In Compagna v. Nanaimo (City), 2016 BCSC 1045 ("C v N") property owners sought an order compelling the City of Nanaimo to issue them a building permit to construct a home on a steep slope. The City refused the permit because of the owners' refusal to provide a suitable geotechnical report.
This case is significant because it clarifies the scope of the discretionary authority that building inspectors have under section 56 of the Community Charter, S.B.C. 2003, c. 26 ("CC") regarding the imposition of requirements for geotechnical reports prior to the issuance of building permits. It confirms that it is a proper exercise of the building inspector's discretion to refer to policies of the local government when considering construction in geologically vulnerable areas.
Facts
Thomas and Tammy Compagna ("the Compagnas") were trying to build a house on land in the City of Nanaimo (the "City") in an area referred to as the North Slope. A supervisor of building inspections for the City, Mr. Fox, refused to grant a building permit to the Compagnas for construction of their house, on the basis that the Compagnas' application failed to comply with the City's North Slope Development Policy ("NSDP").
Section 56 of the CC grants a building inspector the discretionary power to require a geotechnical report for construction on land that has specific geological vulnerabilities such as land likely to be subject to erosion and land slip. The NSDP stipulated that in designated high hazard areas there could be no building within 80 metres of the crest of the slope unless the geotechnical report submitted in support of the building permit application was reviewed and found acceptable by a second geotechnical engineer determined by the City.
Between 2010 and 2013, a geotechnical firm submitted a number of geotechnical reports to the City on behalf of the Compagnas. None of these reports were approved by the third party engineering firm that reviewed them on behalf of the City.
In June of 2014 the Compagnas submitted:
- a building permit application;
- a geotechnical report that had been submitted to the City in 2002 in support of an application for subdivision by a previous property owner; and
- a reviewing report that was written by another engineer as an independent review of the geotechnical report.
The geotechnical report was submitted as relevant to the Compagnas' application because the report dealt with land that was being subdivided to create the Compagnas' lot.
Mr. Fox refused the Compagnas' application on the basis that the 2002 geotechnical report they submitted was not current and was not specially prepared for the Compagnas' lot. In his refusal, he also took into account the NSDP which required a third party review of the report.
Arguments with respect to the Geotechnical Report and Section 56
In Court, the Compagnas took the position that the 2002 geotechnical report met the requirements of section 56 of the CC for a building permit to be issued. They argued that the report was prepared in relation to property that included the Compagnas' lot by properly qualified engineers who had certified the property as safe for construction. In addition, it was argued that the NSDP went beyond section 56 of the CC in requiring a third party review of the geotechnical report.
The Decision
The Court dismissed the petition and held that the 2002 geotechnical report could not be relied upon primarily because the report had never been relied upon for the issuance of building permits (only for a subdivision application). Mr. Justice Schultes stated that "the language of section 56 seems broad enough to permit building inspectors to consider a pre-existing geotechnical report that was prepared for subdivision approval when they are exercising their discretion, but there is no suggestion they are required to do so".
Further, and most significantly, the NSDP's requirement for a third party review of submitted geotechnical reports was not an improper expansion of the section 56 process. Mr. Justice Schultes found that local governments have the authority to create policies that inform the exercise of discretion that is conferred to their employees under a provincial statute. As such, the NSDP's review requirement advanced the purpose of section 56, which was to ensure safe construction in geologically vulnerable areas. This requirement was a means of ensuring that building inspectors have the necessary information to exercise their statutory discretion in an informed way.
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