Canada: Spotlight On Planning

Last Updated: October 15 2013
Article by Olga Rivkin

Local governments and land owners often disagree about what bylaws apply to any given development project. Recent decisions of the BC Supreme Court in West Kelowna (District) v. Newcombe and Bradshaw v. Victoria (City) show two areas where such disagreements may arise: when local governments regulate moorage of boats, and when local governments apply new bylaws to in-stream development applications. 

Can local governments prohibit moorage?

In West Kelowna (District) v. Newcombe, 2013 BCSC 1411, the BC Supreme Court held that local governments have the authority to regulate long-term moorage of vessels and houseboats, but not short-term moorage. In the Court's opinion, short-term moorage and anchoring are vital to the Federal government's control of shipping and navigation and, therefore, cannot be impaired by a local government. Long-term moorage, on the other hand, is not vital to navigation and can be regulated or prohibited. 

Mr. Newcombe owned a houseboat named M.S. Grace, which he typically moored at Shelter Bay Marina. When Mr. Newcombe lost his moorage at the Marina, he moved M.S. Grace to Gellatly Bay, into an area zoned W1 Zone, which zone only permitted moorage to owners of upland parcels. Because Mr. Newcombe did not own an upland parcel in the area, the Regional District commenced an action against Mr. Newcombe arguing that Mr. Newcombe was in breach of the W1 Zone provisions. In response, Mr. Newcombe argued that the Regional District did not have the authority to prohibit moorage.

The Court confirmed that municipalities may use their zoning power to regulate the use of land covered by water and the use of water itself, which, in the Court's opinion, was the objective of the W1 Zone. However, zoning bylaws cannot impair navigation and shipping, and the W1 Zone would be invalid if it was found to do so. 

The elements of navigation and shipping affected by the W1 Zone were anchoring and moorage. After considering various authorities provided by the parties, the Court found that temporary anchoring or moorage for repairs, emergencies, provisioning or merely overnight were vital to navigation and shipping; on the other hand, long-term moorage was not.  Because the W1 Zone did not distinguish between temporary and long-term moorage, the court read down the W1 Zone to apply only to long-term moorage. On the basis of this reading, the Court held that Mr. Newcombe's moorage of M.S. Grace for extended periods of time was unrelated to his use of the vessel and contrary to the W1 Zone. In the Court's words, Mr. Newcombe was "using the highway to stable his horse."

The Newcombe decision is the most recent declaration on the ability of local governments to regulate moorage and anchoring of boats. While the distinction between temporary and permanent moorage is interesting, it remains to be seen where subsequent cases will draw the line between what is temporary and what is permanent moorage.

What is the effect of new bylaws on in-stream development?

In Bradshaw v. Victoria (City), 2013 BCSC 1710, the BC Supreme Court recently held that changes in development permit requirements apply to in-stream subdivision applications. The case turned on the interpretation of section 943 of the Local Government Act, which section exempts land owners who apply for subdivision from the application of bylaws adopted after their application has been submitted. 

Mr. Bradshaw owned two parcels of land. He submitted an application to the City's approving officer to subdivide the two parcels into five, and an application to the City's building department to develop three of the five planned parcels. While the building permit applications were pending, the City adopted a bylaw requiring a development permit for Mr. Bradshaw's lands. Because Mr. Bradshaw did not apply for such development permits, his building permits were refused. Mr. Bradshaw challenged the City's decision to refuse the building permits arguing, among other things, that section 943 of the Local Government Act exempted his project from the new development permit requirements.

Section 943 of the Local Government Act exempts land owners who apply for a subdivision from the application of bylaws adopted after their application has been submitted. However, the exemption in section 943 extends only to bylaws that "would otherwise be applicable to that subdivision." The narrow issue in Bradshaw was if the term "applicable to that subdivision" extended to the development permit requirements.

The parties' argument turned on the meaning of the term "subdivision": does it mean division of land into two or more parcels, or does it mean something more than that? Mr. Bradshaw argued that there was a link between dividing the lands into five parcels and developing such lands; in other words, "subdivision" meant the development project. The City argued that "subdivision" only meant dividing the lands into two or more parcels; developing such parcels was an entirely different matter. Previous case law on section 943 favoured the City's position, but was inconclusive.

The Court sided with the City and held that subdivision typically does not include construction on the lands. Development permit requirements in this case were incidental to construction, not subdivision. Therefore, section 943 did not exempt Mr. Bradshaw from such requirements. On the basis of the decision in Bradshaw, it is clear that a court is likely to narrowly apply the exemption in section 943 of the Local Government Act. They are more likely to view "subdivision" as a narrow act of dividing land than a more encompassing act of dividing and developing. This will have a significant effect on what bylaws apply to any given development project.

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.

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