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PLANNING AND DEVELOPMENT - Zoning regulations - Land use - Non-confirming uses

Tuesday, March 16, 2021 @ 6:17 AM  

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Appeal by Gabriola Island Local Trust Committee from an order that its land use bylaw was inapplicable to a seawall constructed by the Fonsecas on their property. Cross-appeal by the Fonsecas from the order that other structures on their property contravened the bylaw and had to be removed. The Fonsecas constructed a deck, fences, gates on a boat ramp and a seawall on their property without contacting the appellant. The hearing judge found all structures except the seawall contravened the bylaw. He concluded the appellant’s empowering legislation was not sufficiently clear to abrogate the common law riparian right of the Fonsecas, as property owners, to erect erosion control structures on the shoreline to protect the property.

HELD: Appeal allowed; cross-appeal dismissed. In his consideration of the seawall, the judge erred in his approach to the statutory interpretation of grants of legislative authority to pass zoning bylaws that regulated the exercise of property rights. The judge further erred in his approach to the riparian right to protect one’s property from erosion caused by the inroads of the sea. He erred by conferring on the riparian right a privileged status, not shared by other types of property rights, and then searched for a degree of specificity in a grant of authority to abrogate it. On a plain reading of s. 479 of the Local Government Act, the appellant had the power to regulate the use of land and the siting of structures. That power did not exclude a structure such as a seawall on the basis that the structure’s purpose was to protect the property from erosion. The Fonsecas’ seawall contravened the bylaw. There was no basis to distinguish between different types of structures according to the purpose for which they were built or the property right that was engaged in constructing them.

Fonseca v. Gabriola Island Local Trust Committee, [2021] B.C.J. No. 91, British Columbia Court of Appeal, D.C. Harris, R. Goepel and P. Abrioux JJ.A., January 22, 2021. Digest No. TLD-March152021003