The decision in Lake Country should be noted by local
governments and land owners: it suggests that in certain
circumstances non-farm uses (for example, non-farm recreation,
third party signs and the like) may be permitted in the ALR without
the approval of the Agricultural Land Commission.
The Kelowna Ogopogo Radio Controllers Association (the
"Association") leased a tract of ALR
lands to use as an unpaved airstrip for the taking off and landing
of radio-controlled model aircraft. The main use of the lands was
Under the Agricultural Land Commission Act (the
"ALCA") and the Regulations
under the ALCA, lands in the ALR may be used to operate an
unpaved airstrip for unscheduled flights. Unpaved airstrips were
also permitted under the Lake Country District's zoning bylaw.
The question for the Courts was whether an unpaved airstrip in the
ALR could be used for taking off and landing radio-controlled model
aircraft for recreational purposes.
The BC Supreme Court held that it could not. In the Court's
opinion, while the ALCA (and the zoning bylaw) permitted
unpaved airstrips, this use did not extend to flying model planes.
Firstly, it was out of the ordinary to use an airstrip to fly model
planes, and, secondly, airstrips in the ALR were only permitted to
the extent that they enabled or encouraged farming.
The BC Court of Appeal disagreed with the Supreme Court and
ruled in favour of the Association. The Court of Appeal stated that
the purpose of the ALCA (and the zoning bylaw) was not
only to encourage farm use of the ALR, but also to encourage uses
compatible with agriculture and the preservation of agricultural
land. In the Court of Appeal's view, flying model planes had to
be viewed in this context: this use did not interfere with the
agricultural character of the lands, therefore, it was
Based on the decision in Lake Country, non-farm uses
may take place in the ALR if such uses do not interfere with the
agricultural character of the lands. What – if any –
uses will the courts consider non-interfering with the agricultural
character remains to be seen. For instance, can a farm operator
place third party advertisement signs on farm structures? What
about building a dirt bike race track on a farm? Both of these were
found to be non-farm uses in earlier case law. Lake
Country suggests that there may be room to argue.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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