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Court sinks another dock, this time for incomplete application

In another decision from the docks of Bowen Island, the BC Supreme Court has sided with the Municipality. In Dong, a case decided earlier this year, the petitioners could not convince the Court to find fault in the Municipality’s hasty passage of a zoning bylaw prohibiting private docks in a newly-subdivided area known as Cape Roger Curtis. In the latest chapter, Zongshen (Canada) Environtech Ltd v Bowen Island (Municipality), 2016 BCSC 2058 the Municipality seemed to be on shakier ground, as the petitioner had submitted an application for a building permit to construct a dock on March 23, 2015, within seven days of Council passing “a resolution directing staff to prepare an amendment to the Land Use Bylaw that would prohibit all private docks at Cape Roger Curtis”, and long before the dock-stopping bylaw was adopted. Municipal staff refused to accept the application because it was not accompanied by proof of tenure to the foreshore from the Province, which the petitioner had applied for about a year earlier but had not been granted. (The delay was due in part to the Municipality having expressed concerns to the Province about the granting of tenure for the docks it didn’t like.)

Other than the resolution to prepare an amendment bylaw, the tenure issue was the only thing stopping the Municipality from issuing a building permit for the petitioner’s dock, and s. 463 of the Local Government Act does not authorize the withholding of a building permit on the basis of such a resolution in the first seven days after the resolution is passed. Because the petitioner had attempted to submit its application within seven days of the resolution, s. 463 wouldn’t help the Municipality if that application had been complete. However, the Court said the lack of a legal right to use the foreshore, proof of which the Municipality’s Building Bylaw specifically required, “cannot be regarded as a mere technical detail”. Accordingly, the Municipality could not have been compelled to accept the March 23, 2015 application as complete.

Municipal councils are regional boards are sometimes surprised to learn that, other than by way of s. 463, they cannot simply declare a moratorium on issuing permits for buildings that comply with current bylaws. Zongshen thus confirms the utility of a clearly worded resolution directing staff to prepare a bylaw the effect of which will be to prevent the kinds of buildings or structures the council or board is worried about. It’s not necessary to give first reading to an actual bylaw in order to invoke the permit withholding power under s. 463. In fact, the Court in Zongshen cited the pre-bylaw resolution to support its interpretation of the bylaw Bowen actually adopted. The resolution told staff to prepare a bylaw prohibiting private docks; the Court agreed that was in fact the effect of the adopted bylaw.

One further note about this case: the Court suggested the resolution directing staff to prepare the dock prohibition bylaw might not have met the requirements of s. 463 “because it did not specifically refer to the withholding of a building permit”. In our opinion such a reference is not necessary in a resolution directing staff to prepare a bylaw. That resolution is passed with a view to adopting a bylaw, not withholding permits. The authority to withhold a permit on the strength of a resolution directing the preparation of a bylaw can only arise if a complete application is submitted (more than seven days later). If no such application is submitted, there’s no question of withholding. Therefore, we don’t think s. 463 requires a local government to say anything about withholding until it has received an application and identified a conflict between the development proposed in the application and the bylaw that’s under preparation.

Guy Patterson

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