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.