Direction 15: Establishment of Highway over Untitled Crown Land

Direction to Land Surveyors No. 15 (Updated October 30, 2023)

This Direction to British Columbia Land Surveyors updates the Direction on this subject posted to the LTSA website dated June 12, 2023.  The updates have been made to reflect the change in ministry responsible for relevant portions of the Land Title Act and Land Act from the Ministry of Forests to the Ministry of Water, Land and Resource Stewardship.

This Direction provides information on the establishment of highway, as defined in the Transportation Act, over untitled Crown land. Two scenarios are covered:

Scenario A: Establishment of highway to provide access to lands being subdivided; and,

Scenario B: Establishment of highway not associated with a subdivision.

Dedication of highway through titled Crown land should be done pursuant to s. 107 of the Land Title Act. See Direction to Land Surveyors No. 16 for direction on obtaining instructions and seeking approval from the Surveyor General for Reference or Subdivision Plans.

Background

Highway is defined in Section 1 of the Transportation Act.

“Highway” means a public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement that becomes or has become a highway by any of the following:

(a) deposit of a subdivision, reference or explanatory plan in a land title office under Section 107 of the Land Title Act;

(b) a public expenditure to which Section 42 applies;

(c) a common law dedication made by the government or any other person;

(d) declaration, by notice in the Gazette, made before December 24, 1987;

(e) in the case of a road, colouring, outlining or designating the road on a record in such a way that Section 13 or 57 of the Land Act applies to that road;

(f) an order under Section 56(2) of this Act;

(g) any other prescribed means.

In order for the Ministry of Transportation and Infrastructure (MoTI) to have administration and control over a travelled way, the travelled way must be established as highway in a manner consistent with the Transportation Act and can not be subject to the Community Charter.

Creation of public road on a plan prepared pursuant to the Land Act does not establish highway under the Transportation Act but instead creates public road, under the administration and control of the Ministry of Water, Land and Resource Stewardship.

Scenario A

Section 80 of the Land Act provides the Surveyor General with the authority to establish a public road allowance through Crown land to give access to privately owned land being subdivided. The deposit of the subdivision plan in the Land Title Office has the effect of establishing highway under s. 107 of the Land Title Act.

Before the Surveyor General can approve a subdivision plan establishing a highway through Crown land, authorization to establish a road must be obtained from the Ministry of Water, Land and Resource Stewardship through a FrontCounter BC application.

Applications can include lands both inside and outside of municipalities. Inside a municipality, the highway is vested in the municipality under the Community Charter unless s.35(2) applies (e.g. a provincial arterial highway). Outside a municipality, administration and control of the highway is with MoTI.

Scenario B

If the highway will not be established on a subdivision plan, the following process can be used.

1. The land surveyor must obtain authorization from MoTI for establishment of a highway under their administration and control. Authorization for establishment of a highway within a municipality must be obtained from the Ministry of Water, Land and Resource Stewardship.
2. The land surveyor submits an application for a parcel designation to the Surveyor General through myLTSA.
3. The Surveyor General will issue a parcel designation for the land that is to be established as a highway.
4. The land surveyor conducts the survey and prepares a survey plan pursuant to the Land Act using the designation issued above, and then a reference plan pursuant to Section 107 of the Land Title Act to establish the parcel as highway, or arterial highway, as appropriate.
5. Both plans are submitted to Surveyor General for review at the same time.
6. The Surveyor General will confirm the Land Act plan and will notify the land surveyor that the reference plan is approved.
7. Following confirmation of the Land Act survey plan, Surveyor General will be instructed by the Province to prepare a Crown grant and submit the grant to the land title office to raise title to the new parcel in the name of the Crown.
8. The land surveyor, MoTI, MoTI legal counsel or the land surveyor’s client (if other than MoTI) will collect all necessary signatures and then submit the reference plan to the land title office for registration. Upon registration, highway is established.

TIP: When dealing with Crown land, in certain circumstances, public road should be established and, in other cases, highway should be established. Therefore, it is imperative that the land surveyor receives clear direction on this matter from government ahead of conducting a survey.

If your government contact needs advice or guidance, the Surveyor General is able to offer assistance.

Dave Swaile, BCLS, CLS

Senior Deputy Surveyor General