CASUAL LEGAL: Legitimate Municipal Purposes: Municipal Jurisdiction to Impose Concurrent Development Permit Conditions

Attention: AMSC Members – Please distribute to all appropriate personnel

Legitimate Municipal Purposes: Municipal Jurisdiction to Impose Concurrent Development Permit Conditions

By Emma Banfield

Reynolds Mirth Richards Farmer LLP

AMSC Casual Legal Service Provider

A recent case from the Alberta Court of Appeal indicates municipalities and their regulatory bodies are able to impose conditions for legitimate municipal purposes, even where conditions addressing the same concerns have already been, or may be, imposed by another regulator. In this case, a developer was granted a permit to construct and operate a crude oil “truck to rail” facility within the Town. A local resident appealed the decision citing safety concerns. The subdivision and appeal board (SDAB) affirmed the development permit, but added three new conditions. The only reason for the new conditions provided by the SDAB was “To address safety concerns raised by residents.”

The developer appealed to Alberta’s highest court, asking for the removal of two of the additional conditions. The developer argued the reasons provided by the SDAB for the additional conditions were inadequate; the SDAB had erred in law or jurisdiction in implementing the conditions without probative evidence; the SDAB hearing was procedurally unfair because it had failed to provide the developer with notice of the proposed conditions and the opportunity to respond; and the SDAB did not have the jurisdiction to impose the conditions in question because they were within the ambit of provincial and federal regulation.

The Court of Appeal determined that the reasons of the SDAB were adequate; the conditions were based on sufficient evidence both from the developer and area residents; the hearing was procedurally fair because all parties were provided with notice of the hearing and what might happen, and the conditions imposed merely reflected assurances given by the developer; and the SDAB had the jurisdiction to impose conditions on industries subject to provincial and federal regulation, so long as the conditions relate to “legitimate municipal purposes” as outlined in the Municipal Government Act. Therefore, in imposing the conditions, the SDAB did not exceed its jurisdiction.

Subject to very few conditions, which were not applicable in this case, municipalities and municipal decision-makers like the SDAB are permitted to impose conditions for legitimate municipal purposes, including public safety, even where another regulatory body has imposed a condition that addresses the same point. Provided no actual conflict arises between the municipal condition and any imposed by other regulatory bodies, both will be operative, and affected parties are effectively required to comply with the more stringent.

In this case, no actual conflict between the SDAB conditions and regulatory requirements imposed by energy, transportation or rail authorities were identified. This case serves as a reminder that as a general rule, municipalities and their municipal boards may impose conditions for legitimate municipal purposes, even when a condition addressing the same concern has been imposed by another regulatory body.

To access AMSC’s Casual Legal Helpline, AUMA members can call toll-free to 1-800-661-7673 or email casuallegal [at] amsc.ca (casuallegal[at]amsc[dot]ca) and reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please contact riskcontrol [at] auma.ca (riskcontrol[at]auma[dot]ca), or call 310-AUMA (2862) to speak to AUMA’s Risk Management staff. Any Regular or Associate member of the AUMA 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.