The British Columbia Court of Appeal held that a regional district committed a breach of procedural fairness in failing to disclose all relevant information prior to a public hearing to discuss a bylaw amendment. The district had introduced a bylaw which would prohibit composting and recycling on a property owned by the applicant which operated a composting business and had applied for a license to expand the scope of its business. The application was received negatively and the bylaw restricting use was subsequently introduced and passed. The Court held that the district had failed to give notice to the applicant and the public of its intention to rely on the reports prepared for the license application.

25. September 2012 0

Administrative law – Decisions of administrative tribunals – Municipal councils – Municipalities – Planning and zoning – By-laws – Change of by-laws – Notice and consultation – Judicial review – Permits and licences – Procedural requirements and fairness

Fisher Road Holdings Ltd. v. Cowichan Valley (Regional District), [2012] B.C.J. No. 1684, 2012 BCCA 338, British Columbia Court of Appeal, August 14, 2012, R.E. Levine, S.D. Frankel and C.E. Hinkson JJ.A.

The Appellants, Fisher Road Holdings Ltd. (“Fisher Road”), operated a composting business within the Respondent’s, the Cowichan Valley Regional District (“CVRD”), jurisdiction. Fisher Road operated its business on property that had been zoned for composting operations, and in 2007, Fisher Road was granted a Solid Waste Management License (“License”) by the CVRD which it claimed allowed it to carry on recycling activities as well.

In 2009, Fisher Road applied to the CVRD to amend its license to increase the permitted scope of its composting business. In response, the CVRD established a citizens’ advisory committee and retained an engineering consultant company to conduct an environmental review of Fisher Road’s existing and proposed operations due to community concerns. Fisher Road held a public meeting in May 2010 to introduce its amendment application, which was received negatively. The CVRD’s general manager for planning and development prepared an unfavourable report following the meeting. Roughly one month later a bylaw, which would eliminate as permitted uses both composting and recycling on Fisher Road’s property and one other property in the same area, was introduced and was given a first and second reading.

A draft report was prepared by the engineering consultant company in October 2010 and released in finalized form in November 2010 that indicated it was impossible to determine the source of nitrate contamination in the groundwater beneath Fisher’s operations. A follow- up public meeting was held where it was recommended that no additional activities be permitted on the site until the source of contamination was proven. A further meeting was held respecting the bylaw, and the bylaw was eventually passed on its third reading in February 2011. Fisher Road continued its prior operations as a non-conforming use. Fisher Road applied to the Court, but the application judge upheld the down-zoning bylaw.

On appeal, the Court held that the CVRD failed to provide proper notice to Fisher and to the public at large of its intention to rely on the reports prepared in passing the bylaw, as the reports were prepared in connection with Fisher Road’s application and not the bylaw. The Court held that a breach in procedural fairness had thus occurred, and that the judge erred by conflating the two separate public processes and assumed that what was relevant to one was taken by the public to be relevant to the bylaw amendment process. The Court held that the two reports should have been disclosed prior to the public hearing to permit interested parties to make informed, thoughtful and rational presentations.

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