Focus On

PLANNING AND DEVELOPMENT - Building regulations - Building permits

Wednesday, July 07, 2021 @ 5:42 AM  


Lexis Advance® Quicklaw®
Appeals by the City from orders quashing the City’s decisions that the building permits of the respondents had expired under its Bylaw. The respondents each obtained building permits from the City to construct single‑family homes on properties located in the Agricultural Land Reserve known for its moist, loose soil from accumulated silt deposited by the Fraser River. To ensure the structural integrity of construction in that area, certain steps had to be taken to densify the soil before buildings were erected. The City determined that the pre‑building soil densification measures did not constitute construction pursuant to the applicable permit within the meaning of s. 5.10.1 of the Building Bylaw and, therefore, the respondents’ building permits had lapsed for the respondents’ failure to commence construction before the permits’ expiration dates. The judge found the City’s interpretation that construction did not include soil densification steps was unreasonable as it was inconsistent with the text, context, and purpose of the enactment. He found these steps were necessary in the construction process and were expressly and implicitly contemplated in the issuance of the permits on receipt of the geotechnical reports. The judge found construction was broadly defined in the Building Bylaw, and the soil densification process engaged several of the verbs in the definition. He rejected the City’s submission that the verbs must be read only to refer to a building being constructed and not to site preparation. The judge found the City’s distinction between physical construction and site preparation was untenable.

HELD: Appeals allowed. When read in the context of the entire enactment, it became clear that the verbs included in the definition of construction were only engaged by the Building Bylaw when the construction was of a building or structure. Activity that engaged a verb in the definition of construction but was not of a building or structure was not regulated by the Building Bylaw. No building permit was required to perform such activity. The only activity capable of preventing the expiration of a building permit under s. 5.10.1(a) of the Building Bylaw was activity for which a building permit was required. Because activity for which a building permit was not required was not regulated by the Building Bylaw, it was incapable of constituting construction pursuant to the building permit for the purposes of s. 5.10.1. There was nothing in the Soil Bylaw to indicate this soil deposit or removal must constitute construction pursuant to the building permit for the purposes of s. 5.10.1 of the Building Bylaw. The expiry of the building permits did not mean an owner would be unable to build on their land. If the plans complied with the applicable enactments, an owner would receive a new building permit on application to the City, subject to any changes in the enactments.

Yu v. Richmond (City), [2021] B.C.J. No. 1247, British Columbia Court of Appeal, A.W. MacKenzie, B. Fisher and G.B. Butler JJ.A., June 9, 2021. Digest No. TLD-July52021006