2005BCSC0894

Before: The Honourable Madam Justice Gerow

Reasons for Judgment

Counsel for the Petitioner:	R.W. Grant R.M. Patryluk
Counsel for Respondent, Greater Vancouver Regional District:	M.K. Woodall I.M. Carter
The Respondent, Roger Emsley:	In Person
Dates and Place of Hearing:	May 30–June 2, 2005
	Vancouver, B.C.

[1] `Houweling Nurseries Ltd. (“Houweling”) operates commercial greenhouses in Delta, British Columbia. Since 1985, when it established the business, Houweling has used wood fired heaters to provide part of the heat required for the greenhouses. The Greater Vancouver Regional District (“GVRD”) has issued permits to Houweling since 1985 for the wood fired heaters under the Waste Management Act, R.S.B.C. 1996, c. 482 and its predecessor. In 2001 Houweling applied to the district director of the GVRD to amend its permit. The district director refused to amend the permit and Houweling appealed the district director’s decision to the Environmental Appeal Board (the “Board”). The Board declined to hear the appeal on the basis that it did not have jurisdiction. Houweling commenced a petition seeking orders that the Board’s decision that it did not have jurisdiction be set aside and directing the Board to hear the appeal. In the alternative, Houweling seeks declarations that the district director lacks jurisdiction to regulate wood fired heaters and that Houweling does not require a permit to operate its wood fired heaters; and that, if the district director had jurisdiction, her decision be set aside. Roger Emsley owns property near the greenhouses on which he and his wife operate a business boarding horses.

[2] The issues are:

1. Did the Board err in finding that it did not have jurisdiction to hear an appeal of the district director’s decision?

2. Does the GVRD have jurisdiction to regulate Houweling’s wood fired heaters? and

3. If the GVRD has jurisdiction to regulate the wood fired heaters, did the district director’s decision refusing to amend the permit violate administrative law principles?

[3] Houweling and the GVRD agree that if I find that the Board had jurisdiction to hear the appeal I need not decide issues two and three as those issues will be determined by the Board. The Board, the District of Delta and the Attorney General of B.C. were given notice of the hearing but did not attend or make any submissions regarding the issues raised in the petition. Mr. Emsley attended the first day of the hearing but did not make any submissions regarding the issues that were argued in the hearing.

BACKGROUND

[4] In 1985 Houweling acquired 92 acres of agricultural land in Delta and commenced the greenhouse operation. The original Delta operation consisted of six acres of greenhouse space. Currently, there are four greenhouse buildings with approximately 50 acres of greenhouse space. Houweling cultivates tomatoes, cucumbers, bell peppers and other fruits, vegetables and plants in the greenhouses.

[5] The greenhouses are heated to maintain the warm temperatures necessary for successful plant growth. At present there are three wood fired heaters and six natural gas fired heaters, operating as needed, to supply heat to the greenhouse complex.

HISTORY OF THE PERMIT

[6] All of the wood fired heaters used by Houweling were originally installed and operated under permits issued by the GVRD.

[7] In September 1985, the GVRD granted Houweling a permit to discharge air contaminants from its wood fire heaters. Section 24 of the Waste Management Act gives the GVRD the power to prohibit, regulate or otherwise control and prevent the discharge of air contaminants. The permit issued to Houweling imposed certain restrictions to limit and specify the characteristics of the air contaminants that could be discharged from the heaters, including an allowable maximum particulate concentration and opacity.

[8] Houweling expanded its greenhouse operation between 1985 and 1990 adding three wood fired heaters and one natural gas fired heater. Houweling obtained permit amendments from the GVRD each time a new heater was added to the operations. Further expansions after 1990 included the installation of additional natural gas heaters.

[9] In August 1995 Houweling applied for an amended permit to install and operate a new natural gas fired heater and to increase the hours of operation of the wood fired heaters. In October 1997 the GVRD issued an amended permit to Houweling which required Houweling to cease using its wood fired heaters by December 1999. In May 1999 Houweling obtained an extension of the deadline to March 31, 2000.

[10] In 2001 Houweling applied for an amendment to its permit to allow it to use wood fired, natural gas fired and oil fired heaters. The application proposed using four wood fire heaters with multiclones and a common electrostatic precipitator for particulate removal, as well as natural gas/fuel oil fired heaters. In December 2002 the district director of the GVRD refused Houweling’s application for an amendment to the permit.

[11] Houweling appealed the district director’s decision to the Board. In April 2004 the Board held that it did not have jurisdiction to hear the appeal because neither the refusal to amend a permit nor the refusal of an amended permit was an appealable decision within the meaning of ss. 43 and 44 of the Waste Management Act.

DOES THE ENVIRONMENTAL APPEAL BOARD HAVE JURISDICTION TO HEAR AN APPEAL FROM A REFUSAL TO AMEND A PERMIT?

[12] The relevant sections of the Waste Management Act are:

Part 7 — Appeals

Definition of "decision"

43 For the purpose of this Part, "decision" means

(a) the making of an order,

(b) the imposition of a requirement,

(d) the issue, amendment, renewal, suspension, refusal or cancellation of a permit, approval or operational certificate, and

(e) the inclusion in any order, permit, approval or operational certificate of any requirement or condition.

Appeals to Environmental Appeal Board

44 (1) Subject to this Part, a person aggrieved by a decision of a manager, director or district director may appeal the decision to the appeal board.

(2) Nothing in this section is to be construed as applying in respect of a decision made by the minister under this Act or by the Lieutenant Governor in Council.

[13] Houweling asserts that it has a right of appeal from the district director’s decision to the Board pursuant to ss. 43(d) and 44(1). In its decision the Board held that it had jurisdiction to hear appeals of decisions involving the issuance of a permit, the amendment of a permit and the refusal of a permit, but not an appeal from a refusal to amend a permit or a refusal of an amended permit: Houweling Nurseries Ltd. v. District Director of the Greater Vancouver Regional District, Roger Emsley and the Corporation of Delta, E.A.B. No. 2002-WAS-025 (a) and No. 2003-WAS-004(a).

[14] Houweling submits that the Board erred by adopting a narrow and restrictive approach to the interpretation of s. 43(d) and by reading each word of the subsection in isolation. In its decision the Board stated that s. 43(d) did not refer to a refusal “to amend” a permit or a refusal of “an amended permit” as an appealable decision. The Board agreed with the district director that the Legislature intended to distinguish between the issuance of a “permit” under s. 10 and the act of amending a permit under s. 13 of the Waste Management Act, and that if the Legislature had intended the Board to hear appeals of refusals to amend permits or refusals of amended permits it would have expressly included the words in s. 43(d). As a result, the Board held that it did not have jurisdiction to hear an appeal involving the refusal to amend a permit or the refusal of an amended permit.

[15] Houweling argues that the Board’s interpretation of ss. 43 and 44 of the Waste Management Act is not in keeping with the accepted approach to statutory interpretation in which the words of an act are to be read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the act, the intention of the act and the intention of the Legislature.

[16] The GVRD asserts that the plain meaning of the words should prevail and that the Board’s decision is based on the plain meanings of the words. The GVRD submits there is a clear distinction between s. 10 of the Waste Management Act which sets out the manager’s authority to issue a permit and s. 13 which sets out the manager’s authority to amend a permit.

Standard of Review

[17] The starting point is to determine the standard of review of a decision of the Board on the scope of its jurisdiction. Both Houweling and the GVRD submit that the appropriate standard of review of decisions of the Board involving the jurisdiction of the Board under ss. 43 and 44 of the Waste Management Act is correctness.

[18] In order to determine the appropriate standard of review a pragmatic and functional analysis is to be undertaken. The reviewing judge must consider four contextual factors that may overlap:

1. the presence or absence of a privative clause or statutory right of appeal;

2. the expertise of the tribunal relative to that of the reviewing court on the issue in question;

3. the purpose of the act and the particular purpose of the provision in issue; and,

4. the nature of the question – law, fact or mixed law and fact.

Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at ¶ 21 and 26.

[19] There is no privative clause or statutory right of appeal in the Waste Management Act. A statute which has no privative clause or statutory right of appeal does not imply a high level of scrutiny or deference: Dr. Q. at ¶ 27.

[20] In evaluating the second factor, the court is to consider the expertise of the board and the court’s expertise relative to the tribunal on the issue in question. The issue is whether the Board erred in determining it did not have jurisdiction to hear an appeal of the district director’s decision because it was not a decision as defined by s. 43(d) of the Waste Management Act. The determination of the issue involves statutory interpretation and is a question of law. The Board’s expertise is not engaged in questions of law. The courts have more expertise than the Board in considering issues of statutory interpretation. The second factor suggests that the appropriate standard of review is correctness.

[21] In evaluating the third factor there is an overlap between the relative expertise and the legislative purpose. A purpose that deviates substantially from the normal role of the courts indicates an legislative intention to leave the issue with the tribunal, whereas a statutory provision whose essence is to resolve disputes or determine rights between two parties will demand less deference: Dr. Q. at ¶ 31 and 32. The purpose of the Waste Management Act is to balance interests between parties regarding environmental issues, including the emission of air contaminants from commercial operations. However, the question before the Board is the proper interpretation of s. 43(d) and does not engage the Board’s scientific, technical or specialized expertise in the area of environmental control.

[22] The fourth factor is the nature of the problem, i.e. whether it is one of fact or law or mixed fact and law. More deference is given if the issue is one of fact or mixed fact and law, which is fact intensive, than is given if the issue is one of law. The issue of whether the definition of decision in s. 43(d) includes the refusal of an amendment to a permit or the refusal of an amended permit is a question of law.

[23] A balancing of the four factors suggests that the appropriate standard of review in assessing the Board’s decision regarding whether it had jurisdiction to hear the appeal is correctness.

[24] This conclusion is consistent with two recent cases in which the standard of review of decisions of the Board was considered: Beazer East, Inc. v. British Columbia (Environmental Appeal Board) (2000), 84 B.C.L.R. (3d) 88 (S.C.), [2000] B.C.J. No. 2358 (S.C.) and Wier v. British Columbia (Environmental Appeal Board) (2003), 19 B.C.L.R. (4th) 178 (S.C.), [2003] B.C.J. No. 2221 (S.C.).

[25] This conclusion is also consistent with the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”). Although the ATA is not applicable as the Waste Management Act does not include any reference to the ATA, as is required, to the extent the ATA is of assistance in determining legislative intention, s. 59(1) provides: “In a judicial review proceeding, the standard of review to be applied to a decision of the tribunal is correctness for all questions except those respecting the exercise of discretion, findings of fact and the application of the common law rules of natural justice and procedural fairness.”

Principles of Statutory Interpretation

[26] The accepted approach to statutory interpretation is that the words of an act are to be read in context and in their grammatical and ordinary sense, keeping in mind the scheme and object of the act and the intention of the Legislature: Will-Kare Paving & Contracting Ltd. v. Canada, [2000] 1 S.C.R. 915; Haida Nation v. British Columbia (Minister of Forests) (1997), 45 B.C.L.R. (3d) 80 (C.A.) at p. 87; Beazer at ¶ 67.

[27] The Interpretation Act, R.S.B.C. 1996, c. 238, s. 8 provides: “Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”

[28] The purpose of the legislation is relevant to the interpretation of a provision but does not override the plain meaning of the words unless the words would defeat the purpose of the statute. If the words are ambiguous, in that they are capable of more than one meaning, or the provision is incompatible with or contradicts other provisions in the act, the court may depart from the plain meaning of the words in issue: Beazer at ¶ 68 quoting from Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994) at p. 88 and Westminster Bank Ltd. v. Zang, [1966] 1 All E.R. 114 (H.L.).

The Provisions of the Waste Management Act

[29] The object of the Waste Management Act is to prevent the introduction of waste into the environment, including the control of the emission of air contaminants from commercial operations. The provisions of the Waste Management Act must be given a fair, large and liberal interpretation to achieve this object, keeping in mind that it is necessary to give effect to the wording chosen by the Legislature.

[30] Section 43(d) is included in Part 7 of the Waste Management Act entitled Appeals. Section 46(2) gives the Board the option of conducting an appeal by way of a new hearing with new evidence. The powers of the Board in deciding an appeal are set out in s. 47 which provides:

On an appeal, the appeal board may

(a) send the matter back to the person who made the decision, with directions,

(b) confirm, reverse or vary the decision being appealed, or

(c) make any decision that the person whose decision is appealed could have made, and that the board considers appropriate in the circumstances.

[31] Houweling asserts that it is reasonable to infer from the broad powers given to the Board in the appeal provisions that the Legislature intended to provide a speedier, less formal and more convenient procedure for challenging decisions of the district director than proceeding by way of judicial review. Houweling argues that the legislative intention must be considered when interpreting ss. 43 and 44 of the Waste Management Act.

[32] The first three subsections of s. 43 define “decision” as positive acts of the district director in (a) making an order; (b) imposing a requirement; and (c) exercising a power.

[33] The subsections were considered in Imperial Oil Limited v. British Columbia (Ministry of Water, Land and Air Protection) (2002), 98 B.C.L.R. (3d) 360, [2000] B.C.J. No. 295 (S.C.). Ross J. agreed with the analysis of the Board in McPhee v. British Columbia (Ministry of Environment, Lands and Parks), [1995] B.C.E.A. 52 (B.C.E.A.B.) that the meaning of the acts referred to in s. 43 is to be found in the provisions of the Act. In Imperial Oil there were no provisions in the Waste Management Act which contemplated or authorized the action taken by the decision maker, and therefore, the court concluded that the decision was not subject to an appeal to the Board, but was subject to judicial review under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

[34] In McPhee the Board considered whether the refusal to make an order was an appealable decision under s. 25(b) (now s. 43(b)) of the Waste Management Act. In interpreting s. 25(b) the Board considered subsections (a), (b) and (c) and noted that each of the subsections refers to an action by the manager. The Board said that the same could be said for subsections (d) and (e) in that each of those subsections captures the decisions made by a manager when issuing or amending permits, approvals and operational certificates. The Board commented that the only subsection that contemplates permitting an appeal of a refusal to act is s. 25(d), but that subsection only applied to permits, approvals or operational certificates, not to orders. Given that (d) did not apply to orders it was unnecessary for the Board to deal with it. The Board held that s. 25(b) refers to a positive act, i.e. exercising a power, as an appealable decision, and did not include a refusal to make a decision on the issuance of pollution abatement order. Therefore the applicant did not have a right of an appeal to the Board under s. 25.

[35] Neither McPhee nor Imperial Oil dealt directly with s. 43(d) which differs from the other subsections of s. 43 in that it expressly includes within the definition of decision a “refusal” to act.

[36] The GVRD argues that the scope of s. 43(d) is plain from a reading of the words and that while a refusal to grant a permit is an appealable decision, the refusal to grant an amendment to a permit or grant an amended permit is not an appealable decision. In support of its position the GVRD points to the definition of “permit” contained in s. 1 as: "permit" means a permit issued under s.10 or under the regulations.

[37] Section 10 of the Waste Management Act provides:

(1) A manager may issue a permit to introduce waste into the environment, to store special waste or to treat or recycle special waste subject to requirements for the protection of the environment that the manager considers advisable and, without limiting that power, may in the permit do one or more of the following:

(a) require the permittee to repair, alter, remove, improve or add to works or to construct new works and to submit plans and specifications for works specified in the permit;

(b) require the permittee to give security in the amount and form and subject to conditions the manager specifies;

(c) require the permittee to monitor in the way specified by the manager the waste, the method of handling, treating, transporting, discharging and storing the waste and the places and things that the manager considers will be affected by the discharge of the waste or the handling, treatment, transportation or storage of the waste;

(d) require the permittee to conduct studies and to report information specified by the manager in the manner specified by the manager;

e) specify procedures or requirements respecting the handling, treatment, transportation, discharge or storage of waste that the permittee must fulfill;

(f) require the permittee to recycle certain wastes, and to recover certain reusable resources, including energy potential from wastes.

(2) A permit does not authorize the introduction of special waste into the environment unless it specifies the characteristics and quantity of special waste that may be introduced.

[38] Section 13 provides for the amendment of permits and approvals either on the manager’s own initiative or on application by a holder of a permit or an approval. Section 13(4) lists a number of specific powers which the manager has to amend a permit or approval, including (d) extending or reducing the term of the permit or approval or renewing it.

[39] The GVRD asserts that if the Legislature had intended to allow appeals from refusals to amend permits or refusals of amended permits it would have done so in clear language. By providing a more detailed definition of decision in the Waste Management Act, it is reasonable to infer that the Legislature was attempting to narrow the categories or types of decisions from which it could provide a right of an appeal. The GVRD submits that the Legislature intended to distinguish between a permit under s. 10 and an amended permit under s. 13.

[40] The GVRD says there are strong policy reasons for the interpretation of s. 43 articulated by the Board, which are the principle of finality and preventing abuse of the appeal process. The GVRD asserts that the section allows an appeal if there are changes to the status quo, such as issuing a permit or changes to the permit after it has been issued. Applications for amendments that are refused result in no change to the status quo. If refusals to change the status quo could be appealed to the Board the 30 day time limit for appeals could be repeatedly circumvented, and the Board’s resources could be taken up hearing appeals from every decision of the district director to refuse an amendment, suspension, cancellation or renewal of a permit.

[41] The question before the Board was whether or not the district director’s refusal to amend the permit or refusal of an amended permit could be considered a “decision” within the meaning of s. 43(c) or (d).

[42] The Board concluded that the refusal to amend the permit or refusal of an amended permit was not an “exercise of power” under s. 43(c), referring to two previous decisions of the Board where it had been found that an "exercise of a power" under s. 43(c) does not include a refusal to exercise a power.

[43] Turning to s. 43(d), the Board concluded that the refusal in question was not a “refusal of a permit” but rather a refusal to amend a permit. In support of that conclusion, the Panel referred to a letter to Houweling dated December 20, 2002 in which the district director stated that the “application to amend [the] permit is denied”.

[44] On the issue of whether the wording of s. 43(d) provides for a refusal to amend a permit, the Panel concluded as follows:

[69] Section 43(d) of the Act clearly does not refer to a refusal "to amend" a permit or a refusal of "an amended permit" as an appealable decision. The Panel agrees with the District Director that the Legislature intended to distinguish between the issuance of a "permit," under section 10, and the act of amending a permit under section 13. It is clear that the act of refusing a "permit" under section 10 is distinct from the act of refusing to amend a permit under section 13.

[70] The Panel also agrees with the District Director that, if the Legislature had intended the Board to hear appeals of "refusals to amend permits," or "refusals of amended permits," it would have expressly included "refusal to amend a permit" or "refusal of an amended permit" in section 43 of the Act. Alternatively, the Legislature could have used a broader definition of "decision" in the Act, as it has in the Pesticide Control Act and the Judicial Review Procedure Act.

[45] However, that reasoning does not deal with the fact that the Waste Management Act clearly contemplates that a permit issued under s. 10 may be amended under s. 13, yet does not refer to “amended permit” as distinct from “permit” in any section other than s. 13 of the Waste Management Act.

[46] In determining what a permit was the Board looked to the definition section in which permit is defined as meaning “a permit issued under s. 10 or under the regulations”. The Board reasoned that since an amendment to a permit is made under s.13, the term "permit" in s. 43 could not have been intended by the Legislature to include an amended permit.

[47] I am of the view that this interpretation is not correct. In reading the Waste Management Act as a whole it is evident that the Legislature did not intend to distinguish between a permit issued under s. 10 and a permit that had been amended under s. 13. Both the initial permit and an amended permit must be permits for the purposes of the Act. If this were not so none of the operative provisions of the Act involving permits would apply to permits once they had been amended under s. 13.

[48] For example, it would not be possible to make more than one amendment to a permit since s. 13 only refers to the power to amend a permit and not the power to amend an amended permit. Following the reasoning of the Board, if a permit refers only to a permit issued under s. 10, and not to a permit amended under s. 13, the permit could only be amended once. The GVRD acknowledges that Houweling’s permit has been amended a number of times.

[49] Treating a permit that has been amended under s. 13 as something different than a permit initially issued under s. 10 has a number of implications because the Waste Management Act does not refer to an amended permit in any of its provisions. For example, s. 36 provides for the suspension or cancellation of permits. If, however, a permit means only a permit issued under s.10 and not a permit that has been amended under s.13, then there would be no power under the Waste Management Act to suspend or cancel a permit once it had been amended under s.13. That would defeat the purpose of the Act, i.e. regulating the discharge of waste into the environment. Clearly this cannot be the correct interpretation of permit. In my view, permit used in the Act must include both a permit issued under s. 10 and as amended under s. 13.

[50] The Board, in my view, erred in confusing the concept of “amendment of a permit” (an act) with “refusal of an amended permit” (a refusal to act) as appealable decisions. In my opinion, the amendment of either a permit or an amended permit, either at the manager’s initiative or an application, is an appealable decision under s. 43(d). As well, I have concluded that the refusal of either a permit or an amended permit is an appealable decision.

[51] The Board’s interpretation of s. 43(d) results in the jurisdiction of the Board being determined on purely formal or technical criteria rather than on the substance of the appeal. The Board acknowledges that it has jurisdiction to hear appeals of refusals of a permit, but not of refusals of an amended permit. The jurisdiction of the Board is not in any way governed by the nature or significance of the decision under appeal, instead it is based upon the form of the decision.

[52] This leads to anomalous results. Houweling could have abandoned its permit to operate its natural gas fired heaters, as it is entitled to do under s. 16 of the Waste Management Act, and then applied for a permit to operate its natural gas and wood fired heaters. If the district director refused the application Houweling would have the right to appeal the decision to the Board because it would be the refusal of a permit rather than the refusal of an amended permit.

[53] The difference between applying for a permit and applying for an amended permit, in this case, and generally, is therefore a formal rather than a substantive distinction. The Legislature would not have intended to limit the jurisdiction of the Board to hear appeals on a purely formal or technical basis, rather than a substantive basis, i.e. one based upon the nature of the right at issue. In my view, there is no pragmatic, functional or logical reason to distinguish between an application for a permit and an application for an amended permit for the purposes of determining whether there is a right to appeal to the Board.

Policy Considerations

[54] As indicated the GVRD asserts that there are policy reasons to accept the Board’s interpretation of the word “permit” in s. 43(d) in that:

1. it could result in a lack of finality; and

2. the appeal process could be abused in that an applicant could avoid the 30 day appeal provision by simply making the same application again in the guise of an amendment to the permit.

[55] However, Houweling argues that the principle of finality should not be given much weight in the circumstance of the regulatory structure under the Waste Management Act. The principle finds its force in adjudicative proceedings where it is important that findings be final. The regulatory scheme under the Waste Management Act should be flexible to respond to changes in market, technology, population and environmental requirements as is evidenced by the Act itself. Section 13 grants the manager the ability to act on her or his own initiative in order to react to changes in technology or other circumstances. The scheme of permitting allows ongoing regulation of businesses in situations where there are changes and the Act anticipates changes will be made.

[56] The flexibility the permitting process provides is evident in the case of Houweling. Houweling has had several permit amendments as a result of its operation expanding and changes in technology.

[57] Although the GVRD argues that an applicant could avoid the appeal period set out in the Waste Management Act if the applicant had a right to appeal a refusal of the district director to act, and that the Board would have to hold a long and expensive oral hearing every time such a decision was appealed, it is clear that the Board can control its own process. The Board can determine, based on its initial review of the application, that the district director’s decision being appealed is not a fresh decision but rather a repetition of an application which the applicant is out of time to appeal. There is no evidence of any constraints on the Board’s powers or procedures that would prevent it from making an initial assessment of an application to determine whether it will entertain it.

[58] Section 46(2) provides that the appeal board may conduct an appeal by way of a new hearing, but that does not entitle the applicant to a hearing. The Board’s procedure manual states that: “Within 60 days of receiving a complete notice of appeal, the chair is required to determine the appropriate type of appeal … . An appeal may be conducted by way of written submissions, an oral hearing or a combination of both.”

[59] It is possible that a party whose application for an amendment was turned down might submit a new application for an amendment, and if it is turned down might, within 30 days, appeal the new application. The Board can determine if the new application is different. If there is something substantially different so that a hearing should be held it is entirely appropriate that there should be a hearing. That is something the Board can control.

[60] The GVRD argues that the coherent organizing principle to s. 43(d) is to preserve the status quo, in that parties are only entitled to an appeal if there has been a change to the status quo, and that a refusal to amend a permit or a refusal of an amended permit is not a change to the status quo.

[61] However, the refusal of a permit does not impact the status quo. I do not accept that the refusal of a permit is more significant than the refusal of an amended permit. One can foresee situations where the refusal of an amended permit may result in significant financial consequences to the party applying for the amended permit. If the Board does not have jurisdiction to hear an appeal from the district director’s decision then the applicant has a right to apply to the courts for a judicial review. There should be some rationale that one can attribute to the Legislature for choosing the board for some issues and the court for others.

[62] If the GVRD’s position is accepted then Houweling should have abandoned its permit and applied for a new permit. If the permit was refused then Houweling would have a right to appeal. GVRD says that in those circumstances the Board would be able to look behind the form to the substance of the decision being appealed. This is inconsistent with the GVRD’s position that the Board would have to hear an expensive, lengthy oral hearing every time the district director refused an amended permit.

[63] Section 43(d) should be interpreted in light of the purposes of the entire statute which is to protect the environment. The Board has the requisite expertise and is in a better position than the court to determine the merits of the appeal, that is whether the district director acted appropriately in refusing the amended permit. There is no evidence that the Board is not as, or more, protective of the environment than any of the district directors whose decisions would be appealed from.

[64] In my opinion there are no policy reasons to distinguish between a refusal of a permit and refusal of an amended permit for the purposes of determining whether there is a right of appeal to the Board.

CONCLUSION

[65] Based on a consideration of the words of the provision, the Waste Management Act as a whole and the legislative purpose, I have concluded that the definition of “decision” under s. 43 (d) as a refusal of a permit includes a refusal of an amended permit. For the reasons set out above, I am of the opinion that the Board was not correct when it concluded that it did not have jurisdiction to hear the appeal.

[66] Given that I am of the view that the Board has jurisdiction to hear the appeal of the district director’s decision refusing the amended permit, I need not determine the second issue, i.e. whether the GVRD has jurisdiction to regulate Houweling’s wood fired heater. I am remitting that issue, together with the issue of whether the district director’s decision to refuse to issue an amended permit violated administrative law principles, to the Board.

[67] Houweling is entitled to the costs of this application at scale 3.

“L. Gerow, J.”
The Honourable Madam Justice L. Gerow

Citation:	*Houweling Nurseries v. District Director of the GVRD et al.,*
	2005 BCSC 894