Power to Revoke Development Permit Must Be Exercised Fairly: Important Precedent Set in Landry v SDAB of Rocky View County

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April 2, 2025

Drone photo overlooking a residential development

The Subdivision and Development Appeal Boards (SDABs) in Alberta hears appeals of decisions made by the City of Calgary’s Subdivision Authority and Development Authority. The SDABs have broad authority on appeals concerning development permits. An SDAB has the power to confirm, revoke, or vary a development permit, or it can make a substitute permit of its own—and they are not restricted to considering only those matters raised on appeal.

In a recent land development case, the Alberta Court of Appeal concluded that the broad discretion enjoyed by such boards is not boundless. Procedural fairness principles constrain the SDABs’ authority. Where the SDAB chooses to consider issues not raised by the parties, the parties must be provided with reasonable notice of these issues and have the opportunity to respond.

Purchase of Land in Rocky View County, Alberta

The land development case in question, Landry v. Rocky View County (Subdivision and Development Appeal Board), 2025 ABCA 34, arose regarding land purchased in Rocky View County between the Town of Irricana and the Village of Beiseker.

The irregularly shaped parcel of land was zoned Agricultural, General. The north of the parcel was bordered by an open, undeveloped government road allowance requiring any development to be set back 45 metres (the “side yard setback.”) The south was bordered by a Canadian National Railway (“CNR”) right of way.

Development Permit Granted

The Appellant dreamed of building a residence on the land and retiring there. She applied for a discretionary use development permit and relaxation of the side yard setback to build her residence in the middle of the parcel. In response to her development application, CNR recommended to the Development Authority that there be a minimum setback of 30 meters from the railway and that a 6′ chain link fence be constructed along the length of the southern property line to mitigate safety concerns.

The Development Authority varied the side yard setback from 45 meters to 3 metres. It approved the development permit on the conditions that Ms. Landry (1) submit a revised plan showing a 30-metre setback between her proposed residence and the CNR right of way, and (2) construct the chain link fence parallel to the CNR right of way.

Development Permit Revoked by Appeal Board

Ms. Landry appealed both conditions on the development permit to the Subdivision and Development Appeal Board of Rocky View County (the “Board”). Her position was that a 30-metre setback would drastically reduce the scope of her usable property and that neither the setback nor the fence were necessary given the land’s rural location.

In its decision, the Board reversed the Development Authority’s decision to relax the side yard setback and the development permit previously issued to her.

Court of Appeal Finds Duty of Procedural Fairness Breached

Carbert Waite LLP’s partner Curtis Marble and associate Lauren Garvie successfully appealed the SDAB’s decision to deny the development permit. The Alberta Court of Appeal quashed the Board’s decision and remitted it to the Board for a rehearing.

The unanimous Court clarified important principles governing the scope of an SDAB’s discretionary powers on hearing a development permit appeal:

It is settled law that an appeal before an SDAB is a de novo hearing. No deference is owed to the development authority, and an SDAB may make whatever decision is appropriate on the merits.
Section 687(3)(c) of the Municipal Government Act is unambiguous. It confers broad jurisdiction to the SDAB hearing the appeal. A board “may confirm, revoke or vary the order, decision or development permit or any condition attached to any of them or make or substitute an order, decision or permit of its own”.
The statutory jurisdiction of a board to conduct a de novo hearing on appeal allows it to determine all matters afresh, including matters not raised on appeal.

Taken together, there was no question that the Board had the authority to revoke the development permit issued to Ms. Landry. The Board was not limited to considering only those issues raised on appeal by Ms. Landry. It had the jurisdiction to consider the development permit for Ms. Landry’s proposed discretionary use in its entirety and re-exercise afresh all the discretionary powers of the Development Authority.

However, the Board erred in exercising its jurisdiction in a manner that breached the principles of procedural fairness. The mere fact that Alberta’s Municipal Government Act contemplates a de novo hearing before the Board does not mean appeal participants face an “anything goes” predicament. The right to a fair hearing is an independent, unqualified right which is grounded in procedural justice which any person affected by an administrative decision is entitled to.

The Board breached the principles of procedural fairness by failing to give Ms. Landry reasonable notice that it was considering revoking in its entirety the development permit issued to her. Appellants and other interested parties are “not expected to be mind readers” (at para. 37). The Board never alerted Ms. Landry to the fact that it had concerns with the side yard variance granted by the Development Authority, or that it would revoke the development permit if Ms. Landry did not provide a proposal for the location of her home that complied with both setbacks. The failure to provide reasonable notice deprived Ms. Landry of the opportunity to address the Board’s concerns.

Key Takeaways for Developers and Construction Litigation Lawyers

When conducting a de novo appeal hearing, an SDAB has the authority to consider the matter afresh. It can address aspects of the development permit not raised on appeal. Still, it must comply with principles of procedural fairness. The SDAB must provide notice of concerns to appeal participants and to provide them with an opportunity to respond.

This key precedent regarding procedural fairness before an appeal board should provide a good measure of comfort to developers and property owners who may otherwise shy away from filing a notice of appeal out of fear that it could jeopardize the existence of an issued development permit.

If you have any Subdivision and Development Appeal Board matters that require assistance, reach out to our commercial litigation lawyers. Carbert Waite’s lawyers have the expertise and experience to assist with commercial, development, construction, and condominium disputes.