Highway Closure & Removal of Highway Dedication

Prior to the Community Charter municipalities had right of possession of local highways but ownership was in the name of the province. The Community Charter gives municipalities ownership of most municipal highways (exceptions are listed in s. 35(2)). Municipalities also have authority to regulate and prohibit in relation to highways, (subject to provincial legislation) and the authority to close highways. Since municipalities now own local highways (subject to the provincial right of resumption), provisions have been established if a municipality wants to use a portion of the highway for a different purpose, or if it wants to dispose of it. All of these provisions can be found in Part 3, Division 5 of the Community Charter.
 

What is required

Prior to adopting a highway closure bylaw, a municipality must:

• provide public notice in accordance with section 94;
• provide an opportunity for persons who are affected by the bylaw to make representations to council;
• deliver notice of its intention to close a highway to operators of utilities whose works council considers will be affected by the closure. The operator of a utility affected by a closure may require the municipality to provide reasonable accommodation of the utility’s works. If the municipality and utility are unable to reach an agreement the matter may be settled by arbitration under the Commercial Arbitration Act;
• ensure that a proposed highway closure does not completely deprive an owner of access to his/her property unless the municipality receives consent from the property owner or compensates the owner and provides alternative access;
• refer any highway closure bylaws to the Minister of Transportation (through the local Ministry of Transportation District office) for approval where the proposed highway closure is within 800 metres of an arterial highway (note that specified District staff may grant such approval on behalf of the Minister of Transportation).

Prior to adopting a highway dedication removal bylaw, a municipality must:

• provide public notice in accordance with section 94;
• provide an opportunity for persons who are affected by the bylaw to make representations to council;
• obtain consent of the owner of property if the highway in question is part of a subdivision, where the highway has not been developed and the owner of the land who created the subdivision continues to own all the parcels. Circumstances in which these conditions apply are rare.

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2. Raising Title
Once the highway closure bylaw and removal of highway dedication bylaw are adopted, and the removal of highway dedication bylaw is filed in the appropriate Land Title Office, the property ceases to be a highway, its dedication as a highway is cancelled and title to the property will be registered in the name of the municipality, in accordance with section 120 of the Land Title Act. In order for title to be raised in the name of the municipality, the Land Title Office requires that municipalities submit the bylaw and plan package to the registrar, together with an application in Form 17, a Property Transfer Tax form and the prescribed fee. As raising title and disposing of the land may occur in close conjunction, note also the Land Title Office filing requirements discussed under Disposing of Property.
 

3. Disposing of Property
Once title is raised, municipalities who want to dispose of the property must do so in accordance with the property disposal rules set out in Part 3, Division 3 of the Community Charter. If a municipality plans to dispose of property for a closed highway that removes public access to a body of water, it must either provide alternative public access to the same body of water, or set aside money in a reserve fund to acquire property that will provide public access to the same body of water.
 

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The Minister of Transportation has adopted a regulation (BC Reg 245/2004 (12 KB)) that provides that the right of resumption is automatically removed if the corporate officer of the relevant municipality files with the Land Title Office a statement certifying the following 3 facts:

• the municipality has, by bylaw, closed the highway and removed its dedication;
• the closed highway is not adjacent to a park, conservancy, recreation area, ecological reserve or other area established under the Park Act, the Ecological Reserve Act, the Protected Areas of British Columbia Act or the Environment and Land Use Act; and
• the closed highway land is to be disposed of for either of the following two purposes:
• in exchange for land necessary for the purpose of improving, widening, straightening, relocating or diverting a highway, or
• to one or more adjacent land owners for the purpose of consolidating it with the landowners’ existing adjacent parcel or parcels of land.

The certifying statement must be satisfactory to the Land Title Office. Typically, this means a written statement from the municipality that: identifies the closed highway land; states the 3 conditions in the regulation; certifies that the land at issue satisfies those conditions and therefore the right of resumption is to be removed; is signed by the corporate officer; and is accompanied by the prescribed Land Title Office fee.
 

Under this regulation, if the closed highway land satisfies the regulation – in other words, if the corporate officer of the municipality can certify that the transaction meets the circumstances set out in the regulation – then the municipality does not need a specific order removing the right of resumption. Instead, the right of resumption is automatically removed on the date that the certifying statement is filed in the Land Title Office.
 

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As noted, the municipality is responsible for satisfying itself that the 3 conditions in the regulation are met. This means the municipality is responsible for confirming the boundaries of the road in question and, in relation to the second condition (parks/conservancy), is responsible for confirming those boundaries relative to the boundaries of provincial parks/conservancy. To assist in determining the location of a road relative to provincial parks/conservancy, a municipality can obtain a list of provincial parks/protected areas in its region from the appropriate regional office of the Ministry of Environment:
 

Only if the municipality has confirmed that the road in question is in fact adjacent to a provincial park/conservancy would the municipality need to contact the Ministry of Environment regional planner to identify if there are any issues with the proposed disposal of the closed road.  In that case, the matter would not be within the circumstances set out in the regulation.
 

For any situations not covered by the regulation, a municipality will still need to seek a possible order from the Minister of Transportation to remove the right of resumption. In that case, municipalities should contact:

Kirk Rockerbie
Manager, Transportation Policy Branch
Ministry of Transportation
Phone: (250) 953-3068
E-mail: Kirk.Rockerbie@gov.bc.ca

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When to consider

What to consider

• In what circumstances does council want to close a highway, remove the highway dedication and dispose of the property? Does council deal with requests on an ad hoc basis or in the context of a policy for closing of roads and disposing of property? Does council have a narrow policy (e.g. disposal only for consolidation with adjacent parcels) or broad policy (e.g. part of P3) for dealing with property disposal of former highways?
   
  Councils have broad authority to dispose of property in any way that best meets then needs of their communities (see Property Disposal). In many cases councils will want to provide the property of a former highway to the adjacent parcel owner so the parcels can be consolidated. In other circumstances councils may consider a policy of disposing highways as part of larger community redevelopments or for community purposes such as parks, squares or affordable housing. Councils will want to consider that any property made available is done so through a consistent process and provides equal opportunity for individuals to purchase. In those circumstances where a council is only making the land available to one purchaser, they must be aware that if the land is being provided for purchase at less than fair market value this is a form of assistance and for business this can only be done in the context of a partnering agreement.
   
• Does council want to close a highway and remove highway dedication as one process or as separate processes?
   
  Most councils undertake highway closures because they intend to dispose of the property. If this is the case, it is appropriate to deal with the closure and removal of highway dedication together. However, if a council believes there may be the possibility of reusing the closed highway in the future for highway purposes, it should consider just closing the highway. If the intended closure may only be short term, council might want to use its temporary highway closure authority under section 38, rather than the permanent closure process.
   
• What kind of notice should council give?
   
  Where councils pass concurrent highway closure and removal of highway dedication bylaws they can combine the notice and opportunities to make representations requirements.
   
  Section 94 sets out the requirements for public notice. Notice must be published in a newspaper and posted in the public notice posting places. If there is likely to be considerable local concern about closing a highway, the municipality may want to consider providing additional notice to residents or a public information session.
   
  Municipalities must provide an opportunity for the public to make representations to council. The form this representation takes is at the discretion of the municipality as the legislation is silent on this matter. Whatever form is selected should be clearly advertised in notice provided to the community.
   
  Councils may want to develop a policy around what form of representation is appropriate for their community. In developing such a policy, councils will want to consider the principles of fairness and equity. Every citizen and interest group should be given the same opportunity to make representations to council on a particular matter or issue. However, there is flexibility to provide different types of opportunities for representation for the different items that are set out in the Community Charter (e.g. for highway closure versus for a business regulation bylaw).
   
• Where a municipality closes off access to a body of water, what is considered public access that is of at least equal benefit to the public?
   
  The legislation is silent on what constitutes property that provides public access to the same body of water that is of at least equal benefit to the public. Council has discretion to define what this is. The Land Title Act mandates that subdivision of water lots provides public access at regular intervals. Decisions on closure of access to water are best made in the context of the official community plan which establishes objectives and policies for parks and open space. The closure provision provides the option for consolidating access points to create the best opportunities for the public.
   
  Because citizens value the ability to access bodies of water, councils should first consider carefully the decision to close access. In situations like this councils may want to consider providing additional notice of the plan as there may be a general impact on the community for this type of closure. It may be difficult to find alternative access that is acceptable to citizens who are most likely to be impacted by a new public access location or that is affordable for a municipality, as it will be responsible for maintaining the access.
   
• What procedures does council follow when undertaking a highway exchange?
   
  Highway exchanges are most commonly used where municipalities undertake a community development that requires reconfiguration of the highway network system. Developers provide land for a new highway dedication in exchange for a property elsewhere that has had the highway dedication removed. Municipalities undertaking highway exchanges will need to undertake the process required to pass the necessary bylaws that close and remove the highway dedication and dispose of the property. Property owners dedicating their land as highway will need to do so through subdivision. Timing of these processes may be an important consideration.

Please direct questions or comments to Advisory Services.