Review and Variance – Denied – Transmission Line Realignment
Remington Development Corporation (“Remington”) filed an application with the AUC for a review of Decision 3368-D01-2015, in which the AUC denied an application filed by ENMAX Power Corporation (“ENMAX”) for the realignment of two transmission lines:
(a) 138-2.82L, which runs between ENMAX’s substation No. 2 and No. 5 in Calgary; and
(b) 138-2.83L, which runs between ENMAX’s substation No. 5 and No. 13 in Calgary.
Both lines are located on right-of-way lands owned by Remington. Remington terminated the right-of-way agreement, which was the subject of protracted litigation. A decision from the Court of Queen’s Bench directed ENMAX to apply to the AUC to remove the lines.
ENMAX’s application to the AUC to remove the lines, which resulted in Decision 3368-D01-2015, considered six options for relocating the lines. Options 1 through 4 proposed to acquire land or a right-of-way from Remington for an overhead or underground configuration. Option 5 would relocate portions of the lines to lands owned by Alberta Infrastructure. Option 6, which was the proposed route, would relocate the lines to an underground City of Calgary alignment. ENMAX rejected alternatives 1 through 4 on the basis that Remington indicated it wanted all transmission infrastructure removed from its lands, and option 5 was also rejected as Alberta Infrastructure refused to grant a right-of-way due to future development plans.
Remington did not participate in the proceeding which resulted in Decision 3368-D01-2015, and the AUC noted that Remington did not seek leave of the AUC to file its review application, but that it was a registered party to the original decision. The AUC also noted that despite Remington’s submission that its counsel attended the original hearing, the AUC determined that its counsel did not register for or appear on the record of the oral hearing. However, given that the lines are located on Remington’s lands, the AUC exercised its discretion to grant Remington leave to file its review application.
Remington submitted that the original AUC panel committed errors of fact, law and jurisdiction, in expropriating its lands, and by condoning trespass on Remington’s lands by allowing ENMAX to continue having the lines located on its lands.
The AUC determined that there was no expropriation resulting from Decision 3368-D01-2015. The AUC found that the transcript of the proceeding supports the view that the lines may continue to occupy the right-of-way either by agreement or by way of right-of-entry order from the Surface Rights Board. The AUC held that the original panel addressed the manner in which the lines could remain on the lands in accordance with the Hydro and Electric Energy Act.
The AUC also held that the review application was not a second opportunity for Remington to raise issues regarding the acquisition of a right-of-way that it chose not to raise in the original proceeding. The AUC pointed to the lack of information on the record concerning Remington’s development plans, and the impact of the lines remaining in place or being relocated. The AUC noted that ENMAX’s primary justification for removing the lines was Remington’s refusal to continue hosting the lines on their lands. Therefore the AUC determined that Remington had not raised a reasonable possibility that the original panel committed an error of fact, law or jurisdiction that could lead the AUC to vary or rescind Decision 3368-D01-2015.
The AUC dismissed Remington’s application for review.
