86 Matters To Be Considered By Approving Officer On Application For Approval

REGULATIONS

Additional Grounds for Refusal

The Application for Subdivision Approval Regulation, B.C. Reg. 8/89, enacted under s. 86(2) of the Act, provides that:

• Subdivision approval for land adjacent to controlled access highway
• 1 Where a plan of subdivision affects land adjacent to a controlled access highway as defined in the Transportation Act, the approving officer, in addition to the ground for refusal stated in section 85(3) of the Land Title Act, may refuse to approve the subdivision plan if he considers that it does not provide access to the land in the subdivision, its remainder and the lands contiguous to the subdivided property, or lands dependent upon the subdivided property, or land dependent upon the subdivided property for its sole access by means of an adequate road allowance for a frontage road, service road or local street.
• Subdivision approval for land subject to an implementation agreement
• 2 Where a plan of subdivision affects land that is the subject of an implementation agreement under section 868(2) of the Local Government Act, the approving officer may, in addition to the grounds for refusal stated in section 86(1)(c) of the Land Title Act, refuse to approve the subdivision plan if the approving officer considers it does not comply with the implementation agreement.

CASE LAW

Cases that deal with the appeal of an approving officer’s decision about subdivision frequently involve a variety of issues under ss. 85, 86, 87, and 89 of the Act. Case annotations dealing with these sections are provided here. Additional annotations that are limited to procedural or jurisdictional matters under s. 89 of the Act are provided under that section.

The following annotations focus primarily on the grounds for the rejection of a subdivision plan. The annotations are categorized, in part, on the basis of the grounds set out in s. 86(1)(c). While a review of the annotations under a particular heading will not give a complete overview of the relevant law, it should give potential applicants a general overview about how the courts will approach an appeal of an approving officer’s decisions in similar circumstances.

Overview

Notes on Case Law: The impact of the subdivision provisions of the Land Title Act on the common law rights of property owners was considered by the Supreme Court of Canada in Vancouver (City) v. Simpson, 1974 CanLII 1157 (BC CA), in which the court addressed the argument that an approving officer’s refusal of an applicant’s right to subdivide was in derogation of common law rights. The court rejected the argument as follows:

The point is, however, that it was the [Land Title Act] which curtailed common law rights. The enactment of that statute took away a free right to subdivide. The landowner has no right to subdivide save subject to the approval of the approving officer, who is required by the Act to determine if the contemplated development would be against the public interest. The very exercise of the power given to the approving officer by the Act must necessarily curtail the landowner’s right to subdivide. To contend that he cannot be said to exercise that power reasonably if such curtailment of rights results is to contend that the approving officer cannot perform the duty imposed upon him by the Act.

The Supreme Court of Canada also established the grounds for appeal of approving officers’ decisions in Vancouver (City) v. Simpson when the majority adopted the following words of Smith J. of the Supreme Court:

Where, as here, there is direct statutory foundation for the ground given for the decision to approve or disapprove, and where it is not shown that that decision, despite its impact on an individual, was made in bad faith, or with the intention of discriminating against that individual, or on a specious or totally inadequate factual basis, there should, in my opinion, be no interference by the court with municipal officials honestly endeavouring to comply with the duties imposed on them by the Legislature in planning the coherent and logical development of their areas.

Appeals under s. 89 of the Act now tend to focus on one or more of the three grounds for appeal set out in Vancouver (City) v. Simpson—bad faith, discrimination, or a specious or totally inadequate factual basis. However, errors in law may be considered a fourth distinct ground for appeal. Examples of decisions turning on errors in law include Noort Holdings Ltd. v. Delta (Corp.) Approving Officer, 1995 CanLII 2799 (BC SC), in which the court found that an approving officer had erred in his application of the burden of proof in determining if a subdivision was in the public interest, and Darby v. Vancouver (City), 1990 CanLII 353 (BC CA), in which the court found that the approving officer erred in his interpretation of a municipal bylaw. Noort Holdings Ltd. v. Delta (Corp.) Approving Officer is annotated below under “General Application: Burden of Proof for Approval”, and Darby v. Vancouver (City) is annotated under “Municipal Considerations: Approving Officer’s Discretion”. Various other cases involving errors in law are also included throughout the following pages.

General Application

Application of Vancouver (City) v. Simpson

An appeal court should not analyze the approving officer’s decision as if it were a court judgment, but should review it with the object of finding the true intent and substance (Gray v. Vancouver (City), 1977 CanLII 244 (BC SC)).

Where the evidence establishes that, in refusing approval, the approving officer does not act in good faith, acts in a discriminatory way, or founds their decision on a specious or totally inadequate factual basis, the approving officer’s decision may be upset (Grosek v. Vancouver (City), 1980 CanLII 649 (BC SC)).

A three-pronged test is to be used in appeals from the decisions of municipal approving officers. The court should only interfere if the decision of the approving officer was made: (1) in bad faith; (2) with the intention to discriminate against the individual; or (3) on a specious or totally inadequate factual basis. If either bad faith or discrimination is proven, the appeal must be allowed on the basis that all the reasons offered by the approving officer would be tainted. In the absence of bad faith or discrimination, if a court upholds any one of the several independent grounds on which the approving officer made their decision, then the appeal should be dismissed (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, 75, 89, 99, and 219 of the Act).

For a discussion of the application of the principles established in Vancouver (City) v. Simpson in the exercise of an approving officer’s discretion with respect to an application for the approval of a bare land strata plan, see the annotation for Norgard v. Anmore (Village), 2007 BCSC 1571 and Norgard v. Carley, 2008 BCSC 1236 under s. 243 of the Strata Property Act in chapter 58 (Strata Property Act, S.B.C. 1998, c. 43).

Burden of Proof for Approval

An approving officer refused an application for subdivision because the applicant had not shown that the subdivision was in the public interest. Instead, the burden was on the approving officer under s. 85(3) to refuse the application if, in his discretion, there was a reasonable factual foundation for concluding that the subdivision was against the public interest. There was no such foundation in this case (Noort Holdings Ltd. v. Delta (Corp.) Approving Officer, 1995 CanLII 2799 (BC SC)).

Preliminary Approval

Section 85 of the Act does not provide for conditional approval although an informal practice exists where an approving officer may consider applications for the subdivision and give preliminary approval provided there is compliance with specified conditions. Here there was no preliminary approval involved as the applicant sought approval under s. 85. Thus the conditional approval was actually a rejection of the subdivision application pursuant to s. 85(2) of the Act (Elsom v. Delta (Approving Officer), 1995 CanLII 742 (BC CA), affirming 1993 CanLII 921 (BC SC); see also the annotations for this decision under ss. 1, 75, 89, 99, and 219 of this Act).

The petitioner, a society representing local environmental concerns, applied for judicial review of an approving officer’s decision to grant final approval to the fifth phase of the respondent’s subdivision plan. The subdivision was subject to the terms of a preliminary layout approval (“PLA”) issued in 1979, and the petitioner alleged that the respondent subdivision applicant had failed to comply with all of the terms of the PLA. The court held that there is no statutory obligation on an approving officer to ensure that the conditions of a PLA are met when considering a subdivision application. The process of preliminary layout approval is without statutory foundation and hence not amenable to judicial review. What the officer must do is comply with the statutory obligations set out in s. 85(3) of the Act; that is, determine whether or not the deposit of the plan is against the public interest. In this case, the PLA was some evidence as to what constituted issues of public interest, and the approving officer considered its material provisions in making his determination about the approval of the subdivision plan. The approving officer also received and considered extensive correspondence, communications, and representations from numerous parties. There was no evidence that his decision to approve the application was made on a specious or totally inadequate factual basis (C.H.I.-Association for the Conservancy of Hornby Island v. Hornby Island (Regional Approving Officer), 1997 CanLII 1920 (BC SC); see also the annotation of this decision under s. 89 of the Act).

Imposition of Conditions

An approving officer has the authority to require subdivision applicants to enter into restrictive covenants to discourage illegal suites. See Neufeld v. Surrey (City), annotated below under “General Application: Guidelines on Public Interest”.

An approving officer required as one of the conditions of subdivision approval that the applicant place a restrictive covenant on title to the subdivided lots. The restrictive covenant was to require that a report of a geotechnical engineer be provided to the town before any construction on the lots indicating that such construction would be safe in view of the soil conditions. The soil on the lots included several metres of fill. The applicant argued that the approving officer had no statutory basis for requiring the restrictive covenant. The approving officer cited s. 86(1)(c)(ix) of the Act as authority and deposed that there had been problems in the past where people purchased building lots unaware that they contained fill materials. The court found that the approving officer possessed the requisite authority under the Land Title Act to require the restrictive covenant and also had a proper factual basis for her decision. The applicant’s appeal was dismissed (Burns v. Dale, 1997 CanLII 816 (BC SC); see also the annotation for this decision under s. 75 of the Act).

The plaintiff owned property in a small, “off the grid” community called Brooklyn located on the south shore of Lower Arrow Lake. His property consisted of a number of legal lots acquired in 2001 and 2003, and he had built a residence on one. In April 2012, there was an incident sometimes described as the “Debris Flood”. It was caused by the failure of a culvert located on land owned by the Province. The landslide caused damage to property owned by the plaintiff and to amenities that he enjoyed in connection with his property, in particular the domestic water and hydroelectric power supply. The ongoing impacts of the landslide on the plaintiff’s property would, according to the plaintiff, continue for decades. The Debris Flood also washed out a footbridge located near the shore of the lake and completely buried another property owner’s weir. The plaintiff brought an action saying the Province was liable under the Water Act, R.S.B.C. 1996, c. 483, or at common law in nuisance or negligence. The court dismissed his action. Section 86(1)(d) empowers an approving officer to require as a condition of subdivision that the applicant enter into a covenant if the approving officer “considers that the land is, or could reasonably be expected to be, subject to flooding, erosion, land slip or avalanche”. Here, that is what happened. As a condition of getting approval to subdivide his property, and pursuant to s. 219 of the Land Title Act, the plaintiff entered restrictive covenants with respect to his property along the waterfront and beside the creek, which covenants were identically worded and contained a liability exclusion clause. Other portions of the restrictive covenants emphasized the plaintiff’s knowledge of the flood risk. One clause stipulated that the plaintiff was aware of and acknowledged there was a potential flood danger to his land. The words of the covenants were clear and unambiguous and protected the province “from all manner of suits, cause of actions”—whether brought in negligence or nuisance—arising from damage to property caused by flooding or erosion. The liability exclusion clause, or waiver, was clear, direct, and unambiguous. It excluded all claims the plaintiff might have against the province related to damages caused by flooding or erosion. That included claims under the Water Act, which were potential claims known (although only theoretical) at the time the plaintiff entered the covenant (Nelson v. British Columbia (Environment), 2020 BCSC 479).

Legislative Expressions of Public Interest

Where a legislative expression of what is not “against the public interest” exists, an approving officer must respect the legislature’s determination. Where the approving officer has failed to do so, a court on appeal must also consider the legislative intent and should not limit itself to the tests established in Vancouver (City) v. Simpson (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)).

Guidelines on Public Interest

There is nothing wrong with approving officers setting goals and guidelines among themselves as to what is in the interest of the public so long as they act within their powers. In this case, the approving officer felt that it was in the interest of the public to implement the policy created by council requiring subdivision applicants to enter into certain restrictive covenants to discourage illegal suites. Consequently, provided that the municipality had the power to make the policy, the approving officer had the authority to require that subdivision applicants conform with it (Neufeld v. Surrey (City), 1995 CanLII 3086 (BC SC); see also the annotations for this decision under ss. 219 of this Act in chapter 15 (Land Title Act Part 14 (ss. 197 to 237)—Charges) and s. 35 of the Property Law Act in chapter 56 (Property Law Act, R.S.B.C. 1996, c. 377)).

Failure to Adequately Consider Public Interest

The petitioners applied for judicial review of an approving officer’s decision to grant preliminary layout approval to a subdivision plan, based on a claim that the officer did not give proper consideration to the public interest. The plan was submitted and approved approximately one month before a bylaw that would have had the effect of prohibiting the proposed subdivision was adopted by the regional district. Although the approving officer did not give reasons for his decision, there was evidence to indicate that his consideration of the public interest was limited to the public’s monetary and legal interests. Furthermore, the officer considered the pending enactment of the bylaw to be moot because it would not be immediately enforceable against the subdivision applicant, and he disregarded concerns expressed about the subdivision plans by the provincial Parks Department. The court held that the approving officer erred in law in his narrow definition of the public interest, which caused him to incorrectly disregard public interest concerns expressed by the provincial Parks Department, the regional district, and others. Accordingly, the approving officer’s decision was quashed. In light of the closed attitude demonstrated by the approving officer, the court also ordered that any further consideration of the proposed subdivision by the officer be prohibited (MacFarlane v. British Columbia (Ministry of Transportation and Highways) (1994), 27 M.P.L.R. (2d) 300 (B.C.S.C.)).

Key Concepts

Notes on Case Law: The cases noted under this heading are only a sample of the cases annotated that discuss the identified key concepts involved in appeals under s. 89. They are intended to highlight the issues that frequently arise in appeals and, in doing so, to give a brief overview of the case law. The annotations and notes on case law are not intended to be definitive statements on the law. For a more complete picture of the law on these key concepts, refer to the additional cases annotated below and categorized by grounds for rejection.

Bad Faith

Where evidence of bad faith is supportive of an inference of improper motive, but is equally consistent with the absence of bad faith, the onus upon the appellants to prove bad faith is not met (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, 75, 89, 99, and 219 of the Act).

The petitioners owned four parcels of land situated on prime undeveloped waterfront. The petitioners sold part of the property for park land to the province and the municipality on the condition that the remaining lands be rezoned and that conditional subdivision approval be given by fixed dates. Following the sale, the approving officer sought to place additional restrictions in a proposed covenant for the subsequent development and use of the remaining lands. The approving officer was less than frank about these additional restrictions and dealt unfairly with the petitioners at the time of the sale, for the specific purpose of enabling the sale to occur. In so doing, the approving officer acted in bad faith because the petitioners lost the opportunity to decide not to sell the park land to the province and the municipality. The approving officer’s decision was set aside and the subdivision approved on the terms submitted by the petitioners (Moore v. Saanich (District), 1995 CanLII 1287 (BC SC)).

Discrimination

The applicant owned a 66-foot lot in the middle of a block including several 33-foot lots to one side and several 66-foot lots to the other side. The approving officer refused the applicant’s application to subdivide her lot into two 33-foot lots. The approving officer stated that the subdivision was against the public interest because it would set a precedent and because her neighbours objected. The approving officer’s refusal was discriminatory. Several mid-block severances had been permitted in the vicinity. The precedent had already been set (Crittenden v. Vancouver (City), 1984 CanLII 568 (BC SC)).

It must be remembered that the essence of the approving officer’s job is discriminating between those subdivision applications which are in the public interest and those which are not, and the approving officer is to be given considerable latitude in the exercise of discretion and functions under the Act. Discrimination involves two elements: factual discrimination, or different treatment of similarly situated persons, and the improper motive of favouring or hurting one individual without regard to the public interest. It is not always necessary to prove subjective intention; if an applicant for subdivision is treated in a way that is clearly less favourable than another homeowner in identical or substantially similar circumstances, and there are no relevant distinguishing factors to account for the differential treatment, the court may infer the intention to discriminate on the part of the approving officer. However, the onus is on the applicants to show circumstances that compel the court to infer an intention to discriminate and they were unable to do so in this case (Dubuc v. Saanich (District), 1994 CanLII 1074 (BC SC)).

Where a claim of discrimination is concerned, discrimination refers to differential treatment of applicants—real, not hypothetical—with very similar attributes. The issue is whether the appellants have shown: (1) there is another subdivision applicant in factually similar circumstances; and (2) that the appellants were treated differently (worse). The appellants failed to show discrimination in this case (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, 75, 89, 99, and 219 of the Act).

The approving officer did not intend to discriminate in rejecting the petitioner’s application for subdivision approval. The approving officer had assessed the circumstances of the petitioner’s property and concluded that the circumstances (orientation, shape, location in the block, and lane access) were not substantially similar to the circumstances of another property in the area which the petitioner had sought to use as a precedent to support his subdivision application (Broadfoot v. Vancouver (City), 1995 CanLII 2338 (BC SC)).

Specious or Totally Inadequate Factual Basis

Notes on Case Law: As the various cases annotated below reveal, the courts have not always been consistent in their approach to the examination of approving officers’ decisions where a specious or totally inadequate factual basis for rejecting a subdivision plan is alleged. The Supreme Court and Court of Appeal decisions in Hlynsky v. West Vancouver (District) Approving Officer, 1987 CanLII 2456 (BC SC), reversing 1989 CanLII 2746 (BC CA), highlight the different approaches. The Court of Appeal expressly rejected the lower court judge’s view that “the court is engaged in a careful critical analysis of the substantive reasons underlying the refusal”. Instead it found that the court should, consistent with Vancouver (City) v. Simpson, “assess the approving officer’s decision by giving him considerable latitude. A judge should not lightly, or arbitrarily, come to a conclusion contrary to that of the approving officer.” The Court of Appeal found that the judge’s approach had led the judge to do exactly what she must not do—substitute her own opinion for the opinion of the approving officer.

As the cases annotated below under the “Established Amenities” heading demonstrate, the more recent decisions of the courts favour the view of the Court of Appeal in Hlynsky. However, despite the latitude the courts are prepared to grant to approving officers, an approving officer is not entitled to declare unilaterally what is in the public interest without any broad, factual background or supporting reasons. Something more is required than the enunciation of the approving officer’s own personal belief (Beaton v. Qualicum Beach (Township), 1990 CanLII 1376 (BC CA)). Similarly, an approving officer may not simply recite the requirements of ss. 85 and 86 without giving reasons for rejecting an application. Where the approving officer’s reasons are inadequate but the material filed by the approving officer on appeal discloses facts that are not specious and could be adequate to sustain the refusal, the application may be remitted to the approving officer to be reconsidered in accordance with the Act (Life Long Construction Ltd. v. Paulson, 1995 CanLII 3176 (BC SC) (Chambers)).

Opinions of Persons Affected by Subdivision

No Obligation to Obtain Opinions

The approving officer is obliged to formulate an opinion on whether any particular subdivision application is against the public interest. However, the approving officer is under no obligation to obtain the opinion of neighbours before reaching this opinion (Darby v. Vancouver (City), 1990 CanLII 353 (BC CA), following Hlynsky).

Opinions of Present Property Owners

An appeal was brought against an approving officer’s decision rejecting a subdivision plan on the grounds that it was against the public interest. The appellants claimed that the public interest the approving officer is to consider under s. 85 cannot refer to the opinions and desires of the present owners of properties adjacent to or in the immediate vicinity of the proposed subdivision. While the private interests or the opinions of the immediately adjacent property owners are not synonymous with the public interest, the legislature clearly intended that these interests be taken into account. That is why the approving officer is specifically empowered to hold hearings. In addition, the approving officer is specifically authorized to consider the anticipated effect of the proposed subdivision on the established amenities of adjoining or reasonably adjacent properties. In considering the input of the owners of nearby properties and in giving some weight to the views of those owners, the approving officer was not venturing into the political realm and he was not acting in bad faith (Dubuc v. Saanich (District), 1994 CanLII 1074 (BC SC)).

Interests of Subsequent Owners

Public interest in the context of s. 86 does not include the interest of subsequent purchasers who might find that some but not all residential uses they contemplate cannot be “permitted” by the nature of the terrain. The approving officer’s concern for the public interest should not be too paternalistic and unreal in the circumstances (Re Land Registry Act; Re Approval of a Subdivision Plan, 1961 CanLII 580 (BC SC)).

Notice of Public Hearings

The Act does not require that an approving officer hold a public hearing to determine whether to approve a subdivision with regard to the public interest; however, if an approving officer does choose to hold a hearing, it will be governed by the rules of natural justice, and natural justice requires that some sort of notice be given to those parties who may be affected by the approving officer’s eventual decision.

In this case, five days’ notice was provided by means of a prominent notice in the main daily newspaper in the city. This notice satisfied the requirements of natural justice. The petitioners, neighbours of the subdivision, could not quash the approving officer’s decision for lack of effective notice. The claim that some sort of personal service of notice was required was impractical (McConvey v. Hopper, 1994 CanLII 551 (BC SC)).

Established Amenities

General

A likely decline in the value of a property adjoining a proposed subdivision site on account of the subdivision’s development is a relevant factor in an approving officer’s consideration of the public interest (Abbeyview Enterprises Ltd. v. Matsqui (District), 1980 CanLII 638 (BC SC)).

The injurious effect of a subdivision plan on adjoining or adjacent properties is a relevant consideration and an important one in any consideration of the public interest under s. 85(2) (J. R. Hook Holdings Ltd. v. Kew (1983), 21 M.P.L.R. 188 (B.C.S.C.); see also Warwick Holdings Ltd. v. Spaxman, [1982] B.C.J. No. 668 (QL) (S.C.)).

Inadequate Factual Basis for Decision on Amenities

The approving officer appealed against the court’s direction to approve a subdivision plan. He had refused approval on the grounds that the resulting lots would be smaller than the majority of lots in a 300-foot radius, an undesirable precedent would be set, and neighbours opposed the subdivision. The Court of Appeal refused his appeal holding that he had no adequate factual basis for concluding that the subdivision was non-conforming or that it would establish a precedent (Clay v. Spaxman, 1983 CanLII 674 (BC CA)).

The owner successfully appealed the refusal of the approving officer to approve subdivision of a lot with a width of 70 feet into two lots. The approving officer arbitrarily applied a 300-foot circle in comparing the proposed subdivision with neighbouring properties. Whether the approving officer confined his examination to properties in that circle, or in the entire block, it was clear that numerous lots in the vicinity were smaller than the proposed lots. The approving officer’s decision was founded on an inadequate basis (Anderson v. Vancouver (City), [1985] B.C.J. No. 1030 (QL) (S.C.)).

Adequate Factual Basis for Decision on Amenities

The approving officer disallowed subdivision of a 93-foot lot into two smaller lots, one of which would be less than the prescribed minimum of 40 feet, on the basis that the subdivision would introduce a precedent and lead to the loss of neighbourhood amenities. The Supreme Court judge allowed an appeal from the approving officer’s decision, but the Court of Appeal restored the approving officer’s decision. In applying the decision in Vancouver (City) v. Simpson, the Court of Appeal noted that there is a heavy onus on a party seeking to question the decision of an approving officer (Cotterall v. Vancouver (City), [1985] B.C.J. No. 1383 (QL) (S.C.) (Chambers); applied in Bubas v. Saanich (District), 1988 CanLII 3231 (BC SC)).

The approving officer refused to approve the petitioner’s subdivision even though the two lots created by it complied with the city’s minimum frontage and area requirements. His grounds were that the proposed development would injuriously affect the established amenities because the proposed parcels would have an area and depth considerably less than that of other parcels in the area, and the parcels would detrimentally affect the privacy of an adjacent parcel; and that the deposit would set a precedent. The court refused to overrule the approving officer’s decision on the basis that a court may only overrule an approving officer if their decision was discriminatory, made in bad faith, or based on a specious factual basis (McEachern v. Vancouver (1989), 42 M.P.L.R. 304 (B.C.S.C.)).

The approving officer dismissed an application to subdivide a lot because the proposed lot did not meet viable lot standards, the rear of the lot was too narrow, and the lot did not fit the remainder of the neighbourhood and did not preserve the character of the existing area as set out in the community plan. The Supreme Court judge allowed an appeal from the approving officer’s decision and the Court of Appeal restored the approving officer’s decision. It is not the function of a court to engage in a critical, careful analysis of the approving officer’s decision, to test the substance of the decision critically, or to substitute its opinion for that of the approving officer (Hlynsky v. West Vancouver (District) Approving Officer, 1987 CanLII 2456 (BC SC), reversing 1989 CanLII 2746 (BC CA); applied in Tarnai v. Bremner (1989), 43 M.P.L.R. 277 (B.C.S.C.)).

An approving officer used the general discretion granted him in s. 85(3) to reject an application for subdivision on the basis that it was inconsistent with the character of the block as defined in part by its pattern of subdivision. Most of the lots within the block were significantly larger than the lots proposed. On appeal under s. 89, the applicant submitted that the proper test was not the pattern of subdivision in the block, but rather the pattern of the lots within 300 feet of the proposed subdivision, most of these being outside the block and smaller than the lot sizes proposed. It was open to the approving officer to consider the subdivision pattern in the block rather than the pattern of the lots within a 300-foot radius; his rejection of the plan thus had an adequate factual basis. That being so, a court could not substitute its opinion for the approving officer’s. The fact that extraneous considerations may have played a role in the officer’s decision could not invalidate it, because there was nonetheless an adequate factual basis for his conclusion (Arthur Bell Holdings Ltd. v. Vancouver (City), 1993 CanLII 252 (BC SC)).

The petitioner owned a mansion situated on a large lot and applied to subdivide it into two lots, each of which would be larger than the minimum prescribed by bylaw. The approving officer refused to approve the subdivision on the ground that subdivision would have a detrimental effect on the estate-like character of the property and on the amenities of immediately adjacent properties. The Supreme Court overruled the approving officer and the Court of Appeal restored the approving officer’s decision on the ground that the judge erred in substituting her view for that of the approving officer. The approving officer’s decision was not based on a specious or a totally inadequate factual basis (Morgan v. Vancouver (City), 1987 CanLII 2516 (BC SC), reversing 1988 CanLII 3178 (BC CA)).

Inadequate Reasons for Decision

An appeal was brought under s. 89 on the basis that the approving officer’s rejection of a subdivision application was based on a specious and totally inadequate factual basis. The approving officer’s rejection letter stated that the proposed subdivision: (1) was against the public interest, without saying why; (2) would injuriously affect the established amenities of properties in the area, without saying how; and (3) would create a precedent that could alter the character of the neighbourhood, without further elaboration. The letter amounted to a recitation of the requirements of ss. 85 and 86, without giving reasons as required under the Act. Material filed by the approving officer disclosed facts that were not specious and could be adequate to sustain the refusal. Accordingly, the application was remitted to the approving officer to be reconsidered in accordance with the Act (Life Long Construction Ltd. v. Paulson, 1995 CanLII 3176 (BC SC) (Chambers)).

Highway Access and Public Utilities

Notes on Case Law: The following cases were decided under the Highway Act, R.S.B.C. 1979, c. 167 (now repealed). See Part 4 of the Transportation Act for provisions on access to public highways. For additional cases involving the rejection of subdivision plans based on inadequate highway access, see the cases annotated under s. 75 of the Act.

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. The evidence did not disclose any bad faith, discrimination, or improper purpose behind the officer’s refusal (Trammell Crow Developments v. Burnaby (District) (1988), 39 M.P.L.R. 229 (B.C.S.C.)).

An owner applied to subdivide two lots so as to alter their sizes and boundaries. The approving officer set three conditions for approval: the lots were to be equal in size, more or less; the owner had to make a road dedication; and the owner had to agree that one of the lots would not be serviced. The owner succeeded in his appeal to the Supreme Court but the Court of Appeal allowed the approving officer’s subsequent appeal in part on the ground that s. 945 of the Municipal Act, R.S.B.C. 1996, c. 323 (now, s. 513 of the Local Government Act) allows an approving officer to require a road dedication from a subdividing owner. The approving officer’s other objections were invalid (Beaton v. Qualicum Beach (Township), 1990 CanLII 1376 (BC CA)).

The approving officer wrongly denied approval on the basis that the proposed lots lacked public access and that the cost of public works or services to the municipality would be excessive. Despite the fact that the portion of the road through the appellants’ land was maintained by B.C. Hydro and despite the fact that the municipality chose to deny public access at times in order to control use of a municipal park, the right of way was still a public road under s. 4 of the Highway Act (now s. 42 of the Transportation Act). The high cost of servicing the lots was a problem brought on by the municipality’s own zoning bylaws, which required a minimum lot size of 10 acres and thereby reduced density and increased costs per residence. The direct consequences of municipal policy could not be used as grounds for rejecting a subdivision that otherwise complied with zoning requirements and included the construction and installation or upgrading of municipal services such as roads at the applicants’ expense. Notwithstanding the foregoing, the approving officer had sufficient grounds for rejecting the subdivision application. The applicant’s appeal was dismissed (Cole v. Campbell River (District) Approving Officer (1994), 27 M.P.L.R. (2d) 58 (B.C.S.C.), affirmed 1995 CanLII 2170 (BC CA)).

The appellants, whose various applications for subdivision were either rejected or given conditional approval, appealed the approving officer’s decision on the grounds of bad faith, discrimination, and a specious or totally inadequate factual basis. They were unable to prove either of the first two grounds. With respect to the latter, there was an adequate factual basis upon which the approving officer could find that the appellants’ proposals were against the public interest. Section 86(1)(c)(ii) and (ix) provided specific grounds for rejection because some of the proposals did not comply with the s. 75 requirement for necessary and reasonable highway access and some made impracticable future subdivision of the land adjacent to the proposed subdivision. More generally, the approving officer had valid concerns about the safety of proposed highway access (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, 75, 89, 99, and 219 of the Act).

Section 86(1)(c)(ii) empowers an approving officer to refuse to approve a subdivision plan if the approving officer considers that the plan does not comply with the provisions of the Act relating to access and the sufficiency of highway allowances. Those provisions, contained in s. 75, refer only to a new highway within subdivided land, not to an existing highway. Similarly, an approving officer is empowered to refuse to approve a subdivision plan if the highway shown in the plan is not cleared, drained, constructed, and surfaced to the approving officer’s satisfaction. The words “highways shown in the plan”, under s. 86(1)(c)(iii), can refer only to new highways, not to existing highways vested in, maintained, and controlled by the Crown (Edwards v. British Columbia (Provincial Approving Officer), 1999 CanLII 6568 (BC SC)); see also the annotation for this decision under s. 75 of this Act.

Environmental Considerations

Requirement for Review

An approving officer’s request that a property developer provide an environmental and social study before approving or rejecting a subdivision plan under s. 85(1) is within the officer’s statutory jurisdiction under s. 85(3) to consider the public interest, and is specifically authorized by s. 86(1)(c)(vi). A court will not order an approving officer to exercise their jurisdiction within the two-month period under s. 85(1) if the approving officer has lawfully requested the study and it has not been submitted within that time (Broadmead Farms Ltd. v. Hopper, 1993 CanLII 966 (BC SC)).

Equivocal Scientific Evidence

The respondent approving officer rejected an application for tentative subdivision approval on several grounds including the potential health risk associated with electromagnetic fields (EMF). On application for judicial review, the respondent’s refusal on the grounds of EMF was set aside due to a specious and totally inadequate factual basis. The approving officer refused the application because the applicant had not shown that the subdivision was in the public interest. Instead, the burden was on the approving officer under s. 85(3) to refuse the application if, in his discretion, there was a reasonable factual foundation for concluding that the subdivision was against the public interest. Given the generalized and highly equivocal nature of the scientific evidence before him and the existence of expert evidence pertaining to the lands, there was no such foundation (Noort Holdings Ltd. v. Delta (Corp.) Approving Officer, 1995 CanLII 2799 (BC SC)).

Adverse Effect on Environment

Sections 85 and 86 give the approving officer a great deal of discretion over the approval of subdivision plans. The approving officer may reject an application if the approving officer considers that the development would injuriously affect the established amenities of adjoining or reasonably adjacent properties, or that the anticipated development of the subdivision would adversely affect the natural environment to an unacceptable level. In this case, a bylaw existed prohibiting the removal of trees in certain circumstances, and the presence or absence of trees was something the approving officer considered in deciding to reject the subdivision plan under the Land Title Act. Had the approving officer rejected the subdivision plan on the basis of the bylaw, he would have acted beyond his powers. But because he did not reject the subdivision plan on that basis but rejected the plan on the basis of his authority under the Land Title Act, he acted within his powers (Larmon Developments Inc. v. Saanich (District), 1993 CanLII 1338 (BC SC)).

Environmental problems, such as sewage disposal, created by a subdivision plan can be dealt with under other legislation, specifically the Pollution Control Act (now, the Environmental Management Act), and are better dealt with by authorities other than an approving officer (In Re Land Registry Act; In Re North Arm Aggregates Ltd., [1975] B.C.J. No. 1185 (QL) (S.C.)).

Although the subdivision plan showed only one 9.48-hectare parcel of a district lot being subdivided, the subdivision affected the whole district lot. Therefore, the approving officer could, under s. 86(1)(c)(v), put restrictions on both the 9.48-hectare parcel and the residue of the district lot (Mohl v. Puhallo, [1985] B.C.J. No. 916 (QL) (S.C.)).

Municipal Considerations

General

Notes on Case Law: Bylaws, land use policies, and official community plans may all be considered by an approving officer in their consideration of the public interest under s. 85(3). However, bylaws are given special consideration on account of s. 87(b), which provides that an approving officer “may refuse” to approve a subdivision plan if it does not conform with bylaws regulating the subdivision of land and zoning. See the cases annotated below under “Approving Officer’s Discretion” with respect to the interpretation of s. 87(b). Note also that s. 2 of the Application for Subdivision Approval Regulation, B.C. Reg. 8/89, permits an approving officer to refuse to approve a subdivision plan if the plan does not comply with an implementation agreement entered into under s. 868(2) (now s. 451(2)) of the Local Government Act.

Approving Officer’s Discretion

An approving officer has a discretion under s. 87 which they are free to exercise judicially. A court will not overturn an approving officer’s approval of a subdivision when the approving officer properly construes the relevant municipal bylaw (Ingram v. West Vancouver (District), [1987] B.C.J. No. 2557 (QL) (S.C.) (Chambers)).

The words “may refuse” in s. 87 do not give an approving officer the discretion to depart from the requirements of a statute or bylaw. Section 87 does not permit registration of an unlawful subdivision. If the legislature had intended to give an approving officer power to depart from such requirements, it would have done so in explicit and limited terms (Seaview Land Estates Ltd. v. South, 1981 CanLII 439 (BC CA)).

Section 85(3) does not authorize the granting of approval where the approving officer thinks approval to be in the public interest and the subdivision does not conform to bylaws regulating land or zoning. Section 85(3) only authorizes refusal if the subdivision plan is against the public interest, not approval in the public interest (White v. Raven, 1983 CanLII 495 (BC SC), affirming 1984 CanLII 745 (BC CA)).

A bylaw granted authority to the approving officer to depart from the general rule regarding minimum lot widths in considering subdivision applications. The approving officer declined to exercise that authority in favour of the applicant and rejected its subdivision application on the grounds that the narrow lots proposed by the application, which did not comply with the bylaw’s general rule, would create a precedent for future identical proposals involving neighbouring parcels. The result would be to significantly alter both the character and intensity of development of the neighbourhood. Previous applications for neighbouring parcels had also been rejected given the proposed width of the lots. The Supreme Court allowed the applicant’s appeal, but on further appeal the Court of Appeal held that the judge erred by suggesting that there must be a clear basis for the approving officer’s refusal to exercise his discretion. The judge had reversed the onus under the bylaw: instead of having a rule that should be relaxed if an applicant can justify a relaxation of the bylaw, the judge had required the approving officer to justify a decision not to depart from the rule. The approving officer’s decision was restored (Darby v. Vancouver (City), 1990 CanLII 353 (BC CA)).

Section 87 confers a discretion on an approving officer as to whether to refuse approval even though a subdivision plan does not conform with a municipal bylaw or policy. The approving officer must be mindful of the bylaws and policies of the municipality in which they work but is not bound by them. The exercise of this discretion is all part of the approving officer’s considerable independence (Neufeld v. Surrey (City), 1995 CanLII 3086 (BC SC)). Note however that the Court of Appeal’s decision on this issue in Seaview Land Estates Ltd. v. South, 1981 CanLII 439 (BC CA), annotated above, does not appear to have been brought to the court’s attention. See also the annotations for Neufeld v. Surrey under s. 219 of the Act in chapter 15 (Land Title Act Part 14 (ss. 197 to 237)—Charges) and s. 35 of the Property Law Act at chapter 56 (Property Law Act, R.S.B.C. 1996, c. 377).

A developer submitted a bare land strata development proposal to an approving officer for preliminary layout consideration. The plan received initial approval. The developer then submitted an application for subdivision approval that was rejected as contrary to the public interest. The municipality’s bylaw stated that “preliminary layout consideration shall not be construed as approval of the proposed subdivision for land registration or any other purpose”. Before rejecting the subdivision application, the approving officer consulted with neighbourhood residents, made several visits to the site and considered the views of council. The court found that the granting of preliminary layout approval vested no legal rights in the property owner. In this case, the approving officer exercised his discretion reasonably and acted within his jurisdiction in rejecting the application (Scrumpy Consulting Inc. v. Brennan, 2013 BCSC 563).

Bylaws, Land Use Policies, and Official Community Plans

The court upheld the approving officer’s refusal to approve subdivision plans because the city had adopted long-term plans for the development of a public waterfront park in the area where the property was located. Although the proposed subdivision would not contravene the requirements of the relevant city zoning and development bylaw, it would be against the public interest to allow further subdivision in the location, which would permit a more intensive development in the area. The city had previously offered to purchase the property and, that offer having been rejected, had decided against expropriation. However, the contention that the approving officer’s decision was made with a view to reducing the value of the property before possible expropriation was rejected. The approving officer did not act in bad faith or with the intention to discriminate against the land owner (Vancouver (City) v. Simpson, 1974 CanLII 1157 (BC CA)).

A consideration of zoning matters does not fall outside the ambit of the public interest because s. 87 directs the approving officer to consider as part of the public interest the applicable subdivision and zoning bylaws (Warwick Holdings Ltd. v. Spaxman, [1982] B.C.J. No. 668 (QL) (S.C.)).

A municipality froze residential development of land it intended to acquire for a public park under a land use bylaw, but the bylaw did not actually designate the land for public use. There is no abuse of power and nothing inherently wrong when a municipality imposes a development freeze, or refuses to buy land from a resident affected by such a freeze. In this case, these factors did not support an allegation that the municipality acted in bad faith. Planned public acquisition of land for a park can be a legitimate reason for refusing to grant a development permit (Hartel Holdings Ltd. v. Calgary City Council, 1984 CanLII 137 (SCC)).

An approving officer is entitled to consider the official community plan in determining what is in the “public interest” under s. 85(3). In so doing, the approving officer complies with statutory duties to plan the coherent and logical development of an area (Wyles v. Penticton (City) Approving Officer, 1995 CanLII 2712 (BC SC)).

An applicant for subdivision approval brought an appeal under s. 89 of the Land Title Act. The approving officer had rejected the subdivision proposal on several grounds, one being that it was contrary to the public interest. At the time of the application, the proposal met all the current zoning bylaws, but a bylaw amending the official community plan to prohibit subdivision of the area had been adopted shortly after the applicant purchased the land at issue. The officer was entitled to rely on municipal policy to determine the public interest, and the amended community plan constituted a sufficient factual basis upon which he could reject an application under s. 85(3) (Cole v. Campbell River (District) Approving Officer (1994), 27 M.P.L.R. (2d) 58 (B.C.S.C.), affirmed 1995 CanLII 2170 (BC CA)).

An approving officer requested confirmation from a local trust committee under the Islands Trust Act that requirements under the Municipal Act (now, the Local Government Act) relating to parkland dedication had been satisfied by a subdivision applicant. In response, the approving officer was informed of the details of a resolution that had been passed by the local trust committee with respect to the required dedication. Based on that information, the approving officer approved the subdivision plan despite the receipt of subsequent correspondence from the local trust committee indicating that it would require significantly more land to be dedicated. In considering whether the approving officer had acted outside his jurisdiction, the court held that a local trust committee could only act by resolution or bylaw and that, in the absence of a subsequent resolution, the approving officer was obliged to act upon the only resolution that he had before him from the local trust committee. The approving officer was not obliged to look behind that resolution. If the local trust committee wished to alter its position either because the incumbents had been replaced by the electorate or because of any other reason, it was open to it to pass a further resolution amending or rescinding the earlier resolution in accordance with the applicable statutory authority (C.H.I.-Association for the Conservancy of Hornby Island v. Hornby Island (Regional Approving Officer), 1997 CanLII 1920 (BC SC); see also the annotation of this decision under s. 89 of the Act).

The petitioner owned a lot subject to a statutory right of way and restrictive covenant prohibiting development of the lot for one year until the local government determined its storm sewer and drainage requirements. After the drainage works were completed, the original statutory right of way was modified to limit the right of way to a part of the lot designated as open space in the official community plan. The original covenant was also cancelled and a new covenant registered setting out certain conditions precedent for future development on the residential portion of the lot. After three unsuccessful attempts to obtain subdivision approval, the petitioner applied to court for an order overturning the approving officer’s decision. In granting the petition, the court found the refusal specious and based on totally inadequate factual grounds. The proposed subdivision was restricted to the area of the lot designated as residential in the official community plan. It did not impact or eliminate any part of the open space and all subdivided lots complied with zoning requirements. There was no evidence that a small subdivision would adversely affect traffic in the area and, in fact, the petitioner had agreed to bring the adjacent road up to bylaw standards. A proposed retaining wall was to be built entirely within the residential part of the lot to standards determined by the local government. Although neighbouring residents would lose part of their existing view, the court found that a property owner does not have a right to a view in the absence of a statute, bylaw, or agreement. All of the documents relating to the petitioner’s lot contemplated future residential construction subject to a number of conditions and, in this case, the private interests or opinions of adjacent property owners were not synonymous with the public interest. Accordingly, the court granted preliminary approval subject to any terms or conditions imposed by local government under its bylaws (Galloway v. Broderick (Approving Officer), 2007 BCSC 33).

Changing Municipal Requirements

Notes on Case Law: The following cases are only a small sample of cases highlighting the difficulties that may arise on account of changes to municipal bylaws, policies, and plans which are made or contemplated during the process of a subdivision application. Such changes are frequently involved in subdivision approval disputes because years can pass between the time that an applicant seeks preliminary approval for a subdivision plan and the time that application is finally made. Additional cases where such changes are involved are annotated above under “Bylaws, Land Use Policies, and Official Community Plans”.

The approving officer refused to approve a subdivision plan on the basis that the owner refused to provide land for public open space. The municipality had imposed a requirement for open space after the owner had fulfilled all the other requirements of the municipality and had installed all services. The court upheld the approving officer’s refusal. His decision met the test in Vancouver (City) v. Simpson. Although it may be desirable that an approving officer be required to exercise their power to demand the provision of open space earlier in the approval process, this was a matter for “others” to consider (Oak Bay Manor Ltd. v. Delta (District) (1981), 15 M.P.L.R. 40 (B.C.S.C.)).

Where an approving officer has consulted with various agencies and others about a proposed subdivision plan, considered the “quality of life” and environmental issues which affect the residents of the island generally, and imposed conditions and restrictions on the subdivision which were designed to meet broad public interest concerns, the approving officer has not adopted a narrow or technical definition of the public interest. The approving officer is entitled to proceed with a subdivision application on the basis of existing and valid bylaws rather than refusing any subdivision for an indefinite period to permit exploration of a comprehensive planning process as advocated by the petitioner (Galiano Island Conservancy Association v. British Columbia (Ministry of Transportation and Highways), 1996 CanLII 12425 (BC SC)).

Section 943 of the Local Government Act (now, s. 511) protects an “in-stream” subdivision application, for a period of one year, from the requirements of a bylaw passed after the date of the initial subdivision application. The petitioner submitted two subdivision applications before the local government passed a Subdivision and Development Bylaw that significantly increased its standards for curbs, lighting, and roads. After the bylaw was passed, the petitioner submitted a third application that the court characterized as an amendment to the earlier applications rather than a new application. The approving officer delayed considering the first two applications until after the bylaw was passed and then, on the basis of his jurisdiction to refuse to approve the subdivision as against the public interest under s. 85(3) of the Land Title Act, the approving officer attempted to impose, as conditions of approval, the specific requirements of the bylaw. Recognizing the broad nature of the approving officer’s public interest discretion, the court found that, while the approving officer was entitled to consider the class of concerns expressed in the bylaw, he was not entitled to impose the specific requirements of the bylaw through his public interest discretion and he could not refuse to continue reviewing the applications until they met the requirements of the inapplicable bylaw. The court remitted the matter back to the approving officer for reconsideration and estopped the approving officer from imposing the bylaw’s requirements on the petitioner for a further period of six months (391043 Alberta Ltd. v. Canal Flats (Village), 2008 BCSC 1043).

Non-Conforming Uses

The approving officer refused to approve a subdivision on the ground that a structure on the property did not conform to a municipal bylaw. The court allowed the owner’s appeal. The proposed subdivision did not fail to conform to the municipal bylaw, rather the location of the existing structure failed to conform. The non-conforming use existed then and would continue to exist whether or not the subdivision was approved (Erdmann v. Burnaby (District) (1985), 30 M.P.L.R. 154 (B.C.S.C.) (Chambers)).