Norgard v. Anmore (Village) Page 2 [1] THE COURT: This is an application pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 for a re

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1 Citation: Between: IN THE SUPREME COURT OF BRITISH COLUMBIA Norgard v. Anmore (Village), 2007 BCSC 1571 Gary Norgard and Sharon Norgard Date: Docket: S Registry: Vancouver Petitioners BCSC 1571 (CanLII) 2007 And: Howard Carley, in his Capacity as Approving Officer for the Village of Anmore Respondent Before: The Honourable Mr. Justice Groberman Oral Reasons for Judgment In Chambers October 12, 2007 Counsel for the Petitioners: Counsel for the Respondent: Jonathan B. Baker Nathalie J. Baker Christopher S. Murdy Date and Place of Hearing: October 11, 2007 Vancouver, B.C.

2 Norgard v. Anmore (Village) Page 2 [1] THE COURT: This is an application pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 for a review of the Village of Anmore Approving Officer's proposed decision to attach certain conditions to approval of a bare land strata subdivision. [2] The background is not complex. The petitioners own a lot in the Village of Anmore that is just over 1 ha. in area. In May 2006, they submitted to the respondent an application for a two-lot subdivision pursuant to the Bare Land Strata Regulation, B.C. Reg. 75/78, under the Strata Property Act, S.B.C. 1998, c. 43. On August 9, 2006, the respondent provided a preliminary layout review for the proposed subdivision, setting out the conditions upon which he would grant subdivision approval. It is common ground that a preliminary layout review is subject to judicial review under the Judicial Review Procedure Act as a "proposed exercise of a statutory power". [3] The petitioners are unhappy with certain of the conditions that the respondent proposes to impose on subdivision and ask the court to require the respondent to approve the subdivision without those conditions or, alternatively, to remit the matter to the Approving Officer with directions for reconsideration. [4] The petitioners' lot is, for the most part, located at what is currently the east end of Eaglecrest Drive (also referred to in some of the material as Eaglecrest Road). As a result of previous subdivisions, however, a more-or-less triangular parcel of land on the southwest corner of the intersection of Eaglecrest Drive and Sunnyside Road is included in the lot. This part of the lot is less than 850 m 2 in

3 Norgard v. Anmore (Village) Page 3 area; too small under current zoning bylaws to build on or to form its own lot. It is not contiguous with the rest of the lot; indeed, it is separated from the main part of the lot by a stretch of Eaglecrest Drive and by two other lots. This small parcel has been referred to in the hearing before me as the "hooked" parcel because it is connected on the subdivision plan to the main part of the lot with a pair of shepherd's hook symbols used by surveyors. I shall refer to it as the "triangular parcel" in this judgment. [5] The preliminary layout review places three conditions on subdivision that are opposed by the petitioners. First, it requires them to eliminate the hooked parcel from the lot, either by consolidating it with one of the contiguous lots which I understand are not owned by the petitioners, or by dedicating it to the Village for public use, for example as a road or a park. Second, it requires the proposed private access road on the subdivided land to be built to the standard prescribed for a highway in the Village's Works and Services bylaw. Third, it requires the petitioners to register a restrictive covenant on title prohibiting the installation of a security gate across the access road. [6] The petitioners say that each of these conditions is unauthorized by legislation. In the alternative, they argue that if the conditions are authorized, they nonetheless represent patently unreasonable requirements which should not be allowed to stand. They say that the reasons given for imposing these conditions are specious or that the respondent is seeking to impose them with a totally inadequate factual basis.

4 Norgard v. Anmore (Village) Page 4 Standard of Review [7] It is common ground that on this judicial review that the Approving Officer is not entitled to deference with respect to his interpretation of his authority under the statute, that is, his statutory authority is to be interpreted on a standard of correctness. On the other hand, he is entitled to a high degree of deference in the exercise of his discretion under the statute. His discretion will be reviewed only on a patent unreasonableness standard. [8] I agree that the case law supports these standards of review as the appropriate ones for this case. The case of Vancouver (City) v. Simpson, [1977] 1 S.C.R. 71, 65 D.L.R. (3d) 669, while pre-dating the pragmatic and functional approach that is universally applied in administrative law, is generally is cited as authority for the high standard of deference that the court accords to good faith exercises of discretion by Approving Officers. As was stated in Hlynsky v. West Vancouver (1989), 37 B.C.L.R. (2d) 79 (CA) at 84 to 85, The reviewing court should allow the Approving Officer substantial latitude and should not be quick to find fault with his decision. [9] Although both Vancouver (City) v. Simpson, supra, and Hlynsky v. West Vancouver, supra, are cases dealing with the exercise of discretion under the Land Title Act and its predecessor, and although there have been substantial developments in administrative law generally since those cases were decided, I agree that they continue to be good law in describing the deference to be granted to discretionary decisions of Approving Officers, including those made under the Strata Property Act and its Regulations.

5 Norgard v. Anmore (Village) Page 5 The Triangular Parcel [10] I will begin with the Approving Officer's proposal to require the triangular parcel to be excluded from the subdivided lots. The only statutory provision on which the respondent relies in imposing this condition is s. 3(1)(e)(ii) of the Bare Land Strata Regulation. It states: 3(1) In considering an application for the approval of a bare land strata plan, the approving officer may... (e) refuse to approve the bare land strata plan, if he considers that... (ii) the deposit of the bare land strata plan is against the public interest, [11] The preliminary layout review discussed the issue of the triangular parcel very briefly. It stated: Please be advised that the Approving Officer is not prepared to accept hooking the [triangular parcel] with either of the 2 lots in the proposed subdivision. [12] The Approving Officer then suggested that the triangular parcel could be consolidated with either the contiguous lot to the south or with the lot across Eaglecrest Road to the north, both of which are owned by third parties, or it could be donated to the Village. He indicated that he was also open to any other option that "would satisfy the village requirements". [13] In his affidavit in this proceeding, the Approving Officer has expanded on his reasons for rejecting a subdivision that includes the triangular lot. He states at paragraphs 9-14:

6 Norgard v. Anmore (Village) Page 6 Generally, hooked parcels are to be avoided in subdivision approvals, as it is not desirable to have portions of lots physically separated. The [triangular parcel] was initially created due to a desire to have Eaglecrest Drive line up with Anmore Creek Way. At the time of that earlier subdivision I agreed to allow [the triangular parcel] to remain as a hooked portion that remained connected with the [current lot]. Although I was not in favour of hooking, I agreed to this to help Mr. Norgard who at the time only wanted to create the one additional parcel. At the time, however, I indicated to Mr. Norgard that I was not prepared to allow any further subdivision with the [triangular parcel] remaining hooked. As part of my preliminary review of the current subdivision application, I confirmed to Mr. Norgard that I was not in favour of the [triangular parcel] remaining hooked as, on its own, it is not buildable as a separate lot or area. Anmore has 1 acre minimum lot size zoning throughout most of the Village and the [triangular parcel] could not be a lot on its own. The problem is or would be rendered more problematic in my view, by the further subdivision as proposed and creating a further separation between the [triangular parcel] and the new strata lots. The proposed subdivision would further separate the [triangular parcel] through establishment of a common property access road such that the "connection" hooked to the [triangular parcel] would now become a very narrow strip making the "connection" between the two portions of the parcel more remote and even less practical. [14] While s. 3.(1)(e)(ii) of the Regulation gives the Approving Officer broad discretion to consider the public interest, it is not a general power to revisit previous subdivision or planning decisions. Rather, it is a power to consider whether the deposit of the particular plan under consideration is in the public interest. [15] In the case at bar, the triangular parcel is already in existence. It is already distant from the main part of the lot. Even that distant "connection" with the main part of the lot is only with a narrow strip of the main lot. There is no realistic

7 Norgard v. Anmore (Village) Page 7 possibility of the triangular parcel being used in any way in conjunction with the balance of the lot. The proposed subdivision will make the connection between the triangular parcel and the main part of the lot marginally more distant and will render the narrow strip somewhat more narrow. Neither of these changes can realistically be said to have any bearing on the situation or use of the triangular parcel. [16] I conclude that, in the words of Vancouver v. Simpson, supra, the Approving Officer's reasons here are specious or in the language of the pragmatic and functional approach, his decision is patently unreasonable. [17] In saying this, I do not mean to suggest that the public interest is not engaged by considerations of maintaining a minimum lot size or of avoiding unusable parcels. My concern is that the proposed subdivision does not materially affect the status of the triangular parcel. In Arbutus Bay Estates Ltd. v. British Columbia (Minister of Transportation and Highways) (1989), 43 M.P.L.R. 288, [1989] B.C.J. No. 8, the Approving Officer purported to require the widening of an existing road as a precondition to approving a subdivision. The court stated: The first issue here arises under s. 75 of the Land Title Act, R.S.B.C. 1979, c. 219 which obliges the Approving Officer to require "necessary and reasonable access" not only to all new parcels, but also "through the land subdivided to land lying beyond or around the subdivided land". While the subdivided land here is the whole of the petitioner's land and not merely the three new lots which it proposes to create out of the larger parcel (plus a new road to link them to Horton Bay Road), there is no obvious relationship between those three new lots and the extension or widening of Horton Bay Road which the Approving Officer requires as a condition of their creation. Fortunately the nice problems raised by the simple words of s. 75 of the Land Title Act are answered for me in an earlier decision of this court. In Vantreight v. District of Saanich (1950), 2 W.W.R. 1253,

8 Norgard v. Anmore (Village) Page 8 Macfarlane, J. considered what was then s. 86 of the Land Registry Act (which contained the same words as s. 75 of the Land Title Act) in circumstances almost identical to those in this case. At p. 1254, he states: The significant words in this section are 'necessary and reasonable'. The real question to be decided here is whether the requirement of the approving officer is reasonable in all the circumstances. At p he concludes that: I think 'reasonable' there involves the idea of some rational connection with what is being done. I do not think it was the intention of the Legislature that new powers of acquisition by compulsory dedication in no substantial way connected with the alteration of title effected by the plan should be conferred upon the municipality. I consider those statements to be particularly appropriate here insofar as any widening or extension of Horton Bay Road beyond the point where the new road to service the three new lots branches off is concerned. I see no connection whatsoever between any portion of Horton Bay Road to the east of the intersection (which will be created by the construction of the new road to service the proposed three lots) and those three lots. I consider any condition imposed by the Approving Officer from that point eastward to be invalid. Any such condition is neither necessary nor reasonable within the meaning of s. 75 of the Land Title Act on the approach taken in Vantreight v. District of Saanich. [18] A similar analysis applies to s. 3(1)(e)(ii) of the Regulation in this case. While the public interest criterion is broad, it must relate to some genuine alteration of the status quo that will be brought about by the deposit of the subdivision plans. Here, there will be no change whatsoever in the status of the triangular parcel. I therefore find that the Approving Officer would be making a patently unreasonable decision if he required, as a condition of subdivision, that the triangular parcel be excluded from the subdivision.

9 Norgard v. Anmore (Village) Page 9 Construction Standards for the Access Road [19] I now turn to the issue of the access road. The Approving Officer proposes to impose a condition that the access road be constructed "in accordance with the standards of the Works and Services bylaw which essentially means pavement for two lanes of traffic, minimum six metres wide, concrete curb and gutter, gravel shoulder and ditches." [20] The statutory framework in relation to roads in bare land strata subdivisions is somewhat convoluted. Section 938(1) of the Local Government Act, R.S.B.C. 1996, c. 323, provides for the enactment of Works and Services bylaws. It states: 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 (a) regulate and prescribe minimum standards for the dimensions, locations, alignment and gradient of highways in connection with subdivisions 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; [21] Section 938(3) restricts the application of Works and Services bylaws. It states: (3) A local government must not impose a requirement under subsection (1)(b) in respect of a subdivision under the Strata Property Act.

10 Norgard v. Anmore (Village) Page 10 [22] Thus, Works and Services bylaws will have limited application to subdivisions under the Strata Property Act. While they may set standards for dedicated highways, they will have no direct application to private access roads within the subdivision. [23] Under s. (3)(e)(iii) of the Bare Lands Strata Regulations, the Approving Officer may require that highways be dedicated so as to provide sufficient access to the subdivision. In such case, it would appear that the Works and Services bylaw will apply. However, the Approving Officer has not imposed such a requirement in this case. Instead, he has been satisfied that a private access route is sufficient. Section 6 of the Regulation gives the Approving Officer broad discretion with respect to the adequacy of such routes. It is as follows: 6 (1) The approving officer may decline to approve a bare land strata plan if, where he considers access routes are necessary, he considers that (a) the width of the access routes are not sufficient to meet police and fire protection requirements, (b) the access routes are not sufficient to provide practical and reasonable access to the strata lots, or (c) the access routes have not been designed or are not capable of being constructed in accordance with standards generally accepted as good engineering practice. (2) In considering the sufficiency of the access routes, the approving officer may consider (a) reports from local fire protection and police authorities, (b) engineering studies or reports of a professional engineer on the design and construction of the access routes,

11 Norgard v. Anmore (Village) Page 11 (c) the proposed use of the land in the bare land strata plan and whether or not the access routes are suited to the use intended, (d) and the configuration of the land in the bare land strata plan, (e) the relation of the intended access routes to an existing highway or approach outside the bare land strata plan, and the approving officer may, at the cost of the owner-developer, require an engineering study on the sufficiency of the access routes to be prepared by a professional engineer. [24] I do not doubt that it is within the Approving Officer's discretion to require access routes of a particular width, configuration and construction. My concern in this case is that it does not appear that the Approving Officer engaged in any genuine consideration of the needs of this subdivision. Instead, he fell back upon a statutory regime that was not directly applicable. Indeed, it is difficult to square the Approving Officer's conclusion that a public highway is not necessary with his adoption of precisely the same standards as are applicable to public highways. [25] The absence of anything other than conclusory reasons for adopting the standards of the Works and Services bylaw leaves the court without any understanding as to how the Approving Officer reached his conclusion that this standard of road was necessary. In the absence of adequate reasons for the Approving Officer's decision with respect to road standards, the condition cannot be allowed to stand. [26] This does not mean, of course, that the access road standards chosen by the Approving Officer are necessarily unsupportable, only that he has not at present

12 Norgard v. Anmore (Village) Page 12 supported them. The Approving Officer will have to reconsider the road standards with an open mind. He is not precluded from coming to the conclusion that a standard similar to that set out in the Works and Services bylaw is necessary, but if he does so, he must provide reasons for his conclusion. Restrictive Covenant Against Gating [27] I turn then to the final matter being the requirement that the petitioners register a restrictive covenant on title, prohibiting the gating of the access roads. This requirement is said to be supported by s. 3(1)(e)(ii) and 6(1)(b) of the Bare Lands Strata Regulations which sections I have already quoted. Section 21(1) of the Regulations appears to provide authority for requiring the registration of a restrictive covenant as a pre-condition for bare land strata subdivision approval: 21 (1) Where the approving officer approves a bare land strata plan on the condition that a covenant or easement benefiting or burdening the land or any adjacent land be registered in the land registry office, he shall endorse the condition on the bare land strata plan. [28] No reasons are given in the preliminary layout report for the requirement of a restrictive covenant. In his affidavit in these proceedings however, the respondent states at paragraphs 19-22: With respect to the reference to a restrictive covenant prohibiting the installation of security gates at the entrance of the bare land strata, this is the position I have taken consistently over my 12 years as the Approving Officer for the Village of Anmore. At one stage, many years ago, a bare land strata was approved in the Village and without this requirement, security gates were installed. The views of the community which I took to reflect the public interest generally was that gated community development should be avoided because the creation of gated communities was not consistent with the

13 Norgard v. Anmore (Village) Page 13 character of Anmore and established amenities of the small Village Municipality and the goals and objectives of development of our community. For that reason I have consistently since that time required confirmation that these strata communities will not become gated and exclude the public and I have required covenants to that effect. Another reason for restricting security gates in this access area is that of my concern for public safety issues and the need for emergency vehicles to have unimpeded access along this point for fire and other emergency purposes. [29] Thus we have two reasons given for the restrictive covenant. The community's and the Approving Officer's distaste for gated communities, and concerns about access. [30] I do not think that the question of whether gated communities are in keeping with the character of a community is a proper consideration on a subdivision application. Gating or non-gating of a development is not sufficiently connected with the subdivision itself to be a proper consideration. Unlike lot sizes, configurations, setbacks from natural hazards, and access requirements, the question of what the developer plans to put on the land is a question for zoning and development rather than a question going to the issue of subdivision. [31] Equally, I do not think that anything in the Regulation would allow the Approving Officer to require public access on purely private land. The Approving Officer is free to consider the necessity for dedication of land for public use, for instance as a park or highway. He or she is also free to consider what physical access to the property boundaries and through the property to other land is necessary. He can require easements and rights-of-way to benefit members of the

14 Norgard v. Anmore (Village) Page 14 public. I do not see, however, that there is any basis on which the Approving Officer can demand as a condition of subdivision that private roads over which the public is not given legal rights of travel not be gated "in the public interest". [32] On the other hand, the gating of access roads is a genuine impediment to access to the lands both for emergency vehicles and for invitees. It seems to me that the considerations of s. 6(1)(b) of the Regulation, i.e., the question of whether or not "the access roads are sufficient to provide practical and reasonable access to the strata lots" is directly engaged by the possibility that roads will be gated. [33] In effect then, while I do not think the Approving Officer's consideration of the broad public interest in preventing gated communities was within his jurisdiction under the Regulation, I do think his specific concerns about emergency vehicles and services accessing the lands were within his jurisdiction. [34] Where an Approving Officer has given two independent reasons for imposing a condition, the fact that one of the reasons is bad will not invalidate the condition. The decisions of this court in Arthur Bell Holdings Ltd. v. Vancouver (City), (1993) 18 M.P.L.R. (2d) 173, [1993] B.C.J. No and Delsom Estates Ltd. v. Delta (District) (1989), 42 M.P.L.R. 261, [1989] B.C.J. No. 57, are two examples of cases in which the court has followed the principle that taking into account an extraneous consideration in the decision-making process will not invalidate a decision so long as other proper considerations also led the Approving Officer to the same result.

15 Norgard v. Anmore (Village) Page 15 Remedy [35] The petitioners in this petition seek a number of remedies including mandamus requiring the Approving Officer to approve the bare land strata subdivision application. In my view, that is not the appropriate remedy. Rather, the appropriate remedy is to remit the application to the Approving Officer for reconsideration in accordance with these reasons. [36] The Approving Officer is directed to remove as a condition of approval any requirement that the triangular parcel be removed from the subdivision. He is also directed to reconsider the standards to which the access route must be built and to provide reasons for the standards that he selects. As the requirements for a restrictive covenant preventing the gating of access roads is valid, I am not providing any further directions with respect to that matter. [37] The petitioners have had a measure of success on this application, and unless there are factors of which I am currently unaware, I am inclined to award the petitioners costs on Scale B. {Submissions as to Costs} [38] THE COURT: In my view, the ordinary rule that costs follow the event is appropriate and I am awarding costs on Scale B to the petitioners. The Honourable Mr. Justice H. M. Groberman