The recent decision of the BC Court of Appeal in Fisher Road Holdings Ltd. v. Cowichan Valley (Regional District) highlights the ongoing challenges faced by local government elected and appointed officials in ensuring a fair public hearing process that can withstand judicial review.
The case involved the rezoning of land in the Cowichan Valley owned by Fisher Road Holdings Ltd. (“Fisher Road”) and used for a composting and recycling operation under license from the CVRD. The CVRD had proposed to eliminate composting and recycling from the uses permitted on the Fisher Road property and, at the same time, was processing a Waste Stream Management License amendment (the “License Amendment”) to allow Fisher Road to expand its composting facility operations. Neighbourhood concerns about the composting facility use resulted in the preparation of both an environmental report (the ‘EBA Report’) and a report from a citizens advisory committee that the CVRD had instructed to consider the question of the proposed Waste Stream License Amendments. The advisory committee report was critical of Fisher Road’s operations and recommended that the CVRD not consider any additional activities on or around the site until the source of some groundwater contamination near the property could be identified. The EBA Report and the citizens advisory committee report were both disclosed to Fisher Road and its counsel prior to the public hearing in relation to the rezoning. However, neither document was formally included in the CVRD’s file material in relation to the rezoning as they were, strictly speaking, related to the Licensing Amendment. Thus, an employee of the owner who attended at the CVRD offices to review CVRD files in connection with the rezoning application and in preparation for the public hearing, did not find those documents in the file. Additionally, when the public hearing was held, neither the EBA Report or the citizen’s advisory committee report were included in the public hearing binders available at the time of the public hearing. However, at the public hearing, both Fisher Road and its counsel addressed the issues of groundwater contamination in their oral submissions.
The Chambers Judge found that the reports were in fact material to the decision of the board in relation to the rezoning and should have been disclosed to the public prior to the public hearing. However, given the totality of the circumstances, the Court was prepared to conclude that the extent and timing of the disclosure of the information was in fact adequate to permit interested parties an opportunity to prepare an intelligent and reasoned response. The applicant, Fisher Road, not only had the opportunity to present such a response it took advantage of the opportunity. The Chambers Judge made the very practical assessment that “nothing would be gained by requiring the CVRD to hold another public hearing on the proposed Bylaw” and declined to quash the decision adopting the zoning amendment bylaw.
The Court of Appeal disagreed, and held that the question was not whether the owner of the land had been prejudiced but whether proper disclosure of all relevant material had in fact occurred as required by the common law applicable to public hearings that has developed in British Columbia. The Court of Appeal concluded that all the material the decision makers were going to rely upon had not been disclosed at the public hearing and that this was a fatal error in process. The Court held that the failure to disclose the CVRD’s “intention” to rely upon the EBA Report and the citizens advisory committee report was not adequate to permit members of the public, including the property owner, to prepare an intelligent or reasoned response to the reports in the context of the zoning amendment. The Court characterized the issue as being “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.” The Court of Appeal held that it was not necessary to find actual prejudice where the local government failed to fulfill the requirements of procedural fairness.
The decision raises some troubling practical questions for decision makers and staff. Obviously, in an ideal world, everyone would know what documentation was going to be relied upon by the elected officials in their consideration of a zoning amendment. Court hearings, where the receipt of evidence is highly formalized and structured, do not have this problem as the parties appearing before the court must file or present evidence to the court in accordance with precise and highly structured rules. Such formal rules have never been part of the public hearing process for rezoning applications. However, our Court of Appeal here is suggesting that the decision makers may put their decision at risk if they rely upon material that has not been properly disclosed as being relevant to their decision.
If decision makers are bound to consider only the material that has been included in the public hearing binder, then they may be forced to make rezoning decisions based on an incomplete factual and policy basis, which is not conducive to the creation of good policy choices and which ignores the role of elected officials who are chosen from within their community and have broad general information about their communities based on their experience.
The alternative, of course, would be to refer a matter back to public hearing where the elected official concludes that it is only rational and sensible for him or her to rely upon a report, even where the report is in the public domain, is known to the party most seriously affected by the rezoning application and the contents of which have even been addressed in the course of the public hearing submissions.
Do decision makers have to advise, in advance, what materials they are intending to rely upon? Obviously this is troubling in that it presupposes that the decision makers form a preliminary opinion regarding their final decision, even before the public hearing, which would of course expose them to charges of bias. Even more unsettling is the notion that local government staff, who are not the decision makers, be tasked with putting together a list of documents and reports that the decision makers are in fact going to rely upon. As they are not the decision makers themselves, there is always some presumption attached to this decision-making.
The decision in the Fisher Road case makes it more important for staff to be clear and accurate about identifying documents that are likely to be material to the ultimate rezoning decision, even if such documents may not, strictly speaking, be part of the zoning process. It also potentially requires staff to not only think “laterally” to similar applications being processed by the local government, but also to “think back” to recent local government dealings with the property in case decisions regarding land use might be affected by the memory of the elected officials on previous dealings with the property.
What is clear is that the complexity of the public hearing process continues to increase. The Court of Appeal decision in Fisher Road will make it very difficult to argue that a lack of prejudice to the public or a property owner is sufficient to permit a court to overlook an apparent procedural or disclosure misstep.
