Thorhild No. 7 (County) v. 541466 Alberta Ltd., 2010 ABQB 453

• Judge: Goss, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: Friday May 28, 2010
• Citations: 2010 ABQB 453;(2010), 507 A.R. 112 (QB)

Thorhild No. 7 v. 541466 Alta. Ltd. (2010), 507 A.R. 112 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JL.047

County of Thorhild No. 7 (applicant) v. 541466 Alberta Ltd. operating as JLG Ball Enterprises (respondent)

(1003 07061; 2010 ABQB 453)

Indexed As: Thorhild No. 7 (County) v. 541466 Alberta Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Goss, J.

July 5, 2010.

Summary:

The County of Thorhild No. 7 (the County) applied for a declaration that the Development Permit 1523 (the Permit) it issued to JLG, was ultra vires and of no force and effect because it was not issued in accordance with the requirements of the Municipal Government Act (Alta.) and its land-use by-law (LUB). Alternatively, if the Permit was valid, the County sought directions regarding providing notice of the Permit in accordance with its by-law. JLG sought a declaration that the development Permit was valid, a finding that adequate notice was given, and that no further notice was required.

The Alberta Court of Queen's Bench issued a declaration that the Permit was valid. The court ruled that the notice provisions (s. 3.5(2)) of the LUB had not been complied with. The court ordered that the notice provisions be complied with.

Land Regulation - Topic 3204

Land use control - Building or development permits - Issue of - Validity of - JLG applied for a development permit for gravel extraction use on Crown lands within the territory of the County of Thorhild - On December 14, 2009, the County's Development Authority Officer issued the permit - On December 22, 2009, at a meeting of the Municipal Planning Commission, it was moved that JLG's application for a development permit for gravel extraction be approved "as by the Development Officer" - The motion was carried - The Alberta Court of Queen's Bench declared that the permit was valid where: (a) the application for the permit was approved by the Commission on December 22, 2009, thereby satisfying the requirements of s. 3.4(6) of the County's Land Use Bylaw 989-98; and (b) a declaration had the practical effect of resolving the issue between the parties - See paragraphs 35 to 41.

Land Regulation - Topic 3207

Land use control - Building or development permits - Conditions precedent to issue or validity of - Section 3.5(2) of the County of Thorhild's Land Use Bylaw provided that when a permit for a discretionary use was granted, the Development Authority was to immediately post a notice of the decision conspicuously on the subject property, mail a notice of the decision to all potentially affected adjacent land owners, publish a notice of the decision in a newspaper circulating in the area of the subject property, and post a notice of the decision conspicuously in the municipal office - Section 3.5(3) provided that a permit granted for a discretionary use did not come into effect until 15 days after the publication required by s. 3.5(2) - JLG applied for a development permit for gravel extraction use on Crown lands within the County's territory - The application was approved - Then, County Councillor Croswell issued an information circular to County residents describing the development permit and the location of the lands and indicating that the approved use was a discretionary use - Councillor Croswell also provided information on his Facebook page - The Alberta Court of Queen's Bench held that the information circular did not constitute publication as required by s. 3.5(2) - The court ordered compliance within 14 days of its decision where publication was a condition precedent for the validity of the permit - See paragraphs 42 to 50.

Land Regulation - Topic 3207

Land use control - Building or development permits - Conditions precedent to issue or validity of - Section 3.5(2) of the County of Thorhild's Land Use Bylaw provided that when a permit for a discretionary use was granted, the Development Authority was to immediately post a notice of the decision conspicuously on the subject property, mail a notice of the decision to all potentially affected adjacent land owners, publish a notice of the decision in a newspaper circulating in the area of the subject property, and post a notice of the decision conspicuously in the municipal office - Section 3.5(3) provided that a permit granted for a discretionary use did not come into effect until 15 days after the publication required by s. 3.5(2) - JLG applied for a development permit for gravel extraction use on Crown lands within the County's territory - The application was approved - Then, the County challenged the permit by way of a judicial review application - Service of the originating notice of motion and affidavit was made by (a) posting on the door of properties where the county had a municipal address for that affected land owner, and (b) by mailing the Originating Notice of Motion and Affidavit by regular mail to the mailing address of affected land owners for whom the county had no municipal address - The Alberta Court of Queen's Bench held that the notice of the judicial review application did not constitute notice as required by s. 3.5(2) - See paragraphs 44 to 46.

Land Regulation - Topic 3945

Land use control - Remedies - Declaration - [See Land Regulation - Topic 3204].

Cases Noticed:

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, folld. [para. 16].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4; 2004 SCC 19, consd. [para. 17].

Argyll Community League (1978) v. Edmonton (City) et al. (2009), 467 A.R. 93; 2009 ABQB 66, refd to. [para. 18].

RSJ Holdings Inc. v. London (City), [2007] 2 S.C.R. 588; 364 N.R. 362; 226 O.A.C. 375; 283 D.L.R.(4th) 257; 2007 SCC 29, consd. [para. 24].

Society for Promotion of Alternative Arts and Music v. Edmonton (City) et al. (2008), 459 A.R. 191; 2008 ABQB 629, consd. [para. 30].

Costello and Dickhoff v. Calgary (City), [1983] 1 S.C.R. 14; 38 N.R. 179; 41 A.R. 318; 143 D.L.R.(3d) 385, consd. [para. 30].

Bridgeland Riverside Community Association v. Calgary (City) and Patricia Investments Ltd. (1982), 37 A.R. 26; 135 D.L.R.(3d) 724 (C.A.), refd to. [para. 32].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2007), 412 A.R. 215; 404 W.A.C. 215; 2007 ABCA 263, refd to. [para. 40].

Gook Country Estates Ltd. v. Quesnel (City) et al. (2008), 261 B.C.A.C. 69; 440 W.A.C. 69; 2008 BCCA 407, refd to. [para. 40].

Statutes Noticed:

Thorhild No. 7 (County) Bylaws, Land Use Bylaw, Bylaw No. 989-98, sect. 3.5(2), sect. 3.5(3) [para. 14].

Counsel:

Barry A. Sjolie, for the applicant;

Robert Farmer, for the respondent.

This application was heard on May 28, 2010, by Goss, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on July 5, 2010.