Petitioners successfully sought judicial review of a decision made by the Agricultural Land Commission, which had refused a subdivision request

Administrative law – Decisions reviewed – Agricultural Land Commission – Judicial review – Standard of review – Reasonableness – Municipalities – Planning and zoning – Agricultural Land Reserve

Bajich Estate v Provincial Agricultural Land Commission, [2021] B.C.J. No. 1938, 2021 BCSC 1755, British Columbia Supreme Court, September 3, 2021, W.A. Baker J.

In October 2019, Ms. Mary Bajich applied to the respondent, Agricultural Land Commission (ALC), seeking to subdivide her land into two parcels for her two adult sons to continue farming on the family farm. Ms. Bajich had owned the land since 1966. In January 2020, the ALC refused the application.

The ALC issued a short decision denying the application on two bases.

First, the ALC considered whether the subdivision proposal met the criteria under the Homesite Severance on ALR Lands policy. The ALC found that Ms. Bajich did not meet the criteria because she was living in a care home at the time of making the application, and the policy required the applicant to be living on the property at the time of the application.

Second, the ALC considered whether the subdivision proposal would impact the agricultural utility of the property. The ALC found that “a subdivision is not an essential perquisite [sic] for the continuation or expansion of agricultural activity” and that the predominant reason for the application was estate planning, which the ALC did not support as a basis for subdividing agricultural land. The ALC also found the proposal “would result in the creation of two smaller lots with a narrowed range of agricultural options and with less productive land than the parent parcel”.

Ms. Bajich made a reconsideration request. She then passed away in April 2020 and her estate representatives (the Petitioners) continued the reconsideration request. The ALC refused the reconsideration request.

The Petitioners made an application for judicial review of the ALC’s decision.

The court first reviewed the applicable legal framework, including the decision in Vavilov. The court concluded that the decision did not include sufficient explanation or analysis by the ALC to support its conclusion on the second issue.

The court found the ALC decision was unreasonable and quashed the decision. The court ordered the ALC to reconsider and determine the Petitioners’ application for subdivision.

The court ordered costs in favour of the Petitioners.

This case was digested by Scott J. Marcinkow, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Scott Marcinkow at smarcinkow@harpergrey.com.

To stay current with the new case law and emerging legal issues in this area, subscribe here.