595A Transfer Of Increased Density Provided As Compensation For Heritage Designation

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Sections 595 and 595A

Section 595 of the Vancouver Charter provides for the payment of compensation to an owner where a heritage designation causes or will cause a reduction in the market value of the designated property. The amount and form of compensation are determined either by agreement or by binding arbitration and may take the form of extra density. Section 595A authorizes the establishment by bylaw of a heritage density increase transfer system in relation to extra density provided as compensation under s. 595. A bylaw enacted for this purpose must establish the maximum density increase that may be permitted, and the transfer of extra density from the designated property to any particular site must be approved by the Development Permit Board in accordance with the requirements of s. 595A.

CASE LAW

Purpose of the Regulatory Framework

In Wu v. Vancouver (City), 2017 BCSC 2072, reversed 2019 BCCA 23, leave to appeal refused 2019 CanLII 55721 (SCC), the plaintiffs applied to the City for a development permit to demolish an existing house in the First Shaughnessy District (“FSD”) and build a new single-family dwelling. After the submission of their application, Council adopted various by-laws that, inter alia, established FSD as a heritage conservation area, with the effect of removing the requirement that the City pay compensation to homeowners under s. 595 of the Vancouver Charter. The court at first instance found that while the plaintiffs were not entitled to mandamus, the City had intentionally delayed the application process in order to frustrate the plaintiffs’ development plans and avoid paying compensation. The chambers judge held that the City owed a duty of care to the applicants to make a decision within a reasonable time and that the City had breached that duty. The court allowed the City’s appeal, saying the by-laws in issue were concerned with protecting the heritage character of a certain part of Vancouver. The regulatory framework exists to promote a conception of the public interest or public good by regulating the type and character of new construction in FSD. The primary objective of the scheme is to promote the public good. In the circumstances, the regulatory framework does not create a relationship of proximity capable of giving rise to a prima facie private law duty of care.