Require commissioning of new buildings

Legal Memorandum

Read the legal version from Lidstone & Co.

As new buildings become more complex—with integrated systems for heating, cooling, ventilation, lighting, and water—commissioning has become a critical step to ensure these systems work together efficiently. Commissioning is a quality assurance process that begins during design and continues through construction and early occupancy. It verifies that systems perform as intended and helps building operators maintain long-term energy efficiency and occupant comfort.

The benefits of commissioning include reduced greenhouse gas (GHG) emissions, lower operating costs, and better-performing buildings. For local governments in B.C., requiring commissioning can be an effective way to ensure that climate and performance goals are met from day one.

Local governments can require commissioning through three main pathways. The most direct approach is enacting a bylaw under section 8(3)(l) of the Community Charter, though this may raise questions under the Building Act unless ministerial approval is obtained. Alternatively, commissioning can be secured through section 219 covenants, applied on a parcel-by-parcel basis during rezoning or permitting. Where the local government owns the land, commissioning requirements can also be included in development agreements, leases, or licenses.

Related Reading

Step-By-Step Guide: Supporting Local Governments in British Columbia to Implement Energy Benchmarking.

Lisa Westerhoff, Stewart Somerville, Jiaxin Li for Introba. Published by BC Hydro, Mar. 2024.

Regulatory pathways

Covenant requiring commissioning of new buildings

Last update: Aug. 2025

A local government could likely obtain a covenant under section 219 of the Land Title Act from an owner or developer that requires the owner or developer to conduct commissioning of a new building.

How it works

  • A section 219 covenant may include a commitment from the developer to conduct commissioning of the building’s systems—typically one year after occupancy—to confirm they perform as intended.
  • This type of covenant can be considered during rezoning, subdivision approval, or as part of a development or variance permit application.
  • The covenant formalizes the developer’s obligation and provides a legally enforceable mechanism for ensuring post-occupancy commissioning is completed.

Leverage local government-ownership of land

Last update: Aug. 2025

Local governments that own and develop land can implement building commissioning directly and showcase best practices. When working with third parties, they can also include commissioning requirements through leases, licenses, or sale agreements.

How it works

  • If a local government develops its own land, it can incorporate building commissioning into the project and use it as a model for high-performance buildings.
  • When leasing or licensing land to a third party for development, the local government can include commissioning requirements in the lease or license agreement. The developer would then be required to fulfill those terms.
  • If selling the land, the local government can retain influence by embedding provisions into the purchase and sale agreement. These may include:
  • A requirement for the purchaser to grant a section 219 covenant committing to building commissioning;
  • An option to purchase or right of first refusal, giving the local government the ability to reacquire the land under certain conditions;
  • A reverter clause under section 10 of the Property Law Act, allowing the land to revert to the local government if specific conditions are met or on the occurrence of a specified event, which may or may not occur.

Require commissioning under Section 8 of the Community Charter

Last update: Aug. 2025

Municipalities can likely require building commissioning by adopting a bylaw under section 8(3)(l) of the Community Charter, which allows for regulations related to energy conservation and GHG reduction.

How it works

  • Section 8(3)(l) authorizes municipalities to regulate for specific purposes, but its use is limited by section 53 of the Community Charter. A bylaw under this section must relate to one of the following:
    • (a) the provision of access to a building or other structure, or to part of a building or other structure, for a person with disabilities;
    • (b) the conservation of energy or water;
    • (c) the reduction of greenhouse gas emissions;
    • (d) the health, safety or protection of persons or property.
  • Requiring building commissioning supports both energy conservation and GHG reduction, so it would likely fall within the permitted scope of Section 53.
  • However, section 5 of the Building Act may limit this authority if commissioning is considered a technical building requirement, which falls under provincial jurisdiction.
  • To address this, municipalities can request ministerial approval under Section 7(1) of the Building Act to formalize a local building regulation that includes commissioning requirements.

Glossary Entry

Section 219 Covenants

A legal agreement registered on a property title that allows local governments to secure commitments from landowners.

Section 219 covenants, under the Land Title Act, are a way for local governments to enforce a landowner’s promise to do (or not do) certain things on their property—such as protecting a natural area, limiting certain uses, or ensuring specific construction standards. These covenants don’t need to benefit another property and can apply to any lot, though they’re often used in larger or more complex developments due to the administrative work involved.

A local government may consider a landowner’s offer for a covenant alongside rezonings, development permits, or subdivision approvals. Covenants are legally enforceable and may include financial penalties or specific legal remedies if breached.

Glossary Entry

Local Government-Owned Land

Land owned by local governments can be a powerful tool for advancing public priorities, including affordable housing and sustainable development.

Local governments can manage their land in several ways, including:

  • Keeping full ownership and granting development rights to others
  • Leasing the land (allowing exclusive use while retaining ownership)
  • Licensing it for specific uses (without granting exclusive control)

They can also include conditions, such as covenants or options to repurchase, to maintain control when transferring ownership. In some cases, a reverter clause allows land to return to the government if certain conditions aren’t met. In the case of highways, such as roads or sidewalks, local governments can only grant a licence to use the land and not a lease.

Glossary Entry

Bylaws Under the Community Charter

The Community Charter gives municipalities the authority to regulate specific local matters by bylaw.

Part 2 of the Community Charter outlines the powers municipalities have to pass bylaws in defined areas, following a “spheres of jurisdiction” model. This means local governments can regulate, require, or prohibit certain activities—such as animal control or public health—within specific policy areas, or “spheres.”

Some of these areas are classified as spheres of concurrent authority under Section 9 of the Charter. This includes:

  • Section 8(3)(i) – public health
  • Section 8(3)(j) – protection of the natural environment

In these cases, municipalities must receive approval from the relevant provincial minister before adopting a bylaw—even if the bylaw also addresses issues in non-concurrent areas.

Glossary Entry

Require commissioning of new buildings

As new buildings become more complex—with integrated systems for heating, cooling, ventilation, lighting, and water—commissioning has become a critical step to ensure these systems work together efficiently. Commissioning is a quality assurance process that begins during design and continues through construction and early occupancy. It verifies that systems perform as intended and helps building operators maintain long-term energy efficiency and occupant comfort.

The benefits of commissioning include reduced greenhouse gas (GHG) emissions, lower operating costs, and better-performing buildings. For local governments in B.C., requiring commissioning can be an effective way to ensure that climate and performance goals are met from day one.

Local governments can require commissioning through three main pathways. The most direct approach is enacting a bylaw under section 8(3)(l) of the Community Charter, though this may raise questions under the Building Act unless ministerial approval is obtained. Alternatively, commissioning can be secured through section 219 covenants, applied on a parcel-by-parcel basis during rezoning or permitting. Where the local government owns the land, commissioning requirements can also be included in development agreements, leases, or licenses.