Decisions and Reconsiderations
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What Can Happen After a Decision
Once an applicant has received a decision from the ALC, whether it is a refusal, approval or partial approval, there are often further possible options or required actions for the applicant.
Refusals
If an application is refused, the applicant has the option to submit a request for reconsideration provided that the request is consistent with s. 33 of the ALC Act. More information on reconsideration requests can be found in Reconsideration of Decisions Requested by an Affected Person section below.
Approvals and Partial Approvals
If the Commission approves an application or a portion of the proposal, there may be other government bodies with jurisdiction over the land which must give approval before the proposed use and/or subdivision can be finalized. For this reason the ALC recommends that the applicants contact their local government subsequent to receiving an approval to determine if other approvals are required in order to proceed.
In addition to local government, the following is a list of agencies that may have other requirements prior to proceeding with a proposal subsequent to ALC approval:
Conditions of Approval
If the Commission approves an application or a portion of the proposal, there are often conditions associated with the approvals which must be satisfied before the proposal can be finalized. When there are conditions accompanying an approval they must be read carefully and followed accordingly. Confirmation of the completion of conditions is required before the ALC will sign off on a subdivision plan, inclusion, exclusion, or give final authorization for a non-farm use. The following are common conditions of approval with brief explanations of the rationale behind why the ALC may have required them in its decision. Please note that this list, as well as the rationale, is not exhaustive and is meant to provide a basic understanding and of some common conditions.
ALC Conditions of Approval
| Condition | Rationale |
|---|---|
| Subdivision plan | The ALC must authorize deposit of subdivision plans to the Registrar of Land Titles. A subdivision plan may be required for approved subdivision, exclusion, or inclusion applications. Subdivision plans can be forwarded to the ALC electronically or in hard copy. If paper copies of the subdivision are submitted, the Commission requires two copies. |
| Substantial compliance | Substantial compliance is often specified to ensure that final survey plans reflect the decision of the ALC. If any variations are required this is something that must be discussed with the ALC before submitting a final plan. |
| Fencing | Fencing may be required where the ALC believes that it is important to define a residential or commercial parcel from surrounding agricultural land. Fencing may or may not be required to be maintained via a covenant so that future land owners are aware of the obligation for maintaining the fence. Photographic proof of the fence may also be required prior to the ALC confirming condition compliance. See Landscape Buffer Specifications |
| Vegetative buffer | The planting and maintenance of vegetative buffers may be required for the purpose of buffering the farm from non-farm activities. Buffers may or may not be required to be maintained via a covenant so that future land owners are aware of the obligation for maintaining the buffer area. See Landscape Buffer Specifications |
| Time Limit | Time limits may be imposed to ensure completion of approvals within the current context of the ALC and local government legislation. If an approval is nearing expiration, an applicant may request an extension. The extension request may or may not be granted depending on the individual circumstance causing the delay in completion. In addition, a decision may approve a use of land for a specific period of time after which the approval expires and the use must cease. |
| Compliance with the Homesite Severance Policy | If a subdivision is approved in accordance with the ALC Homesite Severance Policy the applicant must provide documentary evidence showing a legitimate intention to sell the remainder of the property, and a written commitment that the Homesite is not to be resold for five years except in the case of estate settlements. Proof of compliance must be satisfied prior to the ALC authorizing a subdivision plan for deposit with the Registrar of Land Titles. See Policy #11: Homesite Severance Policy |
| Covenant | The registration of a covenant may be required to ensure that agreements made by the current applicant are honoured by future land owners. Covenants may be required for vegetative buffers, fencing, restriction of buildings, restriction of sale, binding of titles, etc. |
| Sole benefit | An approval for non-farm use may be granted for the sole benefit of the applicant and not transferable to other operators or future land owners to provide for removal of the non-farm use from the property. |
| Financial Security | An Irrevocable Letter of Credit may be required to ensure compliance with conditions of a decision. An irrevocable letter of credit is held by the ALC until it is satisfied that all conditions have been met. Financial security is most commonly required for applications which require remediation of land, such as placement of fill or extraction of soil and non-farm uses. |
| Soils | Approvals for soil related applications often have conditions which are in place to ensure that the land under proposal is not adversely impacted for agricultural use including but not limited to pre and post-site assessments, supervision by a qualified professional, annual reports, financial security, closure report, etc. |
Condition Compliance
If an applicant proceeds without satisfying all of the conditions, does not comply with the conditions, or if a decision expires, the ALC has a Compliance and Enforcement Department which will investigate steps to bring the issue into compliance. However, if compliance does not work the ALC may have to resort to enforcement options.
Reconsideration of Decisions Requested by an Affected Person pursuant to s. 33 of the Agricultural Land Commission Act
Regardless of whether an application is refused or approved, the Commission on its own initiative or upon the written request of a person affected by a decision may reconsider its decision pursuant to s. 33 of the ALC Act.
For the purpose of s. 33 of the ALC Act, a person affected, means any of the following, as per ALC Policy P-08 Request for Reconsideration:
- an applicant, that is a person who makes an application;
- a local government;
- a first nation government;
- an owner of the land;
- a person who is the owner or tenant of land;
- that shares a common boundary with the land that is the subject of the reconsideration, or
- that is separated from the land that is the subject of the reconsideration by a public road right of way, or
- that is, in the opinion of the Commission, otherwise in the immediate vicinity of the land that is the subject of the reconsideration;
- such other persons that, in the opinion of the Commission, have a personal interest not a mere public interest in the subject of the original decision. A “public interest” is an interest that a person has as a member of the public at large or a large class of persons, such as taxpayers, who will not be affected differently than any other member of the public or class of persons.
Reconsideration Request Criteria
On the written request of a person affected by a decision, or on a Commission’s own initiative, the Commission may reconsider it’s decision and may confirm, reverse or vary the decision, if certain tests are met.
For ALC decisions made prior to March 12, 2020, the date Bill 15-2019 was brought into force and effect changing the reconsideration process, the Commission can only reconsider if the original decision-making body (i.e. Executive Committee or Panel) determines, pursuant to s. 33(1) of the ALC Act, as it read prior March 12, 2020 (the date Bill 15-2019 came into force and effect) that:
- evidence not available at the time of the original decision has become available, OR
- all or part of the original decision was based on evidence that was in error or was false
For all decisions made prior to March 12, 2020, a person affected by a decision will have up to one year from the release of the decision to submit a request for reconsideration, as established by ALC Policy P-08 Request for Reconsideration.
If the decision-making body (Executive Committee or Panel) determines a request for reconsideration meets the criteria in s. 33(1) of the ALC Act as it read before March 12th, 2020, then:
- the commission must give notice of its intention to reconsider a decision to the affected local government and any person that the commission considers is affected by the reconsideration;
- the decision makers must apply s. 6(2) of the ALC Act when reconsidering the original decision in accordance with s.39(3)(a) of the Transitional Provisions in Bill 15 – 2019.
For ALC decisions made after March 12, 2020, the date Bill 15-2019 was brought into force and effect changing the reconsideration process, the Commission can only reconsider if the original decision-making body (i.e. Executive Committee or Panel) determines, pursuant to s. 33(2) of the ALC Act, as set out in Bill 15-2019, that:
- New evidence has become available that was not available at the time of the original decision that could not have been obtained earlier through the exercise of due diligence; ALC Act: s. 33(2)(c)(i); or
- Evidence demonstrating that either all or part of the original decision was based on evidence that was incorrect or was false; ALC Act: s. 33(2)(c)(ii).
While Bill 15-2019 contemplates a new 90-day time limit for the submission of a request for reconsideration once a decision has been released, implementation of Bill 15-2019 is being phased in and this condition will take effect at a later date to be determined by the Provincial Government. As a result, an affected person will have up to one year as established by ALC Policy P-08 Request for Reconsideration, or until section 33(2)(a) in Bill 15-2019 takes effect, whichever comes sooner, to request a reconsideration.
Section 33 Reconsideration Request Process
- The applicant, agent, or affected person submits a written request (mail or email) for reconsideration within the prescribed time period (set out above) providing evidence or information to support the request as set out in Section 33 of the ALC Act.
- The reconsideration request and related application file material is provided to the original decision-making body in advance of its consideration.
- The original decision-making body will review the reconsideration request and file material to determine whether or not the request meets the criteria for reconsideration outlined in s. 33 of the ALC Act:
- If it is determined that the request does not meet the criteria in s. 33 of the ALC Act, the request proceeds no further and the affected person(s) will be notified.
- If it is determined that the request does meet the criteria in s. 33 of the ALC Act, the original decision-making body must then determine if there are any other persons affected by reconsidering the application.
- If the decision-making body (Executive Committee or Panel) determines a request for reconsideration meets the criteria in s. 33 of the ALC Act then the Commission must give notice of its intention to reconsider a decision to the affected local government and any person that the Commission considers is affected by the reconsideration.
Upon reconsidering an application, the original decision-making body (i.e. the Executive Committee or Panel) may confirm, reverse, or vary a decision.
Reconsideration of Decisions as Directed by the ALC Chair pursuant to s. 33.1 of the Agricultural Land Commission Act
Regardless of whether an application is refused or approved, the ALC Chair may direct the Executive Committee to reconsider an application decision made by a Panel pursuant to s. 33.1 of the ALC Act if the Chair considers the decision or the reconsideration of the decision:
(i) may not fulfill the purposes of the commission as set out in section 6(1), or
(ii) fails to give priority to the matters referred to in section 6(2), and,
The Chair is given 60 days to review a decision once released and direct the Executive Committee to reconsider the application. At the Chair’s direction, the Executive Committee must review the application and then confirm, reverse, or vary the decision. If the Chair of the Commission directs the Executive Committee to reconsider a decision under subsection (1), the Chair must give notice of the reconsideration to any person that the Chair considers is affected by the reconsideration.
The purpose of s. 33.1(2) is to provide the Chair with oversight to ensure consistency of decision making in accordance with Section 6 of the ALC Act.