132 Opposition By Local Authority

CASE LAW

The respondent landowners owned two lots separated by a 66-foot road allowance dedicated and registered on a subdivision plan. The respondent landowners petitioned the registrar to cancel the road allowance and consolidate half of the road allowance (33 feet) with the title to each of their respective lots. The regional district opposed the application and the registrar refused the petition as required under s. 132 of the Act. Subsequently, the parties agreed that the regional district’s opposition suffered a fatal flaw because no proper notice had been given to local residents about the regional district’s proposed actions. On appeal to the Supreme Court, the chambers judge remitted the question of cancellation to the registrar for reconsideration rather than ordering a new hearing. The effect of that decision effectively prevented the regional district from correcting the defects in its resolution opposing the application. The Court of Appeal found that, in this case, the chambers judge did not give sufficient weight to the public interest. The structure of the Land Title Act is such that if a public authority files an objection to the type of petition that was before the registrar in this case, the registrar is bound to reject it. While an objection to the validity of a local government resolution ought to be resolved before a hearing before the registrar, in this case, the respondent landowners had no right to the road allowance prior to their application and the regional district was simply acting to preserve potential public use of and access to the road allowance. As the only way to explore and fully debate the merits of the matter, the Court of Appeal allowed the regional district’s appeal and ordered a new hearing before the registrar (Hlina v. British Columbia (Registrar of Land Titles), 2007 BCCA 369). For subsequent proceedings, see the annotation below for Burke v. Columbia Shuswap (Regional District), 2008 BCSC 66.

In earlier proceedings (see Hlina v. British Columbia (Registrar of Land Titles), 2007 BCCA 369), the petitioners sought cancellation and consolidation of an unused road allowance as part of their adjacent private properties. In anticipation of a new hearing before the registrar as ordered by the Court of Appeal, the regional district passed a resolution opposing the petitioners’ application on the grounds that the unused road allowance was required for the purpose for which it was dedicated under s. 132 of the Act. The petitioners brought this application for an order that the regional district had no jurisdiction to pass the resolution. In dismissing the petition, the court found that s. 132 of the Act grants a regional district a veto under Part 8 and that, in this case, the regional district properly exercised its veto when it passed the resolution opposing the application. The court did not consider it significant that no public use had been made of the road allowance for 49 years. Rather, it found that “planning” by definition requires an eye to the future and that resources can be husbanded for years before they are brought into use to satisfy existing needs. The regional district had an interest in bringing the unused road allowance into its general scheme for designated park areas and it did not want to lose public access to the lake and to whatever park opportunities it might develop within a reasonable distance of that access. The regional district did nothing more than state and re-state its consideration that the unused road allowance was necessary “for the purpose for which it was intended”, that is, for public access (Burke v. Columbia Shuswap (Regional District), 2008 BCSC 66).