BILL 56 – 2003
FLOOD HAZARD STATUTES AMENDMENT ACT, 2003

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

 
Dike Maintenance Act

1 Section 1 of the Dike Maintenance Act, R.S.B.C. 1996, c. 95, is amended

(a) by repealing the definition of "inspector" and substituting the following:

"inspector" means the inspector of dikes referred to in section 2 and includes any acting, deputy or assistant inspectors of dikes; ,

(b) by repealing the definition of "order" and substituting the following:

"order" includes any direction, decision or order of the inspector under this Act or the regulations, including a decision to grant or refuse an approval under section 2 (4); , and

(c) by repealing the definition of "private dike" and substituting the following:

"private dike" means a dike built on private property that protects only that property.

2 Section 2 is repealed and the following substituted:

Inspector of dikes

2 (1) The office of the inspector of dikes is continued under this section.

(2) The inspector may

(a) enter on any land and on a dike, with or without equipment, as necessary to carry out the purposes of this Act,

(b) require a diking authority or a person on whose land a dike, other than a private dike, is located to repair, replace, renew, alter, add to, improve or remove a dike, or a part of a dike, or anything used in connection with a dike,

(c) require a diking authority or a person on whose land a dike, other than a private dike, is located to construct or install a work or thing that in the opinion of the inspector is necessary to protect a dike or to increase its efficiency,

(d) authorize and empower any diking authority or person, on conditions the inspector may impose, to

(i) place, construct, renew, alter, repair, maintain, operate and use any buildings, structures, machinery, ways, rails, roads, pipes, poles, towers, cables, wires, conduits, conveyors or other works on, along, across, through, over or under any dike, other than a private dike, or any land on which a dike is located, other than a private dike, and

(ii) enter with or without equipment onto a dike, other than a private dike, or on land on which a dike is located, other than a private dike, for the purposes set out in subparagraph (i) or section 3,

(e) require a diking authority to provide routine or special reports on the construction or maintenance of dikes for which the diking authority is responsible,

(f) inspect or make an order for the inspection of any books or records in connection with the construction or maintenance of dikes in the possession or control of a diking authority,

(g) carry out or order an audit of a diking authority's program of construction and maintenance of dikes for which the diking authority is responsible, and

(h) subject to this Act and the regulations, do any other thing or require a diking authority to do any other thing relative to the construction and maintenance of dikes, including orders respecting flood hazard planning.

(3) The inspector and those employees considered necessary may be appointed under the Public Service Act.

(4) A person or a diking authority must not do any of the following unless it is done either with the prior written approval of the inspector or in accordance with the regulations made under section 8 (2):

(a) lower, or cause or allow to be lowered, the elevation of a dike or decrease, or cause or allow to be decreased, the width or cross section of a dike;

(b) install, or cause or allow to be installed, any culvert, pipe, flood box or any structure through a dike;

(c) construct, or cause or allow to be constructed, any works on or over a dike or dike right of way;

(d) alter, or cause or allow to be altered, the foreshore or stream channel adjacent to a dike;

(e) construct a new dike.

(5) In granting an approval under subsection (4), the inspector must consider the appropriateness of a standard established by regulation under section 8 (2) in relation to the dike that is the subject of the request, in light of

(a) the condition and location of the dike,

(b) the surrounding land and bodies of water and stream channels that are in close proximity to the dike, and

(c) the nature and condition of works related to the dike.

Orders made by inspector

2.1 (1) In this section, "registered mail" includes any method of mail delivery provided by Canada Post for which confirmation of delivery to a named person is available.

(2) An order made by the inspector must be

(a) in writing, signed by the inspector, and

(b) delivered or sent by registered mail to the last known address of the person or diking authority to whom it is directed.

(3) Anything sent by registered mail for the purposes of this Act is deemed to be received by the person to whom it is addressed on the 14th day after deposit with Canada Post, unless the person received actual service before that day.

(4) The inspector may, at any time on notice to the person or diking authority to whom the order was directed, amend or revoke any order of the inspector.

3 Sections 3 and 4 are repealed and the following substituted:

Failure to carry out an order of the inspector

3 (1) If a person or diking authority fails to carry out an order of the inspector

(a) by the date specified in the order, or

(b) to the satisfaction of the inspector,

the inspector may take steps to fulfill the requirements of the order or authorize or employ another person to do so.

(2) If the inspector acts under subsection (1), any expense incurred by the inspector in fulfilling the requirements of the order or in authorizing or employing another person to do so, including any interest the inspector may have to pay, is a debt owing to the government by the person or diking authority to whom the order was directed.

(3) A debt owing under subsection (2) may be recovered in any court by the government from the person or diking authority to whom the order was directed.

(4) In an action referred to in subsection (3), the inspector's certificate as to the amount of the expense is evidence of the amount of the debt owing and of the necessity of doing the work authorized under this section.

4 Section 5 is amended by repealing subsection (1) and substituting the following:

(1) Subject to subsection (1.1), an appeal lies to the minister from every order of the inspector.

(1.1) An appeal must not be taken

(a) from an order of the inspector requiring a person or a diking authority to comply with standards established by regulation under section 8 (2), unless the person or the diking authority to whom the order was directed is not responsible for the dike that is the subject of the order, or

(b) from a decision of the inspector refusing to grant an approval under section 2 (4).

5 Section 6 is repealed and the following substituted:

Offence

6 (1) A person or a diking authority commits an offence if that person or diking authority does any of the following:

(a) injures or interferes with a dike or its operation;

(b) hinders a diking authority, the inspector or a person acting on behalf of either of them from protecting property from flooding;

(c) contravenes section 2 (4) or an order of the inspector or the minister.

(2) A person or diking authority who commits an offence under this section is liable on conviction

(a) to a fine of not more than $200 000, and

(b) if the offence is a continuing one, to a fine of not more than $200 000 for each day the offence is continued

or to imprisonment not exceeding 12 months, or to both a fine and imprisonment.

(3) If a person or diking authority commits an offence under this Act, an employee, officer, director or agent of the person or diking authority who authorized, permitted or acquiesced in the offence commits the offence even though the person or diking authority is convicted.

(4) The time limit for laying an information respecting an offence under this Act or the regulations is 2 years after the facts on which the information is based first comes to the knowledge of the inspector.

(5) A document purporting to have been issued by the inspector, certifying the day on which the inspector became aware of the facts on which an information is based, is admissible without proof of the signature or official character of the individual appearing to have signed the document and, in the absence of evidence to the contrary, is proof of the matter certified.

(6) A proceeding, conviction or penalty for an offence under this Act or the regulations does not relieve a person or diking authority from any other liability.

Additional sentencing orders

6.1 (1) If a person or diking authority is convicted of an offence under this Act, in addition to any punishment imposed, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order containing one or more of the following prohibitions, directions or requirements:

(a) prohibiting the person or diking authority from doing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

(b) directing the person or diking authority to take any action the court considers appropriate to remedy or avoid any harm that resulted or may result from the commission of the offence;

(c) directing the person or diking authority to pay the government an amount of money as compensation, in whole or in part, for the cost of any remedial or preventive action taken by or caused to be taken on behalf of the government as a result of the commission of the offence;

(d) directing the person or diking authority to perform community service;

(e) directing the person or diking authority to pay the Habitat Conservation Trust Fund, or any other prescribed trust fund, an amount of money the court considers appropriate;

(f) directing the person or diking authority to post a bond or pay into court an amount of money the court considers appropriate for the purpose of ensuring compliance with any prohibition, direction or requirement under this section;

(g) directing the person or diking authority to submit to the minister, on application by the minister within 3 years of the date of the conviction, any information respecting the activities of the person or diking authority that the court considers appropriate in the circumstances;

(h) directing the person or diking authority to publish, in any manner the court considers appropriate, the facts relating to the commission of the offence;

(i) requiring the person or diking authority to comply with any other conditions that the court considers appropriate for securing the person's or diking authority's good conduct and for preventing the person or diking authority from repeating the offence or committing other offences under this Act.

(2) If a person or diking authority fails to comply with an order referred to in subsection (1) (h) directing the person or diking authority to publish the facts relating to the commission of an offence, the minister may publish those facts and recover the costs of publication from the person or diking authority.

(3) If

(a) an order under this section or section 6.2 directs a person or diking authority to pay an amount of money as compensation or for any other purpose, or

(b) the minister incurs publication costs under subsection (2) of this section,

the amount and any interest payable on that amount constitute a debt due to the government and may be recovered as such in any court of competent jurisdiction.

Variation of section 6.1 orders

6.2 (1) An application for variation of an order under section 6.1 may be made to the court that made the order by

(a) the Attorney General, or

(b) the person or diking authority against whom the order under section 6.1 was made.

(2) Before hearing an application under subsection (1), the court may order the applicant to give notice of the application in accordance with the directions of the court.

(3) On an application under subsection (1), if the court considers variation appropriate because of a change in the circumstances, the court may make an order doing one or more of the following:

(a) changing the original order or any conditions specified in it;

(b) relieving the person or diking authority referred to in subsection (1) (b) absolutely or partially from compliance with all or part of the original order;

(c) reducing the period for which the original order is to remain in effect;

(d) extending the period for which the original order is to remain in effect, subject to the limit that this extension must not be longer than one year.

(4) If an application under subsection (1) has been heard by a court, no other application may be made in respect of the order under section 6.1 except with leave of the court.

6 Section 7 is repealed.

7 Section 8 is amended

(a) by renumbering the section as section 8 (1), and

(b) by adding the following subsections:

(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:

(a) establishing standards of construction, operation and maintenance in respect to the matters described in section 2, including but not limited to adopting any standard devised by any other body;

(b) prescribing trust funds to which a payment under section 6.1 (1) (e) may be made, if those trust funds include as a purpose or objective

(i) the promotion of proper dike construction, maintenance or operation,

(ii) the protection or restoration of the environment from or as a result of flooding,

(iii) the protection of persons or property from flooding, or

(iv) a purpose similar to that of the Habitat Conservation Trust Fund.

(3) A regulation under subsection (2) (a) may make different provisions for

(a) different classes of dikes,

(b) different diking authorities, or

(c) different classes of persons or diking authorities.

 
Drainage, Ditch and Dike Act

8 Section 166 of the Drainage, Ditch and Dike Act, R.S.B.C. 1996, c. 102, is amended

(a) by renumbering the section as section 166 (1), and

(b) by adding the following subsections:

(2) In an order under subsection (1) or in a subsequent order, the Lieutenant Governor in Council may give discretion to the minister to further transfer the powers and duties of the commissioners of the district from the inspector to a municipality or regional district.

(3) The minister may make an order transferring the powers and duties of the commissioners of the district from the inspector to a municipality or regional district if

(a) permitted to do so under subsection (2), or

(b) despite subsection (2), the municipality or regional district requests the transfer.

9 Section 167 is amended

(a) in subsections (1) and (2) by striking out "section 166," and substituting "section 166 (1),", and

(b) by adding the following subsection:

(3) On the making of an order under section 166 (3), the municipality or regional district named in the order holds separate corporate status under the name of the district, and that corporation

(a) has the power to acquire, hold and dispose of property for the purposes of this Part, and

(b) is vested with all the powers and subject to all the duties of the commissioners under this Part.

10 Section 168 is amended in paragraph (a) by striking out "section 166," and substituting "section 166 (1),".

11 Section 169 is amended by adding "under section 166 (1)" after "order in council".

12 Section 170 (2) is amended by striking out everything after "district".

13 The following section is added:

Transfer of development district assets

170.1 If a development district is dissolved under section 170, the minister responsible for the administration of the Local Government Act may transfer, to either the municipality or to the regional district in which the works of the development district were located, its assets, rights, claims, obligations and liabilities and section 171 or 172 applies, as applicable.

14 Section 171 is amended

(a) by repealing subsection (1), and

(b) in subsection (2), by striking out "under subsection (1)" and substituting "to a municipality under section 170.1".

15 The following sections are added:

Transfer to a regional district

172 (1) After a transfer to a regional district under section 170.1 has been made, the area that was included in the development district is deemed to be a service area under Division 4.1 of Part 24 of the Local Government Act, and for these purposes Divisions 4.1 to 4.4 apply.

(2) If the works of a development district are located in more than one regional district, the regional districts may assume the assets, rights, claims, obligations and liabilities in accordance with the apportionment set out in the order dissolving the development district, and that portion of the development district in each regional district is a service area of that regional district.

(3) A board may provide that some or all of the assets of the development district be credited to the service area and that some or all of the liabilities be charged to the service area.

(4) Without limiting section 176 [corporate powers] of the Local Government Act, a board may enter into an agreement with the Provincial government for the joint undertaking of additional works of a similar nature and for their maintenance.

(5) A board may, by bylaw adopted without the assent or approval of the electors but otherwise in accordance with the Local Government Act, borrow sums required under any agreement with the Provincial government.

(6) The entire cost or the parts of the cost of an existing work or a work to be constructed under the terms of an agreement under this section, and of its maintenance and operation, as may be determined by the board, must be borne by the owners of real property in the service area.

Sunset provision

173 This Act is repealed on December 31, 2010 or on a later date prescribed by regulation of the Lieutenant Governor in Council.

 
Land Title Act

16 Section 82 of the Land Title Act, R.S.B.C. 1996, c. 250, is repealed.

17 Section 86 (1) is amended by striking out "and" at the end of paragraph (b), by adding ", and" at the end of paragraph (c) and by adding the following paragraph:

(d) if the approving officer considers that the land is, or could reasonably be expected to be, subject to flooding, erosion, land slip or avalanche, the approving officer may require, as a condition of consent to an application for subdivision approval, that the subdivider do either or both of the following:

(i) provide the approving officer with a report certified by a professional engineer or geoscientist experienced in geotechnical engineering that the land may be used safely for the use intended;

(ii) enter into one or more covenants under section 219 in respect of any of the parcels that are being created by the subdivision.

18 Section 219 is amended by adding the following subsections:

(9.1) A covenant that was required as a condition of subdivision under section 82 and registered under this section before the coming into force of the repeal of section 82 may be

(a) modified by the approving officer and the owner of the land charged, or

(b) discharged by the approving officer.

(9.2) For the purpose of determining whether to modify or discharge a covenant under subsection (9.1), an approving officer may exercise the powers provided under section 86 (1) (d), whether or not the modification or discharge is related to an application for subdivision approval.

 
Local Government Act

19 Section 910 of the Local Government Act, R.S.B.C. 1996, c. 323, is repealed and the following substituted:

Construction requirements in relation to flood plain areas

910 (1) If a local government considers that flooding may occur on land, the local government may, by bylaw, designate the land as a flood plain.

(2) If land is designated as a flood plain under subsection (1), the local government may, by bylaw, specify

(a) the flood level for the floodplain, or different flood levels for different areas of the flood plain, and

(b) the setback from a watercourse, body of water or dike of any landfill or structural support required to elevate a floor system or pad above the flood level, which setback may be different for different areas of the floodplain and for different flood levels.

(3) A local government that makes a bylaw under subsection (1) or (2) must consider any policies, strategies, objectives, standards, guidelines or plans in respect to flood plain management and development or flood control and prevention, prepared under any enactment.

(4) If a bylaw under subsection (2) applies,

(a) the underside of any floor system, or the top of any pad supporting any space or room, including a manufactured home, that is used for

(i) dwelling purposes,

(ii) business, or

(iii) the storage of goods which are susceptible to damage by floodwater

must be above the applicable flood level specified by the bylaw, and

(b) any landfill required to support a floor system or pad must not extend within any applicable setback specified by the bylaw.

20 Section 966 (6) is amended by repealing paragraph (a).

 
Consequential Amendment

 
Ombudsman Act

21 The Schedule to the Ombudsman Act, R.S.B.C. 1996, c. 340, is amended by repealing section 16 and substituting the following:

16 The commissioners of a district defined in section 58 of the Drainage, Ditch and Dike Act and an engineer, commissioner, inspector of dikes, land settlement board, municipality or regional district acting under that Act.

Transitional -- Dike Maintenance Act

22 Despite section 4 of this Act, section 5 of the Dike Maintenance Act as it read before the coming into force of section 4 of this Act continues to apply to every order of the inspector referred to in section 5 of the Dike Maintenance Act if, in respect of that order, a notice of appeal was received by the minister in accordance with section 5 of the Dike Maintenance Act as it read before the coming into force of section 4 of this Act.

Commencement

23 Section 16 comes into force on January 1, 2004.