Court quashes Halifax's 'fundamentally flawed' heritage registration for university property

Nova Scotia's Supreme Court has ordered the Halifax municipality to remove a 126-year-old property from its heritage registry because the "fundamentally flawed" decision came out of an unfair process.

A group of neighbours, Halifax University Neighbourhood Association (HUNA), originally applied for the heritage designation last May as a third party to avoid Dalhousie's planned demolition.

In October 2022, Halifax regional council voted to add 1245 Edward Street to the municipality's registry of heritage buildings despite opposition from the property's owner, Dalhousie University.

But Dalhousie filed for a judicial review of the decision, asking for the registration to be overturned. That hearing was held in June.

A ruling by Justice Peter Rosinski, dated last week, said council's decision "was the product of an unfair process in all the circumstances," was not "within a range of reasonable outcomes," and was "tainted" by both closed-mindedness at the heritage advisory committee level, and a bias at the regional council level.

"I was very saddened to hear it," Peggy Walt, HUNA spokesperson, said Monday.

Walt said the decision sets a dangerous precedent given that Rosinski questioned the legality of third-party applications in heritage matters.

"I think it's really, it's a sad day for heritage and I hope that the city appeals," she said.

In its legal arguments, Dalhousie said there was nothing in the provincial Heritage Property Act (HPA) or city bylaws that allowed for third-party heritage applications. Otherwise, anyone could "weaponize the HPA" to protect their own interests related to development, the school said.

Rosinski wrote he agreed with Dalhousie, and because Halifax accepted the neighbours' application it triggered a process that would not have begun otherwise.

Dalhousie argued it would not have bought the building in 2021 if it had a heritage designation. An engineer's report shared with council said that the property was in a failed condition and would take substantial money to restore it — which the university said it did not intend to do.

Rosinski said that council is required to consider the effects of a heritage designation on the owner's interest in the property, and it did not do so.

However, Walt said her neighbour had lived in the home until she passed away. There were students living there, and a daycare was run out of the building before Dalhousie bought it in July 2021.

"I feel it's an unfair characterization to call it dilapidated when it was a family home, beautiful family home that certainly would have needed significant work to alter its purpose … my house needs work too, but it doesn't mean I'm not living in it," Walt said.

"In this housing crisis we're having, all housing stock that's being used, I think, should be seriously considered before we demolish anything."

The heritage advisory committee gave the property a total of 64 heritage points out of a possible 100, 50 points being the threshold to recommend heritage protection. But Dalhousie hired heritage architect Terry White to reevaluate the ratings and he produced a report with a score of 32.

'Irrelevant' issues considered

The judge said the majority of the 13 elected council members who voted for the heritage designation did not deal with the fact that Dalhousie wouldn't restore the building.

Rosinski also cited various councillors comments about how they'd prefer to see the building moved, or restored and used as housing, as "irrelevant to council's decision."

The Halifax Regional Municipality "cannot intend to defeat the owner's preferred use of the property by effecting its own preferred use" through its heritage registry, Rosinski said.

In the court hearing, Dalhousie tabled emails between heritage committee members and staff discussing a public petition of 5,700 signatures in support of registering the Edward Street property. 

Rosinski said the petition should not have been before the heritage committee at all, and members also should not have considered letters from the public, including from the Heritage Trust of Nova Scotia. 

"Council was left with a recommendation skewed by a closed-minded HAC that had one goal in mind: generate a positive heritage recommendation to Council by any means necessary. Dalhousie was set up to fail at Council," the university argued.

Halifax reviewing decision

Rosinski ordered the Edward Street building be removed from the registry, and said both Dalhousie and HRM had agreed upon costs but did not detail how much they were.

Halifax spokesperson Brynn Budden said Monday the municipality is "disappointed" with the outcome and is reviewing it. 

"A decision on whether to appeal will be made upon completion of the review," Budden said.

Dalhousie will wait 120 days before any demolition

In a statement Monday, Dalhousie University spokesperson Janet Bryson said the school "welcomes" the decision.

Dalhousie has agreed to not demolish the building within about four months of the court decision, she said.

Bryson said the school is still developing plans for what will replace it, "mindful of the particular need to increase our supply of student housing."