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514 (1) If the requirements of this section are met, an approving officer may approve the subdivision of a parcel of land that would otherwise be prevented from subdivision by a provision of

  • (a) a bylaw under this Act, other than a bylaw under subsection (4), that establishes a minimum parcel size, or
  • (b) a regulation under the Local Services Act that establishes a minimum parcel size.
  • (2) An application for subdivision of a parcel under this section may be made only if all the following requirements are met:
  • (a) the person making the application has owned the parcel for at least 5 years before making the application;
  • (b) the application is made for the purpose of providing a separate residence for
    • (i) the owner,
    • (ii) a parent of the owner or of the owner’s spouse,
    • (iii) the owner's child or the spouse of the owner’s child, or
    • (iv) the owner’s grandchild;
  • (c) the proposed subdivision is not a subdivision that an approving officer is prevented from approving by subsection (3).
  • (3) Despite subsection (1), an approving officer must not approve a subdivision under this section in any of the following circumstances:
  • (a) if
    • (i) the parcel proposed to be subdivided is classified as farm land for assessment and taxation purposes, and
    • (ii) after creation of the parcel subdivided for the purpose of providing a residence as stated in subsection (2)(b), the remainder of the parcel proposed to be subdivided would be less than 2 hectares;
  • (b) if the parcel proposed to be subdivided
    • (i) is not within the agricultural land reserve, and
    • (ii) was created by subdivision under this section, including subdivision under section 996 of the Municipal Act, R.S.B.C. 1979, c. 290, as it read before it was repealed and replaced by section 13 of the Municipal Amendment Act (No. 2), 1989;
  • (c) if the parcel proposed to be subdivided
    • (i) is within the agricultural land reserve, and
    • (ii) was within the previous 5 years created by subdivision under this section, including subdivision under section 996 of the Municipal Act, R.S.B.C. 1979, c. 290, as it read before it was repealed and replaced by section 13 of the Municipal Amendment Act (No. 2), 1989.
  • (4) Subject to subsections (5) and (6), a local government may, by bylaw, establish the minimum size for a parcel that may be subdivided under this section, and different sizes may be specified for different areas specified in the bylaw.
  • (5) A bylaw under subsection (4) does not apply to agricultural land within the agricultural land reserve, with the exception of agricultural land to which section 23 (1) or (2) [restrictions on use of agricultural land] of the Agricultural Land Commission Act applies.
  • (6) Any parcel created by subdivision under this section must be at least 1 hectare unless a smaller area, in no case less than 2 500 m2, is approved by the medical health officer.
  • (7) For 5 years after subdivision under this section, unless the applicable use is changed by bylaw,
  • (a) the use of the parcel subdivided for the purpose of providing a residence as stated in subsection (2)(b) must be residential use only, and
  • (b) the use of the remainder of the original parcel must not be changed from the use of the original parcel.
  • (8) For a parcel of agricultural land that is not within the agricultural land reserve, or that is within the agricultural land reserve but is agricultural land to which section 23(1) or (2) of the Agricultural Land Commission Act applies, approval of subdivision under this section may be given only on the condition that
  • (a) the owner of the original parcel covenants with the local government, in respect of each of the parcels being created by the subdivision, that the parcel
    • (i) will be used as required by subsection (7) of this section, and
    • (ii) will not be subdivided under this section, and
  • (b) the covenants referred to in paragraph (a) be registered under section 219 of the Land Title Act at the same time that application is made to deposit the subdivision plan.
  • (9) If a subdivision referred to in subsection (8) is approved, the approving officer must state on the note of approval required by section 88 of the Land Title Act that the approval is subject to conditions established by subsection (8).

1989‑33‑13; 1999-14-40, effective April 1, 2000 (B.C. Reg. 70/2000); 2000-7-177, effective January 1, 2001 (B.C. Reg. 399/2000); 2002-36-87, effective November 1, 2002 (B.C. Reg. 171/2002); 2004-12-29; 2011-25-401, effective March 18, 2013 (B.C. Reg. 131/2012); RSBC 2015-1-514, effective January 1, 2016 (B.C. Reg. 257/2015); 2018-56-49, effective February 22, 2019 (B.C. Reg. 30/2019).

CASE LAW

Policy Considerations

A municipality’s official community plan explicitly opposed the use of s. 946 of the Municipal Act (now s. 514 of the Local Government Act) except in certain specified circumstances. The approving officer relied upon the municipality’s policy and refused to approve the appellant’s application for subdivision. The decision was reversed on appeal. The municipality’s policy was a direct effort to repeal s. 946 which was beyond the municipality’s competence. The approving officer was not entitled to rely on the policy nor to regard it as expressing the public interest. On the contrary, it is the philosophy behind and underlying s. 946 that expresses the governing public interest (Bubas v. Saanich (District), 1988 CanLII 3231 (BC SC)).

The appellants’ applications for subdivision under s. 946 of the Municipal Act (now s. 514 of the Local Government Act) were rejected on the grounds that they were against the public interest. In the reasons provided for the decision, the approving officer stated that the municipal council had expressed its desire that subdivisions for relatives under s. 946 be discouraged. On appeal, the Court of Appeal found that the approving officer erred in allowing the council’s desires to define the public interest. Within its legislative sphere, the Legislature has the ultimate power of decision on what is, or is not, in or against the public interest. The Legislature had said, in effect, that such subdivisions are not against the public interest and the approving officer was bound to respect that legislative determination. The approving officer might have insisted on further evidence to be satisfied that the applications were genuine, but the approving officer’s refusals were not founded on any lack of proof of genuineness. It followed that the appeals should be allowed. The applications were remitted to the approving officer for reconsideration (Lundy v. Metchosin (District), 1990 CanLII 762 (BC CA), reversing (1989), 48 M.P.L.R. 220 (B.C.S.C.), leave to appeal refused [1990] S.C.C.A. No. 209 (QL); see also the annotation for this decision under s. 86 of the Land Title Act in this Manual).

The petitioners applied under s. 946 (now s. 514) for permission to subdivide their lot, which was located in the agricultural land reserve, for the purpose of building a residence for their son. The approving officer gave conditional approval, requiring that both the municipal council and the Agricultural Land Commission (now, the Provincial Agricultural Land Commission) provide approval before his final approval could be obtained. The municipal council did not authorize the application as required by the Agricultural Land Commission Act. The petitioners’ application to the court for relief was denied. The object of s. 946 is to relieve landowners who wish to create a separate residence for a relative from complying with minimum parcel size requirements that would otherwise prevent subdivision. However, the section does not purport to relieve those landowners from meeting the requirements of other applicable legislation. Nor does it purport to relieve the subdivision from meeting those criteria, including policy criteria, that the approving officer or the municipal council might consider in their respective determinations of whether the subdivision plan ought to be approved. The council is not only entitled, but is obliged, to take into account the zoning and planning policy considerations within its ambit and, accordingly, the fact that the petitioners’ application did not meet the criteria of any of the subdivision policies of the official community plan for land in the agricultural land reserve was sufficient grounds to deny forwarding the application. The municipality was not attempting to prevent the application of s. 946 to lands in the municipality, or to override the legislature’s declaration of what is in the public interest; rather, it considered the merits of the petitioners’ application and came to a decision that was within its jurisdiction (Marcinkovic v. Saanich (District), 1994 CanLII 642 (BC SC)).