
Expropriation is the forceable taking of property by an acquiring
authority for a public project, such as a road, transmission line, pipeline
etc. In the vast majority of cases, only a small portion of a property is taken,
and sometimes only a partial interest is required. Pipelines, for example, only require a
sub-surface easement interest, allowing the owner to continue using the surface
for anything that doesn’t interfere with the operation and maintenance of the
pipeline itself. Transmission lines are
happy to share, requiring only an easement interest for the towers and the
overhead lines. Regardless of whether
the interest is full (fee simple) or partial (easement), the acquiring
authority pays compensation for the value of the interest taken, the boundaries
of which are defined by a survey plan and a legal description, properly recorded
at the Land Registry.
In some instances, however, an acquiring authority may exert control
beyond the boundaries of what it has legally acquired. In Nova Scotia, new highways are usually
designated as controlled access highways under the Public Highways Act,
imposing potential new restrictions on building setbacks. A permit from the Minister is required for the
construction
of buildings and structures within 60 metres (197 ft.) of the limit of a
designated controlled access highway or within 100
metres (328 ft.) of its centre line. That
is probably far more restrictive than the local By-Laws require, potentially
sterilizing a fair chunk of land alongside the new highway unless Ministerial
approval is granted. In rural areas it
probably doesn’t matter, but in urban areas it might, especially if there is a
potential for development. The Public
Highways Act does allow compensation for so-called injurious affection
resulting from a controlled access highway designation … but not for new
highways. So, any compensation in
respect of new setbacks alongside new highways must presumably be claimed via
the Expropriation Act, even though the restrictions are authorised under a
different act.
Pipeline easements come with
similar strings attached. Oil and gas pipelines
are regulated under the National Energy Board Act (which strictly speaking
grants orders for rights of entry rather than expropriations). The Act imposes an automatic 30 metre (98 ft.)
Prescribed Area – or safety zone – on either side of the pipeline,
within which so-called ground disturbances and construction activities
are restricted. Some activities are totally prohibited and others require the
pipeline company’s permission. So,
whilst the pipeline company only acquires the easement within which its
pipeline sits, it casts a 30 metre shadow on either side. Compensation for restrictions within the 30
metre safety zone is often challenged but has been awarded and upheld by the
Federal Court in valid circumstances. Again,
in rural areas it might have little impact, but in urban areas it most likely
will, especially if it interferes with development plans.
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Lee Weatherby is the
Vice President of our Counselling Division. If you'd like more information
about our counselling services, including advice on expropriation matters, feel free to contact Lee at (902) 429-1811 or lweatherby@turnerdrake.com.