Canada: Get Off The Road! Encroachments On Public Roads: Part 2

Last Updated: March 15 2016
Article by Kathleen Higgins and Kayla K. Strong

The B.C. Court of Appeal recently rendered its decision in District of West Vancouver (Corporation of) v. Liu, 2016 BCCA 96 and confirmed the need for property owners to get authorization from local governments for encroachments on public roads.  In a 2-1 majority decision, the Court overturned the lower court's decision to issue a declaration to Ms. Liu under s. 36 of the Property Law Act that she is entitled to an easement for portions of her home that encroached over the District's public road allowance. The facts in this case are illustrative of a common problem that municipalities face where an owner builds structures that encroach on municipal highways, without authorization, and thereafter treats the encroachments as part of his or her property.

In our previous newsletter on the lower court's decision, we identified a number of issues that the chambers judge failed to consider.  The Court's decision addresses a number of these issues and reaffirms the need for property owners to obtain express authorization from municipalities prior to building encroaching structures.

In the course of its reasons, the Court found that the chambers judge erred in holding that the encroachments were authorized. In particular, the Court held that the judge's conclusion was speculative and that the inferences on which he based his conclusion lacked any evidentiary basis. There was no evidence that the District – or the Province as the previous owner – had ever authorized the encroachments. The Court held that there was "little doubt" that the encroachments constitute unauthorized obstructions of a highway contrary to s. 46 of the Community Charter and the District's bylaws.

The Court went on to consider the District's petition seeking a statutory injunction to order removal of the encroachments. The Court held that typically a local government will be entitled to such an injunction on a finding that there is unauthorized encroachment. The majority reasoned that "the public interest will almost always outweigh a countervailing private hardship". However, the majority held that this was an appropriate case to exercise its residual discretion not to grant such an injunction based on the "extraordinary circumstances" present. These circumstances were the willingness of the District to negotiate a sale of the area occupied by the encroachments to Ms. Liu, the fact that the majority could not identify the public interest served by granting the injunction and the fact that Ms. Liu would be forced to destroy a large portion of her home as the encroachments were substantial portions of her home – a carport occupying 431 square feet of the road, a family room occupying 621 square feet of the road , a stone patio and a Koi pond.

The Court then considered the applicability of s. 36 of the Property Law Act to public land in the course of determining whether it should issue a declaration of an easement over the land in consideration for Ms. Liu paying the fair market value of the encroached area. The Court held that s. 36 is not limited to private property, but that it would be inappropriate to override the public consultation procedures required by s. 40 of the Community Charter prior to the closure of a highway in preparation for sale to Ms. Liu. In the end, the Court held that it was instead appropriate to create a framework for negotiating the sale of land. It issued a declaration that the structures constituted unauthorized encroachments and set aside the declaration of an easement in Ms. Liu's favour. The Court also ordered that once the District passed a bylaw closing the road and concluded a purchase and sale of the encroached land to Ms. Liu then it would make a declaration under s. 36(2)(b) of the Property Law Act vesting title to the land in Ms. Liu.

In our view, it would have been preferable for the Court of Appeal to expressly set out that owners bear the onus of showing that encroachments are authorized. Nevertheless, it is a positive development that the Court properly considered the Community Charter and held that in most cases a municipality will be entitled to a statutory injunction mandating removal of unauthorized encroachments. It will be interesting to see in what other "extraordinary circumstances" a court will similarly refuse to grant injunctive relief and when a court might be willing to apply s. 36 of the Property Law Act to public 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.

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Kathleen Higgins
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