Expropriation Law Centre




Peterson Stark Scott


Urban developers discuss fish protection impacts
April 5, 2001
The B.C. Fish Protection Act will reduce the area of land available for development in British Columbia. It will also increase the cost to service the remainder and will likely reduce land values on land that can no longer be developed. To make matters worse, it looks like property owners who see their land values drop may be stuck without any right to compensation.

This was the story told to the Urban Development Institute - Pacific Region on April 5th. The U.D.I. assembled a panel of experts in Vancouver for a seminar titled "Streamside Protection Regulation - Expropriation Without Compensation?". The panel consisted of Erik Karlsen, Team Leader, Fish Protection Act Implementation Team & Director of Special Projects, Ministry of Municipal Affairs; Fran Crowhurst, Legal Counsel, Ministry of Attorney General; Ted Hanman, Managing Partner, Cox, Taylor, Barristers and Solicitors; Bruce Melville, Lawyer, Peterson Stark Scott, Barristers and Solicitors; Danny Grant, Appraiser, Interwest Property Services Ltd.; Oleg Verbenkov, Planner, Planet Consulting Group Inc. and Kim Fowler, Manager of Development Services, City of Chilliwack.

Erik Karlsen led off the event by describing the fish habitat protection objectives of the provincial government. These objectives are set out in the Fish Protection Act and the Streamside Protection Regulation which came into force in January of this year. The Act operates by requiring municipalities to adopt land use bylaws that incorporate development restrictions. In effect, local government has been charged with responsibility for achieving provincial objectives.

Karlsen was followed by the three lawyers on the panel. The lawyers agreed that this legislation has been set up in such a way that there will be few opportunities for owners to obtain compensation. Bruce Melville commented that while fish habitat protection is an important public objective, the Act achieves this objective entirely at the expense of land owners who have the misfortune to own land that is located in close proximity to a fish bearing watercourse. He was also critical of the fact that the Act will impose severe restrictions on land use yet an owner cannot easily determine the extent of those restrictions before making investment decisions. He noted that the purpose of expropriation is to provide a mechanism for shifting the cost of achieving public objectives to society as a whole rather than allowing it to be borne by individual property owners. In his opinion, the Act completely overlooks this important policy objective.

Danny Grant commented on land value impacts. Grant pointed out that streamside regulation is not new in British Columbia. There are many different restrictions on land use that exist entirely separate from regulations imposed under the Fish Protection Act. In addition, fish habitat protection was taken into account by local governments when considering development applications long before the Act came into force. He felt that increased set backs required by the Act will have a similar impact to that caused by the taking of statutory rights of way for overhead electric transmission lines or undergound pipelines. View, health and safety issues would probably not arise in a streamside protection area but on the other hand, there will be no opportunites for multiple land uses within the setback areas. Where the loss of economic use caused by a streamside protection area is total the value loss will also be total. If loss of economic use is not total, there could be substantial value retention.

Grant also made several recommendations to property owners. Where it is cost effective to do so, owners should create closed drainage systems to prevent the future designation of drainage ditches as streams subject to the Act. He also recommended that owners holding land significantly impacted by the regulations should consider appealing property assessments.

Oleg Verbenkov provided five case studies showing specific applications of the streamside protection measures. He demonstrated that property owners may be able to reduce the impact of the regulations by hiring experts to assist in negotiating specific land use restrictions with local government.

Kim Fowler wrapped up the event by commenting on the extent to which the regulations will limit further growth opportunities for Chilliwack. She observed that the majority of the land in Chilliwack is in the Agricultural Land Reserve and therefore not available for non-agricultural use. The rest is located on steeply sloped mountainsides that contain many fish bearing streams. A further problem is that the Streamside Protection Regulation does not apply to agricultural land uses. This has the potential to create many problems for administration of the regulations.

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