Heather Hills Farm Society, Gordon Whitley Robson, Mary Robson, v. Six Poplar Investments Ltd., 2015 BCSC 1108

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Heather Hills Farm Society v. Agricultural Land Commission, 2015 BCSC 1108 Date: 20150626 Docket: S-146970 Registry: Vancouver Between: Heather Hills Farm Society, Gordon Whitley Robson, Mary Robson, and Six Poplar Investments Ltd. Petitioners And Agricultural Land Commission and Brian Underhill Respondents Before: The Honourable Mr. Justice N. Smith Reasons for Judgment Counsel for the Petitioners: J. Baker Counsel for the Respondents: L. Herbst J. Yamashita Place and Date of Trial/Hearing: Vancouver, B.C.

April 29,30, 2015 Place and Date of Judgment: Vancouver, B.C. June 26, 2015 [ 1 ] The petitioners built a nine-hole public golf course on part of their farm in Maple Ridge, BC and allowed their sheep to graze on the fairways.

On this judicial review application, the petitioners seek a declaration that this combined golf course/sheep pasture is a permitted “agri-tourism” use of farm land under regulations to the Agricultural Land Commission Act , S.B.C. 2002, c. 36 [ ACLA ]. [ 2 ] The respondent Agricultural Land Commission (the “Commission”) says the question is academic because operation of the golf course is prohibited by a court order made in other proceedings that were commenced by the then District of Maple Ridge (“Maple Ridge”).

The Commission also says the matter is not subject to judicial review because it has made no decision or order on the question of whether the golf course constitutes agri-tourism, although its deputy chief executive officer (“CEO”), the respondent Brian Underhill, has told the petitioners that it does not. [ 3 ] The petitioners’ property is within the Agricultural Land Reserve (the “ALR”), which the Commission is responsible for administering.

Section 6 of ACLA states that the purposes of the Commission include preserving agricultural land and encouraging farming on it. [ 4 ] Section 20(1) prohibits the use of land in the ALR “for a non-farm use unless permitted under this Act.” The Commission has discretion under s. 25 to approve a non-farm use on application by a property owner.

Section 1 defines “non-farm use,” not surprisingly, as “a use of land other than a farm use.” The definition of “farm use” includes the obvious–“farming of land, plants and animals”–but also includes “any other similar activity designated as farm use by regulation.” [ 5 ] The petitioners rely on s. 2(2)(

e) of the Agricultural Land Reserve Use, Subdivision and Procedure Regulation, B.C. Reg. 171/2002 [ Regulation ]. That

section designates as a farm use: agri-tourism activities, other than accommodation, on land classified as a farm under the Assessment Act , if the use is temporary and seasonal, and promotes or markets farm products grown, raised or processed on the farm. [ 6 ] “Agri-tourism” is defined in s. 1 of the Regulation as “a tourist activity, service or facility accessory to land that is classified as a farm under the Assessment Act .” [ 7 ] Therefore, if the golf course is a “non-farm use,” the petitioners needed to apply to the Commission for permission to use the land in that way.

But the petitioners say no such application was necessary because the golf course qualifies as agri-tourism and therefore is by definition a “farm use.”

[ 8 ] The petitioners began adding a golf course to the existing agricultural operations in or about 2005. In March 2010, a Commission employee notified the petitioners by letter that the golf course was considered to be a non-farm use for which no application to the Commission had been made. A copy of the letter was also sent to Maple Ridge. [ 9 ] On May 10, 2010, the petitioner Gordon Robson replied that the golf course qualified as agri-tourism. That letter also enclosed an application for non-farm use, although Mr. Robson stated that he did not consider it to be necessary.

That application did not proceed and was ultimately cancelled. [ 10 ] Meanwhile, a re-assessment of the property under the Assessment Act , R.S.B.C. 1996, c. 20 had changed its designation from farm classification to residential.

One effect of the re-assessment was that the golf course could not qualify as agri-tourism under the Regulation because the land was no longer “classified as a farm under the Assessment Act .” [ 11 ] The petitioners appealed the re-assessment and, on September 4, 2010, wrote to the Commission seeking confirmation that that they would be in compliance with the Regulation if the appeal was successful and the property returned to farm status. On September 20, 2010 Mr.

Underhill replied that “the construction and operation of a golf course is considered a non-farm use and is not a form of agritourism activity under Section 2(2)(e).” [ 12 ] On September 2, 2011, the Property Assessment Appeal Board allowed the respondents appeal and found that the property, including the golf course, should be assessed as farm property.

The board found that the sheep herd grazed daily on the golf course because there was insufficient pasture elsewhere on the property and stated at paras, 18 and 20 of its decision: … I have no hesitation in concluding that the sheep herd relies entirely on all of the lands for its grazing pasture, feed, and shelter requirements. Since the raising of sheep is primary agricultural production, it follows that the entire acreage is ’necessary’ to that portion of the taxpayer’s business… Sheep graze on these lands 365 days per year. Golf is seasonal.

The pasture provided on these lands is necessary to sustain the herd. The sheep droppings fertilize the golf course with nutrients. The sheep are an ambient part of the golf experience. Sheep products derived from the herd are sold locally.

Thus, the predominant use of these lands is for agricultural production. [ 13 ] In a letter to the Commission, dated January 8, 2013, counsel for the petitioners confirmed that they had no objection to cancellation of the application for a non-farm use because it was “redundant” and that, as a result of the successful assessment appeal, the farm was “fully compliant with the applicable legislation.” Mr.

Underhill replied on January 30, 2013 that “the golf course use remains a non-farm use and the Commission will be considering its compliance and enforcement options.” He added that this “letter in no way fetters the District of Maple Ridge in pursuing the compliance of your client with respect to any and all applicable bylaws and policies.” A copy of Mr.

Underhill’s letter was sent to Maple Ridge. [ 14 ] The Commission has the power under the ACLA to order cessation of activities that contravene the statute and to order the repair or mitigation of damage to agricultural land, but did not take any enforcement action. However, on May 6, 2013 Maple Ridge commenced an action in the Vancouver Registry, court file number VLC-S-S-133310, to enforce its zoning bylaws (the “Maple Ridge Action”). [ 15 ] Maple Ridge alleged that the property was zoned “One Family Rural Residential” and that while agriculture was permitted within that zone, golf courses were not.

It sought an order requiring the defendants to cease using the property as a golf course and an order to remove golf related activities and structure. [ 16 ] The petitioners subsequently consented to an order in the Maple Ridge Action, dated March 27, 2014, requiring them and “all other persons having notice of this order” to immediately and permanently cease operating the property as a public golf course and to remove all golf-related infrastructure. [ 17 ] Two of the present petitioners–Heather Hills Farm Society and Six Poplar Investments Ltd.–were not named as defendants in the Maple Ridge Action and the Commission was not a party.

The petitioners say they had no choice but to consent to the order because their only defence–that the golf course was agri-tourism and therefore farm use under provincial legislation–could not be raised because the Commission was not a party. [ 18 ] On August 11, 2014, the petitioners wrote to Richard Bullock, chairperson of the Commission, stating: Agri-Tourism can include any use that “ promotes or markets farm products grown, raised or processed on the farm ;” It is an agricultural use. … We request that the Commission promptly review this matter and decide whether or not our activities promote or markets farm products grown, raised or processed on the farm .

If they do not, then give us the reasons they think so. If they do, say so. If you refuse to make a decision, tell us that. To be clear, we are not asking for an appeal or exclusion. The use is what it is. If you think it is not, we want to know why. [Emphasis in original.] [ 19 ] In a letter dated August 22, 2014, which the petitioners say constitutes the decision under review, Mr. Underhill replied: On more than one occasion, the Commission reviewed the matter and confirmed that a golf course use is a non-farm use and not an agri- tourism use.

Therefore, a golf course of land in the Agricultural Land Reserve (ALR) is not permitted without express written approval of the Commission pursuant to an application made under the Agricultural Land Commission Act .

[20] The Commission argues that the court should exercise its discretion not to deal with the matter because even a decision in thepetitioners’ favour would not assist them. It says that the order in the Maple Ridge Action permanently bars the petitioners fromoperating a golf course on the property and this application is a collateral attack on the order. The Commission also correctly states thatthe binding nature of the order is not affected by the fact it was made by consent.

The petitioners argue that the matter is not res judicatabecause the Commission was not a party and the issue it now raises could not have been decided in that action. [21] It is not necessary to review the doctrines of res judicata or collateral attack. I agree with the Commission that the consent orderin the Maple Ridge Action is binding on the petitioners and nothing the Court could decide on this application would relieve them fromthe obligation to comply with it. [22] However, there is some evidence that Maple Ridge seeks to align its policies permitting agricultural use with those of theCommission.

In fact, s. 46(2) of the ACLA requires local governments ensure that their bylaws are consistent with the Act, theregulations and orders of the Commission.

A staff report to council, dealing specifically with the petitioners’ property, dated June 22,2010, said: Outdoor commercial recreation activities are not permitted within the RS-3 One Family Rural Residential Zone unless they areconsidered by the commission to meet their conditions for agri-tourism. [23] Therefore, if the Court on this application or the Commission on reconsideration decided that the golf course qualified as agri-tourism, the petitioners would at least be in a position to seek Maple Ridge’s consent to vacate the order.

There is no direct evidence ofwhat position Maple Ridge might take in those circumstances, but I conclude that the existence of the order should not, in itself, be a barto the Court’s consideration of this application. [24] The Commission also says there has been no decision that is subject to judicial review. Section 2(2) of the Judicial ReviewProcedure Act, R.S.B.C. 1996, c. 241 [JRPA] states:

(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of theproceedings for: (

a) relief in the nature of mandamus, prohibition or certiorari; (

b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutorypower. [Emphasis added.] [25] The phrase “statutory power of decision” appears in a number of other sections of the JRPA and is defined in s. 1 as: …a power or right conferred by an enactment to make a decision deciding or prescribing (

a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or (

b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it,and includes the powers of the Provincial Court. [26] The petition alleges that the respondents “have purported to exercise a ‘statutory power of decision’ having decided that thePetitioners are not entitled to carry out Agri-Tourism activities without applying relevant criteria set out in the prescribed regulation.” [27] Under the ACLA, the Commission is made up of at least 13 commissioners, including a chair and six vice-chairs.

Applications,such as an application to approve a non-farm use, are considered by panels consisting of commissioners resident in whichever of sixregions the relevant land is located. [28] The ACLA also provides for the appointment of a CEO, whose powers include the making of enforcement orders, subject toappeals to the Commission. Other specific functions and duties of the CEO are to be determined by the Commission, which may alsoappoint other officers and employees. Mr.

Underhill, who the petitioners say made the decision at issue, is not a commissioner. [29] The Commission says its statutory power of decision–that is, its power decide or prescribe legal rights–can only be exercised bythe commissioners, who have made no decision in this matter.

All that has happened, the respondents say, is that a staff member hasexpressed an opinion, which is not an exercise of a statutory power of decision and is not reviewable. [30] The expression of views by staff of a tribunal is not ordinarily subject to judicial review, particularly if the communication ispurely “administrative” or “informational”: Demings v. Workers’ Compensation Appeal Tribunal, 2012 BCSC 475 at paras. 88-92;Demirtas v. Canada (Minister of Employment and Immigration), (FCA), [1992] F.C.J.

No. 1126 (C.A.). [31] Where no decision has yet been made and the statutory process is in its preliminary stages, the court should not entertain anapplication for judicial review: Timberwolf Log Trading Ltd. v. Commissioner (Pursuant to s. 142.11 of the Forest Act), 2011 BCCA 70at para. 40. [32] The petitioner’s say Mr. Underhill wrongly purported to exercise a statutory power of decision by requiring them apply to theCommission for approval of a non-farm use. They say no such application is necessary because the golf course fits the definition of apermitted farm use. Therefore, the petitioners say, Mr.

Underhill in effect told the petitioners they were required to apply to convert apermitted farm use in to prima facie forbidden non-farm use. They say that is a purported exercise of a power he does not have. [33] That is a somewhat tortuous characterization of what happened. Mr. Underhill’s suggestion that the petitioners apply for a non-farm use flowed from an

interpretation of the Regulation’s definition of agri-tourism. He said that a golf course does not and cannotcome within that definition. The petitioners are really asking the court to consider the correctness or reasonableness of that

interpretation.

[ 34 ] The ACLA sets out a procedure under which a property owner can apply to the commissioners to authorize a non-farm use. The commissioners’ decision on such an application would clearly be subject to judicial review.

However, there is no specific procedure under which the owner can apply to the commissioners for a determination of whether a specific activity or installation constitutes a farm use. [ 35 ] Therefore, the Commission says, this question would only have become subject to judicial review if the petitioners continued operating the golf course and the Commission’s CEO, or other authorized staff member, made orders under ss. 50 or 52 of the ACLA requiring closure of the golf course and/or remediation of the property.

Any such order would be subject to an appeal to the commissioners and only the decision on appeal could be the subject of a judicial review application. [ 36 ] Those circumstances never arose because the Commission never took direct enforcement action. It became unnecessary when Maple Ridge took separate action. On the Commission’s analysis, these petitioners can never bring this issue before the court. [ 37 ] Mr. Underhill’s statement in his letter of August 22, 2014, did not purport to be merely an expression of opinion.

He explicitly attributed to the Commission his statement that: “a golf course of land in the Agricultural Land Reserve (ALR) is not permitted without express written approval of the Commission.” It is at least arguable that such a statement could, in some circumstances, be a decision about property owners’ legal rights, duties or liabilities. It would put them at the risk of enforcement action, with all its attendant costs, if they did not do as Mr.

Underhill said. [ 38 ] That is not the case here because by the time of the purported decision the petitioners allege–August 22, 2014–their legal rights and liabilities in respect of the golf course had already been conclusively determined by the court order. Nothing in Mr. Underhill’s letter could affect those rights and liabilities and the letter therefore cannot be characterized as the exercise of a statutory power of decision. [ 39 ] I will not speculate on whether the result might have been different if the petitioners had applied for judicial review based on Mr. Underhill’s letter of January 30, 2013.

That letter was written before the Maple Ridge Action, raised the possibility of enforcement action and at least tacitly invited Maple Ridge to take its own legal proceedings. [ 40 ] But if I am wrong in concluding that there was no exercise of a statutory power of decision, I find the petitioners have in any event failed to demonstrate any reviewable error by the Commission. [ 41 ] Judicial review is the means by which the courts supervise those who exercise statutory powers in order to ensure the legality, reasonableness and fairness of the administrative process and its outcomes: Dunsmuir v.

New Brunswick , 2008 SCC 9 at para. 28 . The question is which of the two standards of review identified in Dunsmuir –correctness or reasonableness–applies in a given case. [ 42 ] In Nolan v. Kerry (Canada) Inc. , 2009 SCC 39 , the Supreme Court of Canada said at paras. 33 and 34: [33] Administrative tribunals are creatures of statute and questions that arise over a tribunal’s authority that engage the

interpretation of a tribunal’s constating statute might in one sense be characterized as jurisdictional. However, the admonition of para. 59 of Dunsmuir is that courts should be cautious in doing so for fear of returning “to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years”. [34] The inference to be drawn from paras. 54 and 59 of Dunsmuir is that courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness standard when

interpretation of that statute raises a broad question of the tribunal’s authority. [ 43 ] Nolan was applied by the BC Court of Appeal, dealing with review of a decision by the Property Assessment Appeal Board, in Weyerhaeuser Company Ltd. v. Assessor of Area No. 04 – Nanaimo Cowichan , 2010 BCCA 46 .

The court said at para. 47: [47] Since the Board was not determining legal questions of general importance to the legal system as a whole, but rather interpreting a regulation promulgated under their own constating statute, the standard of review in this case is reasonableness. [ 44 ] The standard of reasonableness was defined in the following frequently quoted passage from Dunsmuir at para. 47 : [47] Reasonableness is a deferential standard animated by the principle that . . . certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 45 ] The burden is on the petitioners to demonstrate with clear and compelling evidence that the Commission has failed to meet the reasonableness standard: Tree to Me Agricultural Products Inc. v.

British Columbia (Agricultural Land Commission) , 2010 BCSC 1647 at para. 37 . [ 46 ] This court has recognized the Commission as an expert body whose decisions within its statutory jurisdiction and purpose are to be reviewed on a standard of reasonableness: Boundary Bay Conservation Committee v. British Columbia (Agricultural Land Commission) , 2008 BCSC 946 at paras. 88-89 , 110. [ 47 ] The regulation at issue was enacted pursuant to the Commission’s constating statute and provides an extended definition of farm use by permitting and defining agri-tourism.

The question of whether that extended definition applies to any particular use is one of fact that the Commission must consider in light of its agricultural expertise, its general policies and its overall mandate to preserve agricultural land and encourage farming.

[ 48 ] The position stated by Mr. Underhill was, in effect, that a golf course by its very nature could not qualify as agri-tourism within the Regulation .

I return to the definition of farm use in s. 1 of the ACLA : …an occupation or use of land for farm purposes, including farming of land, plants and animals and any other similar activity designated as farm use by regulation, and includes a farm operation as defined in the Farm Practices Protection (Right to Farm) Act. [Emphasis added.] [ 49 ] In order to meet the definition of agri-tourism in the Regulation , the specific use of the land at issue must first be similar to the “farming of land, plants and animals.” The consideration of whether a given activity is sufficiently similar to farming falls squarely within the Commission’s expertise.

It was certainly open to the Commission to decide that no such similarity exists in the case of a golf course, notwithstanding the fact that the same land is also put to another use–the grazing of sheep–that is clearly agricultural. [ 50 ] In that regard, the decision of the Property Assessment Appeal Board is of no assistance to the petitioners. The effect of that decision is that that the grazing of sheep was sufficient agricultural use for the land to be assessed as a farm even if the land was also being put to another use.

Agricultural classification of the land under the Assessment Act is only one of the requirements in the Regulation and the only one on which the Commission is bound by the decision of the Property Assessment Appeal Board. Whether a particular use meets the other requirements is within the Commission’s exclusive jurisdiction. [ 51 ] The Regulation also requires that an agri-tourism use be temporary and seasonal. A golf course requires alteration of the land in the form of particular landscaping, sand traps, water hazards etc.

Photographs that were put into evidence show changes of precisely that kind to the petitioners’ property. Those changes must remain in place as long as operation of the golf course continues and cannot reasonably be described as temporary. [ 52 ] For all of these reasons, the petition must be dismissed. “N. Smith, J.”