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ENVIRONMENTAL ASSESSMENTS - Provincial environmental assessment - Projects subject to environmental assessment - Practice and procedure

Tuesday, April 25, 2017 @ 8:33 AM  

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Petition by McKenzie for judicial review of approvals granted by the Agricultural Land Commission (Commission) and Cowichan Valley Regional District (Regional District) in favour of her neighbour, Balme Ayr Farms (Balme Ar). The petitioner owned a hobby farm next to a 100-acre dairy farm operated by a husband and wife. The farm property was zoned Agricultural Resource 1. Litigation arose from a proposed non-farm use of the property. Balme Ayr sought to enhance the agricultural capacity of a portion of the property through the extraction and sale of gravel, with replacement by clean soil fill of arable quality. The petitioner raised concerns about potential environment risks of the proposed project. The Regional District passed a resolution advancing Balme Ayr's application for a non-farm use to the Commission. The Commission approved the application. Balme Ayr received a permit allowing it to remove a prescribed volume of gravel and sand from the property. The petitioner sought judicial review of the Regional District's resolution and the Commission's approval. She sought an order quashing the decisions and referral of the matter for environmental assessment. The petitioner submitted that the Agricultural Land Commission Act (ALCA) was subject to the Environmental Assessment Act (EAA), and that if the Court found otherwise, the broad and quasi-constitutional purposes of the EAA would be clearly frustrated.

HELD: Petition dismissed. The petitioner failed to establish that the proposed gravel extraction project was a reviewable project for environmental assessment purposes. Such determination was a matter for non-parties to the petition. Neither the Regional District nor the Commission exceeded their authority or erred in law in making the decisions related to the Balme Ayr project. The Regional District's resolution constituted a valid authorization of the application to the Commission for the purpose of s. 25(3) of the ALCA. Neither the Commission nor the Regional District were required to consider the reviewability of the project from an environmental assessment perspective prior to proceeding, as there was no conflict between the ALCA and the EAA.

McKenzie v. Agricultural Land Commission, [2017] B.C.J. No. 567, British Columbia Supreme Court, D.J. Dardi J., March 24, 2017. TLD-Apr242017005