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POWERS OF MUNICIPALITY - Services and utilities - Types - Sewer

Tuesday, November 21, 2017 @ 8:42 AM  


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Appeal by Lacombe County from an order declaring part of the bylaw regulating communal sanitary sewage collection systems invalid. The respondent and his wife owned a property in the County. In 2013, they had a private sewage disposal system installed. Waste went from their home by pipe into a tank under the property. Periodically, the respondent hired a waste haulage company to remove the waste from the tank and dispose of it. At the time that it was installed, no public sewage system was available. In 2015, the County enacted a bylaw to provide sewage collection services to residents in the respondent’s area. The bylaw required residents to connect to the County system and disconnect from any private systems. In addition, residents were required to pay the cost of connection to the sewage system. The respondent agreed to pay for a partial connection to the County sewage system, but refused to complete the connection by paying for the installation of a grinder pump. He then applied for a declaration that parts of the bylaw, which compelled owners to disconnect from any other sewage system and pay a service connection fee, were ultra vires. The chambers judge held that ss. 34 and 35 of the Municipal Government Act (Act) did not authorize the impugned provisions of the bylaw because they dealt with provision of utility services where the landowner requested them. She also found that s. 33 of the Act did not expressly authorize the County to prohibit the haulage company from taking away the respondent’s waste and did not implicitly authorize it to enact bylaws compelling the respondent to connect into the public system at his own expense. The chambers judge declared that to the extent the provisions of the bylaw purported to apply the overly broad interpretation of ss. 34 and 35 of the Act, they were struck down.

HELD: Appeal allowed. The impugned provisions of the bylaw were intra vires the County’s powers under the Act. The County had the general power to regulate public utilities under ss. 7 and 8 of the Act. The County did not have authority under s. 33 of the Act to prohibit private providers of waste haulage services, as those persons did not provide their services through a “system or works” and because they did not provide the service for public consumption, benefit or use. Section 34 provided for a landowner’s entitlement to connect to a municipal public utility when the landowner requested. It did not address the power of municipalities to compel connection to a municipal utility system. As such, it did not reduce the authority of the municipality to compel connection under its general powers to regulate public utilities. Municipal powers to require participation in public utilities was not limited to the circumstances in ss. 650 and 655 of the Act. The bylaw did not conflict with the Safety Codes Act, as it regulated a different matter, namely the circumstances in which private sewage disposal systems were permitted and when landowners were required to connect to the Country sewage system, rather than the standards that private sewage systems were to meet when they were permitted.

Kozak v. Lacombe (County), [2017] A.J. No. 1109, Alberta Court of Appeal, P.W.L. Martin, T.W. Wakeling and S.J. Greckol JJ.A., October 26, 2017. Digest No. TLD-November202017005