Case Comment: Bradshaw v. Victoria (City)

The recent case of Bradshaw v. Victoria (City), 2013 BCSC 1710 provides a discussion of sections 879 and 929 of the Local Government Act.

In Bradshaw, the petitioner wished to avoid the application of the City of Victoria’s new OCP (the new “OCP”) in respect of a development involving subdivision, the demolition of existing houses, and several building permit applications.

In February 2011, the petitioner applied to subdivide two lots into a total of five.  He applied for building permits to develop three of the lots in February 2012.  In July 2012, the City adopted a new OCP, which designated the entire City as an intensive residential – small lot development permit area. The petitioner’s lands had not previously been in a development permit area.

In January 2013, the subdivision was registered im the Land Title Office.  In March 2013 the City refused to approve the petitioner’s building permit applications because of the requirement for a development permit pursuant to the new OCP.

Section 943

The petitioner argued that section 943 of the LGA permitted his development to proceed without the application of the new OCP.  He argued that the building permits were an integral part of and necessarily incidental to the subdivision, which meant they should be grandfathered by section 943.

Section 943 of the LGA states:

943  If, after

(b)  an application for a subdivision of land within a municipality has been submitted to an [sic] designated municipal 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.

The Court found that the petitioner had not paid all of the applicable fees associated with the subdivision application prior to the adoption of the new OCP, and therefore he could not rely on section 943.

In the alternative, the Court found that the building permits were not necessarily incidental to the subdivision, and therefore these permits were not protected from the requirements of the new OCP by section 943.  At the time the petitioner applied for building permits in February 2012, his land had not yet been subdivided; the subdivision application was not approved until after the new OCP was adopted.  The building permits could not have been approved until subdivision occurred. The court found that because the subdivided lots did not yet exist at the time the new OCP came into force, section 943 could not apply to the “premature” building permit applications made in respect of these lots.

Further, the court held that the term “subdivision” as used in section 943 is not sufficiently broad to automatically include building permit applications in the 12 month grace period.

Section 879

The petitioner also argued that the City failed to consult him pursuant to section 879 of the LGA, and the result is that the inclusion of his land in the new development permit area under the OCP was unenforceable against him. Section 879 provides that during the development of an OCP, the local government must provide one or more opportunities it considers appropriate for persons, organizations and authorities it considers will be affected.

The court found that a local government has broad discretion with respect to the consultation required by section 879.  The section does not confer a right to individual notice or consultation because of an outstanding subdivision or building permit application while an OCP amendment is underway. The City’s general consultation was found to be reasonable in the circumstances.