Casual Legal: Agreements for the Use of Municipal Roads

By Daina Young
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Municipalities will, from time to time, be asked to allow a person to use a municipal road, including undeveloped road allowances, for a purpose other than vehicular traffic. For example, an adjacent landowner may request permission to graze livestock on an undeveloped road allowance, or a homeowner may ask the municipality to allow an encroachment from their property onto the municipal boulevard.

When receiving requests of this nature, the municipality must first consider whether it has the authority to grant the request. If the municipality determines it does, it must comply with any applicable statutory requirements and should consider what terms and conditions are necessary to ensure the municipality is protected against any potential liability as a result of the person’s use of the municipal roads.

To lease a road to a person, the municipality must go through the road closure process set out in Section 22 of the Municipal Government Act. This requires Council to pass a bylaw to close the road. The bylaw must be advertised, and approved by the Minister of Transportation prior to second reading. Council is also required to hear from any person who claims to be prejudicially affected by the road closure, prior to passing the bylaw. Leases are generally long-term in nature, and create an interest in land. Once a road closure bylaw is registered at the Land Titles Office, the land in question is no longer considered a “road” within the meaning of the Act.

Other options include entering into a licence of occupation or encroachment agreement with respect to a municipal road. A licence of occupation may allow a person non-exclusive use of a municipal road for purposes other than vehicular travel. However, according to the Traffic Safety Act, the licence must be terminable on 30 days’ notice if the road is required for use by the public. An encroachment agreement may be used to permit an encroachment from a neighbouring property onto an adjacent road allowance, and can be registered against title to the benefitting property, however an encroachment agreement must also be terminable on 30 days’ notice in accordance with the Traffic Safety Act.

Regardless of the type of agreement used, the municipality should consider of the following key points: 

• What is the term (length) of the agreement? Can it be renewed? 
• What are the grounds for termination? Can the municipality terminate the agreement if the other party is in default of its obligations, or on written notice to the other party? 
• Are any fees payable to the municipality for the lease or use or the road? 
• Who is responsible for maintaining any improvements on the road and/or removing the improvements when the agreement is at an end?

In addition, these agreements should address liability and protect the municipality from potential claims arising from use of the road. Generally, these agreements should provide that the municipality is indemnified (protected) against any claims arising from the use of the road under the agreement, and require the other party to maintain appropriate insurance regarding its use of the road.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.