1993 Legislative Session: 2nd Session, 35th Parliament
FIRST READING


The following electronic version is for informational purposes only.
The printed version remains the official version.


HONOURABLE COLIN GABELMANN
ATTORNEY GENERAL

BILL 73 -- 1993

LAND TITLE AMENDMENT ACT, 1993

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

1 Part 8 of the Land Title Act, R.S.B.C. 1979, c. 219, is repealed and the following substituted:

PART 8

CANCELLATION OF PLANS

Interpretation

121 (1) In this Part "arterial highway" means a public area classified as an arterial highway under the Highway Act;

"local authority",

(a) in reference to land in a municipality, means the municipal council,

(b) in reference to land not in a municipality, means the regional board of a regional district, and

(c) in reference to land in a local trust area, means the local trust committee;

"local trust area" and "local trust committee" have the same meanings as in the Islands Trust Act;

"party" means a person who has filed a notice of intention to appear at the hearing of a petition, in compliance with section 127, and includes the petitioner;

"plan" means a subdivision plan, reference plan or air space plan deposited in the land title office;

"public area" means an area dedicated as a highway, park or public square under this Act or the former Act;

"registrar" includes a person appointed by the director under subsection (2).

(2) The director may appoint a person other than the registrar to exercise and perform all or some of the powers and duties of the registrar under this Part.

Cancellation of plans by application to the registrar

122 (1) By order of the registrar, a plan may be cancelled

(a) in whole, on petition by the owner of all the parcels within the plan, or

(b) in part, on petition by the owner of a parcel in the plan.

(2) The registrar must not make an order cancelling or altering the boundaries of all or part of a public area

(a) unless the public area is in the plan and is adjacent to a parcel that is owned by the petitioner and is in the plan, or

(b) for which a certificate has been filed under section 132 or 133.

Petition to cancel plan

123 (1) A petition under this Part must be

(a) made by an owner referred to in section 122 (1),

(b) addressed to and filed with the registrar,

(c) signed by the owner, and

(d) verified by affidavit of a signatory to the petition.

(2) The petition must include all of the following information:

(a) the date of deposit of the plan in the land title office, the plan's number and a description of the land within the plan;

(b) the name of the regional district in which the land is situated and, if the land is also located in a municipality, the name of the municipality;

(c) whether or not the land is in a local trust area and, if so, the name or identity of the local trust area;

(d) whether the petitioner seeks cancellation of the plan in whole or in part, and, if in part, a description of the public areas and parcels within the plan that are affected by the petition;

(e) the name, occupation and address of the petitioner and a description of the land owned by the petitioner;

(f) the name, occupation and address of all freehold owners of parcels within the plan and a description of the parcels owned by them;

(g) the name, occupation and address of all charge owners, a description of the charges and of the parcels charged;

(h) if the petitioner was the owner of all the parcels in the plan at the time it was deposited in the land title office, a statement to that effect together with a summary of the record verifying the statement;

(i) the facts on which the petitioner relies in support of the petition and a description of the order petitioned for.

(3) The petition must contain a notice that any person who wishes to make a submission at the hearing of the petition must file with the registrar, before the date fixed for the hearing, a notice of intention to appear.

(4) A print of the plan showing, to the satisfaction of the registrar, the land referred to in the petition must be annexed as a schedule to the petition.

Report of the approving officer

124 (1) Unless the registrar otherwise orders, the petitioner, before the date set for the hearing of the petition, must file with the registrar a report of the approving officer that contains all of the following information:

(a) whether or not any part of a public area affected by the petition is an arterial highway;

(b) the approving officer's opinion whether or not, assuming the petition is granted, the plan referred to in the petition will comply with

(i) the applicable subdivision and zoning bylaws, and

(ii) the requirements of section 75;

(c) other information that the approving officer considers material to the petition.

(2) Within 60 days after receiving a written request from a petitioner for a report on the matters referred to in subsection (1), the approving officer must deliver the report to the petitioner.

(3) The request referred to in subsection (2) must be accompanied by a copy of the petition and a print of the plan annexed as a schedule to the petition.

Service of petition and other documents

125 (1) On receipt of a petition under this Part, the registrar, by order, must fix a date, time and place for the hearing of the petition.

(2) At least 6 weeks before the date fixed for the hearing, the petitioner must serve a copy of the petition and a notice of hearing on the following persons:

(a) if the land affected by the petition is in a municipality, the municipal clerk;

(b) if the land affected by the petition is in a local trust area, the person appointed under section 15 (1) (a) of the Islands Trust Act as secretary to the Islands Trust Council;

(c) if the land affected by the petition is not in a municipality, the Deputy Minister of Transportation and Highways and the secretary of the regional board of the regional district where the land is;

(d) if the land affected by the petition is a part of an arterial highway, the Deputy Minister of Transportation and Highways;

(e) the Deputy Minister of Environment, Lands and Parks;

(f) every owner of a parcel or charge on a parcel in the plan affected by the petition;

(g) every other person who, in the opinion of the registrar, might be affected by the petition.

(3) Unless the registrar otherwise orders, as soon as practical after the report of the approving officer has been filed under section 124 (1), the petitioner must serve it on the persons described in subsection (2) of this section.

(4) Section 296 applies to the service of documents under this section.

Publication and posting

126 The registrar may order the petitioner to do one or both of the following:

(a) publish a notice of the petition and of the date, time and place of the hearing in the Gazette and in a newspaper circulating in the area of the land affected by the petition at least 2 weeks before the hearing date;

(b) post the petition and any other documents for 4 consecutive weeks before the date set for the hearing at one or more of the following places:

(i) a conspicuous place on the land affected by the petition;

(ii) if the land affected by the petition is in a municipality, the municipal hall;

(iii) if the land affected by the petition is not in a municipality, a nearby court house or other Provincial government building or in a nearby post office, with the permission of the person in charge.

Notice of intention to appear

127 (1) On filing with the registrar a notice of intention to appear, any person whose land might be affected by a petition under this Part may become a party to the proceeding initiated by the petition.

(2) The notice under subsection (1) must contain the following:

(a) the name of the person filing the notice and an address for service;

(b) a description of the land owned by the person and the manner in which the land is affected by the petition;

(c) a summary of the argument and evidence the person intends to submit at the hearing.

(3) A person who files a notice under this section must serve a copy of the notice on the petitioner, on any other parties and on any other persons on whom service is required under section 125.

(4) A notice under this section may be filed at any time before the date set for the hearing.

(5) The petitioner and any party is entitled to be heard, to call and examine witnesses and to submit argument and evidence at the hearing of the petition.

Place of hearing

128 The hearing of a petition is to be held in the city where the land title office is.

Powers of registrar in relation to the hearing

129 In the same manner as a judge of the Supreme Court under the Rules of Court, the registrar may

(a) hear the petitioner and the parties and the witnesses called by any of them,

(b) order the discovery of documents,

(c) exercise any of the powers under section 311 in connection with the proceeding initiated by the petition,

(d) inspect the land covered by the plan referred to in the petition,

(e) adjourn the hearing of the petition on terms that the registrar considers proper,

(f) award to the petitioner or a party costs the registrar considers just and order by whom the costs must be paid, and

(g) give directions that the registrar considers appropriate.

Duties of registrar on hearing the petition

130 In the same manner as a judge of the Supreme Court under the Rules of Court, the registrar, on hearing the petition, must

(a) consider whether or not there is sufficient cause connected with the dedication of any public area affected by the petition to continue the dedication over all or any part of the public area,

(b) as far as possible,

(i) protect existing utilities and assure anticipated utilities,

(ii) assure the rights of adjoining owners as to ingress and egress, whether of a public or private nature, and

(iii) consider whether or not an easement, statutory right of way or other interest needs to be created, enlarged or extended, and

(c) permit any party to call, examine and cross examine witnesses and, without limitation, to examine or cross examine an approving officer on matters relating to the contents or sufficiency of his or her report.

Powers of the registrar to cancel or alter a plan

131 (1) Subject to sections 132 (3) and 133 (3), the registrar, by order after hearing a petition under this Part, may

(a) cancel or alter or refuse to cancel or alter

(i) the plan referred to in the petition, or

(ii) a public area or any part of either of them,

(b) in the circumstances described in section 134.1, consolidate into a single parcel

(i) land that ceases to be a public area, and

(ii) land of the petitioner,

(c) direct that any land that ceases to be a public area be consolidated into a single parcel with land of the petitioner, as a condition of registering a transfer from the Crown to the petitioner of the land that ceased to be a public area,

(d) extend any charge or encumbrance registered against a parcel in the plan affected by the petition over other land in the plan and direct that the charge or encumbrance, as extended, vest in the owner of the charge or encumbrance,

(e) register in the name of the Crown in right of British Columbia an indefeasible fee simple title to any land that ceases to be a public area and direct that the title be encumbered by any easement, statutory right of way or other interest that the registrar considers necessary to

(i) protect existing utilities and assure anticipated utilities, and

(ii) assure the rights of adjoining owners as to ingress and egress, whether of a public or private nature.

(2) An order of the registrar under this section

(a) may be made on terms the registrar considers necessary, and

(b) may be made conditional on the creation, enlargement, extension, cancellation or registration of any interest that the registrar considers necessary to give effect to a term of the order.

(3) An order of the registrar that cancels or alters the boundaries of a public area extinguishes the dedication or establishment of the public area or of that part of it that ceases to be a public area in consequence of the cancellation or alteration.

Opposition by local authority

132 (1) Except in the circumstances set out in section 134.1, a local authority by resolution declaring that a public area is required for the purpose for which it is dedicated, may oppose the cancellation or alteration under this Part of the boundaries of the public area or any part of the public area.

(2) A local authority that passes a resolution under subsection (1) must file with the registrar before the hearing date a certificate containing

(a) the name of the petitioner, the filing number of the petition and a description of the land referred to in the petition,

(b) the text of the declaration contained in the resolution, and

(c) a description, along with a print of the plan, that shows to the satisfaction of the registrar the public areas or parts of them to which the declaration applies.

(3) After a certificate is filed with the registrar under subsection (2), the registrar must not, without the written consent of the local authority, make an order under this Part that cancels or alters the boundaries of a public area to which the certificate pertains.

(4) A local authority that files a certificate under this section

(a) must, in the manner required by section 296, serve a copy of the certificate on the petitioner, the parties, and any others that the registrar considers might be affected by the certificate, and

(b) within 7 days after receipt of a request from the petitioner or any party, must

(i) give written reasons for the declaration, and

(ii) deliver to the petitioner or party a copy of the reports, plans and other documents that were taken into account by the local authority in passing the resolution.

Opposition by Minister of Transportation and Highways

133 (1) Except in the circumstances set out in section 134.1, the Minister of Transportation and Highways may oppose the cancellation or alteration under this Part of the boundaries of all or part of a public area that is an arterial highway, wherever located, or of a public area that is not in a municipality, if he or she considers that the public area is required for the purpose for which it is dedicated.

(2) If the Minister of Transportation and Highways opposes the cancellation or alteration, he or she must file with the registrar before the hearing date a certificate containing

(a) the name of the petitioner, the filing number of the petition and a description of the land referred to in the certificate, and

(b) a description, along with a print of the plan, that shows to the satisfaction of the registrar the public areas or parts of them to which the certificate pertains.

(3) After a certificate is filed with the registrar under subsection (2), the registrar must not, without the written consent of the Minister of Transportation and Highways, make an order under this Part that cancels or alters the boundaries of a public area to which the certificate pertains.

(4) The Minister of Transportation and Highways must, in the manner required by section 296, serve a copy of a certificate filed under this section on the petitioner, the parties, and any others that the registrar considers might be affected by the certificate.

Preparation and registration of order

134 (1) Following the conclusion of the hearing of a petition under this Part, the registrar, exercising the powers given under section 131, must decide the outcome of the petition and publish written reasons for the decision.

(2) Within 30 days after publication by the registrar of the written reasons, the petitioner must prepare and submit to the registrar for approval and signature an order giving effect to the registrar's decision.

(3) If all applications necessary to give effect to an order deciding the outcome of a petition under this Part are not submitted for registration within 3 months after the order is signed or within a further period allowed by the registrar,

(a) the order ceases to have effect, and

(b) any extinguishment previously effected by the order by the operation of section 131 (3) is deemed not to have occurred.

(4) The registrar must not register an application referred to in subsection (3) unless all duplicate indefeasible titles to the land affected by the order have been surrendered for cancellation.

(5) Within 21 days after the registrar has published the reasons for the decision under this section, the petitioner or any party may appeal the decision to the Supreme Court.

Registrar may vest an estate in fee simple

134.1 The registrar by order may vest in the petitioner an estate in fee simple to all or part of a public area adjacent to a parcel owned by the petitioner in the plan referred to in the petition if

(a) the public area or part of it, as the case may be, has been cancelled by order of the registrar under this Part,

(b) at the time the plan was deposited, the petitioner was the fee simple owner of all land in the plan, and

(c) the petitioner continues to be the owner of all the land in the plan.

Cancellation by minister re Crown land

134.2 (1) The Minister of Environment, Lands and Parks may order the cancellation of a plan or a portion of a plan comprising land owned by the Crown, and by the same or a subsequent order may make provisions he or she considers proper for the protection of the rights of a purchaser of a parcel shown on the plan.

(2) On receipt of a certified copy of the order and an explanatory plan showing the land affected, the registrar must

(a) assign one or more distinguishing letters to the new parcel created, and

(b) cancel the existing indefeasible title affected and register a new indefeasible title for the newly created parcel.

(3) If, under the provisions of the Land Act, Crown land, comprising all the land included in a plan, has been removed from the operation of this Act, the Minister of Environment, Lands and Parks may order the cancellation of the plan and the registrar must amend the records accordingly.

Cancellation of interior lines

134.3 (1) On application in the prescribed form, accompanied by the plan, if any, that the registrar may require, the registrar may cancel the lines dividing 2 or more contiguous parcels shown on a plan, if

(a) the parcels are owned by one person, or by 2 or more persons as joint tenants or tenants in common, or by the Crown, and

(b) the parcels are free from all charges or encumbrances, or the holders of all existing charges and encumbrances consent in writing and the charges and encumbrances are extended by an appropriate instrument to cover and coincide with the boundaries of the parcel to be created as a result of the petition.

(2) If the plan showing the parcels that are the subject of an application under this section has been microfilmed, or the registrar considers that the cancellation cannot satisfactorily be shown on the plan because of its age, or for any other reason, the registrar

(a) may require the applicant to deposit an explanatory plan showing the new boundaries, and

(b) must incorporate with the description shown on the new indefeasible title a reference to the explanatory plan.

Transition

134.4 A petition that has been filed under this Part as it existed immediately before the date the Land Title Amendment Act, 1993 received First Reading in the Legislative Assembly but has not been disposed of by that date must continue and be disposed of as though that Act had not come into force.

 
Consequential Amendments

 
Land Act

2 The Land Act, R.S.B.C. 1979, c. 214, is amended by adding the following section:

Cancellation by minister re Crown land

8.1 (1) If, under Part 8 of the Land Title Act, a petitioner establishes to the satisfaction of the minister that

(a) the registrar has made an order under Part 8 of the Land Title Act cancelling all or part of the areas that were dedicated by the deposit of a plan in the land title office, and

(b) none of the dedicated areas cancelled by the order are required by the Crown or are otherwise reserved from disposition, the minister, on application by the petitioner, on terms the minister considers appropriate and on payment of the prescribed fees, may make a fee simple grant to the petitioner of all or part of a cancelled dedicated area on payment of consideration determined by the minister.

(2) An application under this section must be accompanied by a certified copy of the order of the registrar made under Part 8 of the Land Title Act.

(3) This section does not apply to land in respect of which the registrar has made a vesting order under section 134.1 of the Land Title Act.

 
Municipal Act

3 The Municipal Act, R.S.B.C. 1979, c. 290, is amended by adding the following section:

Power to cancel the dedication of a highway

533.1 (1) Subject to subsection (2), the council of a city, town, district or village municipality may cancel by bylaw the dedication of a highway or portion of a highway that has been stopped up and closed to traffic under section 578 (1) (b) and rededicate the highway or portion of a highway as a park or public square.

(2) Before enacting a bylaw under this section, the council must hold a public hearing in compliance with section 956.

(3) On the enactment of a bylaw under this section, the council must file in the land title office a copy of the bylaw and, subject to subsection (4), a reference plan of the rededicated area.

(4) The registrar of the land title office may accept an explanatory plan instead of the reference plan referred to in subsection (3) if the registrar is satisfied that the rededicated area is satisfactorily shown on the explanatory plan.

(5) A bylaw under this section does not operate to effect a rededication of a highway that was dedicated by the deposit of a subdivision or reference plan in the land title office if

(a) the owner of the land at the time the plan was deposited is the owner of all of the parcels created by the plan, and

(b) the highway has not been developed for its intended purpose.

Commencement

4 This Act is deemed to have come into force on the date it receives First Reading in the Legislative Assembly and is retroactive to the extent necessary to give it effect on and after that date.

 
Explanatory Notes

SECTION 1: repeals and re-enacts Part 8 of the Land Title Act. A description of each of the re-enacted provisions follows.

Section 121: defines words and expressions used in Part 8 of the Act. In addition, this section transfers from the Attorney General to the Director of Land Titles the appointment power presently in section 127 of the Act.

Section 122: restates the general power of the registrar to cancel plans when petitioned to do so by owners of land and limits the registrar's powers as set out in the section.

Section 123: recasts the provision that establishes the formal requirements relating to petitions for plan cancellation.

Section 124: requires the petitioner to obtain and file a report from the appropriate approving officer (appointed under Part 7 of the Act) as to the impact, if any, of a cancellation of a highway, park or public square.

Section 125: requires the registrar to fix the date, time and place of plans cancellation hearings, expands the categories of persons entitled to notice and provides for service of the reports of approving officers.

Section 126: expands the registrar's discretion to require posting and advertising.

Section 127: is a new provision that states the right of persons whose land might be affected by a petition to become parties to the proceedings.

Section 128: re-enacts the "place of hearing" provision.

Section 129: gives the registrar the discretion to exercise the listed powers in the same manner as a Supreme Court judge.

Section 130: confirms the core elements of the registrar's quasi-judicial duties by describing the nature of the decisions the registrar must make and the criteria the registrar must consider.

Section 131: lists the types of orders that the registrar may make. These reflect the policy under the present Act, but in more detail for greater clarity. This section also extinguishes the dedicated status of any highway, park or public square that is cancelled under Part 8.

Section 132: authorizes municipalities, regional districts and local trust committees to oppose the cancellation of any highway, park or public square affected by a petition.

This power is transferred from the Attorney General.

Section 133: extends the powers described in section 132 of the Act to the Minister of Transportation and Highways.

Section 134: establishes the formalities relating to preparation and registration of registrars' orders following plans cancellation hearings. If any conditions of such orders are not fulfilled within 3 months, the order ceases to have effect.

Section 134.1: authorizes the registrar to vest all or any part of a cancelled highway, park or public square in the petitioner if the petitioner was the original subdivider and continues to own all parcels in the plan.

Section 134.2: authorizes the Minister of Environment, Lands and Parks to cancel a plan if the land is owned by the Crown.

Section 134.3: re-enacts and rephrases the present section 131 of the Act that allows the cancellation of interior lot lines.

Section 134.4: provides for transition.

SECTION 2: is consequential to the repeal and replacement of Part 8 of the Land Title Act. This addition to the Land Act enables the minister under that Act to grant Crown land in fee simple in order to give effect to a plans cancellation order made by a registrar of titles pursuant to Part 8 of the Land Title Act.

SECTION 3: is consequential to the repeal and replacement of Part 8 of the Land Title Act. This addition to the Municipal Act enables local governments to cancel the dedication of a highway that has been stopped up and closed to traffic and to rededicate the highway as a park or public square.


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