Public Road or Private Road?

In the past a private road in British Columbia could become a public road simply because the province has spent some money to maintain it under section 42 of the Transportation Act. This can result in roads that cross private property to become public rights of way without the property owner's knowledge or consent.

Two Examples of the Problem

The difficulties of two rural property owners, Ms. P. and Mr. S., are explained in a report by the B.C. Ombudsperson titled On The Road Again: Fixing a longstanding injustice in section 42 of the Transportation Act.

Is a Private Road Public?

Ms. P. purchased a property that had what she thought was a private road through it. When she learned that logging trucks were planning to use it she contacted the Ministry of Transportation and Infrastructure (MOTI) and learned that her private road was actually a public road by operation of section 42.

Is a Public Road Private?

Mr. S. used what he thought was a public road through properties belonging to his neighbours to access his own property. One neighbour blocked the road, preventing Mr. S. from driving to his property. The MOTI found that his road was not a public road because the Road Register did not show the road as leading to his property.

The Office of the Ombudsperson

Rather than begin a long and expensive legal process to assert ownership or to obtain an easement, both complained to the Office of the Ombudsperson. The Ombudsperson resolves public complaints about provincial and local governments.

After an investigation, the Ombudsperson made seven recommendations:

1. The MOTI should prevent the creation of new section 42 highways.
2. That current section 42 highways be registered with the Land Title and Survey Authority.
3. MOTI staff establish guidance for staff in assessing key terms of section 42.
4. Records concerning section 42 highways be consolidated and digitized.
5. Review and create a public registry of section 42 highways.
6. Incorporate spatial data in the public registry of section 42 highways.
7. Processes be established to allow for public requests for or disputes of section 42 highways.

The MOTI's response to the Ombudsperson is contained in the report ON THE ROAD AGAIN: Fixing a longstanding injustice in section 42 of the Transportation Act

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