A proposed expansion project at a controversial Vancouver Island race track has been given new life.
The Supreme Court of British Columbia has quashed the Municipality of North Cowichan’s decision to reject a development permit and rezoning application from the Vancouver Island Motorsports Circuit because they failed to provide justification for it.
Vancouver Island Motorsports Circuit, which was constructed in 2016 and is owned by GAIN Group, had been planning on building a new five-kilometre paved track next to its current facility near Duncan. In order to expand the track, GAIN was required to submit a development permit and rezoning application to the District of North Cowichan, which it did.
Following lengthy public hearings last year, where many residents expressed concerns over noise, GAIN’s application was voted down by councillors on two separate occasions. The second public hearing was held in December after GAIN withdrew its application and threatened to sue the municipality for $60 million.
GAIN ultimately filed a request for judicial review with the Supreme Court of B.C. arguing that their application was unfairly rejected because the municipality had previously approved the exact same use on land where the existing track sits. They also argued the municipality never provided them with a reason for rejection.
The Municipality of North Cowichan, however, argued they were never required to approve GAIN’s application, despite past decisions because it was inconsistent with the wording in their rezoning bylaw. They also argued that if the application didn’t meet zoning requirements, they didn’t need to provide any other reasons.
In a ruling issued by Justice Diane MacDonald on Nov. 6, the B.C. Supreme Court concluded that North Cowichan was obligated to provide justification on how it reached a “contrary interpretation of the permissible” land uses in the zoning bylaw.
“Property owners have an expectation of consistency when they rely on established and longstanding representations and decisions by a municipality. When consistency is denied in these circumstances, property owners have a right to know why. That is particularly so where, as here, the prior decision and practices involved the very same parties, uses, zones, and zoning bylaw,” wrote MacDonald.
Since GAIN had purchased land beside the existing track for the “very same purposes” that North Cowichan had approved when they allowed the track to be built in the first place, MacDonald said it was unfair for the municipality to change its mind without giving an explanation as it was too late for GAIN to “adjust their behaviour accordingly.”
“To allow a municipality through interpretation to come to the opposite conclusion regarding a development permit based on the same parties, the same uses, and the same bylaw, without affording an explanation to the impacted party, strikes me as unreasonable,” MacDonald wrote.
MacDonald said North Cowichan’s decision to reject GAIN’s application has been quashed because it failed to provide any explanation, saying the lack of justification “undermines public confidence in the rule of law.”
“For six years, the municipality supported the petitioner’s development and was satisfied that its uses complied with the zoning bylaw. In these circumstances, it was arbitrary for the council to diametrically disagree with a past interpretation of the zoning bylaw without explaining the basis for the disagreement,” she wrote. “There was a reason, the uses were not compliant with the zoning bylaw, but no explanation. Not providing a justification in and of itself renders the decision unreasonable.”
Councillors will now be required to assess GAIN’s application on its “technical merits” and reconsider it.
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Nicholas Pescod
