The approval process
The planning, subdivision and development processes allow private aspirations for the use of land to be considered within the context of the municipal vision and rules for development. They also must provide opportunities for the public to be heard.
There are essentially three steps to consider:
- Is the proposal consistent with municipal plans and the permitted or discretionary uses allowed for that parcel in the land use bylaw?
- Does the proposal require the land to be divided into two or more parcels of land?
- Lastly, all development requires a development permit.
The specific steps in each part of the process are outlined below.
Land use plans and bylaws
A landowner wishing to develop land begins by discussing the proposal with municipal planning staff. If the proposal is consistent with municipal plans and bylaws the applicant can proceed to apply for subdivision approval and development permits as required. If staff determines that the proposal is not consistent with municipal plans and bylaws, an amendment to the plan and/or land use bylaw will be required before subdivision or development can be approved.
The developer will request that administration prepare the necessary plan and/or land use bylaw amendment for consideration by council. Sometimes an application will require an amendment to both a plan and the land use bylaw. Separate bylaws are required but both may be considered at the same time. Costs of the application are normally borne by the developer.
The Municipal Government Act (MGA) requires that municipalities give notice to the applicant and affected persons of any plan or bylaw amendment. Moreover, council must provide an opportunity for affected parties to be heard. Hearings are held at a scheduled time as part of the business of a regular council meeting. The hearing may be held before first reading of the bylaw but must be held before second reading. After hearing from the parties, council may close the hearing or extend it to a later date for further consideration. Once the hearing is closed, council must not consider any additional information, but will deliberate on what it has heard and may approve, amend, or refuse the request. Any amendment to the request must be based on information that was considered at the hearing, otherwise a new application must be made. The decision of council on such matters is final and may only be appealed to the courts on a question of law or jurisdiction.
If a proposal for development requires that land be divided into two or more parcels, the proponent must submit an application for subdivision approval. Applications are submitted to the municipal subdivision authority who must determine whether the application is consistent with the land use plans and bylaws of the municipality and whether the application should be approved.
To do this, the subdivision authority must circulate the application to various provincial departments, utility companies, any affected school boards, and to adjacent land owners. Referrals will also be made to other departments in the municipal administration that deal with utilities, transportation, parks, and recreation. Minor subdivisions may require a more limited circulation. After receiving comments from referral parties and assessing the application against the municipal plans and bylaws, the authority asks two basic questions: can the application be approved, and should the application be approved. The first question looks at whether the application is consistent with the approved plans and land use bylaw of the municipality as well as any other legal impediment to approving the plan. The second question looks at whether the land is suitable for the uses intended. Determining suitability may involve considering the following questions: Is the land subject to flooding? Can the area be provided with road and utility services? Is the soil and topography suitable? Does the proposed development meet acceptable standards for design?
At this stage the subdivision authority may negotiate with the applicant to make amendments to the application to meet the concerns of any referral agency or to bring the application into compliance with the plans and bylaws of the municipality. If the application can be approved, the subdivision authority will then determine what conditions, if any, should be attached to the approval. Typical conditions include a requirement to enter into a development or subdivision servicing agreement, an agreement to pay an offsite levy, or changes to the subdivision design. The subdivision authority must give its decision in writing showing the reasoning behind its decision, including how it has considered the factors required by the Subdivision and Development Regulation and any submissions from adjacent landowners. The entire process must be completed within 60 days of receiving a completed application or such longer time as the applicant may agree to. A decision of a subdivision authority may be appealed by the applicant, a government department to whom the application was referred, a school board in respect of any reserves, or the municipality itself if it is not the subdivision approving authority. Appeals are made to the subdivision and development appeal board or in certain cases to the Municipal Government Board.
The Municipal Government Act (MGA) defines development very broadly to include an excavation, a building, or changes to the use of land or a building. The land use bylaw identifies the specific permitted and discretionary uses of land and buildings and the process for applying for a development permit.
As with a subdivision application, the development authority may refer the application to various parties to determine whether there are any concerns with the proposal. The development authority must also give notice to affected persons with respect to the receipt of the application. A municipality typically sets out in the land use bylaw who must be notified of the various types of applications.
After receipt of any comments the development authority will assess the application and determine firstly whether it is consistent with municipal plans and bylaws and can be approved, and whether it should be approved. Discussions with the applicant may occur at this time to make amendments to bring it into alignment with plans, bylaws and best planning practices. The development authority may then approve the application with or without conditions, or refuse the application. A decision on a development permit can be appealed by the applicant or by an affected person to the municipal subdivision and development appeal board.
A right of appeal exists in most situations when an applicant, department, or agency to whom the application was referred or an affected landowner is not satisfied with a decision. Depending on the type of application, appeals may be made to the subdivision and development appeal board, the Municipal Government Board or the courts. The following sections discuss the process for appeals before each of these bodies.
As noted previously, decisions of the subdivision authority may be appealed to the Subdivision and Development Appeal Board (SDAB) or, if the appeal involves a matter of provincial interest as defined in the MGA, to the MGB. If a subdivision authority fails to make a decision within 60 days of receipt of a completed application or such longer period as agreed to by the applicant, the failure to make a decision may also be appealed.
The MGA provides strict timelines for initiating and hearing an appeal. An appeal may be launched by the applicant, a government department to whom the application was referred, the municipality if it is not the subdivision authority, or a school board in respect of the allocation or location of reserves. Note that there is no right of appeal by an adjacent landowner. The appeal must be submitted in writing to the SDAB within 14 days of the receipt of the notice of decision. The SDAB must give written notice of the hearing at least 5 days prior to the hearing to the parties identified in the MGA including the owners of adjacent land. The SDAB must hold a hearing within 30 days of receipt of the appeal and give a written decision with reasons within 15 days of concluding the hearing.
Development permit appeals
An applicant or any person affected by a decision of a development authority may appeal the decision to the SDAB. As with subdivision appeals, the MGA provides timelines within which appeals must be heard. An appeal must be made in writing to the SDAB within 14 days of receiving notice of the decision. The SDAB must give notice of a hearing at least 5 days before the hearing commences and must hold the hearing within 30 days of receipt of the appeal. A written decision must be given within 15 days of concluding the hearing.
Details on SDAB operating procedures are provided in a training manual available from Alberta Municipal Affairs.
Municipal Government Board
As noted previously, subdivision applications that may affect a defined provincial interest may be appealed to the Municipal Government (MGB). Provincial interest is defined in the MGA as land that is the subject of a subdivision application within the distance of a highway, body of water, a sewage treatment plant waste management facility as set out in the Subdivision and Development Regulations. As with the SDAB, the MGB must adhere to strict timelines for processing subdivision appeals. The MGB must give notice of a hearing at least 5 days prior to the hearing and must hold the hearing within 60 days of receipt of the appeal. A written decision giving reasons for the decision must be given by the MGB within 30 days of concluding the hearing.
Section 619 appeals
As noted previously, a municipality must approve an application for planning approval that is consistent with a decision of the Natural Resources Conservation Board (NRCB), Alberta Energy Regulator (AER), or Albert Utilities Commission (AUC). If the municipality, subdivision, or development authority refuses to approve such an application the applicant may appeal the decision to the MGB. The appeal must be filed in writing with the MGB and must include a statutory declaration indicating the attempts at mediation have failed or the applicant believes the municipality is unwilling to mediate. The MGB must hold a hearing within 60 days of the receipt of the appeal and must give a decision in writing with reasons within 30 days of concluding the hearing. The board may order the municipality to amend the statutory plan or land use bylaw or dismiss the appeal.
Intermunicipal disputes (Section 690 appeals)
If a municipality is of the opinion that a statutory plan or amendment or a land use bylaw or amendment adopted by an adjacent municipality has or may have a detrimental effect on it, the municipality may appeal the action to the MGB. The process for appeal is set out in the MGA and includes provisions for giving notice and attempting mediation before proceeding to a hearing before the board. The board may dismiss the appeal, or order the adjacent municipality to amend or repeal the provision if it is found to be detrimental.
Decisions of a subdivision and development appeal board or the MGB can be appealed to the Court of Appeal but only in limited circumstances (if there is a question of law or jurisdiction). An application for permission to appeal must be filed and served within 30 days of the issue of the decision sought to be appealed. On hearing the appeal, the Court may confirm, vary, reverse or cancel the decision.