The Provisions of Section 14

Under section 14 of the Subdivision and Development Regulation, a subdivision authority must not approve an application, other than in a city, if the land in the application is within 0.8 km of a highway where the posted speed is 80 km. an hour or more, unless the land is:

(a) to be used for agricultural purposes;

(b) for a single parcel to be created from an unsubdivided quarter section which is to accommodate an existing residence and related improvements and which complies with the land-use bylaw;

(c) for an undeveloped single residential parcel to be created from an unsubdivided quarter section which is located at least 300 metres from the right-of-way of a highway and which complies with the land use bylaw;

(d) contained and permitted within an area where the municipality and the Minister of Transportation and Utilities have a highway vicinity management agreement; or

(e) contained and permitted within an area structure plan satisfactory to the Minister of Transportation and Utilities.

Responsibility of the Subdivision Authority

Section 5(3)(d) of the Regulation requires a subdivision authority to refer all applications to Transportation and Utilities, except within a city, when the proposed subdivisions is within 0.8 km of a highway where the posted speed is 80 km per hour or greater, or is adjacent to a highway where the posted speed is less than 80 km per hour. In making a decision, a subdivision authority must consider the comments of Transportation and Utilities but is bound by the Subdivision and Development Regulation. If an application is for a use permitted by section 14 (a) to (e), then section 14 of the Regulation is not a barrier to subdivision approval. If the application is for a use that is not described in section 14, the application must be refused unless a variance is obtained from Transportation and Utilities.

Obtaining a Variance

Under section 16 of the Regulation, the requirements of section 14 may be varied by a subdivision authority with the written approval of Transportation and Utilities. When the application is referred to Transportation and Utilities for comment, the Department will indicate in writing whether it is prepared to approve the variance, approve the variance with conditions, or refuse to approve the variance. If Transportation and Utilities approves the variance, section 14 of the Regulation is not a barrier to subdivision approval and the subdivision authority may approve the subdivision, approve it with conditions, or refuse the application. If the variance has been granted subject to a condition, the subdivision authority must include that condition in any approval of the subdivision. If Transportation and Utilities does not approve the variance, the subdivision authority must refuse the subdivision application.

Implications for Subdivision Appeal

If a subdivision application is for a use provided for in section 14 (a) to (e) of the Regulation any appeal will be to the local subdivision and development appeal board. Under section 16 of the Regulation, Transportation and Utilities may agree in writing to a variance of the provisions of section 14. The subdivision authority in turn may grant the variance or deny it. Regardless of whether the subdivision authority grants the variance under section 16, if Transportation and Utilities agrees to a variance, either with or without conditions, pursuant to section 678(2.1) of the Municipal Government Act, any appeal will be to the local subdivision and development appeal board. If a subdivision application is for a use that is not provided for in section 14, and Transportation and Utilities has not agreed to a variance, the subdivision authority must refuse the application and any appeal will be to the Municipal Government Board.

Conclusions

The provisions of sections 14 of the Act are intended to protect the provincial highways and allow appeals of these limitations only to the Municipal Government Board. However, flexibility is provided for the subdivision authority, with the written approval of Transportation and Utilities, to grant variances where the provincial interest will be adequately protected. Under section 678(2.1) of the Act, appeals in these instances are to be heard by the local subdivision and development board.

This bulletin has been prepared to clarify the process for reviewing subdivision applications in the vicinity of highways. Questions on this bulletin should be directed to the Local Government Advisory Branch at 427-2225.