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MUNICIPAL BOARDS AND TRIBUNALS - Jurisdiction - Development permits

Friday, May 24, 2019 @ 8:24 AM  

Application by CNR and Shell Canada for leave to appeal a decision of the Subdivision and Development Appeal Board upholding the decision of the Municipal Planning Commission to issue a development permit for a work camp located next to CNR’s and Shell’s sour gas facilities. At the time the permit was first granted, “work camp” was a discretionary use under the Land Use Bylaw. The Land Use Bylaw was subsequently amended and “Work Camp” became a permitted use in the Crown Land District. The work camp did not conform to the Alberta Energy Regulator’s setbacks for sour gas facilities. The applicants appealed the Development Permit, arguing that the camp’s proximity to sour gas facilities and pipelines raised concerns about the safety of its occupants. The Appeal Board found that the camp met the definition of a “Work Camp” and that the provisions of the Land Use Bylaw were not relaxed, varied, or misinterpreted, with the result that the development permit was not an appealable decision under s 685(3) of the Municipal Government Act. The Appeal Board further noted that if it had jurisdiction to decide the appeal, it would have exercised its authority under s. 687(3)(b) of the Act to depart from and vary the setback distances prescribed by the Regulator. The applicants argued the Appeal Board erred in finding that the issuance of Development Permit was not an appealable decision under s. 685(3) of the Act, by abusing its discretion under s. 687(3), and by failing to consider s. 619(1).

HELD: Application allowed. The proposed grounds of appeal were of sufficient importance to merit a further appeal and had merit. The argument that the Appeal Board erred in law or jurisdiction in finding that the issuance of Development Permit was not an appealable decision under s. 685(3) of the MGA had a reasonable chance of success. It was arguable that provisions of the Land Use Bylaw were relaxed and that therefore, the proscription against appeal in s. 685(3) did not operate. Given the central role of the Regulator in regulating the energy sector and its role in supervising the issuance of development permits pertaining to development in proximity to sour gas wells for safety purposes, it was arguable that the Appeal Board failed to give proper regard to the view of the Regulator with respect to sour gas setbacks and that a proper regard that only the Regulator should relax sour gas setbacks. It was arguable that ignoring the Regulator’s expertise in this area was unreasonable and an abuse of discretion.

Canadian Natural Resources Ltd. v. Greenview (Municipal District No. 16) Subdivision and Development Appeal Board, [2019] A.J. No. 468, Alberta Court of Appeal, S.J. Greckol J.A., April 18, 2019. Digest No. TLD-May202019012