AMENDMENT OF THE VANCOUVER CHARTER (2006)
Provincial Legislators have for the most part respected and supported the distinction between public land and private land. In the case of BC the Local Government Act specifically states that municipalities cannot designate private land solely for public use without compensation. Many other provinces, including Alberta and Ontario have legislation or directives that state that a bylaw that designates private land solely for public use will only be valid for a limited period (commonly 6 months) unless municipalities commences acquisition proceedings within that time.
However, the Vancouver Charter (the Charter) does not respect this distinction. Section 561 empowers the City of Vancouver to designate private land public. Section 563 provides that the designation has immediate and direct effect on the property owner, and section 569 provides that compensation is not payable in connection with the enactment of zoning and other bylaws within the Charter.
In July 2000 the City of Vancouver used these powers to designate 45 acres of private land solely for public use. The designation occurred without negotiation and on the basis that public acquisition may never occur!
This decision was challenged in the courts and made its way to the Supreme Court. In its decision The Supreme Court of Canada recognized the unusual nature of the Charter provisions. It granted leave, which it only does for matters of national importance, and it granted intervener status to eight Provincial interveners, including The Chamber, and two national interveners.
CPR’s argument was that the legislative notes, the lack of a public hearing requirement and other such considerations showed that when the province acted thirty years ago it had only intended to give the City the power to designate private land for public use in a situation where the City had an active plan to acquire the land.
The Court concluded that the Charter’s terms were too specific to allow that interpretation. The Court was careful however not to say that it considered the power to be an appropriate one. The Court stated, “Despite considerable sympathy for CPR’s position, I conclude that under the Vancouver Charter, the City was entitled to refuse compensation and to pass the by law, and that the courts have no option but to uphold it.”
It is critical to the investment climate that the government be clear that the distinction between private land and public has meaning in BC. It is one thing to give local governments a broad discretion to regulate the private use of private land as they see fit. One can scrutinize a proposed zoning, and its viability, and make public submissions as to whether the private use that is allowed is reasonable and appropriate. The designation of private land as public is however quite a different matter. If it becomes acceptable for local government to designate private land solely for public use, and deny it all economic use, simply to keep it available for a public use that may never happen, the concept of private land will have become largely meaningless.
This is a critical issue for the provincial economy. Should this power be allowed to stand in Vancouver there is every possibility that other regions of the province will look to be granted the same ability. While the Chamber agrees that there should be a level playing field across the province it does not feel that this should be done by granting this power to other regions, rather this power should be removed from all areas of the province.
In addition many in the international investment market look at this decision in Vancouver as indicative of the province thereby detracting from their likelihood of investing in any region of the province.
The express assurance in the Liberal’s New Era document of no expropriation without compensation carried with it the expectation that private land has meaning in British Columbia, and that British Columbia is a safe place in which to invest. Because capital is fluid, creating those expectations has brought many benefits. The expectations must however be real, and hence it is important that the Province demonstrate its commitment to the matter when a core issue such as this arises.
THE CHAMBER RECOMMENDS
That the Provincial Government amend the Vancouver Charter to provide that section 569 of the Vancouver Charter does not apply to a bylaw that designates private land solely for public use.
Provincial Legislators have for the most part respected and supported the distinction between public land and private land. In the case of BC the Local Government Act specifically states that municipalities cannot designate private land solely for public use without compensation. Many other provinces, including Alberta and Ontario have legislation or directives that state that a bylaw that designates private land solely for public use will only be valid for a limited period (commonly 6 months) unless municipalities commences acquisition proceedings within that time.
However, the Vancouver Charter (the Charter) does not respect this distinction. Section 561 empowers the City of Vancouver to designate private land public. Section 563 provides that the designation has immediate and direct effect on the property owner, and section 569 provides that compensation is not payable in connection with the enactment of zoning and other bylaws within the Charter.
In July 2000 the City of Vancouver used these powers to designate 45 acres of private land solely for public use. The designation occurred without negotiation and on the basis that public acquisition may never occur!
This decision was challenged in the courts and made its way to the Supreme Court. In its decision The Supreme Court of Canada recognized the unusual nature of the Charter provisions. It granted leave, which it only does for matters of national importance, and it granted intervener status to eight Provincial interveners, including The Chamber, and two national interveners.
CPR’s argument was that the legislative notes, the lack of a public hearing requirement and other such considerations showed that when the province acted thirty years ago it had only intended to give the City the power to designate private land for public use in a situation where the City had an active plan to acquire the land.
The Court concluded that the Charter’s terms were too specific to allow that interpretation. The Court was careful however not to say that it considered the power to be an appropriate one. The Court stated, “Despite considerable sympathy for CPR’s position, I conclude that under the Vancouver Charter, the City was entitled to refuse compensation and to pass the by law, and that the courts have no option but to uphold it.”
It is critical to the investment climate that the government be clear that the distinction between private land and public has meaning in BC. It is one thing to give local governments a broad discretion to regulate the private use of private land as they see fit. One can scrutinize a proposed zoning, and its viability, and make public submissions as to whether the private use that is allowed is reasonable and appropriate. The designation of private land as public is however quite a different matter. If it becomes acceptable for local government to designate private land solely for public use, and deny it all economic use, simply to keep it available for a public use that may never happen, the concept of private land will have become largely meaningless.
This is a critical issue for the provincial economy. Should this power be allowed to stand in Vancouver there is every possibility that other regions of the province will look to be granted the same ability. While the Chamber agrees that there should be a level playing field across the province it does not feel that this should be done by granting this power to other regions, rather this power should be removed from all areas of the province.
In addition many in the international investment market look at this decision in Vancouver as indicative of the province thereby detracting from their likelihood of investing in any region of the province.
The express assurance in the Liberal’s New Era document of no expropriation without compensation carried with it the expectation that private land has meaning in British Columbia, and that British Columbia is a safe place in which to invest. Because capital is fluid, creating those expectations has brought many benefits. The expectations must however be real, and hence it is important that the Province demonstrate its commitment to the matter when a core issue such as this arises.
THE CHAMBER RECOMMENDS
That the Provincial Government amend the Vancouver Charter to provide that section 569 of the Vancouver Charter does not apply to a bylaw that designates private land solely for public use.
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