North Cowichan must reconsider motorsport track expansion: judge

Council will meet today to consider an appeal, Mayor Al Siebring says.

In a decision on Nov. 6, a B.C. Supreme Court judge ruled that the Municipality of North Cowichan must reconsider its decision to deny a development permit to the Vancouver Island Motorsport Circuit (VIMC) to expand its facility.

On Oct. 25, 2019, the municipality denied VIMC’s application for a development permit for a proposed expansion of the motorsport track. It did so on the grounds that the land is zoned for industrial uses and the zoning bylaw does not explicitly allow for this type of development.

However, the municipality had previously taken the position that this sort of motorsport track facility would be permitted in that industrial zone, which is how the existing track was permitted. In the opinion of Justice Diane MacDonald, the municipality’s failure to explain why it changed its position is unreasonable and therefore must be reconsidered.

Council to consider appeal

The existing facility, which opened in 2016, sits on about 46 acres of land near Duncan, B.C., and includes 2.3 kilometres of track. The expansion would double the length of track and triple its footprint.

Reached by phone on Nov. 10, North Cowichan Mayor Al Siebring said that council will meet privately with its lawyers in the afternoon to consider if it will appeal the ruling. Council will likely have a public statement on the matter on Nov. 11, he said. 

If the council does not appeal the ruling, it must reconsider the development permit on its merits, in light of the judge’s reasons. In that case, the council could either allow the development permit or provide an explanation for the reversal in its policy, Siebring confirmed. 

The judge’s ruling relied on some very new legal precedents, Siebring says. The judge repeatedly cites a Supreme Court of Canada case, Canada (Minister of Citizenship and Immigration) v. Vavilov, in finding that while administrative bodies can change their interpretation of policies, it is unreasonable to do so without explanation. 

That decision was published on Dec. 19, 2019. That’s nearly two months after the municipality denied the development permit and two weeks after council reconsidered that decision at VIMC’s request.

“I was at the hearing in Vancouver when this judicial review was heard,” says Siebring. “And it was all about Vavilov. And we were a little taken aback because it wasn’t even on the radar for us at that time.”

The backstory

In a separate process late last year, council heard an application to rezone VIMC’s entire facility, including the existing track and proposed expansion lands. Community members showed overwhelming opposition to the expansion at two marathon public hearings, even after VIMC threatened to sue for upwards of $60 million in damages. 

In the end, council rezoned only the part of the property that is already developed, making the existing facility legal in the municipality’s current interpretation of its zoning bylaws without allowing for an expansion. 

The motorsport circuit, which opened in 2016, has seen significant controversy, mainly over noise complaints and the absence of public consultation prior to its development. The Sahtlam Neighbourhood Association launched a lawsuit against VIMC and North Cowichan in 2017, alleging that the track was a nuisance and illegally permitted. The parties settled in Feb. 2019, with many of the issues unresolved. [end]

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