Buck v. Regional District of Nanaimo (2 November, 2012), Victoria Registry No. 12-2289 (B.C.S.C.)
This case concerned a challenge to the validity of a conservation covenant registered pursuant to Section 219 of the Land Title Act. In 2005, a land developer subdivided a 178-hectare parcel of land to create a 72-lot subdivision in the area of Jingle Pot Road in Nanaimo B.C. At the time of subdivision, the “Shady Mile” covenant was registered on two lots within the subdivision to preserve a 30-metre wide vegetation retention buffer along the adjacent public roadway. Lot 14 was one of the properties subject to the covenant.
The Petitioner bought Lot 14 in 2006 with the covenant already registered on title. Shortly after, the Petitioner sought to subdivide the 20-acre property, but first required the approval of the Agricultural Land Commission (ALC) because the property was located in the Agricultural Land Reserve. The Petitioner made a number of applications to the ALC for subdivision approval of the land, but was denied. The Petitioner then claimed that in the absence of subdivision, his only option was to farm the land, however, he claimed that the covenant prevented him from doing so.
Section 35(2) of the Property Law Act allows the court to cancel a covenant if it is invalid or unenforceable. The Petitioner challenged the covenant on a number of grounds, but primarily argued that the covenant was invalid for two reasons: (1) it was struck as a requirement of subdivision by the provincial Approving Officer in 2005 for being contrary to the public interest; and (2) the covenant was never approved by the ALC prior to registration. The latter argument was based on Section 22(2) of the Agricultural Land Commission Act (ALCA) which, at the time, provided that a covenant that prohibits the use of agricultural land for farm use has no effect unless it is approved by the ALC.
On the first point, Madam Justice Russell accepted the evidence of the Regional District of Nanaimo (RDN), that at the time of subdivision, the covenant was not made a condition of subdivision and was not before the Approving Officer for review. Accordingly, the covenant was not struck by the Approving Officer prior to registration.
On the second argument, Madam Justice Russell deferred to the opinion of the ALC, that the covenant did not require its approval. While the ALC was not aware of the covenant at the time of registration, it had since considered the covenant and found that it did not prohibit farm use of the property, as the covenant area could still be used as a loafing or shade area for animals. This finding is consistent with the legislative scheme as it was at the time, however, it must be noted that recent amendments to Section 22(2) of the ALCA require approval by the ALC for covenants that prohibit or restrict agriculture. If this covenant were registered under the current version of the legislation, it would have required ALC approval.
The court dismissed the petition and awarded costs to the RDN. The covenant was affirmed, but unfortunately significant damage had already been done to the covenant area by the Petitioner, who had logged 60 to 80 percent of it before commencing the application. It is noteworthy, however, that Madam Justice Russell commented on the Petitioner’s conduct and held that even if she had found that the covenant was invalid, she would have denied the application to cancel the covenant, on the basis that the Petitioner had disentitled himself to relief from the court by logging in breach of the covenant. This decision affirms that when granting a discretionary remedy the court retains the right to examine the relative merits of the parties before the court, and can refuse a remedy when a party lacks “clean hands.” While it does not bring the trees back, confirmation of the covenant’s validity affirms the basis upon which the RDN can pursue remediation of the covenant area.