Canada: Variances and Similarities in The British Columbia Framework

Article by Greg Umbach and Tanya Sadlo, ©2006 Blake, Cassels & Graydon LLP

British Columbia has a Torrens land registration system which ensures certainty of title through the principle of "indefeasible title" based on the land title registry. Instruments are endorsed and recorded on title to a property. A certificate of indefeasible title is issued which can be relied upon as the actual state of the title, absent fraud or notice of unregistered interests. Unlike in Ontario, there is usually no need to go through any steps relating to the certification of title.

Provincial Policy. B.C. does not have a Planning Act. Most restrictions and controls on development are established by local governments under the Community Charter and the Local Government Act, which contains extensive land use regulations, zoning powers and subdivision powers. The Community Charter came into force on January 1, 2004 and while it is anticipated that the land use provisions of the Local Government Act will be moved into the Community Charter in some form, this has not yet occurred.

The legislative regime enables local governments to adopt regional growth strategies and official community plans for the establishment of a framework for land use regulations and zoning by-laws. Local governments are not required to adopt either an official community plan or a zoning by-law. If no such by-laws have been enacted by a local government, land use is governed by generally applicable provincial laws, the common law and any restrictive covenants and building schemes that may be registered on title to properties.

While the B.C. Legislature has largely delegated its jurisdiction over land use and development control to local governments, the provincial government continues to control a number of areas including agricultural land, forest land, riparian land, heritage sites and highways. Additionally, a number of provisions in various statutes permit the provincial government to be involved in local government planning and zoning processes.

Regional Growth Strategies. A distinctive aspect of development in B.C. is that regional district boards have the powers, under the Local Government Act, to adopt "regional growth strategies" which provide a policy context for the community plans of regional districts and their member municipalities. The provincial government has set forth a number of substantive goals that regional growth strategies should work towards which include, among other things, the avoidance of urban sprawl, protection of environmentally sensitive areas, reduction of pollution, protection of water and promotion of energy conservation.

Following the adoption of a regional growth strategy, all by-laws adopted and works and services undertaken by a regional district board must be consistent with the strategy. Additionally, local governments must amend their official community plans within two years to include a "regional context statement" that sets out the relationship between the plan and the regional growth strategy and how the plan is to be made consistent with the growth strategy in the future.

Official Community Plans. Official community plans in B.C. are similar to those in Ontario. An official community plan, while not mandatory, is a general statement of the broad objectives and policies of a municipality regarding the form and character of existing and proposed land use and servicing requirements contained in the area covered by the plan. Additionally, an official community plan may create a policy context that guides development rights within the affected area.

Every community plan that is adopted must conform to the content requirements set out in the Local Government Act and, like in Ontario, must be adopted with broad consultation with the public, adjacent local governments, first nations, school boards, improvement districts and other governmental agencies. There are a number of mandatory requirements for official community plans which include addressing the residential requirements to meet housing needs over the following five years, the location, amount and type of existing and proposed commercial, industrial, institutional, agricultural, recreational and public utility land uses, the location of proposed public facilities such as parks, schools and waste disposal sites, the location of major road, sewer and water systems and policies for affordable housing.

As optional content for an official community plan, areas may be designated in which no development may occur without the owner having applied for and obtained a development permit. The rationale for development permit areas is to protect the natural environment, protect farming and heritage sites, revitalize an area or to control the character of development in a certain area. The requirement for development permits in certain areas has a significant impact on development in such areas as it also enables the local government to impose conditions, based on guidelines set out in the official community plan, that can significantly affect the size and character of the development and its cost.

All by-laws enacted or works undertaken by a council or regional board after an official community plan is adopted must be consistent with the plan. Hence, where a local government wishes to amend a zoning by-law and the amendment is not consistent with the official community plan, the local government will have to amend the official community plan at the same time that it amends the zoning by-law.

Zoning. As in Ontario, the right to use land in B.C. is governed by zoning by-laws. Zoning bylaws operate in substantially the same manner as in Ontario and all local governments in B.C. will accept "rezoning" applications, which are really requests for zoning amendment bylaws and are subject to all the same procedures as the original zoning by-law.

Generally, a public hearing is held when a zoning by-law is being enacted. However, unlike Ontario, a local government may waive a public hearing in certain cases where an official community plan has been adopted and other requirements have been complied with.

A developer may also obtain a development variance permit from a local government’s board of variance. The board of variance is authorized to order minor variances of the provisions of a zoning by-law in cases where strict enforcement of those requirements would result in undue hardship. Decisions of the board of variance are final. However, a decision may be quashed by the B.C. Supreme Court where the board has acted outside its defined authority.

Land Use Contracts. In contrast to Ontario, the development of certain parcels of land in B.C. is regulated exclusively by land use contracts entered into by the owner and the local government, which were experimented with between 1972 and 1977 as a form of "contract zoning". Land Use Contracts enabled an owner and the local government to set out in a single document the requirements of the local government for the development of particular parcels of land and the obligations of the developer for services, building design, etc. Although the legislation authorizing land use contracts has been repealed, many were registered in the land titles offices during this time period and continue to be in force.

Land use contracts may only be amended by a by-law of the local government with the agreement of the owner of any parcel of land covered by the amendment, by a development variance permit or development permit where the amendment does not affect the permitted use or density of any parcel, or in the manner specified in the land use contract. Land use contracts may be discharged by by-law with the agreement of the owner. The B.C. Supreme Court also has jurisdiction to cancel a land use contract for certain specified reasons set out in the Property Law Act.

Subdivision/Severance of Land. Despite B.C.’s long history with the Torrens system, the subdivision of land was not initially viewed as a matter of public interest and, accordingly, early land registration statutes did not require subdivisions be approved by governmental authority. In 1906, the legislature intervened with the Land Registry Act which provided for the first municipal controls affecting subdivisions. Presently in B.C., subdivisions must comply with Part 7 of the Land Title Act. Subdivision (which includes land assembly) is granted by the approving officer of a municipality and, in rural areas, has historically been subject to approval by an approving officer employed by the Minister of Transportation.

The Land Title Act sets out matters to be considered by the approving officer on an application for subdivision approval. Two main considerations are compliance with an official community plan regarding land use designation, flood plain and protected watercourses and, secondly, compliance with the subdivision and zoning by-laws which set the standards for lot size, shape, density, services and access. Rezoning, if required, must be completed prior to subdivision approval. A developer must show that the proposed development will have adequate services for sanitary sewage and storm water disposal, water, roads, sidewalks, street lights, etc., all at the developer’s cost. Other considerations when reviewing a subdivision include, but are not limited to, provision of adequate buildable area on each lot, adequate roads, lanes and emergency access, accommodation of future road plans, adequate parks, open spaces and walkways, preservation of natural features and views, compatibility of subdivision pattern with the neighbourhood and the protection of future subdivision potential. The approving officer ensures that all appropriate governmental agencies, such as Fisheries and Oceans or the Ministry of Transportation, as well as utility entities, are notified of the proposed subdivision and that adequate professional reports are obtained for any areas of concern. The approving officer exercises a great deal of discretion and while the decision can be challenged, the Courts generally defer to the approving officer.

Since by-laws are subject to change at any time, the Local Government Act essentially freezes by-law amendments relating to a subdivision for a period of 12 months following the submission of an application for preliminary approval of a subdivision plan.

Strata Development Approval. In B.C., approvals for strata properties are governed by the Strata Property Act. Approval for strata plans in B.C. differs from regular subdivisions in that as a general rule, building strata plans are not subject to an approving officer’s approval unless there is a proposal to convert a previously occupied building to strata lots. "New-condominiums", consisting of leases of portions of a building for terms longer than 20 years do require approval. Two types of strata plans require approval from the approving officer: (i) a bare land strata plan and (ii) a phased strata plan. Bare land strata plans are often attractive to developers because although zoning by-law requirements for minimum parcel areas and frontages apply, parcel size "averaging" in order to create some lots of less than the minimum area prescribed by a zoning by-law can be advantageous. Furthermore, internal private access roads may not need to be built to municipal standards.

Development Cost Charges. In B.C., the authority to impose development cost charges by by-law is created by the Local Government Act. Municipalities and regional districts in B.C. levy development cost charges as a condition of subdivision approval, building permit issuance and zoning amendments in an effort to offset the servicing costs created outside the boundaries of new developments. In addition to actual payments, many municipalities require that offsite and on-site works be provided. It is possible for more than one local government to levy development cost charges within a municipality. A regional district board may impose development cost charges within municipalities when the board is responsible for providing a work, service or park land. Improvement districts have authority to impose charges for capital expenditures. In some circumstances, sewerage and drainage districts have the authority to impose additional development cost charges for the construction of regional sewage collection and disposal facilities.

When enacting development cost charge by-laws, local governments are required to make public the process by which the charges are established. Certain developments are exempt from development cost charges, such as residential buildings containing less than four self-contained dwelling units, developments that do not "impose new capital cost burdens" and developments that are not served, directly or indirectly, by the works or park land acquisition funded by the development cost charge. To avoid complex calculations used to collect fees from future developers in the same area, most municipalities require a waiver of developer’s rights to collect any "late-comer" charges from adjacent lands.

Site Plan Approval. Unlike in Ontario, B.C. does not have a Planning Act and therefore site plan approval is not a separate power of a municipality. Approvals for siting in a development occur at the subdivision stage or at permitting.

Development Permits/Development Variance Permits. In B.C., when an official community plan designates an area as a development permit area, development permits are necessary. Development permits allow a local government to both vary or supplement zoning bylaw provisions with site-specific development controls. The development permit usually imposes conditions on the site’s development in addition to the regulations found in the applicable zoning by-law. There are limits on the conditions that can be imposed in development permits depending on the purpose of the development permit area designation. A local government is required to pass a development approval procedures by-law that sets out how applications for development permits are to be made and processed. Notice to others of the application is not required but often local governments provide for a public hearing for such permits. Often, security must be posted by the developer as a condition of the development permit to ensure that the lands are developed in accordance with the permit.

The Local Government Act also enables local governments to issue development variance permits which vary provisions of a zoning or subdivision by-law, except for those regarding the use or density of land. A development variance permit differs from a development permit in that a development variance permit is voluntary, it may only vary certain by-laws, it may be issued for any land, not just land within an area designated in the official community plan (although it is unlikely it would be issued for land outside a designated area) and the guidelines and objectives required by the Local Government Act for a development permit are not required for development variance permits.

Building Permits. In B.C., like in Ontario, the final construction of buildings is dependent upon the issuance of a building permit. The Local Government Act delegates two different, yet unrelated, legislative powers to regulate construction. As in Ontario, in B.C. there is a Building Code established by the Provincial Minister of Community, Aboriginal and Women’s Services that governs the construction and demolition of buildings.

The other source of authority in B.C. are building by-laws passed by local governments pursuant to the Local Government Act and Community Charter. Furthermore, in B.C., certain matters such as emergency exits and smoke alarms fall within the scope of statutes such as the Fire Services Act.

The provisions of the Community Charter and Local Government Act allow a regional district, by by-law, to require a building permit before construction may begin but not all local governments adopt such by-laws. However, even when a building by-law has not been adopted, the Building Code and other applicable provincial statutes still apply. The building by-law itself sets out what triggers the need for a building permit. Unlike Ontario, conditions may be attached to building permits, which include obtaining engineering reports and restricting the type, size and location of improvements on the land.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.