75 Requirements For Subdivisions

PRACTICE

Registrar Checks Access Provisions in Section 75(1)(c)

In confirming that the surveyor has complied with the access provisions in s. 75(1)(c), the registrar examines the plan.

Land Adjoining Both Sides of a Railway Line

Where a railway line divides subdivided land, isolating part of the lands but not affecting access to the remaining lands, the approving officer sometimes authorizes the subdivision plan. The registrar may accept the plan for deposit even though it is not accompanied by an order and certified plan of access over the railway to remaining lands from the Railway Transport Committee of the Canadian Transport Commission.

Alternative Access Conflicts with Utility Authority’s Charge

A means of access created by a subdivision plan conflicts with a charge by way of statutory right of way held by BC Hydro if the road in the access lot runs both within and parallel to Hydro’s right of way. In this case, the subdivider must obtain approval or priority from BC Hydro.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Relief from Section 75(1)(a)

The approving officer may grant relief from the requirements of s. 75(1)(a) of the Act either in whole or in part under s. 76(1) of the Act and the “Highway Access Alternatives” contained in ss. 8 to 12 and 15 of the Land Title Act Regulation, B.C. Reg. 334/79.

Relief from Section 75(1)(c) or (d)

See s. 76(3) of the Act regarding the power of the Minister of Transportation and Infrastructure to grant relief from strict compliance with s. 75(1)(c) or (d).

Access by Public Road

Section 80 of the Land Act provides that, where the minister (currently the Minister of Forests) considers it advisable, the minister may authorize the Surveyor General to establish a public road through Crown land for the purpose of giving access to privately owned land being subdivided. The Surveyor General approves establishment of the road by signing the subdivision plan.

Electronic Plans

If a public road allowance is being established over Crown land as access to a subdivision under the Land Act, s. 80, the following is noted on the electronic plan:

The signature on the electronic plan must be in the following form:

Development of Land Adjacent to Controlled Access Highway

A zoning bylaw that permits the development of land adjacent to a controlled access highway must either be approved by the minister or be consistent with the terms of an agreement between the minister and the local or regional government. See s. 52 of the Transportation Act. See also s. 80 of the Land Title Act regarding requirements for approval.

Authority to Require Land for Highway under Local Government Act

See s. 513 of the Local Government Act, R.S.B.C. 2015, c. 1, which provides that an approving officer may require the owner of land being subdivided to provide land for the creation or widening of a highway.

Authority to Require Land for Alternative Forms of Transportation under Local Government Act

See s. 513.1 of the Local Government Act, which provides that an approving officer may require the owner of land being subdivided to provide land for the purposes of constructing and installing sustainable design features and specified transportation infrastructure.

Authority to Require Land for Highway in Respect of Building Permits under Local Government Act

See s. 513.2 of the Local Government Act, which provides that an approving officer may require the owner of land being subdivided to provide land for the creation or widening of a highway as a condition of issuing a building permit.

Authority to Require Land for Alternative Forms of Transportation in Respect of Building Permits under Local Government Act

See s. 513.3 of the Local Government Act, which provides that an approving officer may require the owner of land being subdivided to provide land for the purposes of constructing and installing sustainable design features and specified transportation infrastructure as a condition of issuing a building permit.

Role of Approving Officer

See R.E. Young, “The Approving Officer: The Public Interest and Subdivision Appeals” (1983) 43 Advocate 193.

Secondary Sources

See Di Castri, Registration of Title to Land, vol. 1, §6:7 and §6:29.

CASE LAW

Application of Section 75(1)

An approving officer can properly refuse a subdivision plan if it does not comply with provisions of the Act dealing with access to and sufficiency of highway allowances (Trammell Crow Developments v. Burnaby (District) (1988), 39 M.P.L.R. 229 (B.C.S.C.)).

To interpret the meaning of s. 75(1) as requiring all subdivisions to provide necessary and reasonable access, whether approval of the approving officer is required or not, results in inconsistencies between s. 75(1) and those sections of the Act dealing with the requirements for an approving officer to consider access. The intention of the legislature must have been otherwise. The mandatory provisions of s. 75(1) refer to the approval of an approving officer. Accordingly, where the approval of the approving officer is not required under ss. 91(2) or 99(2), it is not necessary for the registrar to consider the matters referred to in s. 75(1) (Prince Rupert (City) v. British Columbia (Registrar of Titles), 1990 CanLII 239 (BC SC) (Chambers), affirmed 1993 CanLII 2467 (BC CA)). In affirming the decision, Chief Justice McEachern commented that he agreed with the view of the Supreme Court judge that a registrar was not in any way precluded from considering the question of access, and it would be desirable for registrars in such circumstances to consider the question of access.

An approving officer rejected the appellants’ plan for the subdivision of rural land on the ground that the appellants refused to upgrade an existing gravel road that ran through the property. The existing road was a public highway, controlled and maintained by government. The road was dedicated to the

Crown before the appellants became the owners of the property. Necessary access to the appellants’ land and to each of the new lots was provided by the existing highway. Section 75(1)(a) had no application in this case because it applies only to a highway to be constructed by a subdivider within the land to be subdivided and then to be dedicated to the Crown in due course. Similarly, s. 86(1)(c)(ii) did not apply because provisions of the Act relating to access and highway allowances are found in s. 75 and refer only to a new highway within the subdivided land. Finally, the words “highways shown in the plan” in s. 86(1)(c)(iii) can only have reference to new highways and not to existing highways vested in, maintained, and controlled by the Crown. In granting the appeal, the court directed the approving officer to approve the subdivision plan (Edwards v. British Columbia (Provincial Approving Officer), 1999 CanLII 6568 (BC SC)); see also the annotation for this decision under s. 86 of this Act.

No Private Law Duty of Care in Considering Subdivision Application

In Tekamar Mortgage Fund Ltd. v. British Columbia, 2023 BCCA 20, the plaintiffs claimed against an approving officer for negligence, misfeasance in public office, and injurious affection by failing to deny an application for subdivision that did not meet the requirements of the LTA. They alleged the Province was vicariously liable for the officer’s actions and omissions.

The plaintiffs owned six lots on the west bank of the Columbia River, near Golden, B.C. (the “northern lots”). The plaintiffs’ lands were landlocked: they did not have legal highway access. In 2011, the plaintiffs’ southern neighbours (the “developers”) applied to the province to subdivide their two lots into three lots (the “southern lots”). The plaintiffs alleged that the Province required the developers to enter into an access easement agreement to protect access to the northern lots by granting an easement from the public road to the northern lots, pursuant to s. 75 of the LTA, as a condition of approval. The plaintiffs further alleged that the developers failed to meet that condition and, notwithstanding that failure, the approving officer approved the application to subdivide the southern lots without any highway access to the northern lots.

The chambers judge found (at para. 10) that Goy v. District of Sechelt, 2020 BCSC 1242, which was affirmed in Held v. Sechelt (District), 2021 BCCA 350, leave to appeal refused (sub nom. Goy v. Sechelt (District)) 2022 CanLII 26230 (SCC), was an analogous precedent that “concluded that an approving officer under the LTA does not owe a private law duty of care in the subdivision approval process”. Nevertheless, the judge went on to perform a full Anns/Cooper analysis in the event that she was incorrect. That did not change the result. Having found that the officer did not owe a duty of care, the judge struck the claims in negligence, denied an application to further amend, and struck out several of the misfeasance allegations. The plaintiffs appealed.

Held, appeal dismissed. The Held case decided that an approving officer does not owe a private law duty of care when deciding whether to approve or reject an application for subdivision. That is a broad statement of principle regarding the statutory scheme in Part 7 of the LTA, applicable to the circumstances here and the approving officer’s approval of the subdivision of the southern lots.

That was a complete answer to the appeal, but the court considered some of the plaintiffs’ additional arguments. One was that the purpose of s. 75(1)(a) of the LTA is to make provision for access to land beyond and around subdivided lands so as to provide for the present and future needs of residents in the area. That argument was without merit and was foreclosed by the decision in Held. The plaintiffs also alleged that the officer imposed the condition in 2011 (requiring the developers to enter into an agreement to provide access), and that when she approved the subdivision in 2015, she wrongfully ignored or forgot about the condition. The statutory scheme makes no provision for the kind of preliminary or conditional approval alleged. There is no provision in the LTA allowing an approving officer to grant preliminary or conditional approval of a subdivision prior to actually deciding whether to approve or reject it.

Scope of Authority to Require Road Dedication

Notes on Case Law: In considering the scope of the approving officer’s authority to require the dedication of land for roads, see s. 513 of the Local Government Act (formerly s. 945) as well as the interpretation of s. 75. An approving officer may be able to rely upon either s. 75 of the Land Title Act or s. 513 of the Local Government Act to require the dedication of a road. See, for example, Beaton v. Qualicum Beach (Township), 1990 CanLII 1376 (BC CA), cited in an annotation under s. 86 of this Act.

The purpose of s. 75(1)(a) is to allow a municipality to acquire a road allowance in accordance with its terms, that is, when “necessary and reasonable”. “Reasonable” means reasonable in all the circumstances, and a court must give effect to the word. An approving officer cannot, therefore, require that a road allowance be provided unless some rational connection with the subdivision plan is involved. It was not the intention of the legislature to confer new powers of acquisition by compulsory dedication on a municipality (Vantreight v. Saanich, 1950 CanLII 501 (BC SC)).

The court upheld an approving officer’s requirement that a subdivider provide access through its subdivision to vacant, un-subdivided land on the southern boundary in consideration of possible future residents of that area (In Re Kamloops Realty Ltd., [1976] B.C.D. Civ. (S.C.)).

The petitioners applied to subdivide a 20-acre parcel into two 10-acre parcels, both fronting on a road. They intended to farm the property. As a condition of approval, the approving officer required the petitioners to dedicate a road allowance of 66 feet across the rear of the property to the municipality. The court ordered the approving officer to approve the subdivision plan. It was not necessary or reasonable for the municipality to require a road allowance. The approving officer has a wide authority under the Act, but that authority does not allow the approving officer to act capriciously (Dyck v. Stinson, 1978 CanLII 342 (BC SC)).

An approving officer required a dedication of a large strip of land through the subdivider’s property as a pre-condition for approval of a subdivision affecting a small portion of the subdivider’s property. There was no obvious relationship between the new lots to be created by the subdivision and the approving officer’s road requirements. The court applied the reasoning in Vantreight v. Saanich and held that it is improper and unreasonable for an approving officer to require the dedication of access to all neighbouring properties as a condition of subdivision, no matter how small or how far distant from those neighbouring properties the newly created parcel may be. The approving officer’s condition was neither necessary nor reasonable within the meaning of s. 75 and was therefore without statutory authority. Accordingly, the condition was invalid (Arbutus Bay Estates Ltd. v. British Columbia (Minister of Transportation and Highways) (1989), 43 M.P.L.R. 288 (B.C.S.C.)).

The appellant’s application for subdivision approval was rejected because the appellant refused to provide what the approving officer considered to be reasonable access to lands lying to the north and west of the subdivision which the approving officer considered to be developable, but which the appellant contended were not developable—at least, not economically. The court found that there were developable areas beyond the land in the appellant’s proposed subdivision and that necessary and reasonable access to those lands was required through the proposed subdivision in accordance with s. 75(1)(a)(ii) of the Act. The access road proposed by the approving officer could be reasonably constructed, though it might be expensive. An alternative access route proposed by the appellant was not clearly preferable. The approving officer had set out the factual basis for his decision and it was neither specious nor totally inadequate. The appellant’s subdivision would cut off all access to the developable lands beyond the proposed subdivision if access was not provided as required by the approving officer. The economic factors submitted by the appellant were not sufficient to indicate that the decision of the approving officer was wrong or improper, or an abuse of his discretion (Aquarius Estates Ltd. v. R., [1984] B.C.J. No. 649 (QL) (S.C.), affirmed [1986] B.C.J. No. 828 (QL) (C.A.)).

An approving officer required as one of the conditions of subdivision approval that the applicant dedicate to the town a three-metre-wide right of way for a waterfront walkway along the southern boundary of the applicant’s property. The proposed subdivision was to create two new lots in the northern part of the applicant’s property, leaving the southern part of the property unchanged. On appeal of the approving officer’s rejection of the subdivision plan for failure to dedicate the right of way, the applicant argued that the approving officer could not use her powers with respect to the dedication of “necessary and reasonable” access under s. 75 of the Act to force a compulsory dedication of land that was not substantially connected with the subdivision. The court found that the approving officer based her requirement for the walkway on the town’s plans to create a waterfront walkway network for public use. The waterfront walkway was a highway as defined by s. 1 of the Act and the town’s plans for a walkway network, contained in an official community plan and other municipal documents, formed a highway network as described by s. 75(3)(f) of the Act. The town’s plans provided the approving officer with a proper and adequate factual basis upon which to require the dedication as a condition of subdivision. There was no substance to the submission that the dedication of the right of way for the walkway was unreasonable because it was isolated from the two lots which the applicant wished to create out of the property. The applicant’s appeal was dismissed (Burns v. Dale, 1997 CanLII 816 (BC SC); see also the annotation for this decision under s. 86 of the Act).

The appellant owned a large parcel of land that it intended to subdivide in two phases. The local government’s subdivision approval was subject to construction and dedication by the appellant of a “main spine road” through the appellant’s land providing access to the lots within the development and access to the lands beyond. The appellant developed the first phase of the subdivision, dedicated the road allowance as required, and constructed that portion of the access road required to service the lots in the first phase of its development. The respondent, Anmore Woods, owned an adjacent parcel of land that it also wished to develop. The Anmore lands were landlocked and could only be accessed using the road allowance already dedicated by the appellants. The local government entered into a latecomer agreement with the respondent authorizing the respondent to finish construction of the access road through the undeveloped portion of the appellant’s land. The agreement stipulated that the appellant would be responsible for 100% of the costs of the access road through its undeveloped land should it develop the remainder of its property within the next 15 years. The appellant, in this action, appealed against a decision of the trial court upholding the latecomer agreement. In confirming the decision of the trial judge, the Court of Appeal held that, under s. 75 of the Act, the appellant was required to provide necessary and reasonable access to all new parcels and to land lying beyond the subdivided land. The appellant would have been required to shoulder the entire cost of this roadwork had it proceeded with the second phase of its development before the respondent, and it would not have been able to recover against the respondent under the latecomer payment provisions in the Local Government Act. Furthermore, dedication of the road allowance had already occurred. Therefore, provided the respondent stayed within the dedicated area during its construction of the access road, there could be no issue as to interference with the lands of the appellant by the respondent. Appeal dismissed (618061 B.C. Ltd. v. Anmore (Village), 2008 BCCA 205). See also the annotation for this decision under s. 507 of the Local Government Act in chapter 52 (Local Government Legislation).

The petitioner applied to subdivide his property into two parcels fronting on a main thoroughfare. Preliminary approval was given subject to three conditions unrelated to the road. As plans developed, the approving officer noted that the proposed location of the sewer and water services was under a potential future highway that might be built, at the back of the petitioner’s property, as a couplet to the main thoroughfare. This prompted the local government to request, as a further condition of subdivision, dedication, without compensation, of a 20.17 metre road allowance for the couplet along the back of both properties. In applying s. 75(1)(a)(ii), the court found that road allowance was required for the purpose of providing access through the petitioner’s land to other lands beyond it—lands already set aside for the development of the couplet. Without the petitioner’s land, the couplet would become a road to nowhere. As the proposed couplet ran across the back portion of both of lots being created by the subdivision, the court found a necessary and rational connection between the proposed subdivision and the required dedication. On the question of certainty, the court held that, although construction of the couplet was not yet a certainty, it was more than speculative. Construction was considered a likely future development and the future development option preferred by the local government. The court held that s. 75(1)(a) of the Act provided the approving officer with sufficient authority to require the dedication. However, on the issue of compensation, the court took notice of s. 945 of the Local Government Act (now, s. 513) and referred the matter back to the approving officer for reconsideration as to the depth of the required dedication (Kaim Developments Ltd. v. Mott, 2009 BCSC 250, appeal dismissed 2010 BCCA 240). See also the annotation for this decision under s. 513 of the Local Government Act in chapter 52 (Local Government Legislation).

Discretion to Grant Relief

In an appeal under s. 89, the appellants argued that the approving officer had exercised bad faith in refusing to grant relief under s. 76(1) from the provisions of s. 75(1)(a). An expropriation of land for the construction of a highway had cut off the appellants’ land from its historical access points, and a subsequent application for subdivision of the land was denied for lack of adequate access in the subdivision proposals. Although the effects of the expropriation were beyond the appellants’ control, it was within the appellants’ control to comply with a mandatory bylaw provision concerning access in connection with subdivision proposals. Non-compliance with the bylaw was a sufficient basis for denying relief under s. 75(3) as well as for rejecting the subdivision plan under s. 86(1)(c). It would be a rare circumstance indeed where a decision to refuse to grant relief from the provisions of a statute, in this case s. 75(1) of the Act, could be said to be evidence of bad faith. The bylaw in question was not only sufficient to negate any allegation of bad faith in connection with the approving officer’s decision, but it also provided a firm factual foundation upon which he could rest his decision to reject the subdivision applications (Elsom v. Delta (Approving Officer), 1993 CanLII 921 (BC SC), affirmed 1995 CanLII 742 (BC CA); see also the annotations for this decision under ss. 1, 86, 89, 99, and 219 of this Act).

An approving officer issued a “preliminary layout review” for the subdivision of a property into three lots (the remainder and two new lots). As proposed, access to the two new lots was by a shared driveway, with access to one of the lots by way of an easement over the other. The petitioner, owner of an adjoining property, objected to the subdivision and brought this application for judicial review of the approving officer’s decision. The petitioner claimed that, under s. 75 of the Act and ss. 8 and 9 of the Land Title Act Regulation, both of the new lots must have direct access to a public highway. The court found that s. 9 of the Regulation permits an approving officer to waive the requirements of s. 75 of the Act where one of the new parcels has access by way of an easement. With respect to s. 8 of the Regulation, the court held that the phrase “affects land” refers to the lot created by the proposed subdivision and not to the original parcel. Therefore, because the approving officer concluded that the proposed subdivision was consistent with good land use planning and not contrary to the public interest, the approving officer acted correctly in exercising his discretion to waive the requirements of s. 75(1)(a) with respect to the proposed subdivision as affecting land (the two new lots) outside an established system of highways (Webber v. Anmore (Village), 2011 BCSC 1631, affirmed 2012 BCCA 390).

Rights of Passage

Section 75(1)(a) and (b) provides in part, if not in whole, the criteria on which the registrar must determine the rights of passage of adjoining owners, whether of a public or private nature, over roads lying within the subdivision, between their properties and the highway system (Re Plans Cancellation Act; Simpson-Sears Ltd. v. Registrar of New Westminster Land Registration District, 1955 CanLII 613 (BC CA)).

Access to Water

“The object of the section is not so much to require that any particular class of street should be shown on the plan, as to require land abutting on navigable waters to be subdivided so as to provide straight and continuous access to the waters at intervals of not more than 600 feet” (Re Lonsdale Estate (1907), 12 B.C.R. 366 (S.C.) at para. 2).