You can fight city hall, part 2: Alberta Court of Appeal upholds ruling on land development dispute

Last year, we published a case comment on Alberta's Land and Property Rights Tribunal's (the Tribunal) decision in Three Sisters Mountain Village Properties Ltd v Town of Canmore^[1]. The Tribunal held that the Three Sisters Village Area Structure Plan (Three Sisters ASP) complied with an approval by the provincial Natural Resources Conservation Board (the NRCB).

In response, the Town appealed. The Alberta Court of Appeal upheld the Tribunal's decision and dismissed the appeal, agreeing with the Tribunal's interpretation of s. 619 of the Municipal Government Act.

The resulting decision by the Court of Appeal aims to clear any confusion over the paramountcy of provincial approvals over municipal objections.

Recap of the Tribunal's decision

At first instance, the Tribunal held that 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.

The Tribunal's decision and interpretation of s.619 of the MGA affirmed that, by granting paramountcy to decisions of certain provincial bodies, s.619 ensures projects are not blocked at the municipal level for issues already considered and approved at the provincial level.

Sections 619(2) and (8) of the Municipal Government Act

Section 619(2) of the MGA provides, in part:

Where an application is consistent with a licence, permit, approval or other authorization granted by the NRCB, ERCB, AER, AEUB, or AUC, the municipality must approve the application to the extent that it complies with the licence, permit approval or other authorization granted under subsection (1).

Section 619(8) of the MGA states, in part:

In an appeal under this section, the Land and Property Rights Tribunal may (a) order the municipality to amend the statutory plan or land use bylaw in order to comply with a licence, permit, approval or other authorization granted… or (b) dismiss the appeal.

Sections 619(1) and (2) of the MGA codifies the paramountcy of provincial approvals over municipal objections. Section 619(8) of the MGA sets out the scope of the Tribunal's jurisdiction. The purpose of section 619 of the MGA is to reduce regulatory burdens and increase administrative efficiency and consistency by affording provincial decision-making paramountcy over municipal decision-making.   

Background

In 1992, the NRCB approved the development of a recreational and tourism project in the Town, subject to certain conditions, and did not place any time limit on the development, despite having the authority to do so. 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 the governing 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, which included the lands Three Sisters sought to develop. In 2017, the owner sought approval of an amendment to the Resort Centre ASP, which was defeated at first reading.  The Town directed Three Sisters to undertake a "more wholistic [sic] process to provide direction for all of the Three Sisters lands".

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 $11 million, and resulted in the Three Sisters ASP, and another ASP called the Smith Creek ASP (collectively the ASPs). 

In December 2020, Three Sisters applied for approval of the ASPs 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 ASPs

Three Sisters appealed the Town's refusal to approve the ASPs pursuant to s. 619(5) of the MGA, and on May 16, 2022 the Tribunal issued its decision allowing Three Sisters' appeal and ordering the Town to adopt the ASPs.

Court of Appeal decision

The Town was granted leave to appeal, and argued that:

1. Sections 619(1) and (2) of the MGA, compelling the Town to approve the ASPs, did not apply to this matter, arguing that it offends the presumption against retrospectivity.
2. The Tribunal lacked jurisdiction to decide appeals for 'new' statutory plans, as opposed to amendments to existing plans.

The Court explained that the presumption against retrospectivity is a tool of statutory interpretation, used to "protect acquired rights and to prevent a change in the law from 'look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction."^[2]

The Court would not interfere with the Tribunal's determination that the NRCB Approval was a continuing act, and agreed with the Tribunal's interpretation of sections 619(1) and (2) of the MGA.

The Court found it unnecessary to address whether s. 619 applied to 'new' statutory plans, or amendments to existing statutory plans, as a review of the Tribunal's factual findings that the ASPs were existing statutory plans was beyond the Court's jurisdiction and not a court's role in performing a reasonableness review.^[3]

On the issue of the Tribunal's review of the ASPs for 'consistency' with the NRCB, the Court stated that 'consistency' is not intended to be an exacting standard, but rather approached holistically and with regard to what was considered and approved at the provincial level to ensure the legislation's purpose is achieved.

The Tribunal's determination of the facts regarding the determination that the ASPs met the 'consistency' requirement of s. 619 was a mixed question of fact and law beyond the scope of appellate review. The Court found that the Tribunal "considered the evidence and argument it heard, and addressed all the consistency issues raised by the Town in an intelligible and transparent way".^[4]

The Court found the Tribunal's order was within the powers granted pursuant to s. 619(8) and was reasonable.

Key takeaways

• The Court affirmed the purpose of s. 619 of the MGA, which is to resolve confusion regarding the paramountcy of provincial approvals over municipal objections. 
• The presumption against retrospective application of legislation does not apply where the most significant or relevant feature of the situation to which the new law applies is an ongoing fact, or effects arising from it, rather than a past event.

If you have any questions regarding the Court of Appeal's decision, please contact the authors or a member of the Commercial Litigation Practice Group.