Administrative law – Decisions of administrative tribunals – Agricultural Land Commission – Municipalities – Planning and zoning – Agricultural Land Reserve – Removal process – Notice requirements – Compliance with legislation – Judicial review – Bias
Gowman v. British Columbia (Provincial Agricultural Land Commission),  B.C.J. No. 364, British Columbia Supreme Court, February 27, 2009, L.B. Gerow J.
Gowman owned property that was within the ALR. Nodes Construction was a construction company which operated out of a property in Pouce Coup. Nodes Construction owned a 111 hectare parcel of land on the outskirts of Pouce Coup and made an application to exclude from the ALR 15 hectares in the southeast portion of the larger 111 hectare parcel in order to consolidate its business into a single location.
John Kendrew was a Commissioner who was a member of the regional panel which passed the resolution excluding the Nodes Construction property from the ALR (the “Resolution”). Kendrew was a registered owner of a property located immediately to the east of and adjacent to the 15 hectares that was the subject of the exclusion application. As an adjacent landowner, Kendrew received a copy of the notice and a copy of the exclusion application. Gowman did not receive either a copy of the notice or a copy of the exclusion application prior to August 24, 2006 when the Commission passed the resolution. Gowman filed a petition seeking to have the Resolution declared a nullity due to the failure to provide him with proper notice of the application to remove the property from the ALR and on the basis that one of the Commissioners was biased.
The Court reviewed efforts made by Nodes Construction to provide notice of its application to remove the land from the ALR. Nodes Construction placed a number of newspaper advertisements as required by the legislation. As well, signage required by the Regulations was placed on the property adjacent to Highway No. 2. A copy of the notice and a copy of the exclusion application were served on six of the adjacent landowners. The Court accepted evidence that the omission to serve Gowman was inadvertent. The Court found that Nodes Construction made reasonable efforts to comply with the notice requirements.
Gowman further argued that the Resolution should be declared a nullity, or alternatively set aside, on the basis that Commissioner Kendrew was barred by the Commission’s “Interim Governance Policy” from participating in the Resolution, or alternatively, that Commissioner Kendrew’s participation gave rise to bias. The Court agreed noting that the Agricultural Land Commission Act and Regulations specifically recognized Commissioner Kendrew as an interested party by the fact that he was required to be served personally or by registered mail with notice of the exclusion application. In the Court’s view, this was a situation in which an informed person, viewing the matter reasonably and practically and having thought the matter through, would conclude that it is more likely than not that the decision-maker, whether consciously or unconsciously, would not decide fairly. Commissioner Kendrew did not merely have a community of interest with other landowners in the area; he was a landowner who was identified by the legislation as having an interest. His land was adjacent to the 15 hectare parcel for which the exclusion was sought. The Court held that Commissioner Kendrew should have declared his interest and refrained from participating in the Resolution.
In the result, the Court set aside the Resolution and the matter was remitted to the Commission.
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