SDAB HEARINGS ROLE OF THE DEVELOPMENT OFFICER Kelsey Becker Brookes

SDAB Statutory body Intended to perform independent adjudicative function Hears complaints and functions like a court

SDAB Mandated by the MGA Created by the municipality to carry out appropriate functions and procedures Independent from municipality

SDAB Challenge a decision on a development application Challenge a decision on a subdivision application, that is not adjacent to a primary highway, a water body, a water or wastewater management facility, or in the green area Challenge the issuance of a Stop Order

SDAB Stay within the legislative job description, as set out by the MGA and Regulations Act fairly and reasonably within the limits imposed by administrative law and principles of natural justice Act in accordance with enabling bylaw

SDAB Not bound to follow previous decisions, except to ensure decisions are consistent with previous decisions made in similar cases

Jurisdiction Jurisdiction Intra vires Ultra Vires

Jurisdiction Loss of jurisdiction / ultra vires: Breaches principles of natural justice or duty to be fair Considers irrelevant evidence Fails to acknowledge relevant evidence Acts from improper motive or malice

Jurisdiction Within jurisdiction / intra vires Proceeds fairly Stay within jurisdiction (because are performing duties which used to be reserved for judges)

Natural Justice Natural Justice (traditionally two parts) a person must know the case being made against him or her and be given an opportunity to respond to it the rule against bias

Natural Justice Every person affected by an administrative decision is entitled to a hearing What form the hearing takes depends on the circumstances Right to oral hearing depends on circumstances

Natural Justice Right to counsel No absolute right to counsel Depends on circumstances Generally permitted where hearing closer to judicial model

Natural Justice Right to request an adjournment Discretionary Refusal by tribunal to grant adjournment may be a denial of procedural fairness if unreasonable in the circumstances

Natural Justice Evidence relied upon must be relevant and reliable Traditional rules of evidence do not apply Still must be relevant and reliable

Natural Justice Hearing before the person making the decision Person who decides must conduct the hearing Person upon whom statutory power has been delegated must preside

Natural Justice Counsel for the tribunal Administrative tribunals may retain legal counsel for advice and assistance in the proceedings before them Decision making must not be delegated to counsel Confined to rule of consultant

Rule Against Bias Rule against bias Right to be heard by an unbiased, independent and impartial decision maker Perception vs. reality

Rule Against Bias Test: is there a reasonable apprehension of bias? Financial interest in outcome Outside knowledge or involvement Relationship with parties Inappropriate comments or behaviour

Subdivision Appeals S. 678 Who can appeal subdivision decision S. 680 Must have regard to statutory plans Must conform with uses of land referred to in LUB

Development Appeals S. 685 Person applying for permit or affected person No appeal on permitted uses unless provision of LUB were relaxed, varied or misinterpreted S. 687 Must comply with statutory plans and LUB (subject to variance power)

Stop Order Appeals Key Decision: was the Stop Order properly issued?

Hearing De Novo Hears an application as if it were new Rather than evaluating the quality of the decision of the development authority or subdivision authority While SDAB hears from development authority, must come to its own conclusion Different variance power

Roles SDAB Secretary Appellant Respondent Applicant Affected Persons Counsel

Respondent Either development authority or subdivision authority Describe steps authority followed to make their decision: State basis of original decision Refer to and explain in plain language municipal planning documents

Respondent (continued) Submit evidence Refer to duties to make a decision Outline requirements or limits in statutory plans, LUB or MGA Photos from site visits Describe variances and conditions

Municipal Planning Documents Provincial Land Use Policies ALSA Regional Plan Statutory Plans LUB Policies

Other Planning Considerations Interconnectivity with existing development and landscape Future considerations for lands Incompatible uses, variety of uses Impacts of proposal Mitigating negative impacts

Role of Development Authority Advocate Neutral party New evidence

SDAB Decision Written decision Within 14 days Leave to appeal to Court of Appeal Record

Kelsey Becker Brookes 780.497.3304 Toll Free: 1.800.661.7673 (RMRF) Questions? Kelsey Becker Brookes 780.497.3304 Toll Free: 1.800.661.7673 (RMRF)