Canada: Missed Documents In Public Participation Undermine Compost Downzoning Bylaw

Last Updated: August 29 2012
Article by Dianne Saxe

The British Columbia Court of Appeal has struck down a downzoning bylaw to eliminate composting at a licenced composting business: Fisher Road Holdings Ltd. v. Cowichan Valley (Regional District).

Fisher Road Holdings Ltd. ("Fisher Road") operates a licenced composting business in Cowichan, BC..

In 2009, Fisher Road planned to expand its composting operation and to also expand its business to include recycling. In October of that year, it applied to the Regional District to amend its Licence to increase the permitted scope of its composting business. There was strong public opposition. The CVRD responded by establishing a citizen's advisory committee and by retaining EBA Consulting Engineering Consultants Ltd. ("EBA") to conduct an environmental review of Fisher Road's existing and proposed operations in response to  community concerns about potential environmental risks to the aquifer.

"[7] As required by the CVRD, Fisher Road held a public meeting on May 20, 2010, to introduce its amendment application to the community. The chambers judge found that approximately 200 people attended the meeting, most of whom expressed negative views about any expansion to the operations permitted by Fisher Road's Licence.

[8] After the public meeting, the CVRD's General Manager for Planning and Development, Tom Anderson, prepared a staff report to the CVRD's Electoral Area Services Committee dated June 8, 2010. The report referred to the public meeting and included a brief summary indicating that residents in the area had expressed concerns about the smell and threat of contamination from composting and recycling facilities for many years. The report expressed the opinion that the goal of trying to move industry to a point where the smells emanating from the industrial uses were considered "reasonable" and the threat to groundwater eliminated, appeared to be unattainable."...

[14] On November 25, 2010, a second public meeting was held.... The EBA report was presented and discussed at that meeting, and although no report from the citizen's advisory committee was available, the committee's views later found in their report were also discussed. ...

[15] On November 26, 2010, the citizen's advisory committee report was produced. The report was critical of Fisher Road's operations in general and of the steps taken by the CVRD to deal with the community's concerns about those operations..."

On November 30, 2010, the CVRD's Board of Directors held a public meeting, which led to the passage of the Bylaw that prohibited composting on the Fisher Road site. The Directors, and the public, had available during this meeting an  "Information Binder", which did not include the EBA report nor the report of the citizen's advisory committee. However, these two reports were considered by the Directors.

The Court of Appeal found that the bylaw was invalid, because CVRD breached its duties of notice and procedural fairness to members of the public, including Fisher Road.

"[37] With respect, ... The issue ...was not whether the two reports had been disclosed to Fisher Road. Clearly they had been. The issue before the chambers judge was whether the CVRD made it clear to Fisher Road and any other interested parties that the two reports would be relied upon by the CVRD's Board in deciding whether or not to pass the Bylaw.

[38] Only the CVRD's delegates could advise the public what material they intended to rely upon. Clearly they did not advise of their intended reliance on the two reports. Had the chambers judge addressed the question of what the public were told that the delegates would rely upon, he would have concluded that anyone reading the Notice of Public Hearing or attending the hearing on November 30, 2010, would have understood that the decision-maker had determined that the two reports were not going to be considered by the CVRD's Board vis a vis the Bylaw."

The moral: close is not good enough in public participation. If the Board wanted to rely on the two reports it had commissioned about the environmental risks of the composting facility, those reports had to be in the Information Binder that the Board made public at its meeting.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Dianne Saxe
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