Park Dedication or Cash in Lieu – Whose choice is it?

The Supreme Court of British Columbia has recently ruled that there is a relatively low threshold for determining whether a local government has the choice, under section 941(2) of the Local Government Act, of requiring dedication of park land, or payment of cash in lieu, at the time of subdivision. In Basin Construction Ltd. v. Columbia Shuswap Regional District, a decision released February 8, 2011, the court suggested that the property owner will have the option of choosing dedication of land or payment of money only where the local government has failed to consider parks in its official community plan.

Section 941(1) provides that, in the first instance, it is the owner’s choice to provide land for park, or to pay cash in lieu. That is subject to section 941(2), which states:

Despite subsection (1), if an official community plan contains policies and designations respecting the location and type of future parks, the local government may determine whether the owner must provide land under subsection 1(a) or money under subsection 1(b).

In Basin Construction, the property owner argued that the Regional District’s official community plan was too vague and general in its reference to parks. Further, it did not comply with the minimum content required under section 877(1)(f) of the Local Government Act. Section 877(1)(f), in particular, requires that the OCP include statements and map designations respecting the approximate location and type of present and proposed public facilities, including parks.

The OCP in question included broad statements of intent concerning the development of a parks plan, the development of a strategy for the collection of park land or cash at the time of subdivision, and the continuation of existing cost sharing arrangements for parks and recreation services. The maps that were incorporated into the OCP showed the location of existing parks, but not any future parks. The OCP suggested that the entirety of the electoral area covered by the OCP had park potential, and went on to list various policies that would guide the Regional District when considering a potential park land dedication.

The Regional District also provided evidence to the court that the area covered by the OCP was large and widely dispersed, that the Regional District was working towards a more specific parks plan, and that the Regional District would prefer a smaller number of large parks to a greater number of small parks, taking into account community needs and maintenance costs.

The court held that the statements in the OCP were sufficient to leave the decision (land or cash) to the Regional District. The court concluded:

The existence of an OCP addressing parks provides for an orderly and considered approach for the benefit of the entire area. That is in keeping with the objectives set out in s. 849 of the Act. To place a narrow interpretation on the OCP would defeat the intention of the legislation.

In this case, the OCP is broad and general. It does not define the exact location of future parks. The OCP considers the entire electoral area as having future park potential. While it would have been helpful to a landowner to have more specifics, those will have to wait for further park plans. What has been set out is sufficient under these circumstances to comply with the requirements of s. 877.

The decision is a welcome recognition that park planning requires a significant degree of forethought, involving considerations that go well beyond the interests of a single property owner, and further that the OCP is a living document that must by nature allow a degree of flexibility as the needs of the community change. The decision also suggests that a local government may reserve to itself the choice of land or cash by laying the groundwork in the OCP for the implementation of a more comprehensive park planning process. However, as the decision notes, the more specific the OCP is, the greater certainty for the property owner, and the greater likelihood the OCP will be found to satisfy the requirements of section 877 and section 941(2).