The recent case of English v. Richmond (City), 2020 BCSC 1642 provides clear direction for local governments who are regulating the production and cultivation of cannabis; specifically, the case articulates the limitations on their authority to prohibit certain forms of production pursuant to section 8 of the Agricultural Land Reserve Regulation 30/2019 (the “ALR Regulation”).
More generally, this case discusses circumstances where a court will quash a building permit decision and order mandamus.
The case was brought under the Judicial Review Procedure Act, RSBC 1996 c. 241 and concerned a decision by the City of Richmond (the “City”) to refuse a building permit to the plaintiff. The building permit application was submitted on May 6, 2019 to construct a soil-based greenhouse with the intention of cultivating cannabis. The subject property was both ALR land and zoned for agricultural use under the City’s zoning bylaw.
The building inspector refused the application on the grounds that, at the time of the application, the zoning bylaw did not permit the cultivation of cannabis inside structures constructed after July 13, 2018.
At issue was whether section 8(1)(b) of the ALR Regulation was inconsistent with the zoning bylaw’s prohibition of the cultivation of cannabis inside structures. Section 8(1)(b) provides that:
…the use of agricultural land for producing cannabis lawfully may not be prohibited…if the cannabis is produced inside a structure that … has a base consisting entirely of soil.
The standard of review applied by the court was reasonableness.
Interpretation of Section 8 of the ALR Regulation
The Court adopted a textual, contextual and purposive approach to interpret the scope of section 8. It considered statements from the Agricultural Land Commission at the time of the regulatory change to the ALR Regulation in June of 2019. The statements indicated that all forms of cannabis production are a “farm use” and that the ALR Regulation specifically allows local governments to prohibit cannabis production in certain forms.
The Court ultimately found that section 8 created a carve-out for three separate classes of cannabis production facilities that a municipality does not have the authority to prohibit which are:
- cannabis grown in outdoor fields;
- cannabis grown in structures with a soil-base; and
- cannabis grown in pre-existing structures or structures under construction prior to July 13, 2018.
It followed that the relevant provisions of the zoning bylaw, which prohibited the cultivation of medical and non-medical cannabis in all indoor structures, were inconsistent with section 8. As a result, the zoning bylaw was of no force or effect to the extent of the inconsistency.
Remedy for the Plaintiff
The Plaintiff sought an order of mandamus compelling the building inspector to issue the building permit.
The Court confirmed that there is authority that supports an order of mandamus requiring a municipality to issue a building permit that has been wrongfully withheld, and discussed the test for granting such an order.
The first two stages of the test require that a local government owe a legal duty to act and that there is a corresponding duty owed to the applicant: for instance, where a municipality has the public duty to issue building permits to applicants who conform to the requirements set by bylaw. The third factor considers conditions precedent that give rise to the duty, which in the present case was the building permit application process provided for and the subsequent refusal by the City.
The Court also noted the discretionary nature of the order as well as the ultimate “balance of convenience”. Importantly, the Court highlighted that an order of mandamus would be appropriate where there was no other adequate remedy available and no deficiency in the original permit application.
The Court found that the City had ample opportunity to review the application and remitting the matter back to the decision maker would just delay an inevitable outcome. As a result, the mandamus was ordered and the City was compelled to issue the building permit.
Takeaways for Local Governments
A local government is still permitted to regulate the cultivation of cannabis in some forms on agricultural lands. However, bylaws that do so will be of no force and effect if they attempt to prohibit the growth of cannabis in outdoor fields, structures with a soil base (as opposed to cement, for instance) or any structure that was being used or constructed for this purpose prior to July 13, 2018.
A court may also quash a building permit decision and grant an order of mandamus, which compels a local government to issue the refused building permit. Although the order is discretionary, in situations where the local government has relied exclusively on a bylaw provision that is of no force or effect and the application is otherwise free of deficiencies, the court will likely compel the issuance of the building permit.