Definitive Court Ruling On LGA Section 943
Section 943 of the Local Government Act provides a one-year grace period regarding bylaws which are adopted after an application for a subdivision has been submitted. The section reads as follows:
943. If, after (a) an application for a subdivision of land located outside a municipality has been submitted to a district highway manager in a form satisfactory to that official, or (b) an application for the registran application for a subdivision of land within a municipality has been submitted to an approving 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.” Unfortunately, Section 943 does not specify a list of bylaws it applies to but states:
…a bylaw under this part that would otherwise be applicable to that subdivision…
Some developers have attempted to argue that the one-year grace period applies to any bylaws under Part 26 of the Local Government Act rather than limiting the application of the section to only those that would be applicable to the subdivision.
On April 17, 2008, the BC Supreme Court ruled in 694385 B.C. Ltd. v. Capital Regional District that the Capital Regional District was correct in limiting the application of the one-year grace period granted by Section 943 only to bylaws that affect the subdivision of land under the Land Title Act and not to other bylaws under Part 26 that regulate building and development.
The Petitioner in this case applied for a building permit to proceed with the construction of single-family houses on lots that were in a development permit area. The building inspector refused to issue the building permits until the Petitioner applied for and obtained the required development permit. The Petitioner brought the Court application seeking an Order that it was not required to obtain development permits because the Official Community Plan Bylaw imposing development permit requirements had been adopted less than one year before the application for the building permit and after it had submitted its application for a subdivision to the Approving Officer and was therefore exempted from the development permit requirements by Section 943 of the LGA.
The Court disagreed with the Petitioner’s argument and dismissed the Petition. The Court noted that the word “subdivision” is specifically defined by Section 872 to mean a subdivision as defined in the Land Title Act, meaning the division of land into two or more parcels. The Official Community Plan Bylaw in this case imposing the Development Permit requirements did not affect the subdivision of land under the Land Title Act but rather affected building and development on the land that once it was subdivided.
The question of what was the meaning of the words “a bylaw under this part that would otherwise be applicable to the subdivision” had before this decision never been definitively ruled upon by the Courts. In Schickendanz Properties B.C. Ltd. v. City of Fernie, the BC Court of Appeal in 2002 found that it did not have to answer the question in that particular case and left the issue to be decided in the future. Other cases either did not discuss the issue at all or simply made non-binding comments on the interpretation of the section.
This case answers for now the appropriate meaning to be given to the one year grace period in Section 943 of the Local Government Act. The Petitioner is currently appealing this decision to the Court of Appeal.
Guy McDannold
This article was published in Summer 2008 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.
