89 Appeal To Supreme Court

PRACTICE

Filing Subdivision Plan That Officer Is Ordered to Approve

Where a subdivider deposits a subdivision plan which a court has ordered the approving officer to approve and which the approving officer has endorsed with their approval under s. 89(8), the subdivider must file a certified copy of the court order.

Electronic Submissions

On the Declaration form, enter a description of the order and attach an image of the court certified copy of the court order. The electronic Declaration is submitted immediately following the electronic Application to Deposit Plan at Land Title Office.

CROSS REFERENCES AND OTHER SOURCES OF INFORMATION

Regarding the appeal of an approving officer’s refusal to approve a subdivision plan for the City of Vancouver, see s. 293 of the Vancouver Charter.

Third parties aggrieved by approval of a subdivision plan must proceed under the Judicial Review Procedure Act.

CASE LAW

Overview

Notes on Case Law: The case annotations below focus primarily on procedural or jurisdictional matters relating to s. 89. For annotations and notes on case law involving the substantive issues raised by ss. 85, 86, and 87 of the Act, including the grounds for appeal under s. 89, see the annotations under the “Case Law” heading for s. 86.

Proper Parties to Proceedings

The municipality is not a proper party to be added to an appeal under s. 89 of the Land Title Act. At most, the municipality may be an interested person that the court may order to be notified under s. 89(6) (Riverside Terrace Realty Ltd. v. North Vancouver (District), 1992 CanLII 1651 (BC SC)).

The municipality is not a proper party to proceedings under s. 89. Only the approving officer, meaning the office as opposed to the individual occupying that office, is to be engaged as a party. Thus, a subsequent holder of the position of approving officer would be bound to follow the court’s decision on appeal from a decision of their predecessor, while a former officer would be powerless to effect the court’s order (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, 86, 99, and 219 of the Act).

Time Limit for Approval Where Information Requested

Absent evidence of bad faith, discrimination, inadequate factual basis, unlawful requests or conditions, or unreasonable delay, an appeal under s. 89(1) for an order compelling an approving officer to exercise their jurisdiction under s. 85(1) fails where lawfully requested material, such as an environmental and social review study that the officer wants to take into consideration in making a decision, has not been provided to the officer (Broadmead Farms Ltd. v. Hopper, 1993 CanLII 966 (BC SC)).

Remedies

When the court finds on an appeal under s. 89 that an approving officer has made an error in law, s. 89(7) permits the court to make such order as it deems just to preserve rights or advantages that should have been preserved at a particular point in time in the past. Consequently, the court in this case directed that an approving officer, who had relied upon an ultra vires municipal bylaw in rejecting the petitioner’s application for subdivision, approve the petitioner’s plan, and it further declared that a new municipal bylaw was inapplicable to the petitioner’s subdivision. The ultra vires bylaw had been an attempt to repeal s. 943 of the Municipal Act (now, s. 511 of the Local Government Act), and the new bylaw, which would not have applied had the plan originally been approved, imposed higher development cost charges. The purpose of the appeal was to correct the municipality’s legal error, so the municipality could not rely on that error to deprive the petitioner of the benefit of the correction (Gardner Construction Ltd. v. Parksville (City), 1995 CanLII 2408 (BC CA), affirmed 1995 CanLII 2408 (BC CA)).

Alternatives to Section 89 Proceedings

The existence of an appeal procedure and limitation period in the Land Title Act does not affect a party’s right to commence proceedings under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 impugning a bylaw. In this case, the petitioner sought a declaration that a bylaw establishing minimum lot sizes did not apply to the lands it sought to subdivide. The respondent’s preliminary objection based on the Land Title Act was dismissed (Granite Development Ltd. v. British Columbia, 1981 CanLII 713 (BC SC)).

The petitioner sought declaratory orders under the Judicial Review Procedure Act that certain conditions precedent to the subdivision of its property imposed by the approving officer were invalid. The court found that the approving officer’s conditions, which related to road access, were without statutory authority. Accordingly the court declared the conditions 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 defendant approving officer applied under Rule 19(24) or 18A (now Rule 9-5(1) or Rule 9-7) to dismiss the plaintiffs’ claim for a declaration that the municipality’s bylaw was void for illegality and that the approving officer’s rejection of its subdivision application was made in bad faith or on a specious or totally inadequate factual basis. The approving officer argued that the only remedy available to the plaintiff was an appeal under s. 89. However, the Act does not say that s. 89 is the sole remedy available to a disappointed applicant for subdivision approval. Where the Legislature does not say expressly that a remedy for infringement of a right is exclusive, the courts should consider the adequacy of the statutory remedy as a factor in the decision whether to grant a discretionary remedy instead. Section 89 provides an expeditious and inexpensive procedure for resolving subdivision disputes. In this case, because the trial of the plaintiffs’ claim was set to commence in only two months, pre-trial discoveries were already substantially completed, and the approving officer’s decision was integrally related to the validity of the challenged bylaw, the paralyzing effect of trial delay on legitimate municipal business was not a persuasive factor. The approving officer’s application for dismissal of the plaintiff’s claim for declaratory relief was dismissed (Hodgins v. Delta (Corp.), 1995 CanLII 515 (BC SC)).

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. While the petitioner had no right of appeal under the Land Title Act, but only a power of judicial review, the court accepted that the principles that apply to a statutory appeal under s. 89 of the Land Title Act should apply to the judicial review—namely, that the court should only interfere with an approving officer’s decision if the decision was made in bad faith, with the intention of discriminating against an individual, or on a specious or totally inadequate factual basis. There was no assertion that the decision was made in bad faith or with the intention of discriminating against an individual, and the court found no evidence that the approving officer’s decision to accept the subdivision plan 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 “General Application: Preliminary Approval” under s. 86 of the Act).

The petitioner commenced proceedings under the Judicial Review Procedure Act to quash an approving officer’s approval of a subdivision plan after the approving officer had inadvertently contravened s. 85.1 of the Land Title Act by granting approval of the plan without the prior approval of the Ministry of Environment, Lands and Parks. The respondent subdivision applicant applied to have the petition dismissed on the grounds that the petitioner, a neighbouring property owner, had no standing to institute and maintain the proceedings. The court agreed with the respondent and dismissed the petition. The rule is that standing is restricted to those who assert a private interest in a matter. While courts have discretion to grant public interest standing, the court declined to exercise that discretion in this case because the only direct effect and genuine interest on the part of the petitioner in the matter was purely economic, and public interest standing is not conferred on a party to protect its commercial interests. Furthermore, there were other reasonable and effective ways to deal with the issue of the inadvertent approval of the subdivision, and resort to the courts was premature and unnecessary at the time because the subdivision applicant was satisfactorily addressing the environmental issues s. 85.1 was intended to raise (Solex Developments Co. v. Taylor (District), 1997 CanLII 682 (BC SC), affirmed 1998 CanLII 5104 (BC CA)).

No Right to Discovery

In an appeal under s. 89 of the Land Title Act, an appellant alleged that the municipal approving officer, who refused to approve the appellant’s subdivision plan, did not exercise his statutory duty to consider the application on its merits but merely followed a predetermined municipal policy of preventing subdivisions in the area. The appellant sought an order to compel the municipality and the approving officer to provide discovery of their files and to submit to examinations for discovery. The court held that although the court is entitled to inquire beyond the “record” of a decision below where there are allegations of bias or other departures from natural justice, the appellant in a statutory appeal has no right to discovery (Riverside Terrace Realty Ltd. v. North Vancouver (District), 1992 CanLII 1651 (BC SC)).

Limits on Court’s Jurisdiction under Section 89

When an approving officer refuses to approve a subdivision plan because of requirements in the Agricultural Land Commission Actand related orders in council, a court has no jurisdiction to hear an appeal from that decision. Instead, the court must proceed as set out in the appeal provisions of the Agricultural Land Commission Act and Environment and Land Use Act (Re Land Registry Act; Re Ellison, [1973] B.C.D. Civ. (S.C.)).