20.1 Residential Use Of Agricultural Land

CASE LAW

Single-family Residence Construction “Tolerated” within ALR Legislative Scheme

The petitioners were two couples who jointly owned three properties (“Properties 1, 2, and 3”) that were within the agricultural land reserve (the “ALR”); all three had civic addresses on 18th Avenue in Surrey without having 18th Avenue frontage. The properties had been created by way of a subdivision plan that included highway dedications running throughout. A portion of 18th Avenue had been developed without ALC approval by the owner of the adjacent property to the west (“Property 4”), but that road improvement ended just before it could provide access to Properties 1, 2, and 3. Each of the petitioner couples also separately owned a lot, fronting on 20th Avenue, immediately to the north and adjoining Properties 1, 2, and 3. Pursuant to s. 6 of the former Agricultural Land Reserve Use, Subdivision and Procedure Regulation, B.C. Reg. 171/2002 (the “Regulation”) (renamed the Agricultural Land Reserve General Regulation in 2019, renamed the Agricultural Land Reserve Transitional Regulation in 2020, and to be repealed and replaced in part in 2020 effective September 30, 2020 by the new Agricultural Land Reserve General Regulation—which changes may not be substantive to degrees that would affect the result), the petitioners had applied to the ALC to construct an extension of 18th Avenue to access Properties 1, 2, and 3 to provide vehicle access to facilitate blueberry production, and to authorize the existing unauthorized road to Property 4. In August 2018, in its original decision, the ALC refused the application. Its reasons were that: (1) the ownership of Properties 1, 2, and 3 was such that access for farm use through the two properties directly to the north was possible as an existing internal farm access road satisfied the demand for vehicle and equipment access to all properties in the application for the purposes of agricultural production; and (2) an extension of 18th Avenue would in the likelihood of residential development on Properties 1, 2, and 3 and negatively impact the agricultural utility of the ALR properties. That decision was upheld on reconsideration conducted pursuant to s. 33(1) of the Act. The petitioners sought judicial review of the ALC’s denial. The court allowed their petition and remitted the matter for reconsideration. The court said the proper object of judicial review was the original decision, not the reconsideration decision, which was, in any case, not substantive and was reasonable. The reasons in the original decision were transparent and intelligible, and related to the stated purpose of the Act. However, the refusal of the application was not reasonable because the reasons did not provide a rational justification for the decision in relation to the governing statutory scheme of the Act and, in particular, in relation to the types of development the ALC may or may not refuse. While the part of the decision that considered whether internal access roads could achieve the agricultural benefits sought without the construction of a new road was reasonable, it was not clear that the ALC would have refused the application solely on that basis. Read as a whole, the reasons suggested (at para. 56) that the “opportunity for residential development on each Property” created by the proposed road extension was a significant and critical basis for its refusal decision. Though the potential for an increase in residential development on ALR land might be of concern to the ALC, the construction of a single-family residence on a parcel of land within the ALR was tolerated under the scheme of the Act and regulations. Both under the 2018 Act and under the 2019 amendments, single-family residences were neither expressly prohibited nor expressly permitted (although under the 2019 amendments the construction of such buildings are now expressly regulated under s. 20.1). Both versions of the Act have allowed, by effect and implication, local land use authorities to approve or permit one, and not more than one, principal single-family residence on a parcel of land, without ALC approval. The panel conflated its concerns with non-farm uses that it had the discretion to refuse with a use that it had no discretion to refuse, and refused the former for the purposes of the latter. The refusal to allow road development primarily on the basis that it would facilitate a use that is allowed pursuant to the scheme of the Act was not justified by the reasons given, and was unreasonable (Dhanoa v. British Columbia (Agricultural Land Commission), 2020 BCSC 854).