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Burnaby can conceal hundreds of properties tapped for land assembly: judge

The city said revealing the property details would give neighbouring owners a “virtual roadmap” showing where a land assembly is planned, leading property owners to seek prices much higher than market value.
Secret keeper: City of Burnaby allowed to keep details of 421 properties private. Photo richard johnson/iStock/Getty Images.

A B.C. Supreme Court judge has ruled the City of Burnaby can keep 421 of the properties it owns a secret.

The City of Burnaby won its case to keep those properties hidden against the B.C. Information and Privacy Commissioner and local resident David Hayre earlier this month.

Hayre had requested a list of all the properties owned by the City of Burnaby in January 2020.

His freedom of information request returned a list of 2,314 properties, however, the street addresses or parcel identification information on another 421 properties were redacted.

The city said the withheld real estate information was related to its plans for future development projects, including active land assemblies.

It argued if the properties were disclosed, it would “harm (the City’s) ability to negotiate the purchase of these targeted properties at fair market value.”

The city said property owners would refuse to sell or seek prices much higher than market value, as had happened at least 27 times before. (An affidavit included “one extreme example” in which the city offered to purchase land for an overpass project and pump station for $10.8 million. When the owner became aware of the city’s intention, he counteroffered at $66.9 million.)

Still, an Office of Information and Privacy Commissioner (OIPC) decision ruled the city had to disclose the 421 properties, as the adjudicator did not see “how advance notice of the City’s interest would alter the negotiations between the City and the property owner.”

The city appealed to B.C. Supreme Court for a review of the decision.

Judge Shelley Fitzpatrick found the OIPC ruling “unreasonable” and quashed the OIPC decision.

Fitzpatrick found the city proved a “reasonable expectation of probable harm” from disclosing the properties.

She said knowledge of the withheld properties would not only give a property owner “advance notice” about the city’s interest in purchasing their property, but also reveal the city’s plans of a likely land assembly, as well as how far along the city was in its land acquisition goals.

The city said that disclosing the property information would provide owners of neighbouring lands with a “virtual roadmap” that would show “with a high degree of certainty,” according to the judge, where a land assembly is planned and how important a property is to the land assembly package, providing leverage in negotiations.

“If a property owner becomes armed with that knowledge,” Fitzpatrick said in her decision, “the City’s evidence established that there was considerably more risk that a property owner may ask for an increased sale price or refuse to sell at all.”

“In addition, the ‘disclosure to the world’ would also inevitably increase the risk of other third parties entering the fray to purchase the remaining properties in the yet uncompleted land assembly, seeking to acquire ‘leverage’ in relation to the City as a means for profit.”

The city said if it is unable to purchase the properties needed for its land assemblies, it “may not be able to” increase low-income rental housing in the city, add new construction jobs, or increase parkland.

Fitzpatrick added if the city weren’t a public body, it wouldn’t be required to disclose its plans in real estate negotiations because the other side would likely use the information to their own benefit and the city’s detriment.

The judge’s decision is final, and the matter will not return to the OIPC.