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In This Volume

  • 17 An order for the partition of land into 2 or more parcels is deemed to effect a subdivision as defined in the Land Title Act and must contain an express declaration that the order is subject to compliance with that Act.

1979-311-17.

CASE LAW

Partition of ALR Parcel Declined

As well as ss. 6, 7, 8, and 17 of the Partition of Property Act, McLachlan v. Ast, 2018 BCSC 1365 was decided under ss. 6 and 18 of the Agricultural Land Commission Act and s. 10(1)(c) of the Agricultural Land Reserve Use, Subdivision and Procedure Regulation, B.C. Reg. 171/2002, before the 2019 amendment of that Act and the 2019 renaming and partial replacement of that regulation (see chapter 34 (Agricultural Land Commission Act, S.B.C. 2002, c. 36) in this manual). The provisions may not have changed in substance to degrees that would affect the result. Through inheritance and family dealings, the petitioner and the respondent, her uncle, came to own, respectively, a 75% and a 25% undivided interest in a 2.5-acre property located in the agricultural land reserve. The petitioner applied under the Partition of Property Act to have the property partitioned, so the respondent would receive the eastern 1/4 of the property and she would receive the remainder. The court dismissed her application, saying the Partition of Property Act should be read in context with other legislation, including the Agricultural Land Commission Act. The court found the proposed subdivision would create an “orphan” lot for the respondent, with potential difficulty of road and utility access. The court also declined to exercise its discretion to order partition in the absence of reasonable assurance that the subdivision would meet with Agricultural Land Commission (“ALC”) (now Provincial Agricultural Land Commission) approval. The exemption from ALC approval for certain subdivisions did not apply because at least one of the proposed parcels would be less than 1 ha (in fact, both parcels, after the proposed subdivision, would be less than 1 ha) and there would be an increase in the number of parcels of land; see s. 10(1)(c) of the former Agricultural Land Reserve Use, Subdivision and Procedure Regulation, B.C. Reg. 171/2002, as well as s. 10(1)(c) of the Agricultural Land Reserve General Regulation, B.C. Reg. 171/2002. See, as well, the pre- and post-amended versions of s. 18 of the Agricultural Land Commission Act, requiring commission approval of a subdivision (see the commentary under “21 Subdivision of agricultural land reserve” in chapter 34). The court also declined to order the partition because of the possibility of a claim with respect to gravel mining under approximately the eastern half of the parcel.