Dennis Shewfelt’s statement that every “shall” in the new Official Community Plan is to be replaced by a “may” is interesting when considered in the context of the recent Court of Appeal decision on the plan.
In that decision, The Honourable Madam Justice D. Smith made this statement:
“Planning legislation necessarily has multiple objectives, including the regulation of the development of land, the prevention of conflicts with individual property owners, the avoidance of the consequences associated with ad hoc decision making, the facilitation of the orderly resolution of competing policy issues and the allocation of scarce resources for the benefit of sustainable and predictable long-range community development.”
“Shall,” according to The Dictionary of Canadian Law (Dukelow & Nuse) is to be construed as imperative; “may” is permissive.
The new Official Community Plan will thus open the door to allow the kind of ad hoc decision making the Appeal Court was concerned about.
It will not matter what is written in the Official Community Plan as it will give city council the flexibility to go in whatever direction the wind blows from day to day and from case to case.
“Shall” to “may” reduces the Official Community Plan to a “Why bother?” document.