Court of Appeal un-stops a dock, because it's not a "private moorage facility"

Late last year we reported on a decision of the BC Supreme Court upholding Bowen Island’s refusal of a building permit for a structure the Municipality said was a prohibited “private moorage facility”. That term was defined in the Municipality’s zoning bylaw as: "a float on the surface of the water that is affixed to the sea bed, that may be connected to the shoreline by means of a gangway, that is used as a landing or wharfing space for pleasure craft in association with the use of a single lot of adjacent upland residential property, and that may include an accessory pier structure and boat lift.” The prohibition was enacted after members of a local “Stop the Docks” campaign were elected to Council.

The Supreme Court's decision turned largely on a finding that the petitioner had failed to submit a “complete” building permit application for the structure before the Municipality adopted the zoning prohibition.

In July of this year the petitioner’s appeal was allowed. The Court of Appeal said the structure (which consisted of a ramp, a 100 foot long by 4 foot wide walkway supported by steel pilings set in concrete footings on the sea bed, and a boat lift) did not meet the bylaw definition of “private moorage facility”, because it did not include “a float on the surface of the water”. Unlike the judge below, the Court of Appeal refused to accept evidence of Council’s intention to prohibit all docks as overcoming any ambiguity in the bylaw definition. In fact, the Court said there was no ambiguity to resolve: the petitioner's structure was not a "private moorage facility" because it didn't include a float, therefore it wasn't prohibited. End of story.

This case is a reminder that while the Court takes a broad approach to the interpretation of municipal powers, it will not shy away from close scrutiny of development regulations, so careful bylaw drafting is critical to achieving local government policy objectives.

Guy Patterson

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