76 Relief From Requirements Established By Section 75

FORMS OF ENDORSEMENT

Relief under Section 76(3)

Electronic Plans

The following notation is entered on an electronic plan if relief from compliance with s. 75(1)(c) or (d) of the Land Title Act is obtained:

The Public Access to Water—Relief from Compliance approval type is a selection on the Application to Deposit Plan and must be signed under ss. 75(1)(c) and (d) and 76(5) of the Land Title Act.

PRACTICE

Highway Access Alternatives

Sections 8 to 12 and 15 of the Land Title Act Regulation define the circumstances in which the approving officer has a discretion pursuant to s. 76(1) of the Act to grant relief from the requirements of s. 75(1)(a). See the practice discussion on highway access alternatives below.

Limited Access Notation

For all subdivision plans using the alternative access provisions, the first and all subsequent indefeasible titles should include the following statement in the legal description segment: “See plan as to limited access”.

Access by Air or Water

Electronic Plans

For an electronic plan, the British Columbia land surveyor adds the applicable notation on the plan image:

See s. 8(b) of the Land Title Act Regulation regarding relief for land having access only by air or water.

The Access by Air or Access by Water approval type is a selection on the Application to Deposit Plan and must be signed by the approving officer under s. 88 of the Land Title Act.

The registrar should note the statement “See plan as to limited access” in the legal description segment of the title.

The registrar may remove the notation “access by water only” from the subdivision plan after construction of a road if the Ministry of Transportation and Infrastructure:

1. surveys and acquires the connecting road;
2. submits a Form 12, Certificate as to Highway in Statutory Right of Way Plan, to prove that it has taken the road; and
3. submits a statutory declaration made by the approving officer, in which the approving officer sets out the facts and requests that the notation “access by water only” be removed from the subdivision plan.

The registrar then adds the following notation to the subdivision plan:

Electronic Application Form 17 Fee Simple

On the Form 17 Fee Simple, select Nature of Interest, Certificate as to Highway, and attach an image of the original Form 12.

Access to General Highway System by Tram Line, Cable Car, or Gondola Lift

See s. 8(c) of the Land Title Act Regulation regarding relief for land having access only by a tram line, cable car, or gondola lift. In a recreational development such as a mountain ski resort, the only connection between the general highway system and a proposed subdivision may be by tram line, cable car, or gondola lift. However, the lower tram line terminal must have access to a public road, the tram line must have an easement for its right of way across all property, and the upper terminal must give access to all proposed subdivision lots by common lot private road or other access.

Access to Highway by Easement

See s. 9 of the Land Title Act Regulation regarding access by way of easement. Where a subdivider proposes to grant an easement of access to a highway, the subdivider must submit a conveyance or other instrument containing the easement, as well as a plan showing the easement. The subdivider should show the easement area by hatch marks or another method approved by the registrar, and not by coloured outline.

Electronic Plans

If an electronic plan is prepared so that an alternate access under the Land Title Act Regulation is required for one or more of the lots, the British Columbia land surveyor adds the following notation on the plan image:

The Access by Easement approval type is a selection on the Application to Deposit Plan and must be signed by the approving officer under s. 88 of the Land Title Act.

Electronic Plans

If an electronic plan is prepared so that an alternate access under the Land Title Act Regulation is required for one or more of the lots, the British Columbia land surveyor adds the following notation on the plan image:

The Access by Common Lot approval type is a selection on the Application to Deposit Plan and must be signed by the approving officer under s. 88 of the Land Title Act.

The registrar issues one indefeasible title for both the parcel and an undivided share in the common lot. The regulation provides that from then on the parcel and undivided share must for all purposes constitute a single parcel. The description on title must be in the following form:

All access by common lot subdivisions must still comply with the Act in other ways, including access to navigable water and access to lands beyond.

Extension of Charge

Section 11(3) of the Land Title Act Regulation provides that if any part of the land subdivided is subject to a charge which entitles or may entitle the holder to possession, then the charge must be extended to include the undivided share created under s. 11. Any necessary modification or extension agreement must accompany the plan.

Covenant Registrable under Section 219 of the Act

As a condition of approval under s. 11 of the Land Title Act Regulation, an approving officer may require a covenant to be registered under s. 219 of the Act. In this case, the covenant must accompany the plan. The legal description in the covenant must make reference to the subdivision plan. See examples of legal description styles given under s. 98 of the Act.

Access via Shared Interest in Common Lot

Where a parcel in a subdivision has access by common lot in accordance with s. 11 of the Land Title Act Regulation, s. 12 of the regulation provides for the parcel’s further subdivision.

Access by Forest Service Road

See s. 15 of the Land Title Act Regulation, which provides that access by forest service road is permissible.

Electronic Plans

For an electronic plan the British Columbia land surveyor adds the following notation on the plan:

Access to the subdivision is to be by forest service road pursuant to s. 15(2) of B.C. Reg. 334/79. The Crown in right of the Province shall not be obligated to improve, maintain, or repair the forest service road shown on this plan.

For an electronic plan, the signature must be included in the electronic Application to Deposit Plan at Land Title Office:

Access May Accommodate Topography

The surveyor may depart from the normal 200 metre (400 metre) requirement to accommodate, for example, topography and beach quality.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Access Requirements

See s. 75 of the Act regarding the access requirements applicable to subdivisions.

“Designated Highways Official”

See s. 1 of the Act, which defines “designated highways official” as follows:

• “designated highways official” means an employee of the Ministry of Transportation designated, by name or by title, by the minister responsible for that ministry as a designated highways official for the purposes of the applicable provision of this Act.

CASE LAW

Discretion to Grant Relief from Section 75(1)(a)

See the case annotation for Elsom v. Delta (Approving Officer), 1993 CanLII 921 (BC SC), affirmed 1995 CanLII 742 (BC CA), under s. 75 of this Act.