Authors: Robert Tyler, Danielle Dubois
If a municipality wishes to subdivide a parcel of land for a public works project or other municipal purpose, does it have to go through the ordinary – and lengthy – provincial subdivision application process under The Planning Act? Does this process apply if the land to be subdivided is owned by a third party, or if it is located outside the municipality’s boundaries?
If you were to look only to The Planning Act, the answer would be yes. But simplified “friendly” expropriations are possible under The Expropriation Act.
A subdivision of land occurs when land described in a single certificate of title at the Land Titles Office is divided into two or more certificates of title. The Planning Act requires a detailed approval process, unless the land in question falls into one of a few narrow exceptions. For everything else, the Minister of Indigenous and Municipal Relations is required to approve any subdivision outside the City of Winnipeg. The City of Winnipeg is required to approve subdivisions of land within its boundaries. Either way, the process can be very lengthy. Outside of Winnipeg, the Minister often delegates this responsibility to a planning district board or to a regional office of the Community Regional Planning Branch, depending on the location of the land.
The length of time that a subdivision will take can vary depending on the number of applications in the system, the scale and complexity of the proposed project, and other requirements. Delays are to be expected if numerous government departments and agencies must weigh in with recommendations to the approving authority.
Fortunately, municipalities can use an alternative, more efficient process, based on section 13 of The Expropriation Act. This is sometimes referred to as “friendly expropriation.”
This process can unfold quickly if the municipality already owns the land in question, or if it has reached an agreement with a property owner from whom it wishes to acquire a portion of land. Using section 13, the municipality can effectively skip obtaining approval from the provincial government and planning authorities.
Section 13(4) of The Expropriation Act reads in part:
…an authority [the municipality] may, without registering a declaration or expropriating lands, file in the proper Land Titles Office a plan prepared by a Manitoba Land Surveyor showing lands that the municipality intends to use for a highway, drain, water control work, pipeline, telephone line, or electric powerline or any other public purpose.
Section 13(5) imposes a few further requirements in order for the process to be effective.
Based on these provisions, the municipality can simply hire a surveyor to draft a plan of works, and hire a lawyer to draft a specifically worded bylaw and certificate to comply with section 13. Once the plan of works is registered at the Land Titles Office, the subdivision is complete.
If the municipality is acquiring land from a third party, a certificate signed by or on behalf of the municipality must certify that all registered owners of the land have agreed with the municipality on what compensation they will receive in exchange for land.
If the land is owned by a third party, no transfer of land is necessary, because the land transfers directly to the municipality through a process known as “vesting.”
The certificate does not need to be complicated. At typical certificate may read as follows:
The Town of Pleasantville hereby certifies the following:
- The Town is entitled, pursuant to Section 250(2)(a) of The Municipal Act, to acquire the lands referred to in the Plan of Works prepared by Reliable Surveyors of the Town of Pleasantville, Manitoba Land Surveyor, and deposited as No. 1234/2017 WLTO.
- The Town is entitled to register the said plan pursuant to Sections 13(4) and 13(5) of The Expropriation Act.
- That John Smith and Anne Smith, the registered owners of the lands that will vest in the name of the Town by reason of filing of the said Plan, have agreed with the Town on the amount of compensation for the said land; and
- Upon filing the said plan in the Land Titles Office, the said land shall vest to and be registered in
the name of the Town, free and clear of any encumbrances.
Dated this ______ day of____________, 2017.
THE TOWN OF PLEASANTVILLE
If the land is located outside the municipality’s boundaries, the approval of the municipality in which the land is located is not required.
The municipality’s accompanying bylaw must reference the power of the municipality to acquire land for municipal purposes, and the power granted to it by The Expropriation Act for the vesting of title, in addition to other requirements.
By using the authority of section 13 of The Expropriation Act, a municipality can avoid the ordinary and often lengthy application process under The Planning Act. Section 13 can be used even if the lands to be subdivided are owned by a third party, or are located within the boundaries of another municipality.
This article first appeared in Municipal Leader, fall 2018 issue.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.
Robert Tyler is a partner with the law firm MLT Aikins LLP and practices in the area of municipal law. He is currently co-chair of the Municipal Law Subsection of the Manitoba Bar Association.