January 10, 2001, E.C.B. Control No. 36/98/196 (72 L.C.R. 221)

REASONS FOR DECISION

1.   INTRODUCTION

[1] The claimants owned orchard property in a rural area near Kelowna. A road allowance ran along the north boundary of their property. It was a narrow road allowance, 45 feet in width, created by the original subdivision of the area in 1907. It was owned by the Crown, and had been given the name "Booth Road". Prior to the events leading to this proceeding, the only use of Booth Road was for access to the claimants' property. Beyond their driveway, the road allowance was nothing more than a farm track, which rose steeply to the east and petered out at the east end of the claimants' land. The claimants had built a garage or "shop" building near the north east corner of their property, and used the undeveloped road allowance themselves to access the shop, but apparently without any formal permission from the Crown.

[2] Twin Creek Cattle Co. Ltd. ("Twin Creek"), an owner of property lying further to the east, planned a subdivision for residential lots, and wished to use Booth Road for access to the proposed subdivision.

[3] Twin Creek obtained a road easement (the "Easement Road") over private property lying between its property and the property of the claimants, and then carried out road works both on Booth Road proper and on the Easement Road. This involved placing a large amount of gravel fill on Booth Road (beside the claimants' property) and cutting into bedrock on the Easement Road, just to the east of the claimants' property. Both of these changes were needed to reduce what would otherwise have been an uncomfortably steep grade.

[4] These road works had a damaging effect on the claimants' use of their property. The large amount of fill added by Twin Creek spilled over onto the claimants' land, butting up against their deer fence and threatening its stability. They could no longer access their shop, and had to be satisfied with a rather more difficult and steep access provided by Twin Creek further up the hill. This also meant having to breach their fence and build a new gate to keep out the deer.

[5] What was worse was that the road works affected the drainage in the area. It appeared that the cutbanks on the Easement Road exposed a number of springs, and the built-up state of Booth Road was a barrier to the escape of excess water. Whatever the precise cause, the result was that in wet weather, particularly during springtime runoff, the claimants experienced large-scale flooding, which brought with it a considerable amount of silt and gravel. Their shop was flooded in such times, to the point that they were concerned about its integrity. Nursery tree planting in the northeast of their property became impossible, and some young trees they had planted in that area were killed.

[6] The claim to this board is that the encroachment of road fill from Booth Road onto the claimants' property amounted to a de facto expropriation by the Crown. The claimants say that they have been permanently denied the use of that part of their land now occupied by fill, and rely on the case of Casamiro Resource Corp. v. the Queen in right of British Columbia (1991), 45 L.C.R. 161 (B.C.C.A.) for the proposition that this amounts to expropriation. They then say that since there has been an expropriation, they are also entitled to disturbance damages related to the flooding, because that also was caused by the road works relating to Booth Road.

[7] The immediate issue before the board is whether there has been an expropriation. In the absence of an expropriation, there can be no compensation claim under the Expropriation Act R.S.B.C. 1996, c. 125 ("the Act"). The respondent Ministry ("MoTH") has argued that there has been no expropriation, and that the claimants are restricted to common law remedies in nuisance or trespass. Such claims, whether brought against the developer of the Easement Road or against the Crown as owner of the Booth Road allowance, would have to be raised in the ordinary courts. This hearing dealt only with the threshold question of whether there has been an expropriation.

2.   BACKGROUND

[8] The principal factual witnesses were Sylvia Mischek (one of the claimants), and an official from MoTH, Lynda Lochhead. The board also heard from an engineer called by the claimants, Donald Dobson.

[9] The claimants' property, created as Lot 35 in subdivision Plan 475 of 1907, was shown on the plan as an 11.7 acre parcel with a 396 foot frontage on its western boundary (what is now Anderson Road) and a depth of 1,287 feet. What is now called "Booth Road" is a 45 foot road allowance running along the long northern boundary, separating lot 35 from Lot 36. In metric measure the length of the property abutting Booth Rd. is about 392 metres.

[10] The claimants purchased their property in 1976, and established a fruit orchard operation on it. To keep deer away, they built a 10-foot high fence around three sides of the property. This included the north side which fronted onto the (largely) unused Crown road allowance known as Booth Road. A gate in that fence provided access from Booth Road to their immediate home site consisting of a garage and residence. Further uphill to the east, they built a substantial "shop" in which Mr. Mischek did automotive repair work. Booth Road had been improved to some extent as far as their main gate, but beyond that it was only a track, used by the claimants to access the shop.

[11] To the east of the Mischek property lay undeveloped hilly land, still held in large parcels. The nearest owners were identified as Curtis and Vickey McNally as to one property and Klas-Olof Algard as to the other. Beyond the Algard property, further to the east, lay the parcel owned by Twin Creek. Its principal was Terry Balkan.

[12] Twin Creek bought its property in 1988. In order to create access, it made an easement agreement in June 1989 with Algard and McNally, the property owners whose property lay between its proposed subdivision and Booth Road. Twin Creek then applied to MoTH, as it had to do, for permission to connect its Easement Road to Booth Road. That application, in early 1990, contemplated access only for the purpose of a ranch and a single residence. Permission was granted on that basis. Comments later made by MoTH agents to the claimants suggest that MoTH continued to think of Booth Road as a "private driveway" until well into the process. Parts of this road were steep, but apparently that was acceptable as long as it was essentially a private road for light use.

[13] Then Twin Creek commenced activity to subdivide its property, which required a better-quality access road. Since the property is in a rural area, MoTH is the approving authority. An initial application for Preliminary Layout Approval (PLA) in early 1991 was combined with similar applications by neighbouring owners. They proposed a joint access via an existing Forest Service road which would not have affected the present claimants. Twin Creek's property was to have four lots under this proposal. However, since the property lay in the Agricultural Land Reserve, the Regional District asked that the proposal be held in abeyance pending approval of the Agricultural Land Commission ("ALC"), a process that was likely to take at least six months. It also raised some requirements of its own regarding proof of an adequate drinking water supply and payment of its subdivision processing fees. The result was that in May 1991, MoTH rejected this initial proposal for better access to Twin Creek's property.

[14] Twin Creek decided to try using its existing single-home access route for its subdivision. It approached its neighbours, McNally and Algard, and in May 1991 signed a "Road Dedication Agreement" with them, which anticipated the existing Easement Road being upgraded and eventually dedicated as a public road. There would be a 66-foot wide roadway built to MoTH standards from Booth Road, at the northeast corner of the claimants' property, through the McNally and Algard properties, to the Twin Creek property. It would follow, as close as was possible, the existing Easement Road. Once built, a plan would be prepared for its registration and dedication.

[15] Twin Creek was told by MoTH that there would have to be a new subdivision application which showed this access by the Easement Road. Thus, in September 1991, Twin Creek had its engineers prepare a new application, this time for six lots, with access to Booth Road. The design was submitted to the ALC. Twin Creek appeared to have some confidence that this application would succeed, because while waiting for approvals from the ALC and other agencies, it started on improvement of the Easement Road.

[16] Twin Creek formally applied to MoTH for a PLA for this six-lot subdivision on January 29, 1992. MoTH referred it to other agencies for their comments. Before hearing back from all of them, MoTH indicated that it would recommend acceptance of the proposal as long as certain conditions were satisfied, and as long as the other agencies also agreed. One point on which MoTH apparently was prepared to relax its usual requirements was on maximum road grade (steepness). Informally, it indicated to Twin Creek that it would accept 12% road grades on the Easement Road on the understanding that it would remain a low priority road for winter maintenance and that it would not be used by school buses. In other respects, MoTH was requiring that the road be built to its usual standards for "Rural Local" roads, which would mean a finished top of at least 8 metres width, with a running surface of 7 metres, in a 20 metre right of way. There would also be limitations on the steepness of side slopes and requirements to contain drainage.

[17] Sometime in this period, around March 1992, MoTH placed gravel along Booth Road. The evidence does not disclose why, but it may have been in aid of the limited access right it had earlier granted to Twin Creek, and the anticipation that Booth Road would now be put to some active use as Twin Creek's plans developed. This placement of gravel became important in the claimants' argument to the board, as will be seen.

[18] Unfortunately for Twin Creek, the needed approvals of other agencies were not obtained. In particular, the ALC demurred, saying that it needed more information on the agricultural capability of the lands concerned. As a result, MoTH rejected Twin Creek's PLA application in May 1992.

[19] By this time, Twin Creek had done considerable road work, and not only on the Easement Road over the Algard and McNally properties. It had also removed some of MoTH's gravel from Booth Road itself, apparently without permission from MoTH, and then replaced it with a much larger amount of fill that it obtained from the neighbouring lot (Lot 36) on the north side of Booth Road. MoTH was now getting complaints from the claimants about new runoff problems being caused by the cuttings and road works on the Easement Road up the hill from the claimants' property. On May 26, 1992, MoTH issued a formal demand to Twin Creek to restore Booth Road to its original condition by replacing the crushed gravel that Twin Creek had removed, and to take steps to contain the runoff it was creating.

[20] Twin Creek, through its engineers, continued to try to get its subdivision proposal approved. However, in November 1992, the ALC made it clear that it was not prepared to consider subdivisions in the area ("hillsides above Ellison") for some time. It needed to be convinced that its present policy of maintaining large-parcel agriculture was no longer necessary, and for that it would be awaiting the outcome of an Official Community Plan review then being conducted by the Regional District. That letter effectively stalled any further approvals.

[21] The spring of 1993 produced some very wet weather, and in June 1993 the claimants' property was considerably flooded. The Mischeks, now quite anxious, took pictures and video of the damage and provided them to MoTH and other agencies. The Ministry of Environment, Lands and Parks ("MELP") investigated, and discovered that the problem was to some extent caused by inadequate culverting where the Easement Road crossed a creek (Whelan Creek) on the hillside above the northeast corner of the claimants' land. The road works were redirecting drainage from this point onto the claimants' land, together with a considerable amount of silt. In September 1993, that Ministry notified MoTH of the remedial works it needed to see before it would approve any subdivision works.

[22] At this point Algard, over whose property the Easement Road and Whelan Creek ran, became concerned. His lawyer wrote to MoTH saying that Algard had just learned the road had not been constructed to proper standards and was causing problems. He wanted to know how this could have happened. Algard became sufficiently anxious that he telephoned MoTH in November 1993 to say that his agreement with Twin Creek and Mr. Balkan had "expired".

[23] That winter the claimants continued to express their great concern. In January 1994, they wrote to MELP seeking to know more about the Whelan Creek crossing and drainage arrangements; to the Regional District complaining that the works had been allowed to proceed without their input; and to MoTH asking how Twin Creek could have obtained permission to build an access to Booth Road, since it was bound to be too steep, and Booth Road itself was too narrow. They were met with what must have seemed like buck-passing. MELP replied that it had not approved the Whelan Creek crossing works, but that in any event the Easement Road was on private land, and any approval would be up to MoTH. MoTH, in turn, denied responsibility; it said that, in fact, there had been no road approval. The Easement Road was all on private land, and was beyond MoTH's control. The claimants' remedy was to consider civil action against their neighbours or Twin Creek.

[24] The complaints to MoTH did seem to have some effect, however. MoTH wrote to Twin Creek's engineers in March 1994 saying that they were no longer going to allow 12% grades on the Easement Road. Because of the time lapse since the last application was turned down, and changes in road standards since, any previous agreement on that point was withdrawn, and the subdivision file was closed. If it were to be revived, a new subdivision application would be needed.

[25] Twin Creek responded angrily through its engineers. It said that 12% grades had long been agreed, and that it had spent $250,000 on the assumption that the road would be approvable. It had in no way withdrawn its application; it was simply waiting for the Overall Community Plan process to complete, which would then allow ALC approval. There followed an emergency meeting, at which MoTH was apparently persuaded to reconsider and once again allow 12% grades on the Easement Road. There would, however, have to be a new subdivision application with new drawings.

[26] In June 1994, Twin Creek's engineers submitted a new application for a PLA. MoTH responded with its road requirements, formally indicating that it would accept the 12% grades where shown. MoTH did not impose similar requirements on Booth Road itself. It later explained that this road allowance was too narrow to satisfy modern standards, and it did not feel that it was either required to acquire more land itself or impose such a duty on the developer Twin Creek. However MoTH did consider some requirements for Booth Road. Informal notes on MoTH's file disclose that Twin Creek was to be asked to pave Booth Road all the way from Anderson Road at its western end, would have to limit grades to less than 8%, and that it should contain all water to the site or to "natural outfall".

[27] Twin Creek then proceeded to "improve" Booth Road by adding fill. It needed to do this to bring the grade of Booth Road to a usable level as it rose up the hill at its eastern end. To avoid excessive steepness, a substantial amount of gravel fill was needed. The work raised the level of the surface of the road as it passed the claimants' property by nearly four metres at one point. Although it appears that Twin Creek did this work without documented permission from MoTH, it is difficult to accept that MoTH did not have some idea of what was happening, given all the attention that had by then been drawn to the project.

[28] This fill left the claimants with new problems. Access to the shop at the rear of their property was much more difficult, because the road was now so high. Twin Creek did provide them with material for a ramp, but they also needed a gate to close the gap in the deer fence at that point. The other effect was that some of the fill now lay on the claimants' property. The Crown's road allowance was so narrow, and the amount of fill so great, that fill had either been placed beyond the property line or had sloughed off ("ravelled") down the side slope of the fill since placing and grading. In places, fill butted up against the claimants' deer fence to a depth of two and a half feet. The claimants were worried about the integrity of their fence. In May 1995, the claimants persuaded MoTH officials to inspect the situation; MoTH promised to see what it could do about cleaning up the excess and installing a gate.

[29] In July 1995, before anything was done, there was another heavy rainstorm, and once again the claimants' property was flooded. These cumulative events prompted further letters and requests from the claimants that Booth Road not be used for subdivision access. The claimants wrote to their MLA complaining about the treatment they were receiving, and asking why they should be forced into expensive civil action over something that the government could control. In the resulting correspondence between MLA Tyabji and MoTH, MoTH repeated its position that the flooding problems arose from works on private lands which were beyond its control, and that it had not approved those works. With respect to the fill on Booth Road itself, MoTH said that it had made offers to the Mischeks to do some remedial work, but that the Mischeks had yet to indicate their acceptance.

[30] Mrs. Mischek gave the board her own explanation of this last comment. The offer from MoTH, she said, had been minimal. The claimants wanted Booth Road lowered so that they could once again use their back access, particularly for picking up apple bins by large trucks; and they also wanted their fence restored with a gate. But MoTH said it only had $1,000 in its budget, and would only offer to do some light cleaning up of the ditches.

[31] In early 1996, the ALC decided it would not oppose the idea of subdivisions, but it felt it had something to say about the conditions of Booth Road, and wrote to MoTH complaining about the unauthorized construction. It also asked about the appropriateness of the proposed 12% grades on the Easement Road and the drainage issues. MoTH tried to soothe the ALC with assurances that the problems would be dealt with, and that they would no longer be permitting such steep grades. Although it seemed MoTH had not thought of this before, the involvement of the ALC now gave it grounds to place requirements on the developer with respect to Booth Road itself. It told the developer that it would indeed be requiring paving all along Booth Road and some reduction of the steepest grades above.

[32] During the balance of 1996, detailed road plans for the Easement Road were submitted to and reviewed by MoTH. Also, in recognition of ALC's demand to approve upgrading of Booth Road itself, MoTH "authorized" (required) Twin Creek to submit an application on behalf of MoTH for that portion of the road works. The ALC had advised that it did not think Booth Road should be considered more than a temporary solution to the access problem. There would have to be a proper collector road to the new subdivisions in the hills, taking a different route. Even so, the ALC was not impressed with the Booth Road application. In January 1997, the ALC turned the application down for lack of sufficient detail on how the runoff problems and fill encroachment would be addressed. Later, the ALC indicated it would be prepared to reconsider if those issues were dealt with.

[33] At some point, MoTH thought it had been able to satisfy the ALC in informal negotiations, and thus on April 30, 1997, Twin Creek was at last given a PLA. By this point, the subdivision had been amended to include seven lots. A number of conditions had to be satisfied, and as is standard in these documents, the approval was given only for one year.

[34] The Booth Road completion works then proceeded in earnest. During the summer of 1997, there were a number of meetings between MoTH and Twin Creek to sort out details such as sizes of culverts and location of drainage works. In July 1997 a new issue arose. The owner of Lot 36, on the north side of Booth Road, decided to complain for the first time about encroachment on his property. An internal memo shows that MoTH took the position with that owner that it did not have to remove the encroachment, on the argument that the road (including this encroachment) had become a public road by virtue of s. 4 of the Highway Act. Nevertheless, MoTH decided to negotiate with the owner about buying the encroached land in due course, when money was available, and in the meantime building a fence along the boundary.

[35] There was more rain that summer, and the claimants had had to dig ditches and dams, and install irrigation piping to divert water that was accumulating around their shop or threatening their main entrance. They still had very difficult access to the rear of their property, and wondered when the promised remediation works to control drainage on their side of Booth Road were going to happen. Considerable flow was coming from a drywell just beyond the northeast corner of their property. When they heard that their neighbour on Lot 36 was being (in their view) rather better treated, they became quite upset, and hired a lawyer. After a meeting on site, the lawyer told MoTH the Mischeks were considering a nuisance action and might take matters into their own hands to lower the grade of the road if some solution was not swiftly found. To make matters worse for MoTH, the ALC pointed out that it had yet to give formal permission for the works on Booth Road. It had yet to receive formal engineered drawings, which was one of its chief requirements.

[36] In October 1997, tired of waiting, the claimants hired a bulldozer and lowered Booth Road at the rear of their property some three to four feet, to restore their rear access. This was promptly followed by a lawyer's letter to MoTH demanding that Booth Road be promptly repaired and built to standards, with full removal of encroachments and containment of drainage. This had the effect of getting MoTH to make specific plans involving a retaining wall to contain fill, and a system of drainage down the centre of the roadway. However it could not fully comply with its usual standards, given the narrowness of the right of way. In December, it wrote back to the lawyer outlining its compromise proposals, and at the same time it wrote to Twin Creek making it clear that Twin Creek was expected to carry out and pay for these works.

[37] The project continued to move at a snail's pace, however. In May 1998, the proposed remediation had still not happened. MoTH warned Twin Creek that its PLA would shortly expire, to try and apply some pressure. Then another jurisdictional squabble erupted. The ALC reminded MoTH that it was still waiting for engineered plans for Booth Road. MoTH reacted that since it was the owner of the property it did not need the ALC's permission. This stand off, with correspondence back and forth, continued into October. Meanwhile Twin Creek sought an extension of the PLA. It was not until the very end of October 1998 that MoTH relented and sent the ALC some plans - however these were merely hand drawn sketches, not the engineered drawings that the ALC had asked for.

[38] The insistence of the ALC had some effect, in that MoTH was now prepared to place specific conditions on Twin Creek for the upgrading of Booth Road. These would include the production of engineered design drawings for upgrading works, placement of crush, paving to at least 6 metres width, pipe storm sewer down the centre of the road for 200 metres, then passing to the north side, upgrading an Anderson Rd. culvert to 600mm, placing a retaining wall on the south side of the road to contain fill within legal boundary at least 1 m away from the claimants' fence, and lastly the removal of the existing drywell that was causing overflow problems. The ALC then added some conditions of its own - rebuilding the claimants' deer fence, and removing all encroaching fill. On this basis, MoTH granted Twin Creek a revised PLA on December 23, 1998.

[39] By the time of the present hearing in May 2000, these works had been carried out. The respondent argued that in fact there was no serious fill encroachment remaining and that the water problems had been dealt with. Certainly there was no evidence of any continuing water problems after the last wet period in 1997. Mrs. Mischek's view was that problems remain. She could not point to any recent flooding, but because the weather had been dry, that did not prove the problems had been truly solved. The claimants still cannot use their back access with heavy vehicles. Fill remains on their land and against their deer fence. There is still some "ravelling" of loose fill onto their property, even over the retaining structure that Twin Creek eventually built. The sediment from past flooding also remains, and it covers an area where they had planned a "nursery" for young trees. It is now unusable for that purpose.

3.   CLAIMANTS' TECHNICAL EVIDENCE

[40] Most of the historical facts as disclosed in the evidence and documents have been set out above. In addition, however, the claimants produced evidence of a Kelowna engineer, Donald A. Dobson, P. Eng. of Dobson Engineering Ltd. The first purpose of this evidence was to show to the board the extent of actual occupation of the claimant's property either by fill from the road, or by sediment from various waves of flooding. A field study was undertaken on March 24, 1998 for that purpose. It will be recalled from the description above that at this time no remedial work had been done and indeed the respondent was still uncommitted as to what needed to be done.

[41] Mr. Dobson did not attend in a rainy period. What he observed, nevertheless, was that water was emerging from springs exposed by cutbanks on the easement road, and that this water was travelling down the road to settle in a low spot near the shop on the claimants' property. He also noted that there was a fair amount of sediment that apparently had been transported onto the property by previous flooding, although he did not measure its extent. He also looked at the fill which had been placed on Booth Road itself, and found that it encroached onto the claimants' property up to its fence line for some 150 metres. For about 80 metres of that length it piled up against and was supported by the claimants' deer fence, to a maximum depth of about 600 mm. (two and a half feet).

[42] Mr. Dobson recommended remedial measures which included culverting water the rest of the way down to Anderson Road, placing a retaining wall to contain road fill, and replacing the drywell which was at the time overflowing in wet weather. Mr. Dobson's recommendations are, in a general way, consistent with the remedies eventually ordered by MoTH. His report may have contributed to that decision.

[43] In September 1999 the claimants' present lawyer asked Mr. Dobson to return and do some further inspection and measurements. He went to the site on September 20, 1999. What he reported was:

(1) that sedimentary deposits were generally in a thin layer, up to 0.2 metres (less than a foot) thick, covering about 3,000 square metres (20 m. by 150 m.) of the northwest corner of the property;

(2) that road fill still was piled up against the deer fence, much as he had noted in his earlier visit;

(3) that the integrity of the shop was not in doubt, in spite of earlier flooding episodes;

(4) that with the raising of Booth Road, the access driveway behind the shop was too steep to be usable by heavier vehicles such as bin trucks or tow trucks, and that this was made worse by a noticeable crop between the shoulder of Booth Road and the driveway itself. Asphalting (which had not yet happened but was expected) would increase this drop.

[44] Mr. Dobson was then asked to estimate what Booth Road would look like if it were in fact built to prevailing Local Road standards, and how much it would encroach on the property. This was a hypothetical exercise which he did in his office. He assumed 2:1 fillslopes, the maximum allowable. He assumed a 1 metre allowance for snow disposal at the toe of the fillslope. He further assumed no change in the existing road centreline, but that the road grade would not be allowed to exceed 12.4%. The road surface would be 8 metres wide. Using these assumptions, it was a straightforward exercise in geometry to show that such a road would inevitably encroach greatly over the subject property. Indeed the fill under such a hypothetical road would be over 4 metres deep at the property line in some places, and would occupy part of the present shop. The total encroachment would be some 1,600 square metres.

[45] The purpose of this evidence was unclear. At best it seemed to support the claimants' observation that the actual occupation was minimal, and could not be further reduced; a properly built road would have occupied far more space. Therefore the actual encroachment should be considered permanent.

[46] Under questioning at the board, Mr. Dobson estimated that the area of the claimants' land actually occupied by road fill was about 400 square metres. He also confirmed that a retaining wall has now been built, approximately 1 metre high, and 36.5 metres long, to contain the fill in the deepest portions of the road. However there has been no attempt to remove fill that had previously fallen onto or been placed on the claimants' land. He also confirmed that the drywell which had previously contributed to flooding problems has been replaced with a new drywell on the north side of the road. He still felt concern, however, that the drainage arrangements would prove inadequate in another wet spell.

[47] Mr. Dobson's attention was also drawn to the fact that his surveys of the existing road disclosed a discontinuity in the side slopes. At the points where the greatest amount of fill had been placed, there is a distinct flattening of the side slope near the property line. This appeared to the board to be explained by the fact that fill was added in two stages. An initial placing of fill by Twin Creek in the spring of 1992 was followed by a completion of the road at a much later point. The drawings show that if the later slopes continued to native ground level there would, in every case, be an insignificant encroachment on the claimants' land. The encroachment, therefore is essentially all associated with the first application of fill.

4.   CLAIMANTS' ARGUMENT

[48] The claimants argue that the occupation of their land by fill which supported a road on the Crown's Booth Road right of way constituted an effective expropriation even though there was no attempt by the Crown to engage the processes of the Expropriation Act.

[49] (Although it is not necessary for this part of the proceeding to note the area of such an occupation, or even that there is occupation, the board is satisfied from the evidence of Mr. Dobson and others that there is in fact some fill on the claimants' land. Indeed, the point was conceded by the respondent.)

[50] In oral argument, the claimant's lawyer, Mr. Coates, relied principally on Casamiro (cited above) as setting out the law on deemed expropriations. It was irrelevant that formal expropriation processes had not been taken, if in fact there was a permanent denial of the use of one's property. In Casamiro, the issue was the effect of an Order in Council which barred further mining and exploration in Strathcona Park on Vancouver Island. Crown granted mineral claims in the park had, in the opinion of the Court, been reduced to "meaningless pieces of paper" (p. 169). The result was a declaration that there had been an expropriation, and the matter went on to this board to determine compensation.

[51] Mr. Coates conceded that there had to be a taking by the Crown, and not by a private individual, for this argument to succeed. He contended that although the roadfill had been placed by the developer Twin Creek, it was always at the direction and control of MoTH. The Crown, through MoTH, owned the land constituting the Booth Road right of way, and allowed Twin Creek to place fill on it. It was not credible that MoTH did not approve this action. Although there was no document authorizing it, tacit approval must have existed.

[52] Mr. Coates pointed to various indications of this approval. He noted that the original permission given to Twin Creek in April 1990 to connect to Booth Road was in a document which referred to access to a "provincial highway". From this, he said, one could infer that MoTH knew this road was not to be left as a mere farm track. The correspondence in late 1991 and early 1992 concerned using Booth Road for access to more than one proposed subdivision. MoTH admitted that by April 1992 it was well aware that Twin Creek had begun the work on the Booth Road access. Even the letter of May 1992, by which MoTH demanded that Twin Creek replace the crushed gravel on Booth Road, should be seen as an approval of the work done to date; since (in Mr. Coates' argument) MoTH was not requiring removal of the developer's fill, but only that the Ministry's crushed gravel be placed on top.

[53] Overall, Mr. Coates said the implication was clear that MoTH knew Booth Road had to be raised if it was to be used to access subdivisions to the east. MoTH knew that there was encroachment by the developer's fill onto the claimants' property, and it did nothing about it. In those circumstances, the developer Twin Creek became MoTH's agent for the regrading of Booth Road.

[54] In answer to questions posed by the board, Mr. Coates agreed that the encroachment could have been removed, and replaced at an earlier stage by a suitable retaining structure. It could still be removed. However he argued that it was not the law that a taking had to be permanent for there to have been an expropriation. The taking of temporary easements come frequently before the board, and the board could find such an expropriation in this case. If MoTH should decide now to remove the remaining encroachment, then that could affect the amount of compensation, but not the principle involved.

[55] Mr. Coates also referred briefly to the disturbance damage claim. Although it is not strictly before the board on this particular hearing, he agreed that the claim for such damage (which was related to the flooding and the fluvial material which had been deposited) would depend on a finding that there had been an expropriation.

[56] Late in his oral argument, Mr. Coates also argued that the encroaching fill is part of a travelled road on which public money has been spent, and that therefore it has become public road by virtue of s. 4 of the Highway Act. The supporting fill, he argued, is part of the road. He made this argument more fully in his written submission, subsequently filed.

[57] The relevant provision, from the Highway Act, R.S.B.C. 1996, c. 188, is:

4 (1)

If public money has been spent on a travelled road that has not before then been established by notice in the Gazette or otherwise dedicated to public use by a plan deposited in the land title office for the district in which the road is located, that travelled road is deemed to be and is declared to be a public highway.

[58] The board also noted s. 3:

3. Unless otherwise provided for, the soil and freehold of every public highway is vested in the government.

[59] This proposition was put forward as an answer to the suggestion (first made by the board) that the present case might be similar to the situations in the McEachern cases: McEachern v. B.C. Hydro and Power Authority (1997), 60 L.C.R. 186, and McEachern v. City of Nanaimo, (1977), 60 L.C.R. 211. In those cases, heard and decided together, the board found that the de facto occupation of private land by (in the first case) hydro poles and wires, and (in the second case) municipal sewer and water pipes, did not constitute expropriations. Mr. Coates argued that the "critical and fundamental difference" between the present case and the McEachern cases was that McEachern had maintained legal title to his land. To make that distinction, of course, Mr. Coates must show that the Mischeks have lost title to theirs. He argued that this was the effect of s. 4 of the Highway Act.

[60] Public money was spent on Booth Road, said Mr. Coates, when the Ministry placed crushed gravel in March 1992. Even though that gravel was removed soon afterwards by Twin Creek in order to raise the road with a large amount of fill, that initial laying of gravel qualified for the purpose of the statute, and had the effect of expropriating the land encroached upon at a later date. Mr. Coates also pointed to the final remediation work undertaken sometime after November 1998. It appeared from the correspondence and evidence that MoTH expected to contribute to the costs of the culverting, the retaining wall, and the like, although the board was not in fact told how much was paid by the developer and others, and how much was in the end paid by the Crown.

[61] Mr. Coates argued that Booth Road is a "travelled road", although he did not point to any particular time that it became so.

[62] Finally if Booth Road is to any extent a "s. 4 highway", then it must all be. Section 4 would bring into the Crown's ownership the full width of the road, including the supporting fill and slopes. On this argument, the area of the claimants' land which is now occupied by fill has passed to the Crown by operation of law.

[63] Mr. Coates added that if this is so, a trespass action by the Mischeks against the Crown would fail. If the land is transferred to the Crown by the operation of s. 4 of the Highway Act, then there is no trespass.

5.   RESPONDENT'S ARGUMENT

[64] Ms. Poole, arguing for MoTH, opened her oral submission by conceding that the claimants felt a real grievance, and had some cause. She agreed that fill had entered their property from the Booth Road construction, and that flooding had been caused by the Easement Road construction up the hill, and inadequate drainage provisions. However she maintained that MoTH was not responsible for the actions of Twin Creek on its own land or the land of other private owners. Further, she claimed that the problems were corrected after MoTH imposed conditions in its final PLA.

[65] With respect to the works on Booth Road, she argued that there had not been an expropriation; that the claimants were in the wrong forum. An expropriation could only be found to exist if there had been a permanent deprivation of the land. For this proposition, Ms. Poole referred to The Queen in right of British Columbia v. Tener, [1985] 1 S.C.R. 533, [1985] 1 S.C.J. No. 25, which case involved mining claims in Wells Gray provincial park. In the concurring minority decision of Wilson J. and Dickson, C.J.C. the finding of an expropriation was based on an "absolute denial" of the claim owner's rights [para. 32]. The claims had become "worthless" [para. 35]. The encumbrance represented by such mining claims was "effectively removed" from the land, and the government's action amounted to a "total denial" of the claim interest [para. 38]. These kinds of indicia are required, argued Ms. Poole, before one can find an expropriation.

[66] That permanent encroachment would have to be of a type which could not be removed. The decision of this Board in McEachern v. B.C. Hydro (1997), 66 L.C.R. 186, confirms the point. That case involved hydro poles and power lines which were found to be encroaching on private land. After a considerable review of the law, this board found that situation did not constitute a de facto expropriation. It looked at Casamiro and Tener and agreed with B.C. Hydro that those cases were distinguishable firstly on the ground that they involved legislative acts, rather than mere physical ones. The board found that where B.C. Hydro had taken no formal steps to effect a taking, the factual occupation of private land without permission did not constitute an expropriation. It was presumably a wrongful trespass or nuisance which could be restrained, and hence did not have the necessary character of absoluteness and permanence.

[67] Applying this logic to the present case, Ms. Poole argued that although it or Twin Creek might be liable at law to remove fill which has spread onto the claimants' property, there is no doubt that the fill can be removed, and hence that its presence on the property does not have the permanence which would characterize an expropriation.

[68] In support of the observation that the fill could, as a matter of fact, be removed, Ms. Poole reminded the board of Mr. Dobson's cross-sections of the road, which showed that fill had been added in two stages, and that encroachment was associated only with the earlier application. The stability of the slope, she argued, would not be impaired if the encroaching fill were cut away.

[69] Ms. Poole said that the disturbance of a secondary access (in this case the access to the shop at the eastern end of the property) would not raise an expropriation. The main access to the property near the house had not been affected.

[70] With respect to the narrowness of Booth Road, Ms. Poole argued that MoTH was under no requirement, by legislation or otherwise, to widen the allowance; nor could it place such requirements on the developer. As part of MoTH's approval of a PLA it could, and did, insist that the Easement Road on private land owned or controlled by the developer be built to its most current standards. However there was doubt that MoTH had any power to require offsite expenditures by the developer, which would have been the case had it attempted to impose duties on Twin Creek to buy additional width for Booth Road itself.

[71] This has not always been MoTH's understanding of the law, but MoTH recently had a reversal in the Supreme Court in a case called Edwards v. British Columbia (Provincial Approving Officer) [1999] B.C.J. no. 41. That case involved the very same approving officer, a Mr. Dodds, who was responsible for issuing PLAs in the present case. In June 1998 Mr. Dodds had turned down the Edwards' application for a conditional PLA, saying that it did not provide adequate access to the lots in their proposed subdivision. The existing road allowance, as it ran along the front of their property was not built to the current standards. Thus if the Edwards wanted their subdivision approved, they would have to upgrade the road which came to and continued alongside their property.

[72] The Edwards appealed that ruling, and in January 1999 Hood J. of the B.C. Supreme Court reversed it. Correcting the inadequacy of the existing public highway was not something which should be imposed on the land developer. Understandably, since that time MoTH has been chary of imposing such conditions on a developer.

[73] As to MoTH's own responsibility, s. 5(1)(a) of the Highway Act expressly gives MoTH the absolute discretion to maintain highways of any width. It is clear that the old plan which established (what is now) Booth Road created a 45 foot right of way. Section 13(1)(a) of the Land Act, R.S.B.C. 1996, c. 245, deems a road to be 66 feet wide unless there was express provision to the contrary, but in this case such provision to the contrary clearly exists. Nothing in the regulations under either the Highway Act or the Local Services Act, R.S.B.C. 1996, c. 276 required the Minister to upgrade existing roads to more modern standards. In all, it could not be said that MoTH was required to widen Booth Road or to improve it at its own expense in order to accommodate the Twin Creek subdivision.

[74] The cases also show that for there to be an expropriation, it is not enough that the claimants have lost some right; it must also be shown that the alleged expropriator acquired that right - there must have been a transfer of the right. Ms. Poole argued that the Crown had not acquired any rights to the claimants' land.

[75] Finally, Ms. Poole drew the board's attention to some other circumstances when restrictions on the use of private property, even quite severe ones, have been found not to amount to expropriation. An example was Mariner Real Estate Ltd. v. Nova Scotia (Attorney General) [1999] N.S.J. No. 283 (N.S.C.A.). The Beaches Act of Nova Scotia allowed controls to be placed on private coastal land above highwater. Some kinds of activities were completely prohibited; others would require a ministerial permit. The purpose was to protect beaches from erosion. The respondent in that case had sought to build houses, but had been refused permission. It asked the court to find that its land had been expropriated, but the Court of Appeal said it had not. To succeed, the landowners would have to show that they had "lost all reasonable private uses of the lands in question" in consequence of the legislation or the actions under it. The loss of economic value was not enough to qualify.

6.   DISCUSSION AND CONCLUSION

[76] We deal first with the issue of whether the physical encroachment by road fill onto the claimants' property was an expropriation, without reference to s. 4(1) of the Highway Act.

[77] In our view, McEachern v. B.C. Hydro is a useful case which thoroughly reviews the law, including the cases cited by the claimants in this case. We see no reason to depart from any of the analysis in that decision. The important segment, from the point of view of the present case, is the passage under para. 6.8.2 entitled "De facto Expropriation". The board, after reviewing the cases, held that there would have to be a complete and absolute denial of use of the right in issue for an expropriation to be found. The key difference between the facts in McEachern and those in Tener or Casamiro was that in the latter cases there was a legislative act which had taken away the rights in question. In McEachern, there was simply the physical fact of an occupation by something belonging to B.C. Hydro. The board held that there had been no exercise of Hydro's statutory powers in placing these poles and lines on private land. As Mr. Coates stated in his argument to us, the board found that legal title to the encroached land remained with the claimant. Any "denial of rights" could therefore not be seen as absolute or permanent. If the occupation was, as it seemed, unauthorized by law, then the remedy was a tort action.

[78] That thinking, applied to the present case, yields the same result. Even if the encroaching gravel could be said to belong to and have been placed by MoTH, MoTH shows no legal right to have taken that action, and cannot be taken to have expropriated any property thereby. The remedy, if any, is a proceeding at common law that cannot be brought in this forum.

[79] MoTH is, of course, one step further removed, because the encroachment (on the evidence) was not even carried out with its authority. We conclude, without reference to the s. 4 question, that the encroachment onto the claimants' property of fill from Booth Road was not an expropriation. As a result, we have no jurisdiction to award compensation, either for land taken, or for disturbance damages.

[80] However Mr. Coates argued further that the situation was changed, and distinguishable from McEachern, by virtue of s. 4 of the Highway Act. The argument was that where public money has been spent on a travelled road, the statute produces an expropriation.

[81] The Highway Act was not pleaded in the claimants' Form A notice of claim. It was first raised by Mr. Coates in his closing submissions. This is to be regretted. It is the responsibility of parties to give proper notice of their grounds, including any statutory provisions on which they wish to rely to establish an expropriation. We do not think this was done in this case. Having said that, we have considered the claimants' argument based on s. 4 of the Highway Act, and have decided that we would not sustain it in any case.

[82] The significant words in the statute are that "public money" have been spent on a "travelled road". As mentioned earlier, Mr. Coates argued that the public money was spent when MoTH placed some gravel on Booth Road in 1992.

[83] In Mr. Coates' written argument, there is some confusion about the dates. He refers to fill having been placed on Booth Road in 1990. However this appears to the board to be wrong. In 1990 all that had happened was that Twin Creek applied for and obtained a "driveway" connection to allow it to access a single family residence and private farm. Although it obtained an easement across the intervening properties in June 1989, there is no evidence that the route was passable or used by any regular traffic before the road along the easement route was constructed. That work did not start until sometime in late 1991. As of November 1991 it was only completed to the "subgrade level", and in the board's view was still not what one would call a "travelled road".

[84] The board accepts the evidence that MoTH placed some crushed gravel on Booth Road in or about March 1992. The contribution of MoTH was apparently not considered much use by Twin Creek, because promptly thereafter, in about April 1992, it removed MoTH's surface gravel and applied a considerable amount more under-fill of its own, in an effort to bring the upper end of Booth Road to a useable grade. On the evidence, this was the application of fill which encroached on the claimants' land, and which therefore constitutes the alleged expropriation.

[85] Then, in May 1992, the ALC having effectively stopped any immediate hope of subdivision approval, MoTH wrote to Twin Creek saying that it had acted without permission in removing MoTH's superficial crushed gravel and adding fill of its own. It asked that Twin Creek "restore Booth Road to its original condition". Mr. Coates has characterized this as only requiring that the crush be replaced on top of the new fill; but the board cannot read the direction that way. On a fair interpretation, it requires a removal of the unauthorized fill.

[86] It follows from these observations that the board does not find MoTH to have achieved an expropriation by its addition of some surface gravel in March 1992. It is unproven that MoTH had anything to do with the encroachment. The evidence is that the encroachment was the result of Twin Creek's unauthorized work.

[87] The only other evidence that MoTH spent public money on the road is itself equivocal, and is very much later in time. Mr. Coates has referred to some questions and answers in discovery and to some of the documents to argue that the Ministry was "maintaining" the road by 1995. On reading through these references, the board has not come to the same conclusion. All that the board can find are the references to the final remedial work, which did not in fact get done until sometime after November 1998. The board has no evidence what public money, if any, was spent. Although it is clear enough that MoTH was considering contributing to this project, it also seems that it was doing its best to get the developer to take the lion's share. In the end the board does not know what the project cost, who paid what share, or indeed when it was done.

[88] More to the point, it is irrelevant to the Highway Act question. By the time this final remediation was carried out the "encroachment" in question had been in place for some seven years. It is not alleged that any of the work took place on the claimants' property; indeed the complaint is that it did not. No attempt was made to remove the encroaching fill from 1992. It is not the law, in the board's view, that an encroachment which was a nuisance or trespass when it occurred can become an expropriation by reason of some independent work many years later, which work does not contribute to or sustain the encroachment.

[89] The cases provided to the board by Mr. Coates do not assist his clients. In Dunromin Investments Ltd. v. Spallumcheen and CNR, 2000 BCSC 0383, it was said that the proof of establishment of a public road by the "s. 4" argument must be based on cogent and substantial evidence. There was, in that case, such evidence to convince the court that the road concerned had been "travelled freely by the public, without restriction of access" for a very long time before public funds were spent on it. No similar finding can be made in this case. Booth Road does not appear to have been travelled by the public until after Twin Creek put down the unauthorized encroaching fill, which MoTH then requested it to remove. In Whistler Service Park Ltd. v. Normway Industries Ltd. et al. (1990), 45 B.C.L.R. (2d) 328 (C.A.), all the judges agreed not to overturn a finding that a highway had been created, because public funds had been expended on a travelled road. The minority decision of Locke J.A. repeated the caution that the evidence of expenditure of public funds must be strong.

[90] We must therefore dismiss the claims. The claimants' remedy is not at this board. Given their history of having been shuffled from one agency to the next, we greatly regret finding ourselves in the position of having again to send them away. However we have no choice. We do, however, earnestly hope that a way will be found to relieve the Mischeks from having to commence other processes.

7.   COSTS

[91] The claimants asked for their costs of the proceeding to date. Given the finding that there has been no expropriation, the board regrettably does not have a jurisdiction to order costs.