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Subdivision to Re-Align Boundaries

by Mary MacGregor

written 1995, published in Beef in B.C. January/February 96

Suppose you want to change some property boundaries and make differently shaped parcels of land from the ones you now have. What procedure do you have to follow, and what might you be required to do in order to have the realignment approved?

What is a Subdivision?

Any time you change the boundaries of a land parcel, you “subdivide” it. The classic subdivision creates a number of smaller parcels from one or more larger ones. But an amalgamation of parcels is also treated as a subdivision. So is a realignment of boundaries leaving the same number of parcels having a different shape from the original ones.

Role of the Approving Officer

To create a title for a new parcel of land, one must register a subdivision plan at the Land Title Office. The Land Title Office will not accept a subdivision plan for registration without having the formal approval of an official named the “Approving Officer”.

Where land lies within the municipality, the Approving Officer is appointed by the municipality. Where land is outside a municipality, the Approving Officer has historically been an employee of the Ministry of Transportation and Highways (MoTH). There is now a proposal to transfer this function to the Regional Districts, but the transfer has not yet taken place.

Whether on staff with the municipality or MoTH, the Approving Officer has the same role. He or she reviews the proposal for subdivision and sets out requirements for subdivision approval.

The Approving Officer acts in the public interest, and has broad discretion for that purpose. He or she has a critically important role in the development of the Province, and has correspondingly great power to set requirements for approval of subdivision.

The requirements set by the Approving Officer are virtually unchallengeable, although the Land Title Act allows an appeal to the Supreme Court of British Columbia. The case law shows that as long as the approving officer is acting reasonably and within his mandate of protecting the public interest, and as long as he or she is not acting in bad faith, the requirements of the approving officer will stand. “Bad faith” means acting for an improper purpose such as personal vindictiveness, rather than acting for the proper purpose which is to protect the public interest.

Why Has The Position of Approving Officer Been With MoTH?

The reason is historic. The Land Title Act has long required subdividing owners to provide public road access to new lots created, access to lands beyond the parcel(s) being subdivided, and access to water. MoTH dealt with access issues, so the role of subdivision approval fell to that Ministry.

While access remains an important issue, these days other questions including land use, parcel size and shape, flooding and natural hazard often overshadow it.

What Does The Approving Officer Do?

The applicant for subdivision approval gives the Approving Officer a proposal for subdivision, including a sketch of the planned subdivision layout. The Approving Officer then refers the proposal out to various agencies, for comment. When the comments are received back, the Approving Officer prepares a list of conditions for final approval of the subdivision proposal. This stage is called “preliminary layout approval”. The applicant for subdivision then decides whether to comply with the requirements and proceed with the subdivision, or not. If the applicant decides to go ahead with the subdivision, he or she does what is necessary to prove to the Approving Officer that the requirements are met. At that point a formal subdivision plan is prepared, and the Approving Officer signs the plan, approving it for registration.

The Approving Officer has the ability to decline to approve a subdivision at all and might do so, for example, if the property to be subdivided were subject to some unfixable unsafe condition like landslip.

The Agricultural Land Commission also has the ability to refuse subdivision of any land within the Agricultural Land Reserve (ALR). For this reason, MoTH recommends that an applicant for subdivision go through the Land Commission approval process first, and MoTH second. The application to the Land Commission is a separate application from that to MoTH, and is made through the Regional District.

The Referral Process (Preliminary Layout Approval Stage)

In the referral process for preliminary layout approval, the Approving Officer sends the proposal to a number of agencies, to look at the following issues:

Regional Districts - The Regional District is asked to check for compliance with its bylaws, especially concerning proof of water, compliance with parcel size requirements of zoning bylaws, compliance with park dedication requirements of the Municipal Act, and Agricultural Land Reserve consent if the property is within the Land Reserve.
Ministry of Health - The Ministry of Health comments about suitability for septic disposal.
Ministry of Environment, Lands and Parks - Environment comments about whether or not a “flood-proofing” covenant is required.
Ministry of Small Business, Tourism and Culture - The question is whether there is any indication of archaeological sites and if so, what assessment is necessary before subdivision is permitted.
Utility Companies such as BC Tel, BC Hydro, West Kootenay Power and Light - These companies are asked if the subdivision is likely to have any impact on existing utility facilities and whether any easement or relocation of lines is required.
Ministry of Transportation and Highways - MoTH reviews its own records to see what is required for access to each parcel; for road construction and dedication; and for natural hazards.

What Can The Approving Officer Require To Deal With Agency Concerns Raised on Referral?

In general, the preliminary layout approval contains a list of requirements. The applicant for subdivision must prove they are met, to get final approval. Some common requirements follow:

If any of the new parcel sizes are smaller than the Regional District zoning bylaw prescribed minimum, the subdivision will have to be reconfigured or the property will have to be rezoned.

Unless there is potable water supplied to the property from a source on or adjacent to the property, municipal supply, Irrigation or Improvement District, the property has to show legal access to water from another parcel. This usually requires an easement and may require a water licence if the source is surface rather than ground water.

If the land being subdivided is subject to flooding, the Ministry of Environment will have some conditions about siting and elevation of structures on the property being subdivided, and will also require an indemnity in favour of itself and the municipality in case there is subsequent flood damage. The indemnity stops any claim being made for flood damage against the Ministry and the municipality.

Archaeological assessments and road dedications are requirements which often upset the applicant for subdivision. There is no question but what MoTH will look after its own interests in planning ahead for future road construction, or in obtaining a 66-foot right of way (or more) where the Ministry previously owned (for example) only the travelled portion of the road.

Where unsafe conditions are found, for example landslip or landslide, the Approving Officer may require a geotechnical study to assure that the area to be subdivided is safe for the purpose.

Negotiability of the Requirements

Where a preliminary layout approval requirement seems excessive or unreasonable, the applicant for subdivision can discuss the requirements with the Approving Officer, to see what if any flexibility exists on the requirement(s) in issue. The Approving Officer is the final authority, and has the power, in some circumstances, to change the requirements.

Summary

The Approving Officer acts in the broad public interest, and makes a list of requirements for the approval of any subdivision. This list can include free dedication of roads and rights-of-way; free grant of a flood-proofing covenant to the Ministry of Environment and municipality concerned; geotechnical study or archaeological assessment and possibly mitigation paid for by the applicant for subdivision; and provision of water and sometimes other services at the applicant’s cost. Unless one can prove that the Approving Officer is imposing conditions which are unreasonable and unsupportable in the public interest, the requirements may be a little negotiable, but otherwise unchallengeable.