Court of Appeal Decision of the Week

Municipal Law: Appealing a Subdivision Appeal Board Zoning ByLaw Decision; Standard of Review; Duty to Consult

Case: Bell v Edmonton (Subdivision and Development Appeal Board), 2017 ABCA 354 (CanLII)

Keywords: Permission to Appeal; Zoning Bylaw; Municipal Government Act, RSA 2000, c. M-26

Synopsis:

The Applicant’s neighbour applies for a development permit to replace their existing home with one containing a secondary basement suite, rooftop terrace, fire pit, and hot tub. The proposed terrace also features a view of the Applicant’s second floor bedroom.

Pursuant to Edmonton Zoning Bylaws, a number of variances are required (which a development officer grants without providing any reasons for doing so). The Applicant appeals the development officer’s decision to the City of Edmonton Subdivision Appeal Board (SDAB). At the hearing, the SDAB permits the development officer to provide reasons, and ultimately dismisses the Applicant’s appeal, finding “…the noise and potential nuisance generated by social gatherings…is not a planning consideration that is within the purview of the Board.” (See para. 7).

The Applicant then appeals the SDAB decision on the following grounds:

  1. that the SDAB wrongly interpreted s 687 3(d)(i) Municipal Government Act, RSA 2000, c. M-26 to exclude the impact of noise;
  2. failed to apply the Strathcona Area Redevelopment Plan contrary to s 687(d)(i)(A)(B) Municipal Government Act, RSA 2000, c. M-26 (which includes privacy – and therefore noise – as a planning concern) and thereafter failed to consult neighbouring property owners; and
  3. allowed the development officer, who provided no reasons for granting the variances prior to the appeal to provide such reasons at the appeal which reasons were accepted by the SDAB. (See para. 10).

The Court of Appeal grants permission to appeal, finding the Applicant’s grounds have broad implications, merit a full panel’s consideration, and offer a reasonable prospect of success on appeal.

Importance:

Citing s. 688(3) of the Municipal Government Act, RSA 2000, c. M-26 and Seabolt Watershed Assn v. Yellowhead County (Subdevelopment Appeal Board), 2001 ABCA 24 (CanLII) at para 5, the Court of Appeal found that permission to appeal an SDAB decision may be granted on a question of law or jurisdiction of sufficient importance if there is “a reasonable chance of success” on appeal. (See para. 9).

The Court of Appeal determined that interpretation of the Municiapal Government Act is a question of law. As per Carleo Investments Ltd. v Strathcona (County), 2014 ABCA 302 (CanLII) at para 10, determining the degree of importance of the question is to be measured by an assessment of its “broader implications”. (See para. 12).

The Court was satisfied that the Applicant’s issues raised important questions of law: “…the almost daily mention of the conflict between developers and neighbours in residential in-fill zones that are subject to mature neighbourhood overlays supports the conclusion that the nature and scope of the inquiry relevant to applications for variances in such areas will have a significant impact beyond the parties to this application.” (See para. 13).

The Court of Appeal found, in light of the Supreme Court of Canada’s decision in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (CanLII), that the Applicant’s matter raised a question with respect to the applicable standard of review. Since a number of Court of Appeal authorities provide competing interpretations and/or “implicitly” extend Capilano to SDAB decisions (including Barclay v Crossfield (Subdivision and Development Appeal Board), 2016 ABCA 374 (CanLII) at para. 26 and Stuber v County of Barrhead No. 11 (SDAB), 2017 ABCA 52 (CanLII)), the Court of Appeal determined that “…a full panel may have to reconcile the authorities.” (See para. 15).

The Court of Appeal concluded the first two issues clearly involved interpretation of the Municipal Government Act and the duty to consult – that these were questions of law which could reasonably succeed. The Court of Appeal reframed the Applicant’s third question by emphasizing the SDAB’s interpretation of the Municipal Governance Act at s. 687(3)(a.1). As revised, the question “could succeed” and so met the test for permission to appeal. (See paras. 17-21).

Counsel for the Applicant: Kim Wakefield (Dentons Canada LLP, Edmonton)

Counsel for the Respondent: M.S. Gunther

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Posted: Wednesday, November 01, 2017