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Rawcliffes lose on regulatory taking claim
February 10, 2002

The British Columbia Expropriation Compensation Board has rejected a compensation claim brought by Nicholas and Barbara Rawcliffe against the British Columbia Ministry of Environment, Lands and Parks.

The Rawcliffes had alleged that four Surrey building lots owned by them had been constructively expropriated through application of a scheme of complex development regulations triggered by their desire to construct houses on the lots. The regulations pertained to requirements for protection of fish habitat.

The Expropriation Law Centre reported on this story (Should owners bear the cost of stream protection?) in November 2000 shortly after the evidence in the case had been heard. The decision was released on February 6, 2002 and is available to subscribers under the case citation: [2002] EXLAW 301.

As described in the Board's decision, the claimants had argued that enactment of s.35 of the Fisheries Act in 1985 was the triggering event which caused the constructive expropriation. However, the Fisheries Act is federal legislation and the Board declined to take jurisdiction as a result. The Rawcliffes attempted to get around this problem by arguing that the Province had acted in partnership with the federal government but this allegation was rejected. The Board also found that all three levels of government had independent roles to play in relation to regulation of land development where fish habitat is involved. However, action against the federal government could only have proceeded in Federal Court.

The Board's decision is lengthy and carefully considered. Although it quickly dismissed the claim on the jurisdictional issue, the Board went on to consider many other issues that had been raised. In doing so the Board may have helped shed some light on what has been a very thorny problem for land owners and developers for many years.

Another significant problem for the Rawcliffes was that they had not applied for building permits prior to commencing their action. As a result, the claim was based upon a number of assumptions as to what restrictions would be imposed on their development. The Respondent responded to this by leading evidence which demonstrated that a number of these assumptions were not correct.

Although the claim was dismissed, the Board offered some solace to all developers by observing that owners of land in fisheries sensitive zones may be forgiven for questioning the fairness of the bureaucratic process. It commented that there is a clear lack of regulatory authority for many of the restrictions and controls put in place and invited all three levels of government to address this problem.

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