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PLANNING AND DEVELOPMENT - Development permits - Right to obtain

Tuesday, June 23, 2020 @ 5:38 AM  

Lexis Advance® Quicklaw®
Appeal by the owners of a commercial property from the dismissal of their application for judicial review of the City’s decision dismissing their application for a preliminary plan approval to regularize their operation of a restaurant that included a pizza oven and covered patio on the ground floor. The appellants purchased the property in 2009. At the time, the property housed a restaurant on the ground floor with a pizza oven. After a fire in 2011, the appellants relocated the pizza oven, causing it to extend 88 square feet outside the pre‑existing building. The extension impinged upon the on‑site parking allocated under the existing plan under which the restaurant operated. The appellants did not obtain a preliminary plan approval or a building permit before this relocation. They obtained a building permit for it in 2013. The judge posited that the appellants likely obtained the building permit by mistake as it plainly violated the Zoning Bylaw concerning maximum lot coverage. Under the Bylaw, persons seeking to undertake a development required a preliminary plan approval from the Director of Planning before they could be issued a building permit. The judge rejected the appellants’ argument that the City’s failure to request or require a preliminary plan approval for the pizza oven in 2013 estopped it from requiring a preliminary plan approval later. He found the City’s decision to include the patio cover in lot coverage calculations to be reasonable.

HELD: Appeal dismissed. It was reasonable for Burnaby to consider that the permit issued for the pizza oven in 2013 did not legitimize the pizza oven in the event it was non‑compliant with the Zoning Bylaw or was constructed without a preliminary plan approval, if required. It was reasonable for Burnaby to include issues with the pizza oven in deciding whether to grant a preliminary plan approval for the patio cover, the pizza oven results in the building surpassing the authorized lot coverage, and the building permit for the pizza oven did not determine its compliance with the Zoning Bylaw. The City reasonably refused a preliminary plan approval for the patio cover for the reason the pizza oven made the building non‑compliant with the Zoning Bylaw. The City’s conclusion that parking on the nearby property could not serve as donor parking to cure a parking deficiency was reasonable. The donor arrangement effectively made the nearby property a parking lot. In effect, the appellants were relying on shared parking where there was no shared use with the donor property because for some time it had no business and thus no use other than for parking. The City’s insistence that the patio apparatus was not exempt from lot coverage calculations was reasonable.

0940460 BC Ltd. v. Burnaby (City), [2020] B.C.J. No. 823, British Columbia Court of Appeal, M.E. Saunders, A.W. MacKenzie and P.M. Willcock JJ.A., May 20, 2020. Digest No. TLD-June222020003