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Shannon Woods Developments Ltd. v. Dodds, 1996 CanLII 870 (BC SC)
Date: 1996-06-27
Docket: A961932
URL: http://canlii.ca/t/1f3cx
Citation: Shannon Woods Developments Ltd. v. Dodds, 1996 CanLII 870 (BC SC), <http://canlii.ca/t/1f3cx> retrieved on 2013-03-20

[5] The respondent, William Puhallo, is a regional manager for the Ministry of Transportation and Highways. He is in charge of the Planning Department for the Thompson Okanagan region. His department is responsible for assessing future regional highway needs.

[6] The Westside Highline Corridor ("the Corridor") is a proposed new highway on the west side of Okanagan Lake intended to service the transportation needs of the Okanagan Valley. A portion of the corridor runs directly through the petitioner's subdivision plan.

[7] The petitioner has to date developed four phases of the Shannon Woods Development. This petition is confined to Phase Five of this development. In order to obtain approval for a subdivision, a developer must first seek approval from the Provincial Approving Officer under the preliminary layout approval system. The developer must submit an application for preliminary layout approval. This application is supported by documentation and is referred to various government agencies for comment. These agencies review the proposed development's impact upon their areas of responsibility.

BC Court Judgement - expropriation of land to replace Westside Road

1973 four-lane paved highway to replace the old Westside Road

*Note* Below is just a couple of snippets, please click link above for entire contents

[46] Granite Development Ltd. was the owner of a 179-acre parcel of land fronting on the west shore of Okanagan Lake. Westside Road ran through the land.

[47] In September 1972 Granite obtained preliminary layout approval for subdivision of the land under s. 88 of the Land Registry Act. Pursuant to this approval and extension of it, Granite commenced building roads and moving earth.

[48] Almost a year later, in August 1973, the Minister of Highways announced the government's intention to take surveys to determine possible routes for the construction of a four-lane paved highway to replace the old Westside Road. In September 1973 a stop-work order - the first of many - was issued to Granite.

[49] From 1973 to the summer of 1975 the process of developing the subdivision continued, hampered increasingly, however, by the prospect of the new highway, which was officially announced in the B.C. Gazette of 24th October 1974. In November Granite's engineer wrote to the department stating that a design plan of the road which he had obtained "virtually destroys our economics and plans of the last approved subdivision", and asking for consideration in speeding up the subdivision process and warning that further delays might lead to the loss of another season. Pursuant to assurance of early processing, Granite on 24th April 1975 submitted a revised plan to the department incorporating the proposed location of Westside Road as finally agreed.

[50] In the midst of the process of revision required by the new highway and allegations of delay on the part of the department, a step was taken which was to preclude the development of the subdivision. On 20th November 1974 the Central Okanagan Regional District ("C.O.R.D.") passed a by-law imposing a minimum ten-acre lot size over a vast area of rural land, including Granite's. By this time, the preliminary approval for the subdivision which Granite had earlier obtained had lapsed. In July 1975 the department advised Granite that it was rejecting a revised layout plan because it did not comply with the ten-acre minimum lot size.

[51] In November 1979 the government published notice of expropriation of 24.34 acres from Granite for the new road. The expropriation was completed on 20th January 1979. The new right of way was about one mile long, cut a wide swath and emphatically divided the lands. After the taking, the lands were traversed by both the old and the new Westside Roads.

[52] The Crown compensated Granite for the land taken on the basis of the value of undeveloped rural land. However, the umpire to whom questions of compensation were referred awarded Granite additional compensation for pre-expropriation losses. He found as a fact that the minister's acts had caused a diminution in the value of the land. In particular, he found that Granite's ability to complete the subdivision was lost due to the actions of the minister's employees in 1973 and 1974, including ordering Granite to stop work. He found that Granite would have completed the subdivision in 1974 but for the actions of the minister. These findings led the umpire to award Granite damages for pre-expropriation diminution in land value. He also held that Granite had acted reasonably between September 1973 and January 1980 to mitigate its loss, and awarded compensation mitigation costs and for certain pre-expropriation business losses. In the result, the umpire ordered the Crown to pay compensation to Granite for pre-expropriation losses as follows:

1. compensation for damage to land before the taking in the amount of $154,000 plus interest;

2. compensation for business loss before the taking in the amount of $252,857 plus interest;

3. compensation for Granite's costs of time before expropriation in mitigating its loss, in the amount of $30,000.

The umpire awarded compound interest from the date of the taking on these and other sums awarded.

=======CLICK LINK ABOVE FOR THIS PART===========================

[68] The chambers judge held that para. 9 of the agreed statement of facts at arbitration precluded the umpire from awarding compounded interest on the pre-expropriation losses. That clause stated:

9. That the Minister is liable to pay to the claimant interest on the unpaid compensation found owed to the claimant for the taking of January 21, 1980 calculated on the basis of the rate set out in the Court Order Interest Act, or regulations thereto, from the date of the taking to the date of payment.

[69] Compounded interest cannot be ordered under the Court Order Interest Act.

[70] Granite says that cl. 9 was merely an admission by the minister as to what interest rates would be used and that other provisions of the Act do not apply.

[71] This submission is difficult to understand, given that no rates for interest in the narrow sense of an annual percentage earned on moneys can be found in the Act; the Act provides only that interest is to be paid at a rate the court considers appropriate and specifies that it must not be less than the rate allowed by the Interest Act (Canada). If the reference to rate in cl. 9 is to be given any meaning, it must be that the provisions of the Act apply generally insofar as they may affect the calculation of interest.

[72] I would dismiss this branch of the appeal.

Conclusion

[73] I would allow the appeal and restore the umpire's award with respect to pre-expropriation losses. I would dismiss the appeal with respect to interest.

Appeal dismissed.

Re: Upper Fintry (Muir) subdivision

2. Are the properties bordering on Westside Road land-locked? And, are they still part of the Water System Service Area?
In 2009 the Regional District sent out notices to these 30+ property owners indicating that their (assumed) access off Dunwaters Road is not legal. This notice does not mean access off Westside Road would also be denied. Access permits are issued by the Ministry of Transportation (MOT) after building permits have been applied for.

These properties will remain in the service area unless it is confirmed by the MOT that the property is land-locked. The MOT considers each application for access independently and considers such items as sight-lines, proximity to intersections and other points of access prior to issuing permits.

Source - RDCO's Project Update Letter May 2010 - Valley of the Sun water system

7). Ceasars Landing - Erosion & Siltation. pg 24, pg 28 and page 42

http://www.obwb.ca/fileadmin/docs/1974.pdf

*These are just snippetts, click link above for full content*

Regional and Community Planning Letters Patent issued in 1969 Under the authority of Supplementary Letters Patent dated March 19, 1969 the Regional District was granted the function of regional and community planning. It is noted that Community Planning Area #1 and part of Community Planning Area #2 established under the Local Services Act were within the boundaries of the Regional District and that certain regulations applied to those areas. These areas encompassed the Lakeview Heights area, South Pandosy and Rutland community north to Pino Road, all of which were outside the boundary of the City of Kelowna. In October of 1969, the provincial government passed an order in council to apply the regulations which were in
force and effect in those areas as if they were bylaws adopted by the Regional Board.

These regulations related to land use within those areas.

(page 23)

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In September of 1972, the Regional Board expanded the Community Planning Area #1 provincial regulations to all electoral areas of the Regional District. Land use regulations were therefore clearly in place covering all areas of the Regional District;
however, more controls were on the horizon with the provincial government adopting the Agricultural Land Reserve legislation in 1973.

There have been several land use bylaws adopted by the Regional District over the years, as listed below but one which clearly has some historical significance is Bylaw No. 176 which was adopted on the 9th of March, 1981. This bylaw repealed the Community Planning Area Regulations which previously applied to the Regional District by way of Letters Patent and Zoning Bylaw #66, and replaced those regulations with a full complement of land use requirements for all Electoral Areas of the Regional District.

(page 24)

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Initial regulations pertaining to the management of land use and subdivision established for Community Planning Area No. 1 under Supplementary Letters Patent, approved by the Provincial Government on October 27, 1969.

• Division (3) of Community Planning Area No.1 Regulations pertaining to subdivision repealed March 17, 1971 and replaced by Subdivision Regulations 262/70 of the Local Services Act.  Valley of the Sun was approved by the Dept of Highways on August 18, 1970

• Zoning Amendment Bylaw No. 66 adopted on September 6, 1972 in order to apply zoning regulations to the Electoral Areas of the Regional District.

(page 25)