Issues for Developers, Easements and Subdivision Plans #11

By Gerry Neely
B.A. LL.B.

You own seventeen acres of vacant land in West Vancouver for which you have obtained approval of a plan of subdivision which requires the dedication of a road along the northern boundary of your property. Your problem is an easement crossing the area of the proposed road, in favour of the owner of adjoining property who had constructed a swimming pool upon it at a time when there was no sanitary sewer into which surplus pool water could be drained. The easement was given to allow drainage into a small creek. Since that time, the municipality has constructed a sanitary sewer into which the swimming pool owner had connected all of his domestic sanitary services, with the exception of the drainage for the pool.

If you as the developer are forced to relocate the road because of the easement, the cost of relocation and delay will be substantial. You therefore propose an extension of the easement under the proposed road to connect it to a new sanitary sewer. The difficulty with this proposal is that since the proposed road will become vested in the Crown, no registered charge such as an easement is permitted to encumber it. You also offer at your expense, to connect the swimming pool to the sanitary sewer.

The swimming pool owner objects to all of this, arguing that at the time the easement was granted, he felt that it would increase his privacy by preventing construction of a road close to his property, and that it might influence the density of the property behind his. He argued that the use and enjoyment of his property would be seriously affected and the market value of his property would be diminished, if a road were constructed.

With interest costs mounting daily, you instruct your solicitor to apply under Section 31 of the Property Law Act, R.S.B.C. 1979, Chapter 340, for the cancellation of the easement. This section became law in 1978 and it allows a person interested in land to apply to the Supreme Court for an Order to modify or cancel an "easement, land use contract, statutory right-of-way, a restrictive or other covenant burdening the land or the owner, a right to take the produce of or part of the soil, or an instrument by which minerals or timber or minerals and timber, being part of the land, are granted, transferred, reserved or excepted."

The Court must first satisfy itself that the application is not premature in the circumstances, and then it must look at the criteria contained in five separate subsections to determine whether the easement should be modified or cancelled. In this case, the Court looked at two subsections to decide whether the "reasonable use of the land will be impeded, without practical benefit to others, if the registered charge or interest is not modified or cancelled". The second subsection requires the Court to satisfy itself that the "modification or cancellation will not injure the person entitled to the benefit of the registered charge or interest."

The Court balanced the rights of the two parties, the undoubted large disruption and expense to the developer were it required to relocate the road, versus the right of the swimming pool owner to have it drained. The Court held that the use of the land as a road was a reasonable use and having regard to the purposes of the easement, ordered that it should be cancelled. It further ordered the developer to provide proper drainage of the swimming pool into the sanitary sewer, by the use of first-class construction and at a minimum of inconvenience to the swimming pool owner.¹

In another case, an application was made to modify a land use contract to allow a shopping centre in Penticton to commence operations four months earlier than the date provided in the land use contract. This application had the support of the City of Penticton, but it was opposed by groups affected by the earlier opening, including the Downtown Business Association. While it was admitted that there were benefits to both the community and the City, was the modification such that it "will not injure the person entitled to the benefit." Clearly, there would be an injury to downtown merchants and the Court dismissed the application.²

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