Decision Date: November 2, 2015

Panel: Alan Andison

Keywords: Environmental Management Act – ss. 14, 100(1), 102(2), 103; Public Notification Regulation – ss. 2, 3; preliminary decision; application to strike grounds for appeal; jurisdiction; permit; air emissions; particulates

Geoffrey Nielsen, Thomas Coape-Arnold, and Kenneth Fiddes (the “Appellants”) filed a joint appeal against a permit that was issued to Pinnacle Renewable Energy Ltd. (“Pinnacle”) by the Director, Environmental Management Act (the “Director”), Ministry of Environment (the “Ministry”). The permit authorizes Pinnacle to discharge particulates to the air from a proposed wood pellet manufacturing plant to be located in Lavington, approximately 15 km east of Vernon, BC.

As a preliminary matter, Pinnacle applied to the Board for an order striking all or part of three grounds for appeal in the Appellants’ Notice of Appeal. Pinnacle submitted that those grounds relate to municipal zoning and the agricultural land reserve, and are beyond the Board’s jurisdiction in deciding the appeal.

The Board applied the test that it adopted in Cobble Hill Holdings Ltd. v. British Columbia (Director, Environmental Management Act), 84 C.E.L.R. (3d) 216, [2014] B.C.E.A. No. 1 (Q.L.), for deciding applications to strike. Specifically, the Board considered whether, on a generous reading of the Notice of Appeal, it is plain and obvious that the impugned grounds for appeal are beyond the Board’s jurisdiction. The Board considered the nature of its jurisdiction in relation to an appeal of a permit issued under section 14 of the Environmental Management Act (the “Act”). Section 14 provides that a “director may issue a permit authorizing the introduction of waste into the environment subject to requirements for the protection of the environment that the director considers advisable. The Board noted that the Act defines “environment” as meaning “air, land, water and all other external conditions or influences under which humans, animals and plants live or are developed.”

Regarding the grounds for appeal alleging that the facility would involve non-farm use of land in the agricultural reserve without authorization, the Board found that section 14 of the Act does not prohibit the issuance of a permit on the basis of land use restrictions. The Board found that matters related to the agricultural land reserve, and potential enforcement by the Agricultural Land Commission, are irrelevant when issuing a permit under section 14. The Board concluded that these grounds should be struck from the Notice of Appeal.

Regarding the ground for appeal that mentioned municipal zoning and bylaws, the Appellants clarified that their focus intends to be the public notification process provided for in the Public Notification Regulation under the Act. The Board concluded that this ground for appeal should not be struck from the Notice of Appeal.

Accordingly, Pinnacle’s application to strike was granted, in part.