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MARCY ELIZABETH
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ANN
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BRYANT
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ZHU,
MARGARET
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TOM
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TABLE OF CONTENTS
I. INTRODUCTION ...... 1 II. FACTS ...... 1 III. LAW...... 3 IV. ARGUMENT...... 4 Conflict between the Restrictive Covenant and City Bylaws.... 6 Discharge of the Restrictive Covenant is in the public interest 7 V. CONCLUSION...... 8 1.
2
3.
4.
5.
6.
I.
II.
The
INTRODUCTION
of
The
to
(the
this
(the
The
ARP,
notice
the
resolving
The
the
of
Municipal applicants'
Covenant
Restrictive
Like
The
FACTS
dwelling
A
garage
two
this
the
to
ARP
Applicants'
conflict
City
"Restrictive
“
City
ARP
City
ARP
the
Restrictive
the
especially
parcels
action.
City's
and
attached
of
has
Applicant,
to
further
Restrictive
house[s]
any
was
”
),
Government
from
a
Calgary
Covenant
parcels
overrule to
that
ARP
public
enacted
This
conflict
this
subject
enacted
titles
the
Covenant
Covenant").
submits
given
conflicts
or
-
”
Honourable
. brief
a
the
cannot
hearing.
titles
(the
Specifically,
Covenant,
unattached
the
where
valid
between
a
and
to
that
in
City
Act.
statutory
is
“
restrictions
the
that
City") of
the
with
respectfully
simultaneously
statutory
allows
the
build
the
it
seeks
A
The
building
the
conflicts
public
conflict
the
the City Court.
is Applicants' or
to
a
one
City
plan,
Restrictive
a
development
one
Restrictive
one
an
such
ARP
’
s
Respondent
plan
of
interest
scheme
single
Council
submits
order
is
with
submitted
single
the
the
or
and dwelling
created
and
two
comply
Restrictive
Banff
the
parcels.
for
family
by
Covenant
Restrictive
or
bylaw
has
Covenant
registered
unit
that
intent
discharge
Council
of
two
to
Trail
where
to
house
included
“ with
building
dwelling
the
only
action
describe
enacted
family
and
Area
Covenant.
public
the
should
one
after
an
Covenant
on
on
as
of
land
1901-12441
ARP.
dwelling
to
owner
express
the
Redevelopment house lots
instrument
single
the
pursuant the
consultation,
interest
comply
be
use
properties
shown
Restrictive
City
discharged
of
and
in
or
classifications
house
language
any
’
favour
with
s
two
necessitates
to
a as
in
position
1358GL
of
private
the
Schedule
family
owner
the
subject
public
and
the
of
Plan
from
in
the
a
on
1
7.
8.
9.
10.
11.
The
private
The
Schedule
ARP
The
stakeholders
consultation
prescribes
to
The
Council
The
policies.
of
Municipal
Figure
the
the
ARP
current
ARP
areas
ARP
and
study
Municipal
garage
directed
2
enacted
allows
also
includes
B
-
Development
chosen
medium
Land
to
version
area.
with
to
Trail
community. development.
a) of
2.1.1
b) c)
housing preserving
the
sets
attached
identify
To
the
To
To
for
Development
Use
this
the
the
Restrictive
as
by
clearly
Objectives
out
ensure
create
ensure
density
this
area
of
Plan
consultation,
Banff
a
Council
ARP
types
the
four
desirable
appropriate
type
Plan,
or
the
while
(with
stated
ARP
and
Trail
the
unattached
the
as
land
objectives
within
existing
of
Covenant.
for
as
a
relevant
Plan
availability
maintain
continued
permitting
low
was
Community
bylaw
use
goals,
well
intensification
neighbourhood
and
the
density
and
areas
enacted
in
character
Executive
Executive
as
for
community.
addresses
to
after
Council
other
including
other
stability
its
such
viability
compatible
residential
of
for
Section
development
Transit
a
Association
a
areas.
to
intensification
public
relevant
variety
dwelling
Summary,
Summary,
approved
and
include
are
within
superimposed
“
by
of
To
1.2(g),
Oriented
quality
consistent
Banff
hearing.
land
implement
infill
of
Council
the
amendments
house
and
Page
Page
in
the
Page
use
certain
of
Development
other
amendments
(emphasis
with
development.
for
on
5
1
1
policies
of
of
of
planning
clarity),
lots
the
the
the
the
local
areas,
the
based
shown
ARP
ARP
ARP
ARP
City
pertaining
Page
added):
policies
but
to
[TAB
[TAB
[TAB
’
[TAB
s
on
in
the
7
of
1]
1]
1]
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2
d) Identify areas in the community that are appropriate for modest intensification . Section 2.1.1, Page 6 of the AKP [TAB 1] 12. In addition, the ARP specifically addresses conflicts between the Restrictive Covenant and the ARP (emphasis added):
Many parcels in Banff Trail have a caveat registered
against the certificate of title which may restrict development. These restrictions include, but are not limited to, restricting development to one or two-unit dwellings. In some cases this caveat is not in alignment with the goals and objectives
of this Plan and where such conflicts occur. The
City of Calgary supports the direction of this Plan. Section 2.1.2(b), Page 8 of the ARP [TAB 1] III. LAW 13. Section 48(4) sets out the test for the discharge of the Restrictive Covenant: (4) The first owner, and every transferee, and every other person deriving title from the first owner or through tax sale proceedings, is deemed to be affected with notice of the condition or covenant, and to be bound by it if it is of such nature as to run with the land, but any such condition or covenant may be modified or discharged by order of the court, on proof to the satisfaction of the court that the modification will be beneficial to the persons principally interested in the enforcement of the condition or covenant or that the condition oi covenant conflicts with the provisions of a land use bylaw or statutory plan under Part 17 of the Municipal Government Act, and the modification or discharge is in the public interest. Section 48(4) of the Land Titles Act [TAB 2] 14. The test consists of two parts: A restrictive covenant may be modified or discharged by order of the court (1) if the condition or covenant conflicts with the
3 provisions of a land use bylaw or statutory plan under Part 17 of the Municipal Government Act, and (2) the modification or discharge is in the public interest.
15. A conflict will only exist where compliance with the covenant or bylaw necessitates or requires non-compliance with the other. Barker v. Palmer, 2005 ABQB 815 at paras 29 - 30, citing Seiffeddine v. Hudson's Bay Traders, 1, 1980 CarswellAlta 2, 108 D.L.R. (3d) 671, Crump v. Kernahan, 1995 CarswellAlta 348, [1995] A.W.L.D. 850, and Potts v. McCann, 200? ABQB 734 [TAB 3]
IV. ARGUMENT
16. Building schemes such as the Restrictive Covenant are not enforced by the City. They are a remnant from a time when land use planning was in its infancy, a fact that has been noted by this Court. Potts v. McCann, 2002 ABQB 734 al para 42 [TAB 4] 17. The City relies on its Land Use Bylaw (the "LUB") and statutory plans including the ARP to regulate development in Calgary. Both of these documents are bylaws enacted by the City's Council.
18. The ARP is a statutory plan that regulates land use. Section 635 of the MGA requires that an area redevelopment plan “must describe...ttie land uses proposed for the area, either generally or with respect to specific parts of the area ” (emphasis added). Section 635(a)(ii) of the Municipal Government Act [TAB 5]
19. The Alberta Court of Appeal recently confirmed that statutory plans regulate land use; they are not merely a statement of goals. Kneehill (County) v. Harvest Agriculture Ltd., 2019 ABCA 506 para 39. [TAB 6] 20. The ARP expressly sets out specific land use and development guidelines for the properties subject to this action. Preface, Page 3 of the ARP [TAB 1]
4 21.
22.
23.
24.
25.
26.
All
statutory
Further, must
Section
including
classification Low-Rise,
housing classification
development, Density
form
In
Density refer
residential The
more extending
Therefore
family
decisions
addition
conform
LUB
and
to
Dwelling
dwelling
2
the
Mid-Rise
shadow types
plans.
(Low-Rise
Low
of
site
defines
and
from
to
the
and
MGA
Planning
the
Figure
of
prescribes
prescribes
to
these
”
design
Density
and
,
the
Medium
ARP
Units,
including ARP
mixed
foundation an
house
studies,
requires
classification
a
development
2
limited
and
applicable
“
land
-
does
Law
Rowhouse
sets
for
Land
located
Residential,
use
development
Density
Mid-Rise)
“
medium
Section each
use and
a
staggered
rowhousing.
commercial
out
not
that
considerations. Use
modest
to
Practice
classifications,
contemplate
a
side
roof.
type
statutory
an
Plan
prescribes
Mid-Rise. number
687(3)(a.2)
Building
authority
density
SDAB's
do Frederick
Low
by
increase of
facades,
(with
A
in
in
not
use.
side
Sections uses. The
Rowhouse
Medium Alberta,
Density
plan.
of
”
relevant
3-4
contemplate
must
as
The
decision
medium
specific
The
and
or Medium
of
A.
in
the
a
storey
commercial
the
allow
Laux
building Low
density
2.1.4.12
separated 4 details
be
Rowhouse,
Density
th ARP
addresses Municipal
must
ed.,
consistent
land
density Section and
for
on
Density
Density
development.
Section
includes
p
low
provided with a
new
-
that Gwendolyn
contain
use 5-14
2.1.4.24
Low-Rise
development
uses,
by
density
Government
2.1.3
5-6
superimposed
a
one
“
Rowhousing
Medium
Low-Rise
classifications,
contains
at
287
common
greater
with
details
storey
s.
three
and
for
single of of
of
of
5.6(1
applicable
The
the uses the Stewart-Palmer,
or
the
the
Medium
other
Density
Medium
units. variety
three
ARP
ARP
on
)(b)
ARP
permit
Act party
or
LUB
Medium
at
for
two built
multi- [TAB
[TAB
all,
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or
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clarity)
walls
of
but
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5 Conflict
27.
28.
29.
30.
31.
development
Density
As
approved ARP.
Approval
would
Density
in bylaw. development
defeats
The
development
arises the
This
should
should
The whether
free
ambiguity the
between
a
noted
ARP.
manner
ARP.
City
City
Court
use
be
that
Similarly,
Mid-Rise
apply
not
Low-Rise
the
above,
submits
of
the
in
on
further
of
suggests
the
makes
has do
one
conflict purpose
the
that
the
in
Restrictive
in
to would
so,
the
Restrictive
held
Low-Density land
single
prevent
decisions
properties
approval
submits complies
land
that
or
ought
it
Low-Density
with
be
impossible
that Medium
and
that -
where
use
or
in
contrary
the
Covenant the
to
this any
intent
a
that two
of
areas,
with
made
restrictive be subject
Covenant
ARP,
construction
one
a
Rowhousing
case, ambiguity
Density family
at
resolved
one
both
of
to
to Rowhousing
a
by
single
and
the
making
minimum,
comply
should
land
to
single
an
the
the dwelling
covenant
the
intends
Mid-Rise
Low-Density
and
intensified
or
in
City about
use
Restrictive
of
discharge
Russell
or citing
favour
it [1951]
with
apply
areas two
City
a impossible
areas
as
two
the
house
areas.
for
dwelling
whether
family
both
land to
Noble
should
to
bylaws
SCR
ARP
family
conflicts
three
of
v.
use
whether
set
prevent
Rowhouse
Covenant
Ryan,
the
development
the
action
use
dwelling
64,
v.
as
creates
out
house
unit
not
a
to
dwelling
free
Alley,
Restrictive
areas
restrictive
[1950] prescribed
2016
with
develop
in
apply
a
must
new
rowhousing
use
the
development
1950 on
and
ambiguity
house
the
classification.
ABQB
set
SCJ
development.
ARP,
house of
comply
a
in
in
ARP
the
these
CanLII
new
out
the
favour
Covenant
covenant
No
the
by
526
City's
a
in
land.
34
Council
lot, and
Medium
with conflict
about
parcels
the
at
13
[TAB
of
can
or
para
(SCC),
ARP
the
the
and
Any
be
in
10]
26
6
Discharge
32.
33.
34.
35.
36.
Section to
plans
purposes Both
interest.
align
municipal
The
and
notice
requirements. bylaws.
throughout
In
uses plan,
Restrictive
Further, held intended
the
enacting
of
amended
the MGA
with
enacted
extent
under
in the
the
of
public ...
requirements,
617
This
the
LUB
minimum
the set
municipal
the
planning
Municipal
that
requires
Restrictive
of
Covenant the
the
the public that
out
can
interest. City
bylaws. and
under
the
by
This
the
plan
ARP,
Restrictive
is
in
’
include
s
municipal
ARP
MGA
ARP
interest,
standards
that necessary
is,
section
Council
is
planning,
Development
Part
area.
and
In
the
illustrative
by
where
Covenant
are
both
will expressly
its
its
17 infringement
City's in
It
617, decision validly
Covenant,
to
clearly
prevail
councils
nature,
the
of
infringed
land
it
that
by
for achieve
Section
conflicts the
Council
case
and
Potts
its of
the
use
is
are enacted provides
Plan.
MGA
considered
over
the
nature,
in
in
in
may
subject
overall
of
617 v.
on
bylaws deemed the
and
the on
Potts
the
public
with
McCann,
statutory
the
The
imposed
may
private
infringe
restrictive
of
public
goals
included
bylaws
public
that involves
Restrictive
the
the greater v. to
City
infringe
and
interest
the
McCann,
necessary
the
Municipal
land
ARP
of
interest:
rights
2002
submits
plans, prescriptive
on
Sections statutory
for
infringement
interest
the
Section Section holding
language the covenants
public
use
private
on
Section
is nature the
ABQB
ARP
by
Covenant
also
imposition consultation
this
the
bylaws Government
public
that
prescribing
in
606 692
636
of interest.
plans
and
the
rights 734
rights
in Court of
1.2
a
land
stating
overriding
of of
of
the where
these
public
on
interest
another at
of
and
the the
the
where are
for
uses
private
para of
the public
noted
MGA
MGA MGA
Act that statutory
these adopted individuals
types
they any
hearing,
ARP
42
the
the [TAB
statutory
that
interest.
[TAB
it [TAB
[TAB
public
rights
[TAB
do
[TAB
of
land
two
not
11]
12] 13] 14]
4]
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7
ALL
37.
38.
V.
OF
are
public
under To
discharge
accordance
CONCLUSION
The
allowable in
WHICH
question
summarize,
not
City
the
interest,
in
submits
alignment. IS
Restrictive
of
by
where
with
a RESPECTFULLY
the
conflicting
and
Council
the
Restrictive
that
the
in
ARP
Council
Covenant.
the
the
density
has
face
restrictive
Restrictive
is
enacted
necessarily covenant.
chose
THE
Per:
prescribed
of
Lawyer
SUBMITTED
the
CITY
CbDŸ
to
covenant
the
conflicting
Covenant
implement
for
in
ARP
OF
by
VAN
the
the
CALGARY
the
to
in Section
THIS
public
HELL should private
Respondent,
the
ARP allow
the
public
28
policies
interest.
2.1.2
conflicts
for
be
interests
th
development
day
~
removed
interest, (p.8)
!
in
The
with
of
of
the
of
February,
the
City
individuals
the
and
from ARP
ARP
density
in
of
the
the
in
Calgary [TAB
the
titles
2020.
1]
8 2. 1.
4. 3.
6. 5.
7.
8.
9.
10.
11.
12.
13.
14.
Banff
Land
Barker
Potts
Municipal
Kneehill
2717
Alberta,
Frederick
2019),
The Municipal
Russell
Municipal
Municipal
Municipal
Municipal
City
Trail
Titles
v.
v.
s5.6(1)(b)
McCann,
loose-leaf (County) v.
Palmer,
of
A.
Government
Area
Government
Government
Ryan, Government
Government
Government
Act,
Calgary
Laux
Section
Redevelopment
2016
2002
2005
v.
at
&
(consulted
Harvest
Land
Gwendolyn
5-14
Act, ABQB
ABQB
ABQB
Act,
Act,
Act,
48(4)
Act,
Act,
Use
RSA
RSA
RSA
RSA
RSA
Agriculture
RSA
AUTHORITIES
526,
on
734,
815,
Bylaw
Plan
Stewart-Palmer,
2000,
24
2000,
2000,
2000,
2000,
2000,
2016
2002
2005
February
1P2007,
Chapter
Chapter
Chapter
Chapter
Chapter Ltd.,
Chapter
CarswellAlta
CarswellAlta
CarswellAlta
2019
2020),
Section
M-26,
M-26,
M-26,
M-26,
M-26,
M-26,
Planning
ABCA
4
989 1836
th
Section
1679
287
Section
Section
Section
Section
Section
ed
506,
Law
(Edmonton:
635(a)(ii)
2019
687(3)(a.2)
617
692
606
636
and
Practice
CarswellAlta
Juriliber,
in
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I & «i-e?
THECnVOf i\7 CALGARY AREA FIEDEVELOPMENT PLAN Office Consolidations 2001 October, 2004 March, 2004 May, 2007 March, 2008 June, 2009 October, 2011 October, 2013 April, 2015 July, 2016 March, 2019 January, 2019 February, 2019 March, 2019 July, 2019 September
Bylaw 7P86 BANFF TRAIL Approved 1986 June 16 Area Redevelopment Plan
THE CITY OF CALGARY I i :
Amendment Bylaw Date Description a. Delete "2P80” from the first paragraph of the “Preface ”. 11. 22P2008 2008 June 01 b. Add note paragraph text to the end of the “Preface ”. ” under heading c. Delete and replace all text under subheading "2.1.4.1 “2.1.4 Implementation". d. Delete and replace text for Site 1 in table in “Section 2.1.4 Implementation". ”. e. Delete and replace text for Site 1 in table in “Section 2.1.4 Implementation ”. f. Delete and replace text for Site 2 in table in “Section 2.1.4 Implementation ”. g. Delete and replace text for Site 2 in table in “Section 2.1.4 Implementation
a. Delete and replace Figure 2. 12. 42P2009 2009 October 05 b. Delete and replace Figure 3. c. Delete and replace Figure 4. d. Delete and replace Figure 6. 2.0 Banff Trail - Land e. Delete Site 8a from Commercial Land Table contain Section Use Development. in Section 2.0 Banff f. Add Site 4a to the Residential Land Use Table contained Trail - Land Use and Development.
Plan (Bylaw 7P86) to a. Rename the Banff Trail/Motel Village Area Redevelopment 13. 17P2011 2011 October 03 the Banff Trail Area Redevelopment Plan. Area Redevelopment b. Replace all instances of the text “Banff Trail/Motel Village Plan ” with “Banff Trail Area Redevelopment Plan ”. with “Banff Trail. c. Replace all instances of the text "Motel Village/Banff Trait” d. Delete and replace Figure 1. e. Delete and replace Figure 2. f. Delete and replace Figure 3. g. Delete and replace Figure 4. h. Delete and replace Figure 6. i. Delete and replace Figure 7. j. Delete and replace Figure 8. k. Delete and replace Figure 9. l. Delete Figure 9, Figure 10 and Figure 12. m. Renumber Figure 13 to Figure 10. n. Delete and replace text in the Executive Summary. o. Delete and replace text in the "Preface ”. ”. p. Delete and replace text in "Section 1.1 Study Boundaries q. Delete text in "Section 1.2 Goals". r. Delete Section "3.0 Motel Village - Land Use & Development" Vehicular Circulation s. Delete text in "Section 4.3.1 Road Classification and System ”. t. Delete "Section 4.3.3 Road/Access Improvements ”. ] I ! , i ,
Amendment Bylaw Date Description 17. 1P2019 2019 January 14 a. Delete and replace Figure 2. entitled ‘Land Use Plan ’ by changing 0.14 hectares ± (0.36 acres 18. 20P2019 2019 March 18 a. Amend Figure 2 ±) located at 2202 and 2204 - 25 Avenue NW (Plan 8543GN, Block 2, Lots 1 and 2) from 'Low Density Residential ’ to ‘Low Density Rowhouse ’.
2.1.2 Context, after the last paragraph, add new text. 19. 56P2019 2019 July 29 a. Section b. Amend Figure 2 entitled ‘Land Use Plan ’. c. Under Section 2.1.3 Land Use, delete the subsection entitled ‘Special Study Area' in its entirety.
‘Land Use Plan ’. 20. 65P2019 2019 September 30 a. Amend Figure 2 entitled b. Amend Figure 3 entitled ’Maximum Building Heights ’.
Amended portions of the text are printed in /ta//cs and the specific amending Bylaw is noted. have been embodied for ease of reference Persons making use of this consolidation are reminded that it has no legislative sanction, and that amendments when interpreting and applying this Bylaw. only. The official Bylaw and all amendments thereto are available from the City Clerk and should be consulted , J i í
Banff Trail Area Redevelopment Plan Table of Contents PAGE PAGE
3.0 CIRCULATION SYSTEMS...... 28 EXECUTIVE SUMMARY 1 3.1 Objectives ...... ;...... 28 PREFACE ...... 3 3.2 Context ...... 28 3.3 Policy ...... 30 1.0 INTRODUCTION...... 5 3.3.1 Road Classification and Vehicular 1.1 Study Boundaries 5 Circulation System ...... 30 1.2 Goals ...... 5 3.3.2 LRT Alignment and Stations ...... 31 3.3.3 Vehicular Traffic and LRT 2.0 BANFF TRAIL-LAND USE Related Traffic Issues ...... 32 & DEVELOPMENT...... 6 3.3.4 Bus Service ...... 33 2.1 Residential Land Use ...... 6 3.3.5 Pedestrian Circulation ...... 33 2.1.1 Objectives ...... 6 3.3.6 Planning Process for Major 2.1.2 Context ...... 6 Roadway Improvements ...... 34 2.1.3 Land Use (11P2016) 8 Design (11P2016) 12 2.1.4 Building Form and Site 35 FINANCING IMPROVEMENTS. 2.2 Commercial Land Use ...... 16 4.0 2.2.1 Objectives ...... 16 ...... 36 2.2.2 Context ...... 16 5.0 IMPLEMENTATION Plan Monitoring and Review ...... 36 2.2.3 Policy...... 16 5.1 5.2 Impact Monitoring and Action Programs 36 2.2.4 Implementation ...... 18 5.3 Public Involvement ...... 36 2.3 Open Space, Community & School Facilities ...... 22 2.3.1 Objectives ...... 22 2.3.2 Context ...... 22 2.3.3 Policy...... 24 2.3.4 Implementation ...... 25
i Table of Contents OFFICE CONSOLIDATION
EXECUTIVE SUMMARY
Banff Trail Land Use and Development
Residential Land Use Open Space, Community and School Facilities
In April 2013, Council directed administration to work The existing City-owned open space and community with the Banff Trail Community Association and other related facilities will be retained and improved, where local stakeholders to identify potential areas for modest appropriate, A "Needs and Preference Study” will be intensification, consistent with the policies of the Municipal undertaken to identify the recreational, cultural and social Development Plan and Transit Oriented Development. As needs of the residents. Re-use of the William Aberhart a result of this work, the Banff Trail Area Redevelopment School site for open space purposes is recommended, Plan has been amended. The amendments primarily impact if the site is declared surplus in the future by the Calgary residential development and include policy and guidelines School Board of Education for educational purposes. intended to accommodate modest redevelopment while contributing to the existing character of the community. In Motel Village Land Use and Development addition to identifying appropriate areas for intensification, the policies provide direction regarding appropriate land In June 2007 Council approved a work program to uses, building scale, built-form and overall character for strategic, innovative and station area specific redevelopment in the community. Bylaw 11P2016 develop plans for several key LRT station areas. The Banff Trail Station was identified as a priority and with community Commercial Land Use and stakeholder input and direction; a station area The existing local commercial designations within the plan was developed from 2008 to 2010. This plan was community will be retained. Further commercial expansion approved as the Banff Trail Station Area Redevelopment into the existing residential area is strongly discouraged. Plan in October 2011. Any redevelopment in the Motel Physical upgrading of existing shopping areas is Village area is within the policy area of the Banff Trail encouraged to improve their vitality and image within the Station Area Redevelopment Plan. community. Bylaw 17P2011
The allowable height of the commercial district along 16 Avenue NW is reduced from 46 to 23 and 27 metres but retains the maximum density provision of FAR 3. 16P86
Executive Summary 1 OFFICE CONSOLIDATION
PREFACE by Council when the City of Area Redevelopment Flans (ARP’s) are planning Note: This ARP was adopted 2P80 (,!2P80”) was in effect. As a documents, adopted by Bylaw, which set out a Calgary Land Use Bylaw use districts both in its text comprehensive program of land use policies and other result, the ARP references land no longer current New land use planning proposals that help to determine and guide and its maps which are to all parcels in the City, pursuant the future of individual communities within the city. As districts have been applied Bylaw 1P2007 (“1P2007 ”), such, an ARP is intended to supplement the Calgary Land to the City of Calgary Land Use 2P80 districts to Use Bylaw by providing a local policy context and, where effective June 1, 2008, which transitioned it is important appropriate, specific land use and development guidelines, the most similar 1P2007 district. Therefore, the new land use maps on which the Approving Authority can base its judgement for the user of this ARP to consult what the actual land when deciding on community planning-related proposals. associated with 1P2007 to determine or specific site would be. While districts and their accompanying rules under the use designation of a general area applications will be processed Land Use Bylaw apply uniformly throughout the city, Any development permit development rules set out in an ARP provides a community perspective to both the pursuant to the districts and existing land use districts and to proposed redesignations 1P2007. of specific sites within a community. Bylaw 22P2008 Notwithstanding the foregoing, the user should be aware that where the ARP guidelines and policies reference a same guidelines and policies The expected planning horizon of the Banff Trail Area 2P80 district in the ARP, the identified by the district on Redevelopment Plan is five to fifteen years. This may vary will be applicable to those lands considered by the approving in relation to the general growth trends in the planning an ongoing basis and must be notwithstanding that the area. It is important, therefore, that an evaluation to judge authority in its decision making, have no further force and the Plan ’s effectiveness in meeting its objectives be 2P80 districts, strictly speaking Bylaw 22P2008 undertaken within approximately five years of its approval. effect.
The Banff Trail Station Area Redevelopment Plan was adopted by Council in October 2011. Any redevelopment in the Motel Village area is within the policy area of the Banff Trail Station Area Redevelopment Plan, Bylaw 17P2011
3 Preface OFFICE CONSOLIDATION
1.0 INTRODUCTION
To determine any required measures to Boundaries c) 1.1 Study mitigate potential adverse LRT related impacts; The boundaries of the Banff Trail Area Redevelopment Plan are illustrated in Figure 1 To optimize the recreation and open space (Page 4) and are summarized as follows: d) resources available in the community; • North: Money Trail, Canmore Road NW To minimize incompatibility of land use and • West: L.R.T. right of way e) to ensure a compatible building transition • South: 16 Avenue NW between Motel Village and the community • East: 18 Street NW of Banff Trail; The Area Redevelopment Plan is comprised of To resolve local planning issues/concerns the community of Banff Trail. The study area f) identified through the public participation covers a total area of approximately 121 hectares and planning process; and (306.5 acres). Bylaw 17P2011 g) To implement planning policies of the 1.2 Goals Municipal Development Plan and other relevant Council policies pertaining to the The goals of the Banff Trail Area Redevelopment study area. Bylaw 11P2016 Pian are: Bylaw 17P2011
a) To establish a policy framework in directing and managing change and growth;
b) To create and maintain land use and community stability;
5 1.0 Introduction OFFICE CONSOLIDATION
\ % // . • Ç'XXV VT / C\ v \ c / X N , Banff Trail \ V ,i~ / , 7\ / vy i Area Redevelopment Plan j [ VL a VA V^T r- ] [ “T - ''—^ F \\ \ \ \ Figure 2 / I
J V V- v- Land Use Plan X' North Capitol Hill \ Regional Park \L < \\ Confederation Park Legend m I Golf Course LRT Station \ LRT Line University of Calgary \\vij * '¡f- - - - Plan Area Boundary \ NY'! 1 \\Sf3Ctí5 Î7ÀVHW __ T3ÜJ \ ir 1 i,*VNVi' o o S3 Community Centre \ \ \ ) .][ _ h----*-*"mT* j rAVgJ p- ^ 'm ' ^ avb lx11» j! Low Density Residential ^ V\l 22 stlwAt:3. : Low Density Rowhouse s I j 2464 23 St Medium Density Low-Rise (2460 23 St a; Foothills ]L Athletic Park Mid-Rise f\vL\ W\ Vv\k¿=ní ..£ -j Medium Density |2471 23 SL Î cz Local Commercial □CDC ^a \ SmSssr HHE General Commercial \ k ■ cm cm«c ]C ■%\\\\Vi L McMahon OK 36 AV NW ______Park, Community Facility or School v D [ □ \ Stadium i'XP’fr s mxxv \vqm n tUS! ic I \ -W?IkvEX LCZ] I» / [...... I ic Motel ! Approved: 7P86 Village jit Amended: 65P201 9 \\ f HALIFAX CR MW I ■ This map is conceptual only. Z Y GaS i Y' Q No measurements of \\ 1BAVNW ,mm m m * n distances or areas should / , ni be taken from this map. \\ 300 400 500 600 \ 0 100 200 fA \\^á yy LÎ i ñ nnnnmPQnnnn^ ir~i rnr 3 Metres 7 2.0 Banff Trail - Land Use and Development OFFICE CONSOLIDATION
Low Density Rowhouse a. In order to facilitate the delivery of affordable and non-market housing, the Approving The Low Density Rowhouse area is intended to allow fora Authority is encouraged to consider parking modest 'mere îse in density with a greater variety of housing relaxations for proposed affordable/non types while s ill being in scale with the existing context. market housing development where it is demonstrated that the proposed development 2.1.3.4 New development should be low density grade- would have a reduced automobile ownership oriented residential development such as rowhouse rate and that the development is secured buildings, duplex dwellings, semidetached through an agreement to ensure long-term dwellings, single-detached dwellings and cottage use for low-income households. housing clusters. b. Consider time restrictions and residential Medium Density Low-Rise parking permit zones as tools to manage on-street parking issues associated with The Medium Density Low-Rise area is intended to allow for multiresidential development at 1917, 1921 a low-rise bw It form (approximately 3-4 storeys) that can and 1925 - 19 Avenue NW. Dwellings in new provide fora modest increase in density while not being out multi-residential development are not to of context wi h the existing character of the area. receive parking passes regardless of their on site parking provisions. 2.1.3.5 New development within this area should be limited to medium-density low-rise residential devt ilopments and includes townhouses, c. A development permit for a new multi apaitments, and Uve/work units. residential development for the lands at 1917, 1921 and 1925 -19 Avenue NW shall require 2.1.3.6 Red evelopment of individual parcels should decision by Calgary Planning Commission. demonstrate sensitivity with the neighbourhood com ext through building scale and design while encouraging innovation in design.
2.1.3.7 For he sites located at 1925, 1921 and a portion of 1917-19 Avenue NW the following policies shall apply:
2.0 Banff Trail- Land Use and Development 9 OFFICE CONSOLIDATION
// / // c> ' ■'z Banff Trail y / / / i A. \ / V ■ 1, n Area Redevelopment Plan >0 : [ j t II l Figure 3 : \ 7 Maximum .f XS.N \m ■7 A North Capitol Hill y Building Heights Regional Park Confederation Park Legend VS- A Golf Course V'Ts cíioinfl'ft' rtu rírí -, V;77x S LRT Station LRT Line University of Calgary ■School: •sir mi - - ” Plan Area Boundary \\yHcyrAvm~ :f:ÁVNW,II ozr O r/O # Community Centre
Park, Community Facility or School t Maximum Building Heights \ lv,'F.Sy'T‘11 ■ ÍT i:_7^ --’iO'.'N L.-,..'.-d i_i— ■ DC 10m Foothills IC Athletic Park Clmfafial 11 m \3- §_ g- Cv- Tn S ■s, I 12m E Cy rTTi ' 14m CTC\\ ecociijoi \\\ MAVNW Ct—J|û- 16 m \ McMahon \ Stadium i; ' 7 i~.-~ir DC m [~ i i{r 20 m \ r^n n~i«r ,/ ,.\\v___ J t zee As Per Land Use Bylaw \n r I Approved: 7P86 h f I ZC'I Amended: 65P2019 TC^ÈÏioËjjj T ■" IC This map is conceptual only. Lx'/ ia 1GAVHW M M M Bi M ■M M iff No measurements of \ distances or areas should ¡j 'A^f \ be taken from this map. \ ' ¿0 -s 0 100 200 300 400 500 600 ircw \CiHnnmmmaannmi H I nr Metres 2.0 Banff Trail - Land Use and Development 11 I ; i j I OFFICE CONSOLIDATION
character, the following guidelines should be 2.1.4.14 All new residential units should be provided with considered: private outdoor amenity space, either exclusive to a. Front yard setbacks similar to adjacent an individual unit or as a common amenity available properties; to all units within a development. Common amenity space may be provided at or above grade, within b. Preserve mature vegetation and encourage courtyards, behind façades, or on rooftops, landscaping treatments which enhance the terraces or as ground-level patios that may be streetscape; completely or partially visible from the street or c. Scale, massing (shape), height, compatible other buildings. with surrounding properties; d. Wall-face, roofline orientation, building 2.1.4.15 For buildings with a frontage of over 60 metres material and building details (e.g. windows, in length along the street, the overall mass of the entries, etc.) reflective of community building should be broken up with changes in character; width, height, and finishing materials along the façade. Building facades should not exceed 15 e. Front building entry; metres in length without a change in plane or f. Parking and vehicular access from lane way. material. Medium Density (Low-Rise and Mid-Rise) 2.1.4.16 New development is expected to be oriented 2.1.4.12 For taller buildings (greater than 4 storeys) a towards the street and to support a pedestrian- shadow study may be required for the hours of friendly environment. Setbacks greater than 5 10:00 and 16:00 MDT on March 21 and September metres along the street frontage are strongly 21, to determine the shadow impacts on adjacent discouraged. properties. 2.1.4.17 Corner parcels at prominent locations near the LFtT 2.1.4.13 In order to be sympathetic in scale and level of stations are encouraged to redevelop as gateway- articulation to existing and potential development type buildings which have a high level of design within the community, new multi-residential and material quality. development is encouraged, within the first two storeys, to consider staggering the principal front 2.1.4.18 Where common building entries are provided, it is façade of one unit with the principal front façade of recommended that these be located on corners adjacent units. when possible.
2.0 Banff Trail - Land Use and Development 13 OFFICE CONSOLIDATION
' / % ■ —A
2.2.S.4 New infill development on existing undeveloped commercial sites should have due regard for the character and amenities of adjacent residential uses.
2.2.3.5 Sites within the local commercial areas may be considered for greater height and density provided the development includes residential uses above the commercial uses and any increases in height and density are sensitive to and fit with the local context. Bylaw 11P2016
2.0 Banff Trail - Land Use and Development 17 I I ! i 1 OFFICE CONSOLIDATION
DEVELOPMENT EXISTING L.U. RECOMMENDED RECOMMENDED ACTION REQUIRED SITE DESIGNATION LAND USE POLICY DENSITY GUIDELINES
deleted Bylaw 11P2016
deleted Bylaw 11P2016
deleted Bylaw 11P2016
deleted Bylaw 11P2016 Bylaw 1P2013
5. C-1 • C-1 • N/A • C-1 - land use guidelines. • The Community Association • Low density, local • To reflect the intent of the land in cooperation with the City commercial uses. use policies, the following site will send a letter to property planning and development owners/businesses to urge considerations should them to improve the physical be incorporated into new appearance of the shopping development where possible; areas. * Existing land use designation a) A building form and to be retained. orientation which respects the privacy and scale of adjacent low density residential uses; b) Continuous frontage with ground level local oriented commercial uses to encourage pedestrian activity; c) Design features including roof and wall face details, canopies, landscaping, street furniture, etc.; d) Effective landscaping and fencing for all parking and storage areas; e) Access to vehicular and loading areas oriented away from residential laneways; f) Provision of adequate parking facilities to ensure no overspill parking in adjacent residential areas.
5a. Amended 9P99 Deleted 9P2004
* See Figure 4 for site locations. Bylaw 11P2016
2.0 Banff Trail - Land Use and Development 19 :
^ c-v. ¿y ^ , C^J. & ^ ■ & .“r^j, o¿p O .'o-^c o ETZ ^^■0cap ° ¿ =ú ^^a¿;ú ^ oû ^^0o 0^ Figure £3 -, Ül SIMON FHASEH Ó
3 .^. C BRENTWOOD n PATRICK Parks ^SENATOR CX .' ELEMENTARY ^ BURNS^JR.HIGH r ¿7 ■ 'COLUNGWOOD •d?" -rx> ELEMEPfTAHY ? r. o .• 7 : C>P é 5* - L*' ° -Ql ■ \¿> \o _-' &S1, 1 o 1 SN o ■ *3 -Ci XsT. FRANCIS. N 3 ÎHItÿ SCHOOL^ Ï ITT1 BAN FF‘TRAIL \ elementar ^-— a V 32 AV NW C^> *< •ON Tr -] Tfes'lfl^blcS..-, ■ .^o^b <=,.. . I ■'¿. I ^0<::^CÔnfederàiloiiiRaîl<- :>0c::> rr hÎi Unversity^ W1 LLiÀmWÂb Ë Â l’o '' -¡ ¿y ■ 0 •. Soil Gpjrse ■ ' ¿7 ‘ c| \ VHMÉg^Hj Of Calgary pb ^ fo>,b .'O^ x.es ÿ X • ■ ¡3 Hi CP. o [S] [Sj Fx N j7 24 .oAVlTiwT o ■ 24_av [twJ nX-X cn Nolo: Based on intomral ST. PIUS i o • • <±> Foothills^' . . c as of Juy 10fi4 elementary rr” ;AlheUc Park ^ TON a TÍL^>jrThigh 7P86 Approved: t sir-wiluamS^ÍÍ'0 ci o Amended: 11P2016 -M.VAN HORNE Ç\\^o- XX - ^rv \3 ■tcAFITOL HILL O 'i- #,GV\ Vv ’ McMaiow- rgCjXi^.Vl FMFNTAHY, JjNIVERSITY\__\ 3 StaiJiumr-^ ¡c c tv or 3 5 ^ELEMENTARY d Imi CALGARY KD te F bMcHlM i 9 [S £ .\v.‘hx'_v ■»lil,R ion <
OPEN SPACE
d c Acllve Open Space
3a5sîv« Open Space S »^ Regional Park % « ï
Visua Buffer B X Confederation Park UNIVERSITY \\ ’ 0 Golf Course School Site 0 * à STATION \\ —I (N 0 » % K % 0 Cunrnunily CenL'e u > ai • William ^ R Comnunity Hese've University H' 3 %rHSrt ^. ■ Of Calgary % ¿SchœUyA^ iV Overpass ^Trii , x.% JlL ^ ITT LandsoapingFacllity Imoro'rcmsnt o o % ■¿G:w:mr B ka/rjyy (or slruol) '¿ L\U~^ F. r^: I N AV N\\ CO s t_ W ¡S ♦ ♦♦■» Palhways (clislrBB.)1 &E n ^1 r20v_Kiw. •£) Uj9 m, st o±L- Foolhills 3E ■ ■ ■ ■ ■ Proposed BkewayPaUnvay Athetic Park ^>^0
■ I l^i I HI Alignment & Staten % .0 Branton ■EAPIT0L— L- V, ^School I . CJ rau: mm mm 1 ^rea Ftecev8 J°Pme/l1 Pf®1 Study A'ea Boundary '3 BÂNFFxTRAIE E # STATION ' n N i 3E McMahon 9 Sladium
\\hkj» <\«t‘tfc\‘A"i\-Ai'ii ynpV*' ü|k <‘>|wi>.'A'ÿi IE v mm 16 foi NW DATT ’-OTO): '.tMvOV*2010 ^SSiEE J 0 100 200 North Hill I Shoppng Centro BRIAR HILL metres J 1 li; 11 pr 23 OFFICE CONSOLIDATION
2.3.3.5 The Banff Trail Community Association and the 2.3.3.S Re-use of the William Aberhart school site/facility Parks/Recreation Department, in conjunction for open space and community related activities with the Social Services and the Planning & be undertaken, if the site/facility is declared Building Departments, will undertake a “Needs surplus in the future by the Public School Board and Preference Study” in the community after for educational purposes. approval of the ARP to identify the residents ’ social and recreational needs, as well to 2.S.3.9 The Parks/Recreation Department with input determine the present status of existing facilities from other civic departments and the community and services available to the community. should review and improve the bicycle/pedestrian system within the community. Priority should
2.3.3.6 In light of the City’s limited financial resources, be given to the provision of a bikeway/pathway the Parks & Recreation Department should along Capitol Hill Crescent, linking the Briar Hill encourage joint provisions of recreational community to the LRT stations and the University facilities and programs between the public, grounds, to facilitate and funnel non-vehicular private and volunteer agencies. Community access to and from the desired destination points support/self help programs in undertaking in the area. improvements and maintaining facilities within the community should actively be promoted. 2.3.3.10 Should Fire Station #10 (1711 - 20 Street NW) be relocated, alternative community uses,
Programs, such as the City’s “Adopt a Park” including provision of senior citizen housing scheme, would assist in turning the under and consolidating the site with the adjacent NW should be utilized open spaces into valuable assets to the open space along 16 Avenue community. As well, such activities could foster investigated. the community spirit and provide considerable opportunity for social interaction among 2.3.4 Implementation residents. To implement the policies related to the open 2.3.S.7 Implications on local open space distribution as space, community and school facilities, a term well as potential social and economic impacts summary of required immediate and long on the community, due to loss of school sites, actions for the individual sites is provided in the should be reviewed if school closures are following Table. proposed in the community.
25 2.0 Banff Trail - Land Use and Development U— c. OFFICE CONSOLIDATION
* EXISTING LU. RECOMMENDED COMMENTS/ACTION SITE DESIGNATION LAND USE POLICY REQUIRED
11. Community PE • PE • "Community Reserve" and PE designation to be retained. Association Hall • For open space and Site recreation uses. • The Parks/Recreation Department to assist the community in reviewing the space adequacy and physical conditions of the community association building as well as the usage and improvements on the balance of the site.
• The Parks/Recreation Department to assist the community to implement any required action including rehabilitation, addition of new facilities or rebuilding of the existing hall, through appropriate community sponsored programs and/or government assisted programs (e.g. Community Recreation/Cultural grant programs).
• The "Needs and Preference Study" will assist the City in identifying the special recreational needs and the required park improvements in the area.
12. All other R-2, PE • For open space and • Current "Community Reserve ” and "P E" status to be open space sites recreation only. retained for sites having "PE" and "Reserve" designations. (Figures 6 and 8) • For those sites having R-2 designations, redesignation from "R-2" to "PE" is required.
• The "Needs and Preference Study" wi I assist the City in identifying the special recreational needs and the required park improvements in the area.
* See Figure 4 for site locations. Bylaw 11P2016 2.0 Banff Trail - Land Use and Development 27 : ) I
'■--j
Figure BANFF TRAIL ARTA RrGrVriOPM"NT HAN 7 &s m TRANSPORTATION ¿\v NETWORK T&P'X % \ Freaa'a/'ExpiOKOway X ; % ms/ 'V ÍÍV North Capitol Hill wiïm % Regional Park '%• < Major ftreels -a Ï Colleclar Streets S 1 Confederation Park UNIVERSITY yi «SHmnsM Golf Course LHI AJIonnont & Stntbi ntrü 'A STATION X ' V'"C. ^ ■ ■ ■ I LOT Undoiground i3 SSrSk . Ë tMMu Feceslrian Overaass University UMl ^ejtTartJ IV ,in Of Calgary ÎScl>ooiîJr L1^ 2 Aroa Subject :o Calgary Irattc s Bylaw 40M80 (arended by WM&l m~r Bylaw 32M8A) Hosidortial SOUTHBOUND LANES o o V h - I Parkng Zone “ OF CROWCHILD TRAIL ! i~' < Vv. RECONSTRUCTED— i 3 i Note: I r c., ..I— - la V TV »24rAV»NWi I n) Ronowny Sranderds tim T '¡V" I-'T xs. shown in BylflwílMñ? tJIijVi ; . -vr: ?24rAV-KW—— Anvsrned by Bylaw MMflA . \V ÏM b) Stations ha\s ret been X\ v?’ as yel. «•» TVi \ F officially named Foolnills Ty\r ...... iaMaaggg B Athletic Park 3E i ...... f-j. LRT mm -*n \ \ _ _ "T\ Park 'n'Ridev 1! V Site N ?'0TAO«3E McMahon Sladium 1 2 VaTïT III n Approved: 7P86 n\V_|3î 31t I Amended: 11P2016 1 —Motel Mr ‘=f X' Village 'VW& \\ y/».. • - , i : ^erAV-NAv: \ s n rorvor § N\\ V. T CALGARY T [ IE .V/ArrycOtítlun wjfc-^rAlljn )6>AVaNWHM DATE ItOTTEÜ: 16-NÜV-2010 Reconstructed T "^| | || |~ North Hill 0 100 200 VO iA hWy| 1 Shopping Centre — metres 1 OX 29 OFFICE CONSOLIDATION
LRT Alignment Collector Streets: From a tunnel under the intersection of 16 • 19 Street NW and 19 Street NW, the LRT line emerges • 20 Avenue east of 22 Street NW Avenue the north side of 16 Avenue and follows the • 24 Avenue east of Crowchild Trail NW to 14 on old Banff Trail (1A Highway) right-of-way between Street NW Village and Capitol Hill Crescent. The line • Banff Trail and 23 Avenue between 16 Avenue Motel continues north, entering a tunnel south and Crowchild Trail NW in Motel Village. then of 24 Avenue and emerging in the median of Crowchild Trail. The line ends just south of 32 Local Residential Streets: Avenue North at this stage. The line will ultimately be extended along Crowchild Trail in future • all other community streets stages. Freeways/expressways and major roads expedite the movement of high volumes of traffic between LRT Stations various areas of the City. Collector streets Trail Station, located south of 23 distribute traffic between major and local roads The Banff in Motel Village, consists of two side and also function as bus routes. Local residential Avenue platforms with pedestrian/cyclist access streets provide access to abutting properties and loading Motel Village and Banff Trail via a paved may also be considered for closure in order to from create usable open space or control particular pathway. traffic problems in the community. The University Station, located in the widened median of Crowchild Trail, consists of a centre 3.3.2 LRT Alignment and Stations loading platform with access from the University and Capitol Hill Crescent via a pedestrian The City of Calgary Transportation Bylaw overpass. also incorporates the Banff Trail (Highway 1A) alignment for the Northwest LRT system in the The park ’n ’ride facility, consisting of Banff Trail community area. approximately 400 parking stalls, is located in the McMahon Stadium area, west of Crowchild Trail. Pedestrian access to the park ’n ’ride and other transit related facilities will be via an elevated pedestrian walkway over Crowchild Trail.
31 3.0 Circulation Systems OFFICE CONSOLIDATION
3.3.4 Bus Service 3.3.5 Pedestrian Circulation
The area is adequately served by a system of bus The pedestrian circulation system is important routes. Calgary Transit will revise the majority of to the optimal functioning of the LRT stations the bus routes in the northwest section of the and in linking up the stations with the City with the implementation of the Northwest developments in Motel Village, the University, LRT system. Prior to finalization of the bus route the recreational facilities in the Stadium area and network, meetings will be conducted with the the communities of Banff Trail and Briar Hill. The affected communities to gain public input. major pedestrian circulation linkages, identified below, are retained: Current plans indicate that the bus services will focus on the University and Banff Trail Stations. • Connection from McMahon Park’n ’Ride site to Taking into consideration the volume of buses the Banff Trail Station across Crowchild Trail expected to be serving the Banff Trail Station, NW. A pedestrian overpass over the Crowchild a traffic signal is planned to be installed at the Trail will be provided in conjunction with the intersection of Crowchild Trail and 23 Avenue NW LRT construction. to allow southbound feeder buses to safely turn around and access northbound Crowchild Trail • Connection from the University to Capitol via Highway 1 A. A bus bay will be constructed Hill Crescent NW across Crowchild Trail. on the south side of 23 Avenue to serve the The existing pedestrian overpass will be Banff Trail Station. It is noted that extension of reconstructed and relocated to approximately the approved Northwest LRT line to Brentwood the intersection of Castle Road and Capitol (Crowchild Trail and 31 Street NW) will eliminate Hill Crescent NW in conjunction with the LRT the feeder bus service at the Banff Trail Station. construction.
• Connection from the community of Banff Trail (Capitol Hill Crescent) to the Banff Trail Station. A localized at-grade pedestrian crossing will be provided in conjunction with the LRT construction.
• Connection from Briar Hill to the Banff Trail Station. The existing pedestrian overpass across 16 Avenue N will be retained.
3.0 Circulation Systems 33 OFFICE CONSOLIDATION
ii) The costs of sidewalk and lane 4.0 RNANCÏNG IMPROVEMENTS improvements are generally Dome oy the adjacent owners through Local The Plan has recommended improvements/ Improvement Bylaw changes. programs for purposes of improving the physical environment, quality of life and accessibility for iii) Feasibility of using otner government the community. The cost of these recommended
improvements may oe borne in the following sponsoreo orograms for capital ways: improvements or maintenance should be explored, these programs are targeted to i) The City’s annual budgetary process encourage community groups or individuals is the key means by which priorities to build, maintain and operate community
are determined for the various capital facilities that might previously have been
improvements which will be constructed a municipal responsibility. Such programs during the fiscal year. may include the Provincial Government ’s Community Recreation/Culturai grant and
The exoenditures for programs such as the City’s Adopt-a-Park program. conducting traffic management studies, assisting communities in needs and iv) The Federal Government ’s Residential
preference stud'es etc. will be incorpo-ateo Rehabilitation Assistance Program (RRAP'
in the annual Ooerating Budget of the offers a combination of grant-loan for
responsible civic departments, while home owners to upgrade their properties programs related to the construction of in designated RRA? areas in the City. This pedestrian facilities, road and access program has been very eFec^ve in restoring improvements and park development and extending the life of many homes in are generally included in the annual the inner city neighbourhoods as well as Capital Budget ot the responsible civic contributing to the stability and health of departments. As the exact timing and the designated communities. The Banff Trail community, characterized by homes built nature of the recommended improvements in the 1950’s and having a high percentage have not been identified at this time, it is recommended that the responsible civic of senior citizens on limited incomes, could oenefit substantially from this program. departments coordinate and incorporate the
identified municipal improvements into the It is recommended that Banff Trail be recommended for the RRAP designation annual budget review as warranted. when funding becomes available.
4.0 Financing Improvements 35 ! : i i OFFICE CONSOLIDATION
FIGURE 10 PLANNING AND IMPLEMENTATION PROCESSES
Notification Open House Open House PUBLIC Formulation On-going Contacts and Regular Meetings with C.P.A.C. Implementation PARTICIPATION of C.PjÆC • Land Use Formulation Circulation Amendments • Study Generation Evaluation of and Statutory • Action Organization Resolution of Public of of Land Use Policies C.P.C. • Programs Concerns/ AREA • Data Land Use Land Use Hearing • Monitoring and Outstanding REDEVELOPMENT Collection Alternatives Alternatives Recommendations Issues of Council • Review PLAN STUDY • Issue PROCESS Identification • Analysis Impact Assessment
Impact Assessment • Data Analysis Selection of Alignment • Land Use/ Non-Statutory ALTERNATIVE • Define Alternatives and Community Public Hearing AUGNMENT • Evaluation • Environmental Formulation of EVALUATION • Criteria of • Transportation Council STUDY Formulation Recommendations • Financial
PUBLIC Meeting Meeting Public Open House PARTICIPATION with with and C.P.A.C. C.P.A.C. General Meeting
5.0 Implementation 37
TAB
2 RSA 2000 Section 47 'AND TITLES ACT Chapter L-4
Registration of trusts 47 No memorandum or entry shall be made, on a certificate of title, of any notice of trusts, whether expressed, imphed or constructive, but the Registrar shall treat any instrument containing any such notice as if there were no trust, and the trustee or trustees named in the instrument are deemed to be the absolute and
bénéficiai owners of the land for the purposes of this Act. RSA 1980 cL-5 s51;1999 clO sll
Registration of restrictive covenant 48(1) There may be registered as annexed to any land that is being or has been registered, for the benefit of any other land that is being or has been registered, a condition or covenant that tht land or any specified portion of the land, is not to be built on, or is to be or not to be used in a particular mann er, or any other condition or
covenant running with or capable of being legally annexed to land
(2) When any such condition or covenant is presented for reejstrat 3n, the Registrar shall enter a memorandum of it on the propel certificate or certificates of title.
(3) Notwithstanding subsection (2), before a memorandum of a
condition or covenant may be entered on a certificate of title under
subsection (2), certificates of title must exist for all the parcels of land affected by the condition or covenant, including the parcel of land that comprises the servient tenement and the parcel of land that comprises the dominant tenement.
(4) The first owner, and eveiy transferee, and every other person deriving title from the first owner or through tax sale proceedings, is deemed to be affected with notice of the condition or covenant, and to be bound by it if it is of such nature as to run with the land, but any such condition or covenant may be modified or discharged by order of the court, on proof to the satisfaction of the court that Lhe modification will be beneficial to the persons principally
interested 11 the enforcement of the condition or covenant or that the condition or covenant conflicts with the provisions of a land use bylaw or statutory plan under Part 17 of the Municipal Governniem Act, and the modification or discharge is in the public interest.
(o') The entry on the register of a condition or covenant as ru nning with or annexed to land does not make it run with the land, if the
covenant or condition on account of its nature, or of the manner in which it is expressed, would not otherwise be annexed to or run with the land.
26 TABS
Kenny
K.
All
Introduction Lots
Facts
Respondents,
Counsel:
Restrictive
2
1
J.
of
Rogers
33-42,
Restrictive
The
the
and
J.:
A.W.L.D.
Larry
2005
B.K.
the
affected
Appellants,
And
Background
Covenant
Block
for
(3d)
Land
Larry
Simon
Dell
Grant
CarswellAlta
Respondents
In
Grant
Covenant
568,
lots
12,
being
the
347,
for
Titles
and
In
2178
Plan
A.
Palmer
are
Simon
Appellants
Matter
37
Palmer
Teresa
[2006]
the
Barker
located
AG
R.P.R.
Office
331AB
2178AG
Chapter
and
1679,
(the
in
Matter
Alberta
Palmer.
of
Judgment:
and
A.W.L.D.
Docket:
and
Relation
Heard:
in
for
an
(4th)
Sandra
by
"
Restrictive
the
2005
was
Teresa
Application
The
William
Sandra
Barker
2005
neighbourhood
Court
201,
registered
L-4,
September
Calgary
of
Barker,
South
ABQB
to
Kenny
348,
November
Margaret
ABQB
389
the
Certificate
J.
of
Scott
v.
Covenant")
R.S.A.
Barker
Queen's
[2006]
Alberta
Palmer
appeal
815,
A.R.
by
0501-11402
J.
Land
in
and
815
Teresa
the
8,
of
Palmer
[2005]
10,
Samuel
3,
(Appellants)
2005
A.W.L.D.
a
West
of
Land
Land
Bench
as
from
2005
decision
57
Titles
Title
Margaret
Amended
Alta.
Hillhurst
A.J.
(Respondents)
Titles
M.
the
Registration
No.
Hartronft
title
349,144
of
No.
L.R.
Act,
Office
801-080-159
Master
and
of
in
Palmer
1552,
(4th)
two
Calgary,
Larry
on
against
A.C.W.S.
District
Waller
lots
[2006]
124
March
and
owned
Alberta.
the
in
to
30,
titles
remove
by
1911.
The
the
of
1
6 The Appellants allege that the Restrictive Covenant is a valid one, and that the Appellants are entitled to the benefit of its terms. The Notice of Appeal is given pursuant to Rules 499 and 500 of the Alberta Rules of Court. The Respondents oppose the appeal.
Issues 7 The issues before this Court are: 1. What is the applicable standard of review?
2. Is the restrictive covenant a valid one?
3. If so, can the Court vary or discharge it under section 48(4) of the Land Titles Act, R.S.A. 2000, c. L-4? Should it do so?
Analysis
Standard of Review
8 Appeals from masters to justices proceed on a de novo basis, and are reviewed on a correctness standard: United Utility Workers Assn, of Canada v. TransAlta Corp. (2004), 354 A.R. 58 (Alta. C.A.), leave to appeal to S.C.C. refused, (2005) (S.C.C.). As this is an appeal from the decision of a master, I shall proceed on this basis.
Validity of the Restrictive Covenant
9 Section 48 of the Land Titles Act allows for the registration of restrictive covenants. Specifically, section 48(1) states that: There may be registered as annexed to any land that is being or has been registered, for the benefit of any other land that is being or has been registered, a condition or covenant that the land, or any specified portion of the land, is not to be built on, or is to be or not to be used in a particular manner, or any other condition or covenant running with or capable of being legally annexed to land.
10 For the Restrict1 ve Covenant to be enforceable against assignees of the land of the original covenantors, equity requires that three conditions be met. Rawlins J. of the Alberta Court of Queen's Bench set these out in Crump v. Kernahan (1995), 173 A.R. 123 (Alta. Q.B.) at para 10 as follows:
1) the covenant must be negative in nature; 2) the covenant must be made for the protection of land retained by the covenantee or his assignees; 3) the burden of the covenant must have been intended to nm with the covenantor's land. If any of these three conditions is not met.
3 the
that the
this
the
In
purchased be and imposed
the 15
scheme.
16
Section This
17
owners
constitutes
their
18
20 modification
19
covenant,
a
bound
vendors
fact
Restrictive
Torrens
condition.
the
bestows
valid
and
...the
is
It principally
the
on
covenant
...but
title
The
Finally,
As
is a
I
covenant
that
of
In
proof
48(4)
This
Municipal on
clear
Transfers
am
equally
by
pursuant
Respondents
building
all
the
their
Transferee
or
any
order
a
imposed
the
the
system,
a
it
building
satisfied
of
(2)
is
will
to
lots
indication
of
as
corresponding
Crump
conflicts
and
Covenant
such
other
restrictive
lots
fortified
the
interested
the
registration
the the
for
apply
clear
would
be
to
that
made
scheme,
requirements
Government
on
satisfaction
condition I the
Land
covenant
such
lot
section
will
scheme
beneficial
v.
am
that
from
the
argue
the generally
with
Kernahan
same
owners:
by
that
by
be
imposes
satisfied
an
covenant
also
in
understanding
Titles
restrictions
the
the
the
bound
all
him
the
the
of
48(4)
the
that
benefit
order
restrictions
and
conflicts
or
restrictions
insert
lots
wording
fact
the
of
Act,
provisions
for
covenant
to
enforcement Act
Crump
in
set
covenant
the
is
a
at
the
by
of
that
instrument
the
to
are that
a
applies
the
burden
valid.
out
on
restrictive
para
and
subdivision
similar
the
it.
court
be
would
persons
concurrently
with
resale
all
instrument
each
of
v.
in
the
on
Land
that
granted,
was
17.
Kernahan
were
the
may
of
Elliston
to
of
that
on
all
the
modification
covenants
owner
enure
of
the
of the
all
a
to
covenant
on
Titles
each of
covenant
be
land
principally
the the
provisions
intended
the
run
lots
or
building
title
the
present
the
217
modified
for
v.
modification
condition
as
other
land
dominent lot
use
with
Act.
at
made
lots
Reacher
constitutes
Respondents
each
8
the
para
to
AG
which
owner
bylaw
ought
or
in
Section
the geographical
owners for
or
the
scheme
benefit
part
of
interested
owner
any
applies the
16.
or
discharge
land,
the
or
above
a
and
states are
to
in
or
discharged
scheme.
of
part
land
covenant
will
be
clear
benefit
48(4)
relation
and
statutory
of
was
met,
the
is
and
servient
to
must
modified
thereof.
that:
the
in
use
a
be
lots
in
their
scheme
beneficiary
notice
is
that
in
circumscription.
the
all
states
There
beneficial
other
the bylaw
in
of
effect,
satisfy
or
3 to
Agreements
by
Restrictive
plan
all
3
tenements.
the
predecessors
all
that
his
enforcement
to
to
or
as
order
present
lots
suffices
is
public
42
of
or
under
the
discharged
that
follows:
the or no
me
in
inclusive
the to
of
statutory
her
requirement
world
of
condition
they
that
the
the
the
and
interest.
Part
lots
to Covenant
the
As
own
For
Instead,
persons
general
burden
satisfy
in
(1)
would
under
future
of
court,
such,
sold.
17
from
Sale that
title plan
lot,
the the
or of
5
Building
covenant
a
27
Slatter 28
both
exist
no
29 (3d)
and covenant
30
Is
case Lots are to It
be
31
enforcement
conflict
is
Modification
comply
conflict
established
in
Slatter
clearly
now the with
it
...The
the
by
Public
restrictive violation 110,
mandatory
C.A.); where
33 This
The
The
compliance
The
J.
conflicts
In
allowing
bylaw
to
Restrictive
of
though
a
been
exists,
or
both
1999
is
order
Appellants
Alberta
with
would
mercantile Appellants second
42
Ts
the
Reference it
possible
and
bylaw
consistent
of
is
comment
of
inclusive
the
established
that and
ABCA
Alberta
covenant.
both
private
or
impossible with the
and
requirements
it for
the
the
exist
with
bylaw
would
necessitates
Discharge Court
part
the
the
covenant
Covenant
a
that
bylaw:
for
erection
the
the
submit
covenant
re
building
submit
with, covenant...That
150
modification
under
both
Court
restrictions
of
currently
in
an
covenant
s.
the
of
land
and
constitute
A
that
the
Potts
(Alta.
51
affected
to
Appeal
Seiffeddine
and
the
Restrictive
conflict
of
the
that
this
or of
in
comply
use
Land
that
and
section
in
or
"inconsistent"
a to
on
restrictive
the
it v.
adds
Queen's
covenant
requires
C.A.).
a
dwelling
test,
the
consist
and
bylaw.
McCann.
must
the
be
the
on
the
land
considered a
public
party
Titles
will
occurs
violation
significance
test
modified
with
Bylaw
provides
the
the
correct
and
test
lots
v.
be
Covenant
In
use
Bench
be
of As
to
non-compliance
is
Hudson's
Act
use
Bylaw.
in
covenant the
house,
is
interest? its
both
shown
in
beneficial as
only comply
A
residential
not
previously
bylaw
must
this
permit
decision,
(1953),
of
test
covenant
of
conflict set
question
this
that
or
states
the
land
met,
the
case.
when
There
as
to,
should
out
is
that
mean
discharged
issue
Bay
covenant
the
necessitates
with
and
opposed
the
one
Bylaw.
Rawlins
can
because
that:
in
10
to
the
will
the
property.
compliance
would
covenant
is
would
Co.
erection
mentioned,
the
that
Potts
W.W.R.
in
of
the
both
fall
co-exist,
with
no
covenant
Court
only
Tanti
impossibility.
Bylaw.
(1980), As
it
persons
to
conflict
as
and
J.'s
under
it
v.
the
is
stand.
the
not
a such,
a is
exist
McCann
of non-compliance
impossible
The comment
v.
(N.S.)
mercantile stated
the
can result.
covenant
admittedly
other.
except
Graden
constitute
As
a
with
conflicts
(supra,
11
section
principally
bylaw
dwelling
the
here.
where
owners
be
such,
Alta.
that:
49
That
the
Respondents
discharged
when
at
That
in
(Alta.
(1999),
and
paragraph
at
paragraph
building,
48(4), to
compliance
L.R.
it
covenant
Crump
with
possible
of
is
a
the
is house
comply
is,
not
the
compliance
violation
the
interested
clearly
T.D.).
(2d)
with
same
a
the
it
the 74
bylaw
conflict
affected
v.
or
must on
on
provisions to
argue
229
Kernahan
requires Alta.
with
41
case
15)
a
varied
time.
the possible
with
comply
the
private
of
where
in
it
(Alta.
either
in
here.
both
with
L.R.
lots,
that
will
lots.
has
the
this
lots
As the
the
if
a
with
2178
of
37
the
AG
Section
Land
In
is
the
a
Titles
23
result,
valid
of
Act.
Land
restrictive
I
would
Use
set
Bylaw
covenant,
aside
No.
the
is
2P80,
Order
enforceable
and
made
cannot
by
and
Master
be
runs
discharged
with
Waller,
the
pursuant
land.
and
find
It
does
Appeal
to
that
section
not
instrument
allowed.
conflict
48(4)
9
TAB
4
south
land 2
FACTS
covenant Hillhurst
covenant one
Slatter
B.K.
1 Counsel:
EDNAHAALAND,
HUGO
FOSTER,
THOMPSON,
2002
house
PATRICK
in
In
Dell,
375,
RHODA The
half
JOYCE
West
BOB
the
J.
RALPH
enforced.
District
:
seek
PJ.
of
issue
[2002]
CarswellAlta
for
early
may
Hillhurst.
Blocks
A.
Major,
Respondents
an
FLEMING,
on
be
part
SLANEY
POTTS, SANDY
order
in
A.J.
GOBA,
this
constructed
J.
28
Calgary
of
TAYLOR,
for
At
McCANN
that
application the
and
No.
Applicants
CHRISTINE
989,
one
last
29,
the
999,
is
time
FOSTER,
LISA
JEANNETTE
BRANT
2002
and
century
on
enforceable.
covenant
Alberta on
JUDY
Docket:
Judgment:
2
Plan
they
two
is
R.P.R.
MARJORIE
Heard: ABQB
whether
SABINE
M.
and
William
owned
331
lots.
Potts
2002
Court
is
FAIRBURN,
Calgary
SUMMERS,
CLARKE-POTTS,
(4th)
of
Slatter
AB.
THOMPSON,
GEORGE The
734,
LUISA
Two
July
August
no
a
v.
all
ABQB
of
Scott
restrictive
Scott
McCann
restrictive
force
134,
of
[2002]
owners
HEMMING,
Queen's
31,
GOUBAU
0201-10825
J.
Block
and
734
and 12,
2002
325
FAULKNER,
and
McCANN
Samuel
2002
of
10
Hartronft
22,
covenant
PERRY,
A.R.
effect.
Bench
covenant
LYNN land
MARK
W.W.R.
the
137,
LENNY
Hartronft
north
Other
(Applicants)
encumbered
sold
on
VAL
provides
5
LISA
(Respondents)
571,
SUMMERS,
Alta.
half
certain
ALICE
FAIRBURN,
owners
off
GERARD
[2002]
owned
of
WALKER,
the
L.R.
FLEMING,
MUELLER,
that
Block
by
lands
wish
lots
(4th)
the
PERRY,
large
no
A.W.L.D.
in
in
23,
to
and
more
restrictive
blocks.
the
have
areas
269
and
JIM
West
than
the
the
of
1
It
8 The record discloses that a number of persons have constructed houses on the encumbered properties, allegedly in reliance on the restrictive covenant. The record suggests that some of these properties are worth in excess of $700,000.00. The record suggests that the parties constructed or renovated properties in this area on the expectation that it would remain a single family neighbourhood, and that the restrictive covenant would prevent the construction of more than one house on every two lots. The lots in question are only 25 feet wide, so effectively there would be one house on every 50 feet of frontage if the restrictive covenant is enforceable.
9 At the end of May of2002 the Respondents Patrick and Luisa McCann purchased lots 24 and 25 of Block 22. These properties were encumbered by the restricuve covenant on the date of purchase It is not disputed that at the time of or very soon after the purchase the Respondents formed the intention to separate the two lots, and construct one house on each lot. The Respondents' plans came to the aPendon of many of the neighbours, including the present Applicants, and proceedings were commenced. The present Applicants commenced this application (Action No. 0201 10825) for a declaration that the restrictive covenant was valid and enforceable, and restraining the Respondents from constructing two houses in breach of the covenant. The Respondents in this proceeding brought their own application (Action No. 0201 10504) for an order discharging the restrictive covenant, and declaring it to be unenforceable. By agreement of the parties the matters were set down in Special Chambers on the same day.
THE STATUS OF LOTS 22 AND 23
10 As previously indicated, the Applicants Potts and Clarke-Potts are the owners of lots 22 and 23 of Block 22. The Applicant Potts deposes that in 1999 they built a single family home on the two lots, in full compliance with the restrictive covenant. The restrictive covenant was registered against this property in 1911, but it was discharged by Court Order in 1982. 11 In 1982 lots 22 and 23 were owned by James R. Park, a real estate agent. On June 23,1982 he applied to die Court of Queen's Bench and obtained an order discharging the restrictive covenant from his property. The terms of this order are important, and I will set it out in full:
ORDER
UPON FEARING counsel for the Applicant; AND UPON HEARING read the Affidavit of JAMES R. PARK:
IT IS HEREBY ORDERED THAT:
1. Notice of this Application upon the Public be dispensed with.
2. The Registrar of the South Alberta Land Registration District delete from Transfer of Land Number 7542 A.H. the following paragraphs:
3 and orders were simply obtained discharging the restrictive covenants. The problem with these latter procedures is that a practice developed whereby the orders would be granted ex parte.
14 A restrictive covenant is a form of agreement between the various owners of the properties in question. It is an unusual type of contract, in tha+ the burder s and benefits of the contract run with the land, and are enforceable by and against the particular owners of the land from time to time. It is a fundamental principle of the in personam jurisdiction of the Court that the rights of parties are not taken away except on proper notice to them, which in court proceedings generally means that the interested parties must be served with court process. It is difficult to see what justification there ever was for removing restrictive covenants from properties without serving the other owners of properties encumbered by the covenant.
15 The proceedings commenced by Mr. Park are instructive. The style of cause does not name any applicants or respondents, and it seems clear that service was not intended. There is no indication that anybody was served with notice of the application, and the only inference is to the contrary. Court file 8201 14348 is a very small file, and contains no originating documents; the file was opened and the action commenced by the filing of the Order granted on June 23, 1982. It is clear from paragraph 8 of the affidavit of James R. Park, that he did intend to have the caveat removed from all eleven lots. His stated reason was:
4. That it is my wish and desire to separate the title to lots 22 and 23 so as to allow a dwelling house to be located on each lot, which I feel would be a benefit to the public.
He attached a letter from the City solicitor stating his opinion that the restrictive covenant was "inconsistent with the bylaw". There is no indication as to whether the City solicitor merely meant that some things were permitted by the bylaw that were not permitted by the covenant, or whether it was impossible to comply with both the covenant and the bylaw at the same time. Two years previously the Court of Appeal had set out in Seiffrddine v. Hudson's Bay Co. (1980), 11 Alta. L.R. (2d) 229, 22 A.R. Ill, 108 D.L.R. (3d) 671 (Alta. C.A.) that the test was "impossibility". There is no indication in the file that anybody was served with the application, nor is there any indication in the affidavit that prompt service was impractical, or why service should be dispensed with completely.
16 Paragraph 1 of the Order states that the "Pifilic" need not be served. Since the only persons who can enforce the covenant are the registered owners of the subject properties, the "public" has no legal interest in the matter, and service of the "public" would have been inappropriate. What would have been appropriate was service of the owners of the eleven lots in question. T] j s certainly cannot have been difficult enough to justify an order under R. 23(l)(b) to completely dispense with service on them.
17 The effectiveness of an ex parte order removing a restrictive covenant is somewhat tenuous. Like any ex parte order, those who are affected by it can move to have it set aside. It is accordingly
5 the general public have no legally-recognized interest in these proceedings. They are undoubtedly concerned about the character of their neighbourhood, but ihat doe? not give them standing in these proceedings. However, the Applicants Taylor and Fairbum do have standing, and that standing is sufficient to support the present application to enforce the covenant.
21 In proceedings to set aside or vary a restrictive covenant, it is necessary that all of the owners of the encumbered properties be parties to the proceedings. Those who are not applicants should be respondents. In applications to enforce the covenant it is desirable that all of the owners be parties, although it is not strictly necessary. Therefore, any of the present Applicants who aie owners of properties subject to the restrictive covenant can bring proceedings against the Respondents to enforce the covenant. However, the application by the Respondents to set aside the caveat is ineffective because of the failure of any party to join the owners Libin and Mackey to these proceedings. Those owners have an interest in the restrictive covenant, and it is not appropriate to interfere with their rights without notice to them.
22 The affidavit of Patrick McCann deposes that his counsel attended before a Master in private chambers and obtained an ex parte order pertaining to service of these proceedings, although there is no such order on the file. The order apparently permitted service on the owners of eight lots in Block 29, which would be the eight lots directly across the street from the lands which are subject to the restrictive covenant. It also directed service on eight lots across the lane from these lands. For the reasons just stated, the owners of these lands had no legal interest in the enforcement of this covenant, even though they have similar covenants on their properties, and service on them was unnecessary. The direction of the Master also was to serve eight of the eleven lots wlrch were originally encumbered by the restrictive covenant. There is no affidavit on the file indicating why prompt personal service of the owners of the other three lots was impractical, or should otherwise be dispensed with. The direction of the Master, being ex parte, can be reviewed under R. 387(2).
There is no indication that the Master was told of these three other lots. The direction of the Master is not effective to permit the Court to deal with the rights of Libin and Mackey before there has been proper service on them. However, as I have determined that the restrictive covenant should not be set aside, the failure to serve Libin and Mackey is not fatal to ihese proceedings.
THE ENFORCEABILITY OF THE RESTRICTIVE COVENANT 23 The next question that falls to be decided is whethei the restrictive covenant is enforceable against the Respondents. The arguments presented on this issue are as follows:
1. The covenant in question is not one that by its nature is capable of attaching to land.
2. The covenant has ceased to exist by virtue of the 1982 Order.
3. Even if the covenant was at one time valid, subsequent circumstances have rendered it invalid or unenforceable.
7 of the wording of the transfer, and the operation of the T.and Titles Act, I am satisfied that all of the present owners and their predecessors in title purchased the lots on the understanding that they would be bound by the scheme.
27 Where the four conditions in Elliston v. Reacher, supra, are met, then the covenants are capable of running with the land, and all of the owners from time to time may enforce and are subject to the covenants. In effect, the satisfaction of these four conditions is sufficient to indicate an intention on ihe part of the vendor that the covenants would run with the land. Some of the cases on building schemes appear to undertake a separate inquiry as to whether the instrument in question discloses an intention to have the covenants run with the land, although it is not entirely clear that this is a separate requirement if the Elliston test is met: see Seiffeddine, supra, at pp. 238-9. In any event, the transfer in question clearly discloses an intention that the covenants will run with the land. In the transfers, the transferee covenants on his own behalf and on behalf of his assigns. He covenants in favour of the transferor and his assigns. There is a hirther covenant that the lands will not be further transferred without a similar covenant being imposed on subsequent purchasers, something which would probably follow under the land titles system anyway when the covenant is registered against the land. 28 I am therefore satisfied that the restrictive covenant represents a valid building scheme, and the covenant is capable of being enforced in law.
THE 1982 ORDER 29 The Respondents argued that the effect of the 1982 Order was to completely discharge the restrictive covenant. However, the text of the 1982 Order states in paragraph 2 that the covenant would have no further effect as against lots 22 and 23 only. The 1982 Order can only be interpreted as implying that the covenant was to be removed from lots 22 and 23, but it was to remain valid and effective as against the other nine lots. By its very terms this Order cannot have intended to compromise the enforceability of the covenant on the other lots, because if that had been the intention it would have been signed in its original typed form. I therefore conclude that the 1982 Order itself did not affect the validity of the restrictive covenant as against the other nine lots.
THE EFFECT OF SUBSEQUENT EVENTS
3 0 The next issue is whether anything has occurred which has resulted in the covenants becom:' ng unenforceable. Section 48(5) of the Land Titles Act reads as follows:
(5) The entry on the register of a condition or covenant as running with or annexed to land does not make it run with the land, if the covenant or condition on account of its nature, or of the manner in which it is expressed, would not otherwise be annexed to or run with the land.
9 there
the
them
covenant
of
34 because lands
then them.
however
the registered other
all
a
did In
by undermine
only
35
clear or
in Defendants
was
this the
36
successful
amounted
valid
reservation,
covenant,
owners case, and
common
the
the
the
of
a
Potts
eleven
various
not
covenant
defect,
burden
because
presumably
building
of
is
that
properties when
the
building
is
originally
A
objectives
That
breach
circumstances,
Another
The
buy
the
nothing
not
of
similar
no
and possible
would
lots
the
against
to
but
lots
property
in
the
plan
and
eleven
occurred
instruments.
their they
fatal
Respondents
were
notice
of
is
a
Clarke-Potts
because
previously
declaring
mere of
a
scheme
the
release
scheme.
also
originally enforceability
the
he
predecessor
issue
issue
become
in
objectionable
owned
the
and
were
to
properties
of
unsuccessful
any
particular
in
was
properties
Court
the
covenant
has
the
not
discharge
a
in
covenant
these
in indenture
building
arose
that
it this
of
of
area, sold.
the
entitled
which
validity
that
fatal
been
This
Elliston,
by
reserved
an
There
owned
a
the
held
encumbered
also
arises
matter
building
proceedings covenant.
was
Scott
in
enclave
subject
certain
properties
and
It
to
in
case
from
owners,
given
originally
of
of
by
Elliston
prevented
that
argued
might
scheme.
to
in
in
the
is
title a
of
that
the
by
placed
a
is
supra,
a
to
and enforce
having
sufficient
that
the
must
shows
the
restrictive
a
scheme.
few
the
of
whether
to
these
scheme,
the
restrictive to
within
imposed
few
of
However,
be
additional
Hartronft.
the
burdens
scheme. subject
result,
that
v.
by
under
all
power
be
owners,
those
original
identical
to
encumbered
but
argued
Reacher,
clearly
the
lots
the
the
common
Plaintiffs
caveat
of
decided
conclude
the
a
change
the
there
covenant
larger
such
covenant
the
and
the
covenant
operation
in
Plaintiffs
the
to
of
removal
in
covenant
It
the
is
that
complication
relevant vendors
the
that
Land
As
any
7542
or
also
release favour
owners
indeed
building
not
as the
supra.
vendors.
on
neighbourhood
title
were
nearly
in
previously
scheme,
that
there
the
by
the
of
demonstrates
various
the
sufficient
declared
the
Titles
by
AH,
from
of
of
of
had
the
unenforceability the
of
against
Applicants
there
the
the
not
was
"neighbourhood"
This
injunction.
of
basis
circumstances
the
was
the
identical
owners a scheme
or
restrictive
If
Act,
various
power
engaged
all
preservation
one
entitled
whether
hotel
not
that
Plaintiff
transfers
there
whether
was
covenant
is
but
unenforceable,
noted,
that
the of
to
and
but
property
itself
only
undermine
built
an of
the
one
on
to
on
that
other
was
restrictive
the
Potts
caveats,
one The
the
to
the
by in
action
release
the covenant.
Scott
Elliston
all
properties
it
building
individual
enforce
incorporated
fatal
"neighbourhood"
to
the
present
from
but
some
release building Defendants
neighbouring
of should
of
lots.
of
the
and
in
different
lands
should
removal
the
the
one
and
to
such
the
to
could
some
the
properties.
the
The
Clarke-Potts
covenants
although
transactions
enforce
did
the
the
covenant
neighbourhood
registered
building
include
building scheme
Hartronft
or
in
property
entire
encumbered
enclaves
scheme,
covenants
simply
law
not
covenant.
lands
standards,
by
enforce
existence
question.
of
by
also
suffer
is
properties.
a
a
the
they
covenant.
reference
all
covering
covenant
power
however
on
from
scheme,
It
by
attacked
scheme,
consists
include
owners
owned
if
benefit
owned
is
of
in
which
is
all
all
some
were
were
from
only
This
one
of
The
but
this
the
not
the
by
11
of
of
to
of
a
whether
been
43
41
REMEDY
would
Seiffeddine
view why
municipal W.W.R.
has
and
were
higher
although
If are it
covenant.
because
42
notwithstanding
their
civil accordingly
entitled
of it
in and
date
successors
is
lands
Crump
conflicts
is
accordingly
the
these
damages
deemed
restrictions
a
the
admittedly
of
an
successors
established
actions. that
enforceable
public
parties
at
Where
be
standards
The
v.
these
injunction
Restrictive
to
294,
covenant.
covenants.
municipal
the
a
the
Kernahan,
beneficial
it
The
planning
a
time
in
with
v.
second
knows
necessary
no
would
declaration
discharge
Court
Reasons.
74
element
there
are
Hudson's
title
Restrictive
nothing
Respondents'
basis
in
possible
on
when
Alta.
the
that
than
the
unable
only
title.
from
would
See
always
is
development
better
part
planning,
be
covenants
statutes.
to
supra,
land
sophisticated
upon
"inconsistent"
a
those
L.R.
to
in
inconsistent
municipal
the
wholly
breach
They
will
Seiffeddine
by
Bay
that
constructing
of
to
it,
the
to
not
use
than
covenants
persons
has
which
the
(3d)
the
at
on
agree
and
comply
be
application
the
There
Co.,
public
are
be
para.
bylaw.
by
properties,
a
of
were
immediate
inadequate.
the
section
beneficial
110,
discretion
restrictive
enforcement
appropriate.
also
that
a
its
supra,
the
planning
on
form
principally
owners
about
31
restrictive
is
v.
must
interest.
with
developed
23
nature,
entitled
As
costs,
survive
covenant
any
arose
no
Hudson's
and
provides
R.RR.
of
to
previously
aspect
at
mean
a
both
building
where
to
parties.
Tanti
to
vary
regime
municipal
what
covenant
pg.
The
from
was
they
Privately
involves
to
the
The
exercise
today
is
covenant,
interested
(3d)
the
240.
can
Application
that
an
of
v.
or
as
Bay
Respondents
in
often
that
the
is
may
restrictive
owners,
Applicants
Gruden,
injunction
of
the
Statutory
discharge
bylaw
on
in
a
be
its
it
186
mentioned,
owners
The
and
is
restrictive
method
Co.,
the
is
planning
the
address
the
if
the
discharged
"public
enforceable
by
infancy,
valid
impossible
(Alta.
an
the
Respondents
to
covenant
are
owners'
a
the
and
supra,
Respondents'
imposition
supra,
injunction
discharge
granted;
covenants
combination
find
presumptive
planning
the
restraining
and
Fairbum
placed
of
Court
have
interest"
the
that
C.A.).
that
if
covenants
(supra,
restrictive
them
providing
binding
and
at
under
best
it
covenant
restrictive
can
issue
to
now
not
para.
even
does
on
cross-application
That
the
comply
of
would
Tanti
control,
to
have
were
and
interest.
that
be
demonstrated
paragraph
the
property
s.
many
be
within
minimum
exists
remedy
27.
of
covenants.
on
not
existed.
existing
48.
discharged
test
Taylor
covenant
planning
Respondents
in
requires
not
v.
private
in
penal
the
be
In
covenants
with
their
take
Gruden,
is
on
this
new
in
this
inappropriate:
See,
thirty
established
Respondents
not
is
in
Alberta.
are
the
provisions
in
The
both
15)
a
interest.
case.
standards
case
an
in
breach
the
subdivisions,
met,
for
is
control
paternalistic
parallel
accordingly
or
other
days
nature,
any
injunction,
it
dismissed.
dismissed.
covenants
[1999]
the
discharge
can
example,
a
varied
and
has
There
because
remedy
This
reason
bylaw
that
of
of
There
hand,
place
their
now
over
with
that
and
and and
see
the
the
13
11
is
if
it
is
TABS
Section
635
Plan
Statutory
(2)
635
636(1)
(d)
(c)
(b)
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(a)
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contents
An
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make
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municipal
imposing
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municipal
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describe
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a
MUNICIPAL
preparation
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preparing
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proposals
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means
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or
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and
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and
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RSA
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plan
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to
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Division
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2000
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may may
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TAB
6 Counsel: T.
Appeal
J.S.
—
Headnote Municipal
Developer was
reported
requires
centre
Development
of residential
there
SDAB's
ASP
equestrian areas
subdivision The constructed
Nightingale,
Kneehill
Miscellaneous
Municipal
Grundberg
sold
developer
had
—
1641405
incorporated
or
Board
subdivision
D conclusion
ASP
that
through
been
riding
law
encountered J.
subdivision
J.D.
and
centre
approval.
was
Young,
Government residents
required
Appeal
(No
for —
at
encountered
Bruce
County
sold
trails
Development
least
and
Subdivision
foreclosure Respondent,
Alberta
Appearance),
into
that
to
for
through
Board
Kneehill
were
in
more
partial McDonald
financial
and
comply
of
planning
there
Appellant
which 2019
Docket:
riding
Act
that
(Appellant)
not
financial
than
(SDAB)
was
foreclosure non-compliance
to
Judgment:
control
CarswellAlta
Ltd.
requiring
Harvest
their with
(County) able
difficulties
respondents
for
just
respondents
Alberta
by-law
arena
no
JA.,
Calgary
Heard:
Respondent,
lands
provisions
to
respect
breach
revoked
difficulties
2019
and
—
Appeal
Agriculture
use
were
Brian
respondents
from
to
Subdivision
were
Court
v.
December
and
ABCA506
May
horseback
the
Appeal
Kneehill
of
Harvest of
2717,
were
— not
stop and
with
condition
located
O'Ferrall
imposing
spirit lot
of
respondents.
Kneehill
and
of
Development
10,
being
Board
area
upon
order
2019
Ltd.
in
Appeal
condition
1801-0195-AC
Harvest
2019
the and
to
Agriculture
plans
breach
— 17,
riding
structure
which
and comply
given
lot
that
was
ABCA
intent
positive
J
County
County
County
2019
A.,
—
upon
(Respondents)
1641405
The
had
unreasonable
trails
as
of
riding
Kevin
access
Approval
of
authority
506
residents with
plan
Agriculture conditions development
appealed
been
Subdivision
which
it
obligations
Ltd
within
—
arena
(ASP) Alberta
conditions
Subdivision
Feehan
to
Nothing
issued
a
and
issued of
did
riding
—
designated
had
—
plan
—
of
Appeal
Ltd.
not
pursuant
use
and
on Without
authority
J
been
in
Subdivision
approval
A.
stop of
arena
—
have
landowner
Development
Act
of
approval
Ltd.,
constructed
Conditions
allowed—
equestrian
order
recreation
prevented
question,
access
to
had
issued
which
s.
been
that
645
and
for
for
to
1
a
2 In 2008, a group of four individuals (the Developer) prepared an area structure plan (ASP) for the development of a subdivided quarter section of land in Kneehill County. This subdivision, known as Saddle Up Estates, was to be an equestran based residential development. The ASP described in part:
...a 16-lot community around an equestrian center with related amenities.... The equestrian center will be operated similar to golf course residential developments, with a membership being granted to members of the development. Residents with smaller lots can choose between boarding a horse or two at the equestrian center or can enjoy the community without owning any horses.
The remnant of the quarter will remain as recreational land, with residents of Saddle Up Estates enjoying the designated recreational areas and riding trails to be constructed as the project progresses ... Equestrian rights of way will be registered against title for these designated areas. (See Equestrian Membership) 3 Contained in the ASP under the heading "Equestrian Membership/Recreational Area Access" appears the following:
The owner/owners of every lot will receive upon purchase of a lot, one equestrian membership
package tied directly to title of their specific lot. This membership package will include indoor arena access and access to designated recreation areas for riding purposes. An equestrian right of way will be registered on the recreation lands to protect the membership rights of the residents. 4 With respect to the equestrian centre or riding arena, the ASP provided that: Saddle Up Estates is a planned equestnan based, residential development that will include a minimum of one indoor riding arena and designated recreational areas for outdoor riding. Plans call for a 72??? ?? 130??? Cover All structure to be built in the spring of 2010. This will serve as the primary indoor arena for residents. Riding trails in the designated areas will be developed as per the project time line.
5 The ASP was passed by the County council on Febmary 10, 2009 and adopted by bylaw (Bylaw 1586).
6 A conditional subdivision approval was issued on April 28, 2009 (the 2009 Subdivision Approval), which created 16 residential lots and one recreational parcel (Lot 17) upon which the riding arena was later constructed in 2012. The 2009 Subdivision Approval contained the following conditions:
3
No.
9
covenant
of
and
give
the
in
Agreement.
additional
inter
10
11
through
Harvest
arena
the
issued
to
12
in
13
14
accordance
each
and
lieu
County
conditions
riding
091297405,
the
The
approved
5.
6.
(proposed
10%
[emphasis
alia,
Kneehill
registered
not
In
On
The
and
use
the
In
of
As
The
The
lot
owners
later
foreclosure,
December
Developer
required
being
March
response
municipal
of
the
30
using
Stop
per arena
Stop
of
in
the
policies
Developer
the
acre
the
changed
the
following
with
Sections
by
sum
of
County
Order
Order
Lot
complied
at of
added]
appraised
was
the
both
26,
equestrian
the
subdivision,
lot
Kneehill
land
the
each
the
to
of
2011,
1)
riding
registered
and
reserve.
2012,
(the
constructed
the
restrictive
against
Developer
reported
these
dated
$7,000
in
and
ASP.
titles
663
residential
encountered
has
conditions:
plans
lot
lieu
2012
the
with.
market
trails.
in
a
County
and
center
actions,
upon
become
October
further
as
The
2017,
Harvest
of
Developer
per
within
an
Subdivision
a
that
instrument
666
In
covenant.
municipal
restrictive
and
and
lot
equestrian
value
Stop
which
lot
or
addition,
the
Council
the
of
subdivision
on
financial
as
the
2,
the aware
its
the
in
and
the
residents
Order
it
new
at
April
2009)
the
the
successors
riding
sold
was
Saddle
11
$
164
Municipal
The
reserves.
091
Approval).
1,074.50
covenant
subdivision
must
residential
owner
riding
club specific
that
read,
a
obligated
10,
difficulties
as
against
restrictive
total
242
trails.
of
of
Up
being
membership
requirements
2018,
be
in
lands Saddle
arena
prohibited
502,
in
per
Estates
of
followed
(Instrument
Government
provisions
part:
The
title
The
all
the
lots
11
to
access
the
acre
remain
was
had
covenant
and
County
lots
do
lots
Up
registered
2012
to
respectively.
County
Area
of
under
been
conditionally
observe
Estates
lot
in
in to
to
which
the
of
outstanding.
Subdivision
of
2014,
the
the
164.
No.
owners
Structure
also
Act,
constructed.
proposed
purported
the
the
the
(the
owners
riding
subdivision.
were
was
091297404
The
and
sought
the
terms
Development
Harvest
subdivision
Development
from
apparently
be
applicant
Developer
not
arena
approved,
Plan
of
subdivision
Approval
of
bound
payment
to
being
entering
the
The
the
acquired,
attach
(Bylaw
and
and
The
lot
Development
must
by
ownership
approval
given
riding
intended
did
upon
Instrument
Agreement,
creating
to
restrictive
contained,
Authority)
of
the
the
of
1586)
the
not
the
provide
by
parcel
terms
access
which
riding
trails
title
cash
pay
sale
are
an
to
as
of
5
Decision
Approval
members
that
the
expressly
opine
15
16
17
If
and
Approval
registration landowner
paying
had
of
20
18
21
Grounds
19
there
the
development
the
...
not
power
particular
than
...the
an
land
can
The
at
The
Permission
The
Development
gives
The
The
these
County
obligation
been is
para
With
choose
of
access
speak
in
directory.
respondents and
and
of
no
ASP
SDAB
SDAB
how
SDAB
would
SDAB
the
of
a
the
Appeal
86:
breached
breach
amounts
particular
2012
respect
the
fashion.
the
to
and
SDAB
cannot
to
Developer
to
not
following
revoked
to
the
be
concluded
the
2012
disagreed
on
stated
Development
operate
The
Subdivision
cannot
to
Agreement.
appeal
of
contrary
operation
a
riding
to
appealed
to
develop
as
impose
Interpreting
the
landowner
way.
Land
Subdivision
that
the
the
the
the
the
compel
the
direction
ASP,
was
arena,
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and
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can
making
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instrument charge
respect
it
claim,
pay
that
notice
requirement
favour
mandatory,
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interest
on
of 2000,
be
valid
be
requirement
of
required
the
by
the
to
notice
to
certificate
is
their
the
the
deemed
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agreements
in
argue
Frauds
the
performed.
on
of
to
it.
given
the
cash
cash
to
of
respondent
claim
land).
of
doubt
of
c
registration
MG
a
construction
The
his
argument
in
(in
it.
title,
L-4
the
charge
requirement
title
a
of
that
in
in
the
statutory
may
land.
A,
The
caveat?
on
this
to
land
respondent
to
municipality
does
a
provides
that
lieu
lieu
of
to
of
gave
which
title
developers
have
claim,
no
an
case, relating
be
issue
land
on
title
filing
If
created.
the
of
of
numbered
charge
that
not
interest
of
of
expressly
the
notice
a
assumed
municipal
municipal
or
requirement
is
of
MGA
the
developer
authorizes
all
he
any
then
in
appear
that
a
it
land
construction
expressed
an
to
argues
caveat
steps
the
the
subdivision
cannot
on
person
Nor,
to
against
of
in
those
entitlement
persons
is
requires
(i.e.
terms
the
subdivision
place
company
land.
a
made
the
one
to
into
charge
reserve
that
that
reserve,
therefore,
a
land
matters
agrees
be
then
the
obligation
(in
security
of
the
to
the
of
In
and
on
claiming
a
the
an
the
an
costs).
caveating
be
this
approval
condition
subdivision.
determining
other
was
title
be
lots
shoes
on
affidavit
to
conditions
had
on
obligation
issue.
in
provision
then
subject
specified
approval
payment
heard
case,
the
created.
the
can
to
writing
created
interest
notice
words,
when
of
to
what
their
land
sale
The
and
the
the
the
17
of
of
be
be
to
to
title "and all subsequent titles deriving therefrom." I question what was intended by the use of the quoted phrase if it was not to bind the land and the owners of it until the cash in lieu was paid. The County's entitlement to register a caveat with respect to its entitlement to cash in lieu of municipal reserve on the title to each subdivided lot was agreed to by the original developers who also expressly agreed that the caveat could not be discharged until payment of the sum of $7,000
PEE I ,OT was received by the County. The respondents were given notice of these covenants and must be taken to have understood their import.
81 The development agreement is expressly not assignable without the written approval of the County, which consent the County agreed would not be unreasonably withheld. The fact that the original developer failed to obtain the County's consent cannot be relied upon to support an argument that the covenants contained ther in were not intended to bind assignees. Conveying an incompletely marketed development to another developer surely cannot become a means to avoiding subdivision approval conditions, Breaching the development agreement by failing to notify the municipality of the assignment and not obtaining its consent ought not to free the assignee from complying with the development agreement of which the assignee had notice under and by virtue of the caveat on title.
82 That said, there is another issue which remains. Has the obligation to pay the cash in lieu of reserves been triggered? In my view, the obligation has not yet arisen if the respondents are characterized as successors of the original developers because then they too are developers. The
respondents did not buy the lots to reside on them and enjoy the amenities of the development. They bought them to market them, just as the original developers wanted to do. And so the respondent numbered company will be liable only on the sale of the lots to pay the $7,000 per lot cash in lieu of municipal reserves.
83 As the authors oí Planning Law and Practice in Alberta suggest at page 14-17, municipalities tend to be lax in not mak ‘ ag it clear when they issue subdivision approvals, enter development agreements and file caveats that the parties are intending to create a charge on the land in favour of the municipality. They also tend to be lax in providing for what triggers the obligation to pay and how and when the payment obligation may be enforced as mortgages and other security instruments do. In the absence of such terms, it will be left to the courts to decide how and when these obligations are crystalized and enforced.
84 Allo\ ring the County's appeal on this issue and requiring the developers' successors to comply with the requirement to pay the cash in lieu of municipal reserve is, in my view, consistent with this Court's decision in Focaccia Holdings Ltd. v. Summer Village of Farkland Beach (Subdivision and Development Appeal Board), 2014 ABCA 132 (Alta. C.A ).
85 In Focaccia, the mum cipality's stop order was aimed at the original developer and a numbered company to which the original developer had transferred 17 unsold lots in the subdivision. The
19
The
relevant
Application
Area
536
development
(2) (2)
established
633
(3)
An
A
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(1)
electors
(a) (b)
considers (a)
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area
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judge
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intermunicipal
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to
on
contain
of
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describe
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plan
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land requiring
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general
density
the
judge.
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amendment
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development
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Municipal
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population
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council
of or
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repeal.
’
Government
plan.
Appendix
s
to
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major
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and
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proposed
amend
including
provide
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of
plan
may
proposed
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Queen's
area,
with
framework
in
by
or
development
A
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security
respect
Act
for
repeal
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bylaw
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invalid,
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for
the
are
the
generally
area
of
a
adopt
as
for
relating
routes
for
bylaw
or
land
for
area,
follows:
plan,
costs
either
subsequent
an
that
and
as
area
or
to
and
in
generally
a
is
with reserves,
an
public
result
structure
identified
amount
respect
subdivision
utilities,
of
or
as
a
with
plan.
and
vote
the
in
to
both
specific
manner
council
respect
by
and
the
the
21
(3) lot,
lot,
subdivision or
the
the
(4)
(5) the
permitted
Conditions
655
approval
any
For
Unless
lake
effect
Registrar
lake A
effect (b) lodged
(c)
lodged
(d)
or
(e)
are
(f)
665.
(1)
titles
(a)
hectares
(b)
(a) subsection
(b)
Registrar
other
lodged
the
a
a a a
a
shown
A
if lot
lot
if
subdivision
part river
subdivision
settlement
parcel
lake
of
issued
or
the
office
the
subdivision
purpose
to
the
in
in
or effected
or
instrument
subdividing
of
may
may
be
of
in parcel
a
a
subdivision
settlement in
lot
parcel
lot
settlement
and
subdivision
land
land
may
of
the
area. (2),
by
before
imposed
a
have
shown
shown
not
land
land
of
delineated
it:
only parcel
lot
titles or
of
titles
not
approval
of
approval
subsection
authority accept
the
land
shown
titles
that
July
created
land
accept
a
for
on
lot
on
by
lot
office;
office;
of
parcel
effect of
effected
is
approval
a
an
except
an
the
1,
office;
the
land
if
contains
purpose
for
on
has
described
on
1950,
official
a
pursuant
is
the
official
may
parcel
of (2),
subdivision
registration of
caveat
a
an
been
described
not
plan
that
parcel
subdividing
land
official
a
impose
a
and
referred
subdivision.
2
parcel
required
of
plan,
plan,
granted
of
land
in for
or
to
land
of
subdivision;
apian
more
a
registration
plan,
in
the
has
as
bylaw as
of
land
an
and
to
has
the
in
defined
land
a defined
in following
instrument in
been
of
lots
as
parcel
development
been
respect
would
existing
section
respect
passed
subdivision
defined
is
one
removed
deemed
approved
that
in
in
of
consist
of
or
conditions
618(1)
the
the
title
land
by
of
that
relates
in
that
more
that a
Surveys
the
Surveys
regulations to
from if
unless
that
municipality
has
subdivision.
by
of
the
or
be
Surveys
of
to
subdivision
by
was a
a
the
a
the
or boundaries
which
an
subdivision
quarter
quarter
a
Act,
Act,
any
effect
plan
parcel
registered
instrument
Act,
on
other
that
that
is
of
under
section,
section,
a
or
less
of
that
subdivision
pursuant
subdivision of is
is
may
conditions
authority,
land
filed in
filed
the
than
is
section
that
a
filed
river river
have
part
by
land
has
or
or
8.0
23
to
a
whether or not the public utility was located on the land that was the subject of the subdivision approval.
Municipal and school reserves
666 (1) Subject to section 663, a subdiv ision authority may require the owner of a parcel of land that is the subject of a proposed subdivision
(a) to provide part of that parcel of land as municipal reserve, school reserve or municipal and school reserve,
(b) to provide money in place of municipal reserve, school reserve or municipal and school reserve, or
(c) to provide any combination of land or money referred to in clauses (a) and (b).
(2) The aggregate amount of land that may be required under subsection (1) may not exceed
the percentage set out in the municipal development plan, which may not exceed 10% of the parcel of land less all land required to be provided as conservation reserve or environmental reserve or made subject to an environmental reserve easement.
(3) The total amount of money that may be required to be provided under subsection (1) may not exceed 10% of the appraised market value, determined in accordance with section 667, of the parcel of land less all land required to be provided as conservation reserve or environmental reserve or made subject to an environmental reserve easement.
(3.1) For greater certainty, for the purposes of calculating the 10% under subsection (2) or (3), the parcel of land includes any land requhed to be provided under section 662.
(4) When a combination of land and money is required to be provided, the sum of
(a) the percentage of land required under subsection (2), and
(b) the percentage of the appraised market value of the land required under subsection (3)
may not exceed 10% or a lesser percentage set out in the municipal development plan.
Money in place of municipal, school reserve
667 (1) If money is required to be provided in place of municipal reserve, school reserve or municipal and school reserve, the applicant must provide
(a) a market value appraisal of the existing parcel of land as of a specified date occurring
’Within the 35-day period following the date on which the application for subdivision approval is made
25 Footnotes
2
1
the
(4)
met
The
A further
the with
board
In
remainder
(a.4) Liquor
licence
(b)
(c)
its
full condition
(d)
even
its the
respect
the
wording
own;
must
opinion,
may
may
subdivision
requirements
must
(i)
though
must and
building
(ii)
to
case
of
and
and
the
the
make
have
the
of confirm,
the
payment
comply
attached
(A)
neighbouring
(B)
these
determine
of
quarter.
distances
Cannabis
proposed
took
the
proposed
regard
an
an
unduly
in
provisions
materially
place
of
proposed
appeal
The
the
order
of
with
cash
revoke
to
later
respondent,
section
to
land
between
whether
development any
Act
in
interfere
are
the but
in
or
development
lieu
of
parcels
which
set
decision
use
of
respecting
applicable
or
of is
interfere
development the
out
683.1(2).
municipal
Harvest
them not
an
in Appendix
vary
bylaw.
the
those
deemed
with
additional
of
bound
documents
Agriculture
or
or
land,
the
would
reserve
the premises
with
requirements
issue
make
conforms
the
lot
by
A.
refusal
order,
amenities
does
containing
location
with
the
not
or
or
Ltd.,
or
respect
and
confirm
not
subdivision
and
affect
decision substitute
acquired
of
with
the
information
an comply
of other
to
of
of
riding
that
application
the the
premises
that the
the
the
lot.
or
area
premises;
lot
an neighbourhood,
use
regulations
issue
use,
and
with
through
development
and
order,
prescribed
that
development
roughly
the
described of
enjoyment
a
under
foreclosure.
a
the
decision
land
development
30
under
applicant
acres
section
use
for
permit
or
in
was
But
the
or
regulations;
or
bylaw
that
a
subdivided
there
permit
cannabis
Gaming,
value
683.1(8),
provided
or
land
permit
is
if,
no
any
from issue
of
in
of
or
27
TAB
7 §5.6(l)(b) MUNICIPAL AND INTERMUNICIPAL PLa NHING control "subject to any statutory plan". T his provision was inserted in the 1995 version of the Act in response to a decision of the Court of Appeal in 2890828 Canada Ltd. v. Edmonton (City) Development Appeal Board.4* In that case an area structure plan placed a 5,00° sq. metre limit on building size. Council passed a site-specific direct control district bylaw authorizing a building of up to 15,000 sq. metres, and a development permit was subsequentlv issued for a building of that size. An opponent challenged the permit, first at the development appeal board and then in the Court of Appeal, on the ground the bylaw was in conflict with the area structure plan and thus ultra vires. The court essentially held that the wording of the direct control provisions of the Planning Act which were in place at the time allowed a council to exercise direct control as it saw fit, withoat regard to conflicting provisions of an area structure plan. In light of this background, arguably, the proviso now in s. 641(2) gives some precedence to statutory plans over a land use bylaw.
§5.6(1) (b) Statutory Directives to Development and Subdivision Authorities
Also, some clues about the relationship between plans and a land use bvlaw can be garnered from the parts of the Act that prescribe the powers and duties of the planning authorities charged with deciding development permit and subdivision approval applications as well as those of appeal boards. Strangely, there is no provision in the Act that expressly defines the jurisdiction of a development authority relative to statutory plans and a land use bylaw when it decides a development permit application. 49 But s. 622(1) provides that all statutory plans and the land use bylaw must be consistent with the provincial land use policies, and that all actions taken by all planning bodies with power under the Act are to be consistent with the polices as well. Logically, it follows that all decisions of the development authority must also be consistent with all statutory plans and, subject to the authority's variance power, the land use bylaw.
Further, s. 640(6) provides that a land use bylaw may authorize a development authority to approve an application ev^en though the proposed development does not conform with the non-use provisions of the bylaw. 50
48 2890828 Canada Ltd. v. Edmonton (City) Development Appeal Board (1994), 20 M.PX.R. (2d) 315,19 Alta. L.R. (3d) 137,149 A.R. 308, 63 W.A.C. 308 (C A.). 49 Dicta in Churgin v. Calgary (City) (1986), 73 A.R. 300,48 Alta. L.R. (2d) 202,35 M.P.L.R. 262 (Q.B.), reversed on other grounds (1988), 62 Alta. L.R. (2d) 97 [1989] 1 W.W.R. 82, 90 A.R. 378, 53 D.L.R. (4th) 452 (C.A.), makes the point that a development authority is subject to the saune obligations to comply with statutory plans and a land use bylaw as is a subdivision and development appeal board, even though the Act is silent on the point. See also, Chrumka v. Calgary (Development Appeal Board) (1981), 16 Alta. L.R. (2d) 328 at p. 334,18 M.P.L.R. 95,130 D.L.R. (3d) 61,33 A.R. 233 (C.A.) and 2890828 Canada Ltd. v. Edmonton (City) Development Appeal Board (1994), 20 M.P.L.R. (2d) 315, 19 Alta. L.R. (3d) 137,149 A.R. 308, 63 W.A.C. 308 (C.A.).
Planning Law (January 2019) 5-14 LEGAL STATUS OF STATUTORY PLANS §5.6(l)(c) Again, the implication is that if no such variance power has been delegated, the development authority is bound by everything in the land use bylaw. Section 642(1) and (2) require a development authority to issue a permit for an application for a permitted use that conforms with the land use bylaw, and gives it discretion to issue a permit for a discretionary use that conforms with such bylaw. By implication, an authority has no power to approve a permit application that is not for a use authorized in the district where the land is located or, subject to any variance power delegated to it, that otherwise does not conform with the bylaw.
By s. 654(l)(b), a subdivision authority may not approve a subdivision application unless the proposed subdivision "conforms" with any erowth plan under Part L7.1, any statutory plan and with the use provisions and, subject to a limited variance power, the development standards of the land use bylaw. Again it is implied that statutory plans and the land use bylaw must be consistent with one another
§5.6(l)(c) Statutory Directives to Appeal Boards
In hearing appeals from decisions of a development authority on permit application, a subdivision and development appeal board is obligated 51 by s. 687(3)(a.2) to "comply with" any operative statutory plan and, subject to s. 638 and, subject to a limited variance power, the land use bylaw. This also shows there must be harmony between these instruments, otherwise it would not be possible for a board to honour the subsection. Pursuant to s. 680(2), the Municipal Government Board or a subdivision and development appeal beard (as the case may be), although not bound by statutory plans, must "have regard to" them in rendering its decisions ¡n subdivision appeals. 52
On the other hand, a board hearing a subdivision appeal is bound by the use provisions of the land use bylaw, although it need merely have regard
[Footnote 50 from prior page]
50 This is essentially the same variance power as that which is given to a subdivision and development appeal board. It is to be noted, however, that a development authority does not have the power by operation of the Act, as is the case with the appeal board. Instead, the power must be expressly conferred in the land use bylaw and then only if, and to the extent, the municipal council deems fit. 51 Note that a subdivision and development appeal board is also required to "act in accordance with any applicable ALSA regional plan" under s. 687(3)(a), 52 There is little logic in a subdivision and development appeal board being bound by a statutory plan when it decides development appeals but not when it hears subdivision appeals. Indeed, the right of the appeal board to allow subdivisions that conflict with a statutory plan seriously undermines good planning principles, particularly where intermunidpal development plans are concerned. Hopefully, boards will allow subdivisions that do not conform to statutory plans in exceptional circumstances only.
5-15 Planning Law (January 2019) TAB 8
Section
687
Hearing
hearing
owner
deemed available
(4) including
(4.1)
development development (5)
687(1)
days
decision
(2)
(b)
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MUNICIPAL
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with
subdivision
an
(d),
condition
deemed deemed
comply
any
the
the
bound
order,
though
those would conforms
with
Liquor
or
or
must
or
ACT
determine
parcels
amenities
applicable
order,
requirements
land
building
issue
affect
described
the
refusal
premises
with
by
decision
comply
not
attached
the
and
use
and
decision
land
or
of
the
with
the
any
proposed proposed
policies;
confirm
of
Cannabis
in
whether
land,
development development
of
AJLSA
subdivision
use
use,
the
with
the
in
or
applicable applicable the
and
an
to
of
Chapter
a
bylaw
permit
or
land
application application
any
enjoyment
use
the
cannabis
other other
any
regional
RSA
the
the
Act
of
use use
land
issue
if,
M-26
of
2000
and
in
its
TAB
9
24P2014
244
PART
4
-
DIVISION
287
2:
DEFINED
“
Rowhouse
USES
(b)
G)
(a)
(i)
(h)
(g)
Building
Bylaw;
is
(vi) (v)
(iv)
(iii)
(¡)
does
(Ü)
requires means
per
requires those
(V)
(¡)
(iv)
(iii) (ii)
100.0
must
(xv)
a
250.0
use
not
only
square
uses:
where
where
from
above
adjacent
where where
sfreef
may
use
adjacent
Unit
a from
side a
contains
do
and
Veterinary
do
located;
”
square
Retail
are located; are are
Retail
within
a
a
public
require
use
square
incorporate
not
not
minimum
minimum
located
located located
and
contain
Consumer and
in
grade
foundation
where
metres
facing
each another
no
one
no
and
and
have
exceed
a
the
metres;
street,
and
conforms
three
separated district
bicycle
public
public
intervening Dwelling
metres
façade
Residential
Consumer
Consumer
Clinic;
to
within
in
in
Dwelling
direct
a
of
of
a
façade
of
a
an
an
Secondary
or
the
10.0 Dwelling
building:
4.0
1.0
where
sfreef;
street,
use to
Service;
gross
existing
more
adjacent
of parking
a
of
with
customer
uses
roof;
bicycle
motor
Unit
by
per
use
gross
area
of
each
building
Unit
common
Group
a
LAND
the Service
Service
each
Dwelling
usable
cent
referenced
area
is
Secondary
Unit;
approved
that
vehicle
stalls Dwelling
Suite
located
rules
has
usable
public
parking
USE
access
of
Dwelling
that
in
is
and
is
the
floor
a
BYLAW-
within
within
party
Schedule
of
a
within
-
Units,
located
separate
sidewalk
contains
minimum
parking
wholly
floor class
use
the
building,
in
outside
stalls
Unit
area,
Suite
walls
which
which
section
Unit
district;
a
1P2007
area
located
area.
between
Dwelling
1,
directly
or
A
direct
-
or
is
a
extending
stalls
and
and
of
to
of
partially
they
they
class of
Retail
July
a
an
(f)
the
this
3600.0
the
listed
side
the
when
23,
entry
faces
are
are
per
the
2
2007
by
TAB 10
Richard
Counsel:
Headnote
with
Real
Developer
to
—
agreement,
also municipality
Golf course
course
original
by-law,
golf
any
enhancement
covenant
be
2016
Application
certainty
registered
land
property
course
club
used
was
lands
might
C.Secord,
obligation 4353,
CarswellAlta
James
—
did
agreed
and
Gina
developer
solely
not
Robert
—
Russell
Intention
and
from
not
in
what
—
diminish
271
golf
on
Robert
built
Restrictive
T.
granted
value
could
run
Interests
to
as
Neilson,
properties
for
golf
to
A.C.W.S.
Hommy
development
club
allow
and
with
build
golf
agreed
Respondents
and
of
no
Ryan,
club
1836,
enhancement
—
entered
(Applicants
parties
developer
longer
course
lands.
in
enjoyment
developer
Torence
golf
Q.C.,
covenant
Restrictive
—
to
real
next
(3d)
Alberta
2016
Judgment:
Docket:
course
develop
Owners
into
be
(Respondents
Kim
of
for
property
Heard:
once
to
207,
used
/
paid
lands,
ABQB
lands
Cross-Applicants
Applicants
agreement
to
also
by
in
on
2016
nine
Court
covenant
Russell
Edmonton
brought
nine-hole
file
Lissoway,
Russell
43
for
value
owners
golf
J.H.
lands
September
contemplated
—
within
which
/
September
Alta.
526,
golf
covenant
holes
ABQB
Cross-Respondents)
Restrictive club
of
Goss
and
—
v.
in
/
course
application
Queen's
of
[2016]
contemplated
were
L.R.
Cross-Respondents
golf
range
Golf
Ryan
were
sum
1989
enjoyment
lands
1603-03015
and
526
J.
restricting
2,
course
/
(6th)
—
to
club
of
22,
Nelson
completed
of
for
no
A.W.L.D.
Cross-Applicants)
2016
covenants
—
be
Property
Bench
money
Shirley
developments
exchange
2016
lands development
for
It
395,
developed
on
by
was
development
discharge
lands
development
owners
were
in
69
owners
impossible
—
Hauer
4352,
—
exchange
R.P.R.
of
transferred
Lynne
Restrictive
Enforcement
zoned
into
properties
of
possible
which
of
[2016]
purchased
lands
golf
restrictive
of
and
(5th)
mral
and
of
to
for
lands
might
golf
course
determine
to
A.W.L.D.
—
relief
covenant
under
residential
—
199
golf
—
lots
Restrictive
club
As
for
covenant
Running
diminish
—
from
club
current
on
part
use
lands
Golf
with
golf
was
—
by
its
of
as
1
4 to
once
the
5
been
6 lands
Ltd.
financially
7
Richmond
dated
golf
current
of Agreement,
complete
8
file
Pursuant
title
the
This
lands the
a
out
The
for
club
On
owners
The
undersigned
of the
executors, Wedgewood
course
pointing
Wedgewood
a
A
prepared
by
golf
June
covenant
nine
to
the
nine
golf
in
use intention
August
owner
covenants
June
covenants
house,
covenant
the
to
those
course
Schedule
Golf
and
undersigned,
to
on
holes
from
as
course
Richmond
was
holes
18,
Golf
the
out
15,
the
in
a
environmentally
successors
of
fairways
Course
2,1989,
pro
restricting
1994
golf
of
in
in
Agreement,
was
Developments
time
did
1994,
originally
1993 geotechnical
lands.
Club
were
the
is
and
has and
the
no order
shop
"A"
not
attached
course
to
to
lands
(the
never
manner
lands Hill
restrictions
a
conditions
and
Lands
completed.
the
Wedgewood
The
hereto
sum
or
being
complete
or time
proceed
to
and
development
the
parking
Golf
end
enhance
Amending
1994
contemplated
Amending
set
set
been
and
of
Richmond
of
to
which
assigns
balance
problems
whatsoever the
which
money
of
unfeasible.
out
and
out
the
Club
the
for
with
by
attached
constructed
the
herein
three
registered
in
lot)
Richmond lands
in
and
provided,
said
Developments
no
G.P.E.C.
are
Ltd.,
Schedule
for
five
the
in
of
Schedule
Agreement)
whereby
Agreement
of
Golf
and
benefit
other
exchange
which
imposed
to
the
the
lands
set
but
development
the
year
to
a
a
be
non-profit
a
Course
guarantee
period
nine
the
out
owner
Golf
the
on
use
Consulting
half
developed
in
Golf
period "A"
aforesaid
the
would
the
said
in
"A"
the
part:
shall
current
holes.
(including
Club
provided
for
fairways general
hereto,
Schedule
registered
enhancement
of
Course
agreed
whereby
in
Golf
lands
and
relief
stipulated
time
run
make
by
corporation,
fee
of
Lands
in
as
intention,
Club
Ltd.
a
every
Richmond
their
with
to
enjoyment
are
simple
entered
above
from
nine
in
anticipation
a
as
"A"
the
allow
ancillary
residential
Wedgewood
the
part to
that
and
Lands.
well
the
respective
in
purchaser
hole
be
its
development
in
may
Restrictive
stipulated.
of that
the they
land
Wedgewood
into
Omni-McCann
used
for
original
value
according
as
Golf
golf
the
and
be
Agreement.
golf
Richmond
development
to
an
and
will
of
subdivision.
solely
diminished.
said
and
value
construct
course
heirs,
amending
Course
or
transfer
Developments
obligation
course
enure
be
Covenant
enjoyment
transferee
to
lands
of
as
developed
Developments
of
administrators,
the
on
a
a
Golf
to
the
that
use
Reports
golf
Consultants
of
golf
the
the
the
and
as
Amending
agreement
lands
to
the
Course's
it
such
against
well
course
balance
benefit
subject
use
by
build
course
of
would
only
said
paid
had
the
set
the
as
as
as
3
a
18 The Court must address the following issues: 1. Does the Restrictive Covenant run with the land?
2. Does the Restrictive Covenant conflict with a bylaw?
3. Do the Respondents have standing to enforce the terms of the Restrictive Covenant?
4. Are the Respondents entitled to a permanent injunction?
IV Land Titles Act 19 Section 48 of the Land Titles Act, RSA 2000, c L-4 provides in part: 48(4) The first owner, and every transferee ... is deemed to be affected with notice of the condition or covenant, and to be bound by it if it is of such nature as to run with the land, but any such condition or covenant may be modified or discharged by order of the court, on proof to the satisfaction of the court that the modification will be beneficial to the persons principally interest in the enforcement of the condition or covenant or that the condition or covenant conflicts with the provisions of a land use bylaw or statutory plan under Part 17 of the Municipal Government Act, and the modification or discharge is in the pubnC interest.
(5) The entry on the register of a condition or covenant as running with or annexed to land
does not make it run with the land, if the covenant or condition on account of its nature, or of the maimer in which it is expressed, would not otherwise be annexed to or run with the land.
VLaw
20 In Kolias v. Condominium Plan 309 CDC, 2008 ABCA 379, [2008] AJ. No. 1251 (Alta. 10, C.A.) at para the Court held that the Land Titles Act preserves the common law respecting restrictive covenants.
21 V DiCastri, in Registration of Title to Land (Carswell, 1987-) at 10-3 to 10-5, lists the conditions required for a covenant to run with land as enunciated in various cases. One of those conditions is that the covenant must be negative in substance and constitute a burden on the covenantor's land analogous to an easement; no personal or affirmative covenant requiring the expenditure of money or the doing of some act runs with the land. 22 In Potts v. McCann, 2002 ABQB 734, [2002] A J. No. 999 (Alta. Q.B.), cited with approval in Kolias, Slatter J. (as he then was) held at para 30 that s. 48(5) of the Land Titles Act preserves, indirectly, the common law referring, as an example, to the principle that the covenant must be negative in nature.
5
notwithstanding
Applicants'
not
against
the
B Applicants
Agreement
30
about would
of
conflicts
in
31
for
Lands
32
of
must
part
is 33
specifically
development restrictive
contains
have
Developments, course where
3
a
35
4
bylaw;
Respondents'
therefore
the
their
subdivision
residential
provide
covenant
of
The
take
the
prospective
value
They
would
there Finally,
prevent
The
or,
the
The
the
properties.
The
no
with
Agreement
they
Respondents
into
alternatively,
covenant
Applicants.
acquired
Restrictive
purchase
Applicants
to
negative
for clause
limits
is of
note
Respondents
remain
Applicants —
for
the
are
consideration
housing.
an
complete
the
the
they
and
which
a
its
Position
construction
that
ambiguity
provisions
any
golf
permitted
rezoning.
the
Respondents'
Applicants
stating
express
the
must
submit
their
in
read
green
of
the
purpose
development
course
further
does
Covenant.
nature,
further
Applicants
There
the
their
the
be
Restrictive
note
lands.
into
state
that
space.
wording,
land
that
in
to
not
No
the
able
basic
of
lands.
argue
as is
of
the
from
the
build,
not
it
that
argue other
that
the
private
the
objection
The
no
can
form
lands.
ceased
a
to
the
They
document
wording
The
positive.
permitted
services
be
have
land
evidence
The
Restrictive
the that
proceeding
potential
when
be
character
it
but Covenant
golf
than
that
part
interpreted
did
Respondents
Agreement
left
opine
to
County
others
in
use
are
complied
the
was
course
not
purchasing
as
determining
have
of
as
of
by
It
bylaw
and
not
that
use.
for
a
the
that
undeveloped
does
injunctive
the
run
of
made
would
November
Covenant
states
golf
with
any
passed
required
there
the
use
—
the
Restrictive
on
Restrictive
The
with
development
between
not
with
and
effect
course;
submit
its
neighborhood
at
could
development
an
as
have
that
is
their
County
require
the
whether
a
own.
its
a
no
approved
its
the
relief
public
to
does
golf
it
land discharge
if 1,
had
no
green
ambiguity
Richmond
current
property,
do
mns
that
requirement
it
Extrinsic
a
Covenant
Covenant
2015.
a
course
longer
golf
should
has
can
not
so.
an
and
of
the
meeting
golf
the
with
space.
the
opportunity
development
would
They
force
approved
covenant
has
course
either
it
Therefore,
zoning
Applicants
course is
is
they
be
and
land
in
be
the
evidence
Golf
in
changed
whereas
invalid
and
The
the
argue
in
the
attained
refused
result
in
the
be
land.
for
was
will
believed
2003.
Club
to
Restrictive
bylaw
was
the
Applicants
Restrictive
is
the
public
developed
no
be
to
that
personal,
not
and
diminish
the
They
is
in
or
Memorandum the
are and
not
Applicants'
other voice
and
built.
The
as
by
only
any
sale
completed.
the
prior
unenforceable
covenant
language
attempting
interest.
that
an
the
registered
Wedgewood
the
argue
bylaw
diminution
purpose.
Applicants
admissible
It
objections
injunction
of
Covenant,
Covenant
to
the
object
the
as
to
the
prevents
time
the
violate
a
that
Court
some
value
does
Golf plan
now
golf
of
lots
the
of
of
as
to
7
It
it
a
view
41
the
applied
42
for
ambiguity
land",
development
43
I
answer
known
"diminish
Restrictive
case
find
is
44
Pursuant
B to
45 running
account D
46
47
entitled
C
construction
acquired
find
Does
not
Do
Are
or
example
planting
that
was
The
of
run
that
required.
the
and
I
Given
InPodwin
Assuming
the
would
to
conclude
for
The
the
the
with
of
to
the
In
with
to
not
fact
Respondents
their
the
the
even
"located
and
Respondents
its
a
an
Covenant
river.
Restrictive
s. my
"which
language
of
Respondents
my
of
of
permanent
registered
or
that
enhancement
parties
nature,
48(5)
the necessarily
injunction
uncertainty,
trees
lands,
the
if
the
annexed
view,
conclusion
that
Hrabinsky
this
without
the
land.
v.
land,
in
golf
shall
of
Gondziola,
or
Restrictive
at
the
or
of
such
must
were
it
it
the
Covenant
have
placing
as
course
the
entitled
the
within
of
injunction. to
had
injure,
would
Restrictive
against
deciding
depend
distinguish
part
Land
a
land
the
citing
severable,
in
be
Restrictive
time
on
J.
way
standing
been
value
held
read
manner
of
—
the
the
prejudice,
of
does
2004
be
to
Covenant
Titles
of
builders
as
conflict
cases
the
to
was
other
range
first
a
that
determined
that
virtually
formation
in
There
to
and
some
permanent
Covenant
not
Restrictive
Aquadel
SKQB
it
Act,
to
block
not
a
in
Covenant
issue,
the
which
would
the
enjoyment"
make
objects
of
manner
enforce
which
with
of
affect
extent
states
feasible.
is
the
Respondents
developments
restrictive
the
a
225,
evidence
impossible
it
held
of
it
be
entry
does
dwelling a
that
on
is
that
or
which
it
run
view
injunction?
bylaw?
Covenant
on
the
consistent
itself
the
unenforceable
unnecessary
[2004]
is
the
destroy
the
not
the
the
with
on
by
it
expressed,
terms
contract:
to
will
covenant
leads
ground
that
restrictions
would
the
purely
the
mn
only
on
the
having
the
to
possible
SJ.
run
the
as
register
of
owners
by
with
the
with
lake".
to
determine
land,
certain
it
the
No.
natural
with
"unreasonably
that
subjective
to
the
Sativa
1994,
basis
would
was
was
standing,
as
the
address
the
Restrictive
under
if
result;
362
to
it
the
the of
of
the
lands.
in
likely
is
surrounding well
of
object
be
aspect
the
at
a
land
not
Aquadel.
(Sask.
with
entire
too
covenant
condition
a
the
para
too
resort
this
views
Schedule
I
restriction
before
otherwise
unenforceable
vague
find
is
current
and
of
vague
any
Covenant?
obstruct"
47.
of
issue.
Agreement
Q.B.),
to
the
of
no
that
condition
In
In
or
certainty
the
the
and
or
circumstances
those
consequence.
bylaw,
A
my
or
covenant
condition
any
they
covenant
prohibiting
neighbours
be
Agreement
Applicants
lands.
uncertain.
uncertain,
another's
view,
annexed
owners.
event,
are
in
due
might
of
what
The
this
the
the
not
—
on
to
as
9
I
TAB 11
Section
617
Non-application
Purpose
Part.
regulations
exempt
(4)
any
(3)
Minister
apply to apply
(2)
the
not
618(1)
public
without
interest
617
matters
under
(b)
(b)
(a)
(c)
(a)
(b)
(a)
purpose
apply
The
The
provision
This
The
this
a
specialized the
operation of
a
a
Conservation
a
interest.
situated
environment to
and to
development,
an
except
may
This
’
Lieutenant
infringing
Minister
designated
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