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
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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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