Carscallen LLP litigators Michael B. Niven and Theresa Nolan successfully represented clients Keith Koebisch and Harry Hodgson (the “Applicants”) in a recent dispute with Rocky View County (“County”) over proposed gravel extraction plans in the case of Koebisch v Rocky View County¹Koebisch v Rocky View County, 2019 ABQB 508 (“Koebisch”).(“Koebisch”) in the Court of Queen’s Bench of Alberta.

The Applicants successfully argued that Rocky View County Council (“Council”) committed errors in 2017 and 2018 in passing four bylaws that re-designated (rezoned) the land use of certain parcels of land in Rocky View County from Ranch and Farm District to Natural Resource Industrial District in order to facilitate gravel extraction on that land. The proposed gravel extraction projects were near where the Applicants reside.

The Application was opposed by the County, together with intervenors Mountain Ash Limited Partnership and McNair Sand and Gravel Ltd., companies that applied to the County in connection with the proposed gravel extraction projects.

FAILURE TO CONSIDER THE CUMULATIVE EFFECTS OF EXTRACTION PATENTLY UNREASONABLE

In reasons for judgment recently released, Justice J.T. Eamon of the Court of Queen’s Bench in Calgary found in favour of the Applicants, setting the impugned bylaws aside and holding that Council erred in failing to consider the cumulative effects of extraction in the area in terms of the increased noise, dust and traffic of the proposed gravel pits.²Koebisch at paras 114-116.

The Court here found that Council’s actions:

• Failed to comply with its own municipal development plan (the Rocky View County Plan (the “Plan”)),
• Undermined the purposes of its own Plan by failing to consider the cumulative effects of the proposed gravel extraction,
• Acted contrary to the objectives of good government under principles of the Municipal Government Act (the “Act”), and
• Were an unlawful exercise of Council’s discretion.

These findings are significant because courts in Alberta generally afford a high degree of deference to the judicial review of municipal decisions and do not usually overturn municipal bylaws unless they are “aberrant”, “overwhelming”, or if “no reasonable body” could have adopted them.³Koebisch at para 126.

INFORMATION SUBMITTED TO COUNCIL IN MSDPS WAS SERIOUSLY AND OBVIOUSLY DEFICIENT 

In particular, the Court highlighted that information presented to Council contained many serious gaps, particularly with respect to the Master Site Development Plans (“MSDP”) submitted to Council for the proposed gravel extraction, as the information contained only “vague commitments in response to problems of unspecified magnitude”. According to Justice Eamon, “the bylaw applicants essentially expressed varying forms of commitment to mitigate cumulative impacts, and later work out whatever problems might arise”.⁴Koebisch at paras 101, 120.

The magnitude and obviousness of the defects in the MDSPs provided to Council was found to be a very serious and patently unreasonable departure from the content requirements contained in the Plan⁵Koebisch at paras 102-103..

Respecting the MSDPs⁶Koebisch at para 80., the Court found that:

• The purpose of the requirement for an MSDP was to ensure sufficient information for meaningful decision making and public input.
• There was no information providing a meaningful conception of cumulative aspects (apart from truck trips), even generally, or proposing any cumulative limits for noise, dust or truck trips.
• Council may not ignore cumulative aspects (to delegate to the development authority).
• Council would not comply with its obligation to consider relevant factors by referring it to the development authority. The procedures in a development permit application are drastically different, and less generous to affected neighbours, than a public hearing before the Council.

MANDATORY REQUIREMENTS UNDER THE PLAN

The Court also found that Council was required to comply with its own Plan, and that the present, mandatory requirements of the Plan should be taken as an acknowledgment by the County of relevant factors in the planning process.⁷Koebisch at para 65.

According to Justice Eamon, “no reasonable council would proceed in the circumstances of the obviously deficient applications, the lack of any apparent rational basis for the departure from the important informational requirements of the [Plan], and the severity of the negative consequences to the process, particularly the objectives of good government and an orderly process. The departure from the policy requirement defining the information needed to properly evaluate the redesignation applications was clearly not transparent, justified or intelligible”.⁸Municipal Government Act, RSA 2000, c M-26; Koebisch at para 10.

COUNCIL’S ACTIONS REVIEWABLE BY THE COURT UNDER SECTION 539 OF THE ACT

The Court also found in favour of the Applicants in holding that section 539 of the Act did not bar judicial review of the impugned bylaws. Justice Eamon held that Council’s decision was reviewable by the courts for “patent unreasonableness” under section 539 of the Act, focusing on the magnitude and immediacy of the defect. Justice Eamon further found that the Applicants’ legal challenge was not based on unreasonableness alone.

Carscallen LLP’s Litigation Experience

Carscallen’s team of experienced litigators has successfully represented clients at all levels of court and before tribunals in Alberta and Canada. Our extensive litigation experience allows us to focus on practical, common sense legal solutions to disputes. We represent public corporations, private enterprises and individuals and are adept at tailoring unique solutions to meet your needs and protect your interests. We have achieved regular and consistent success at trial and appellate levels of courts and before various tribunals, and we have a strong track record of effectively resolving disputes outside the formal legal process through mediations and arbitrations.

Please contact any member of our Commercial Litigation team with any questions you may have about any litigation-related issues.

• 1
  Koebisch v Rocky View County, 2019 ABQB 508 (“Koebisch”).
• 2
  Koebisch at paras 114-116.
• 3
  Koebisch at para 126.
• 4
  Koebisch at paras 101, 120.
• 5
  Koebisch at paras 102-103.
• 6
  Koebisch at para 80.
• 7
  Koebisch at para 65.
• 8
  Municipal Government Act, RSA 2000, c M-26; Koebisch at para 10.