UBC Theses and Dissertations
Implications of air space utilization in British Columbia. Johnston, Terrence William
Intensive development of the city and efficient use of space are essential if rapidly increasing populations are to be accommodated in urban areas. Land requirements for transportation functions can be minimized by utilization of air space above transportation facilities. The problems of rapid urbanization and scarcity of land are of particular concern in the major metropolitan areas of British Columbia. British Columbia has experienced the most rapid rate of growth of any Canadian province yet most of this growth has been confined to a few hundred square miles of the province's vast area. These factors suggest utilization of air space above or below transportation facilities has particular relevance to land use and transportation planning in British Columbia. The object of this thesis is to examine the legal and legislative implications, the financial aspects and planning considerations of air rights development in British Columbia. In Chapter II, the position of air space at common law is analyzed. Statutes regulating the ownership of land and the powers of municipalities, governmental agencies and railway companies have been examined. Common law courts have ruled that air and space are not susceptible of ownership except as incidental to the use and enjoyment of the land surface or as space within a structure bearing upon the soil. The Land Registry Act and the Strata Titles Act regulate land ownership in British Columbia. The Strata Titles Act passed in 1966 provides for the individual and multiple ownership of land within an administrative framework. A critical prerequisite to strata development is that land included in the strata plan must be registered in indefeasible title as a single parcel in the name of the Strata corporation. Public and private, agencies responsible for administering highways and rights-of-way are prohibited by legislation from alienating lands that are required, therefore, air rights cannot be developed using the Strata Titles Act. It is shown that these agencies only have authority to lease interest in air space. Of all the agencies examined, none are restricted from developing air rights for their own purposes. The financial aspects of air space utilization are examined in Chapter III. Three methods of valuating air space are examined and the applicability of each is evaluated. Air rights have no real estate value if the cost of developing the air rights platform is greater than the cost of comparable land in fee simple. Air space may be utilized as a matter of public policy if long term costs and benefits show air space utilization to be economically feasible. Programs of financial assistance for air rights development are finally considered. Mortgage financing from private lenders is not readily available because of the legal implications and the traditional blighting influence of freeways and railways on adjacent urban areas. In view of the blighting influence, of highways and railways, it is suggested that provisions of the existing National Housing Act be extended to include assistance for air rights projects in conjunction with urban renewal assistance. Chapter IV outlines the planning considerations that must be recognized in air rights development. The value of determining potential air rights development areas and the methods of regulating air rights development are examined. Public ownership of air rights is the most effective method of control. Municipalities in British Columbia do not own streets, lanes, or highways, therefore, their powers of control are limited only to land that they own. Controls can be exercised over private air rights development using the zoning powers of the municipal government. Special "overlay zones" or comprehensive development provisions of most zoning bylaws can be adapted to control air rights projects. Chapter V contains the conclusions and recommendations of this thesis. Individual and multiple ownership of land is permissible through the regulations of the Land Registry Act and the Strata Titles Act. Public and private agencies controlling transportation facilities are prohibited by Statute from alienating lands required for transportation purposes. It is recommended that legislation be adopted granting powers to these agencies to participate in strata developments providing the transportation facility is maintained within the development. Extension of the Strata Titles Act to include the ownership of space would provide for easier conveyancing of air rights. Feasibility studies of air rights development must be based on the long term costs and benefits rather than on costs of comparative land for conventional development. Extension of urban renewal legislation to include air rights developments would assist in mitigating against the blighting influence of freeways and railways on adjacent urban areas. Air rights development can be most effectively controlled by vesting owner-, ship of all air rights with the municipality or city. Failing this, boards consisting of representatives from agencies owning potential air rights sites should be established to insure that maximum potential of air rights above various transportation facilities is achieved. When zoning controls are used to control air rights, special provisions should be made within zoning by-laws to accommodate air rights projects. Finally, an order of priority for use of publicly controlled air rights is suggested.
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