2008 BCCA 205 618061 B.C. Ltd. v. The Village of Anmore

COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:	*618061 B.C. Ltd. v. The Village of Anmore,*
	2008 BCCA 205

Date: 20080507

Docket: CA035352

Between:

618061 B.C. Ltd.

Appellant

(Petitioner)

And

The Village of Anmore and Anmore Woods Ltd.

Respondents

(Respondents)

Before:	The Honourable Madam Justice Newbury
	The Honourable Madam Justice Saunders
	The Honourable Mr. Justice Lowry

Oral Reasons for Judgment

J. Baker N. Baker	Counsel for the Appellant
C.S. Murdy	Counsel for the Respondent, The Village of Anmore
A. D. Gay J. Tweedale	Counsel for the Respondent, Anmore Woods Ltd.
Place and Date of Hearing:	Vancouver, British Columbia
	1 & 2 May 2008
Place and Date of Judgment:	Vancouver, British Columbia
7 May 2008

[1] SAUNDERS, J.A.: The Village of Anmore overlooks the eastern end of Burrard Inlet. Two companies with adjacent land in the Village aspire to subdivide and develop their property. Those desires give rise to this case of first impression concerning latecomer payments under the Local Government Act, R.S.B.C. 1996, c. 323.

[2] 618061 B.C. Ltd. appeals from the order of Mr. Justice Smart dated August 23, 2007, dismissing its petition under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, for a declaration that an agreement respecting latecomer payments made between the Village and Anmore Woods Ltd. is ultra vires,, and for a declaration that the Village is required to impose latecomer fees on Anmore Woods and other landowners benefiting from “excess and extended services” provided by the Petitioner pursuant to section 939 of the Act. The reasons for judgment are found at 2007 BCSC 1344.

[3] For convenience I shall refer to the appellant as the Numbered Company.

[4] The issue arises from the relationship of two parcels of land in Anmore under development. The Numbered Company owns land that may be accessed from Bedwell Bay Road. Anmore Woods owns land directly east of that property. That land does not have access to an established road as its eastern boundary fronts on a park to which the Village will allow only emergency access.

[5] Both companies propose to develop their property. The appellant received permission by way of what is called a Preliminary Layout Review to subdivide its property. As a condition of approving the subdivision, the approving officer required provision of a road to the lands beyond, and the Village required a ‘main spine road’, known as Crystal Creek Drive, through the Numbered Company’s property to provide access to lots within the development and to the lands beyond, and required it to dedicate a full municipal road allowance for Crystal Creek Drive to the Village through to the south-east corner. The subdivision was allowed to proceed in phases, and in conjunction with that, so too construction of the road. The lands beyond are those owned by Anmore Woods.

[6] The Numbered Company has dedicated the road allowance to the Village and has proceeded to develop Phase I of the subdivision. During that development the portion of Crystal Creek Drive that was necessary for Phase I was constructed, but not the remainder, the phasing proceeding as allowed by the Preliminary Layout Review.

[7] Anmore Woods likewise desires to subdivide its property. Because there is no dedicated fully public road on the eastern boundary giving access, its land is, for practical purposes, landlocked. The Village gave permission for a subdivision development, anticipating that access to the subdivision be gained by Crystal Creek Drive. This will not work, however, so long as Crystal Creek Drive is incomplete. Thus the Preliminary Layout Review for Anmore Woods’ subdivision said as to access and the issue of completion of Crystal Creek Drive, using the term latecomer agreement to refer to an agreement under s. 939 concerning latecomer payments:

The Village encourages you to discuss this matter with the developers of the Crystal Creek subdivision who would benefit from the construction of these road works. Although not desired by the Village, the Village would consider entering into a latecomer agreement should you not be able to reach a cost sharing agreement with the neighbouring property owner.

[8] Anmore Woods and the Numbered Company did not reach agreement although the Numbered Company offered to contribute a portion of the costs of constructing that portion of Crystal Creek Drive.

[9] Some time later, in April 2007, the Village entered into a latecomer agreement (using the same term as do the parties for the agreement respecting latecomer payments) with Anmore Woods authorizing Anmore Woods to finish construction of Crystal Creek Drive on the dedicated road allowance, through the undeveloped portion of the property of the Numbered Company. The Village determined that 100% of the cost of that construction should be assessed to the Numbered Company if and when it developed Phase II, provided that development of Phase II was within 15 years.

[10] The Numbered Company brought the petition for judicial review. It said before the learned chambers judge, and repeats here, that the Village lacked jurisdiction to enter into the latecomer agreement in these circumstances, and that the Village was unreasonable when, in the exercise of its discretion, it determined that 100% of the cost of the road development should be assessed against it. The Numbered Company expresses concern that the cost of the road submitted by Anmore Woods and reflected in the latecomer agreement is greater than the cost, were it to build the road. The Numbered Company says that in any event the road will benefit Anmore Woods, and is an “excess and extended service” for which Anmore Woods should be required to contribute, thus relieving the Numbered Company of at least a portion of the cost of the road that is reflected in the agreement between the Village and Anmore Woods.

[11] The judge held against the Numbered Company. He found that the Village had jurisdiction to enter into the latecomer agreement with Anmore Woods, and that its exercise of discretion in allocating 100% of the cost to the Numbered Company was not one with which he would interfere.

[12] The standard of review on the two issues is different. On the first issue, the jurisdiction of the Village to enter into the latecomer agreement, the question is whether the conclusion that the Village has jurisdiction is correct. On the issue of the Village’s exercise of discretion, the question is whether the exercise of discretion is reasonable: Dunsmuir v. New Brunswick, 2008 SCC 9.

[13] The statutory scheme in issue allows a local government to require a developer to provide services, including roads, at its expense and, in certain defined circumstances, provides an avenue for recovery by a developer of some of its cost of roads or services from other landowners who benefit later from construction of those roads or services. The statutory provisions in issue do not lend themselves to easy reading. We heard much able argument from counsel for the appellant and for the respondents on the effect of the language before us, and we were given a lesson in the history of these provisions. The sections in issue are ss. 938 and 939 of the Local Government Act but the discussion included, as well, ss. 933 and 937.1, and s. 75 of the Land Title Act, R.S.B.C. 1996, c. 250.

[14] Omitting as best I can for the purposes of this discussion subsections extraneous to this case, s. 938 of the Act, entitled “Subdivision servicing requirements” provides:

938(1) A local government may, by bylaw, regulate and require the provision of works and services in respect of the subdivision of land, and for that purpose may, by bylaw, do one or more of the following:

(a) regulate and prescribe minimum standards for the dimensions, locations, alignment and gradient of highways in connection with subdivision of land;

(b) require that, within a subdivision, highways, sidewalks, boulevards, boulevard crossings, transit bays, street lighting or underground wiring be provided, and be located and constructed in accordance with the standards established by the bylaw;

(c) require that, within a subdivision, a water distribution system, a fire hydrant system, a sewage collection system, a sewage disposal system, a drainage collection system or a drainage disposal system be provided, located and constructed in accordance with the standards established in the bylaw.

. . .

938(6) As a condition of

(a) the approval of a subdivision, or

(b) the issue of a building permit,

a local government may require that the owner of the land provide works and services, in accordance with the standards established in a bylaw under this section, on that portion of a highway immediately adjacent to the site being subdivided or developed, up to the centre line of the highway.

938(7) As a condition of the issue of a building permit, a local government may require that the owner of the land provide, on the site being developed, works and services in accordance with the standards established in a bylaw under this section.

938(8) Requirements under subsections (6) and (7)

(a) may only be made insofar as they are directly attributable to the subdivision or development, and

(b) must not include specific services that are included in the calculations used to determine the amount of a development cost charge, unless the owner agrees to provide the services.

938(9) If the owner agrees to provide the services referred to in subsection (8)(b), the calculation of the development cost charge is subject to section 933(8).

[15] Section 939, entitled “Excess or extended services and latecomer payments” provides:

939(1) For the purposes of this section, "excess or extended services" means

(a) a portion of a highway system that will provide access to land other than the land being subdivided or developed, and

(b) a portion of a water, sewage or drainage system that will serve land other than the land being subdivided or developed.

939(2) A local government may require that the owner of land that is to be subdivided or developed provide excess or extended services.

939(3) If an owner, in accordance with a bylaw under section 938, provides a highway or water, sewage or drainage facilities that serve land other than the land being subdivided or developed, this section applies.

939(4) If a local government makes a requirement under subsection (2), the cost of providing the excess or extended services must be paid for by

(a) the municipality or regional district, or

(b) if the local government considers its costs to provide all or part of these services to be excessive, by the owner of the land being subdivided or developed.

939(5) If the owner is required under subsection (4)(b) to pay all or part of the costs of excess or extended services, the municipality or regional district must

(a) determine the proportion of the cost of providing the highway or water, sewage or drainage facilities that it considers constitutes the excess or extended service,

(b) determine which part of the excess or extended service that it considers will benefit each of the parcels of land that will be served by the excess or extended service, and

(c) impose, as a condition of an owner connecting to or using the excess or extended service, a charge related to the benefit determined under paragraph (b).

. . .

939(8) A charge payable under subsection (5)(c) must include interest calculated annually at a rate established by bylaw, payable for the period beginning when the excess or extended services were completed, up to the date that the connection is made or the use begins.

939(9) Charges payable for latecomer connections or use under subsection (5)(c) must be collected during the period beginning when the excess or extended services are completed, up to a date to be agreed on by the owner and the local government and, failing agreement, to a date determined under the Commercial Arbitration Act, but no charges are payable beyond 15 years from the date the service is completed.

[16] On the issue of the Village’s jurisdiction to enter into the latecomer agreement with Anmore Woods requiring the completion of Crystal Creek Drive, the Numbered Company says that s. 939 only permits a latecomer agreement to an owner who is, in the words of s. 939(3), providing a highway “in accordance with a bylaw under section 938”. Section 939, says the Numbered Company, only applies to construction of a highway within the subdivision that is the beneficiary of the latecomer agreement, or on the portion of a highway immediately adjacent to the site being subdivide. That is, it says that s. 939 does not apply to the situation here where Anmore Woods is required to build a highway, not on its own lands or on lands adjacent to its lands, but on lands that are part of the subdivision of the Numbered Company.

[17] In support of its submission that the Village was not empowered to require construction of the balance of Crystal Creek Drive under the mechanism of s. 939, the Numbered Company notes that s. 75 of the Land Title Act provides for sufficient highways in terms that distinguish between highways to new parcels, and highways through the land subdivided:

75(1) A subdivision must comply with the following, and all other, requirements in this Part:

(a) to the extent of the owner’s control, there must be a sufficient highway to provide necessary and reasonable access

(i) to all new parcels, and

(ii) through the land subdivided to land lying beyond or around the subdivided land;

[18] The Numbered Company points to two other mechanisms that would allow development of Anmore Woods’ subdivision to proceed, a development cost charge provided in s. 933, and a development works agreement provided in s. 937.1, and says that the Village should have proceeded by one of those avenues in these circumstances. Those sections provide:

933(1) A local government may, by bylaw, for the purpose described in subsection (2) or (2.1), impose development cost charges on every person who obtains

(a) approval of a subdivision, or

(b) a building permit authorizing the construction, alteration or extension of a building or structure.

933(2) Development cost charges may be imposed under subsection (1) for the purpose of providing funds to assist the local government to pay the capital costs of

(a) providing, constructing, altering or expanding sewage, water, drainage and highway facilities, other than off-street parking facilities, and

(b) providing and improving park land to service, directly or indirectly, the development for which the charge is being imposed.

933(3) A development cost charge is not payable if

(a) the development does not impose new capital cost burdens on the municipality, regional district or greater board, or

(b) a development cost charge has previously been paid for the same development unless, as a result of further development, new capital cost burdens will be imposed on the municipality, regional district or greater board.

933(5) A development cost charge that is payable under a bylaw under this section must be paid at the time of the approval of the subdivision or the issue of the building permit.

. . .

933(7) Despite a bylaw under subsection (1), if

(a) a local government has imposed a fee or charge or made a requirement under

(i) section 363 [regional district fees and charges],

(ii) section 194 [municipal fees] of the Community Charter,

(iii) Division 11 [Subdivision and Development Requirements] of this Part, or

(iv) section 729 of the Municipal Act, R.S.B.C. 1979, c. 290, before the repeal of that section became effective,

for park land or for specific services outside the boundaries of land being subdivided or developed, and

(b) the park land or services referred to in paragraph (a) are included in the calculations used to determine the amount of a development cost charge,

the amount of the fee or charge imposed or the value of the requirements made, as referred to in paragraph (a), must be deducted from those classes of development cost charges that are applicable to the park land or the types of services for which the fee or charge was imposed or the requirement was made.

933(8) Despite a bylaw under subsection (1),

(a) if an owner has, with the approval of the local government, provided or paid the cost of providing a specific service, outside the boundaries of land being subdivided or developed, that is included in the calculations used to determine the amount of a development cost charge, the cost of the service must be deduced from the class of development cost charge that is applicable to the work or service, and

(b) if a work required to be provided under an agreement under section 937.1(2) is included in the calculations used to determine the amount of a development cost charge, the following amounts are to be deducted from the development cost charge that would otherwise be payable for that class of work:

(i) for a development cost charge payable by a developer for a work provided by the developer under the agreement, the amount calculated as

(A) the cost of the work

Less

(B) the amount to be paid by the municipality to the developer under section 937.1(3)(b), other than an amount that is an interest portion under section 937.1(6)(c);

(ii) for a development cost charge payable by a person other than the developer referred to in subparagraph (i), the amount calculated as

(A) the amount charged under section 937.1(2)(b) to the owner of the property

Less

(B) any interest portion of that charge under section 937.1(6)(c).

937.1 (1) In this section:

"development works agreement" means an agreement under subsection (2);

"works" means

(a) providing, constructing, altering or expanding sewage, water, drainage and highway facilities, other than off-street parking facilities, and

(b) improving park land.

937.1(2) Subject to this section, a council may, by bylaw,

(a) enter into an agreement with a developer for the provision of works by the municipality or by the developer,

(b) provide a formula for imposing all or part of the cost of the works on the owners of real property in the area subject to the agreement,

(d) provide that, until the debt is paid, the council, an approving officer, a building inspector or other municipal authority is not obliged to

(i) approve a subdivision plan, strata plan, building permit, development permit, development variance permit or zoning bylaw necessary for the development of real property of a debtor in the area subject to the agreement, or

(ii) do any other thing necessary for the development of real property of a debtor in the area subject to the agreement, and

(e) provide for borrowing the amount required for the municipality to provide a work under the agreement.

937.1(3) Without limiting the matters that may be dealt with in a development works agreement, the agreement

(a) must specify

(i) the area that is the subject of the agreement,

(ii) the works that are to be provided under the agreement,

(iii) for each work, which party is to provide it, and

(iv) for each work, when it is to be provided,

(b) if the developer is to provide works under the agreement, must provide for the payment to the developer of charges collected under this section by the municipality from owners within the area subject to the agreement, and

937.1(4) A bylaw under subsection (2) must not be adopted unless at least one of the following requirements has been met:

(a) the bylaw has received the assent of the electors in the area that is subject to the development works agreement;

(b) no sufficient petition against the development works agreement has been presented to council after it has given notice of intention to adopt the bylaw;

937.1(5) Sections 212 to 214 of the Community Charter apply for the purposes of subsection (4) (b) and (c), except that information required in the notice of intention or on each page of the petition for the agreement is the following:

(a) an identification of the proposed development works agreement, including the information referred to in subsection (3) (a);

(b) a statement of the proposed formula as referred to in subsection (2) (b);

(c) an identification of when the costs imposed under the formula are proposed to become a debt payable to the municipality as referred to in subsection (2) (c);

(d) an identification of any proposed authority referred to in subsection (2) (d);

(e) a statement of any proposed borrowing referred to in subsection (2) (e).

937.1(6) A formula under subsection (2) (b)

(a) may be based on the actual cost or on the estimate of the cost as established by the development works agreement,

(b) must provide for the distribution of all or part of the cost among the owners of real property in the area subject to the agreement, and

937.1(7) The time limit specified under subsection (2) (c) must not be later than the time at which a building permit is issued for the property.

937.1(8) At the time specified under subsection (2) (c), the charge imposed under the formula on an owner constitutes a debt of the owner to the municipality.

937.1(9) The failure of the municipality to collect the debt at the time of an approval or the doing of any other thing referred to in subsection (2) (d) does not affect the collectibility of the debt.

937.1(10) A bylaw that provides for borrowing under subsection (2) (e) is deemed to be a loan authorization bylaw, except that approval of the electors as referred to in section 180 [elector approval required for some loan authorization bylaws] of the Community Charter is not required.

[19] Anmore Woods and the Village contend that s. 939(2) is the key provision, with the result that the Village had the power under the Act to require Anmore Woods to complete construction of Crystal Creek Drive to the boundary of the Anmore Woods lands and to enter into the latecomer agreement as it did, on the basis that the completion of Crystal Creek Drive was an “excess or extended service” within the meaning of s. 939(1) and triggering s. 939(5) in favour of Anmore Woods.

[20] I start with the observation that the latecomer agreement does not involve a trespass by Anmore Woods upon the lands of the Numbered Company because the dedication for Crystal Creek Drive has occurred. Thus, provided that Anmore Woods does not stray off the dedicated area, there is no issue as to interference with the lands of the Numbered Company.

[21] Notwithstanding the urging of counsel for the Numbered Company, I am not persuaded that s. 939 only applies to highways to which a bylaw under s. 938 applies. In other words, on my reading of s. 939, it was open to the Village to enter into an agreement for latecomer payments concerning completion in the subdivision of the Numbered Company of Crystal Creek Drive by Anmore Woods.

[22] I have reached this conclusion first by looking at the words of s. 939. In my view, the language of s. 939, in particular ss. 939 (1) and (2), have the meaning ascribed to them by the respondents. Further, I do not read ss. 933 and 937.1 as precluding the route chosen by the Village to accomplish its objectives, as contended for by the Numbered Company.

[23] The language of these sections must be interpreted using the modern approach to statutory construction of E.D. Dreidger in the second edition of his Construction of Statutes approved in numerous cases of the Supreme Court of Canada including Bell Express Vu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559, at para. 26.

[24] With that standard in mind, I have reached my conclusion about the meaning of s. 939 on these considerations:

1. the definition of “excess and extended services” in relation to a highway simply speaks of a highway that “will provide access to land other than the land being subdivided or developed”. The portion of Crystal Creek Drive in dispute will provide access to the remaining lots of the Numbered Company anticipated to be developed in Phase II, and thus fits easily within this language;

2. the definition of “excess and extended services” does not contain a limitation requiring the service to be located on the land being subdivided, either in the reference in ss. (a) to a highway system, or in the reference in ss. (b) to other services;

3. section 939(2) on its face has no language limiting the section to those to which a bylaw under s. 938 applies; and

4. the structure of s. 939 supports the conclusion that s. 939(2) is the pre-eminent provision defining the scope of application of the section. Had s. 939(3) been intended to define the scope of s. 939, one would expect it to precede s. 939(2), and to have words indicating its pre-eminence. Further, s. 939(4), dealing with payment, refers to subsection (2). One would expect it to refer to subsection 939(3), not 939(2) if the meaning contended for by the Numbered Company was intended.

[25] Nor do I consider the other mechanisms available to local government to fund services inconsistent with this interpretation. Whether a local government chooses to proceed by a development cost charge, or address the matter through a latecomer agreement based upon requirements imposed on a developer, is a decision for the local government. It may be that the avenues are particularly suited to different circumstances, with the decision as to which route to take best taken by Council familiar with local conditions. Absent language restricting their use, it would not be consistent with the approach to local community legislation taken by the courts to limit the availability of a tool otherwise provided by the legislation: (Nanaimo v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342.

[26] Nor, in my view, do the provisions in s. 937.1 require the limitation advocated by the Numbered Company for the same reasons.

[27] In conclusion on this point, I am not persuaded that the judge erred in his conclusion that the Village had the jurisdiction to enter into the latecomer agreement providing for the recovery of costs from the Numbered Company.

[28] The second issue is the allocation of the entire cost of completing Crystal Creek Drive to the Numbered Company. The Numbered Company contends that it should not be required to pay the entire cost because the highway is being constructed to benefit Anmore Woods. It says that had it constructed the highway it would be entitled to recover at least a portion of the cost from Anmore Woods by way of a latecomer agreement in its favour because, it says, the highway provides “access to land other than the land” it is subdividing. In its submission, the amount the Numbered Company could recover as latecomer payments should be reflected in the apportionment of Anmore Wood’s road building expense.

[29] I do not agree that the Village was unreasonable in its conclusion that all costs of this stretch of road work should be attributed to the Numbered Company.

[30] Under s. 75 of the Land Title Act, the Numbered Company was required to provide sufficient highway to provide necessary and reasonable access to all new parcels and to land lying beyond the subdivided land. This requirement is independent of, but complementary to, the requirements of the local government. Further, and to be precise, the only parcels of land that will actually connect, or tie-in, to this stretch of Crystal Creek Drive, are lots in Phase II of the Numbered Company’s subdivision. It would not have been, therefore, from the perspective of the Numbered Company, an “excess or extended service”, had the Numbered Company built this road, but it is an “excess or extended service” when it is built by Amore Woods.

[31] The fact is that the Numbered Company would have been required to shoulder the entire cost of the work had it proceeded with Phase II before Amore Woods developed its land and would not have been able to recover under the latecomer payment provision.

[32] In these circumstances, one cannot say the local government was unreasonable in allocating 100% of this cost to the Numbered Company to be paid if and when, within 15 years, the Numbered Company develops Phase II.

[33] In the course of submissions, counsel referred us to Leigh Square Holdings v. Port Coquitlam, (5 April 1993), CA015305 (B.C.C.A.); Don Mann Excavating Ltd. v. Parksville (City) (1997), 44 M.P.L.R. (2d) 184; 493540 B.C. Ltd. v. Comox-Strathcona (Regional District) (2003), 43 M.P.L.R. (3d) 77, 2003 BCSC 1484; 493540 B.C. Ltd. v. Comox-Strathcona (Regional District) (2004), 45 M.P.L.R. (3d) 214, 2004 BCSC 365; and Beaver Lake Industrial Park Inc. v. Kelowna (City) (2006), 20 M.P.L.R. (4th) 231, 2006 BCSC 486. All of these cases address development issues, but none of them address the issues before us and there is, therefore, no need to discuss them.

[34] For these reasons, and with thanks to Counsel for their comprehensive submissions in this interesting case, I would dismiss the appeal.

[35] NEWBURY, J.A.: I agree.

[36] LOWRY, J.A.: I agree.

[37] NEWBURY, J.A.: The appeal dismissed.

“The Honourable Madam Justice Saunders”