Court Interpretation of Lawful Non-Conforming Use in Sunshine Coast

Caselaw Update November 8, 2024 Alyssa Bradley, Jordan Adam & Serge Grochenkov

Court Interprets Lawful Non-Conforming Use Sunshine Coast (Regional District) v. Vanderhaeghe, 2024 BCCA 169 Ms. Vanderhaeghe sought to replace 4,800 sq. ft. waterfront cottage with new structure Current cottage was legally non-conforming: built in the 1970s and was 9.5 metres from nearby Sakinaw Lake current zoning bylaw required 20 m setback Case Law Update November 8, 2 Caselaw Update

Court Interprets Lawful Non-Conforming Use Section 529 of the Local Government Act: (1) If the use and density of buildings and other structures conform to a land use regulation bylaw but (a) the siting, size or dimensions of a building or other structure constructed before the bylaw was adopted does not conform with the bylaw [ ] the building or other structure or spaces may be maintained, extended or altered to the extent authorized by subsection (2). (2) A building or other structure or spaces to which subsection (1) applies may be maintained, extended or altered only to the extent that (a) the repair, extension or alteration would, when completed, involve no further contravention of the bylaw than that existing at the time the repair, extension or alteration was started [ ] Case Law Update November 8, 2 Caselaw Update

Court Interprets Lawful Non-Conforming Use SCRD took the view that s. 529 allowed for the demolition of the current cottage and subsequent construction of the new dwelling Permits issued for demolition of current cottage, and development and building of new dwelling Owner began construction, but not according to plan: Closer to lake Greater square-footage Couple metres taller Case Law Update November 8, 2 Caselaw Update

Court Interprets Lawful Non-Conforming Use SCRD issued stop work orders and took the position that the owner requires development variance permit Owner s DVP rejected. Owner then applied for amendment to existing permits, but SCRD refused to process Owner finishes construction and seeks judicial review of SCRD s decision to reject her variance applications, while SCRD seeks order that the owner bring her property into compliance Owner wins in court, so SCRD appeals Case Law Update November 8, 2 Caselaw Update

Court Interprets Lawful Non-Conforming Use What did the Court of Appeal say? S. 529 does not apply to the destruction and replacement of a building SCRD issued a valid development permit Not unreasonable to require a variance in relation to new structure differing from approved plans, but unreasonable to require owner to apply for new permits changes should be considered as amendments to existing permits Owner required to bring new building into compliance with approved plans Case Law Update November 8, 2 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Vancouver (City) v. Pender Lodge Holdings Ltd., 2024 BCCA 37 Case Law Update November 8, 2 Caselaw Update

Limit on Authority Depends on Specific Statutory Test City sought to restrict rent increases between tenancies for Single Room Accommodation ( SRAs ) using business licence bylaw Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test s. 272(1)(f) of the Vancouver Charter: 272. (1) The Council may from time to time make by-laws: (f) for regulating every person required to be licensed under this Part, except to the extent that the person is subject to regulation by some other Statute; Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Licence amendments were challenged by two SRA Operators: 0733603 B.C. Ltd. and Pender Lodge Holdings Ltd. Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Basis: SRAs already subject to Residential Tenancy Act Wording of 272(1)(f) of the Vancouver Charter precluded additional rent control regulations Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Staff: proposed amendments will not conflict with the RTA because: the City can regulate housing providers if regulation does require the providers to breach the RTA; and the City s jurisdiction to impose rent control is governed by the impossibility of dual compliance test. Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Similar argument: 1193652 B.C. Ltd. v. New Westminster (City), 2021 BCCA 176 Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Relevant Community Charter provisions: 8(6): A council may, by bylaw, regulate in relation to business. 10(1): A provision of a municipal bylaw has no effect if it is inconsistent with a Provincial enactment. 10(2): For the purposes of subsection (1), unless otherwise provided, a municipal bylaw is not inconsistent with another enactment if a person who complies with the bylaw does not, by this, contravene the other enactment. Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Critical Issue for Court of Appeal: Was Council s interpretation 272(1)(f) reasonable? Did Council decide to enact the amendments based on the understanding that the impossibility of dual compliance test applied? Case Law Update November 8, 2024 Caselaw Update

Limit on Authority Depends on Specific Statutory Test Conclusion Case Law Update November 8, 2024 Caselaw Update

Fire Orders and Homeless Encampments Vandenberg v. Vancouver (City) Fire and Rescue Services, 2023 BCSC 2104 Ms. Vandenberg sheltering on street in Downtown Eastside challenged fire order issued by City Fire Chief Significant increase in tarps, tents and other materials on street resulted in serious fire risk to individuals on streets and in adjacent buildings as well as firefighters responding to incidents Fire order stated: Remove any tarps, tents and other structures that are placed on the sidewalk where they will prevent firefighters from engaging in firefighting operations Case Law Update November 8, 2024 Caselaw Update

Fire Orders and Homeless Encampments Ms. Vandenberg argued fire order unreasonable because her s. 7 rights to life, liberty and security of the person under the Charter of Rights protects her from being displaced from public spaces and were violated Also argued procedurally unfair because she had no notice or opportunity to be heard regarding fire order before it was issued Case Law Update November 8, 2024 Caselaw Update

Fire Orders and Homeless Encampments Reasonableness of fire order: Preliminary question: Did fire order engage and limit Ms. Vandenberg s s. 7 Charter rights? Law does not go so far but recognizes right to erect shelter overnight Fire order overbroad and required removal of structures regardless if for day or night use Ms. Vandenberg s s. 7 rights engaged and limited by fire order Case Law Update November 8, 2024 Caselaw Update

Fire Orders and Homeless Encampments Second question: Was fire order reasonable in that it reflected a proportionate balancing of the s. 7 rights and the Fire Chief s statutory objective? Record showed Fire Chief alive to s.7 rights of Ms. Vandenberg and tried to address them Prior to issuing fire order, Fire Chief reached out to Provincial Fire Commissioner and Ministry, requesting assistance with housing and treatment for individuals Fire Chief also met several times with representatives of BC Housing, City and organizations working with homeless requesting assistance Fire Chief explained in letter to Pivot Legal Society that fire order did not require individuals to leave Court concluded fire order reflected a proportionate balancing of Ms. Vandenberg s s. 7 rights and Fire Chief s statutory objective to address fire risks and therefore reasonable Case Law Update November 8, 2024 Caselaw Update

Fire Orders and Homeless Encampments Procedural Fairness: Court found that Fire Chief required to give Ms. Vandenberg and others notice and the opportunity to be heard before issuing fire order Not sufficient that fire department engaged and communicated with individuals and organizations regarding concerns through written materials, training and walk-throughs Specific notice and opportunity to heard regarding proposed fire order required Not a case where doing so would defeat statutory purpose Issue not urgent given that enforcement of fire order was gradual and continued to seek voluntary compliance Case Law Update November 8, 2024 Caselaw Update

Self-Imposed Requirement to Notify Blanke v. West Vancouver (District), 2024 BCCA 858 Petitioner bought property in 2019. Owner of neighbouring lot bought their land in 2017 and applied for development permit, which was issued in 2018. Notice and consultation in relation to 2018 DP took place pursuant to District s development procedures bylaw. No notice requirement in provincial legislation. Previous owner of petitioner s lot already consulted in relation to 2018 DP. Case Law Update November 8, 2024 Caselaw Update

Self-Imposed Requirement to Notify Building permit application stalls during COVID, 2018 DP lapses. Petitioner assumes construction could not proceed. In January 2023, District renews and extends 2018 DP to 2024. No requirement for consultation in relation to DP renewal, and none took place. In August 2023, District approves building permit. Again, no consultation and none required. Case Law Update November 8, 2024 Caselaw Update

Self-Imposed Requirement to Notify Petitioner brings court application with multiple arguments: Lack of authority to issue 2018 DP Issuing 2018 DP was unreasonable Renewing 2018 DP was unreasonable Approving building plans was unreasonable Breach in the duty of procedural fairness Petitioner loses for lack of standing due to unreasonable delay in challenging 2018 DP, but judge still addresses arguments Case Law Update November 8, 2024 Caselaw Update

Self-Imposed Requirement to Notify Court acknowledged petitioner s concerns relating to his horticulture interests and general enjoyment of his home. Nevertheless, there was no requirement for notice or consultation when renewing 2018 DP. A case of current owner disagreeing with position taken by previous owner. Case Law Update November 8, 2024 Caselaw Update

Self-Imposed Requirement to Notify Takeaway? Duty to notify and consult relating to 2018 DP was self-imposed Self-imposed requirement can create additional route through which a local government decision can be challenged An optional requirement means the local government will have to be particularly conscientious Currently being appealed Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Ironclad Developments Inc. v. West Kelowna (City), 2024 BCSC 1285 Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness WestUrban required to construct excess or extended services as a condition of development approval WestUrban entitled to receive latecomer payments from neighbours West Kelowna and Ironclad Developments Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Original construction cost estimate: $669,691.39 Apportioned: WestUrban: 26% City: 20% Ironclad: 54% Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness City advised Ironclad of anticipated contribution in 2018 based on the original estimate Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness April 2020: WestUrban advises that actual cost of construction is $1,925,702.44 July 4, 2020: Ironclad requests the right to make submissions regarding the costs July 24, 2020: City retains consultant to review costs Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness City Consultant: Reasonable costs are $1,388,260.00 November 12, 2020: City advises Ironclad of consultant findings, resulting charge of $749,666.40 November 13, 2020: City enters into Latecomer Agreement with WestUrban Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Ironclad Judicial Review: Sought to overturn the City s decision to enter the latecomer agreement Procedural Fairness argument: Ironclad had no opportunity to make submissions on cost Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Court: Legislative decision =/= procedural fairness entitlement Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Obiter: The City s decision making process was actually unfair Ironclad had a legitimate expectation of providing input on costs Communications with City regarding costs in 2018, 2019 and 2020 Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Also relevant, City policy: the City will notify the owners of all benefitting parcels of a latecomer application, and provide an opportunity for feedback prior to the agreement being finalized Case Law Update November 8, 2024 Caselaw Update

Decision on Latecomer Charges are not Subject to a Duty of Procedural Fairness Conclusion Case Law Update November 8, 2024 Caselaw Update

Zoning and Trees McHattie et al. v. Central Saanich (District), 2023 BCCA 461 Owners cut down trees on property without a tree cutting permit Asserted tree cutting was for planting crops and that the tree bylaw did not apply because zoning bylaw permitted agricultural use Issue was whether District s determination that its tree bylaw applies, including its interpretation of s. 50(2)(b) of the Community Charter was reasonable Case Law Update November 8, 2024 Caselaw Update

Zoning and Trees Section 50(2) states: Subject to subsection (3), if a bylaw under section 8(3)(c) would have the effect on a parcel of land of (a) preventing all uses permitted under the applicable zoning bylaw, or (b) preventing the development to the density permitted under the applicable zoning bylaw, the bylaw does not apply to the parcel to the extent necessary to allow a permitted use or the permitted density. District argued development in s. 50(2)(b) means construction of buildings and structures Also, a restriction on a portion of a property that may be used for a particular use is not a density control for zoning bylaw purposes Case Law Update November 8, 2024 Caselaw Update

Zoning and Trees Court of Appeal confirmed that restriction in s. 50(2)(b) was engaged by the application of the tree bylaw that prevented the owners from planting crops on entirety of property Planting of crops is development and that by limiting the amount of the property that could be used for that purpose, tree bylaw prevented that development from occurring to the density permitted under the zoning bylaw, which allowed agricultural use Tree bylaw inapplicable to the property to the extent necessary to allow farming activities permitted by the zoning bylaw Case Law Update November 8, 2024 Caselaw Update

Zoning and Bylaw Notices Pringle et al. v. Peace River (Regional District), 2024 BCCA 322 Owners constructed campground and four dwelling units on property RD issued bylaw notices for contraventions of building and zoning bylaws Adjudicator upheld bylaw notice for building bylaw but not zoning bylaw Adjudicator ticked box indicating contravention did not take place but stated: Upon hearing the evidence, I am satisfied that on balance of probabilities that the Disputants were actively attempting to rectify the situation in regards to this property. I therefore CANCEL the ticket. Case Law Update November 8, 2024 Caselaw Update

Zoning and Bylaw Notices RD succeeded in judicial review of adjudicator s decision arguing once found contravention occurred, cannot cancel ticket for other reasons under s. 21 of Local Government Bylaw Notice Enforcement Act Owners appealed arguing: Adjudicator did not find a contravention because ticked the did not take place box No contravention because were not using the campground or dwelling units If there was a contravention, adjudicator accepted due diligence defence in that they were making efforts to rectify the situation Case Law Update November 8, 2024 Caselaw Update

Zoning and Bylaw Notices Court of Appeal confirmed when adjudicator s reasons read in their entirety, clearly found a contravention but cancelled ticket for other reasons such as sympathy. Simple non-use of buildings and structures does not mean allowed. Under zoning bylaw, not allowed to be used in the sense of them being located on property. Section 21 of LGBNE Act establishes an absolute liability offence to which due diligence defence does not apply. Case Law Update November 8, 2024 Caselaw Update