507 Requirements For Excess Or Extended Services

CASE LAW

The local government and the respondent, Anmore Woods, entered into a latecomer agreement stipulating that the appellant would pay 100% of the costs incurred in constructing an access road through an undeveloped portion of the appellant’s land to the boundary of the respondent’s property.

As a condition of the appellant’s prior subdivision approval from the local government to develop its land in two phases, the appellant was required to dedicate and build the access road. In its application for judicial review, the appellant objected to the latecomer agreement and challenged both the jurisdiction of the local government to enter into the agreement and the exercise of discretion by the local government in assessing costs against the appellant. The trial court confirmed both the jurisdiction of the local government and the reasonableness of the local government’s decision to assess 100% of the costs of construction of the access road through the appellant’s property against the appellant should the appellant develop the remaining portion of its property within 15 years. The Court of Appeal agreed. The latecomer agreement did not involve a trespass by the respondent onto the land of the appellant because the dedication of the road allowance had already occurred. Section 939 of the Act was not limited to highways that were the subject of a bylaw under s. 938 (now s. 506). Subsection 939(2) (now s. 507) gave the local government power to require that Anmore Woods complete construction of the undeveloped access road through the appellant’s property to the boundary of the Anmore Woods’ lands and the power to enter into a latecomer agreement with Anmore Woods on the basis that completion of the access road was an “excess or extended service” within the meaning of s. 939(1), thereby triggering s. 939(5) (now s. 508) in favour of Anmore Woods (618061 B.C. Ltd. v. Anmore (Village), 2008 BCCA 205). See also the annotation for this decision under s. 75 of the Land Title Act at chapter 7 (Land Title Act Part 7 (ss. 58 to 120)—Descriptions and Plans).

The respondent constructed a sewer line to connect its development to the city’s sewer system. The sewer line passed a number of undeveloped properties and 38 existing houses. The city and the respondent agreed to exempt the existing houses from latecomer charges. The city passed the required bylaw and included a formula for calculating the latecomer charges. Development in the area slowed and the respondent recovered only a small fraction of the investment in the sewer line. The respondent applied to court for a declaration that the bylaw was invalid and discriminatory. The trial judge found that s. 939(5)(c) of the Act (now s. 508) did not permit a local government to impose a latecomer charge on a per unit basis or to impose the charge “at the time of subdivision or upon application for a building permit or upon connection, whichever was sooner”. The trial judge held that the charge must be imposed as a condition of connecting to the sewer and not at any other time. In considering its earlier decision in 618061 B.C. Ltd. v. Anmore (Village) and s. 4 of the Community Charter which states that powers conferred on municipalities under the Local Government Act must be interpreted broadly, the Court of Appeal held that the trial judge erred. It held that Anmore is clear authority that the allocation of costs for excess or extended services to benefitting properties is a matter of municipal discretion. The court found no basis upon which to conclude that the city’s exercise of discretion was unreasonable. A plain reading of s. 939(5)(c) did not require that the charge be collected or paid only on connection. Rather the charge could be imposed as a condition of connection at the time of subdivision or of application for a building permit. The court also found that the bylaw was not discriminatory. Under s. 939(5)(b), the city had to determine what part of the excess service benefitted each parcel. On this basis, the city was authorized to impose a charge that varied from parcel to parcel. In overturning the trial decision, the Court of Appeal found that the bylaw was valid and that the city acted within its statutory authority and exercised its discretion reasonably (Okanagan Land Development Corp. v. City of Vernon, 2012 BCCA 332).