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June 17, 2016
On June 16, 2016, the Supreme Court of Canada decided a municipality’s “notice of reserve”, a mechanism to prevent construction, on land on which a telco wanted build a new radiocommunication antenna, is unconstitutional. Practically, telcos are required to consult with municipalities and land authorities when deciding where to site radiocommunication antennas; but radio towers are ultimately about radiocommunications – and the legal authority to decide where they are sited ultimately rests with the federal government. A municipality can’t use its development and land use planning authority to prevent, block or dictate that authority. Courts have indicated they will give municipalities latitude when interpreting the parameters of their authority, but this decision signals that latitude doesn’t extend to municipal authority that doesn’t exist. Municipalities and local governments should be mindful of the parameters of their authority, and increase their due diligence efforts around projects that occur within municipal boundaries – but over which they have no legal authority.
Here are three practical take-aways for municipalities and local governments.
In Rogers Communications Inc. v. Châteauguay (City), Rogers identified a site for a new antenna in the city of Châteauguay, QC. Rogers consulted the city on the site. The city initially raised concerns about non-conformity with zoning by-laws, aesthetics, and health and safety of the local population, but ultimately issued Rogers a construction permit to move ahead with the project. But public opposition ensued; the city revisited the public consultation requirements and reverted to its initial position opposing the development at the site. Throughout the debate, the city encouraged Rogers to build the new antenna at an alternate site that a third party owned and that appeared equally capable of hosting the antenna. The city began expropriation proceedings of the alternate site, but the process was delayed when the owner opposed the expropriation. Rogers went to Industry Canada, the federal agency charged with siting radiocommunications towers, seeking ministerial intervention to break the impasse. Industry Canada confirmed Rogers had satisfied its regulatory requirements and could proceed with building the antenna at the site it initially selected. But the city issued a “notice of land reserve” on the site, preventing the intended construction on the property. Rogers contested the notice of reserve. The lower court decided the city acted in bad faith and had abused its authority in making the notice. The city appealed; the Court of Appeal disagreed with the lower court, deciding the city acted for the legitimate municipal purposes of addressing the health and safety concerns of its citizens and to ensure the harmonious development of its territory. Rogers appealed to the Supreme Court of Canada – and won:
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Municipal Law Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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