The court ruled that de novo hearings must uphold procedural fairness
The Court of Appeal of Alberta ruled that a local subdivision and development appeal board wrongly revoked a development permit without providing reasonable notice to the affected landowner, emphasizing that de novo hearings must uphold procedural fairness.
The case involved a landowner who purchased a parcel of land in Rocky View County to build a residence. The property zoned "Agricultural, General" was bordered by a walking path, a government road allowance, and a Canadian National Railway (CNR) right-of-way. Since manufactured dwellings are a discretionary use under the county's land use bylaw, the landowner applied for a development permit and requested to relax the minimum side yard setback to position the residence in the middle of the property.
In response to the application, CNR recommended a minimum 30-metre setback from the railway and a six-foot chain-link fence along the southern property line to address safety concerns. Although these recommendations were not part of the applicable land use bylaw, the Development Authority incorporated them as conditions of approval. The authority otherwise varied the standard 45-metre side yard setback, reducing it to three metres.
The landowner appealed the conditions to the Subdivision and Development Appeal Board of Rocky View County, arguing that compliance with the 30-metre setback would significantly limit the developable area and that a fence was unnecessary in the rural setting. After hearing the appeal, the board dismissed the objections, reversed the Development Authority's decision to relax the side yard setback and revoked the development permit entirely. The board cited concerns about the impact of the proposed development on the future use of the adjacent government road allowance.
In its ruling, the Court of Appeal confirmed that an appeal before a subdivision and development appeal board is a de novo hearing, which means that the board is not restricted to reviewing only the issues raised by the appellant but may reconsider the entire development permit. The decision emphasized the need to observe procedural fairness. If the board intends to consider matters beyond those raised on appeal, it must provide reasonable notice and an opportunity for affected parties to respond.
The court found that the board failed to inform the landowner about its plans to revoke the permit or revisit the side yard setback variance. As a result, the landowner had no opportunity to address these concerns before the board decided. The court stressed that procedural fairness is a fundamental principle in administrative decision-making, particularly when a decision significantly impacts an individual's property rights.
Additionally, the court determined that the board failed to identify a legitimate planning justification for reversing the side yard setback variance. The Development Authority granted the variance after assessing the surrounding road network and determining that the road allowance was unlikely to be developed in the foreseeable future. A letter from Alberta Transportation indicated no concerns with the setback relaxation. Despite this, the board refused the development permit without providing clear evidence to support its decision.
The Court of Appeal concluded that while the board had jurisdiction to consider the development permit in its entirety, it did not meet the requirements of procedural fairness. The court allowed the appeal and quashed the board's decision, remitting the matter for a new hearing.
