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CASUAL LEGAL: “Other” Decisions of the Development Authority which can be appealed to the SDAB

May 20, 2020

Attention: AMSC Members – Please distribute to all appropriate personnel

“Other” Decisions of the Development Authority which can be appealed to the SDAB

By Kelsey Becker Brookes

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

 

Municipalities are familiar with and used to dealing with appeals to the Subdivision and Development Appeal Board (“SDAB”) of subdivision approvals, development permits and s. 645 Stop Orders. Less common are those appeals of “other” decisions of the development authority. Section 685(1) and (2) sets out the grounds for appeal for development appeals. While the person applying for the development permit may appeal the failure or refusal to issue a development permit or the issuance of a development permit with conditions and the person affected by a s. 645 Stop Order may appeal the order, ss. 685(2) sets out the grounds of appeal for “affected persons” as follows: Any person affected by an order, decision or development permit made or issued by a development authority may appeal to the SDAB. 

What are these decisions of the development authority which can be appealed to the SDAB, other than an order or a development permit?   

Development permits are often made subject to specific conditions relating to the particular development, but they are also subject to general conditions and limitations set out in the Land Use Bylaw. One of the commonly applicable conditions or limitations is that a development permit is only valid for one year, unless a building permit is obtained or construction commences. The Court of Appeal has confirmed that the decision of the development authority that a development permit had not expired under a similar provision in a Land Use Bylaw, notwithstanding construction had not commenced within one year, was a decision of the development authority which could be appealed to the SDAB. This makes practical sense because if the development permit had been found to have expired, the applicant would have had to apply for a new development permit, which would have triggered a new appeal period.

A similar analysis would apply to Land Use Bylaw provisions which provide a development permit may be suspended or cancelled if the development permit application contained a misrepresentation. This decision can be appealed to the SDAB.

With respect to the appeal period, the Court recognized that while s. 685(2) creates a right to appeal “an order, decision or development permit”, s. 686(1)(b) only provides for a time limit for an appeal from “the notice of the issuance of the permit”. Where notice of the decision of the development authority is given, the appeal period will run from that date. Where notice is not given, the rule in Coventry Homes Inc. will most likely apply, and the appeal period will run from the date the affected person knew or ought to have known of the decision. 

As more and more planning and development decisions are being made at the local level, with significant investment at stake, it is important for development authorities (and developers) to appreciate there may be a broader range of development authority decisions which are subject to appeal than first thought.


To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal@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@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.