The Province appealed an award made by the Land Value Appraisal Commission pursuant to the Expropriation Act, and argued that the Commission’s valuation had taken into account the imminence of development based on expropriation itself. The Court dismissed the appeal, finding that the Commission had properly set a value on the property that was based on many factors.
Administrative law – Decisions of administrative tribunals – Land Value Appraisal Commission – Municipalities – Planning and zoning – Property assessment – Expropriation – Judicial review – Standard of review – Correctness – Reasonableness simpliciter
Carloni v. Manitoba,  M.J. No. 125, Manitoba Court of Appeal, April 7, 2006, Scott C.J.M., Twaddle and Monnin JJ.A.
The Province appealed an award made by the Land Value Appraisal Commission pursuant to the Expropriation Act, C.C.S.M. c. E190. The Province had expropriated a 10-acre portion of the Respondent’s land for the purposes of realigning a provincial highway. The Commission had made an award in the amount of $33,250, ($3,500 per acre), based on the Respondent’s appraiser’s report. In his report, he had stated that the highest and best use of the property expropriated “is considered to be a speculative parcel of land until such time as a change in zoning is permitted to a higher residential use.” The Province’s appraiser, meanwhile, had opined that the land should be valued at $1,500 per acre.
On appeal, the Province argued that (1) the Commission committed an error in law in determining its award by taking into account the increase in value of the subject land resulting from the imminence of the development in respect of which the expropriation, contrary to the provisions of section 27(2)(b) of the Act, and (2) the Commission had erred in its assessment of the evidence in its certification of the market value of the property.
The Court held that the proper standard of review on the first question was correctness, while on the second question, partially because it was a question of mixed fact and law, the standard was one of reasonableness.
Section 27(2)(b) of the Act codifies a well-established common law rule, and prevents the Commission from considering, as part of its determination of the due compensation payable to an owner, any increase or decrease in the value of land resulting from the imminence of the development in respect of which the expropriation is made, or from any imminent prospect of expropriation.
The Court reviewed the history of zoning development in the area of the Respondent’s property dating back to 1960. The Court held that the Commission was clearly aware of the imminence of development issues and, to arrive at its conclusion had to be convinced that the Respondent’s property was going to be rezoned. This was not because of the relocation of the highway but mainly because of other factors identified by the Respondent’s expert in his evidence. The Respondent’s area was located relatively close to the city of Winnipeg, as well as other developments in the rural municipality. The Commission’s decision regarding the value of the property was based on many factors.
As to the second ground of appeal, the Court held that it had not been convinced that the Commission’s conclusion was unreasonable, as there was evidence before it that, if accepted, justified the award made.
To stay current with the new case law and emerging legal issues in this area, subscribe here.