Permission to Appeal – Granted
In this decision, the applicants, Canadian Natural Resources Limited (“CNRL”) and Shell Canada Limited (“Shell”), sought permission to appeal a decision of the Municipal District of Greenview No. 16 Subdivision and Development Appeal Board (“SDAB”). The SDAB upheld the decision of the Municipal Planning Commission to issue a development permit for a work camp that was located 140 and 250 meters respectively from CNRL’s and Shell’s sour gas facilities.
Section 10(1) of the Subdivision and Development Regulation (“SADR”) provides that “a development authority must send a copy of a development application for a development that results in a permanent dwelling, public facility or . . . “, as defined by the AER, to the AER if any of the land … is within 1.5 kilometers of a sour gas facility or a lesser distance agreed to, in writing, by the AER and the subdivision authority”. The AER must provide the development authority with its comments as to the necessary minimum setbacks: section 10(2) of the SADR. The development authority “shall not approve” an application that does not conform to the AER’s setbacks unless the AER gives written approval to a lesser setback distance (section 10(3) of the SADR).
CNRL and Shell submitted that this did not occur.
The SDAB 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 section 685(3) of the Municipal Government Act (“MGA”). The appeal was dismissed.
Legislation
Section 688(3) of the MGA provides that a single judge of the ABCA may grant leave to appeal a decision of the SDAB “if the judge is of the opinion that the appeal involves a question of law of sufficient importance to merit a further appeal and has a reasonable chance of success.”
An appeal will generally be of “sufficient importance” where it has “implications that go beyond the dispute between the parties.” In rare cases, however, an appeal that has no implications except as between the parties may still be sufficiently important to warrant granting leave, especially where the impact of the decision on the applicant will be severe, and the proposed appeal is meritorious.
Whether a proposed appeal has a reasonable chance of success depends to some extent on what standard of review governs the SDAB decision. In a previous decision, the ABCA held that an SDAB’s interpretation of the MGA and of a municipal land use bylaw attracts a standard of reasonableness.
An appeal lies under section 688(3) of the MGA only in respect of a question of law. No appeal lies in respect of the SDAB’s findings of fact or issues of mixed fact and law.
Proposed Grounds of Appeal
CNRL and Shell sought permission to appeal on the following grounds:
• Ground 1: the SDAB erred in law or jurisdiction in finding that the issuance of Development Permit D19-259 was not an appealable decision under section 685(3) of the MGA;
• Ground 2: the SDAB erred in law or jurisdiction by abusing its discretion under section 687(3) of the MGA; and
• Ground 3: the SDAB erred in law or jurisdiction by failing to consider section 619(1) of the MGA.
Legal Tests
Sufficient Importance
The ABCA found that CNRL and Shell established that the grounds of appeal submitted, offered sufficient importance to merit a further appeal.
This matter involved the intersection of the AER’s authority over the energy sector and its role in prescribing setbacks around sour gas facilities to ensure public safety with the authority of the SDAB in approving development permits. It involved the question of whether, even though the AER interpreted the term “public facility” in section 10(1) of the SADR as including this camp, the SDAB may nonetheless exercise its discretion under section 687(3) of the MGA to vary the setback limits between the camp and sour gas facilities, so long as it has some regard to the AER’s decision.
Reasonable Chance of Success
Ground 1
With respect to the SDAB’s decision that the Horizon North and Devco development was a Work Camp, the ABCA previously held that whether a proposed development meets the definition of a specific use “is a question within the mandate of the SDAB, and is at best a question of mixed fact and law on which permission to appeal is not possible or appropriate.”
CNRL’s and Shell’s argument was primarily that the SDAB did not take into account the factual circumstances of the development. This was a question of mixed fact and law.
Accordingly, the ABCA found there was no appeal with respect to CNRL and Shell’s contention that the camp was not actually a “Work Camp.”
The ABCA found that CNRL’s and Shell’s argument that the SDAB erred in law or jurisdiction in finding that the issuance of Development Permit D18-259 was not an appealable decision under section 685(3) of the MGA had a reasonable chance of success.
Ground 2
The ABCA found that CNRL’s and Shell’s arguments that the SDAB erred in law or jurisdiction by abusing its discretion under section 687(3) of the MGA had a reasonable chance of success.
Ground 3
The interpretation of section 619(1) of the MGA was a legal question raised on the facts of the case. The ABCA found that the interpretation of section 619(1) of the MGA advocated by CNRL and Shell was arguable.
Findings
The ABCA concluded that CNRL’s and Shell’s arguments that the SDAB erred in law or jurisdiction by failing to consider section 619(1) of the MGA had a reasonable chance of success.
The ABCA granted CNRL and Shell leave to appeal on the following questions:
(a) whether the SDAB erred in law or jurisdiction in finding that the issuance of Development Permit D18-259 was not an appealable decision under section 685(3) of the MGA;
(b) whether the SDAB erred in law or jurisdiction by abusing its discretion under section 687(3) of the MGA; and
(c) whether the SDAB erred in law or jurisdiction by failing to consider section 619(1) of the MGA.
