Red Deer (City) v. Council of the City of Red Deer, (1976) 2 A.R. 271 (CA)

• Judge: Clement, Prowse and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: November 03, 1976
• Citations: (1976), 2 A.R. 271 (CA)

Red Deer v. Red Deer City Council (1976), 2 A.R. 271 (CA)

MLB headnote and full text

City of Red Deer v. Council of the City of Red Deer

Indexed As: Red Deer (City) v. Council of the City of Red Deer

Alberta Supreme Court

Appellate Division

Clement, Prowse and Moir, JJ.A.

November 3, 1976.

Summary:

This case arose out of an application to a development officer for a development permit to increase the glass area of the front of a nonconforming building from 60 to 232 square feet in a commercial zone. S. 125(1) of the Planning Act provided that such a nonconforming building could not be "structurally altered". This raised the issue of whether the proposed development constituted a structural alteration. The development officer refused the permit. The applicant appealed to the Council of the City of Red Deer sitting in its capacity as a development appeal board under the Planning Act. Without deciding whether the development constituted a structural alteration, the development appeal board allowed the appeal and granted the permit, stating that the terms of the bylaw should be "relaxed" for the purpose. The City of Red Deer appealed.

The Alberta Court of Appeal allowed the appeal and vacated the issuance of the development permit by the board. The Court of Appeal held that the development appeal board had no jurisdiction to relax the provisions of the bylaw and that it could not ignore the imperatives of s. 125(1) of the Planning Act. The Court of Appeal referred the matter back to the board for a decision on the question of whether the proposed development was a structural alteration to the non-conforming building.

Land Regulation - Topic 2504

Land Use Control - Zoning bylaws - "Use" defined - The Planning Act, R.S.A. 1970, c. 276, s. 128(4)(d), provided that a development appeal board "shall not allow the permanent use of land or a building in a manner not permitted by the zoning bylaw" - The development appeal board granted a permit to the owners of a building to increase the glass area of the front of the building from 60 to 232 square feet for a temporary period of three years - The board argued that this was not allowing "permanent use" contrary to s. 128(4)(d) of the Planning Act - The Alberta Court of Appeal stated that s. 128(4)(d) applied to the use of the building and not construction of the building and held that 128(4)(d) was inapplicable - See paragraph 5.

Land Regulation - Topic 2543

Land Use Control - Zoning bylaws - Appeals to an appeal board - Jurisdiction of appeal board - Jurisdiction to exempt applicant from bylaw - The development appeal board granted a permit to the owners of a nonconforming building to increase the glass area of the front of the building from 60 to 232 square feet for a temporary period of three years contrary to a zoning bylaw, which the board "relaxed" for the purpose - The Planning Act, R.S.A. 1970, s. 276, s. 125(1), prohibited a nonconforming building from being "structurally altered", but the board did not decide if the change in the building constituted a structural alteration - The Alberta Court of Appeal held that the development appeal board had no jurisdiction to relax the provisions of the bylaw and that it could not ignore the imperatives of s. 125(1) of the Planning Act - The Court of Appeal vacated the decision of the board and referred the matter back to the board for a decision on the question of whether the proposed development was a structural alteration to the nonconforming building - See paragraphs 1 to 6.

Cases Noticed:

David Everett Holdings Ltd. v. Council of City of Red Deer, [1975] 3 W.W.R. 333, appld. [para. 6].

Statutes Noticed:

Municipal Government Act, R.S.A. 1970, c. 246, sect. 13(1) [para. 1].

Planning Act, R.S.A. 1970, c. 276, sect. 2(k) [para. 3]; sect. 125(1) [para. 2]; sect. 128(4)(d) [para. 5]; sect. 145(c), sect. 147 [para. 4].

Counsel:

T.H. Chapman, for the appellant;

F.J. Fleming, Q.C., for the respondent.

This case was heard before CLEMENT, PROWSE and MOIR, JJ.A., of the Alberta Supreme Court, Appellate Division.

On November 3, 1976, CLEMENT, J.A., delivered the following judgment of the Appellate Division: