BC Supreme Court upholds ALC decision against Shuswap golf course-subdivision application

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A B.C. Supreme Court ruling has upheld an Agricultural Land Commission decision against a Shuswap land owner's bid to subdivide for a golf course and residential development.

In her ruling Jan. 11 in Kelowna court, Madam Justice Wilkinson found the commission’s decision was not unreasonable and was made within its jurisdiction.

The petition by Kahn Whitehead was dismissed.

Whitehead had sought to overturn a 2018 ALC decision denying his application for subdivision.

Whitehead had sought to sweeten the pot by offering a land swap that would include adjacent property into the Agricultural Land Reserve. But, Wilkinson ruled the act governing the commission "does not provide for or refer to the concept of land swaps in which owners apply to exclude land from the ALR or subdivide land in the ALR while including other land in the ALR."

Wilkinson said owners seeking both ALR subdivision and inclusion orders should submit separate applications.

The property, partially located within the ALR, north of Salmon Arm near Eagle Bay, has historically been used for agriculture as a hobby farm cattle operation and for growing hay, the ruling notes.

The ALC had previously refused an application by the petitioner in 1999 to develop a golf course on the property. That decision was reconsidered and approved in 2002, at which time a report found the offered "swap" lands had limited agricultural capability.

While the non-agricultural land is zoned for a golf course, the owner has not developed one.

A residential subdivision application for part of the property followed in 2016. That was also rejected in a 2017 decision, which found the property has a combination of prime and secondary agricultural capability.

"I agree with the commission that when the petitioner submitted his subdivision application he went through multiple steps, including review by the local government as well as by the commission. He had ample opportunity to clarify which areas of the property have been used for agriculture. He did not," Wilkinson wrote in her decision.

"I find there is no contradiction between the finding in the reconsideration decision regarding suitability for agriculture and the commission’s findings in relation to the 2002 non-farm use application. While the commission’s finding in 2002 that the property had limited agricultural capability may have convinced the commission to grant the non-farm use application, the same finding would not necessarily support a subdivision application."

Wilkinson noted the commission "has no mandate to expand the ALR; its mandate is to preserve the ALR."

The judge added the petitioner may still have an ALR inclusion application heard if he chooses to make one.

"The (ALC) executive committee commented that the petitioner could submit a separate application ... if he still wished to do so. There was nothing unreasonable in the executive committee’s decision not to factor in the inclusion proposal when making its decision in the subdivision application."