243 Approval Of Bare Land Strata Plan

REGULATIONS AND FORMS

The Bare Land Strata Regulations, B.C. Reg. 75/78, is included at chapter 58 (Strata Property Regulations).

Endorsement of Approval

Submissions

Section 18 of the Bare Land Strata Regulations sets out the form of approval to be shown on the bare land strata plan.

On the Application to Deposit Plan at Land Title Office, click the Schedule of Approving Officers and Provincial Approvers and select Bare Land Strata Approval from the Approval Type drop down menu.

Plan to Be Tendered for Deposit within Two Months

Section 20 of the Bare Land Strata Regulations states that a bare land strata plan shall be tendered for deposit within two months after it has been approved by the approving officer, except as set out in this section.

Covenants or Easements

Section 21(1) of the Bare Land Strata Regulations makes the following provision:

• 21 (1) Where the approving officer approves a bare land strata plan on the condition that a covenant or easement benefiting or burdening the land or any adjacent land be registered in the land registry office, the approving officer shall endorse the condition on the bare land strata plan.

Section 219 of the Land Title Act provides an acceptable model for endorsing such a condition. See the practice notes for s. 219 of the Land Title Act in chapter 15 (Land Title Act Part 14 (ss. 197 to 237)—Charges).

Land Adjacent to Controlled Access Highway

See s. 11 of the Bare Land Strata Regulations regarding approval of a bare land strata plan if it deals with land in the municipality adjacent to a controlled access highway.

CASE LAW

Approval of Approving Officer

The petitioner applied for approval of an eight-lot bare land strata plan. In refusing the petitioner’s application, the approving officer stated that the application did not contain written confirmation from the regional district with respect to the plan’s compliance with relevant zoning bylaws and that the land was located in an area identified in consultants’ reports as subject to natural hazards, landslides, and subsidence. The trial court found that the approving officer fettered his discretion by determining that compliance with the conditions in the consultants’ reports was mandatory and by failing to consider fully the petitioner’s site-specific analysis and proposed remedial measures. The trial court ordered the approving officer to reconsider the petitioner’s application on its merits. For different reasons, the Court of Appeal affirmed the trial court’s order. Although the Court of Appeal found that the approving officer was not persuaded by the petitioner’s expert reports, this fact was not evidence that the approving officer had failed to carry out the required analysis of what was put before him. However, the Court of Appeal also found that, through no fault of the petitioner, all of the relevant information had not been placed before the approving officer when he was considering the petitioner’s application. In these circumstances, the appropriate remedy was to confirm the trial court’s order remitting the matter to the approving officer for reconsideration (ARA Holdings Ltd. v. British Columbia (Provincial Approving Officer), 2001 BCCA 397).

An approving officer imposed three conditions on the petitioners’ application for a bare land strata subdivision. As a result of an earlier subdivision, the petitioners’ lot included a small triangular parcel that was separated from the remainder of the lot by a road and two other lots. The triangular parcel was too small under current zoning to build on or to form its own lot. The approving officer suggested that, as one of the conditions of subdivision approval, the triangular parcel be consolidated with one of the other two lots, which were owned by third parties, or donated to the local government. The approving officer also stipulated that the petitioners develop an access road within the bare land strata plan in accordance with local government’s works and services bylaw and that the petitioners enter into a restrictive covenant prohibiting “gating” of the access road. In this application for judicial review of the approving officer’s decision, the court adopted, as good law, the principles set out in Vancouver (City) v. Simpson, 1976 CanLII 148 (SCC) and Hlynsky v. West Vancouver, 1989 CanLII 2746 (BC CA) with respect to the degree of deference accorded to discretionary decisions of approving officers under the Strata Property Act and its regulations. On the issue of the triangular parcel, the court found that the proposed subdivision made the connection between the triangular parcel and the remainder of the lot marginally more distant and rendered the strip connecting the two parts of the lot somewhat more narrow. However, neither of these changes could realistically be said to have any bearing on the situation or use of the triangular parcel and, as a result, the proposed subdivision did not materially affect the status of that parcel. On this issue, the court held that the approving officer’s reasons were specious and that his decision was patently unreasonable. On the issue of construction standards for the access road, the court found that a works and services bylaw under s. 938 of the Local Government Act (now, s. 506) had no direct application to a private access road within a subdivision under the Strata Property Act. As the approving officer had not stipulated dedication of a highway to provide access to the subdivision, s. 938 did not apply and the approving officer was prohibited from imposing a bylaw adopted under that section on the petitioners’ application. On the issue of the restrictive covenant, the court found that the question of “gating” was not a proper consideration on a subdivision application but rather a question for zoning and development. However, the court held that the approving officer had jurisdiction to prevent “gating” under s. 6(1)(b) of the Bare Land Strata Regulations as a means of ensuring access to the land by emergency vehicles and services. On those grounds, the court upheld the restrictive covenant. The court also directed the approving officer to refrain from imposing any requirements that the triangular parcel be removed from the subdivision, to reconsider what standards ought to apply to the access road and to provide reasons for those standards (Norgard v. Anmore (Village), 2007 BCSC 1571). Following the court’s decision, the petitioners submitted a new and final bare land subdivision application to the approving officer. Without knowledge of that application but in response to the court’s decision, the approving officer wrote to the petitioners setting out standards for the access road and a new bridge across a creek. After he was made aware of the petitioners’ new application, the approving officer refused that application for the reasons set out in his earlier letter. The court ordered the approving officer to review the new application within three weeks and to report to the petitioners on the results of that review within a further period of six weeks (Norgard v. Carley, 2008 BCSC 1236).

For a discussion of the relationship between preliminary layout consideration and subdivision approval, see the annotation for Scrumpy Consulting Inc. v. Brennan, 2013 BCSC 563 under s. 86 of the Land Title Act in chapter 7 (Land Title Act Part 7 (ss. 58 to 120)—Descriptions and Plans).