CASUAL LEGAL: Battle of the Boards: Considering Section 619 of the MGA

Battle of the Boards: Considering Section 619 of the MGA

By Breanne Schwanak

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

A recent decision of the Alberta Court of Appeal considered the scope of section 619 of the Municipal Government Act (“MGA”), which deals with the interplay between approvals from certain provincial regulatory bodies and municipal planning authorities.

In this case, a windfarm was proposed to be constructed in the municipality. Certain developments, including windfarms, require both provincial approval from the Alberta Utilities Commission (the “AUC”) and municipal approval in the form of development permits. The municipality’s development authority approved the windfarm and issued a number of development permits. The AUC issued its approval for the windfarm seven months later. In the meantime, a number of affected landowners appealed the issuance of certain development permits to the Subdivision and Development Appeal Board (“SDAB”).

The SDAB had adjourned the appeals, pending the outcome of the AUC’s decision. Following the release of the AUC’s decision, the SDAB scheduled a preliminary hearing to consider the scope of the SDAB’s authority under section 619 of the MGA. The SDAB found section 619 applied to the appeals and operated such that: 1) the SDAB must approve an application for a development permit if the application is consistent with the AUC’s approval; and 2) the SDAB could not deny the development permit for reasons already considered by the AUC.

The SDAB determined the parties seeking to appeal the development permits had not raised any issues that had not already been considered or decided by the AUC or any inconsistencies between the development permits and the approvals from the AUC. Accordingly, the SDAB dismissed the appeals. The affected landowners further appealed to the Alberta Court of Appeal.

The Court of Appeal held section 619 was intended to reduce regulatory burden and increase administrative efficiency by “granting paramountcy to decisions of certain provincial bodies, to ensure projects are not blocked at the municipal level for issues already considered and approved at the provincial level.” The Court rejected the argument sections 619(2) and (4) only apply to the municipality and not the SDAB, finding this interpretation contrary to the purpose of the legislation. The Court also rejected the argument that development permits should not have been issued until after AUC approval had been received, as nothing in the MGA dictated such an approach.

However, the Court determined that there had been a breach of procedural fairness, as the affected landowners were denied the opportunity to make submissions on whether the development permits were consistent with the AUC’s approval. The Court remitted the appeals back to the SDAB for rehearing, with explicit directions to the SDAB not to hear any matters already decided by the AUC and to approve the development permits to the extent they are consistent with the AUC’s approval.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca, or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.