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Cohen Highley LLP

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Should owners bear the cost of stream protection?
November 6, 2000

A constructive expropriation claim was the subject of a recent hearing conducted by the British Columbia Expropriation Compensation Board.

From September 11-19, 2000, the Board heard evidence relating to the complaint of two property owners who own four side-by-side parcels of land located near a creek in Surrey, British Columbia. The lots were purchased with the intention of development under the existing zoning which permitted single family residential uses. One of the lots is presently improved with a 44 year old house occupied by the owners.

According to the pleadings filed in the case, in 1998 Nicholas and Barbara Rawcliffe made some enquiries regarding the building permits that would be needed to allow construction of new homes on each of the four lots. The Rawcliffes brought their proposed building permit applications to the attention of the Ministry of Environment. The Ministry then wrote to the Rawcliffes on May 12, 1998 to say that the proposed development was unacceptable because of the need to protect fish habitat on Bon Accord Creek. The Ministry advised that the creek contained populations of both trout and salmon and that the Ministry would not support the proposed permit applications.

The parties apparently agree that the Ministry required a 15 meter set back or "leave strip" from the top of the west bank of the ravine in which the creek is located. According to the Ministry, Bon Accord Creek lies some 50 meters east of the Rawcliffe property and the east boundaries of the four lots approximately coincide with the top of the bank. Nicholas Rawcliffe says that the top of the bank lies about one meter behind the Rawcliffe property at its closest point. A 15 meter setback from the top of the bank would therefore cover a significant portion of the Rawcliffe property.

According to the claim, if the Ministry's requirement is imposed on the subject property, it would prevent development on more than 50% of the total land area. The Rawcliffes have alleged that the actions of the Ministry resulted in the constructive expropriation of the portion of their land located within the 15 meter leave strip. They are seeking compensation for the market value of this land as well as injurious affection to the remaining land and disturbance damages. The action was filed on August 31, 1998.

The Ministry formally responded to the claim on October 26, 1998 by citing section 35 of the federal Fisheries Act as authority for its actions. It took the position that the Ministry did not expropriate the Rawcliffe property and that the Rawcliffes still had all of the attributes of ownership which they held before seeking the Ministry's approval. It also pointed out that the Ministry has no responsibility to approve or deny building permits and that the Rawcliffes had not actually applied for building permits in any case.

The Board heard final legal arguments in this case on October 19, 2000. John Coates, Q.C. appeared at the hearing on behalf of the Rawcliffes. The Ministry of Environment was represented by Fran Crowhurst of the Ministry of Attorney General. The Board also heard from a number of expert witnesses including Oleg Verbenkov, Slade Dyer, Ian Whyte and Jay Wollenberg. The Board's decision has been reserved.

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