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In This Volume

35 (1) Subject to this section,

  • (a) the soil and freehold of every highway in a municipality is vested in the municipality, and
  • (b) in the case of a highway in a municipality that is not vested under paragraph (a), the right of possession of the highway is vested in the municipality.
  • (2) Subsection (1)(a) does not apply to the following:
  • (a) Provincial arterial highways, including the intersection between a Provincial arterial highway and another highway and any interchange between a Provincial arterial highway and another highway;
  • (b) highways referred to in section 23(1) of the South Coast British Columbia Transportation Authority Act;
  • (c) highways in a park, conservancy, recreation area or ecological reserve established under the Park Act, the Ecological Reserve Act or the Protected Areas of British Columbia Act or an area to which an order under section 7(1) of the Environment and Land Use Act applies;
  • (d) highways in a regional park;
  • (e) a regional trail, other than a regional trail that is part of the road system regularly used by vehicle traffic;
  • (f) land, including the improvements on it, on which Provincial works such as ferry terminals, gravel pits, weigh scales and maintenance yards are located;
  • (g) roads referred to in section 24 of the Forest and Range Practices Act that have not been declared to be public highways;
  • (h) highways vested in the federal government;
  • (i) in relation to a reserve as defined in the Indian Act (Canada), highways in the reserve or that pass through the reserve;
  • (j) public rights of way on private land.
  • (3) Subsection (1)(b) does not apply to highways referred to in subsection (2)(a) to (h).
  • (4) The vesting under subsection (1)(a) and the right of possession under subsection (1)(b)
  • (a) are not adversely affected or derogated from by prescription in favour of any other occupier, and
  • (b) are subject to any rights reserved by the persons who laid out the highway.
  • (5) The vesting under subsection (1)(a) includes the vesting of all statutory rights of way and other easements owned by the Provincial government solely for purposes relating to the drainage of a highway that is vested under that subsection, and the interest of the Provincial government under those easements is transferred to the municipality and the municipality assumes the rights and obligations of the Provincial government in relation to those easements.
  • (6) The minister responsible for the Transportation Act may file with the land title office an application satisfactory to the registrar of land titles that identifies an easement referred to in subsection (5) and, on filing, the registrar must register ownership of the easement in the name of the municipality.
  • (7) The vesting under subsection (1)(a) is subject to the following:
  • (a) the right of resumption under subsection (8);
  • (b) the limits referred to in section 23(2) of the Land Title Act;
  • (c) the exceptions described in section 50(1)(a)(ii) to (iv) and (b) of the Land Act, as if the vesting were made by Crown grant under that Act;
  • (d) the exceptions described in section 107(1)(d) of the Land Title Act, as if the vesting were under that section.
  • (8) The Provincial government may, by order of the Lieutenant Governor in Council, resume the property or interest vested in a municipality under subsection (1)(a), if the Lieutenant Governor in Council considers that this is required
  • (a) for the purpose of or in relation to a Provincial arterial highway,
  • (b) for any other transportation purpose, or
  • (c) for the purpose of or in relation to a park, conservancy, recreation area or ecological reserve established or proposed to be established under the Park Act, the Ecological Reserve Act or the Protected Areas of British Columbia Act or an area to which an order under section 7(1) of the Environment and Land Use Act applies.
  • (9) An order under subsection (8)(a) or (b) may only be made on the recommendation of the minister responsible for the Transportation Act, and an order under subsection (8)(c) may only be made on the recommendation of the minister responsible for the applicable Act referred to in that subsection.
  • (10) The minister responsible for the Transportation Act, after consultation with the minister responsible for this Act, may
  • (a) by order, cancel the Provincial government’s right of resumption under subsection (8) in relation to a specified highway or in relation to highways within a specified area, or
  • (b) by regulation, specify circumstances in which the Provincial government’s right of resumption is cancelled without a specific order.
  • (11) For certainty, a council may grant a licence of occupation or an easement, or permit an encroachment, in respect of a highway that is vested in the municipality under subsection (1)(a).
  • (12) This section does not apply to a highway for which the municipality has purchased or taken the land and for which title is registered in the name of the municipality.

2003-26-35, effective January 1, 2004 (B.C. Reg. 423/2003); 2003-52-533, effective January 1, 2004 (B.C. Reg. 465/2003); 2004-44-96, effective December 31, 2004 (B.C. Reg. 547/2004); 2006-25-18, effective July 14, 2006 (B.C. Reg. 215/2006); B.C. Reg. 337/06, Sch. s. 1, effective December 4, 2006; 2007-41-59, effective November 30, 2007 (B.C. Reg. 399/2007).

PRACTICE

Transfer of Statutory Rights of Way and Easements: Section 35(6)

Section 35(5) vested certain statutory rights of way (SRW’s) in the municipality. These SRWs relate to the drainage of the highways that were also vested in the municipality pursuant to s. 35(1). Section 35 provides sufficient language to vest these SRWs in the municipality; however, the registrar is not in a position to conclude which SRWs were included in that vesting.

In order to identify the SRW pursuant to s. 35(6) of the Community Charter, a “Change of Name” application on the Form 17 Charge to change the name of the title to the SRW into the name of the municipality is required, and the application must be made by the Minister responsible for the Transportation Act. The application must also state “Pursuant to s. 35(6) of the Community Charter” in the “Additional Information” field in Item 3 of the Form 17.

An application from the province to change the name of the title to the SRW into the name of the municipality is required before the municipality can deal with the interest.

Submissions

On the Form 17 Charge, select Nature of Interest, Change of Name, and denote “Pursuant to s. 35(6) of the Community Charter” in the “Additional Information” field in Item 3.

Resumption of Property or Interest in Property: Section 35(8)

When the provincial government resumes a highway that is vested in the municipality, the registrar requires an order of the Lieutenant Governor in Council and a Form 17 application to issue title in the name of the Crown. The registrar may call for a reference or explanatory plan to define the portion of highway that is subject to the resumption.

Submissions

On the Form 17 Fee Simple, select Nature of Interest, Road Resumption, and attach an image of the original order of the Lieutenant Governor in Council.

When the provincial government resumes an interest in a statutory right of way that has vested in the municipality, the registrar requires an order of the Lieutenant Governor in Council and a Form 17 application to transfer the charge into the name of the Crown.

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Resumption Statutory Right of Way, and attach an image of the original order of the Lieutenant Governor in Council.

Cancellation of Right of Resumption: Section 35(10)

Where the Crown’s right of resumption is cancelled by regulation, the registrar requires an application in Form 17 referring to the appropriate regulation. A release of the Crown’s right of resumption is endorsed as a partial release of the exceptions and reservations charge on the title.

Note: The registrar does not accept for filing a cancellation of a right of resumption until an application has been made to issue or transfer title.

Submissions

On the Form 17 Cancellation of Charge, Notation or Filing, enter the following information:

  1. Reference B.C. Reg. 245/2004 in the Additional Information field in Item 3.
  2. Select under the Nature of Interest, Right of Resumption Community Charter, and enter “partial cancellation” in the Additional Information field.
  3. Attach an image of the statement from the corporate officer on municipal letterhead certifying the following facts:
    • (a) the identity of the closed highway land;
    • (b) that the municipality has, by bylaw, closed the highway and removed its dedication
    • (c) that the closed highway is not adjacent to a park, recreation area, ecological reserve, or other area established under the Park Act, the Ecological Reserve Act, the Protected Areas of British Columbia Act, or the Environment and Land Use Act; and
    • (d) that the closed highway land is to be disposed of for either of the following two purposes:
      • (i) in exchange for land necessary for the purpose of improving, widening, straightening, relocating, or diverting a highway, or
      • (ii) to one or more adjacent land owners for the purpose of consolidating it with the landowners’ existing adjacent parcel or parcels of land.

Grant of Easement: Section 35(11)

When a municipality grants an easement under s. 35(11), the municipality must first apply for title to the road. A Property Transfer Tax form is not required for this application. Where the application is for less than the original parcel of road, a reference plan defining the parcel is required. The plan heading must include a reference to the plan number that dedicated the road.

Submissions

The registrar requires:

  1. On the Application to Deposit Plan at Land Title Office, select Nature of Interest, Reference or Explanatory accompanied by an electronic reference or explanatory plan with a pre-assigned plan number defining the easement area. The electronic application is available at ltsa.ca.
  2. On the Form 17 Fee Simple, select Nature of Interest, Title to Road to raise title in the name of the municipality.
  3. On the Form C Charge, select Nature of Interest, Easement, and include the applicable easement terms in Part 2 of the instrument.

In addition to the Survey and Plan Rules at www.abcls.ca, the director’s directions for electronic plans are set out in the Electronic Land Title and Plan Application Requirements at ltsa.ca.

Note: Titles issued for the purpose of registering easements will be endorsed with the following legal notation:

FOR ROAD PURPOSES ONLY