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The Clock is Ticking: Determining Development Permit Appeal Periods

 

Section 686(1)(b) of the Municipal Government Act requires an appeal by a person that is affected by the issuance of a development permit, or other decision made by a development authority, to file their appeal “within 21 days after the date on which the notice of issuance of the permit was given in accordance with the land use bylaw”.

Unlike other appeal periods set out in Part 17 of the Municipal Government Act, when the appeal period set out in section 686(1)(b) begins to run – and expires – is dependent upon the municipality’s land use bylaw and what it requires in terms of notice. This can create legal and practical issues where a land use bylaw does not set out a clear process for notice of issuance of permits.

The Court of Appeal recently considered an appeal arising from a decision of an Intermunicipal Subdivision and Development Appeal Board (the “SDAB”) involving the application of this provision. The appellant was an urban municipality that sought to appeal the issuance of a development permit by a neighbouring rural municipality. The two municipalities had adopted an intermunicipal development plan (the “IDP”) in accordance with the requirements of the Municipal Government Act.

The Court of Appeal identified three questions to consider in determining when the appeal period begins to run: 

  1. What information does the land use bylaw require to be included in a notice? 
  2. Who does the land use bylaw require notice to be given to? 
  3. How does the land use bylaw require notice to be given?

The appellant municipality argued that the provisions of the applicable statutory plans, in particular the IDP, should be considered when determining when notice was given. Specifically, the appellant municipality relied upon a provision in the IDP which required the municipality that issued the development permit to refer development permit applications of a certain nature to the appellant municipality.

Another argument made by the appellant municipality was that the IDP required intermunicipal consultation as a “condition precedent” prior to the issuance of the development permit in question, the effect of which would be that if the required consultation did not occur, there would be no valid development permit.

The Court of Appeal declined to look at the IDP when determining when the appeal period set out in s. 686(1)(b) of the Municipal Government Act begins to run, focusing solely on the applicable land use bylaw. Ultimately, the appeal was determined to have been filed out of time. Any argument regarding the validity of the development permit, based on whether the consultation process set out in the IDP was applicable and, if so, whether it was followed, is an argument that would have been properly considered by the SDAB if a valid appeal had been filed.

There are a number of take-away points arising from this decision. First, municipalities should ensure that their land use bylaws set out a clear process for notice of the issuance of development permits. Land use bylaw should identify what information a notice must contain, who is required to be given notice, and how notice must be given.

Second, when preparing and reviewing intermunicipal development plans, municipalities should consider how (or if) they will actually receive notice of the issuance of development permits by a neighbouring municipality which may require consideration for the neighbouring municipality’s land use bylaw. If a municipality does not receive effective notice of the issuance of a development permit by a neighbouring municipality, but the applicable land use bylaw requirements have been satisfied, the municipality may find itself out of time to appeal the decision and without the opportunity to argue whether the requirements of the intermunicipal development plan or other requirements were met. 

 

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Eye On Regulation

Eye On Regulation