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
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
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
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
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 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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