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Sunday, February 7, 2010

B.C. Developer fails to convince Court to modify utility easement

The British Columbia Supreme Court has dismissed a request by a land developer to modify the terms of a utility corridor easement agreement. The developer, Hilltop Sand & Gravel Co. Ltd., owns land encumbered by an easement granted to FortisBC Inc., formerly West Kootenay Power and Light Company Limited, for the construction of power lines. Hilltop began developing its land for residential development and planned for a roadway to run adjacent to the easement, which currently stands empty. FortisBC refused to grant permission to the developer for the road.

Hilltop made an application under Section 35 of the Property Law Act in B.C. which enables the Court to modify an easement where the reasonable use of the land (by the petitioner) would otherwise be impeded if the easement was not modified and where there is no practical benefit to the holder of the easement of maintaining the easement. FortisBC maintained that modification of its easement and the construction of the road as planned would interfere with its future expansion options. The Court agreed and found that the possibility of future expansion of the power line operation was more than hypothetical. On that basis, the petition was dismissed.

Read the decision at:
http://www.canlii.org/en/bc/bcsc/doc/2010/2010bcsc108/2010bcsc108.html