Many municipalities struggle with encroachments on municipal highways, particularly in the circumstance where private property abuts on an unopened road allowance (such as a lane), which, through the installation of patios, barbeque pits and gardens, gets treated by the property owner as part of his or her private property. 

The recent decision of District of West Vancouver v. Liu, 2014 BCSC 1230 ("Liu") deals with this issue and, as such, it has significant implications for municipalities and property owners. 

In Liu, the District sought an order for the removal of a living room, retaining walls, decorative ponds, hedges and a fence (the "Encroachments") constructed on the District's highway adjacent to Ms. Liu's property. 

The legal basis for the order was that the Encroachments had been installed contrary to section 46(1) of the Community Charter and the District's traffic and parking bylaw. Ms. Liu brought her own petition for a declaration that she was entitled to an easement over the District's highway pursuant to section 36 of the Property Law Act. 

The Court found that as the District could not prove that permits had not been issued for the Encroachments, Ms. Liu was entitled to a declaration for an easement over the District's highway pursuant to section 36 of the Property Law Act.

In our view, the court in Liu failed to consider and address several key issues. In particular:

  1. The court did not undertake any analysis of whether the Encroachments contravened section 46(1) of the Community Charter, which provides that "[e]xcept as permitted by bylaw or another enactment, a person must not excavate in, cause a nuisance on, obstruct, foul or damage any part of a highway or other public place".
  2. The court did not acknowledge that municipalities hold title to their highways in trust for the benefit of the public and that the public's right to pass and repass over a highway without obstruction cannot be infringed by anyone except under express statutory power. In this regard, the Court did not undertake any analysis of whether section 36 of the Property Law Act, which does not expressly mention highways, grants the court express statutory power to infringe on the public's right to pass and repass over a municipal highway without obstruction by granting a private party like Ms. Liu an easement over a municipal highway.
  3. The court appears to have granted Ms. Liu an easement at least in part on the basis that the District did not object to the Encroachments. It is unclear how this is any different from an easement acquired by prescription, a right which is specifically prohibited by the Land Title Act and prohibited with respect to a municipality's interest in a highway by virtue of section 35(4) of the Community Charter.
  4. The court appears to have put the onus on the District to prove that the encroachments were not authorized. In our view, the onus should have been on Ms. Liu to prove that the encroachments were authorized. This is because section 35(11) of the Community Charter, which permits a municipal council to grant a licence of occupation, easement, or encroachment on a municipal highway, arguably places the onus on a property owner to prove that the encroachments are authorized by the appropriate municipal council.

The District has appealed the decision to the Court of Appeal. It will be interesting to see whether any of the issues discussed herein will be stated as grounds for appeal and, if so, whether such grounds will be acceded to by the Court of Appeal.

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