Land Designation Jurisdiction
What is the definition of private property?
Private property is a legal designation of the ownership of property by non-governmental legal entities. Private property is distinguishable from public property, which is owned by a state entity; and collective property, which is owned by a group of non-governmental entities.
What is an Official Plan:
An official plan describes your upper, lower or single–tier municipal council's policies on how land in your community should be used. It is prepared with input from you and others in your community and helps to ensure that future planning and development will meet the specific needs of your community.
Definition of policies:
A set of policies are principles, rules, and guidelines formulated or adopted by an organization to reach its long-term goals ...
In a recent court case Niagara River Coalition vs. Niagara-On-The-Lake (Town), it states: …”a policy or guideline is not prescribed by law. It is simply that, it is….guidelines for enforcing the Act and, as such, it cannot be replied upon as the law.”
So now we know that “policy” and “Official Plans” are not legislation or any form of law which can be used to regulate against a private property owner……unless, that property owner has entered into some kind of agreement with their local municipality that enables the municipality
to regulate what you can and cannot do on your private property. As the owner of private property, no one, no municipality, no government entity has the right to zone or designate your land or private property without your consent. You have to enter into an agreement with the entity that wants to change your land. If you don’t enter into an agreement, then obviously they do not have your consent.
As stated in the Municipal Act, sec. 10 and 11 under Bylaws, it states that the municipality must acquire the land in order to exercise its authority under this or any other Act. They can “acquire” land either through a purchase agreement, lease agreement or expropriation agreement. (Definition of agreement: a negotiated or typically legally binding arrangement between parties to a course of action).
Also, sec. 462 regarding drainage and flooding, it states a municipality must acquire the land and must make areas into park land to assist during times of flooding.
Under the Planning Act, sec. 25 it states in order for the municipality to change the use of land that would be attributed to the official plan, along with the approval of the Minister, they must acquire the land by purchase, lease or expropriation. If a municipality does not follow this process, it cannot designate or zone the land because the ownership of land and the land title from the previous owner, has not been transferred and registered under the Registry Act or the Land Titles Act. Without registry, there can be no designation because there has been no dedication.
Sec. 28 of the Panning Act refers to the requirements for the conditions to the sale of land. This section also includes Sec. 34 (zoning bylaws) that states after the land has been acquired by the municipality for community improvement, it cannot be sold without a bylaw being implemented and that the purchaser, lessee or entity that received the dispossession of property (meaning: the wrongful removal of a person from his property by trick, compulsion or misuse of the law) from the municipality must agree to the land use condition and/or zoning bylaw implemented.
Constitution – Sec. 109: Property in Lands, Mines, etc: states that the government cannot interfere with any “trusts” or interests that do not belong to the province. Meaning, if there is a Letters Patent on the said land and if there is nothing in this Patent that shows that there is something specifically “reserved” for the Queen in right of Ontario (meaning the province representing the Queen), therefore it (i.e. MNR for wetlands, etc) cannot interfere with private property.
This leads to wetland designations ….if the owner of the land has not dedicated his/her land, there can be no designation by any authority, including the MNR. This is also established in the Constitution and the Criminal Code.
So what is the municipality looking at if it goes through the above measures which violates the Criminal Code and sec. 14 of the Municipal Act?
Sec 14 of the Municipal Acts states “A bylaw is without effect if it interferes a provincial or federal regulation made under such an Act (provincial law or federal law supercedes municipal law); or if it interferes with an “instrument of a legislative nature” (Letters Patent or Crown Land Patent Grant)
Under the Criminal Code of Canada, there are the following sections that can be applied if interference with private property exists:
Forcible Entry and Detainer, sec. 72
Common Nuisance, sec. 180
Criminal Harassment, sec. 264
Mischief, sec. 430
And if there is thought that provincial legislation over-rules the federal act (Criminal Code), this has been settled by the Courts that it cannot.
Expropriation: Sec. 6 of the Municipal Act states that a municipality must refer to sec. 6 of the Expropriation Act anytime they want to use their power to expropriate land from a property owner. Therefore, any interference with the use, enjoyment, or operation of private property is an expropriation and is an injurious affect because the Expropriations Act overrules/prevails over any other piece of legislation.
Definition of Expropriation is the act of taking privately owned property by a government to be used for the benefit of the public.
Definition of injurious affection under the Expropriation Act: where a statutory authority acquires part of the land of an owner (i) the reduction in market value thereby caused to the remaining land of the owner by the acquisition or by the construction of the works thereon or by the use of the works thereon or any combination of them, and (ii) such personal and business damages, resulting from the construction or use, or both, of the works as the statutory authority would be liable for if the construction or use were not under the authority of a statute…..