The BCUC establishes BC Hydro’s right to maintain a transmission line where Surrey wants to build a road. Will Surrey spend more taxpayers’ money taking the dispute further?
Introduction
As I wrote in February, BC Hydro and the City of Surrey (Surrey) are in dispute over a set of three transmission lines built on municipal public land. The land was designated as a highway in 1875, but no road was ever built; the power lines were added between 1952 and 1976 and are part of the North American high-voltage grid.
BC Hydro has offered to move the transmission lines, but estimates this will cost $41 million ($39 million plus taxes), which it wants upfront from Surrey, its standard terms. Surrey, unsurprisingly, would prefer not to pay anything at all, and in January filed a notice of civil claim in the BC Supreme Court alleging trespass.
Not to be outdone, BC Hydro filed an application in February with the BC Utilities Commission (BCUC) to clarify its rights under the Utilities Commission Act to keep the transmission lines where they are, unless Surrey pays to move them.
The BCUC decision
My view back in February was that “BC Hydro has a strong case, and the BCUC should quickly and wholeheartedly support it”. Sure enough, the BCUC’s decision, issued in late August, came down firmly on BC Hydro’s side.
According to the decision, BC Hydro has the right to operate its transmission lines where they are, and if Surrey wants them moved, it must pay up on BC Hydro’s terms.
The BCUC’s reasoning was essentially this:
- Section 45 of the Utilities Commission Act gives permission for all public utility facilities operating on September 11, 1980 to continue operating. Since all three transmission lines were in place by 1976, BC Hydro has a right to keep them there.
- Section 32 gives the BCUC the power to resolve disputes between utilities and municipalities over use of public land, for example over who should pay to move facilities.
- For good measure, section 121 makes it clear that municipalities can do nothing that “supersedes or impairs” the powers of the BCUC or an “authorization granted to a public utility”, such as the right to operate transmission lines in Surrey.
The BCUC also bolstered its case with two recent BC Court of Appeal judgements: the 2021 Coquitlam decision and the 2024 Richmond decision. In both judgements, the court confirmed the BCUC’s powers under the Utilities Commission Act to allow utility facilities to use municipal land and to resolve disputes.
The BCUC didn’t take up my suggestion of awarding BC Hydro’s legal costs to Surrey, but that’s about the only thing Surrey could be said to have got out of the decision.
Where to now?
Surrey could ask the BCUC to reconsider its decision. I think it would be hard pressed to find a convincing reason, but that hasn’t always stopped municipalities in the past. However, a reconsideration is usually the first step if someone wants to take a decision to the BC Court of Appeal, so Surrey may go down this route (it has 60 days to file a reconsideration request).
Whatever Surrey does about the BCUC’s decision, it still has its civil claim for trespass, where it has asked the BC Supreme Court to order BC Hydro to remove the transmission lines at its own cost.
The BCUC carefully stayed in its lane and recognized it has “no authority in regards to claims of trespass.” However, in the broadest possible hint to the justices who may hear the case, it pointed out that BC Hydro had “lawfully” placed the transmission lines where they are now.
If Surrey does pursue its case for trespass, it seems it would be an uphill battle.
Conclusion
I described recently how some BC municipalities have wasted a lot of money challenging the BCUC’s jurisdiction (I have some outstanding freedom of information requests to find out just how much). And it’s not just their taxpayers’ money – these cases also require the BCUC and utilities to participate, and their legal costs flow through to utility ratepayers.
Municipalities really should stop this nonsense. They may not like that the Utilities Commission Act gives the BCUC, a provincial body, primacy over their parochial concerns, but it would be a lot cheaper for us all if they learned to accept it.