What is a Subdivision?
Generally speaking, a subdivision refers to the process of creating new lots. Sometimes this means adjusting existing lot lines, or it may mean creating two or more lots from an existing lot. Whether the lots are individually owned (fee simple) or share some of the property (strata), a subdivision application is required.
What will be considered as part of the subdivision application?
There are specific items that can be considered by the Approving Officer when reviewing a subdivision application. These items include, but are not limited to:
- confirmation that the use and lot sizes are permitted,
- identification of any environmental impacts,
- environmental assessment,
- archaeological impacts or other hazards,
- road layout and construction,
- existing amenities and servicing, and
- other, as required by the subdivision Approving Officer.
Are other applications required?
Sometimes a subdivision proposal will require other applications be made and approved before final approval of a subdivision can be given by the Approving Officer. For example, a rezoning may be required to allow a smaller lot size, or a development variance permit may be required to vary lot width. These applications require Council approval and are separate from the subdivision approval process.
How long does the application process for a subdivision take?
The amount of time it takes to process a subdivision application can vary greatly depending on a number of factors:
- the type or complexity of the subdivision,
- completeness of the application,
- preparation and submission of reports or studies, and
- time required for the applicant to complete the necessary and identified conditions for the subdivision.
If an application is complete, the Approving Officer will conduct a review of the application. If it appears that the proposed subdivision can move forward, the Approving Officer will grant Preliminary Layout Consideration (PLC). ). If PLC is granted, the time it takes to fulfill the subdivision requirements is largely up to the applicant but must be completed within six months, with the possibility of a further six month extension. If this time limit is exceeded, the application is denied and an applicant would need to reapply in order to proceed.
What is the role and authority of the Approving Officer?
The Land Title Act requires that Council appoint an Approving Officer as the statutory official responsible for ensuring that subdivision applications comply with provincial statutes, regulations and local government bylaws regulating subdivision. As such, the Approving Officer is a statutory official with separate and independent jurisdiction from the Council.
Independence of the Approving Officer from Council is important to the objectivity of the role. No re-delegation of the Approving Officer’s responsibilities or discretion (to the Council or any other person or body) is allowed under provincial legislation. For greater clarity, the Approving Officer must not take specific direction from Council on a subdivision application.
Guiding Provincial and Federal Legislation
Guiding Provincial and Federal Legislation that the Approving Officer can consider as part of the subdivision process includes, but is not limited to:
- Land Title Act
- Local Government Act and Community Charter
- Strata Property Act and Bare Land Strata Regulations
In addition, the Approving Officer may also consider the following depending on site-specific conditions:
- Real Estate Development Marketing Act
- Environmental Management Act
- Transportation Act
- Local Services Act – Subdivision Regulation
- Heritage Conservation Act
- Duty to Consult – First Nations
- Local Bylaws – Subdivision Servicing, Zoning and Official Community Plan
- Fisheries Act
- Migratory Birds Act
- Species at Risk Act
- Riparian Areas Regulation
- Water Act
How does Council participate in the subdivision process?
As the Approving Officer’s role is separate and distinct from the governance role of elected officials, it is important to understand how Council affects the subdivision process. Council’s powers to regulate subdivision are restricted to those laid out in the Community Charter and the Local Government Act. Based on legislation, Council has limited discretionary power with respect to individual subdivision applications.
Rather than influencing individual subdivision applications, Council affects the subdivision process through the adoption of policies and bylaws. Using the statutory authority of Part 26 of the Local Government Act, Council may adopt subdivision servicing bylaws and zoning bylaws, and issue development permits and development variance permits dealing with subdivision matters. These bylaws and permits may regulate the shape, dimensions, and area of subdivided parcels, and the works and services that must be provided and the associated standards.
Council also adopts the Official Community Plan (OCP) that may, for certain specific purposes laid out in the Act, designate areas within which approval of a subdivision may require, for example, a development permit by which the District may make site-specific requirements, conditions or set standards in accordance with guidelines in the OCP. The Official Community Plan may also contain policies and designations respecting the location and type of future parks and other amenities.
The Approving Officer must refuse to approve a subdivision if the Approving Officer considers that it does not conform to bylaws regulating the subdivision of land and zoning. These are the only types of bylaws that can be the direct basis for rejection of an application to subdivide. The Approving Officer may also take an Official Community Plan into consideration in determining whether a subdivision plan may be against the public interest.
The one example where Council has direct influence on a subdivision application, is for a strata title conversion, where a previously occupied building is proposed to be subdivided into units for individual ownership.
Does the public provide input into the subdivision process?
In Oak Bay, the public does not provide input on a subdivision application unless an additional application, such as a rezoning or a variance is required. In that case, public comment is considered as part of Council’s deliberation on that specific application and as required by the Local Government Act and Oak Bay’s Land Use Procedures and Fees Bylaw. For clarity, the Approving Officer is under no legal obligation to obtain the opinions of neighbours before reaching a decision on a specific subdivision application.
The Approving Officer may refuse approval of a subdivision if the Approving Officer considers that the subdivision is against the public interest.
Under the Land Title Act the Approving Officer may refuse to approve a subdivision plan if the Approving Officer considers that the approval of the plan is against the “public interest”. Neither the Land Title Act nor the Bare Land Strata Regulations offer a definition of the “public interest”; however, public interest is generally recognized through OCP Policy, which is considered by the Approving Officer. Case law also references public interest as potentially including:
- Lack of compliance with access
- Inadequate drainage
- Hazardous conditions
- Adversely affect the natural environment
- The cost of providing public utilities or other works would be excessive
The determination of public interest involves the balancing of competing interests that the subdivision Approving Officer must consider. The use of this power has been the subject matter of numerous court cases. An Approving Officer’s decision to reject an application in the public interest is unlikely to be overturned by the court provided it is not found to be:
- in bad faith,
- founded on specious or inadequate factual basis, or
- based on jurisdictional error.
Rationale for rejection of a subdivision application must be provided.
Contact the Building and Planning Department, 2167 Oak Bay Avenue Victoria, BC V8R 1G2 Ph. (250) 598-2042