How to File an Appeal Under the Community Planning Act or Heritage Conservation Act

An appeal to the Assessment and Planning Appeal Board (the APAB) is authorized by the Community Planning Act and the Heritage Conservation Act for the Province of New Brunswick.

The APAB is an independent body (established under the Assessment and Planning Appeal Board Act) whose main purpose is to analyze each appeal case on the basis of the evidence submitted and the grounds alleged, and to decide whether or not the evidence supports the grounds of appeal alleged by the Appellant (the person who filed the appeal). The Respondent is the person or body whose decision is being appealed.

The APAB can confirm or change the decision being appealed or it can add terms and conditions to the decision.

More information regarding the APAB may be found here: About the Assessment and Planning Appeal Board
 

Any party to an appeal is entitled to be represented by a lawyer or an agent to assist them with their appeal or they can represent themselves. They may also give evidence on their own behalf and call others to give evidence to support them in their case. If any party to an appeal is represented by a lawyer, then the APAB will send all notices and correspondence to the lawyer.

Please Note: All relevant information should have been submitted to the Respondent before filing an appeal. If not, such information should be provided no later than 14 days before the hearing date. Any documents presented at the hearing that were not received at least 14 days before the hearing date are subject to the acceptance of the APAB. New documents may also delay the appeal process, as the hearing may need to be adjourned to allow the APAB and the other parties to the appeal to review the new information.

The APAB will then send a copy of the Notice of Appeal to the Respondent. The Respondent must respond to the appeal by completing a Notice of Decision form provided by the APAB. This form includes information such as the date of the decision being appealed, the nature of the decision, who made the decision, the process followed in making the decision, and the basis on which the decision was made. The Respondent must file the completed form with the APAB, with any relevant documentation attached.

Once the completed Notice of Decision form has been received, the APAB will set a date, time and place for hearing the appeal. For each hearing, a panel of the APAB is selected and is comprised of the Chairperson or a Vice-Chairperson and one or two Board members from the region where the property in question is located. The Chairperson may also designate a Board member from another region to serve on the hearing panel.
 

Most appeals will be resolved by an oral hearing; however, the APAB may permit the appeal to proceed by written submissions only, if all parties consent.

Wherever possible, hearings are held in or near the community where the Appellant resides or where the property is situated.  The hearing will proceed in the language in which the Appellant files the Notice of Appeal. All hearings before the APAB are held in public. A notice of upcoming hearings can be found on the Assessment and Planning Appeal Board webpage.

Hearings before the APAB are conducted in a somewhat formal manner. Oral testimony is subject to cross-examination. Rules of evidence are not strictly enforced, though there are limits on what is acceptable (i.e., usually based on the relevance of the documents or testimony to the issues raised in the case).

The APAB is responsible for the conduct of the hearing and will explain the process to be followed and how evidence is to be presented. The order of procedure will depend upon the grounds alleged in the Notice of Appeal. In most cases, the Respondent would present their evidence first and the Appellant would follow. However, where the ground for the appeal pertains to the allegation of special or unreasonable hardship under the Community Planning Act, the Appellant would proceed first.

If the appeal is brought by a third party who is appealing an approval given to another property owner, then the property owner is also entitled to participate in the hearing. The property owner’s evidence would be heard immediately after the Respondent has proceeded.

During the course of the hearing, any member of the panel may direct questions to a witness.

If the Appellant or his/her agent fails to appear at the hearing after having been duly notified of the time, date and place, the appeal will be dismissed.
 

After the evidence presented by all parties has been heard, the hearing will be adjourned and the APAB will convene in private to discuss the evidence and to reach a decision. The Chairperson will provide the APAB’s written decision to all of the parties to the appeal and the Minister of Local Government and Local Governance Reform.

Any party to an appeal who is dissatisfied with the decision of the APAB may apply to the Court of King’s Bench for judicial review of the decision with respect to land use planning matters or to the Court of Appeal with respect to heritage conservation matters. If this is being considered, it is strongly recommended that a lawyer be consulted.