Wasylyk v. Bonnyville (Municipal District No. 87), 2012 ABQB 348

Court of Queen ’ s Bench of Alberta Citation: Wasylyk v. Bonnyville (Municipal District No. 87), 2012 ABQB 348 Date: 20120525 Docket: 1103 19160 Registry: Edmonton Between: Mike Wasylyk and Agnes Wasylyk Applicants - and - The Municipal District of Bonnyville No. 87 and Her Majesty the Queen In Right of the Province of Alberta As Represented by the Minister of Environment and Water Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Background [ 1 ] The Applicants, Mike and Agnes Wasylyk (the “ Wasylyks ” ) own approximately 100 acres (the “ Wasylyk Land ” ) in the Municipal District of Bonnyville No. 87 (the “ MD ” ). The MD has established two waste collection sites adjacent to the Wasylyk Land: the Chatwin Lake Site and the Model Developments Site (the “Sites”). No development permit has been issued for the Sites. [ 2 ] The Wasylyks commenced this action by Originating Application, referring to the Sites as “ garbage dumps ” .

They seek a declaration that the Sites are “ developments ” and “ storage sites ” under various statutes, regulations and bylaws. They also initially sought an injunction directing the MD to remove the garbage dumps from the Sites and to remediate any contamination resulting therefrom. In oral argument, counsel indicated that the Wasylyks were not seeking an injunction.

[ 3 ] The MD submits that the application is out of time, is an abuse of process, and that estoppel and laches apply. Further, the MD submits that neither a development permit nor a setback waiver from Alberta Environment is required. [ 4 ] The Wasylyks named and served Her Majesty the Queen In Right of the Province of Alberta As Represented by the Minister of Environment and Water ( “ Alberta Environment ” ) in these proceedings but do not seek any relief against it.

Alberta Environment took no position with respect to whether development permits were required, but made submissions with respect to setback waivers. Facts [ 5 ] The MD has operated the Sites since 1998 or 1999. At that time, the waste collection was restricted to a single bin. A development permit for the Wasylyk ’ s residence was issued in June 2000. The Sites are adjacent to the Wasylyk Land.

Refuse from households in the region is stored in collection bins on the Sites and then hauled away by truck. [ 6 ] Mike Wasylyk has sworn two affidavits in support of the application, filed December 5, 2011 and February 8, 2012. Numerous photographs of the Sites are attached to the affidavits. Mr. Wasylyk deposes in his December 5, 2011 affidavit that he and his counsel have written numerous letters to the MD and Alberta Environment in order to have the garbage dumps removed, without success.

He states that the Sites are causing a significant nuisance to his residence as the MD has failed to keep the garbage in properly sealed containers, with the result that he and his wife have been required to deal with odours and escaping garbage, which raises health concerns. Mr. Wasylyk asserts that the MD does not have a development permit for the Sites or a setback waiver from Alberta Environment, nor has it provided notification of the Sites. [ 7 ] Matt Janz, Director of Agricultural and Waste Services for the MD, has sworn an affidavit dated March 28, 2012.

He has been employed with the MD since January 2001, and has been Director responsible for waste management services since January 2009. He states that waste management services are part of the public works and public utility systems of the MD which are provided to taxpayers and residents. [ 8 ] Janz states that the MD has responsibility for managing waste disposal within its geographic boundaries. He notes that waste management challenges have increased a s the MD has grown, especially since 2009. The Wasylyk Land is near Moose Lake. The population and subdivisions around Moose Lake have expanded.

Janz deposes that the MD has the right to use the land on which the Sites are located. [ 9 ] The Sites consist of portable waste bins in a fenced and paved area for residential garbage and recycle materials, around 100 feet long and 40 feet wide, with walk in access only for people depositing garbage. Each portable waste dumpster is made of steel, has 6 cubic yard capacity and has a lid on it. A locked gate is opened for trucks attending to empty the dumpsters. Presently, the MD only recycles cardboard. [ 10 ] Janz deposes that the Wasylyks began voicing concerns in a letter to the MD in 1999.

The MD has been working for a number of years to improve the Sites to make them more user friendly and accessible. Since Janz has been Director, Mr. Wasylyk has expressed concerns about the location and tidiness of the Sites, and garbage blowing onto the Wasylyk Land. [ 11 ] Janz describes in some detail the MD ’ s attempts to improve the Sites to address the Wasylyks ’ concerns. He deposes that in the winter of 2009/2010, the MD reviewed available options for waste collection at Moose Lake, including the Sites. However, other viable options were deemed to be too expensive.

Instead, the MD upgraded the Sites in 2009 and 2010 by re-constructing, installing chain link fencing, gravelling and paving them. ln mid-2010, the MD was prepared to plant a buffer zone of trees between the Chatwin Lake Site and the Wasylyk Land. At that time, Mr. Wasylyk told Janz that he did not want the Sites near his land and wanted them moved. As a result, the MD did not plant the trees.

In 2011, the MD was prepared to plant the trees in the summer as a buffer zone at the Sites, but the MD did not proceed due to a letter from the Wasylyks ’ lawyer, which the MD received in late May or early June 2011, alleging that development permits and setback waivers were required. The MD remains willing to plant trees as a buffer zone between the Sites and the Wasylyk Land.

[ 12 ] Janz deposes that the Sites are needed so that the MD can continue to provide waste management services to residents who reside on property near them. It would be a significant hardship to the MD and to residents if the Sites could not longer be used to provide waste management services. It would cost the MD, and taxpayers $150,000 or more to move the Sites, not including the cost of any property the MD would have to purchase. [ 13 ] Pursuant to the Municipal Government Act , RSA 2000, c M-26 (the “ MGA ” ) the MD passed Municipal District of Bonnyville No. 87, Land Use Bylaw No. 1207 (the “ LUB ” ).

Wasylyks ’ Position [ 14 ] The MD raises the issue of limitations. The Wasylyks argue that the Sites exist without a development permit, and that no limitation period applies. It is clear under the MGA that if a development exists, a development permit is required. An illegal development does not become legal with the passage of time. [ 15 ] If limitations apply, then the development did not become permanent until sometime in 2010 when it was paved and made more accessible which increased the intensity of use.

Until the fall or winter of 2009, the Sites were held out by the MD as being temporary and the MD was looking at other options. The Reeve ’ s letter of May 19, 2010 to Derek Alexander of Alberta Environment indicates that the MD had made a decision that it would retain the Sites and make them permanent. The Sites were paved during the summer of 2010. There is no estoppel nor has there been detrimental reliance.

The MD simply decided to proceed without a development permit. [ 16 ] The Wasylyks are not asking the Court to direct that the Sites be moved; they are merely asking for declarations, which would trigger a process which the MD itself would in other cases ensure was followed. [ 17 ] The Wasylyks submit that t he Sites are not accessory to another use. They are not located within the subdivisions they are intended to serve. Their sole use is as garbage dumps. If they were in subdivisions, they would require permits.

The Wasylyks submit that the Sites are: - “developments” as defined in the MGA (ss. 616(b) “development” and 616(a.1) “utility”) and the LUB, (Part 8 “development” “building” “public utility”) and therefore the MD was required to obtain development permit for them under s. 683 of the MGA and ss. 12.1, 12.2 and 14 of the LUB; - “storage sites” within the meaning of the Waste Control Regulation , Alta Reg 192/1996 ( s. 1 (ii) “ storage site ” , (ll) “ waste ” , (mm) “ waste management facility ” ) , and therefore the MD required a waiver of the 300 metre setback requirement under the Subdivision and Development Regulation , Alta Reg 43/2002 ( s. 13(4) (d)); and - “storage sites” within the meaning of the Activities Designation Regulation , Alta Reg 276/2003 ( s. 4 (c)), and as a result the MD must meet certain notice requirements under the Environmental Protection and Enhancement Act , RSA 2000, c E-12 ( ss. 87 , 88 ; Activities Designation Regulation , s. 5(3),

Schedule 3). MD ’ s Position [ 18 ] The MD submits that the Wasylyks ’ application is out of time under s. 3(1) of the Limitations Act , RSA 2000, c L-12. The Act provides a two year limitation on claims, and a maximum time of 10 years from the time a claim arose, whichever first occurs. The Act defines “ injury ” in s. 1 (

e) as: (

i) personal injury, (ii) property damage, (iii) economic loss, (iv) non-performance of an obligation, or (

v) in the absence of any of the above, the breach of a duty. This definition covers the matters complained of by the Wasylyks: nuisance to their residence, the MD not keeping garbage in sealed containers, odours, health concerns, negative impact on animals and concerns about refined petroleum products leaching onto the Wasylyk land. Limitations serve an important purpose, and without them “ much of the country ’ s assets, infrastructure, and capital would be sterilized by the dead hand of history ” : Bowes v Edmonton (City) , 2007 ABCA 347 at para 121 .

[19] The MD submits that the use of the Sites has not changed since 1998/99. They have been used since that time for collection,temporary storage, and disposal of household refuse. The MD notes that the Wasylyks obtained the development permit for their homein June 2000.

The MD submits that the Wasylyks first knew that the alleged injury for which they are seeking an injunction had occurredby at least October 12, 1999 (if not as early as 1998), when they wrote a letter to the then Reeve of the MD, complaining about wastebins at both ends of their property, and noting that issues of sanitation, unsightliness, and contamination had developed for them inOctober 4, 1998 when the MD made sites for waste bins. The Wasylyks said, “Now with the two ends of our property set up as garbagedumps, you have forced us to look for a new building site for our home on the property”.

In a March 18, 2010 email from the Wasylyksto Derek Alexander at Alberta Environment, the Wasylyks stated that they had been trying to resolve the issue “for about 12 years”. [20] The Originating Application was filed on December 15, 2011. The MD submits that the Wasylyks were out of time under thetwo year limitation by October 2000, or at the latest 2001. Further, by October 2009 (or even October 2008), they were out of time underthe 10 year limitation.

On November 14, 2009, the Wasylyks sent a letter to MD Reeve Rondeau, and on November 15, 2009, theywrote letters to Minister Renner and Minister Morton, referring to the Sites as being constructed to be “permanent” garbage collectionsites. Even if a November 15, 2009 date is followed, the MD submits that the Originating Application filed on December 15, 2011 is outof time. [21] The MD acknowledges that the definition of “remedial order” in the Limitations Act excludes a declaration of rights, howeverit submits that the declaration sought by the Wasylyks is caught by the Act, as it is a remedial order.

The Wasylyks are really seeking atangible remedy from the Court under the auspices of a declaration, requiring the MD to comply with a duty or to pay damages for theviolation of a right. Ultimately, they want the MD to move the Sites. [22] The MD concedes that it is open to the Court to issue a declaration that the Sites are developments or storage sites.

However,orders that development permits are required for the Sites, or that notice is required to be given to Alberta Environment, are coerciveremedies. [23] The MD also submits that the Wasylyks’ application constitutes an abuse of process, citing Toronto (City) v Canadian Unionof Public Employees Local 79, 2003 SCC 63 , [2003] 3 SCR 77 at para 37, and Reece v Edmonton (City), 2011 ABCA 238, [2011] AJ No 876 (CA) at para 19.

It was not until the end of May or early June 2011 that the MD became aware that theWasylyks are claiming that development permits, setback waivers and notification to Alberta Environment are required. For 12 years,the Wasylyks made no such allegations. [24] The MD argues that proprietary estoppel applies, citing Parkdale Nitty Fifties Seniors Assn v Parkdale CommunityAssn,2011 ABQB 433 at paras 28-29.

The Wasylyks allowed the MD to believe that it had or would enjoy some right or benefit over theproperty adjacent to the Wasylyk Land; in reliance upon this belief, the MD acted to its detriment, to the knowledge of the Wasylyks, byspending time and money improving the Sites and the Wasylyks now seek to take unconscionable advantage of the MD by denying it theright or benefit which it expected to receive.

As no right is asserted in relation to the Wasylyks’ land, the test for proprietary estoppelshould be applied generously in this case. [25] The MD submits that the doctrine of laches applies as there has been delay resulting in acquiescence or making itunreasonable for the claim to proceed: M(

K) v M(H), (SCC), [1992] 3 SCR 6 at paras 98, 100, 681210 Alberta Ltd(cob) Okotoks Cinemas v Hunter, 2012 ABCA 83. It would be an injustice to the MD for a claim to proceed 12 or more years after theWasylyks had knowledge of the use being made of the Sites.

Again, the MD, at considerable expense, took significant steps to improvethe Sites, to improve waste collection services at the Sites and to make them cleaner and tidier. [26] The MD argues that it is empowered by the MGA (ss. 7, 9, 12, 639, 640(1) and 683), to choose when development permitsare required and when they are not and can make exemptions for development permits in its LUB. [27] The MD argues that the Sites do not constitute a “development” under

Part 8 of the LUB, as they are not excavations orstockpiles, buildings or construction related to buildings, a change of use of land or a building, or a change in the intensity of use of landor a building.

[28] Although s. 685 of the MGA gives a right of appeal to the subdivision and development appeal board by the person whoapplied for a development permit or who was affected by it, the MD in the LUB has made a specific exemption in s. 14.1(

g) for the"maintenance and repair of public works, services and utilities carried out by ... municipal authorities on land which is publicly owned orcontrolled" by the MD. [29] If the Sites are “developments”, then the exemption in s. 14.1(

g) applies and no development permits are required. Althoughs. 14.1(

g) of the Bylaw does not use specifically use the word "public utility", the definition of "public utility" in

Part 8 of the LUBincludes waste management. Even if the broad

definitions of "services" and "utilities" do not include “public utility”, as set out in theLUB, the MD’s activity at the Sites fits within the

definitions of “services” and “utilities” in s. 14.1(

b) and therefore no developmentpermit is required for them. The MD submits that the latter phrase “maintenance and repair of public works, services and utilities”should be read disjunctively so that “maintenance and repair” refers only to “public works”. [30] Further, the Supreme Court has found "public work" to mean "not merely some building or other erection or structurebelonging to the public, but any operations undertaken by or on behalf of the Government in constructing, repairing or maintainingpublic property": R v Compagnie Generate d'Enterprises Publiques (1917), (SCC), 57 SCR 527 at 532.

Anyconstruction, upgrading, fencing, gravelling and paving related to the Sites falls into the definition of “public work”. [31] The MD argues that waste management services are part of its public works and public utility systems which are provided toresidents, and “public works”, “maintenance” and “repair” are broad enough to encompass the Sites and the waste collection serviceswhich are done from them. Those

definitions cover any upgrades, gravelling, fencing, paving, clean-up and the like that are, or are beingdone at the Sites. [32] The MD further argues that the collection of waste in bins and everything which is done at the Sites clearly falls within thedefinition of "services", which are the product of the work of the person providing it: Xerox Canada Ltd v Regional AssessmentCommissioner, (SCC), [1981] 2 SCR 137 at 138.

The Canadian Oxford Dictionary, 2d ed (Toronto: Oxford UniversityPress, c2004) at 1417 defines “service” as including “the provision or system of supplying a public need, e.g. transport, or . . . the supplyof water, gas, electricity, telephone, etc.” What is done at the Sites is the product of work done by the MD, and is also the provision ofwaste management services at the sites to help and benefit MD residents. [33] A public service has been construed as "one which supplies wants felt by the public whether the service is supplied by agovernment body or by a private entity on contract with a government body".

A storage yard and a works yard have been found to fit thatdefinition: Whistler (Resort Municipality) v Whistler (Resort Municipality, Board of Variance), [1986] BCJ No 2235 (Co Ct) at 8. TheMD cites George v Town of Vaughan, [1971] OJ No 1698 (HCJ) at para 42 for the proposition that the character of the service isdetermined by its nature and not by the extent to which the public takes advantage of it.

Further, the Dictionary of Canadian Law, 4th ed(Scarborough, Ont.: Thomson Carswell, c2011) at 1350 defines “utilities” as a "system or facility that is used to provide any of thefollowing things for the public: water, sewage treatment and disposal, public transportation, heat, waste heat, and waste management". [34] The MD submits that the modern approach to statutory

interpretation mandates a broad and purposive approach whichempowers municipalities: St Paul (County No 19) v Belland, 2006 ABCA 55 at para 16, Montréal (City) v 2952-1366 Québec Inc, 2005SCC 62 at para 47, United Taxi Drivers' Fellowship of Southern Alberta v Calgary (City), 2004 SCC 19, Shell Canada Products Ltd vVancouver (City), (SCC), [1994] 1 SCR 231 at 244-45.

Several provinces, such as Alberta, have moved away from thepractice of granting municipalities specific powers in particular subject areas, choosing instead to confer them broad authority overgenerally defined matters, reflecting the fact that modern municipalities require greater flexibility in fulfilling their statutory purposes.This approach is consistent with the general law on statutory

interpretation: EA Driedger, Construction of Statutes, 2nd ed (Toronto:Butterworths, 1983) at 87, Bell Express Vu Limited Partnership v Rex, [2002] 2 SCR 559, 2002 SCC 42 at para 26,

Interpretation Act,RSA 2000, c I- 8, s 10. [35] The MD also argues that the Sites are not “storage sites” and therefore no waiver is required from Alberta Environment, nordo any notice requirements arise. The MD also takes the position that the Wasylyk Land is 417 to 437 metres from the Chatwin LakeSite and further than that from the Model Developments Site, so no setback waiver is required. [36] The MD submits that the Wasylyks really seek injunctive relief, but they have not met the test for an injunction.

Mandatoryinjunctions require a heightened standard - a strong prima facie case - for the first part of the test for an injunction: United Taxi Drivers'Fellowship of Southern Alberta v Calgary (City) (1998), 204 AR 2 (QB) at para 4. The MD submits that the Wasylyks do not have a

strong prima facie case. Further, there is no evidence of irreparable harm. It submits that it has shown a willingness and good faith to reduce any negative impacts, thereby dramatically decreasing the possibility that the Wasylyks will suffer irreparable harm by virtue of the Sites' proximity to their land. Further, the balance of convenience favours the MD. If the Sites remain in place, the Wasylyks will simply be left with the status quo , which has caused no harm.

Should the injunction be granted, the Sites would have to be dismantled, and the expense of $150,000 or more to relocate the Sites (not including the cost of the land for new sites) would cause significant hardship on the MD and its residents. [ 37 ] The MD further argues that the Wasylyks ’ concerns are more properly described as a nuisance, not irreparable harm, and should have been brought as a nuisance tort claim, which would now be out of time. Alberta Environment ’ s Position [ 38 ] Alberta Environment makes no submissions with respect to the definition of “ development ” under the MGA or the LUB, nor the

interpretation of the Subdivision and Development Regulation , except insofar as that

interpretation is affected by the definition of “ storage site ” in the Waste Control Regulation . It argues that the Sites are not “ storage sites ” for these purposes. [ 39 ] Alberta Environment plays no role in issuing development permits, and it argues that if the Court chooses to pronounce on the matter, and declares that the Sites constitute “developments”, the p rocess should unfold as it normally would without further direction by the Court. Issues [ 40 ] The following issues arise on the arguments before the Court: 1) Is the motion barred:

a) by limitation?

b) as an abuse of process?

c) by estoppel?

d) by laches ? 2) If not, are the Sites:

a) developments or buildings?

b) storage sites requiring a setback waiver?

c) storage sites requiring notice? 3) If so, what remedy, if any, is available and appropriate? 1

a) Is the motion barred by limitation? [ 41 ]

Section 1 (i)(

i) of the Limitations Act provides:

1(i) “ remedial order ” means a judgment or an order made by a court in a civil proceeding requiring a defendant to comply with a duty or to pay damages for the violation of a right, but excludes (

i) a declaration of rights and duties, legal relations or personal status. In Yellowbird v Samson Cree Nation No 444 , 2006 ABQB 434 at paras 35 , 38- 39, aff ’ d 2008 ABCA 270 , Slatter J. (as he then was) discussed the difficulty in discerning when purely declaratory relief is sought.

In that case, even though the defendant conceded that the plaintiffs were band members, the plaintiffs continued to press for a declaration of entitlement to benefits. [ 42 ] Here, the Wasylyks are not seeking a declaration of entitlement to anything except the process which would be expected to flow from a recognition that the Sites constitute developments for which permits should be sought. Presumably, any person seeking declaratory relief is hoping to benefit from the legal consequences naturally flowing from a declaration which simply pronounces on the legal position.

Why else would one go to the trouble and expense of seeking a declaration of a legal position? [ 43 ] Slatter J. notes the policy problem created by a situation where the necessary remedial order is barred by the Limitations Act , resulting in a declaratory order that the defendant does not have to obey, and a plaintiff with a supposed right but no remedy, which would undermine respect for the orders of the Court. But this difficulty would only be avoided where limitations did not pose an issue in the first place.

Taking this position to the extreme, no declaratory relief would ever fit the exception contemplated in s. 1 (i)(

i) of the Limitations Act. The legislator is deemed to speak for a reason.

In my view, the declaration sought by the Wasylyks is distinguishable from the declaration of entitlement to benefits in Yellowbird , and is the type of relief which is contemplated by the legislator in this provision. [ 44 ] If I am wrong in finding that the relief sought by the Wasylyks is declaratory relief exempted from the Limitations Act , then I find that although the Wasylyks have been aware since 1998 or 1999 that dumpsters had been placed on either end of their land, the MD held out to them that they were not permanent, and the Wasylyks did not know until 2010 that the MD had in fact decided to make the Sites permanent.

The Reeve ’ s letter of May 19, 2010 to Derek Alexander indicates that the MD had made a decision that it would retain the Sites and make them permanent. The Sites were paved during the summer of 2010. 1

b) Is the motion barred as an abuse of process? [ 45 ] I find Reece to be distinguishable. In that case, there was another more appropriate means of bringing the matter before the Court. Here, the Wasylyks wish to participate in an alternate forum, but the same is not available due to the

interpretation taken by the MD of the MGA and LUB. [ 46 ] However, I accept the argument of Alberta Environment that the declaration sought with respect to the definition of “ storage site ” is entirely premature and hypothetical. Under the statutory regime applicable to Alberta Environment, it responds to setback waiver requests. There has been no request, and therefore such a declaration would inappropriately interfere with administrative procedures which have not yet been engaged.

Whether or not this would amount to an abuse of process in the technical sense, this Court declines to exercise its discretion to grant the declaration sought in relation to decisions which Alberta Environment has not yet been called upon to make. [ 47 ] The MD submitted that the Wasylyks should have brought an action framed in nuisance. I note that s. 528 of the MGA provides that a municipality is not liable in an action based on nuisance, or on any other tort that does not require a finding of intention or negligence, if the damage arises, directly or indirectly, from the operation of a public utility.

Therefore, the Wasylyks would be barred from making, in the context of a nuisance claim, the arguments they made in this application. That provision of the MGA was included in a statutory regime wherein affected property owners have access to an administrative process. The Wasylyks argue that they have been denied the right to participate in that scheme. [ 48 ] I find the application does not constitute an abuse of process insofar as it seeks a declaration that the Sites are “ developments ”

under the MGA and the LUB. 1

c) Is the motion barred by estoppel? [ 49 ] I accept the Wasylyks ’ argument that they were led to believe until 2009 or 2010 that the MD was looking at other options, and that they did not learn until 2010 of the final decision to make the Sites permanent and to pave and fence them. It is not contested that the Wasylyks have consistently expressed a desire over many years that the Sites be moved.

According to the information before the Court, there was no basis upon which the MD could infer that the Wasylyks had changed their position to one of tolerance or acquiescence to the inevitable, so as to encourage the MD to make the improvements to the Sites. I find that the motion is not barred by estoppel. 1

d) Is the motion barred by laches ? [ 50 ] Following the reasoning above, the doctrine of laches does not find application in this case. 2 Are the Sites “ developments ” or “ buildings ” as defined in the MGA and the LUB? [ 51 ] Given my finding following the abuse of process discussion above, the only remaining issues which this Court will address are whether the Sites are “ developments ” as defined in the MGA and LUB and whether they fall within an exception in s. 14.1 of the LUB. [ 52 ] I will not address the

interpretation of “ storage sites ” . If I were to find that the Sites are “ developments ” , and if the MD were to issue a permit which in the Wasylyks ’ view breached the prohibition in s. 13(4) (

d) of the Subdivision and Development Regulation , they could raise this issue in another forum. Legislation [ 53 ] The MGA provides in part: 1(1)(y) “ public utility ” means a system or works used to provide one or more of the following for public consumption, benefit, convenience or use: ...(ix) waste management; and includes the thing that is provided for public consumption, benefit, convenience or use; ... 7 A council may pass bylaws for municipal purposes respecting the following matters: (

a) the safety, health and welfare of people and the protection of people and property; (

b) people, activities and things in, on or near a public place or place that is open to the public;

(

c) nuisances, including unsightly property; ... (

f) services provided by or on behalf of the municipality; (

g) public utilities... 8 Without restricting

section 7, a council may in a bylaw passed under this Division ...(

b) deal with any development, activity, industry, business or thing in different ways, divide each of them into classes and deal with each class in different ways; (

c) provide for a system of licences, permits or approvals, including any or all of the following: ... (iii) prohibiting any development, activity, industry, business or thing until a licence, permit or approval has been granted; ... (

v) setting out the conditions that must be met before a licence, permit or approval is granted or renewed, the nature of the conditions and who may impose them... Planning and Development 616 In this Part, ...(a.1) “ building ” includes anything constructed or placed on, in, over or under land, but does not include a highway or road or a bridge that forms part of a highway or road;... (b) “ development ” means (ii) a building or an addition to or replacement or repair of a building and the construction or placing of any of them on, in, over or under land, (iii) a change of use of land or a building or

an act done in relation to land or a building that results in or is likely to result in a change in the use of the land or building... (v) “ public utility ” means a system or works used to provide one or more of the following for public consumption, benefit, convenience or use:

...(ix) waste management; and includes the thing that is provided for public consumption, benefit, convenience or use... 617 The purpose of this Part and the regulations and bylaws under this

Part is to provide means whereby plans and related matters may be prepared and adopted (

a) to achieve the orderly, economical and beneficial development, use of land and patterns of human settlement, and (

b) to maintain and improve the quality of the physical environment within which patterns of human settlement are situated in Alberta, without infringing on the rights of individuals for any public interest except to the extent that is necessary for the overall greater public interest. ... 683 Except as otherwise provided in a land use bylaw, a person may not commence any development unless the person has been issued a development permit in respect of it pursuant to the land use bylaw. [ 54 ] The following provisions of the LUB are relevant: 2 The purpose of this Bylaw is to regulate the use and development of land and buildings within the boundaries of the Municipal District of Bonnyville to achieve the orderly and economic development of land. 3 The provisions of this Bylaw apply to all lands and buildings within the boundaries of the Municipal District of Bonnyville No. 87, pursuant to

Part 17, Division 3 of the Municipal Government Act . 5 No person shall commence any development unless it is in accordance with the terms and conditions of this Bylaw. 6.1 Nothing in this Bylaw affects the duty or obligation of a person to obtain a development permit as required by this Bylaw 12.1 Except as provided for in

Section 14, no person shall commence development in the Municipal District unless a development permit has first been issued pursuant to this Bylaw and the development is in accordance with the terms and conditions of a development permit issued pursuant to this Bylaw. 14.1 A Development Permit is not required for the following developments provided that the proposed development complies with the applicable regulations of this Bylaw: (

c) the construction or maintenance of gates, fences, walls or other means of enclosure...; ...

(

f) construction or installation of an accessory building...; (

g) the maintenance and repair of public works, services and utilities carried out by or on behalf of federal, provincial or municipal authorities on land which is publicly owned or controlled, or, on private land if approved by the landowner; ... 18.2 In making a decision on an application for a Discretionary Use, the Development Authority: (

a) may approve a development permit application which meets the requirements of this Bylaw, and any approved statutory plan or policy affecting the area, with or without conditions based on the merits of the application, with the purpose and intent of any statutory plan or policies adopted by the Municipal District of Bonnyville No. 87 (

b) may refuse a development permit application even if it meets the requirements of this Bylaw. 18.3 In reviewing a development application for a permit for a Discretionary Use, the Development Authority shall have regard for: (

a) the circumstances and merits of the application, including, but not limited to:

i) the impact of such nuisance factors as smoke, airborne emissions, odours, and noise on nearby properties; ii) the use, design, character and appearance of the development being compatible with surrounding properties; and, iii) the servicing requirements for the proposed development; (

b) the purpose and intent of any statutory plan adopted by the Municipal District. 18.4 Pursuant to the Municipal Government Act , the Development Authority may approve an application for a development permit notwithstanding that the proposed development does not comply with this Bylaw, if, in the opinion of the Development Authority: (

a) the proposed development conforms with the uses of land prescribed in this Bylaw; (

b) the proposed development would not:

i) unduly interfere with the amenities of the neighbourhood; or, ii) materially interfere with or affect the use, enjoyment or value of neighbouring properties.

Part 8

DEFINITIONS ACCESSORY BUILDING OR USE means a building or use which is subordinate to, exclusively devoted to, and located on the same

ACCESSORY BUILDING OR USE means a building or use which is subordinate to, exclusively devoted to, and located on the same site as the principle building or use. Where a structure is attached to a principal building on a site by a roof, an open or enclosed structure, a floor or foundation, or any structure below grade allowing access between the building and the structure, it is considered part of principal building. BUILDING includes anything constructed or placed on, in, over or under land including supporting structures of any type but does not include a highway or public roadway or a bridge forming part of a highway or public roadway. DEVELOPMENT means:

a) an excavation or stockpile and the creation of either of them;

b) a building or an addition to or replacement or repair of a building and the construction or placing of any of them in, on, over or under land;

c) a change of use of land or a building or

an act done in relation to land or a building that results in or is likely to result in a change in the use of the land or building; or,

d) a change in intensity of use of land or a building that results in or is likely to result in a change in the intensity of use of the land or building. DISCRETIONARY USE means the use of land or of a building which is listed in the column captioned Discretionary Uses in a table of uses for the land use districts in this Bylaw, and for which a development permit may be issued. PUBLIC UTILITY means a development or right-of-way used to provide one or more of the following for public consumption, benefit, convenience or use: ...

i) waste management. [ 55 ] “ Public utility ” is a listed discretionary use in the table of uses for the land use districts in the LUB. Discretionary uses also include: “ Those uses which, in the opinion of the Development Authority, are similar to the permitted or discretionary uses, and which conform to the general purpose and intent of this district ” . Analysis [ 56 ] The MD concedes that the Sites are within the geographic boundaries of the MD. [ 57 ] The MD is empowered by s. 8 of the MGA to provide for a permit system for developments. The

definitions of “ building ” and “ development ” in s. 616 are broad. [ 58 ]

Section 617 of the MGA provides that planning bylaws are intended to achieve the orderly, economical and beneficial development, use of land and patterns of human settlement, and to maintain and improve the quality of the physical environment within which patterns of human settlement are situated in Alberta, without infringing on the rights of individuals for any public interest except to the extent that is necessary for the overall greater public interest. Permit systems are the means by which this purpose is implemented,

and s. 683 bars commencement of any development unless the developer has been issued a development permit. [ 59 ] This is mirrored in the general provisions of the LUB.

Section 12.1 provides that no person shall commence development in the MD unless a development permit has been issued pursuant to the LUB, except if it falls under s. 14.1.

Section 14.1(

g) exempts the maintenance and repair of public works, services and utilities carried out by or on behalf of federal, provincial or municipal authorities on land which is publicly owned or controlled, or, on private land if approved by the landowner. [ 60 ] I do not accept the MD ’ s submission that this provision should be read disjunctively.

Section 14.1(

c) deals with “ the construction or maintenance of gates, fences, walls ” . Had the intent been to include construction of public works, services and utilities, the same formulation used in s. 14.1(

c) could have been used in s. 14.1(g). [ 61 ] Further, it does not make sense to read s. 14.1(

c) as signifying the construction or maintenance of gates, but not the construction or maintenance of fences or walls. In the same way, it would be straining the meaning to read s. 14.1(

g) as signifying the maintenance and repair of public works, but not the maintenance and repair of services or utilities. Similarly, it strains the meaning of s. 14.1(

g) to interpret it as “ maintenance and repair ” (not construction) of public works, but “ construction ” (not maintenance and repair) of services or utilities. [ 62 ]

Section 18.2 of the LUB describes the powers of the Development Authority in making a decision on an application for a Discretionary Use. Under s. 18.3, the Development Authority is to take into account, among other things, the impact of nuisance factors such as smoke, airborne emissions, odours, and noise on nearby properties.

There is power under s. 18.4 to approve an application for a development permit notwithstanding that the proposed development does not comply with the LUB, but the Development Authority must be of the opinion that the proposed development would not unduly interfere with the amenities of the neighbourhood, or materially interfere with or affect the use, enjoyment or value of neighbouring properties. Clearly, this is a system intended to implement the purposes enunciated in s. 617 of the MGA. [ 63 ] The

Part 8

definitions in the LUB of “ building ” and “ development ” are broad. If nothing else, the Sites constituted “ a change of use of land ” or “ a change in intensity of use of land ” . “ Public utility ” includes a development for waste management for public benefit, convenience or use. “ Public utility ” is a listed discretionary use in the LUB descriptions of the various districts, as are those captured by the catch-all: “ Those uses which, in the opinion of the Development Authority, are similar to the permitted or discretionary uses, and which conform to the general purpose and intent of this district ” .

Since public utilities are included in the lists of discretionary uses, ss. 18.2 to 18.4 ensure that the Development Authority will consider the effects of public utilities on the surrounding neighbours in deciding whether to grant a permit. [ 64 ] The MGA and LUB both include “ waste management ” within the definition of “ public utility ” , which definition includes “ the thing that is provided for public ... benefit, convenience or use ” . Janz stated in his affidavit that the Sites are an important part of the MD ’ s waste management system. They are intended for use by the public.

In my view, on a plain reading of the MGA and the LUB, the Sites are “ developments ” and “ public utilities ” . [ 65 ] For the above reasons, I find that the Sites are developments and public utilities, but they do not fall within the exception in s. 14.1(g), as there must be something already established in order for that thing to be “ maintained or repaired ” . [ 66 ] Assuming the Sites fall within the meaning of “ building ” , they are not exempted under s. 14.1(f) ( “ construction or installation of an accessory building ” ) because they are not accessory to anything.

Arguably, a dumpster installed at a WalMart might fall within this exception. [ 67 ] In my view, this

interpretation of the provisions in question is in harmony with the purpose of planning bylaws set out in s. 617 of the MGA: to achieve the orderly, economical and beneficial development of land, and to maintain the quality of the physical environment, without infringing on the rights of individuals for any public interest except to the extent that is necessary for the overall greater public interest.

As noted, ss. 18.2 to 18.4 of the LUB allow the Development Authority to approve a permit application for a development which constitutes a discretionary use - even if it does not comply with the LUB - but the Development Authority must in all cases take into account the effects on the surrounding neighbourhood. Conclusion

[ 68 ] The Sites are “ developments ” for the purposes of the MGA and LUB. They do not fall within any of the exceptions in s. 14.1 of the LUB. Costs [ 69 ] If the parties cannot agree on costs, they are free to speak to me within 30 days of this decision. Heard on the 12 th day of April, 2012. Dated at the City of Edmonton, Alberta this 24 th day of May, 2012. Gerald A. Verville J.C.Q.B.A. Appearances: Janice A. Agrios Q.C. Kennedy Agrios for the Applicants F. Albert X. Lavergne Reynolds Mirth Richards & Farmer for the MD James Mallet Alberta Justice for Alberta Environment