Work on a statutory right of way

In Sandhill Development Ltd. v. Green Valley Developments Ltd., 2008 BCSC 1646 the work done by the lien claimant was performed on a statutory right of way over part of three lots against which the liens were filed. The work on the right of way was, in fact, work done on a portion of the three lots. Madam Justice Bruce concluded that a lien could be claimed with respect to the work on the statutory right of way (the lien was filed against the private land that the statutory right of way was filed against):
 
Thus the work performed on the statutory right of way was clearly in direct relation to and an integral part of the roadway and services that formed 202 Street as a whole. Had all of the work been performed within the statutory right of way, and thus not classified as a “highway”, there would be no question that a lien could be filed under the Act.
 
There is clear authority for the proposition that a lien may be filed for work done even if part of that work is carried out off site. Provided the work is an integral and necessary part of the project or improvement on the site, a claim of lien may be filed in respect of that work: Kettle Valley at pp. 255-6 and Pedre at pp. 150-1. By analogy, the same principle applies to the converse situation. As long as the work is an integral and necessary part of the improvement, the fact that part or even a majority of the improvement was located beyond Green Valley’s properties should not be fatal to a claim for a lien in regard to work done on Green Valley’s lands.
 
Does it make any difference that the work located beyond the limits of Green Valley’s properties was carried out on a “highway” and thus exempt from the Builders Lien Act? I see no reason why it should. As discussed earlier, the public policy reasons for exempting public road ways from the Act do not apply to private property. Further, the scheme of the Act favours maintaining strict limits on the lands entirely exempt from its application. Importantly, the boundaries of the statutory right of way are well defined by the instrument. The statutory right of way is also a charge noted on the title to the land registered in the Land Title Office. As a consequence, that part of 202 Street which remains private property and that part which has become public property is easily ascertained and readily apparent to any member of the public. Lastly, the fact this single, integrated improvement straddles properties owned by separate entities, one of which is the Crown, does not preclude a contractor from claiming a builders’ lien against all of the owners’ lands in normal circumstances. This scenario is clearly contemplated by the scheme of the Act. The fact that one owner is exempt from the Act should not preclude a lien against the remaining owners.
 
(Sandhill Development Ltd. v. Green Valley Developments Ltd., 2008 BCSC 1646 at para. 32 - 34).

 

 

 

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