• Relative Priorities of Planning Instruments Governing National Park Towns
  • December 13, 2013 | Author: Elsa Johnson
  • Law Firm: Field Law - Edmonton Office
  • Municipalities located within national parks are subject to unique development constraints. The federal National Parks Act and provincial Parks Towns Act enable agreements between the federal and provincial governments for incorporation of towns within national parks. Once incorporated, park towns are treated like ordinary towns under the Municipal Government Act with some differences.

    In early 1990, Canada and Alberta entered into the Town of Banff Incorporation Agreement under which the federal government retained ultimate authority for development and planning in Banff. The Incorporation Agreement required the municipality to prepare a land use bylaw (like any other municipality in Alberta) which would not be effective until approved by the Minister. The Minister created a Management Plan for Banff National Park which provided an overall framework for development in Banff. The Incorporation Agreement provided that the terms of the Management Plan were to prevail in all planning decisions including “any bylaw passed... and every action taken or decision made pursuant to such plan or by-law.”

    The Alberta Court of Appeal in Canada (Attorney General) v. Banff (Development Appeal Board), 2013 ABCA 127 dealt with the relative priorities of the Banff land use bylaw which had been approved by the Minister and the Management Plan also approved by the Minister.

    Bow Valley Credit Union owned land zoned as a Public Service district under the Banff land use bylaw. A discretionary use for that zone was “professional, financial, health and office services.” Bow Valley applied for and received a 5-year development permit to sublet part of its premises to a law firm, on the basis that this use fell within “professional... services.” The Attorney General of Canada unsuccessfully appealed the issuance of the development permit to the law firm on the basis that the Public Service district contemplated operations of a community service nature and not stand-alone commercial operations.

    The Minister subsequently approved a new Management Plan which mandated that use of lands in the Public Service district be restricted to “non-commercial uses.” Bow Valley Credit Union then applied for a new permit to allow the law firm to remain in the premises. The municipality approved the permit and the Attorney General of Canada again unsuccessfully appealed to the Development Appeal Board. The issue went to the Court of Appeal on judicial review.

    The Development Appeal Board did not deal with whether or not the Management Plan approved by the Minister trumped the municipal land use bylaw that had previously also been approved by the Minister. Specifically, the Board did not consider the section in the Incorporation Agreement that provided that the terms of the Management Agreement would prevail over “any bylaw passed... and every action taken or decision made pursuant to such plan or by-law.” The Board simply found that the use fell within those uses mandated under the land use bylaw for the district and as such issued the development permit.

    The court came to the unanimous conclusion that the Incorporation Agreement clearly provided that the Management Plan would govern. The fact that the land use bylaw had previously been approved by the Minister did not mean that the Minister was not able to subsequently change the Management Plan in a way that was inconsistent with the land use bylaw. If this was not the intention, there would have been no need to provide for Management Plan priority in the first place. It is therefore perfectly possible for a decision to be consistent with the land use bylaw while being inconsistent with the Management Plan. In such cases the Management Plan will win out.

    The take-away: when applying for anything under a land use bylaw in a national park town (for example a development permit), first check to see if the decision you seek is consistent with the Management Plan. Just because something is permitted or consistent under the land use bylaw does not mean it is permitted or consistent with the Management Plan.