary issues and set the dates/times for the hearing and filing of evidence and documents.This hearing will be by telephone conference call and does not involve any long-distance charges to the parties. The acknowledgement letter will have an attachment, Schedule A, which proposes a hearing date and filing timeline leading up to the hearing and will be in the format acceptable to the Board.
- If the dates proposed in the “Schedule A” are not convenient, the parties are encouraged to speak amongst themselves to agree on a hearing date, if possible, and the other timeline dates and times.
- If any party has any other issue that they want the Board to consider at this preliminary hearing, they must immediately advise the Clerk. Depending on the type of issue, the Board may need to schedule additional preliminary hearings to make rulings on other issues raised.
- Upon request of another party, or on its own direction, the Board may convene a further preliminary hearing with the parties to make rulings on such issues as: (1) procedure; (2) whether the Appellant is an "aggrieved person" under the Municipal Government Act or the Halifax Regional Municipality Charter; (3) whether the grounds of appeal are within the Board's jurisdiction; (4) whether documents are relevant and can be used as evidence; or (5) whether a proposed witness is qualified to testify as an expert witness.
- The town/municipality must file, with the Board and with any other party, the complete Appeal Record within 14 business days of being notified by the Board of the filing of the Notice of Appeal. Although forming part of the Appeal Record, the Municipal Planning Strategy and Land Use By-law should be filed as separate documents.
- Rule 24 of the Board’s Municipal Government Act Rules specifies that the Appeal Record contain all documents the municipality has relevant to the appeal. This includes, but is not limited to, all applications, correspondence, and reports relating to the decision under appeal and the relevant Municipal Planning Strategy, Land Use By-law, Zoning By-law, Subdivision By-law or Subdivision Regulations. These documents shall be provided electronically. Any requests for a hard copy of these documents should be made in writing (email is sufficient) to the solicitor for the municipality.
Public Advertisement/Notice to Assessed Owners
Following the scheduling of a hearing date, a Notice of Public Hearing will be prepared by the Clerk of the Board and advertised once in a local newspaper on the date specified in the Hearing Order. The Board will invoice the Appellant for the cost of the advertisement in accordance with Rule 22 of the Municipal Government Act Rules.
Confirmation of Notice of Delivery:
- The Appellant must deliver a copy of the Notice of Public Hearing and an information letter, which will be provided by the Board, to all assessed owners of property within a distance of 500 feet of the subject property within three (3) business days. The Clerk of the Board will co-ordinate with the appropriate authorities to provide the Appellant with the List of 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 Public Hearing and information letter.
- The Board may order service by one or more of the following ways:
(a) by personally serving an owner of the house or business;
(b) by leaving a copy at the house or business;
(c) by sending a copy by ordinary prepaid mail addressed to the assessed owner or business at the street address or other known address; or
(d) by such other method that is approved by the Board.
- The Appellant must confirm delivery and advise the Board of the method of service used by the date indicated in the Hearing Order. This confirmation may be done by affidavit, letter or email.
- The burden of proof is on the person filing the appeal to show, on the balance of probabilities, that the decision of council does not reasonably carry out the intent of the Municipal Planning Strategy, or alternatively, that the decision of the development officer conflicts with the provisions of the land-use by-law, subdivision by-law or the development agreement.
⚬ “On the balance of probabilities,” means the greater weight of evidence favours one side over the other.
- After receiving the Appeal Record, parties must file any materials they have or want to have considered by the Board that are relevant to the issues by the date specified in the Hearing Order. Relevant documents or materials are those that may prove or disprove the issues in the Appeal, for example, whether the decision of council has reasonably carried out the intent of the Municipal Planning Strategy, including a planning experts’ report from a party’s own expert witness.
- "Written evidence" includes any reports, such as experts' reports, documents, letters, hard copies of overhead projection sheets, and other data. "Visual evidence" includes any photographs, maps, audio tapes, videos, charts, models, overlays, and computer-generated images.
- Any party wishing to have an expert appear at the hearing must provide a report including a complete summary of the opinions to be expressed by the expert, including the factual basis for such opinions), a curriculum vitae and a qualification statement.
- A qualification statement outlines the area(s) of expertise for which you are asking the Board to find your witness is qualified to give an expert opinion. Appendix “B”, attached, is an example of a qualification statement.
- An expert may not be permitted to testify if this statement or report is not served on all parties and filed with the Board by the date set out in the Hearing Order.
- If the report of an expert does not comply with the requirements, the Board may, on the application of another party, make an order requiring the party providing the report to comply.
- Where a copy of the report has been filed and delivered as required above, the expert must attend the hearing, unless all other parties give notice that they do not require the attendance of the expert at the hearing, which notice shall be given as soon as is reasonably possible.
- An expert’s report forms part of the Record of the proceeding. The evidence of the expert at the hearing will be limited to cross-examination, questions on re-direct and questions by the Board.
A person may be accepted as an expert by virtue of education, training and practical experience, subject to approval of qualifications by the Board.
Hearing – Filing of Documents and General Procedure
Filing of Documents:
Pursuant to the Municipal Government Act and the Halifax Regional Municipality Charter, a hearing must begin within forty-five (45) days from the filing of the appeal record unless the Board determines that it is necessary for the interests of justice for the hearing to begin at some later time or unless all the parties agree that the hearing may begin at some later time.
- All emails and electronic filings must be sent to the Board at email@example.com or by using the secure “Send Files to the Board” function on the website.
- When sending documents via e-mail, please ensure the Board and each party receive an electronic copy of all documents in PDF searchable format.
- Documents may also be submitted by facsimile (fax) to 902-424-3919.
Paper and Other Physical Filings:
- The normal requirement for the parties to provide two hard copies of any materials to the Board the next business day is waived until further notice unless the Board directs otherwise. Due to the COVID-19 restrictions currently in place the Board does NOT require the filing of hard copy documents unless specifically directed by the Board or requested by a party.
- Physical filings may be by paper, CD, or any other means suitable and agreed to by the Board.
- All Board hearings are open to the public and anyone may attend.
- Please note that due to COVID-19 restrictions, all Board hearings are currently being conducted by teleconference or webinar until further notice. The Board reserves the right to hold any hearing, in whole or in part, in person.
- People may request to formally participate in a hearing as an intervenor, or can register to speak at an evening session, or can send comments in writing to the Board.
- When more than one Notice of Appeal is filed with the Board, arising out of the same decision, or affecting the same matter, the Board may hold a joint hearing on the matters.
- When there is more than one Appellant to one Appeal (or more than one intervenor with a common interest) the Board may direct, at the beginning of the process, that the appellants (or intervenors, as the case may be) will be entitled to conduct their appeal with limited representatives and only those representatives will be permitted to cross-examine witnesses and provide closing argument. However, each appellant (or intervenor) will be given an opportunity either to testify at the hearing or give comments at the evening session. The Board will request the appellants (or intervenors) to decide amongst themselves who the representative(s) will be. If this is not possible, the Board will hold a preliminary hearing to decide the issue.
Process on Hearing Day:
- 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 in the Municipality where the appeal arises.
- Appellants 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.
- At the public hearing itself, the Board member or three-member panel 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 they intend to address in the evidence they will present. The parties will then be called upon, in order, to present their evidence, done through the examination of their witnesses. The appellant is the first party to present evidence at the hearing, followed by the Municipality, then other Formal Intervenors approved by the Board to participate in the matter. All evidence and argument at the hearing must be limited to the issue(s) under review in the appeal.
- 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 covered during cross-examination or in questions by the Board. The entire process is repeated for each witness.
- 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 to make oral comments 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 a large amount of evidence, the Board may request written submissions following the hearing.
Requests for Formal Intervenor Status
- An intervenor is a person who wishes to fully participate in the appeal including presenting evidence and/or cross-examining witnesses. The Notice of Public Hearing will set out that any requests to participate as an intervenor must be filed by a specified time and are subject to approval by the Board.
- Any person wishing to participate as an intervenor in the public hearing must set out their reasons for the request in writing by the date specified in the Hearing Order. Such requests are subject to objection by any other party.
Applications for Formal Intervenor Status:
- An intervenor:
- has a genuine interest in the outcome of a matter.
- participates in the appeal including presenting evidence or witnesses and may cross-examine witnesses of other participants.
- If a person applies for intervenor status, the burden of proof is on that person to show that they have an interest in the proceeding sufficient to justify their status as a formal intervenor.
- The existing parties must inform the Board by the date set out in the Hearing Order of their position on the person’s request for intervenor status. If no party objects to the application for intervenor status within the time specified by the Board, agreement by the existing parties may be presumed, and the Board may grant intervenor status without holding a preliminary hearing on the issue. If any party objects to the request to intervene, the Board may schedule a preliminary hearing about intervenor status.
- The objecting party must file written or visual evidence, along with an explanatory letter or other written submission, upon which the party intends to rely. The party applying for Intervenor Status will have an opportunity to reply to these submissions.
Letters of Comment/Speakers – General Public
Requests to Speak at the Evening Session:
- The Notice of Public Hearing provides an opportunity for members of the public to attend the Public Hearing and provides for an Evening Session. An evening session will be held only if at least one member of the public informs the Board, in writing, within the time limit provided for by the Notice of Public Hearing, of their wish to speak.
- The primary purpose of evening sessions is to provide a less formal, time-consuming, and possibly less expensive forum than that of formal intervenor status for members of the public who wish to express their views on the impact of a planning matter.
- The Board does not allow expert opinion evidence, including expert legal opinions, during evening sessions. To ensure fairness to all parties, legal submissions and arguments by counsel are reserved for the formal parties in the proceeding.
Written Comments from Members of the Public:
- The Notice of Public Hearing will also set out a deadline for any members of the public to file written comments. Any comments received will form part of the evidence and will be an exhibit in the proceeding.
In accordance with the Board’s policies and practices, the Board will normally issue a written decision in all planning matters within 60 days of the hearing or of receipt of the final evidence. All formal participants to a matter will be provided a copy of the written decision. Decisions of the Board are appealable to the Nova Scotia Court of Appeal on matters of fact and law within the timelines prescribed. Past planning decisions of the Board can be accessed through the Decision Archive.