February 17, 1992, ECB Control No.: 14/92

 

n.b. The following decision was released to counsel in the form of a letter. It was therefore not given an ECB Control Number, nor published in the Land Compensation Reports.
Between: Fatt, Phyllis and Rogers, George Alec
Claimants
And: Her Majesty the Queen in Right of the Province of British Columbia as Represented by the Minister of Transportation and Highways
Respondent
Before: John H. Heinrich, Chairman
Appearances: Scott M. Johnson, Counsel for the Claimants
Alan V.W. Hincks, Counsel for the Respondent

 

REASONS FOR DECISION

Re: Application for Appointment of Inquiry Officer Pursuant to (then) s.9 of the Expropriation Act

After reviewing the evidence presented at the hearing held on February 7, 1992 and considering argument by counsel, I have concluded and so find that the expropriation by Her Majesty The Queen in Right of the Province of British Columbia, as Represented by the Ministry of Transportation and Highways, of the right-of-way as set out in the reference plan attached to the Expropriation Notice clearly falls within the definition of a linear development pursuant to section 9 of the Expropriation Act, S.B.C. 1987, c.23. It is clear that the land expropriated forms part of the widened highway right-of-way.

I am further satisfied that the expression "public highway" contained in article 3 of the Expropriation Notice, dated December 23, 1991, after hearing the viva voce evidence and reviewing the exhibits filed, describes the purpose for which the interest in the land was expropriated. The remaining words in article 3, " . . . and other works of public utility and convenience" in my opinion relate to those structures that are and will be an integral part of the highway system.

The interpretation of the word "highway" as found in the Highway Act, R.S.B.C. 1979, c.167 and the Land Title Act, R.S.B.C. 1979, c.219 is sufficiently wide to accommodate the underpinnings for any structure that is contemplated to span a highway including a walkway or other public way, and specifically, a pedestrian overpass.

Accordingly, the request to appoint an inquiry officer cannot be considered. The operation of s. 9(1) of the Expropriation Act precludes any inquiry where land expropriated is to be used in the "construction, extension, or alteration of a linear development". Section 9(2) states that "linear development" includes a highway. Section 1 of the Expropriation Act states that "highway" means a highway as defined in the Land Title Act.

By way of comment only, I do have considerable sympathy for the difficult position in which the owners have been placed. The testimony of Mr. Kirk, the expropriating authority's property agent, was that the authority has taken the owners' "best land" which fronts the existing highway. Mr. Dodsworth, who was responsible in part for planning and design, testified that additional land will be required for a frontage road paralleling the new highway and that further land will be needed for a pedestrian overpass. The owners will be subjected to three takings for one project according to his evidence. It is not unreasonable to suggest that the Ministry of Transportation and Highways consider enlarging the present taking, fully disclose to the owners its total requirements for the project at this time, and attempt to resolve this issue through negotiations.

 

 

Government of British Columbia