Introduction

[1] This is an application for permission to appeal. It is a difficult decision that is of great significance to the community – both the residents and the members and users of the Spruce Grove Gun Club.

Facts

[2] The applicant, Spruce Grove Gun Club (the Club), is a society incorporated under the Societies Act, RSA 2000 c S-14. It seeks permission to appeal a decision of the Subdivision and Development Board of Parkland County (the SDAB) dated October 23, 2015, which denied a development permit for the Club to operate a gun range and training facility on a site in Parkland County (the County). In making that decision, the SDAB overturned the development officer’s initial decision.

[3] The respondents are residents who live close to the Club.

[4] The Club’s facility constitutes several gun ranges (5 rifle ranges, 4 pistol ranges, 2 shotgun ranges) used for firearms training by law enforcement agents, military personnel and shooting enthusiasts. The Club has been a venue for sporting competitions. Most of the ranges are not enclosed, so shooting takes place outside.

[5] Under the Parkland County Land Use Bylaw 20-2009 (the Land Use Bylaw), the facility is categorized as “Indoor/Outdoor Recreation Services” and that is a discretionary use given the zoning of the site.

[6] The Club has operated under a series of time-limited development permits since the 1970s. At the expiration of each permit, the Club applied for a new permit.

[7] In August 2014, it applied for a new development permit. A development officer granted the permit until November 9, 2015 on certain conditions, some of which related to the noise and safety concerns of neighbours (the 2014 permit). The respondents in this application appealed the development permit because it did not adequately address their concerns.

[8] The SDAB confirmed issuance of the 2014 permit subject to the following conditions:

1. The Board finds that the gun range fits within the use class of Outdoor Participant Recreation Services, which is a discretionary use on the Site. It is also a use that is consistent with Parkland County’s Municipal Development Plan Recreation and Open Space Policy 8 and the land uses on Map 2 of the Atim Creek North Area Structure Plan. As the gun range is a discretionary use, the Board’s determination will focus on whether a gun range is an appropriate use for the Site. In this regard, the Board will consider matters such as compatibility with surrounding land uses and impacts on other properties in the surrounding area.

2. The Board acknowledges the concerns raised by property owners/residents in the area of the Site. Their concerns focussed primarily on safety and noise. With respect to safety, based on the evidence and on a balance of probabilities, the Board was not able to determine the origin of bullets that had been found on other properties in the vicinity of the Site nor was it able to evaluate the institution of a prohibition on steel core bullets starting in spring 2013. Regardless, the Board agrees that safety is of paramount concern and is a relevant consideration in determining whether a gun range is an appropriate use for the Site. The Board is of the view that if with the appropriate safety measures (and subject to addressing other concerns) a gun range is currently an appropriate use of this Site. However, the Board does not have the expertise to impose specific safety measures with respect to the design and operation of the gun range. These matters are best left to the Chief Firearms Officer of Alberta. In this regard, the Board notes that the Gun Club has an existing Official Shooting Range Approval from the Chief Firearms Officer for Alberta. It has also voluntarily banned steel core bullets from the gun range. Given that there are residences in the vicinity of the gun range and given the concerns raised by property owners/residents from the surrounding area, the Board is of the view that the gun range must undergo safety reviews on a regular and frequent basis and has imposed a condition to this effect. The Board also agrees that the prohibition against steel core bullets must remain in effect as it is not an appropriate use of the Site given the surrounding residences. In addition, the Board has reduced the term of the Development Permit to coincide with the expiry of the existing Official Shooting Range Approval to ensure that safety requirements continue to be met and satisfied on an ongoing basis. Further the Board has imposed a condition relating to supervision on long rifle ranges (which was proposed by the Gun Club).

3. With respect to noise, the Board is of the view that the appropriate standard for noise levels is found in the Parkland County Community Standards Bylaw 03-2012. On this point, the Board found the evidence to be inconclusive as to whether noise levels associated with the gun range exceed the noise level provisions of Parkland County Community Standards Bylaw 03-2012. In light of this, the Board has imposed conditions with respect to noise monitoring and noise levels that require the gun range to operate within the noise level provisions of Parkland County Community Standards Bylaw 03-2012. If it is necessary to take steps to reduce noise levels, it will be up to the Gun Club to implement appropriate noise mitigation measures. Although not the primary reason for it, the short term approval should assist in ensuring that the Gun Club takes the necessary steps to control noise levels. Lastly, as there are residences in the vicinity of the Site, the Board was of the view that it was appropriate to further reduce the hours of operation for weekends and holidays.

4. There did not appear to be much concern with respect to traffic. The evidence of the Gun Club supported the contention that the traffic associated with the gun range was not significant. Therefore, the Board did not see the need for a traffic impact assessment at this time.

5. In summary, with the conditions attached, based on the evidence before it, the Board is satisfied that a gun range currently is an appropriate use for the Site. Whether the gun range continues to be an appropriate use will be re-evaluated at the expiry of the term of the Development Permit. [Emphasis Added.]

[9] Before expiry of the 2014 permit, the Club applied in summer 2015 for a permanent development permit. By the time of its application, the Club had conducted noise impact studies in locations approved by the County, which showed that in each month tested, the noise levels complied with the Parkland County Community Standards Bylaw 03-201 (the Noise Bylaw); the Chief Firearms Officer had also carried out the safety inspection and approved the facility. In short, the Club had complied with all of the conditions in the 2014 development permit.

[10] A development officer granted the 2015 permit on conditions substantially the same as those in the 2014 permit. Then, over 100 residents, including the respondents, appealed that decision to the SDAB, mainly on the basis of noise and safety concerns.

[11] With respect to noise, several respondents submitted that the noise level standard and monitoring regime was inadequate. Some complained that the testing was inaccurate and gave their own evidence of noise levels at their residences. Various respondents emphasized that gun noise from the Club is unpredictable “impulse noise” and argued that the standard in the Noise Bylaw was inappropriate for such noise.

[12] In response, the Club submitted a study to rebut the claim that the gun noise from the Club at respondents’ residences exceeded the standard in the Noise Bylaw. Any gun noises louder than that level came from outside the facility.

[13] With respect to safety, some respondents said that they had seen or heard stray bullets from the site, although the last time anyone had reported a stray bullet was March 2013. The Club submitted that since the last report, it had implemented measures to prevent bullets escaping (such as installation of materials to prevent ricochets, installing high berms, limiting types of bullets, increasing supervision and restricting access to the site). As already noted, the Chief Firearms Officer certified that the Club complied with federal safety regulations. The Club submitted that if the respondents had recently seen or heard stray bullets, those had come from the use of firearms outside the Club.

SDAB Decision

[14] The SDAB denied the development permit, largely because of noise concerns. It found that:

the noise from the Club did comply with the Noise Bylaw (although there was conflicting evidence about whether the noise levels recorded by the Club’s engineer were the same as the levels at the respondents’ homes);

(although there was conflicting evidence about whether the noise levels recorded by the Club’s engineer were the same as the levels at the respondents’ homes); noise emanating from the Club had significant negative effects on many respondents (it interfered with certain respondents’ ability to study, entertain guests or spend time outside); and

the noise level specified in the Noise Bylaw did not take account of “impulse noise”.

[15] The SDAB reasoned that the Club’s proposed use was a discretionary use under the Land Use Bylaw and that it did not have to grant the permit sought. The SDAB noted that it was bound to consider the nature of the Club’s proposed use and whether it was compatible with the residential use of adjacent lands.

[16] After considering the noise issue, the SDAB found that compliance with the Noise Bylaw did not conclusively settle whether the Club’s operation was compatible with adjacent residential use. The relevant part of its reasons state:

Even though the levels may be lower than the Bylaws, this does not change the fact that the appellants are suffering an annoyance and disturbance arising from the noise coming from the Club. The evidence is that the annoyance and disturbance is not trivial or fleeting ... the noise occurs 7 days a week, often for long hours each day.

[17] The SDAB concluded that the impact of the noise emanating from the Club on its neighbours made operation of the Club incompatible with surrounding residential use and found that a sufficient reason to deny the development permit.

[18] It also denied that permit for an additional reason, namely, “while the probability of a stray bullet appears to be low, the impact of that risk is high”. Several respondents had limited the use of their residences because of concerns of this risk and that indicated that operation of the Club was incompatible with the nearby residential use.

Test for permission to appeal

[19] Section 688(3) of the Municipal Government Act (the MGA) provides for a three-part test for leave to appeal. A single judge of this Court may grant leave to appeal if all of the following criteria are satisfied:

(a) the appeal involves a question of law;

(b) of sufficient importance to merit a further appeal; and

(c) has a reasonable chance of success.

See, among others, Carleo Investments Ltd v Strathcona (County), 2014 ABCA 302 at para 6, [2014] AJ No 985; Kalinski v Cold Lake (City), 2015 ABCA 402 at para 4, [2015] AJ No 1391.

Grounds of appeal

[20] The Club seeks leave to appeal on the following grounds:

1. The SDAB denied the Club procedural fairness by creating a legitimate expectation that it would use the noise standards applied in the 2014 permit decision to decide the 2015 permit application.

2. The SDAB erred in law by making findings about matters, which it was estopped from reconsidering as a result of the 2014 permit decision.

3. The SDAB erred in law or jurisdiction by applying the incorrect standard to assess acceptable noise levels and safety concerns.

4. The SDAB erred in law or jurisdiction by finding that the Club was the source of noise and stray bullets complained against, which finding was not supported by the evidence.

5. The SDAB erred in law or jurisdiction in allowing the appeal against the grant of 2015 permit application.

Analysis

The first ground

[21] This ground alleges procedural unfairness by the SDAB, which is a question of law.

[22] The Club claims that the SDAB’s 2014 permit decision gave rise to a legitimate expectation that the SDAB would use the noise level specified in the Noise Bylaw to decide the 2015 permit application. Specifically, it argues that that the 2014 decision is, or involves, a representation that the same noise standard would govern the 2015 application; therefore, if the standard were complied with, the application would not be denied because of noise problems.

[23] The final part of the Club’s argument is that its legitimate expectation entitled it to receive: (1) notice that the SDAB might reconsider whether the appropriate level of gun noise was fixed by the standard in the Noise Bylaw; and (2) an opportunity to make representations about the suitability of that standard. It says that it received neither the notice, nor the opportunity.

[24] A legitimate expectation arises through conduct of an administrative body that indicates a decision will not be taken without certain procedures or (as in this case) that a certain criterion will be used to decide an issue. That conduct must be “clear, unambiguous and unqualified”: Mount Sinai Hospital Center v Quebec (Minister of Health and Social Services), 2001 SCC 41 at para 29, [2001] 2 SCR 281. In such cases, it is usually unfair for the administrative body to contravene their representations “without according significant procedural rights”: Baker v Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817 at para 26, 174 DLR (4th) 193. See also Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 SCR 249.

[25] I find that the Club’s legitimate expectation argument does not have a reasonable prospect of success.

[26] First, the requirement of a clear and unambiguous representation is not satisfied. The SDAB did not promise the Club that it would use the noise level in the Noise Bylaw to decide the 2015 permit application. Nor did the 2014 permit decision clearly represent that the SDAB would use that standard in the future. The 2014 permit was temporary, due to expire little more than a year after it was granted. The temporariness on its own indicates that the SDAB intended to be free to decide in the future whether the standard in the Noise Bylaw appropriately balanced the interests of the Club and the neighbours. The SDAB’s intention is made crystal clear in its 2014 permit decision that a re-evaluation will be conducted at the expiry of the temporary permit: see para 9 above.

[27] In other words, the 2014 decision was explicit that new evidence and new facts “on the ground” might make the standard in the Noise Bylaw unsuitable in the future. That is in fact what transpired when the SDAB heard the 2015 appeal.

[28] The fact that an administrative decision is temporary does not always stop a legitimate expectation from arising. For example, a regular practice of using some standard to decide a specific issue in a series of temporary decisions on the same facts could amount to a clear representation that the administrative body will decide the issue in the same way in the future: see generally, Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29 at para 146, [2003] 1 SCR 539; Attaran v University of British Columbia, 1998 CanLII 1577 at paras 62-63, 4 Admin LR (3d) 44.

[29] However, there is no evidence of a longstanding practice by the SDAB or the development authority of employing the noise level specified in the Noise Bylaw when issuing temporary development permits to the Club. The Club has received an almost unbroken string of development permits since the 1970s; but the evidence in the record before me is that the SDAB applied the Noise Bylaw standard only once, when it granted the 2014 permit. That is not sufficient to create a legitimate expectation about application of the Noise Bylaw standard in the future.

[30] Second, this proposed ground of appeal has no prospect of success because the Club received the procedural opportunities that its alleged legitimate expectation would have entitled it to receive. At least one of the appeal notices filed with the SDAB stated that requiring the Club to comply with the standard in the Noise Bylaw was not adequate to address the noise concerns of neighbours; a written brief submitted by one group of respondents elaborated on this. The Club received both documents well in advance of the hearing and had ample opportunity to respond to them at the SDAB appeal hearing.

[31] Given that circumstance, the Club’s complaint about procedural fairness comes to this: it received notice that the adequacy of the noise level in the Noise Bylaw would be a live issue in the appeal from the respondents, not the SDAB. Even if I assume (contrary to my finding above) that the Club had a legitimate expectation entitling it to receive notice from the SDAB, that appears to me to be a technical or formal defect which did not result in a substantial wrong to the Club. A panel of this Court hearing an appeal has a power under s 689(1) of the MGA to confirm a decision of the SDAB despite a technical or formal error and I would expect that power to be used if, technically, the SDAB should have been the source of the notice, rather than the other parties.

The second ground

[32] Under this ground, the Club argues that the 2014 permit decision created an issue estoppel, binding the SDAB to decide the compatibility of noise from Club with adjacent uses in the 2015 application, by applying the level stated in the Noise Bylaw. In the 2015 decision, the SDAB found as a fact that noise from the Club complied with the Noise Bylaw. The Club now argues that the SDAB was bound by issue estoppel to find that the noise level was compatible with adjacent uses.

[33] This argument is a legal variant of the legitimate expectation argument discussed above, although it has a different consequence. The Club argues that the SDAB erred by not using the Noise Bylaw to decide whether its and the neighbours’ uses were compatible, rather than by failing to afford certain procedural rights. In my view, it has essentially the same weakness as the first ground.

[34] The doctrine of issue estoppel applies to administrative bodies, such as the SDAB, whose functions are quasi-judicial: Danyluk v Ainsworth Technologies Inc, 2001 SCC 44 at paras 21-22, [2001] 2 SCR 460 [Danyluk]. There are four conditions to its application: (i) the decision said to create the estoppel was final; (ii) the same issue arises for decision again; (iii) the same parties are involved; (iv) it is fair and appropriate to apply issue estoppel: see Sihota v Edmonton (City), 2013 ABCA 43 at para 8, 542 AR 229; Danyluk at para 33.

[35] I find that the Club does not have a reasonable chance of establishing that these conditions are met.

[36] The SDAB’s 2014 decision on the suitability of the Noise Bylaw for assessing compatibility of the competing uses was not a “final” one, for two reasons: (a) it was a temporary decision and (b) the SDAB expressly reserved its right to reconsider whether the Club’s operation was an appropriate use at expiry of the 2014 permit. See Donald J Lange, The Doctrine of Res Judicata in Canada, 4th ed (Markham: LexisNexis, 2015) at 94: “A decision which expressly defers a question is not normally a final decision on the question for the purpose of issue estoppel”.

[37] In addition, it would be inappropriate to apply issue estoppel in this situation, so condition (iv) is not met. If the SDAB’s 2014 decision estopped it from using any other consideration (apart from the Noise Bylaw) to resolve the problem caused by noise coming from the Club, that would conflict with the principle that an administrative body cannot fetter its future discretionary decision making power: see Reference Re Canada Assistance Plan, [1991] 2 SCR 525, 1991 CanLII 74. The SDAB, and the development authority more widely, has a discretion under s 642(2) of the MGA as to whether to approve the use proposed by the Club in 2015. There appears to be nothing in the MGA to authorize the SDAB to limit, by its own prior 2014 decision, the range of relevant considerations it could take into account when exercising that discretion in 2015.

[38] One way of viewing the SDAB’s 2014 permit decision is that it imposed conditions to see if the conflict between the Club and the neighbours could be resolved. The noise conditions were, in a sense, an experiment with no guarantee of success. In the 2015 application, the SDAB received and accepted evidence that its attempted solution did not resolve the conflicts, so it refused to apply the same solution again. When the SDAB exercises a discretion, such as whether to approve the use proposed by the Club, it may use policy reasoning to reach its decision (albeit constrained by legal requirements such as relevance, good faith, non-discrimination and so on). Policies to solve a problem are often tentative and may turn out to be unsuccessful. This is what happened here between 2014 and 2015. Nothing in the legislative provisions governing the SDAB to act prevented it from admitting in 2015 that the solution it proposed in 2014 did not work and that new evidence showed that it did not reconcile the competing interests at stake. If an issue estoppel were created by the 2014 decision, its effect would be to force the SDAB to stick with a resolution that was tried and proved unsuccessful. That is why it is inappropriate to apply the doctrine of issue estoppel here.

[39] I am also bound by precedent to find that an issue estoppel does not arise on these facts. In Pattison Outdoor Advertising Ltd v Calgary (City), 2015 ABCA 317, [2015] AJ No 1127 [Pattison], a panel of this Court held that the SDAB was not barred by issue estoppel from refusing to issue a replacement development permit for a sign by the fact that it had previously granted temporary development permits for the same sign. The ratio of the decision is that a temporary development permit is not a “final” decision and that an application for a development permit after expiry of the temporary permit for the same use does not raise the “same issue”: see Pattison at paras 8-11.

[40] It does not matter that the appellant in Pattison claimed that the SDAB was estopped from deciding the development permit application differently the next year, whereas in this case the Club argues that the SDAB was estopped from deciding a narrower issue (not necessarily determinative of the entire application) differently the next year. In both situations, the SDAB’s prior decision was temporary. The Club did not offer a principled way of distinguishing Pattison on these facts, and I cannot see one.

[41] The Club does not have a reasonable prospect of succeeding on this ground.

The third ground

[42] Under this proposed ground, the Club submits that the “SDAB...created its own noise standard dealing with ‘impulse noise’ and is legislating a power which is ultra vires the SDAB”.

[43] The Club’s statement of this ground contains a factual inaccuracy. The SDAB did not apply a novel noise standard to determine whether the noise emanating from the Club caused incompatibility with neighbours’ uses. In the SDAB’s view, the Noise Bylaw was not a conclusive answer to whether the Club’s proposed use was compatible with neighbours’ uses but the SDAB did not substitute a noise standard or decibel level that it thought more appropriate.

[44] I understand that the Club’s proposed ground of appeal to really be that the SDAB was required to apply the standard from the Noise Bylaw in deciding whether the Club’s use was compatible with neighbours’ uses. The Noise Bylaw states a maximum noise level for any use in Parkland County, but no more. It does not purport to set a standard that the development authority, or the SDAB, must apply in exercising its discretion to approve a proposed use. In short, there is no “correct” standard, so there is no legal error in not applying a “correct” standard. It follows that this ground of appeal lacks a reasonable prospect of success.

[45] Clearly, the Club wants to appeal the SDAB’s exercise of discretion, but it has not identified an arguable error of law to this point. Even if the SDAB exercised its discretion unreasonably (about which I need not comment), that would not constitute an error of law enabling me to grant leave to appeal.

[46] I deny permission to appeal on this ground.

The fourth ground

[47] The remaining ground of appeal is that the SDAB found that the Club was the source of the gunshot noise causing distress and concern to neighbours. The Club alleges that there was no evidence to support this finding. A fact finding based on no evidence is an error of law or jurisdiction for the purpose of a permission to appeal application: see, for example, Karagic v Calgary (City), 2012 ABCA 309 at para 12, [2012] AJ No 1069; Mountain Creeks Ranch Inc v Yellowhead (County of) Subdivision and Development Appeal Board, 2004 ABCA 177 at para 14, [2004] AJ No 561.

[48] In this application, no one disputes that (a) gun noise emanates from the Club, frequently during its hours of operation (9:00 am to 9:00 pm on weekdays) or (b) that the noise from the Club did not exceed the Noise Bylaw limit.

[49] The Club challenges the factual finding that gun noise coming from the Club, which was below the Noise Bylaw limit, caused significant distress and loss of enjoyment to neighbours. It says that there was no evidence for the finding that gun noise from the Club was the cause of the distress.

[50] I have reviewed the record and I am satisfied that there was evidence of causation. For example:

between May and July 2015, 34 neighbours complained about noise coming the Club;

two respondents gave evidence that they only ever heard gunshots during the hours of operation of the Club, and another said the gun noise from the Club was “constant”; and

the great majority of the respondents testified that the gun noise diminished their enjoyment of their properties to some extent.

All of this is circumstantial evidence supporting gunshot sounds coming from the Club caused the neighbours’ distress.

[51] Since this is not a case of a complete absence of evidence for a fact finding, there is no error of law. All the Club can really say is that the SDAB’s finding on causation was wrong on the evidence but I cannot give permission to appeal on that ground.

The fifth ground

[52] This proposed ground is just an amalgam of the previous grounds. Since I have denied permission to appeal on those grounds, I also deny it on this ground.

Conclusion

[53] The Club’s application for permission to appeal the SDAB’s decision dated October 23, 2015 is dismissed.

Application heard on January 21, 2016

Reasons filed at Edmonton, Alberta

this 3rd day of February, 2016

Veldhuis J.A.





Appearances:

P.S. Jull, Q.C./S.C. Nagina/G.D. Heinrichs, Q.C.

for the Applicant

G.J. Stewart-Palmer

for the Respondent Parkland County Subdivision and Development Appeal Board

S.C. McNaughtan, Q.C.

for the Respondent Parkland County

K.L. Hurlburt

for the Respondents by Order D. DeGeer and N. DeGeer

A.M. Simmonds

for the Respondents by Order Jim Philpott, Cheryl Ball, Lee Santon, Jody Singer, Jeff Smith, Leanne Smith, Gordon Carter, Janet Carter, The Community Group represented by Cheryl Ball, Allan Gamble, Scott Bradley, Teresa Kessir, Jody Howshowski, Allen Lakeman, Rhonda Lakeman and Joel Babineau