Case Law Update – Bradshaw v. Victoria (City)

In an October 2013 post, we reported on the Supreme Court of British Columbia decision in Bradshaw v. Victoria (City). In reasons for judgment released January 7, 2015, the Court of Appeal dismissed Mr. Bradshaw’s appeal and for the most part approved the reasons of the chambers judge. For the facts of the case, please refer to our earlier post.

Perhaps not surprisingly, the Court of Appeal found that the City’s consultation respecting the proposed Official Community Plan was reasonable. While the OCP’s development permit requirements were expanded late in the consultation process, and while there was less opportunity for consultation about the amended provisions than in relation to the OCP as a whole, the Court of Appeal concluded that this was part and parcel of the consultation process, since it is to be expected that proposed legislation will change as a result of the consultation process.

The Court of Appeal also agreed with the chambers judge that section 929 of the Local Government Act did not apply in the circumstances of this case. Section 929 allows a municipality to withhold a building permit for a brief period, notwithstanding the applicant’s prima facie right to the permit, while the municipality adopts pending legislation. The Court of Appeal noted that in this case, a building permit could not have been issued prior to the adoption of the OCP because the subdivision plan had not yet been registered, and the lots to which the building permits would attach did not yet exist.

The most significant aspect of the case may lie in the Court of Appeal’s finding that section 943 of the Local Government Act did not exempt construction on the petitioner’s land from the City’s new development permit requirement. The Court of Appeal reasoned that the definition of “subdivision” under Part 26 of the Local Government Act makes it clear that section 943 is concerned only with the division of land into parcels, and not with the subsequent development of those parcels. The Court of Appeal rejected the petitioner’s argument that the planned development of his land was integral to the subdivision process (that argument had been based upon the fact that prior to subdivision the petitioner was required to enter into a works and services agreement for the services that were needed for development of the land), and that he should be able to continue with his development plans without having to comply with the new bylaw requirements. The Court of Appeal noted that no building permit was required for the construction of those services, and that the servicing was not affected by the new development permit requirements. Nothing in the new OCP limited the petitioner’s ability to subdivide his lands. Even if section 943 could be interpreted as applying to bylaws that indirectly affect the ability to subdivide, it was not engaged in this case.

Although this point did not affect the result, the Court of Appeal did disagree with the conclusion of the chambers judge that the appellant had not paid the “applicable subdivision fee”. The Court of Appeal referred to Fernco Development Ltd. v. Nanaimo (City), which had previously held that the “applicable subdivision fee” refers only to the fee payable on the submission of the application for preliminary layout approval. The Court of Appeal found the interpretation of the chambers judge to be unworkable, given that the total the fees ultimately payable to the municipality will not be known when a PLA application is submitted.

This decision follows on the Court of Appeal’s earlier ruling in 694285 B.C. Ltd. v. Capital Regional District (see our June 3, 2011 post), and provides some welcome clarification as to the limits of the protection section 943 provides to property developers in the post-subdivision development context.