A Court’s Analysis of an Approving Officer’s Decision
The January 2007 Supreme Court of British Columbia decision of Galloway v. Broderick (approving officer for the District of Coldstream) is of some interest to local government.

In the early 1990’s, a developer created a subdivision consisting of over 250 lots located on a hillside overlooking the Coldstream Valley, including Lot 6, the subject of this dispute.

Subsequently, in 1995, the developer received approval to place fill in a gully adjacent to the lot to raise it by 10 to 15 feet so as to create a walking path and greenbelt area.

The Petitioner, Mr. Galloway, acquired ownership of Lot 6 from the developer in 2001 and proposed to subdivide Lot 6 into two lots.

Neighbouring property owners opposed the Petitioner’s two-lot subdivision application, alleging that they were earlier assured that no development would take place on Lot 6, and that it would remain Open Space.

Under Section 85 of the Land Title Act, if an Approving Officer rejects a subdivision plan, he or she must forthwith notify the applicant in writing and briefly state the reasons. Under Section 85(3), the Approving Officer may refuse to approve a subdivision plan if the Approving Officer considers that the deposit of that plan is against the “public interest”.

To facilitate the furtherance of the application, in June of 2002 the Official Community Plan was amended designating one-half of Lot 6 Open Space and the remainder Residential, followed in August of 2002 by the Approving Officer’s preliminary layout approval for the two lot subdivision (subject to engineering and geotechnical reports, restrictive covenant, and compliance with minimum lot and frontage requirements).

Ultimately, the Petitioner did not proceed with the proposed two-lot subdivision. Instead, in October of 2005, he applied for approval of a five-lot subdivision of Lot 6.

The Approving Officer rejected the proposed subdivision application in December of 2005, citing a number of reasons including that the proposed subdivision was contrary to the Official Community Plan; roads were substandard; site and topography concerns; storm drainage; concerns of neighbouring property owners; and the five-lot proposal not meeting the community’s interests.

Sections 86 and 87 of the Land Title Act set out in more detail the circumstances in which an Approving Officer may refuse to approve a subdivision plan, including what could be seen as “public interest” considerations. The Court pointed out that these reasons contain items identified by the Approving Officer in his rejection, including: adverse impacts upon adjacent properties or the natural environment; inadequate drainage; insufficient highways; the subdivision being unsuited to the configuration of the land; and lack of conformance with local government bylaws regulating the subdivision of land and zoning.

The Petitioner sought a review of the Approving Officer’s refusal on appeal to the Supreme Court. The standard of review for a Court on such an application is whether the Approving Officer’s decision was

• made in bad faith
• made with intent to discriminate against any property owner
• a refusal made on a “specious and totally inadequate factual basis”

Before the Supreme Court, the Petitioner argued that the decision of the Approving Officer should be overturned on the basis that the Approving Officer and the concerned neighbouring property owners were voicing objections based on incorrect assumptions and facts.

The Court reviewed the decision of the Approving Officer and found that the subdivision was not contrary to the Official Community Plan, as subdividing Lot 6 as proposed would not result in developing the Open Space area, and it would remain in its natural state. With respect to the sufficiency of the roads raised by the Approving Officer, the Court pointed out that the Petitioner’s subdivision application contemplated the upgrading of the roadway in front of the subdivision and would conform to the applicable bylaw.

The Court also found that the Approving Officer and the neighbouring property owners’ concerns as to site restrictions and topography were based upon the mistaken belief that development or construction would take place within the Open Space area. The Court also found that contrary to the Approving Officer’s position, the proposed five lots would not negatively impact on the character of the neighbourhood.

Finally, while the Court pointed out that the Approving Officer is clearly entitled to consider the views of adjacent property owners, those views do not necessarily equate to the “public interest”, particularly when founded upon an incorrect factual basis.

Accordingly, the Court ordered that preliminary approval of the five-lot residential subdivision (subject to compliance with district bylaw requirements) be granted.

Approving Officers are generally regarded by the courts as being able to act with a high degree of autonomy. In this case, the Court reflected the usual approach by indicating that it should not lightly interfere with an Approving Officer’s decision. However, this case is instructive in that it does show the degree to which a Court will analyze the facts upon which an Approving Officer’s decision is based, and will overturn that decision if in its view the Approving Officer was operating on an incorrect factual foundation.

Robert Macquisten
Spring 2007

This article was published in Spring 2007 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.