Developers have to deal with the requirements imposed by a
municipality through the development permit process. These
requirements can be onerous and time consuming, and sometimes
appear to the developer as unreasonable or arbitrarily applied.
One land owner decided to push back against the denial of a
development permit that the District of Squamish refused to issue.
The land owner sought a declaration from the court that Squamish
was required to issue the development permit in the case of 0742848
BC Ltd. v District of Squamish.
The Local Government Act permits a municipality to designate
development permit areas (DPA) in an Official Community Plan
("OCP") for a number of purposes. Developers commonly
must obtain a development permit for the form and character of the
development, but may also need a development permit relating to
other issues like the protection of the natural environment or
protection from hazardous conditions.
If a municipality designates a develop permit area, it must
establish guidelines in the OCP setting out the objectives of the
development permit and how the objectives will be addressed.
Squamish established a DPA in its OCP for the "protection
of the natural environment, its ecosystems and biological
diversity". The guidelines established in the OCP relating to
the DPA included to "minimize the visual and environmental
impact of any development" and "to ensure that fish and
wildlife conservation and protection of habitat are given priority
over other values".
The 0742848 BC Ltd. ("074") owned a parcel of land
that consisted of 78 acres which was included in the DPA set by
Squamish. The Squamish River ran along the western boundary, with
about 15 acres located to the west of a dike that ran through the
property on a north-south alignment. 074 applied for a development
permit to place a modular home on the land between the Squamish
River and the dike. 074's application met all zoning bylaw
Squamish refused to issue a development permit. The discussion
of the councillors at the council meeting focussed on the flood
risk of permitting development on the western side of the dike, and
not on the matters set out in the guidelines.
The Court found that the decision to not approve the issuance of
the development permit was not based on the guidelines but on
extraneous considerations outside the guidelines. The Court went on
to find that even if the decision was based on the guidelines, the
decision was unreasonable, even allowing for the considerable
deference councils are provided when making a decision.
On that basis, the Court made an order that Squamish was
required to issue the development permit.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances. This article deals with the law
of British Columbia only.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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