In a British Columbia decision, a company’s environmental assessment certificate was revoked after the court found that it had not “substantially started” construction on the project within the 10-year deadline set out in the certificate.
Minister Revokes Certificate for Construction Delays
A company in British Columbia intended on developing a year-round ski resort.
In 2004, the company obtained the required environmental assessment certificate for the project. The certificate originally required the project to be substantially started within five years, but the deadline was extended for a further five years in 2009.
However, the company had encountered numerous difficulties, including zoning and other issues, that had hindered its progress. As of October 12, 2014, construction had proceeded on only certain aspects of the project.
Although the company had completed construction and preparatory work at the project site by the expiry date, it was not clear that it was sufficient to constitute a substantial start on construction of the project.
The Minister of Environment (the “Minister”) considered the matter and, on June 18, 2015, determined that the project had not been substantially started by the October 12, 2014 deadline. The Minister also considered the difficulties that the company referred to, but found that they were not pertinent to the question of whether the project had been “substantially started” by the deadline.
As a result, the Minister determined that the environmental assessment certificate had expired.
The company brought a judicial review application, seeking to quash the Minister’s determination, and also asking for an order compelling the Minister to reach the opposite conclusion.
The chambers judge found the Minister had failed to take into account a number of factors that resulted in delays in the development, which she described as “Mitigating/Limiting Factors”. She held that the Minister’s failure to give weight to those factors was unreasonable. The judge quashed the Minister’s determination and remitted the matter to the Minister of Environment for reconsideration.
The Minister appealed.
The company also cross-appealed, contending that the court should declare that the project was substantially started before the expiry of the certificate and should compel the Minister to reach that conclusion.
Court of Appeal Reinstates Minister’s Determination
The court explained that under legislation, a proponent is allowed to hold a certificate for up to ten years without making a substantial start on the project. After that time period, if the project has not been substantially started, the proponent is required to apply for a fresh certificate.
The court then commented:
“The chambers judge seems to have come to the conclusion that determining whether a project has been substantially started is really an inquiry into whether a proponent has made reasonable efforts to proceed with a project. The fact is, however, that proponents may fail to commence a project through no fault of their own: they may fail to secure financing; encounter landowners who are unexpectedly reluctant to sell their land or yield necessary rights; face municipalities that are not cooperative in allowing rezoning; or simply face public hostility. While we might sympathize with a proponent that has tried its best but failed to make a substantial start on a project, it does not change the fact that the statutory test has not been met.”
Ultimately, the court found that the Minister’s assessment thatwhat had been accomplished by the company was not a “substantial start” was a reasonable one. The court found that the construction that had been done was limited and was aimed at a development much more constrained than that contemplated by the environmental assessment certificate.
As a result, the court found that the Minister’s decision had been a reasonable one. The court therefore set aside the judge’s order and reinstated the Minister’s determination.
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