40 Permanent Closure And Removal Of Highway Dedication

PRACTICE

Registration of Bylaw and Plan Describing Abandoned Highway

Under s. 40 of the Community Charter and s. 120 of the Land Title Act, where a municipality passes a bylaw to remove the dedication of a portion of highway, the municipality is required to file the bylaw and any accompanying plan in the land title office. Note that the bylaw must specifically remove the dedication of the highway rather than merely closing it as was formerly the case.

The registrar receives the bylaw and plan package, together with an application in Form 17, and the prescribed fee. The registrar raises title to the portion of highway in the name of the municipality. Because of the possibility of privately owned undersurface rights existing under the road under s. 107(1)(d) of the Land Title Act, the registrar does not endorse a charge on title under s. 50 of the Land Act.

Where the municipality provides a reference or explanatory plan, the plan should include a reference in its title to the bylaw and s. 120 of the Land Title Act.

Highway Closure and Removal Bylaw

Note that a bylaw passed under s. 40 of the Community Charter must specifically remove the dedication of the highway rather than merely closing it as was formerly the case.

Submissions

On the Application to Deposit Plan form, select Bylaw or Road Closing and add the required signatures and approvals. On a Declaration form attach the certified copy of the bylaw or resolution and submit immediately following the Application to Deposit Plan. Once submitted, EFS automatically attaches the declaration to the electronic plan application.

A reference or explanatory plan is required to define the closed road area. The plan heading should include a reference to s. 40 of the Community Charter and s. 120 of the Land Title Act. It should also include a reference to the plan that dedicated the road. An electronic plan image with a pre-assigned plan number is attached to a Survey Plan Certification form that is signed electronically by the British Columbia land surveyor.

To apply for title in the name of the municipality, complete the Form 17 Fee Simple and select Nature of Interest, Title to Closed Road. No attachment is needed.

On the Form 17 Charge, Notation or Filing, select Nature of Interest, Undersurface and Other Exc & Reservations, to raise any reservations and exceptions as set out in s. 35(7) of the Community Charter in the name of the Crown in right of the Province of British Columbia.

Title in the Name of the Municipality Subject to Exceptions and Reservations

On the filing of a bylaw and an application to register indefeasible title in the name of the municipality, the registrar issues title to the municipality subject to the reservations and exceptions set out in s. 35(7) of the Community Charter.

Before disposing of the highway, municipalities consider public access to bodies of water, the owners’ access to their property, and other restrictions under s. 41 of the Community Charter.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Order in Council Transferring Crown Rights in Highway

See s. 40 of the Land Title Act chapter 4 (Land Title Act Part 4 (ss. 39 to 40)—Forms of Instruments).

Discontinuance of Highways

See s. 107 of the Land Title Act for practice with respect to the closing and subsequent vesting of discontinued highways by the Ministry of Transportation and Infrastructure under s. 60 of the Transportation Act.

Reference or Explanatory Plans

See s. 120 of the Land Title Act and note particularly ss. (2), which provides:

• (2) In the case of a closing of a highway or public square, the registrar may accept a reference plan, or an explanatory plan, or a description by apt descriptive words.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, para. 136, and vol. 3, paras. 791 and 793.

CASE LAW

Land Exchanges

The municipality conceived a scheme to sell certain unimproved highway portions that were not then used or intended to be used for highway purposes. On receiving notice of the municipality’s intention, the owners of two properties adjacent to the unimproved highway land filed a petition for cancellation of the plan and a vesting order under Part 8 of the Land Title Act. On receiving notice of the petition, the municipality attempted to pass a bylaw that would vest title to the unimproved highway portions in it. At the hearing, the registrar refused to consider the bylaw as evidence that the land was used or necessary for highway purposes, because the bylaw had not received final reading. The registrar ordered the plan cancelled and the title vested in the adjacent property owners. On appeal, the court held that the bylaw did not bring about an exchange of lands under s. 535 of the Municipal Act (now, s. 40 of the Community Charter). The municipality did not own the land it wanted to exchange but had only a right of possession. The Crown had title to the land and the municipality could not, by bylaw, exchange land it did not own. The municipality could not pass a bylaw to defeat the legitimate interests of the adjoining property owners (Maple Ridge (District) v. New Westminster (Registrar of Land Titles), [1991] B.C.W.L.D. 1325 (S.C.) and [1993] B.C.W.L.D. 1987 (S.C.), affirmed 1994 CanLII 3294 (BC CA). The decision in the Court of Appeal in this case was rendered on February 2, 1994. The court makes no reference to its earlier and seemingly irreconcilable decision in Einhorn v. Maple Ridge (District), 1993 CanLII 1432 (BC CA), rendered on July 9, 1993, and annotated below.

A municipal bylaw was enacted under s. 535 (now, s. 40 of the Community Charter) for the purposes of exchanging certain unimproved lands, which had formerly been dedicated as a highway, for lands owned by the municipality that it sought to use for a new highway diversion. In effect, the municipality executed a deed to the unimproved highway lands which operated as a Crown grant. By a second deed, the municipality conveyed its own lands to the Crown. Thus, the Crown lost the unimproved highway lands and acquired title to new lands for highway purposes. This procedure constituted a valid exchange within the meaning of s. 535. The fact that the municipality sought to sell the lands it acquired in the exchange for revenue purposes was not grounds for finding it acted in bad faith. It provided full disclosure of its intentions and acted within the boundaries of its jurisdiction (Einhorn v. Maple Ridge (District), 1993 CanLII 1432 (BC CA), reversing 1991 CanLII 479 (BC SC); see also the annotation for this decision under s. 1 in the Schedule to the Community Charter).

Use of Road Allowances

The respondent municipality passed bylaws to open road allowances adjacent to the petitioners’ properties as “highways”, which would give the public access to viewpoints from a bluff overlooking the ocean. The plaintiffs, as owners of the properties adjoining the road allowances, applied to cancel the allowances and obtain a vesting order. The Court of Appeal found that the municipality was not in this case attempting to acquire land dedicated for highways to use as park land. Although these bylaws would create access for the public to a viewpoint on the bluff edge, this was a valid use of the municipality’s powers under s. 541 of the Municipal Act (now, s. 40 of the Community Charter) because the municipality proposed to build a road for vehicular use on the land, not simply install walkways and plant trees. A road is a “highway” whether it goes to a view, to the foot of a mountain, or to the seashore (Kehler v. Surrey (District); Stevenson v. Surrey (District), 1992 CanLII 574 (BC CA), reversing 1991 CanLII 1086 (BC SC), leave to appeal refused [1992] S.C.C.A. No. 462 (QL). For an earlier decision arising out of the same circumstances where the court found that a municipal bylaw was enacted for an improper purpose, see Stevenson v. Surrey (District), [1989] B.C.J. No. 1201 (QL) (S.C.), affirmed 1990 CanLII 2251 (BC CA).