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Borgel v Paintearth (Subdivision and Development Appeal Board), 2019 ABCA 25

Link to decision summarized

Permission to Appeal – Granted


In this decision, the Alberta Court of Appeal (“ABCA”) considered an application by landowners on the County of Paintearth (the “County”) for permission to appeal a decision of the Subdivision and Development Appeal Board (“SDAB”). The SDAB decision subject to appeal upheld ten development permits granted by the County’s Municipal Planning Commission (“MPC”) to Capital Power Generation Services Inc. for the proposed Halkirk 2 Wind Power Project (the “Wind Power Project”).

The ABCA granted permission to appeal the decision of the SDAB.

Background

While its application to the AUC was pending, Capital Power applied to the County for development permits for its proposed Wind Power Project, located approximately 12 km north of the town of Halkirk. The County approved ten development permits for the Project.

The applicants appealed to the SDAB. Following a request by the County, the SDAB decided to separate the appeal into a preliminary hearing and a merits hearing. The SDAB indicated that the purpose of the preliminary hearing was “to determine and identify the matters which may be addressed by the SDAB pursuant to [section] 619 of the [Municipal Government Act (“MGA“)] at the merits hearing.”

The AUC approved the Project pursuant to sections 11 and 19 of the Hydro and Electric Energy Act, finding that it was in the public interest to do so, having regard to the Project’s social, economic, environmental, and other effects. The AUC decision permitted Capital Power to construct and operate the Project.

The SDAB dismissed the appeals of the ten development permits. It stated that the applicants “did not identify any considerations or issues that have not already been considered and decided by the AUC and did not identify any inconsistency between the development permit applications before the SDAB and the development approved by the AUC.” The SDAB cancelled the merits hearing on the basis that it was “no longer required.”

Proposed Grounds of Appeal

The applicants sought permission to appeal the SDAB’s decision on the grounds that it erred in law or jurisdiction. The applicants reached this conclusion on the basis that the SDAB:

(a) engaged in an incorrect statutory interpretation of section 619 of the MGA having regard to the ambit of its jurisdiction to undertake a review of the impugned Capital Power Halkirk 2 Wind Power Project development permit applications for compliance with the decision of the AUC;

(b) improperly fettered its discretion under section 619 of the MGA to determine whether the Halkirk 2 Development Permits that were approved by the County’s MPC were consistent with the decision of the AUC;

(c) prematurely and improperly opined on the merits of the appeals before it when it was expressly agreed and represented to and by all parties at the preliminary hearing that the scope of the same would be confined to determining the scope of the merits hearing; and

(d) denied the applicants the opportunity to be fully heard in accordance with the principles of fairness and natural justice having regard to the appeals before it, despite representations by the SDAB to the contrary.

Test for Permission to Appeal

Under section 688(3) of the MGA, a single judge of the ABCA may grant permission to appeal a decision of the SDAB if the appeal “involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success.”

In exceptional cases, the adverse effect of an SDAB decision on the applicant(s) alone may amount to “sufficient importance.”

ABCA Findings

Whether the SDAB Erred by Holding that Sections 619(2) and (4) of the MGA Required it to Approve an Application for a Development Permit if the Application was Consistent with the AUC Approval?

The ABCA found that this issue met the test for permission to appeal.

The ABCA found that the interpretation of section 619 of the MGA clearly raised a legal issue, as the proposed ground had implications for parties appearing before the SDAB on future appeals.

Whether the SDAB Erred by Failing to Hold That Sections 619(2) and (4) of the MGA Required the MPC to Wait for AUC Approval Before Issuing the Development Permits?

While there was a possibility that this question was moot, the ABCA granted permission to appeal.

The SDAB, in dismissing the appeal, acknowledged the applicants’ argument that “the order of the proceedings” prevented the MPC from determining consistency with the AUC decision, which came after. This is because the MPC approved the development permits before the AUC issued its decision.

In this application, the applicants argued that the MPC could not have considered whether the development permits were consistent with the AUC decision when it approved those permits. As such, they contended that the permits were prematurely approved. The applicants submitted that on the correct reading of sections 619(2) and (4) of the MGA, the County’s MPC should have waited for the AUC decision before approving the permits for the Wind Power Project. They suggested that in rejecting their arguments on this issue, the SDAB thereby adopted a contrary interpretation of section 619 of the MGA.

Whether the SDAB’s Cancellation of the Merits Hearing Breached its Duty of Procedural Fairness to the Applicants?

The ABCA granted permission to appeal on this ground, finding that procedural fairness was a question of law.

The applicants submitted that the SDAB breached its duty of procedural fairness by cancelling the merits hearing in its decision following the preliminary hearing. They invoked the principle of audi alteram partem, arguing that they were denied notice of, and the opportunity to record their position on, the cancellation of the merits hearing. Had the merits hearing taken place, they would have argued that the development permits were not fully consistent with the AUC decision. Also, the applicants submitted that had they known of the possibility of the merits hearing not occurring, they would have approached the preliminary hearing differently.

Summary

The ABCA granted permission to appeal on the following questions:

(a) Did the SDAB err in law or jurisdiction by concluding that the term “municipality” in sections 619(2) and (4) of the MGA included the SDAB as well as the MPC?

(b) Did the SDAB err in law or jurisdiction by failing to hold that sections 619(2) and (4) of the MGA required the County to wait for AUC approval before issuing the development permits?

(c) Did the SDAB’s cancellation of the merits hearing breach its duty of procedural fairness, by denying the applicants a reasonable opportunity to make their case about the consistency of the development permits with the AUC decision?

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