Court of Appeal Upholds LGA s.943 Ruling (Sort of!)

In the Summer 2008 issue, we reported on the B.C. Supreme Court Ruling in 694385 B.C. Ltd. v. Capital Regional District regarding the interpretation of s. 943 of the Local Government Act. In that case the court disagreed with the petitioner’s attempt to argue that the one-year grace period created by s. 943 applied to any bylaw under part 26 of the Local Government Act rather than limiting the application of the section to only those bylaws that would be applicable to the subdivision. We also advised you that the petitioner was appealing that decision to the Court of Appeal.

The Court of Appeal heard the petitioner’s appeal on November 7, 2008 and dismissed the appeal as being moot. There was no longer a live controversy between the parties since the petitioner proceeded to obtain the required development permits which it had previously refused to apply for at the time of the B.C. Supreme Court hearing, arguing that they were not required because of the one-year grace period under s. 943.

Accordingly, while this ruling cannot be taken to be an outright approval of the B.C. Supreme Court decision, the Court of Appeal made the following comments which tends to indicate that the Court of Appeal in the future will not likely agree with the decision appealed from:

The learned judge referred to much of the jurisprudence which has developed under s. 943 and its predecessors and concluded that the section does not give relief from all forms of new local government regulation that might affect a proposed subdivision.

As I take his reasons, he distinguished between new bylaws which regulate the creation of the new subdivision and which come within the 12 month protection set out in s. 943, and other types of regulation which might affect development on the lands, e.g. the need to obtain a building permit for a new home, but which do not affect the creation of the subdivision and the legal lots within it. In that case, the new bylaw may well apply, as in the case of the application of Bylaw 3353 to the issuance of building permits for homes pursuant to the petitioner’s building permit applications. …

If there was evidence that the petitioner was endeavoring to alter the land within the proposed new subdivision as part of the land development process which precedes an application for final subdivision approval, and if this work was taking place after adoption of the bylaw in question and before the expiration of the one-year grace period (28 March 2008) mandated by s. 943, there might be something to the petitioner’s “live issue” submission.

But those are not the facts. The only work which the petitioner was undertaking in this period, was work initiated in the development of the single-family dwellings which are the subject of the petitioner’s building permit applications.

Indeed, because this was a simple boundary adjustment subdivision affecting existing serviced lots, it does not appear that any physical work, truly incidental to the creation of the new subdivision, was required.

The entire thrust of the petitioner’s case in the Supreme Court – indeed the very grounds for the petition – centered only on the applications for the building permits and the applicability of the development permit requirements in that context.

Mr. McDannold, in pressing the mootness point, submits in his factum at para. 19:

19. The broad and sweeping argument which the Appellant now advances in this Court regarding the construction of works and services as part of a subdivision approval process is not supported by any factual or evidentiary foundation in this particular case.

I agree with this observation. In my view, it would be inappropriate to embark upon a consideration of s. 943 in the context that the petitioner now presses, in a vacuum – in the absence of a live issue between the parties – and, critically, in the absence of an evidentiary foundation to support the requested opinion of the Court on the true scope of s. 943 of the Local Government Act. In my view, the appeal is moot and I would dismiss it.

While local governments will still have to wait for a definitive ruling on s. 943 from the Court of Appeal this case at least gives a very strong indication that the Court of Appeal agrees with the interpretation used by most local governments in applying the one-year grace period.