Casual Legal: Legal non-conforming uses

By Ben Throndson
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider 

The general rule in planning is that land may not be used in violation of the planning rules in Part 17 of the Municipal Government Act (the “MGA”) or the municipality’s Land Use Bylaw.

There is, however, an important exception. The defence of “legal non-conforming use” allows a pre-existing use of land to continue, even though the use no longer complies with current zoning rules for that land. This can arise when a municipality rezones a parcel of land and causes the current use to no longer fall within the list of permitted or discretionary uses for that parcel or where the applicable development standards are amended.

In this way, legal non-conformance is an example of the “grandfathering” principle: the existing use is allowed to continue despite being at odds with the new rules. If the defence of “legal non-conforming use” is established, it is a complete defence to enforcement action by the municipality. For example, if the municipality issues a Stop Order to the landowner under section 645 of the MGA, and the landowner can show their use is a legal non-conforming use, that is a full defence.

Legal non-conforming uses are governed by section 643 of the MGA. As an exception to the general rule, the person who claims to have a legal non-conforming use must show they fall within the scope of the exception as it is set out in the legislation. 

To qualify, there must be a “lawful specific use” in place when the zoning rules change – this means that the use in question must have either a) had a permit (if a permit was required) or b) been a use for which no permit was required when it was put in place. If the non-conforming use is discontinued for six months or longer during the time when the use is non-conforming, the protection of section 643 is lost.

Land use is not affected by a change of ownership or tenancy. A purchaser may continue a pre-existing lawful non-conforming use.

Additional regulations apply to legal non-conforming uses and buildings and the failure to stay within those strict requirements will result in the protections afforded legal non-conforming uses coming to an end.  Given the exception is intended to balance evolving planning regulation and the vested rights of developers, the reality is legal non-conforming uses will, in most case, eventually be phased out.

To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] (email) to reach Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.