Stop Order Runs Loose In Kneehill County

• Published date: 17 September 2021
• Subject Matter: Litigation, Mediation & Arbitration, Real Estate and Construction, Trials & Appeals & Compensation, Construction & Planning
• Law Firm: Dentons
• Author: Kevin Haldane and Dick Haldane, QC

The Alberta Court of Appeal (the "CA") in Kneehill upheld the issuance of a stop order issued by Kneehill County to compel the owner of the subject lands to operate a business (equestrian centre) and to extend privileges at the centre to adjacent lot owners in accordance with the area structure plan (the "ASP"). In effect, the CA upheld the use of an extra-judicial remedy issued by a development officer without legal training to enforce a bylaw which was unlawful, denying the appellant the right to challenge the bylaw in the statutory appeal process provided to challenge the stop order and upholding the enforcement of positive obligations in reliance upon suspect authority.

The CA in Kneehill held:

1. Planning legislation was not simply regulatory but could be prescriptive and positive obligations in the context of planning approvals are enforceable;
2. The Subdivision and Development Appeal Board (the "SDAB") may not rule on the legality of the bylaw that was the cornerstone of the stop order.

The facts

The Saddle Up Estates Area Structure Plan provided that the lands shall be developed as "...a 16-lot community around an equestrian center with related amenities (ASP para 2) . . . with ... (each) lot owner to have... indoor arena access and access to designated recreation areas for riding purposes. (ASP Para. 3)

Condition 5 of the subdivision approval pursuant to which the stop order was issued states: "The policies and plans within the Saddle Up Estates Area Structure Plan (Bylaw 1586) as approved by Kneehill County Council must be followed." (emphasis added).

If the condition of subdivision approval had been to operate an equestrian centre rather than to comply with the ASP, it clearly would have been unlawful.

There was no dispute regarding non-compliance with the ASP. The stop order followed. On appeal, the SDAB held that the subdivision authority could regulate only and interpreted the ASP accordingly - a land owner could not be compelled to develop her property. The defense of the stop order in essence turned on an interpretation of the ASP bylaw which ensured the bylaw was legal.

The law

Laux and Stewart-Palmer in Planning Law and Practice in Alberta (4th) edition addresses collateral attacks on bylaws as follows;

16.2 ..."in rendering a decision, a [Board] may have applied a particular provision of a land use bylaw, that provision being the cornerstone of the board's decision. In challenging the board's decision it may be open to the applicant to argue that the bylaw provision was illegal."

Citing Tegon Developments v. Edmonton [1977] 81 DLR (3d) 543 CA affirmed by SCC at [1979] 121 D.L.R. (3d) in which the validity of a council resolution relied on by the development officer was held by the SCC (on appeal from the Alta CA via the SDAB) to be invalid - all under the statutory appeal process. In Kneehill, the CA relied upon a prior decision of the CA in Coffman v. Ponoka County No. 3 1998 ABCA 269 ("Coffman") which held that the SDAB could not review the validity of the underlying bylaw which is the basis for the issuance of a permit or stop order and must accept the bylaw as written.

The Municipal Government Act RSA 2000 Chapter M-26 ("MGA") provides that an ASP should establish a framework for subsequent subdivision and development (s.633(1)) ... and must describe (i) the sequence of development proposed ..., (ii) the land uses proposed, ...( emphasis added), (iii) the density of population ..., and (iv) the general location of major transportation routes and public utilities, and (b) may contain any other matters, including matters relating to reserves, as the council considers necessary. (emphasis added)

Every municipality must adopt a land use bylaw (a "LUB") (s.640(1)) to prohibit or regulate and control the use and development of land and buildings in a municipality...(s. 640(1.1)" And must designate permitted or discretionary uses S.640(2)(b)(i) and (ii). The Kneehill County LUB designates equestrian centres as a discretionary use.

"A subdivision authority may impose (a) condition to ensure that ...the statutory plan (ASP) ... affecting the land ... is complied with;(S.655(1)."

The decision

The Municipality argued that the MGA allowed the approving authority to impose positive obligations upon the applicant. The land owners argued that the MGA was regulatory only, and dependent upon its application for the initiative of the land owner - that it is reactive and not prescriptive and the ASP must be interpreted accordingly.

The following extracts from the Kneehill decision provide the rationale of the CA:

"..., nothing in the Act prevents an area structure plan incorporated into a planning bylaw from imposing positive obligations on a land owner or applicant for subdivision approval." (para. 36)

"s. 655(1)(a) of the Act expressly authorizes a subdivision authority to impose " any conditions to ensure that...any statutory plans (ie. ASP's)... are complied with." (Para. 38))

"The SDAB must comply with the bylaw then in effect and has no power to declare the bylaw invalid." (Para. 39) citing the CA decision in Coffman.

Clearly the subdivision approval required compliance by the applicant with the provisions of the ASP - and that the ASP required the subject parcel to be developed and operated as an equestrian centre. Furthermore there is extensive judicial authority referred to below holding that the SDAB is bound to accept and apply the bylaws as written. This appears to be the only conclusion that the CA could reach, absent a detailed analysis of both Coffman and Focaccia.

The ASP is to contain the sequence for development, proposed land uses , proposed population density, transportation and utility routes (MGA s.633(2)(a) and "such other matters such as reserves as council considers necessary" (MGA s.633(2)(b)). These elements are proposed, not mandatory. No consideration was given to the following:

1. The SCC in Calgary v. Hartel Holdings [1984] 1 SCR 337, [1984] SCJ No 17 states "Plans are policy documents and set out proposals for future development The Land Use Bylaw is the instrument by which the policies are finally implemented."
   
   Confirming that ASP's are not prescriptive, Laux and Stewart-Palmer Planning Law and Practice in Alberta Fourth Edition at page 5-21 "... the courts have stated that statutory plans ... are not intended to regulate in any definitive way what can be done at the present time"
2. The requirements of the ASP cannot be read in isolation of the land use bylaw which provides that a land use bylaw may prohibit or regulate but not mandate the use of land and development. Whether a person elects to develop or to continue to use her property for a use authorized by permit is voluntary.
3. "Whatever the particular document one is construing when one finds a clause that sets out a list of specific words followed by a general term, it will normally be appropriate to limit the general term to the genus of the narrow enumeration that precedes it." per La Forest J. National Bank of Greece v Katsikonouris [1990] SCJ 95, [1990] 2 SCR 1029
   
   S.633(2)(b) which authorizes an ASP to address "...such other...