On occasion structures will be found to be encroaching on highway rights
of way from adjacent properties. Most often these structures are corners
of houses, garages, barns, fences, and signs. However, other structures
are such as old underground gasoline storage tanks, tourist information
booths, telecommunication kiosks, fire department storage buildings,
and motel buildings have been found on highway rights of way. These
encroachments are usually discovered when a new property owner commissions
a survey of the lot for a mortgage, a property is subdivided, or upon
inspection by a Ministry employee.
An encroachment is an illegal intrusion onto the highway right of
way constructed without Ministry of Transportation
permission and which would not normally be issued a permit prior to
construction. The encroachment will diminish the width or area of the
right of way; however, it may or may not cause an obstruction. Usually
these encroachments are located on the edge of the right of way, not
on the traveled portion of the highway, and encompass only a portion
of the structure. Rarely does the entire structure encroach onto the
highway right of way.
If the new road dedication for a proposed subdivision will cause an
existing building to encroach upon the right of way, the subdivision
should be redesigned to accommodate the building, or remove the building.
Buildings must be located so that Sewage Disposal Regulations are satisfied. Thus, no lot line may be located within
1 metre of a septic tank or 3 metres of a sewage drain field. See sections 12 and 18 of
BC Regulation 411/85.
Legalization of Highway Encroachments
The Ministry of Transportation may issue a permit to legalize the encroachment
structure to facilitate the property owner’s situation. An
H-112 form “Permit to Authorize Existing Structures Constructed within
the Right of Way of Any Arterial Highway within A Municipality or Any
Highway in A Rural Area” is used to legalize the encroachment. Utility
policies and permits in the Utility Policy Manual will administer all
facilities and structures related to utility encroachments on the highway
right of way.
Permits will be issued pursuant to
62 of the Transportation Act and also to grant consent for a 4.5
meter setback according to Section 12 of the Provincial Public Undertakings
Regulation BC Reg. 513/2004. The legislation and regulations authorize
the Minister of Transportation to permit encroachments. This power was delegated
to the Regional Director, Provincial Approving Officer and District Manager,
Transportation positions by Orders-in-Council 2434/81 and 47/82.