Land regulation — Land use control, subdivision control — Subdivision approval, procedure — Subdivision applications, effect of change in legislation — Court of Appeal decision, application of.

   Special case stated by the applicant landowners to resolve whether the respondent, the Provincial Approving Officer (PAO), should process subdivision applications without regard to a Court of Appeal decision.  In 1992, Galiano Island passed new zoning bylaws that changed the minimum lot size for subdivisions on certain lands.  Those bylaws were quashed by the court. Various landowners then applied and received preliminary approval for subdivision under the former bylaws. Some landowners received final approval.  In 1995, the decision quashing the bylaws was overturned.  Thus, the PAO refused to further consider those subdivision applications or to process them.  The applicants claimed that they were entitled to have the PAO process their applications under the former bylaws. They argued that under section 993 of the Municipal Act which protected subdivision applicants from the adoption of a new bylaw for 12 months, they had vested rights.  Further, their applications were had received preliminary approval and expenditures were made in reliance on them.  The PAO claimed that section 993 provided no protection to the applicants as it was only intended to protect applicants from a subsequently introduced and passed bylaw.

   HELD:  The position taken by the PAO was correct.  After the Court of Appeal's decision, the governing law was a bar to approval of the applicants' subdivisions.  The PAO could not approve a subdivision plan that did not comply with the law at the time.  Section 993 did not protect the applicants from a change in law resulting from a Court of Appeal decision.  There was no statutory basis for rights being vested at the time of preliminary approval.

Statutes, Regulations and Rules Cited:

Counsel:

       SIGURDSON J.:—

BACKGROUND

 1      In 1992, the Galiano Island Trust Committee passed four zoning bylaws that changed the minimum lot size for subdivisions on certain lands on Galiano Island from 20 to 50 acres.  In July 1993, upon application by MacMillan Bloedel Limited to the Supreme Court of British Columbia, those four bylaws were quashed by Mr. Justice Paris.  Various landowners then applied and received preliminary approval for subdivision under the bylaws which the quashed bylaws had previously repealed.  Some landowners, in fact, obtained final subdivision approval.  Others expended, in some cases, substantial amounts to satisfy conditions of approval, but prior to those landowners obtaining final subdivision approval from the approving officer, the Court of Appeal, on August 10, 1995, overturned the trial decision.  The approving officer has refused to further consider those subdivision applications or to process them on the ground that they no longer comply with the law.

 2      The applicants in this case are all landowners affected by the Court of Appeal decision: MacMillan Bloedel Limited v. Galiano Island Trust Company (1995), 10 B.C.L.R. (3d) 121.  The respondent, Robert J. Howat, an employee of the Ministry of Transportation & Highways, is a subdivision approving officer for Galiano Island, appointed by Order in Council pursuant to s. 77(1) of the Land Title Act, R.S.B.C. 1979, c. 219.  These parties have concurred in stating a special case to resolve whether the approving officer should process the subdivision applications, or any of them, without regard to the Court of Appeal's decision.

 3      The various applicants claim to be entitled to have the approving officer process their applications under the bylaws in effect after the trial decision, which bylaws permitted subdivision into 20 acre lots.  They argue that by operation of the rule of law, and related doctrines and principles or, in the alternative, s. 993 of the Municipal Act, they have vested, crystallized or accrued rights; they claim to be entitled to have their applications processed under the law at the date of the applications as their applications were at least in midstream, if not substantially farther along, when the law they applied under, received preliminary approval under and made expenditures in reliance on, was changed by the Court of Appeal's decision.

 4      The approving officer and the intervenor, the Galiano Conservancy Association, submit that s. 993 provides some protection to a subdivision applicant from changes in bylaws, but has no application when the Court of Appeal overturns a trial judgment and in doing so declares valid bylaws which were passed prior to the subdivision applications.  These parties also say that none of the applicants have acquired, on any basis, crystallized or vested rights which protect them from the result in the Court of Appeal.

 5      Some landowners obtained final approval from the approving officer before the Court of Appeal judgment.  Their legal position was the subject of Galiano Conservancy Association v. Ministry of Transportation and Highways, Howat, Treeco Developments Ltd. and Winstanley Forest Products, [1996] B.C.J. No. 103, (24 January 1996) Vancouver A950399.  There, Chief Justice Esson held that the de facto doctrine, a doctrine related to the rule of law, protects subdivision applications which had final approval prior to the Court of Appeal's decision.  However, the status of those applicants who were slightly behind in terms of obtaining final approval and satisfying the conditions of preliminary approval was not decided in that case, and is the question before me.

 6      The parties have agreed that the issue for resolution in this special case is:

FACTS

 7      As this is a special case, the facts were agreed to by the parties.  The parties also agreed that I may refer to the facts that appear in the reasons for judgment of the Supreme Court and the Court of Appeal in the MacMillan Bloedel case.  I allowed the Galiano Conservancy Association the right to make submissions as an intervenor, but I did not allow it to introduce evidence.  I will set out the key facts from the special case verbatim.

 8      The special case then goes on to describe the particular circumstances of each applicant.

 9      I will set out the Thomas subdivision application, No. A953264, and then I will describe, in summary form, the other parties' applications:

B.  THE VARIOUS APPLICATIONS

 10      I will now summarize the facts relevant to the other applications.

(b)  The S-381 Holdings' Application (A953246)

 11      The principals of the two corporations and the other individual parties to the S-381 Holdings Application purchased this 138 acre property near the north end of Galiano Island.  On the strength of the trial judgment and with the co-operation of the approving officer, they prepared and submitted a plan to divide their property by way of a bare land strata development into six residential lots of 14 acres with a common property of 45 acres and obtained a PLA on May 13, 1994.  In reliance on the PLA and to meet the conditions specified in the PLA, the applicants spent $600,000, the most significant expense being the construction of a one kilometre road at the cost of $575,000, which was to be dedicated to the province and provide public access to Dionisio Point Provincial Park.  The road was required by the PLA to be constructed to Ministry standards and was completed in July, 1995.  In addition, substantial amounts of money were spent on water studies, engineering and land surveys to comply with the other requirements of the PLA.  On August 2, 1995, the applicants tendered a final application for approval which complied in all respects with the PLA and amendments to the PLA.  To ensure that road dedication and access through lots 79, 85 and 86 was continuous, the approving officer required subdivision plans for lots 79 and 85 to be registered prior to the plan for lot 86 and the applicants' agent provided that undertaking.  On August 9, 1995, the approving officer approved the planned subdivision of lots 79 and 85 required to dedicate the public road and to adjust a boundary between the lots.

 12      The application was rejected on September 7, 1995 on the basis that it was:

The application was actually tendered in a manner required by the approving officer, and in accordance with s. 83 of the Land Title Act, eight days before the Court of Appeal's decision.

(c)  The Wittlesey Application (A953248)

 13      These applicants purchased 140 acres for residential use in November, 1993.  On the strength of the trial judgment, and with the co-operation of the approving officer, they submitted an application to subdivide their property into seven residential lots of 10 to 20 acres with a common property of 14 acres.  After obtaining input from a number of government agencies, as well as the Galiano Island Trust Committee, the applicants obtained a PLA on May 19, 1994.  On May 5, 1995, they obtained a second PLA, this time for a two lot fee simple and five lot bare land strata subdivision subject to conditions.  In reliance on the PLA, and to meet the conditions specified in the PLA, these applicants spent $400,000, the most substantial expense being a one kilometre road similar to the one built by the S-381 applicants.  As well, these applicants spent thousands of dollars on water studies, engineering and land surveys to comply with the other requirements under the PLA, and Mr. Fleming Larsen, one of the applicants, spent substantial time building the road and completing the subdivision.  On August 2, 1995, the Wittlesey applicants tendered a completed final application for approval, complying in all respects with the PLA and amendments to the PLA.

 14      To ensure that road dedication and access was continuous through lots 79, 85 and 86, the approving officer required the plan of subdivision for lots 79 and 85 to be registered prior to the plan for lot 86 and on August 9, 1995, the respondent approved the plan of subdivision of lots 79 and 85 required to dedicate the public road to the province to adjust a boundary between these lots.

 15      On September 7, 1995 the respondent rejected the Wittlesey application on the same basis as the Thomas and S-381 applications.  Again, this application was actually tendered in a manner required by the approving officer and in accordance with s. 83 of the Land Title Act eight days before the Court of Appeal's decision.

(d)  The Winmark Application (A953326)

 16      Winmark and Treeco Developments purchased three parcels of land for subdivision and land development.  On February 10, 1995, they applied for approval of a nine lot bare land strata subdivision of the three lots.  The approving officer granted a PLA on May 30, 1995.  The applicants then commenced work to satisfy the conditions of the PLA and have expended $230,000, including $125,000 to provide road access and $50,000 to satisfy potable water requirements.  On July 31 and August 2, 1995, they submitted the final subdivision plan and final material for subdivision approval which satisfied all the conditions of the PLA.   On September 7, 1995, the approving officer advised the applicants that a portion of the subdivision application was rejected because of the Court of Appeal's decision.

(e)  The Winstanley Application (A953245)

 17      Winstanley Forest Products bought three parcels of land in 1991 to provide retirement and recreational properties for one of its director's family members.  On May 6, 1994, the applicant applied for approval of a twelve lot subdivision for two of the three parcels.  In July 1994, due to concerns of the Island Trust, one lot was eliminated to increase common property, resulting in an application for an eleven lot subdivision.  On November 24, 1994, the approving officer granted a PLA for this application subject to conditions.  This subdivision provides for most of the land to be untouched and provides for public access to one of the best beaches on Galiano Island at Montague Harbour, even though this decreases the overall market value of the subdivision. After receiving the PLA, the applicant began work to satisfy the conditions.  On May 19, 1995, the PLA was extended for 180 days to November 15, 1995.

 18      On September 27, 1995, the approving officer advised the applicant that it would have to comply with the Zoning Bylaws and that s. 993 of the Municipal Act did not postpone the operation of the bylaws in relation to their application.   Winstanley's request for a further extension of the PLA was refused on November 2, 1995, on the ground that the plan no longer complied with the Zoning Bylaws' parcel size provisions as of August 10, 1995.  In November, 1995, Winstanley confirmed to the approving officer that the work had been done to satisfy most of the PLA conditions. Winstanley had provided access road design and construction, water system design, drilling of wells, engineering covering drainage and to November 15, 1995, the development costs were $450,691.03.  Winstanley's development costs to August 10, 1995, were $302,039.97 and to September 27, 1995, were $361,662.10.  As of November 15, 1995, the cost to complete the remaining requirements was estimated at $200,000, the majority of which was road construction, and they have continued to do that work since that date.  Winstanley has effectively satisfied all PLA conditions but for some road construction and proof of potable water, and work is continuing in those areas.  The road construction is 90% complete and the water supply has been identified for eight of eleven lots or 73% complete.

 19      Winstanley expects to complete all the subdivision requirements within its control by May 1, 1996. The other conditions require the co-operation of the approving officer.  Winstanley would not have proceeded with the subdivision process if it had understood the minimum lot size would be 50 acres without the right to build a residential dwelling on each subdivided lot.  At no time was an order applied for to restrain Winstanley from proceeding further with the work or construction.

(f) The G.I.E. 323 Application (A954205)

 20      The applicant owns a 270 acre property on Galiano.  It has 13 principals, each of whom invested to obtain one lot after subdivision.  On August 6, 1993, the applicant applied for approval of a 13 lot bare land strata plan.  On November 17, 1993, the approving officer granted a PLA on various conditions, including the construction of a common access road to Ministry standards, extensive water studies and eagle nest covenants.  The applicant has expended $410,000 to date and obtained several PLA extensions.  On November 30, 1995, the approving officer told the applicant that its subdivision application would not be approved because of the Court of Appeal's decision.

(g)  The J12 Freecorp Application (A953243)

 21      On July 31, 1991, the applicant purchased land on Galiano Island to provide personal and recreational use for Mr. & Mrs. Melvin Brown and Mr. & Mrs. Don Zizzy.  On July 27, 1994, it applied for approval of a seven lot bare land strata plan.  The approving officer first issued a preliminary layout non-approval (PLNA) because of a lack of road access.  The respondent granted a PLA with conditions on May 30, 1995.  The applicant then started work and spent $62,500 to satisfy the conditions of the PLA.  On September 27, 1995, the approving officer advised the applicant that its application would have to comply with the Zoning Bylaws and that s. 993 of the Municipal Act did not postpone the operation of the bylaws in relation to its application.  The approving officer refused a further extension of the PLA November 2, 1995.

(h)  The Pilaster Holdings Application (A954322)

 22      In 1993 the applicant purchased land on Galiano Island for recreational use.  On October 29, 1993, it applied for approval of a five lot bare land strata plan.  On February 24, 1994, a PLNA was issued for technical reasons and following a further submission a PLA was issued on June 7, 1995, with conditions.  The applicant has expended $47,500 to satisfy the conditions.  On September 29, 1995, the approving officer advised the applicant that the application would have to comply with the Zoning Bylaws and that s. 993 of the Municipal Act did not postpone the operation of the bylaws in relation to its application.  On November 17, 1995, a final application was submitted which complied in all respects with the PLA, but it was rejected on November 30, 1995, because it did not comply with the Zoning Bylaws.

(i)  The 5647 Land Corporation Applications (A953247 & A961009)

 23      The applicant made two applications for properties it purchased in 1993 for the purposes of developing and subdividing lands.  On July 29, 1994, and May 19, 1995, it obtained PLAs subject to certain conditions.  The applicant expended $273,500 to satisfy the conditions in the two PLAs. By letters of September 15, 1995, and November 23, 1995, the approving officer advised the applicant he would not extend the PLAs because the subdivisions did not comply with the Zoning Bylaws.

 24      This is a joint venture between a group of individuals and MacMillan Bloedel to subdivide three properties of land of a size similar to the Thomas property, and constitutes three applications.  Preliminary subdivision applications were submitted in October and November, 1994. The preliminary subdivision applications (PSAs) were distributed to various government and Island Trust officials and all three PSAs were initially rejected and PLNAs were issued.  The applicants conducted substantial work to satisfy the concerns expressed in the PLNAs and on April 6 and 7, 1995, PLAs were issued.  The applicants expended approximately $300,000 and considerable effort to satisfy the conditions of the PLAs.  The respondent formally rejected the PLAs on September 28, 1995,  when he confirmed that he would not extend the PLAs because the proposed subdivision did not comply with the Zoning Bylaws.

 25      I understand from counsel that there are as well other applications for subdivision that were submitted following the decision of Paris, J. which are in various states of progress after having received preliminary approval.

C.  ROLE OF APPROVING OFFICER

 26      The approving officer is a statutory officer under the Land Title Act and, in the case of rural areas, appointed by the Deputy Minister of Transportation and Highways.  The approving officer is independent of the local government responsible for zoning and subdivision regulation and is charged by statute with the approval of subdivisions. The Land Title Act deals with the requirements for subdivision generally and establishes the authority of the approving officer to approve or reject a subdivision application.  The particular jurisdiction of the approving officer is set out in ss. 85-88 of that Act:

ISSUES

 27      The questions that arise from the issue stated by the parties in this special case are:

 28      Although there has in the past been a fair amount of litigation concerning the effect of a change in law on a pending application for subdivision, this case is unique:  the change in law did not occur because of a subsequently passed zoning bylaw, but because a trial decision was overturned by the Court of Appeal.

PARTIES' GENERAL POSITIONS

A.  THE APPLICANTS' POSITION

 29      The landowners contend that having obtained preliminary layout approval, their applications are protected by s. 993 of the Municipal Act which protects subdivision applicants from the adoption of a new bylaw for a period of twelve months.  The applicants contend that the term "adopt a bylaw", as that term is used in s. 993, includes the Court of Appeal's decision of August 10, 1995, which in substance, they argue, repealed the law in place following the decision of Paris J. and put a new subdivision law in place.  The applicants say that construing s. 993 in such a fashion is necessary to provide an interpretation that ensures the attainment of the object of s. 993 and also to avoid an absurd and unjust construction.

 30      The applicants say that if the Court of Appeal's decision does not constitute an adoption of the bylaws and s. 993 does not apply, nevertheless, they have acquired rights under the law as it existed following the trial judgment. They argue that the approving officer should continue to process their plans in accordance with the prior law because of the preliminary approvals they obtained and, in addition, because substantial expenditures following preliminary approval were made in reliance on the existing law.

 31      The applicants contend that the legal basis for their entitlement is the rule of law, including the de facto doctrine and that their vested, crystallized or accrued rights cannot be affected by a subsequent change in the law. Alternatively, they contend that the rule of law requires that the court craft a remedy that protects their legitimate expectations which arose because they expended substantial sums in good faith in reliance on the existing law.

B.  THE RESPONDENT'S POSITION

 32      The approving officer and the intervenor submit that s. 993 provides no protection to the applicants from the effect of the Court of Appeal decision; it was only intended to protect subdivision applicants from a subsequently introduced and passed bylaw.  The respondent contends that the grace period of twelve months contemplated by s. 993 ran from January 24, 1992, when the zoning bylaws in question were initially passed, and has long since expired.

 33      The approving officer's position is that, at law, he cannot process or approve a plan that creates a subdivision that is contrary to the existing law and that as such no rights have vested or crystallized prior to final approval. The respondent accepts that if prior to the decision of the Court of Appeal, the applicants obtained crystallized or vested rights, those rights are protected by the de facto doctrine, notwithstanding a subsequent change in the governing law because of the decision of the Court of Appeal.

 34      The approving officer says that the Court of Appeal in the MacMillan Bloedel decision could have ordered that subdivision applicants, having obtained preliminary approval, were exempt from the new bylaws.  The approving officer contends that an order exempting them from the application of the law was their only possible relief; they could have applied in the Court of Appeal or the Supreme Court of Canada.  (The applicants here say that the approving officer's position is academically speculative, practically impossible and unnecessary as their rights have vested.)

ANALYSIS

 35      The effect of the Court of Appeal's decision of August 10, 1995, was to declare zoning bylaws 81, 83, 84 and 85 valid and in force from the date of their adoption, January 25, 1992.  However, it seems equally clear that following Paris J's. decision and prior to the Court of Appeal's decision, the law in force at the time the applicants obtained preliminary approval were zoning bylaws that permitted their proposed subdivisions.  How is this conflict to be resolved?

 36      There are obvious conflicting interests.  On the one hand, there are the interests of the property owners who have invested substantial sums in satisfying lawful conditions under their preliminary approvals for subdivision who wish to complete their subdivisions.  On the other hand, it could be said that there is the interest in the local government, the Galiano Island Trust Committee, in the enforcement of its bylaws which have ultimately been determined by the Court of Appeal to have been validly adopted prior to the landowners' applications for subdivision.

 37      There is always a conflict when there is a change in the law that may affect a pending application for subdivision.  Ordinarily the change occurs when the local government introduces a new bylaw rather than when a quashed bylaw is revived by a decision of an appellate court.

A.  HISTORICAL POSITION

 38      The Municipal Act was amended several years ago to provide some protection from legislative change for subdivisions that were instream for a period of time. However, I will begin my analysis by considering the position prior to the establishment of a legislative grace period, because there is a serious issue in this case whether the saving provision in s. 993 applies at all.

 39      The issue, historically, in British Columbia, has arisen on an application to the court to compel the approving officer to grant final approval to a subdivision plan.  Prior to the adoption of a legislative grace period, the authorities were consistent that when there was a lawful change in the law, prior to final approval, that prohibited the subdivision, the application to compel the approving officer to grant final approval would fail.

 40      An early example was Piccadilly Estates Ltd. v. Delta (26 September 1975), Vancouver No. 777/74 (B.C.C.A.). The applicant had sought an informal and tentative approval from the approving officer which was refused.  Subsequently, a zoning bylaw affecting the land was adopted which changed the minimum lot size from 6,600 square feet to five acres.  The developer then applied for approval of its subdivision plan, but the approving officer refused approval because the plan failed to meet the minimum lot size required by the amended bylaw and because the services within the subdivision had not been constructed, as was required by a recently adopted bylaw.

 41      Taggart J.A. said at page 8:

 42      In Wilkin et al v. White (1979), 11 M.P.L.R. 275, (S.C.), the petitioner sought mandamus to compel an approving officer to approve a four lot subdivision.  In rejecting the subdivision application, the approving officer advised the applicant that counsel had given three readings to a subdivision amendment bylaw which was subsequently adopted. No motion to quash that bylaw had been made and Bouck J., in rejecting the application for mandamus, said at p. 279:

 43      In Granite Development Ltd. v. Her Majesty the Queen in Right of the Province of British Columbia and others (22 December 1981) Kamloops No. 3796, Hinds J. (B.C.S.C.), the petitioner wished to subdivide two district lots into residential building lots; after abandoning plans for both lots, it received preliminary approval for the subdivision of one lot. In 1973 it expended about $120,000 in road construction and site preparation on that land.  Later that year, the Minister of Highways announced the intention to relocate a road running through the land  In the spring of 1974 the petitioner was advised that the Ministry of Highways would require dedication of a strip of 150 feet from the lands.  In the fall of 1974, the Central Okanagan Regional District passed Bylaw 124 which restricted subdivision in a vast area, including the applicant's land, to not less than 10 acres per parcel which, if applicable, would prohibit the subdivision.  Subsequently, the Ministry of Highways determined the precise location for the road and a revised subdivision plan of the land was resubmitted, but the approving officer, an employee of the Ministry of Highways, refused to approve the plans citing Bylaw 124.  The applicant contended that Bylaw 124 was inapplicable because the subdivision was onstream when Bylaw 124 was adopted.

 44      Hinds J. concluded that as of the date of the adoption of Bylaw 124 the petitioner had not obtained any "right to final approval of its subdivision plan".  On the basis of Wilkin et al v. White, supra, and Hunter v. Corporation of the District of Surrey, (1979), 18 B.C.L.R. 84 B.C.S.C.) and Seaview Land Estates Ltd. v. Don L. South (1981), 124 D.L.R. (3d) 610,  he rejected the petitioner's arguments that the approving officer has always considered the petitioner's application for final approval to be "in stream", that the bylaw would not apply to lands for which a subdivision proposal was considered to be "in stream" or that the subdivision had been approved prior to the adoption of the bylaw.

 45      An appeal from the judgment of Hinds J. was dismissed.  (Granite Development Ltd. v. British Columbia (Minister of Transportation, Communications and Highways (8 March 1983), Vancouver CA820216 (C.A.).  Seaton J.A., speaking for the Court, agreed with Hinds J. in rejecting the proposition that subdivision proposals considered to be "in stream" would be exempt from the new bylaw.  Seaton J.A. said at p. 7:

 46      In Seaview Land v. South, supra, the Court of Appeal, considered the power of the approving officer under s. 87 of the Land Title Act and said at p. 620:

The Court of Appeal concluded that s. 87 of the Land Title Act should not be construed as permitting the registration of an unlawful subdivision.

 47      If a lawfully adopted law is in place at the time of the application to court the court is barred from making an order compelling the approving officer to give final approval because such an order would amount to the court requiring the approving officer to act contrary to the law.  That proposition is supported by the cases I have referred to.  It is also consistent with other decisions in planning law when there is a change in the zoning prior to a development obtaining required municipal approval.  The leading case is Monarch Holdings Ltd. v. Oak Bay (1977), 4 B.C.L.R. 67 (B.C.C.A.).  The applicant, Monarch Holdings, owned some property since 1960.  In 1973, the municipality prepared a bylaw to rezone the land and other lands for single family residential use, but after hearing submissions from the applicant its land was exempted from the rezoning.  In early 1976, Monarch Holdings completed plans for a 12 suite apartment building which complied with the existing zoning requirements and in April applied for a building permit.  In May, the application was refused, even though it otherwise complied with zoning requirements and the applicant would have been entitled to a mandamus order requiring the issuance of the permit.  In June, council introduced a bylaw, adopted later that month, which reduced the permitted density to only five dwelling units, which rendered impossible the plans of the applicant.  Prior to the adoption of the bylaw, a motion for mandamus was filed in court and in July a motion to quash the bylaw for illegality was filed.  McIntyre J.A. said at p. 86:

 48      In his concluding comments McIntyre J. said:

 49      As this historical review of the law would indicate, prior to the passage of s. 993, in the absence of bad faith or an improper motive, or any irrelevant or alien consideration on the part of the municipality, the race was, in fact, to the swift.  If at the time for final subdivision approval or the issuance of a building permit there was in place a lawful bylaw that prevented approval, the applicant would fail.

 50      It should be noted, however, that Monarch Holdings Ltd. has been overtaken in some circumstances by amendments to the Municipal Act.  Section 993 is one example. Another example appeared in the Court of Appeal decision in Cheung v. Victoria (City) 100 B.C.L.R. (2d) 235.  In that case the applicants were seeking to construct a twelve unit condominium complex.  A community group wrote to the City opposing the project and asking the City to downzone the property.  On December 10, 1993, the applicants learned of a December 9, 1993 resolution of the City to pass a downzoning bylaw and were advised that their application for a building permit must be filed within seven days to avoid being caught by the impending downzoning bylaw.  The applicants filed a completed building permit application by December 16, 1993. The building inspector noted that the permit was completely acceptable but on January 13, 1994, the City introduced the downzoning bylaw and purported to freeze the building permit application for 30 days.  On January 25, 1994, the applicants commenced a proceeding for mandamus to compel the issuance of a building permit.  Two days later the downzoning bylaw was introduced.   The parties were in court before Hutchinson, J. on April 22, 1994.  He granted the mandamus order and held that the purported freeze by the City was outside its jurisdiction under s. 981 of the Municipal Act and that aspect of his judgment was not appealed.

 51      Cumming J.A. (with whom Goldie J.A. concurred) held that s. 981 sets out the circumstances that must exist and the procedure that must be followed for a building permit to be withheld from an applicant otherwise entitled.  He also said that s. 981 made another change, that the building permit could not be withheld unless the rezoning process had commenced at least seven days prior to the building permit application.  He held that s. 981 established a code and that when the municipality failed to comply with s. 981(2) it could not rely on the rule in Monarch Holdings and insist on the validity of the very bylaw contemplated by s. 981.

 52      Southin J.A. reached the same decision but by a slightly different route.  She held that the attempt by the City council to invoke s. 981 was not lawful (the resolution to commence preparation of the bylaw in conflict with the application was not passed at least seven days before the building permit application).  As such, she said, the council had no right to interfere with the building inspector.

 53      As can be seen, s. 993 and, as demonstrated in Cheung, s. 981 both impact on the general statement that appears in Monarch Holdings.  If s. 993 does not apply to the case at bar, Cheung v. Victoria (City) is nevertheless relevant as an illustration of when vested rights are not defeated by a subsequently adopted bylaw.  I will discuss that matter later in these reasons.

B.  SECTION 993

 54      The Municipal Act was amended in 1985 to relieve against unfairness to the property owner who had applied for subdivision approval from a subsequent change in the law. Section 993 reads:

 55      An application for subdivision under s. 993 includes an application for preliminary approval: Fernco Development Ltd. v. City of Nanaimo, [1990] B.C.J. No. 2906 (26 July 1990) Victoria No. V01106 (B.C.C.A.).  In Whitehawk Developments Ltd. v. Corporation of Delta (1991), 4 M.P.L.R. (2d) 99 (B.C.S.C.), D.B. MacKinnon J. followed Fernco and concluded that the municipality could not circumvent the protection of s. 993 by not requesting any fee for the initial application.  In Cenam Construction Ltd. v. Cowichan Valley (Regional District) Approving Officer (1995), 5 B.C.L.R. (3d) 214 (B.C.S.C.), Huddart J. held that s. 993 existed to protect an application that was started before a bylaw was adopted, not to protect all subsequent applications with regard to the same piece of land, but that changes to a plan that were only simple administrative matters, and in response to suggestions or requests of the approving officer, could not be considered a new application for a different subdivision.  She also held that even a PLNA (preliminary layout nonapproval) was entitled to protection under s. 993.

 56      In Gardner Construction v. Parksville (City) (1995), 8 B.C.L.R. (3d) 223, the Court of Appeal held that a bylaw which purported to provide for a waiver of s. 993, adopted after submission of an application for subdivision, was ultra vires.  The bylaw was quashed and the approving officer was directed on an appeal under s. 89 of the Land Title Act to approve the subdivision in order to give effect to s. 993.  The Court of Appeal distinguished Monarch Holdings, supra, on the basis that there "mandamus was refused because the Court, in the exercise of its discretion, would not compel a municipal officer to do an act expressly prohibited by law", whereas in Gardner, the essence of the order was to compel the City to act according to law and to prevent it from depriving a landowner of his common law rights by an ultra vires act.

 57      In Robertson v. Central Saanich District (1991), 4 M.P.L.R. (2d) 249 (B.C.S.C.), the court considered an application that was beyond the grace period of s. 993.  Cohen J. applied Piccadilly Estates v. Delta, supra, and held that at the time of the receipt of the petitioner's new application for subdivision in August, 1990, the approving officer had no jurisdiction to grant subdivision approval regardless of water and sewer issues because the petitioner's proposed subdivision did not comply with the bylaw in effect;  The court had no jurisdiction on an appeal under s. 89 of the Land Title Act to direct an approving officer to approve a subdivision plan which at the time of the hearing of the appeal is contrary to the terms of the zoning bylaws in effect within the municipality.

C.  DOES SECTION 993 APPLY TO THE APPLICANT?

 58      The applicants here all had preliminary approval and clearly would have protection under s. 993 from a subsequent enactment of a bylaw by the municipality for a grace period.  But does s. 993 have any application at all in these circumstances?  There is no case which considers whether or not a decision by the Court of Appeal reinstating a bylaw quashed by the Supreme Court amounts to an "adoption" of a bylaw for the purposes of s. 993.

 59      The applicants contend that s. 993, on its proper interpretation, applies to protect the applicants from a "change in law" following their post-trial applications for subdivision.  It was argued that in these circumstances the adoption of the bylaw preventing the subdivisions should be taken to be when the order of the Court of Appeal breathes new life into bylaws that were previously declared invalid.  The applicants contend that this expansive interpretation of s. 993 is consistent with the aim of the section and with the principle codified in s. 8 of the Interpretation Act: "Every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." A more restrictive interpretation (that the bylaws were adopted on January, 24, 1992), would result, the applicants say, in an absurd and an unjust result and should not be applied.

 60      The Municipal Act does not define the word "adopt" although with respect to an official plan or bylaw, it says it includes an amendment or repeal.  No case has interpreted the phrase "when a local government adopts a bylaw" as that phrase is used in s. 993.  The applicants argue that the court should interpret those words in s. 993 in a manner which best fits the object of the section, so long as the words may reasonably bear the proposed construction (R. v. Z.(D.A.), [1992] 2 S.C.R. 1025 per Lamer C.J.C. at 1042).  The applicants say that this approach is consistent with the modern view of the Golden Rule where it is presumed the legislation is not intended to produce absurd consequences (See: Driedger on the Construction of Statutes (3d) Butterworth's; Toronto; (1994)).  The applicants contend that the more compelling the reasons for avoiding an absurdity, the greater the departure from ordinary meaning that may be tolerated.

 61      I have concluded that s. 993 does not protect the applicants from a change in law resulting from the decision of the Court of Appeal.  In my view, the term "adopt" in the phrase "a local government adopts a bylaw under this part" does not include the reversal of a trial judgment that quashed the bylaw.  The term "adopt" connotes the approval or acceptance of a bylaw by the authority having that jurisdiction.  That, I think, is made clear from the phrase in s. 993, "where a 'local government' adopts a bylaw".

 62      The bylaws were clearly adopted by the local government when they were originally enacted in 1992.  To say that they were also adopted for the purposes of s. 993 at the time of the Court of Appeal's decision reviving the bylaw, I think, is a strained and artificial construction of the word "adopt" as it appears in s. 993.

 63      But the applicants argue that s. 993 must be given this interpretation and that the court should depart from the plain and literal meaning of "adopt" and undertake a more expansive and liberal interpretation in order to obtain the objectives of s. 993. To do otherwise, they argue, would create unfairness and absurdity.  They rely on  Grini v. Grini (1969), 5 D.L.R. (3d) 640; Lyons v. R., [1984] 2 S.C.R. 633, 14 D.L.R. (4th) 482; Campbell (G.T.) & Associates v. Hugh Carson Co. Ltd. (1979), 99 D.L.R. (3d) 529 (Ont. C.A.).

 64      There are essentially two central problems with the applicants' argument.  Although legislation ought to be expansively interpreted in order to avoid absurd or unjust results, or in order to best ensure the attainment of the objects of the legislation, there is a limit to the extent to which the court can depart from the plain and ordinary meaning of the words in the section.  The limitation is that the language of the legislation must be reasonably capable of the construction that is urged upon the court.  Here I do not think that it is.  The effect of the Court of Appeal's decision of August, 1995 was that the bylaws were validly enacted on the date of their initial passage on January 24, 1992.  That is the date the local government adopted the bylaws.  The decision of the Court of Appeal may declare the bylaws valid, but it does not amount to an adoption of the bylaws.  That suggests a legislative, not a judicial act. In my judgment the language of the section is not reasonably capable of the construction the applicants suggest.

 65      Secondly, although the Interpretation Act requires enactments to be given such fair, large and liberal construction as best ensures the attainment of its objects, I am not persuaded that the interpretation urged upon me by the applicants is required to ensure that the objects of s. 993 are attained.  Section 993 was enacted to provide some protection to a landowner who has made application for subdivision approval from a local government adopting a bylaw that would otherwise affect his subdivision.  The object of the section is to provide some protection to landowners from unexpected legislative decisions of local government.  I am not persuaded that the object of s. 993 was to provide protection for subdivision applications that were made after the passage by a local government of a lawful bylaw affecting the subdivision of the lands in question.  I do not think such a situation was anticipated by the legislature when it adopted s. 993.

 66      Accordingly, I conclude that s. 993 has no application to the particular circumstances of this case.

D.  PROTECTION FROM SUBSEQUENT CHANGES IN THE LAW

 67      But if s. 993 does not protect the applicants, is there a doctrine or legal principle that supports the proposition that the applicants have a right or an entitlement to have their subdivisions processed in accordance with the law as it stood after the decision of Paris J.?  This precise issue before me has never been directly considered by this court.  I will begin by discussing the issue in general terms.

 68      A party who obtains rights on the basis of a law that is subsequently changed, overruled or quashed may, nevertheless, be entitled to some protection from the change in law.  Where the courts make a determination of invalidity of a statute, the rule of law may intervene to protect and preserve rights acquired in reliance upon the law as it existed prior to that determination  (See: Reference Re Manitoba Language Rights, [1985] 4 W.W.R. 385 (S.C.C.)):  In that case the Province of Manitoba asked the Supreme Court of Canada to rule on the validity of its laws that were only in English, notwithstanding the fact that s. 23 of the Manitoba Act, 1870, provided that English and French were required to be used in records and journals of the legislature and that the Acts of the legislature were to be printed and published in both languages.  The Supreme Court of Canada held that s. 23 entrenched a mandatory requirement and that Manitoba's unilingual enactments were invalid and of no force or effect. The Court went on to consider the effect of this ruling and discussed the concept of the rule of law at p. 406:

       (C) The Rule of Law

 69      Although the effect of the Court of Appeal's decision in the instant case was to pronounce the zoning bylaw adopted in 1992 as being valid ab initio, it does not render the decision of Paris J. a nullity.  Until the decision of the Court of Appeal, the trial judgment defined the governing law for subdivision purposes.  That was made clear by the decision of Chief Justice Esson in the Galiano Conservancy Association case (supra).  There, some of the applications for subdivision had, in fact, achieved final approval by the time that the Court of Appeal decision was rendered in August 1995.  In Galiano Conservancy the petitioner sought judicial review of the approving officer's decision to approve subdivisions following the decision of Paris J.  Subsequent to Chief Justice Esson's initial reasons, the Court of Appeal gave judgment on August 10, 1995, reversing Paris J.'s decision that the zoning bylaws were illegal.  The Galiano Conservancy Association sought to have Chief Justice Esson reverse his earlier decision by which final approval was given to a respondent Treeco Developments Ltd. to proceed with its subdivision.  Chief Justice Esson considered the effect of the Court of Appeal's judgment on subdivision applications that had, in fact, received final approval from the approving officer.  He said this:

 70      Chief Justice Esson then said at page 12:

 71      In the concluding aspects of the Chief Justice's reasons he highlighted the issue that is facing me on this application:

 72      Although the judgment of Paris J. was not a nullity, it certainly had no force and effect after the Court of Appeal's decision.  The applicable law then prohibited the approval of the applicants' subdivisions prior to the granting of final approval by the approving officer.  Apart from s. 993, the general law appears to be clear that the approving officer cannot approve a subdivision plan that does not comply with the law at the time he is called upon to decide whether or not to finally approve it.  The issue, therefore, must come down to:

E.  THE CONTEXT

 73      I think it is important to consider the context in which these questions are being addressed.  Questions of whether rights have vested, or whether the rule of law requires that things done under earlier legislation ought to be preserved, often involve broad policy considerations.  It involves at least a consideration of the circumstances under which the prevailing law was declared invalid, the circumstances under which parties relied on the law that was subsequently declared invalid, and the interest of the governing authority in seeing its lawful laws complied with.

 74      I will discuss the position of the parties pending the decision of the Court of Appeal.  First, let me describe the basis for the Court of Appeal's decision.  The following passage from the judgment of Finch J.A., I think, succinctly states the basis for the Court of Appeal's judgment.  He said at p. 182:

 75      But what of the position of the applicants?

 76      The applicants all obtained preliminary approval of their subdivision applications and then, to varying degrees, went on to satisfy the conditions.  Some expended substantial sums of money.  I need not summarize them as they appear in the facts set out earlier in this judgment.  The applicants all made their applications following Paris J.'s judgment, and relied on the state of the law as it was following his decision.  There was no bar to the applicants proceeding to obtain subdivision approval.  They were fully entitled to proceed in accordance with the law as it stood.

 77      However, the applicants would have been aware within a reasonably short time after the decision of Paris J. that it was under appeal and must have known that a successful appeal may well have prevented approval of their subdivision. There was no evidence of the applicants' precise level of knowledge of this risk, but the applicants must have understood that there was some risk that a reversal by the Court of Appeal would have a negative effect on their subdivisions.   That, I think, is clear from the preliminary layout approvals issued by the approval officer which said:

That provision may not have caused a difficulty for the applicants if s. 993 applied but it must have been clear to the applicants that any protection s. 993 offered was at best tenuous.  The applicants went forward without any certain protection of s. 993 and in the face of a pending appeal.

 78      The local government has a legitimate interest in the enforcement of its valid bylaws.    But no application was made by the Galiano Island Trust Committee for an injunction to prevent the applicants pursuing their subdivisions under the old bylaws.  However, as Chief Justice Esson mentioned, it is probable that an application for a stay of proceedings to, in effect, keep the quashed bylaws in place pending an appeal probably would have failed (Hogg, Peter W. Constitutional Law of Canada (3d Edition) p. 55-3.)

 79      The approving officer and the Galiano Island Trust Committee that passed the zoning bylaws in question are distinct entities.  The approving officer had no alternative but to apply the law as it stood following the trial judgment and the local government, other than seeking a stay, could only pursue an appeal.

 80      How is this case to be decided?  Is it a race to the swift?  Have any of the applicants made it across the line prior to the Court of Appeal judgment?

 81      The respondent says that the applicants that have not received final approval prior to the Court of Appeal decision have lost the race.

 82      It was argued by the respondent that the applicants are really in no different position than applicants prior to final approval when there was a change in the law before the introduction of s. 993.  But unlike the applicants in those earlier cases, here the applicants not only have preliminary approval, but they have gone a long way, if not all of the way, in satisfying the conditions of preliminary approval including road construction and other substantial expenses.  The applicants had to satisfy the conditions imposed on them (as opposed to simply posting security) prior to the final approval.  That should be contrasted with the normal subdivision approval process.  A developer is prepared to incur expenses because of the protection from changes in bylaws that s. 993 provides.  But what of the situation here, where s. 993 does not apply, but substantial amounts have been expended by applicants on the strength of existing laws which are then reversed by appeal prior to final subdivision approval?  Does the general law provide them with protection?

 83      The applicants' argument is an amalgam of a number of propositions.  First, they argue that they have acquired rights or have vested rights even as early as at the stage of preliminary approval and are entitled to protection notwithstanding the decision of the Court of Appeal.  Their complimentary position is that the circumstances of this case, i.e. where there have been substantial expenditures in reliance on the laws as they stood following the trial judgment requires that the court craft a remedy pursuant to the rule of law and related doctrines that allows their applications to be processed under the law as it stood when they began their applications. I will discuss the last stated position first.

F.  THE RULE OF LAW AND RELATED DOCTRINES

 84      The Manitoba Language case described legal doctrines that are available to preserve acts under laws that are subsequently ruled invalid.  The decision recognizes that although some of the doctrines developed under the rubric of the rule of law will protect and validate acts taken under invalid laws, there are limits to these doctrines.  For example, the de facto doctrine is limited to validating acts which are taken under invalid authority; the doctrine does not validate the authority under which the acts took place. Therefore the de facto doctrine preserves those subdivisions that obtained final approval but it does not validate the law that was declared invalid by the Court of Appeal.  The court held that the doctrine of res judicata precluded the reopening of cases decided by the courts on the basis of invalid laws. It also mentioned that the doctrine of mistake of law might in some circumstances prevent recovery of monies paid under invalid laws.  The court said that these doctrines are of limited scope and may not cover all the situations that could be questioned because of the declaration of invalidity.  The Supreme Court of Canada held that:

 85      The applicants suggest that the justice of the case requires that a similar order be made,  i.e. that the applications proceed and be considered under the old law or that the change in law not apply.

 86      Counsel for the approving officer submitted that I do not have jurisdiction to make such an order, that it could only be made by the Court of Appeal when it overturned the trial judgment, or by the Supreme Court of Canada on appeal.

 87      However, even if I have jurisdiction to craft a similar remedy in this case, this is not, in my judgment, an appropriate case.  The situation here is dramatically different from that facing the Supreme Court of Canada in the Manitoba Language case.  Here the applicants are not asking the court to craft a remedy to avoid chaos, but are asking that the court, to protect rights they allege to have acquired, craft a remedy that will defeat duly adopted bylaws of the local government.  Those bylaws were ultimately determined by the Court of Appeal to have been lawfully and validly passed prior to the applicant arguably acquiring any vested rights.

 88      The chaos that would have existed in Manitoba because of the absence of laws will not exist here; there will be a law in place to regulate the subdivision of land on Galiano Island and that will be the law that was passed prior to the applications.  To craft a remedy to maintain in place invalid laws would appear to defeat the intention of the elected authority.  In the Manitoba Language case, the effect of a declaration of invalidity was disruptive and unexpected, but can the same be said here?  The applicants must have been aware of the possibility of a poor result in the Court of Appeal and the possible effect of a negative result on their applications.

 89      The underlying reason for the dramatic order that was made in the Manitoba Language case was the vacuum that existed due to the declaration of invalidity and the fact that the well recognized doctrines only provided a partial solution; the rule of law had to be preserved and law and order are indispensable elements of civilized life.  Here the Court of Appeal's decision does not create chaos, it could not be said to be unexpected and, in the result, it simply upheld the prior expressed intention of the local government.  I do not think that the circumstances of this case call for an order along the lines of the one in the Manitoba Language case to protect the rule of law.

 90      Nevertheless, are the applicants entitled to some protection since they proceeded in reliance on the law as it stood following the decision of Paris J.?  Does the fact that they received preliminary approval and made substantial expenditures, in some cases all the required expenditures, entitle them to a declaration that they have vested rights and an entitlement to have their applications processed under the law at the time they initiated their applications?

G.  VESTED RIGHTS

 91      The real question here is whether the applicants, or some of them, have pursued their applications or incurred expenditures to the extent that some of them have vested or secured rights such that they are entitled to have their applications processed through to completion under the old law.

 92      When does a person acquire vested rights that are protected by law, notwithstanding a reversal of law by a court decision or a statutory enactment?

 93      The concept of vested rights is part of the rule of law.  The applicants contend that guidance in determining the applicability of the vested rights' doctrine in these circumstances can be found in the authorities that limit the impact of statutory enactments upon existing rights to what is necessary to effect parliament's intentions.

 94      Driedger on the Construction of Statutes (3d) Butterworth's; Toronto; (1994) at p. 370 states:

 95      The applicants also rely on s. 35(c) of the Interpretation Act to support their contention that they have vested rights not affected by the Court of Appeal's decision. Section 35(c) provides that the repeal of an enactment does not affect a right acquired, accrued, accruing or incurred. In Re Owners, Strata Plan VR29 and Registrar, Land Registration (1987), 91 D.L.R. (3d) 528 (B.C.S.C.), it was held that the applicant had acquired vested rights to a certificate of title to a strata lot prior to the repeal of the governing section, s. 31 of the Strata Title Act.

 96      But these principles of non-interference with vested rights apply when interpreting legislation and considering its retrospective effect.  I do not think that the principle that Driedger refers to necessarily assists me in ascertaining when in fact rights have vested.  Moreover, I do not think the Interpretation Act is of assistance to the applicants.  There has been no repeal of an enactment.  The word "repeal" is not defined in the Interpretation Act, but I am unable to conclude that the repeal of an enactment occurred when the trial decision was reversed.  In my judgment, the only  relevant repeal of bylaws occurred when the current bylaws were introduced in January 1992.

 97      The applicants acknowledge that it is difficult to define vested rights with precision and concede that a right which exists for the community at large, in respect of which no action has been taken, is not a vested right. Nevertheless, the applicants argue that they have taken sufficient steps to crystallize their entitlement so as to merit protection of their rights as vested rights.

 98      One set of applicants relies on a number of grounds which they say cumulatively support their position that they have acquired vested rights.  Firstly, they contend that it is the policy of the legislature and the courts to protect applicants for subdivision from changes in the law from the time of the application for preliminary approval. Secondly, even if they are strictly speaking outside the ambit of s. 993, their position is consistent with the circumstances which the policy underlying s. 993 is designed to protect.  (I think both points are accurate if s. 993 applied, but as it does not, I do not think the protection afforded by s. 993 has any bearing in these circumstances.)  Thirdly, the applicants say that they acquired rights when they applied for and obtained preliminary approval.  Fourthly, they contend even rejected preliminary applications can result in vested rights. (But are those rights really vested rights in the absence of the protection afforded by s. 993?  In fact, the law prior to adoption of s. 993 indicated that preliminary approval did not provide vested rights to applicants.)  Fifthly, they argue that there are cases where the courts have granted applicants rights when the law changes.  Sixthly, the Manitoba Language case allowed future acts to be validated.  The seventh, and perhaps most significant point of the applicants is that in reliance on preliminary approval they entered into contracts and expended substantial sums in order to comply with conditions of preliminary approval.

 99      But if I am correct that s. 993 does not apply, the law as I have set it out earlier seems to state clearly that if a bylaw, validly passed, is a bar to approval of the subdivision application, then the court proceeding to compel the approving officer to approve the plan must fail.  Why is it not a complete answer to the applicants' position that they have vested rights (at least to have their applications processed), that the current law prohibits their subdivisions? That certainly seems to be the effect of the cases prior to the introduction of s. 993.

 100      But it causes me concern that those earlier cases may have been decided in circumstances generally where substantial expenditures were not incurred prior to final approval (although in Granite substantial monies were spent) or under a regime where a bond could be provided to ensure the delivery and provision of services subsequent to final approval.  Here the services have been done and were required to be done prior to the application for final approval of the subdivision.  Moreover, the doctrine of vested rights may not have been directly considered in the cases that I have discussed.

 101      Have the applicants acquired a legal entitlement to subdivision approval because they expended money after preliminary approval to satisfy the conditions of approval, in reliance on the existing law.  The applicants proceeded with their subdivision applications and were not stopped by the Galiano Trust Committee.  No injunction was sought and no application for a stay of the decision of Paris J. was advanced, even though it probably would have failed.  Although the fact that substantial expenditures were made to satisfy conditions of preliminary approval suggests substantial unfairness if the applicants are not allowed to complete their subdivisions under the prior law, I was not shown any authority for the proposition that the applicants had vested rights prior to the application for final approval.

 102      The applicants, however, say that their rights have vested because they have expended substantial monies in reliance on the preliminary approval that they received or because they have acquired preliminary approval pursuant to which they have expended substantial monies to satisfy approval conditions.

 103      Let me state these propositions in a different way.

 104      Firstly, the applicants argue that they are entitled to a declaration that they have vested rights because of detrimental reliance on the law as it existed prior to the Court of Appeal decision.

 105      Secondly, (although not put precisely like this during the applicants' argument) the act by the approving officer of granting preliminary approval (with specific conditions attached) meant that he had already exercised his discretion to grant final approval.  The preliminary approval with conditions was granted by the approving officer in a regime that he established as a matter of administrative convenience.  In other words, final approval, given that the conditions have been substantially or entirely satisfied, is a mere formality.  If the approving officer has in fact already exercised his discretion (to in substance grant final approval) the argument of the applicants, I think, is that the approval so given is protected by the de facto doctrine.

 106      I do not agree with either of these contentions and I do not think that the applicants have acquired vested, crystallized or accrued rights that entitle them, or any of them, to have their applications processed under the law as it stood prior to the Court of Appeal's decision.

 107      There is no statutory basis for rights being vested at the time of preliminary approval.  Although the term "preliminary approval" appears in the Municipal Act, section 992(6), there is no regime or code in the Municipal Act under which preliminary approval gives an applicant a vested right to have its application taken through to final approval.  In fact, by statute the approving officer has 60 days after the subdivision plan is tendered to accept or reject it.  Assuming that I am correct that s. 993 does not apply in these circumstances, there is no similar statutory arrangement in the Municipal Act granting vested rights on preliminary approval such as the arrangement which was discussed in Cheung v. Victoria, (supra).

 108      A case that I considered on the question of vested rights was the Court of Appeal decision in Coho Creek Estates Ltd. v. The District of Maple Ridge, [1996] B.C.J. No. 1442, (28 June 1996) Vancouver 020135 (B.C.C.A.).  The issue was whether the developer could recover alleged overpayments of development cost charges imposed under the authority of s. 983(2) of the Municipal Act.  The developer submitted a development permit application on January 11, 1990, which was approved by council on January 22, 1990.  On January 23, 1990, an amendment to the schedule to a 1978 bylaw setting out the nature of development costs was adopted (it had been passed by the District's council on November 29, 1989).  The effect of the amendment was to increase development cost charges for each unit by $2,718.

 109      The Court of Appeal agreed with the trial judge and held that the developer's liability for development cost charges should be determined as at the date on which the application for a building permit was approved in the form submitted.  The court determined, as a matter of construction of ss. 983 and 984 of the Municipal Act, that the relevant date for determining the liability for development cost charges was prior in time to the adoption of the 1989 bylaw. Coho Creek is a particular case of statutory interpretation. I am unable to see that Coho Creek provides support for the applicants in their contention that they had secured vested rights prior to the Court of Appeal judgment.

 110      With respect to the two bases that I have described under which the applicants may have acquired vested rights, the provision that appears in each of the applicants' preliminary layout approvals is relevant.  It reads:

 111      On the question of detrimental reliance, if that is in fact a legal basis for the applicants acquiring vested rights, I do not think that the doctrine would apply here because the applicants, in satisfying the conditions of preliminary approval, were aware that their preliminary approval provided that a "change in ... bylaws" which would cause (their) approval to be contrary to the law (and would be) automatically cancelled.  I am not persuaded that the applicants were not aware of the risk of an unfavourable result in the Court of Appeal.  The applicants ought to have been aware that a reversal by the Court of Appeal jeopardized their application if it had not received final approval. Accordingly, the applicants were specifically aware that a change in law would prejudice their application and in my view ought to have been aware that s. 993 might not apply.  I am not persuaded that the suggested detrimental reliance provides a basis in law for the applicants to be exempt from the change in the law in these circumstances.  Given the terms of preliminary approval, the applicants had to be aware that the governing law might change before final approval and that the new law might be a bar to final approval.

 112      On the question of whether it could be argued that the applicants have vested rights on the basis that the approving officer has already exercised his discretion to grant final approval (albeit subject to conditions), I think this contention is answered as well by the same provision in the preliminary layout approval, that the approval was not granted for all purposes and the applicants would have known that, at least in the event of a change in the law, the application for final approval was not a mere formality or a foregone conclusion.

 113      Accordingly, I conclude that the applicants did not achieve vested rights prior to the decision of the Court of Appeal.

 114      During the course of argument counsel suggested that there may be a distinction among applicants depending upon the length to which some had gone to satisfy the conditions of preliminary approval.  Regretfully I am unable to conclude that any of the applicants who have not secured final approval before the decision of the Court of Appeal are in a better position than any of the other applicants. Obviously their argument that they have vested rights appears stronger but it is my conclusion that no vested rights arise until final approval, given my holding that s. 993 does not apply.  None of the applicants have vested rights which require the approving officer to process their subdivision applications; nor is there a legal basis for the applicants to be exempt from the current law.

 115      For these reasons I conclude that the position taken by the approving officer was correct.  After the Court of Appeal's decision, the governing law was a bar to approval of the applicants' subdivisions.  Accordingly the answer to the issue for resolution on the special case is no; the applicants do not have rights with respect to their applications so that they ought to be processed and considered by the approving officer without regard to the Court of Appeal's decision.

 116      The respondent, if he seeks costs, may arrange to have the issue argued before me in due course.

SIGURDSON J.

QL Update:  961008 cp/d/cmi/mrz/mjb/DRS/DRS/qlltl