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.
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