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Riparian rights no clear-cut exemption from municipal regulations

Thursday, April 01, 2021 @ 8:57 AM | By Laura Gurr


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Laura Gurr
We often hear about erosion and flooding as a side effect of climate change. Owners of waterfront properties may be required to or want to undertake flood and erosion control work to mitigate the impacts of high water levels and shoreline flooding. This type of work is usually subject to land use planning controls and conservation authority regulations. These governmental regulations can restrict or prevent property owners from undertaking certain erosion controls to protect their property. Understandably, property owners may object to these restrictions and want to assert their riparian right to protect their property.

The B.C. Court of Appeal recently dealt with the question of whether a property owner of waterfront land has a common law right to erect erosion control structures on the shoreline to protect their property. In Fonseca v. Gabriola Island Local Trust Committee [2021] B.C.J. No. 91, the property owners constructed a deck, fences, gates on a boat ramp and a seawall on their property without approval from the appellant, the Gabriola Island Local Trust Committee.

The hearing judge found all structures except the seawall contravened the bylaw. With respect to the seawall, the application judge found that the bylaw infringes the property owners’ common law riparian right to protect the property from erosion and therefore, it is inapplicable to the embankment walls. The Gabriola Island Local Trust Committee appealed from the order that its land use bylaw was inapplicable to the seawall. There was also a cross-appeal by the property owners from the order that other structures on their property contravened the bylaw and had to be removed.

The British Columbia Court of Appeal allowed the appeal and dismissed the cross-appeal. It was determined that, on a plain reading of s. 479 of the Local Government Act, the Gabriola Island Local Trust Committee 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 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. The Court of Appeal clearly outlined the scope of the private property rights and the government’s right to regulate the same subject matter, specifically Justice David Harris states:

“First, the existence of private property rights running between adjoining landowners does not, without more, have any implications for the scope of a grant of authority to a local government to regulate the same subject matter. Second, the mere regulation of that subject matter by a local government does not affect or abrogate the common law rules governing the private relations between adjoining landowners.”

The court also distinguished the existence of the right to protect one’s property at common law from the ability of a municipal government to regulate that right through zoning bylaws.

Ultimately, for waterfront property owners it is important to remember that common law riparian rights exist, but they do not exempt property owners from compliance with municipal regulations through zoning bylaws. Compliance with municipal regulations will likely be enforceable, even where there is evidence that the construction is necessary to prevent erosion to the property.

Laura (Glithero) Gurr is a partner with Cohen Highley LLP in London, Ont. She provides risk management and regulatory compliance advice to condominium corporations, property management companies and non-profit housing providers.

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