Bradshaw v. Victoria (City), 2013 BCSC 1710

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bradshaw v. Victoria (City), 2013 BCSC 1710 Date: 20130917 Docket: 13-1564 Registry: Victoria Between: Terrence Bradshaw Petitioner And: The City of Victoria Respondent Before: The Honourable Mr. Justice Johnston Reasons for Judgment Counsel for the Petitioner: R.S. Margetts, Q.C. and M.J. Whittaker, Q.C. Counsel for the Respondent: T.M. Zworski Place and Date of Hearing: Victoria, B.C. August 6-9, 2013 Place and Date of Judgment: Victoria, B.C.

September 17, 2013 [ 1 ] The petitioner seeks: a declaration that s. 943 of the Local Government Act, R.S.B.C. 1996, c. 323, applies to certain building permit applications submitted by him on February 24, 2012, and March 13, 2013; in the alternative, an order that the City of Victoria’s Official Community Bylaw No. 12-013 (“OCP”) has no force and effect in respect of his building permit applications, by reason of either s. 879 of the Act, or s. 929 of the Act ; in the further alternative, an order that the designation Development Permit Area 15A (Intensive Residential – Small Lot) (“DPA-15A”), which would apply to his properties under the OCP, is ultra vires and of no force and effect with respect to his building permit applications; and finally, an order in the nature of mandamus, requiring the City of Victoria (“the City”) to issue him building permits for residences on his five city lots, two of which front on Pakington Street, three on Harling Lane. [ 2 ] The petitioner owned two lots on Pakington Street on which there were houses.

Behind these two lots there was property owned by the City, called Lot J, which was used by neighbouring properties as access. The petitioner wished to demolish the two houses on Pakington Street, and reconfigure the two lots into five smaller lots, and that required access over Lot J. That meant in turn that Lot J had to be recognized as a public road. The City was initially reluctant to do this, but after the petitioner provided a legal opinion in the middle of 2009, stating that Lot J was deemed to be a public road, the City conceded the point.

However, there continued to be a controversy over who should pay for the cost of dedicating Lot J as a public road, as required by the Director or Registrar of Land Titles before registering the petitioner’s subdivision. [ 3 ] The bare chronology leading to this dispute is as follows, and assumes that the various subdivision applications involve an intermediate step of consolidation of two initial lots: August 6, 2008: The petitioner first applies for approval for a subdivision of 1011 and 1017 Pakington Street into five lots; June 30, 2009: The petitioner makes a second subdivision application for five lots, the first having been rejected because Lot J is a private lot owned by the City and three of the five lots would be landlocked.

This application is accompanied by a legal opinion that Lot J is deemed a public road pursuant to s. 4 of the Transportation Act, S.B.C. 2004, c. 44; August 5, 2010: The petitioner revises his application to subdivide his two lots from five lots to three lots; September 23, 2010: The Approving Officer grants preliminary approval of the three lot subdivision.

The City acknowledges in writing that Lot J, which the City later renames Harling Lane, is a public road; February 21, 2011: The petitioner withdraws his existing subdivision application and subsequently applies to subdivide his two lots into five lots; April 13, 2011: The Approving Officer grants preliminary approval of the petitioner’s February 21, 2011, five lot subdivision. The City repeats its acknowledgement that Harling Lane is a public road;

February 14, 2012: The petitioner applies for building permits covering Lots C, D and E which front on Harling Lane. The City states these applications were made February 27, 2012: nothing turns on the difference; June 12, 2012: The petitioner requests a change to his subdivision application from five to four lots; July 30, 2012: The City adopts the OCP. One impact is that the entire city is designated DPA-15A: Previously, the Pakington Street lots were not in a development permit area; August 27, 2012: Mr. Bradshaw files and serves Petition, Victoria Registry No. 122962. In it, Mr.

Bradshaw seeks an order of mandamus against the City “requiring and directing that the City of Victoria endorse for approval and register in the Victoria Land Title Office all documents and plans for the subdivision of 1011 and 1017 Pakington Street, Victoria, British Columbia, legally described as Lot 3 and 4, Fairfield Farm Estate, Victoria District, Plan 155, PID 005-171-466 and PID 004-366-654 in accordance with the Petitioner’s Application for subdivision dated April 13, 2011 and amended June 12, 2012 ” [emphasis added]; October 30, 2012: The petitioner and respondent enter into a Works and Services Agreement largely dealing with servicing of the proposed new lots; January 10, 2013: The subdivision is registered with the Land Title Office; March 15, 2013: The petitioner applies for building permits covering Lots A and B, which front on Pakington Street.

March 26, 2013: The City issues another deficiency notice on the first three building permit applications. The only deficiency noted is a requirement for a development permit, the first notice the petitioner has of this. [ 4 ] The petitioner argues: 1. That s. 943 of the Act effectively grandfathers his development from the application of the OCP requirement for development permits; 2. That the respondent failed to consult him, as required by s. 879 of the Act, and this precludes the respondent from requiring compliance with the development permit obligations under the OCP; and 3.

That he has a right to building permits because the respondent failed to comply with s. 929 of the Act.

Section 943 [ 5 ]

Section 943 of the Act is in

Part 26 - Planning and Land Use Management, Division II - Subdivision and Development Requirements. It provides: 943. If, after … (

b) an application for a subdivision of land within a municipality has been submitted to an (sic) designated municipal officer and the applicable subdivision fee has been paid, a local government adopts a bylaw under this Part that would otherwise be applicable to that subdivision, the bylaw has no effect with respect to that subdivision for a period of 12 months after it was adopted unless the applicant agrees in writing that it should have effect. [ 6 ] Subsection (

b) requires submission of a subdivision application, and that was done, and this statutory requirement satisfied, as of February 21, 2011. It is not necessary to consider the impact of the petitioner’s request, in June 2012, to change the application from five lots to four. [ 7 ] Subsection (

b) also requires that the applicable subdivision fee has been paid. The petitioner says he complied by paying the application fee of $250, whereas the City says that the petitioner was required to pay “a number of fees and charges such as application and final approval fees, Development Cost Charges (“DCC”), Works and Services deposits, and cash in lieu of parkland dedication. In total, the Petitioner was required to pay $71,956.46 in fees (including DCC) …” (See affidavit of Jeff Mitton #1, paragraph 5). Mr.

Mitton swears that the petitioner paid only an initial application fee of $250 before October 31, 2012, when the balance of the fees and charges claimed by the City were paid. [ 8 ] The petitioner has failed to prove that he has brought himself within s. 943 by proving that he paid the “applicable subdivision fee” as required by the section. [ 9 ] If I am wrong in that conclusion, I would come to the same result on the basis that the petitioner is not entitled to the protection of s. 943 with respect to his building permit applications for the reasons that follow. [ 10 ] The petitioner here argues that he had applied for subdivision before the City bylaw adopted the new OCP and that he had also applied for building permits that were an integral part of the development and thus an integral part of the subdivision.

He says that perforce his applications for building permits – at least the first three - are grandfathered by s. 943. [ 11 ] The petitioner argues that his applications for building permits were “necessarily incidental” to his subdivision application, and are thus carried along with the subdivision application under the 12 month protection conferred by s. 943. [ 12 ] A necessary linkage between subdivision and building permit applications is that the City would not and could not issue three

building permits for two lots, and so consolidation and subdivision of the two lots into at least three new lots was a necessary precondition to the issuance of building permits. [ 13 ] The fact that the entitlement to three building permits depended on a prior subdivision does not make the building permits “necessarily incidental” to the process of subdivision. [ 14 ] The petitioner phrases the issue in this way: “The issue, stated succinctly, is whether the meaning of “subdivision” in

Section 943 should be limited to the drafting of a paper plan or meets (sic) and bounds description and nothing more. In other words, should it be limited to the definition in

Section 872 of the Act , which adopts the definition of subdivision as defined in the LTA.” [ 15 ] The narrow statutory definition of subdivision that the petitioner would prefer to avoid is that set out in s. 1 of the Land Title Act, R.S.B.C. 1996, c. 250: “subdivision means the division of land into 2 or more parcels, whether by plan, apt descriptive words, or otherwise”, a definition incorporated into the Act by s. 872. [ 16 ] In Schickedanz Properties B.C. Ltd. v.

Fernie (City), 2001 BCSC 714 , the applicant had proposed a redevelopment that involved acquiring adjoining lands, consolidating those lands with its own, then subdividing the total into three new lots in order to build a hotel. The applicant had sought subdivision approval prior to obtaining the adjoining lots, which resulted in the approving officer returning the application for preliminary subdivision. However, the city did issue a building permit allowing for foundation construction. The city subsequently adopted a bylaw imposing development cost charges.

Although the applicant applied for a building permit for the hotel itself three days after the bylaw was adopted, it did not acquire the adjoining land nor was it in a position to submit a proper application for preliminary subdivision approval until some time after the adoption of the development cost charges bylaw.

Consequently, a building permit was not approved until after the adoption of the development cost charges bylaw. [ 17 ] The court phrased the test under s. 943 this way: “In order for the plaintiff's argument to be successful, it must establish, firstly, that it applied for a subdivision of land before the DCC bylaw was adopted and, secondly, that the bylaw would be ‘applicable to the subdivision’" (at para. 31). [ 18 ] After deciding that there was no material difference between consolidating and subdividing for the purposes of s. 943, and that the use of the wrong form for the application was not fatal, the court turned to a more serious problem: that the applicant did not own all of the land at the time it applied for preliminary approval of a subdivision plan.

The court concluded that the approving officer was not wrong to return the application because the applicant did not own the land subject to the application, and therefore s. 943 provided no protection to the applicant. [ 19 ] In my view, the same result should pertain here. The lots for which Mr. Bradshaw sought building permits did not exist when he applied for the building permits nor when the OCP was brought into existence.

The lots did not exist until either December 2012, when the subdivision plan was deposited with the Land Title Office, or January 10, 2013, when the subdivision plan was finally registered. [ 20 ] The petitioner has referred me to para. 44 of Schickedanz where the court held that s. 943 does not apply to bylaws that are applicable to building permits. I see no comfort there for the petitioner. [ 21 ] The petitioner has argued that another case relied on by the City, 694285 B.C. Ltd. v.

Capital (Regional District), 2008 BCSC 774 , appeal dismissed as moot, 2008 BCCA 467 , is instead supportive of the petitioner’s position, or if not, it is distinguishable, or wrongly decided. [ 22 ] In that case, the petitioner had applied for a lot line adjustment within an existing subdivision, and after preliminary approval, but before final approval and registration, the Capital Regional District (“CRD”) passed a bylaw designating much of the land in question as a sensitive ecosystem development permit area.

When the petitioner applied for building permits, the CRD required development permits and the petitioner sued, asserting it was exempt from the requirement for a development permit (and the applicable fees) by s. 943 of the Act. [ 23 ] The court distinguished between fees bylaws that relate to a building permit application process and those that might “otherwise be applicable to that subdivision” in the language of s. 943, and reasoned that for s. 943 to apply to building permits would require a definition of the word “subdivision” broader than the definition set out in the Land Title Act .

The court dismissed the petition. [ 24 ] The appeal was dismissed as moot because the petitioner had applied for and received a development permit between the hearing of the petition and the appeal. I agree with counsel for the City that the Court of Appeal’s remarks at para. 30 go no farther than to acknowledge the potential that there might have been a live issue if the petitioner had shown that its subdivision application carried some potential for work on the land, such as construction of services.

This does not assist the petitioner in his argument that subdivision can include the building or other work on the land after subdividing. [ 25 ] I conclude that s. 943 does not apply to the petitioner’s building permit applications.

Section 879 [ 26 ] The petitioner argues that he was entitled to consultation under s. 879 of the Act that he was not consulted as required, and that the result is that the changes in the OCP that would otherwise affect his development, particularly the inclusion of his lots in DPA-15A, are unenforceable as against him. The petitioner does not seek to strike the enabling bylaw, or the OCP, for failure to consult.

Section 879 provides: 879.

(1) During the development of an official community plan, or the repeal or amendment of an official community plan, the proposing local government must provide one or more opportunities it considers appropriate for consultation with persons, organizations and authorities it considers will be affected.

(2) For the purposes of subsection (1), the local government must

(

a) consider whether the opportunities for consultation with one or more of the persons, organizations and authorities should be early and ongoing, and (

b) specifically consider whether consultation is required with (

i) the board of the regional district in which the area covered by the plan is located, in the case of a municipal official community plan, (ii) the board of any regional district that is adjacent to the area covered by the plan, (iii) the council of any municipality that is adjacent to the area covered by the plan, (iv) first nations, (

v) school district boards, greater boards and improvement district boards, and (vi) the Provincial and federal governments and their agencies.

(3) Consultation under this

section is in addition to the public hearing required under section 882 (3)(d). [ 27 ] The petitioner does not directly state that he was unaware that the City’s OCP was under review. He complains instead that he was not told of the possible changes to the OCP that would bring his properties and his proposed development into a development permit area. He points in this regard to documents that indicate that City staff decided to contact some people who had outstanding applications that might be affected by inclusion in DPA-16.

He says that through inadvertence or by deliberate decision, the City had not done the same for those who, like him, would be affected by inclusion in DPA-15A. [ 28 ] The parties agree that to the extent this argument raises issues of the standard by which the conduct of the respondent under s. 879 is to be reviewed, the reasonableness standard applies. [ 29 ] The respondent’s position is that s. 879 imposes on the City a duty to consider what consultation, in addition to a public hearing, is appropriate in the circumstances, that this is fairly influenced by considerations such as the nature of the process being undertaken and that the discretion conferred by the phrases “it considers appropriate” and “it considers will be affected” is very broad. [ 30 ] The respondent says the evidence of the broad public consultation leading up to the public hearing shows that council directed its mind to its obligations under s. 879, and that the decision on the nature and scope of consultation has not been shown to be unreasonable. [ 31 ] The respondent also argues that the obligations are imposed on the local government, not on the local government’s staff. [ 32 ] Consultation was the subject of the decision in Gardner v.

Williams Lake (City), 2006 BCCA 307 , where at para. 24 the court said: “This case … concerns the content of the requirement to consult that is found in s. 879 of the Local Government Act .” At para. 27: What, then, is the content of the "consultation" required? Section 879(1) establishes the requirement that the City provide "one or more opportunities it considers appropriate for consultation with persons, organizations and authorities it considers will be affected ".

With the words "it considers appropriate" and "it considers will be affected", the Legislature has expressed its intention that the nature of the opportunities to consult, and the persons or entities consulted, are matters to be decided by the City Council. [Emphasis in original.] And at paras. 28-29: [28] In my view, "consultation" is an elastic concept, dependent upon the extent of the change proposed and other circumstances surrounding the proposal.

For example, introduction of a new official community plan may have broader implications for consultation than an amendment to a plan to address the use of a [discrete] area, such as is before us. Accordingly, one would expect the degree and breadth of consultation to reflect the breadth of the proposal. [29] At a minimum, “consultation" anticipates bi-lateral communication in which the person consulted has the opportunity to question, to receive explanation and to provide comment to the local government upon the proposal.

Given the requirement of a public hearing as part of the formal process of passage of an official community plan, and the express provision of s. 879 that the consultation is additional to the Public Hearing, I consider that the term "consultation" in s. 879 includes informal communications, meetings, open houses, delegations, and correspondence.

The essence of the requirement is that those consulted have the opportunity to question and provide their comment, and that the local government weigh that comment, before advancing in the legislative process. [ 33 ] The court-emphasized phrases in para. 27 indicate the importance of the broad discretion left to the local government in deciding what consultation, and with whom, will be reasonable. [ 34 ] The nature of the consultation contemplated by s. 879, and the impact of potentially misleading information, was considered in Henry v. Coldstream (District), 2006 BCSC 1301 .

In Henry the petitioner complained that the way in which District representatives had portrayed an earlier approval of an increase in density by the Agricultural Land Commission was capable of misleading voters into thinking that the District had already approved such an increase, and this largely nullified the effectiveness of the consultation that did take place.

At paras. 64-65, the court said: [64] In the context of consultation under s. 879, as distinct from a public hearing under s. 882 or 890 of the ACT , the process is less rigorous involving “informal communications, meetings, open houses, delegations and correspondence.” ( Gardner, (C.A.) at para. 29). While the objective of the consultation requirement represents a significant step in a municipal legislative process respecting the

development of an official community plan and must therefore be meaningful, it does not have the same requirements as a public hearing. The reason is that the consultation requirement is part of an evaluative process rather than a determinative process and its nature and extent is therefore left in large measure to the discretion of the local government which has “a vantage point of intimate knowledge of the community and the official community plan already in place …” ( Gardner (C.A.) at para. 31).

Its effectiveness must in large measure be judged in that light. [65] In the present case, there is no evidence that anything was hidden from the scrutiny of the affected parties throughout the lengthy consultation process. Whatever impact the ambiguous and unclear representation about prior approvals for development of the seniors residence on the Coldstream Management property may have had is ameliorated by the fact that there was ample time and opportunity to review the current local government by-laws or resolutions and the Commission approvals in relation to that property.

A perusal of the minutes of the public meetings, the survey results, and the comments from the public in the October 26, 2004 open house exit survey, reveals engaged and sophisticated involvement from the District residents with some comments reflecting an understanding that it was ultimately up to the local government in the review process to determine density issues, not any prior approvals from the Commission. [ 35 ] The distinction between evaluative and determinative processes in Henry at para. 64 , is an important reminder that it is a legislative process, not a quasi-judicial one, that is in issue here.

This inquiry ought not to be caught up in concerns about procedural fairness. [ 36 ] I am not persuaded that s. 879 confers on the petitioner a right to individual notice or individual consultation, merely because he had either or both a subdivision or building permit application outstanding while the process of amending the OCP was underway. [ 37 ] The broad consultation described in the evidence was reasonable given the broad impact of replacing the OCP.

The discussions between the City and some people whose interests were identified as being particularly affected do not translate into an obligation on City council, or on the City generally, to discuss with all people with an interest in the OCP. Neither does it elevate the petitioner’s interest into something deserving of the consultation he claims to be entitled to under s.

Section 929 [ 38 ]

Section 929 of the Act provides: 929 .

(1) A local government may direct that a building permit be withheld for a period of 30 days, beginning on the day the application for the permit was made, if it passes a resolution identifying what it considers to be a conflict between a development proposed in the application for a building permit and (

a) an official community plan, or (

b) a bylaw under sections 903 to 907 or 910 (c) [Repealed 2000-7-170.] that is under preparation. (2) Subsection (1) does not apply unless a local government has, by resolution at least 7 days before the application for a building permit, begun the preparation of a plan or bylaw that is in conflict with the application.

(3) During the 30 day period referred to in subsection (1), the local government must consider the application for the permit and may (

a) direct the permit be withheld for a further 60 days, or (

b) grant the permit, but impose conditions in it that would be in the public interest, having regard to the plan or bylaw that is under preparation.

(4) If the local government does not adopt a plan or bylaw referred to in subsection (1) within the 60 day period, the owners of the land for which a building permit was withheld under this

section are entitled to compensation for damages arising from the withholding of the building permit.

(4.1) For the purposes of subsection (4), Division 3 [Expropriation and Compensation] of

Part 8 of this Act applies in relation to a regional district and Division 4 of

Part 3 of the Community Charter applies in relation to a municipality.

(5) A council that passes a resolution under subsection (1) may direct that a business licence in respect of the same land be withheld for a period not longer than 90 days, if the council considers that the use to which the land would be put and to which the business licence application relates would be contrary to the use that would be permitted by the bylaw that is under preparation.

(6) Any requirement to approve a permit or licence under this

section is subject to

section 946.2. [ 39 ] The respondent argues, and I agree, that this

section is relevant only if invoked by the City. The City did not purport to act under this

section at any time, and does not seek any protection from this s. 929. I agree that s. 929 is a shield that might protect the City if properly invoked, but it is not a sword that can be used by the petitioner in the absence of any attempt by the City to act under s. 929. [ 40 ] The petition is dismissed with costs to the respondent. “R.T.C. Johnston, J.” The Honourable Mr. Justice Johnston