The Alberta Court of Appeal has ruled against a Rocky View County Subdivision and Development Appeal Board (SDAB) decision to deny a development permit on a land located near Irricana and Beiseker.
According to the decision released by the court on Feb. 5, “the appellant Regine Landry purchased land zoned Agricultural, General, situated between the Town of Irricana and the Village of Beiseker, with the dream of one day building a residence and retiring there. The parcel is irregular in shape, a long narrow triangle. The west portion of the parcel is bordered by a walking/pedestrian path owned by Alberta TrailNet Society. The north portion of the land is bordered by an open, undeveloped government road allowance requiring any development to be set back 45-metres (the side yard setback). The south portion is bordered by a Canadian National Railway (CNR) right of way.”
Because of the property’s abutment on a CNR right of way, Landry was initially granted a permit with strict conditions imposed.
“Ms Landry applied for a development permit and relaxation of the minimum side yard setback requirement so that her residence could be situated in the middle of the parcel. In response to the development application, CNR recommended to the Development Authority that there be a minimum building setback of 30-metres from the railway and that a six-foot chain link fence be constructed along the entire length of the southern property line to mitigate safety concerns.” Although neither of CNR’s recommendations were contained within the applicable land use bylaw, the Development Authority adopted the recommendations, approving Ms Landry’s development permit on two conditions, that she:
1) Submit a revised plan showing a 30-metre setback between the proposed residence and the CNR right of way; and
2) Construct a six-foot chain link fence parallel to the CNR right of way.
“The Development Authority otherwise varied the 45-metre side yard setback to three metres,” the Court ruling stated.
Landry appealed these conditions to the Subdivision and Development Appeal Board feeling that “both conditions of the development permit to the Board arguing compliance with the 30-metre setback would drastically reduce the scope of her usable property and that given the land’s rural location, neither the setback nor the chain link fence were necessary to address the safety concerns raised by CNR.”
However the SDAB ruled Landry’s initial development permit should not have been permitted in the first place.
“In its decision, the Board not only dismissed Ms Landry’s appeal, but reversed the Development Authority’s decision to relax the side yard setback and revoked the development permit that had been issued to her,” the ruling from the Court states.
Landry then took the SDAB to court, and the three-justice panel felt the SDAB had considered evidence beyond the scope of the appeal in its decision, and had not given Landry the proper time to respond to their concerns.
“A de novo hearing by the Board involves a broad jurisdiction that is not limited to the specific issues raised on appeal. However, if the Board intends to address matters beyond those raised on appeal, the principles of natural justice demand that reasonable notice of the Board’s concerns be given to the interested parties and an opportunity to address those concerns must be provided. In these circumstances, Ms Landry did not receive a fair hearing because she received neither. The Board did not advise her of its concerns, and she was deprived of an opportunity to respond to those concerns.”
The Court of Appeal ruled an already granted permit brought to the SDAB should have been more heavily considered on the initial merits and concerns brought forward by the Development Authority, not on new evidence produced at the appeal hearing after the Development Authority had already granted permission for the dwelling to be built.
“If the Board is considering the matter afresh and contemplates addressing aspects of the development permit not raised on appeal, procedural fairness compels the Board to provide notice of those aspects or its concerns to the appeal participants and to provide them with an opportunity to respond,” the Court ruled. “The appeal is allowed, and the Board’s decision is quashed. The matter is remitted to the Board for a rehearing.”
For more information on the ruling visit the CanLii website.