Northland Material Handling Inc. v. Parkland (County), 2012 ABQB 407

Court of Queen ’ s Bench of Alberta Citation: Northland Material Handling Inc. v. Parkland (County), 2012 ABQB 407 Date: 20120710 Docket: 1203 05480 Registry: Edmonton Between: Northland Material Handling Inc. and Northland Recycling Inc. Applicants - and - Parkland County and the Council of Parkland County Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] In mid-February 2012, the Council of Parkland County, by a vote of 5 to 2, denied Northland ’ s application for an extension of its sand extraction and dry land fill operation on County lands zoned Direct Control. In this originating application, Northland asks for judicial review of that denial.

It invokes three grounds: first, that its Alberta Environment permit prevails over the municipal zoning decision, second, that the Council acted in bad faith or for an improper purpose or took into account improper considerations, specifically the interests of a Northland competitor, and third, that the Council failed to give reasons for its denial. [ 2 ] Northland ’ s application is denied.

[3] When reviewing the decisions of an elected municipal council, unelected courts must respect the limits of their role in ademocracy: to interfere in the decisions of an elected council only to the extent necessary to uphold constitutional values and statutorylimitations: Catalyst Paper Corp. Courts must limit their review to ensuring that the municipal council acted legally and reasonably. [4] Within the appropriate overall approach to judicial review of municipal council decisions, the challenge to the Council’sconclusion that it was not bound by Alberta Environment’s permit is correctness rather than reasonableness because, although thatdecision involved an

interpretation of the municipality’s own legislation, it also involved jurisdictional lines between potentiallycompeting decision-makers: Alberta Teachers’ Association. [5] The Council’s conclusion on that issue was correct. Narrowly, the decision of February 14, 2012 did not impose anyconditions but merely denied an extension of a development permit. Since there were no conditions in the February 14, 2012 decision, itwas not possible for the decision to contain conditions that were in conflict with an approval given by Alberta Environment.

Moreexpansively, the permit issued by Alberta Environment did not require Northland to excavate on its property; it merely requiredNorthland to fill in any holes it dug to a certain height.

As a comparison with s. 619 of the Municipal Government Act effectivelydemonstrates, s. 620 of the Act does not purport to give any kind of precedence or paramountcy to Alberta Environment permits overmunicipal zoning or other decisions [6] Within the appropriate overall approach to judicial review of municipal council decisions, the challenge to the Council’sdecision here based on allegations of bad faith and improper purpose is reviewed according to the standard of reasonableness rather thancorrectness because the challenged decision is within the Council’s authority. [7] Here, there was no evidence of intentionally or recklessly illegal activity by the Council or of any activity that is clearlyinconsistent with its legislative authority.

The decision not to extend Northland’s permit is made within the range of decisions that couldhave reasonably been taken by the Council. [8] Within the appropriate overall approach to judicial review of municipal council decisions, the challenge to the Council’sdecision not to issue reasons for its decision, and a review of the eventual decisions issued, is reviewed on the basis of reasonablenessbecause the Council had no obligation to issue reasons: Newfoundland and Labrador Nurses’ Union. [9] The Council of Parkland County was not legally required to give reasons for its zoning decision; therefore it was notunreasonable for it to choose not to give reasons when it made its decision.

Nevertheless, because it did eventually give reasons, thosereasons must be examined. The reasons eventually given are reasonable, i.e. they come within the range of available outcomes availablefrom the given facts. Cases and authority cited [10] By Northland: Judicature Act, R.S.A. 2000, c. J-2, as amended; Alberta Rules of Court, Rules 3.15 to 3.24; MunicipalGovernment Act, R.S.A. 2000, c. M-26, as amended; Laux, Planning Law and Practice in Alberta (3d ed); Simonelli v. Rocky View(Municipal District No. 44) 2004 A.J. No. 103, 2004 ABQB 45, (2004) 350 A.R. 286; Okotoks (Town) v.

Foothills (Municipal DistrictNo. 31) 2012 ABQB 53; Urban Development Institute v. Rocky View (Municipal District No. 44) 2002 ABQB 651; Associated CabLimousine Ltd. v. Calgary (City of) Taxi Commission, 2003 ABCA 215; Extracts from the Parkland County Land Use Bylaw, "Acheson Industrial Area Direct Control District Regulations (DC Area 1)"; Extracts of the Acheson Industrial Area Structure Plan,Parkland County Land Use Bylaw,

section 16.13;

Interpretation Act, R.S.A. 2000, c. I-8, as amended, s. 28(1)(m); EnvironmentalProtection and Enhancement Act, R.S.A. 2000, c. E-12, as amended, sections 16, 17, 25, 68; Ontario (Attorney General) v. Mississauga(City) (1981), (ON CA), 33 O.R. (2d) 395, 15 M.P.L.R. 212, 10 C.E.L.R. 91, 124 D.L.R. (3d) 385 (CA.); Essex(County) v. Browning-Ferris Industries Ltd. (1998), CarswellOnt 3978 (Ont. C.J. Gen. Div.); Ridge Landfill Corp. v. Harwich(Township) at pp. 4-5 (1980), (ON SCDC), 31 O.R. (2d) 366 (Ont. Div. Ct.); St. Thomas Sanitary Collection ServiceLtd. v. Southwold (Township) (1982), 134 D.L.R, (3d) (Ont.

H.C.); Heppner v. Minister of the Environment (1977), 1977 ALTASCAD206 , 6 A.R. 154, [1977] A.J. No. 523 Alta. S.C.A.D.; Alberta (Minister of Infrastructure) v. Nilsson 2002, ABCA 283; 2003,2 W.W.R. 215;

(2000) A.J. No. 1474; Enterprises Sibica Inc. v. Frelieghsburg (Municipality) 2004 SCC 61, [2004] 3 S.C.R. 304,[2004] S.C.J. No. 57; Thurlstone Co-operative Inc. v. Scarborough (Borough) (1981), 15 M.P.L.R. 240 Ont. Div.

Ct.; Rogers, The Law of Canadian Municipal Corporations (2d ed), pp. 406.6 to 406.6(1); Grosvenor v. East Luther Grand Valley(Township) 2007 CarswellOnt. 337 (Ont. C.A.); Craig v. Bighorn (Municipal District) 2006 ABQB 158; Future Inns Canada Inc. v.Nova Scotia (Labour Relations Board), 1997 NSCA 29 , [1997] N.S.J. No. 103 (C.A.); Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th ) 193, (SCC), [1999] 2 S.C.R. 817; Keefe v. City of Edmonton, 2005 CarswellAlta. 442, 2005 ABCA 144, 11 M.P.L.R. (4th) 24, 29 Admin L.R. (4th) 245, 47 Alta. L.R. (4th) 209; Calgary v.

ValdunDevelopments Ltd. 1997 ABCA 134 , 1997 CarswellAlta 371, 51 Alta. L.R. (3d) 31; Cook v. Alberta (EnvironmentalProtection) 2001 ABCA 2876; National Anti-Poverty Organization v. Canada (Attorney General) 1989 CarswellNat 581; Council ofCivil Service Unions v. Minister for the Civil Service, [1985] A.C. 374 (H.L.) at pp. 401, 408-409, [1984] 3 ALL E.R. 935; Nova, AnAlberta Corporation v. Guelph Engineering Co., 1989 ABCA 253 , 1989 CarswellAlta 157, 70 Alta L.R. (2d) 97,100 A.R.241 (Alta C.A.); Canada Lands Co. CLC Ltd. v.

Alberta (Municipal Government Board) 2006 CarswellAlta 56, 2006 ABQB 293;Kahn v College of Physicians and Surgeons (Ontario) (1992), (ON CA), 9 O.R. (3d) 641 at para. 125; Wolform vAssociation of Professional Engineers and Geoscientists 2001 MBCA 152 at paras 20, 22-23 and 44; Fradsham, Alberta Rules of CourtAnnotated 2012, at pp 89-90. [11] By Parkland County: Laux, Planning Law and Practice in Alberta, 3rd Ed.; Municipal Government Act, R.S.A. 2000, c.M-26; Environmental Protection and Enhancement Act, R.S.A. 2000, c. E-12; 114957 Canada Ltee (Spraytech) v.

Hudson (Town),2001 SCC 40 , [2001] 2 S.C.R. 241, [2001] S.C.J. No. 42; Re Martin Feed Mills Ltd. and Township of Woolwich, [1984] O.J. No. 3195, 46 O.R. (2d) 244; Mulder Investments Ltd. v. Winnipeg (City), (MB CA), [1981] M.J. No. 86, 119 D.L.R. (3d) 377;Jones and de Villars, Principles of Administrative Law, 4th Ed.; Roncarelli v. Duplessis, (SCC), [1959] S.C.J. No.1,[1959] S.C.R. 121; Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 ALL ER 680 (Eng. CA); ValdunDevelopment Ltd. v. Calgary (City), 1997 ABCA 134 , [1997] A.J. No. 447, 51 Alta. L.R. (3d) 31; Baker v.

Canada (Ministerof Citizenship and Immigration), (SCC), [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193; AUPE v. Alberta, [2001] A.J.No. 1569, 2001 ABCA 309; Athabasca Chipewyan First Nation v Minister of Energy 2011 ABCA 29 at para. 23; County Land UseBylaw. [12] By the court: Catalyst Paper Corp. v North Cowichan (District) 2012 SCC 2 , 2012 SCC2, [2012] S.C.J. No. 2;International Bio Research (c.o.b. Pet Habitat) v Richmond (City) 2011 BCSC 471, [2011] B.C.J.

No. 842; Immeubles Port Louis Ltéev Lafontaine (SCC), [1991] 1 S.C.R. 326; Dunsmuir v New Brunswick 2008 SCC 9; Alberta (Information and PrivacyCommissioner) v Alberta Teachers’ Association 2011 SCC 61; Nanaimo (City) v Rascal Trucking Ltd. 2000 SCC 13; Newfoundlandand Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) 2011 SCC 62, [2011] S.C.J. No. 62. Appendix A: Reasons of Council, dated May 16, 2012 1. Background

a) Factual [13] Since 1994, Northland Material Handling Inc. has operated a dry waste landfill and sand extraction facility on lands located inParkland County and legally described as S.E. 1/4 4-2-53-26W4M. Since 2007, Northland Recycling Inc, a related company, hasoperated a wood recycling facility on adjoining lands. These lands are located on the Eastern edge of the County, constituting theboundary between the County and the City of Edmonton.

Northland’s property abuts the Northern edge of Highway 16A. [14] Opposite the Northland property, abutting the Southern edge of Highway 16A, are lands owned by Cholla Sand and DryWaste Inc., which also operates a dry waste landfill and sand extraction facility on its lands. [15] Both the Northland and the Cholla lands are zoned “Direct Control”. This designation means that Council decidesdevelopment permit applications pursuant to the Direct Control County Land Use Bylaw. The underlying land use district for both theNorthland and Cholla properties is Industrial Reserve. (

i) Northland’s development permit history

[ 16 ] Since 1994, Northland has obtained development permits for its operation from Parkland County. In 2006, Northland applied to the Council for an extension of its then existing development permit; specifically, it asked to extend its permit in time to 2016 and to increase the final landfill elevation to 720m amsl.

Northland ’ s application for the extension had been opposed by Cholla and by Northland ’ s neighbour to the East within the City of Edmonton, Walton International, but those neighbours agreed to withdraw their opposition to an extension on the condition that the extension be limited to three years, to the end of 2009, and that such extension represent the final extension, with closure of the Northland facility being required by the end of December 2009. On October 10, 2006, Council extended Northland ’ s existing development permit until December 31, 2009.

Council informed Northland that the extension to December 31, 2009 was considered to be a final extension with closure of the facility required by December 31, 2009. [ 17 ] Prior to the expiry of its development permit in 2009, Northland applied for a two year extension - to December 31, 2011 - of the permit.

Over objections from some neighbours, that extension was granted. [ 18 ] In March 2010, on notice to Northland, Council reconsidered, and amended, the then current development permit, including an amendment to the maximum elevation of 716.5 m amsl, based on the 2006 Stormwater Management Plan previously submitted by Northland. [ 19 ] On July 15, 2010 - presumably in an effort to match municipal and environmental approvals - Northland applied to the Council to amend its development permit to continue operations until June 30, 2018 and to increase the maximum height of its landfill to 721.2m amsl from 716.5 m amsl.

In February, 2011, Council approved a time extension of Northland ’ s development permit to December 31, 2012, but did not approve changes to the overall height of the landfill, to the stormwater management plan, or to the post reclamation plan. [ 20 ] On July 20, 2011, Northland, after having been encouraged to do so by the Mayor and one of the Councillors, again applied to Council to amend the development permit to continue operations until June 30, 2018 and to increase the maximum elevation to 721.2m amsl. On February 14, 2012, Council held a public meeting to consider Northland ’ s application.

County administration recommended an extension in time to October 31, 2015 and an increase in the maximum elevation to 721.2m amsl. At the meeting, two of Northland ’ s neighbours spoke against the proposed modifications to the existing permit.

The motion to approve the recommendation of County administration was defeated 5 votes to 2 votes. [ 21 ] On May 16, 2012, after it had notification of this application, Council released written reasons for its decision to defeat the motion. (ii) Northland ’ s environmental approval history [ 22 ] Since 1994, Northland has obtained Alberta Environment approval for its operations. The current Alberta Environment Approval of July 27, 2010 approved an extension to the vertical height of the landfill from 716.5 meters above sea level to 721.2 meters above sea level.

The expiry date of the current Alberta Environment Approval remained June 30, 2018.

That approval contains the following statement: “ It is your responsibility to obtain any approvals, permits or licenses that are required from other agencies. ” The Terms and Conditions of the Alberta Environment approval also include a requirement to reclaim the landfill in accordance with the Reclamation Sequencing Modified Reclamation Plan dated June 2010 submitted to Alberta Environment by Northland. (iii) Cholla ’ s history [ 23 ] In 2005, the Alberta Environment Approval for Northland Material Handling Inc. ’ s main competitor, Cholla, expired.

Cholla then obtained a new Approval from Alberta Environment for a period of 10 years expiring October 31, 2015. Also in 2005, Cholla applied to Parkland County for an expansion and amendment to its development permit for its sand extraction and dry fill operation. On June 28, 2005, Parkland County, at a Special Meeting, granted Cholla ’ s application for a development permit for a period of three years expiring December 31, 2008. The Cholla landfill operated until 2008, when it ceased operations.

[ 24 ] On or about May 4, 2010, after the Cholla landfill had been closed in late 2008, Parkland County Council granted Cholla a new development permit for a landfill for five years until October 31, 2015, the latter date coinciding with the expiry date of Cholla ’ s Alberta Environment Approval.

The development permit of May 4, 2010 also increased the allowable height of the Cholla landfill by 5 meters to 727 meters above sea level, the height allowed in Cholla ’ s Alberta Environment Approval. [ 25 ] On October 11, 2011, Parkland County Council, without a prior public hearing, authorized a substantial increase in the size of Cholla ’ s landfill operation. [ 26 ] In between the approval of Cholla ’ s development permit for three years in 2005 and the Council decisions in 2010 and 2011 extending the development permits for an additional five years to 2015 and increasing the size of the Cholla landfill, the following occurred: (

a) October 7, 2007: Denny Andrews Inc. donated a parcel of land adjacent to the Cholla landfill to Parkland County. The Affidavit of Transferee attached to the Transfer indicates that the then value of the land donated by Denny Andrews Inc. to Parkland County was $5,250,000.00. Denny Andrews Inc. is the 100% shareholder of Cholla. (

b) By Option to Purchase Agreement dated October 24, 2008, Cholla donated to Parkland County an option, valid until October 23, 2107, to purchase the lands which were next to the lands donated to the County by Denny Andrews Inc. referred to in subparagraph (a). (

c) On or about November 1, 2008, the County leased to Cholla lands next to the lands donated to the County by Denny Andrews Inc. The Lease Agreement is for 99 years and is expressed to be for Cholla to conduct the business of a landfill thereon, although the development permit was about to expire. [ 27 ] The Cholla landfill operation was re-opened by Cholla following the May 4, 2010 approval by County Council of a development permit for a term until the expiry of the Alberta Environment Approval on October 31, 2015.

b) Legislative [ 28 ] Northland argues that Council ’ s resolution was passed contrary to s. 620 of the Municipal Government Act , R.S.A. 2000, c. M-26, which reads as follows: Conditions prevail 620 A condition of a licence, permit, approval or other authorization granted pursuant to an enactment by the Lieutenant Governor in Council, a Minister, a Provincial agency or Crown-controlled organization as defined in the Financial Administration Act or a delegated person as defined in

Schedule 10 to the Government Organization Act prevails over any condition of a development permit that conflicts with it. 1995 c24 s95 (Emphasis added) [ 29 ] Parkland notes, however, that there is a difference in wording between ss. 619(1) and 620 of the statute relative to approvals given by potentially competing authorities: NRCB, ERCB, AEUB or AUC authorizations

619(1) A licence, permit, approval or other authorization granted by the NRCB, ERCB, AEUB or AUC prevails , in accordance with this section, over any statutory plan, land use bylaw, subdivision decision or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Municipal Government Board or any other authorization under this Part. (Emphasis added) [ 30 ] Northland argues that the Council had to give reasons for its refusal to extend the development permit and relies on s. 642 and s. 624(2) of the MGA : Permitted and discretionary uses 642(1) When a person applies for a development permit in respect of a development provided for by a land use bylaw pursuant to section 640(2)(b)(i), the development authority must, if the application otherwise conforms to the land use bylaw, issue a development permit with or without conditions as provided for in the land use bylaw.

(2) When a person applies for a development permit in respect of a development that may, in the discretion of a development authority, be permitted pursuant to section 640(2)(b)(ii), the development authority may issue a development permit with or without conditions as provided for in the land use bylaw.

(3) A decision of a development authority on an application for a development permit must be in writing, and a copy of it must be given to the applicant.

(4) If a development authority refuses an application for a development permit, the decision must include the reasons for the refusal . (Emphasis added) Development authority 624(1) Subject to

section 641, a council must by bylaw provide for a development authority to exercise development powers and perform duties on behalf of the municipality.

(2) A development authority may include one or more of the following: (

a) a designated officer; (

b) a municipal planning commission; (

c) any other person or organization . (Emphasis added) [ 31 ] The County suggests that, in a Direct Control district, decisions are made pursuant to s. 641 of the MGA which does not

require reasons Designation of direct control districts 641(1) The council of a municipality that has adopted a municipal development plan, if it wishes to exercise particular control over the use and development of land or buildings within an area of the municipality, may in its land use bylaw designate that area as a direct control district.

(2) If a direct control district is designated in a land use bylaw, the council may, subject to any applicable statutory plan, regulate and control the use or development of land or buildings in the district in any manner it considers necessary.

(3) In respect of a direct control district, the council may decide on a development permit application or may delegate the decision to a development authority with directions that it considers appropriate.

(4) Despite

section 685, if a decision with respect to a development permit application in respect of a direct control district (

a) is made by a council, there is no appeal to the subdivision and development appeal board, or (

b) is made by a development authority, the appeal is limited to whether the development authority followed the directions of council, and if the subdivision and development appeal board finds that the development authority did not follow the directions it may, in accordance with the directions, substitute its decision for the development authority ’ s decision. [ 32 ] The County suggests that an approval from Alberta Environment merely takes an activity out of the prohibition imposed by s. 60 of the Environmental Protection and Enhancement Act , R.S.A. 2000, c.

E-12: Prohibition 60 No person shall knowingly commence or continue any activity that is designated by the regulations as requiring an approval or registration or that is redesignated under

section 66.1 as requiring an approval unless that person holds the required approval or registration. 2. Standard of review

a) General approach relative to review of decisions of municipal councils [ 33 ] The common law has a long history of wide deference to elected municipal councils in recognition of their role in a democracy. This deference recognizes, in part, the different roles attributed in a democracy to elected decision makers and unelected judges. This deference, wide and strong as it is, nonetheless applies only to the actions of a council taken within authority.

The role of courts on judicial review of decisions of municipal councils is, first, to ensure that the council acted legally, i.e. within the authority granted to it. On issues of legality, the standard of review is correctness.

The second role of a court on judicial review, if it has concluded that a municipal council is acting legally, is then to review council decisions according to the standard of reasonableness, which is where the strong deference comes into play: Rascal Trucking Ltd. [ 34 ] Indeed, the role of a court in relation to review of decisions of all decision-making bodies is, although crucial, circumscribed. A court ’ s task is to ensure the “ legality, the reasonableness and the fairness of the administrative process and its

outcomes ” : Dunsmuir , at para. 28 . [ 35 ] Here, Northland raises three objections to the municipal council ’ s decision. Each objection attracts a different application of the principles relating to the judicial review of decisions of municipal councils.

b) Standard applicable here to the legality of the council ’ s decision that it was not bound by the Alberta Environment permit [ 36 ] The first challenge Northland raises to the council ’ s decision is an alleged conflict with the permit granted by Alberta Environment. [ 37 ] With respect to the legality of a decision, that is whether the decision has been made within jurisdiction, the Supreme Court has warned review judges that we should not be quick to describe as jurisdictional, and therefore subject to judicial review, that “ which may be doubtfully so ” : Alberta Teachers ’ Association , at para. 33 .

There is no doubt, however, that if the Alberta Legislature had passed legislation preventing a municipal council from making decisions that interfered with permits issued by Alberta Environment, the failure of a municipal council to respect that limitation would be an error going to its very jurisdiction. [ 38 ] Where a decision-making body interprets its own statute or a statute closely connected to its function, deference will be given to its

interpretation. Here, the provision on which the applicants rely, s. 620 of the Municipal Government Act , is a statutory provision which is, at the very least, closely connected to the function of a municipal council. Ordinarily, therefore, the council ’ s

interpretation of that

section would attract deference and the appropriate standard of review would be reasonableness. However, the Supreme Court has reminded us that one additional factor must be considered in assessing whether a Council ’ s

interpretation of its statutory function should be upheld: whether the statutory provision requires the determination of “ jurisdictional lines between two or more competing specialized tribunals ” : Alberta Teachers ’ Association , at para. 31 . In such cases, the standard of review is not reasonableness, but correctness.

Here, there is a potential conflict in jurisdiction between the municipal council, which had the jurisdiction to issue development permits but has no inherent legislative power, and the provincial government, which had both the jurisdiction to issue environmental permits and inherent legislative power. A municipal council cannot properly be characterized as a “ specialized tribunal ” ; therefore, the decision in Alberta Teachers ’ Association does not strictly apply here with the result that the standard of review of the Council ’ s

interpretation of s. 620 of the MGA may be reasonableness rather than correctness. Nonethless, I am prepared to accept for the purposes of this hearing that the stricter standard of review, that of correctness, applies to the Council ’ s

interpretation of s. 620 of the MGA ..

c) Standard applicable here to the issue of whether the council acted for an improper purpose [ 39 ] Northland next challenges the Council ’ s decision to deny an extension of its zoning permit as one made in bad faith, or for an improper purpose or after taking into account improper considerations. [ 40 ] The Supreme Court of Canada ’ s decision in Immeubles Port Louis Lt é e reminds us of the broad range of situations that may come with the range of bad faith, improper purpose and improper considerations.

At one end of that range is the Roncarelli situation - where the purpose was irrelevant to the purpose of the statute: decisions concerning a liquor licence were made with a view to affecting financial support of a religious group. At the other end of the range are situations such as the one in Catalyst Paper Corp. where the impact of the Council ’ s decision on one class of taxpayers relative to other classes of taxpayers is “ harsh ” . For the purposes of this application, the court accepts that two standards of review apply to allegations of bad faith, improper purpose and improper considerations.

The standard of correctness applies to intentionally or recklessly illegal acts or clearly irrelevant council acts: evidence that a council acted in such a way is evidence that the council acted wrongly and its actions will be set aside. However, the standard of reasonableness applies to council actions that come within a council ’ s legislative authority even though there may be a variety of reasons to explain that council ’ s actual decision. [ 41 ] Here, there is no evidence of intentional or reckless illegality or indeed of any act outside the Council ’ s legislative mandate.

Therefore, the challenge to this Council ’ s decision not to extend the existing permit based on allegations of bad faith, improper purpose and improper considerations will be reviewed according to the standard of reasonableness.

d) Standard applicable here to the issue of whether the council was required to give reasons

[ 42 ] Finally, Northland challenges the Council ’ s decision because the Council failed to give reasons for its decision at the time it made the decision. [ 43 ] The standard of review with respect to the reasonableness and fairness of the Council ’ s administrative processes and its outcomes, including its obligation to give reasons, where the Council is acting within legislative authority is reasonableness.

The most compelling factor in coming to that conclusion is the Council ’ s status as an elected body: even such a body ’ s adjudicative functions can only be reviewed on the basis of reasonableness, Rascal Trucking Ltd. Moreover, the MGA does not impose upon a Council an obligation to give reasons for its direct control zoning decisions.

Here again, as in the different treatment of permits in ss. 619 and 620, the difference in treatment in ss. 640 and 641 of the MGA between elected municipal councils and a development authority illustrates a clear legislative intention to give extremely broad powers to elected councils and to restrict judicial control of decisions made by those councils. However, because the Council did eventually give reasons, those reasons are subject to review.

In the result, here, the Council ’ s decision not to give reasons when it made its decision and its decision to subsequently issue reasons are reviewed on the basis of reasonableness. 3.

Was the Council correct in concluding that the provincial environmental permit did not conflict with its right to control development permits? [ 44 ] The Council was correct in concluding that Northland ’ s environmental permit did not conflict with the Council ’ s right to control development permits for the Northland properties. [ 45 ] In coming to that conclusion, I do not take into account the comment made in the letter of May 16, 2012 to Northland from Parkland County ’ s Chief Administration Officer that, at the hearing, Northland acknowledged that Council was not bound to follow the approval issued by Alberta Environment.

The hearing was not recorded, so there could be some disagreement about the exact nature of any comment made by Northland on this issue. More importantly, however, the question of jurisdiction cannot be determined by consent: if the Council did not have jurisdiction to make its own decision about development permits, then Northland could not give it jurisdiction to do so.

Indeed, the court ’ s role of overseeing jurisdictional boundaries is one of its main functions in judicial review. [ 46 ] Before commencing an analysis of the nature of the relationship between the Council and Alberta Environment in the circumstances here, I note that there is no dispute between the parties about the validity of Northland ’ s environmental approval.

Nor is there any dispute between the parties about the Council ’ s direct zoning authority in relation to these properties. [ 47 ] Turning first to the MGA, it is noteworthy that there are key differences between s. 619(1), which deals with certain types of permits and approvals, and s. 620, which deals with Alberta Environment permits and approvals. Although NRCB permits and approvals, for example, clearly prevail over development decisions, permits and approvals of agencies such as Alberta Environment only prevail over any condition of a development permit that conflicts with the permit or approval.

The Legislature clearly intended to make a distinction between environmental legislation on the one hand, and certain other types of regulation on the other.

Therefore, the task here is to determine if the Council ’ s decision to deny an extension contains a condition that conflicts with Alberta Environment ’ s approval. [ 48 ] The answer to the question of whether there is a conflict between a condition in the Council ’ s decision of February 14, 2012 and the Alberta Environment approval is, No. [ 49 ] The Council ’ s denial did not itself impose any conditions, so there are no conditions in the February 14, 2012 decision that even could conflict with the Alberta Environment approval. [ 50 ] Indeed, Parkland argues that Northland ’ s only potential challenge based on s. 620 of the MGA would be to the February 2011 Council decision, which did contain conditions; however, Parkland argues that Northland is out of time to ask for judicial review of the February 2011 decision. [ 51 ] Northland responds that this is an excessively technical approach, that there is no time limit on applications for declarations of invalidity (relying on cases cited in Fradsham), and that the court should approach the issue as though the February 2012 denial incorporated the February 2011 conditions.

[ 52 ] With respect, the court concludes that the technical answer here is the correct one. The only application that is formally before the court is the application to quash, or read down, or declare the invalidity of a Council decision of February 14, 2012.

That is the decision on which this court must focus. [ 53 ] Moreover, the court observes that Northland did not give notice to Parkland, prior to the hearing on June 5, 2012, that it intended to modify its originating notice to ask for a declaration of invalidity of the Council decision of February, 2011; raising that issue during the course of the hearing does not, of course, give to the Council an adequate opportunity for reply. [ 54 ] As to the authorities cited, post-hearing, by Northland on the issue of the time limit for asking for judicial review of a Council decision, Parkland responds that the two decisions cited by Fradsham as authority for the proposition that the time limit does not apply where a party is asking for a declaration were commented upon by our Court of Appeal in Athabasca Chipewyan First Nation .

At para. 21 of the decision, our Court of Appeal distinguished the decisions cited by Fradsham on the basis that they were of a class in which no specific administrative decision was being challenged.

In the result, our Court of Appeal approved the view expressed by Slatter J., as he then was, in an earlier decision in which he said: I accordingly conclude that seeking a declaration is not an effective strategy to avoid the six-month limitation period for quashing a decision. [ 55 ] A similar conclusion is reached in Alberta Union of Provincial Employees . [ 56 ] Therefore, if the issue of Northland ’ s ability to apply now for a declaration that the February 2011 decision of Council was invalid were properly before me, on the basis of the material presented, I would have to conclude that our Court of Appeal has established a time limit to apply for judicial review of a specific Council decision and that the time limit has run against Northland. [ 57 ] In any event, however, the court is of the view that there is no conflict between the Alberta Environment approval and the Council ’ s decision not to extend the development permit.

The Alberta Environment permit does not enjoy any paramountcy. Rather, this is one of the situations where the two types of approval operate concurrently. Neither permit compels what the other forbids or, to put it another way, there is no barrier to dual compliance. There is no operational conflict in the two types of approval.

Alberta Environment was not forcing Northland to excavate sand and gravel from its property; rather, it was only saying that if Northland chose to dig holes on its property, and received a permit to do so, then it would have to fill them to a certain height to reclaim the lost topographical contours.

Northland required a development permit from Parkland County both in order to dig holes on its property and in order to operate a land fill in order to fill up those holes; there were zoning considerations relating to the look of the property relative to the interests of neighbouring property as well as interests relative to the municipal servicing of the Northland property in relation to other properties in the municipality. The decisions of the Council and of Alberta Environment are therefore able to be harmonized.

Neither Alberta Environment nor the Council had either the right or the responsibility to micro-manage Northland ’ s operation to ensure that the permits in fact harmonized. [ 58 ] In this latter context, it is useful to note that the Northland ’ s development permits and its Alberta Environment permits were never exact mirrors of one another. Northland states that it has essentially stopped digging holes, but that it will be unable to fill up the holes to the required height if the municipality does not continue to allow it to have a land fill operation.

While Northland could, of course, meet its reclamation obligation by putting clean fill into the holes, it states that the cost of doing so is prohibitive. Moreover, it states that by imposing a public termination date on its landfill operation in 2006, and by putting in short term extensions since then, the Council has in fact provided a preferential position for Cholla, Northland ’ s competitor, because Cholla has presumably been able to negotiate long term dumping contracts which Northland cannot match.

In my view, this is not a situation of conflict between the municipal regulation and the environmental regulation. Indeed, I note that the municipality ’ s fill restrictions appear to be somewhat more onerous than the environmental ones; this is therefore a situation where the municipality is, far from conflicting with the environmental requirements, actually enforcing a higher standard than the standard found in the environmental permit.

In February 2011, although the Council did establish an end date to Northland ’ s digging and dumping operations, it did not prevent Northland from complying with Alberta Environment ’ s reclamation obligations. On the contrary, the Council resolution gave Northland until 2018, the same date as the Alberta Environment deadline, to complete its environmental reclamation obligations.

Those termination dates are therefore in concert, not in conflict. [ 59 ] The only potential conflict between the Alberta Environment approval and the Council of Parkland County resolution is the difference in standards with respect to storm water management: Northland ’ s most recent environmental approval has a different storm

water plan than the one which had been approved in the earlier environmental permit, and is, of course, different from the storm water plan in the development permit. I say, of course, because the most recent environmental permit allows or enforces a higher fill limit; it stands to reason that such a higher limit would require modification to the storm water plan.

In my view, therefore, if the February 2011 Council resolution were properly before the court, on the material before the court at this time, the court would hold that the environmental and development permits were not essentially in conflict but that, if any conflict were to arise between the actual landfill elevation and the storm water plan that could not be resolved by negotiation, then, even though the Council presumably has the greater financial responsibility for the development of storm water sewers, because Alberta Environment presumably has responsibility for water conservation, the Council should defer to Alberta Environment with respect to the storm water plan. 4.

In denying the extension, did the Council act reasonably or did it act for a purpose that is unrelated to the intent and purpose of the Municipal Government Act ? [ 60 ] In denying Northland the extension which it sought, the Council of Parkland County did not act for a purpose that is unrelated to the intent and purpose of the Municipal Government Act and acted reasonably. [ 61 ] The second basis for Northland ’ s challenge to the legality of the Council ’ s resolution is that the Council acted in bad faith - for the purpose of harming Northland or to benefit Cholla - or acted for an improper purpose or took into account inappropriate considerations. [ 62 ] In essence, Northland alleges that the Council ’ s dealings with Cholla tainted its subsequent decision relating to Northland.

Northland does not allege any benefit to any particular council member who voted in favour of the denial. [ 63 ] Our law presumes the resolutions of municipal councils to be valid in the sense that it is presumed that a council does not intend to exceed its jurisdiction. Therefore, if a council ’ s actions are reasonably capable of being construed as coming within jurisdiction, they are so construed.

Nevertheless, if a court can conclude that the real purpose of a Council ’ s action was a purpose unrelated to its zoning jurisdiction, then the court can declare that the Council ’ s action is not within its jurisdiction. [ 64 ] Northland relies for this part of its argument on Prof. Laux ’ s authoritative text, Planning Law and Practice in Alberta , in particular at pp. 9-14 and 9-15. In relation to the appropriate standard of review of a council ’ s decisions, it is important to note that Prof.

Laux describes the mechanism of challenge as judicial review: see footnote 74 on page 9-14; choosing judicial review as a mechanism necessarily implies choosing a standard of review. Current judicial

interpretations of the appropriate standard of review must apply with the result that the appropriate standard of review here is reasonableness. [ 65 ] The paradigmatic example of improper purpose is the Roncarelli situation where the admitted power to cancel a permit under alcohol regulation legislation was in fact used for a purpose unrelated to the legislation, which in that case was the cutting off of revenues so as to prevent Jehovah Witness owners of a liquor licence from posting bail for members of the religious group who had been charged with distribution of literature in defiance of a municipal by-law. [ 66 ] Here, Northland argues that Council acted for a purpose totally unrelated to its zoning jurisdiction, specifically, that it acted to harm Northland and to benefit Cholla.

However, the only evidence advanced by Northland of this malevolent intention is the acknowledged, and publicly disclosed, series of transactions between the County of Parkland and Cholla representing what Northland describes as the “ gift ” of property worth $5.25 million. In Roncarelli , in contrast, there was evidence of the improper purpose, including evidence from Premier Duplessis himself. The Supreme Court itself noted how rare it was to have such evidence available.

As Rand J. put it: It may be difficult if not impossible in cases generally to demonstrate a breach of this public duty in the illegal purpose served; there may be no means, even if proceedings against the Commission were permitted by the Attorney-General, as here they were refused, of compelling the Commission to justify a refusal or revocation or to give reasons for its action; on these questions I make no observation; but in the case before us that difficulty is not present: the reasons are openly avowed. [ 67 ] A Roncarelli -type situation is dealt with on a basis of correctness: no matter how justified, how reasonable, a tribunal thought its action was, where the action is taken for a purpose unrelated to the empowering statute, the action is wrong and judicial review is granted.

[ 68 ] However, unless an illegal or improper purpose is the only possible explanation for the decision of a municipal council, the council ’ s decision must be assessed on the basis of reasonableness. [ 69 ] Here, the material before the court establishes that there are other possible reasons for the council ’ s decision. Back in 2006, the then Council of Parkland County gave to Northland notice that its operation would have to be closed in 2009. Not only must one assume that this decision was reasonable as a matter of law, as a matter of practice we know that Northland did not challenge that decision.

Since 2006, although the Council extended Northland ’ s permit from time to time, it never did so in the same generous way that it had extended the permit prior to 2006; the Council never gave Northland reason to believe that the substance of its 2006 decision was abrogated. In addition to the Council ’ s past treatment of Northland, there is also the fact that there was opposition to Northland ’ s recent application.

As the Supreme Court reminded us in Catalyst Paper Corp . , with specific reference to bylaws but which reference applies equally to council decisions and resolutions (see para. 37 of Rascal Trucking Ltd. ): It is thus clear that courts reviewing bylaws for reasonableness must approach the task against the backdrop of the wide variety of factors that elected municipal councillors may legitimately consider in enacting bylaws.

The applicable test is this: only if the bylaw is one no reasonable body informed by these factors could have taken will the bylaw be set aside. [ 70 ] Similar comments were made in Rascal Trucking Ltd. : “ Municipalities also often balance complex and divergent interests in arriving at decisions in the public interest. ” Such a divergence of interests clearly existed here. The decision not to extend Northland ’ s permit was within the range of decisions that the Council could reasonably make. [ 71 ] In

summary on this issue, an improper intention is not the only intention that can be assumed from the circumstances here; therefore, the challenge to the Council ’ s decision on the basis of bias, improper purpose or reliance on improper considerations must fail. 5. Is the Council ’ s failure to have given timely reasons reasonable? Were the subsequent reasons given by the Council reasonable? [ 72 ] Even where an elected municipal council is acting within authority, it must adopt reasonable processes: Catalyst Paper Corp. at para. 28 .

Here, the Council did not give timely reasons for its decision not to extend Northland ’ s permit. If this Council were required by statute to give reasons, its failure to give such reasons is reviewed on the basis of correctness. A failure to comply with a statutory requirement is wrong, and judicial review would typically be granted. (It is not necessary in the context of this decision to outline in any detail the discretionary nature of judicial review.) [ 73 ] Here, there was no statutory requirement for the Council to give reasons for its decision.

The MGA does not require the Council to give reasons: whether or not the Council was, in making a zoning decision acting as a development authority, and there is good reason to suggest that it was not, what is absolutely clear is that the statutory obligation to give reasons applies only with respect to decisions made in relation to s. 640(2)(b)(

i) of the MGA whereas decisions with respect to Direct Control zoning districts come only within s. 641 of the MGA . The difference in the treatment of the requirement to give reasons makes eminent sense when one takes into account the fact that decisions of the Council on Direct Control zoning issues are not appealable: therefore, there is no need for reasons to be given for the information of the appeal authority.

Moreover, as Rascal Trucking Ltd. noted , even where elected councils make adjudicative decisions - and for the reasons discussed below the decision in this case was not adjudicative in nature - those decisions are only reviewable on the standard of reasonableness: see para. 28. [ 74 ] Nor is there a common law basis for requiring this elected municipal council to give reasons for its decision. A council is, in some ways, like a jury: individual members of council could have individual reasons for approving or rejecting a motion.

As the Supreme Court put it in Catalyst Paper Corp. : 30 Nor, contrary to Catalyst's contention, is the municipality required to formally explain the basis of a bylaw. As discussed above, municipal councils have extensive latitude in what factors they may consider in passing a bylaw. They may consider objective factors directly relating to consumption of services. But they may also consider broader social, economic and political factors that are relevant to the electorate.

As indicated above, a council resolution is treated like a bylaw in the circumstances here. [ 75 ] Catalyst Paper Corp. is also authority for concluding that, in the situation here, the decision of the Council is not adjudicative: 19 The case law suggests that review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature. Bylaws are not quasi-judicial decisions.

Rather, they involve an array of social, economic, political and other non-legal considerations. "Municipal governments are democratic institutions", per LeBel J. for the majority in Pacific National Investments Ltd. v. Victoria (City), 2000 SCC 64 , [2000] 2 S.C.R. 919 , at para. 33 .

In this context, reasonableness means courts must respect the responsibility of elected representatives to serve the people who elected them and to whom they are ultimately accountable. [ 76 ] As indicated above, the decision of the Council of Parkland County to not extend the permit of Northland was not one which can properly be described as adjudicative. The very concept of the “ Direct Control ” category is to emphasize the policy nature rather than the adjudicative nature of the zoning decision.

Rather than to be characterized by a list of statutory components to a definition of the zoning concept of Industrial Reserve, Direct Control areas are, on their face, ones where the Council must exercise its discretion as to what is in the interest of the community at large rather than to make findings of fact with respect to a given definition: see para. 23, Baker .

Moreover, given the previous Council ’ s decision in 2006 with respect to the termination of its dry landfill operation, Northland could not have had any legitimate expectation that the current Council would continue to extend its permit; therefore, Northland could have had no legitimate expectation to receive, in 2012, reasons for decision which were presumably given in 2006. [ 77 ] However, in Catalyst Paper Corp. the Supreme Court went on to note that it is not wrong for a municipal council to explain the rationale behind a decision.

Indeed, it would not be impossible for a municipal council, in explaining its decision, to provide ammunition to those who might suggest that its decision was taken without authority; indeed, that is virtually what happened in the Roncarelli decision where the Premier chose - presumably for political reasons - to make the reasons for his interference with the liquor licensing laws known. [ 78 ] Here, however, the reasons eventually adopted by the Council provide support for the conclusion that the decision of the Council not to extend Northland ’ s zoning permit was reasonable in the sense that it was within the range of decisions that a council could make on the basis of the circumstances presented. 6.

Conclusion [ 79 ] For the reasons set out above, Northland ’ s application for judicial review of the decision of the Council of Parkland County is denied. 7. Costs [ 80 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the delivery of these reasons.

Heard on the 5 th , (submissions on the 6 th and 8 th ) days of June, 2012. Dated at the City of Edmonton, Alberta this 9 th day of July, 2012. J.B. Veit J.C.Q.B.A. Appearances: K.D. Wakefield, Q.C., and Andrea Simmonds, Student-at-Law Fraser Milner Casgrain LLP for Northland Sheila C. McNaughtan, Q.C. and Kelsey L.

Becker Brookes, Reynolds Mirth Richards & Farmer LLP for Parkland County Appendix A Re: Development Permits Number 09-D-370A and 09-D-370B Please be advised that Parkland County Council at a special Council meeting, held on May 15, 2012, made a motion to provide written reasons for refusing the applications to approve the amendments to Development Permits 09-D-370A for sand extraction and landfilling on SE 02-53-26-W4M and Development Permit 09-D-370B for wood recycling on SE 02-53-26-W4M, as follows: The reasons for the decision made by Council on February 14, 2012 regarding development permit amendments sought by Northland Material Holding Inc. and Northland Recycling Inc. (Northland), as follows:

Council does not believe

Section 642 of the Municipal Government Act is applicable but is prepared to provide the following reasons for purposes of transparency. Mr. Phipps, appearing for Northland, advised that Council was not bound to follow the approval issued by Alberta Environment. Ms. Agrios agreed with this submission. Council found the submissions of Ms. Agrios the legal counsel for Elmer Bissani and the Walton Group very persuasive. Council accepts those landowners are affected by the development in question.

Those submissions also reminded Council that when Council considered a Development Pennit for this property in 2006, Council refused to approve the amendment but extended the time for which the Development Permit was valid to allow for the completion of the development. Council also resolved that the extension would be considered a final extension of the facility. Ms. Agrios indicated that Northlands had made a commitment to her client that the east side of the landfill would be completed and fully reclaimed by 2009 or early 2010.

Based upon the representation, her clients believed that there was an agreement between them and Northlands that would see the landfill completed within a reasonably short period of time. Following the representation being made to Ms. Agrios' client, Northlands sought a change to their approval from Alberta Environment, seeking both an extension of the time for which their permit would be valid and of the maximum height to which the landfill could proceed and changing the proposed sequence of completion.

Council finds this change in position by Northlands has a direct effect on the adjoining property owner and accepts the position of the adjoining landowner that the amendments should not be granted as proposed. Council finds that the Applicant did not provide information that adequately explained or established why a time extension and height increase are required, nor the volumes of the onsite excavation left to be filled. For these reasons, Council refused the request for an amendment to the Development Permit 09-D-370A for the landfill.

As the recycling operation functions in conjunction with the landfill, Council is satisfied that the recycling permit 09-D-370B should end at the same time as the landfill permit. Please contact my office if you have questions or concerns regarding this matter, 780-968-8411.