You can fight City Hall: provincial approval for Three Sisters Mountain Village development prevails over municipal objections

In Three Sisters Mountain Village Properties Ltd v Town of Canmore,^[1] the Alberta Land and Property Rights Tribunal (the Tribunal) held that the Three Sisters Village Area Structure Plan (the Three Sisters ASP) complied with an approval granted by the provincial Natural Resources Conservation Board (the NRCB). Pursuant to section 619 of the Municipal Government Act (MGA), the Town of Canmore (the Town) had no authority to deny approval for, or demand certain changes to, the Three Sisters ASP. 

This case reaffirms the principle that a municipality cannot deny a development or other application consistent with a provincial regulator's prior approval or authorization. In this case, section 619 eliminated municipal discretion to refuse or change the Three Sisters ASP respecting matters already decided by the NRCB; however, the Town retained authority over matters not addressed by the NRCB.

Section 619 of the Municipal Government Act

Section 619 of the MGA provides, in part:

NRCB, ERCB, AER, AEUB or AUC authorizations

619(1) A licence, permit, approval or other authorization ranted by the NRCB, ERCB, AER, AEUB or AUC prevails, in accordance with this section, over any statutory plan, land use bylaw, subdivision or development decision by a subdivision authority, development authority, subdivision and development appeal board, or the Land and Property Rights Tribunal or any other authorization under this Part.

Section 619 of the MGA promotes administrative efficiency by affording provincial decision-making dominance over municipal decision-making on the same matter.  

Background

In 1992, the NRCB approved the development of a recreational and tourism project in the Town, subject to certain conditions. Three Sisters Mountain Village Properties Ltd. (Three Sisters) sought planning and approvals from the Town to develop an ASP. ASPs include plans for previously undeveloped land. The Town Council has the authority to approve an ASP and adopt it as a bylaw, and ensure that the ASP is consistent with provincial land use policy. While Three Sisters' application was in accordance with the NRCB authorization, the Town attempted to impose numerous amendments on the Three Sisters ASP and ultimately rejected it outright.

In 2004, the Town approved a Resort Centre ASP governing the lands Three Sisters sought to develop. In 2017, Town Council defeated first reading of the bylaws required for the Three Sisters ASP to proceed. The Town directed Three Sisters to undertake a "more wholistic [sic] process to provide direction for all of the Three Sisters lands."

Between 2017 and 2020, Three Sisters worked with the Town to develop a new ASP for the lands in accordance with Terms of Reference approved by Town Council on October 2, 2018. The work cost Three Sisters in excess of $11M, and resulted in the Three Sisters ASP, and another ASP called the Smith Creek ASP. 

In December 2020, Three Sisters applied for approval of the Three Sisters ASP pursuant to s. 619(2) of the MGA. Section 619(2) provides that a municipality must approve a consistent application to the extent that the application complies with the conditions granted and authorized by the NRBC (or other provincial regulator). Nonetheless, the Town Council voted to defeat the Three Sisters ASP during the third reading of the bylaw. 

Three Sisters applied to the Tribunal for an order directing the Town to adopt the Three Sisters ASP to comply with the NRCB authorization.

Later, the Town Council also refused the Smith Creek ASP, and the Tribunal heard that appeal sequentially with the Three Sisters ASP appeal.

The hearing

Three Sisters argued that the Three Sisters ASP is consistent with the NRCB authorization and conditions, and the Town had no authority to refuse to approve it.

The Town argued that the NRCB authorization at issue is more than 30 years old, and that applying section 619 in the circumstances would undermine the Town's responsibility to plan its communities in a manner that achieves orderly economic and beneficial development, use of land, and maintains and approves the quality of the physical environment. The Town also argued that the Three Sisters ASP is inconsistent with the conditions and authorization granted by the NRCB, for numerous stated reasons.

The decision

The Tribunal found that the Three Sisters ASP complied with the authorization and conditions granted by the NRCB, and the Town did not have authority to deny approval.

The Tribunal found that while the conditions imposed by the NRCB afforded the Town some leeway in its decision-making, pursuant to section 619 of the MGA, the Town could not deny the Three Sisters ASP outright given that it complies with the NRCB authorization.

The Tribunal agreed that some provincial approvals are of limited duration and may expire if development does not commence during the requisite time. However, the Tribunal rejected the Town's argument that Three Sisters could not rely on the 1992 NRCB authorization because:

1. The NRCB authorization did not have a provision limiting its duration;
2. The MGA does not impose a time limit on provincial regulatory approvals; and
3. The NRCB authorization did not state a deadline for completing and implementing the Three Sisters ASP.

The Tribunal noted:

[126] Although circumstances can and do change over three decades, this fact does not imply the elapsed time authorizes the Town to deny the application if it is consistent with the NRCB Approval.^[2]

Takeaway

The Tribunal's decision is an important reinforcement of the role section 619 of the MGA plays in advancing development in the Province of Alberta. Municipalities are not entitled to seek to override, vary, or otherwise impede a matter licenced, approved, or otherwise authorized by a provincial regulatory body. This principle reflects the precedence that planning at a provincial level necessarily takes over planning at a municipal level. The reality is that the particular desires or goals of a municipality regarding its own future are subject to the desires and goals of the Province of Alberta.  Where those desires and goals conflict, the province will prevail, even when the articulated goals of the province date back decades.