Upcoming Presentations

Peter Johnson will be presenting a “legal update” at the upcoming Association of Regional District Planning Managers annual conference, on November 7. The ARDPM annual conference is being held this year on November 6 and 7, in Victoria.

Peter will also be speaking at the LGMA Corporate Officers Forum on November 22, on the topic of Contracts and Agreements – Key Issues for Corporate Officers. The LGMA Corporate Officers Forum is being held this year in Kelowna, from November 21 – 23.

Home Occupation Regulations Enforced

In Columbia Shuswap (Regional District) v Jones, 2018 BCSC 1776 the Columbia Shuswap Regional District (CSRD) recently obtained a judgment from the B.C. Supreme Court granting declaratory and injunctive relief against property owners in a case involving a zoning bylaw enforcement and “home occupation” matter.

The decision of Mr. Justice Marchand is available here. His Lordship agreed with the CSRD that the construction contracting and snow removal business activities being carried out by the property owners in and around their family dwelling did not fit within the definition of a “home occupation” for the purposes of the zoning bylaw. The Court found that the owners’ activities altered the residential character of the property and occupied more than 100 m2 of gross floor area, contrary to the zoning bylaw. In fact, the court found that the owners’ use of the property was more properly characterized as a “general trade contracting office and works yard”, which was not a permitted use. In coming to that conclusion, the Court applied the presumption of “implied exclusion” – the use was expressly permitted in other zones, therefore it was presumed that the use had been deliberately excluded from the list of permitted uses applicable to the owners’ property.  Accordingly, the Court ordered that the property owners are enjoined from continuing the commercial activity on the property, though His Lordship provided a period of time for the owners to transition their business to an alternative property that is zoned for such activity.

The CSRD was also successful in obtaining a declaration that the home contained both a primary and secondary dwelling under the terms of the zoning bylaw, and the Court granted a mandatory injunction requiring the property owners to bring the residence into compliance with the fire safety and other relevant provisions of the zoning bylaw relating to secondary dwellings.

Local Government Zoning Powers Eroded By Riparian Rights

Local governments that have zoning regulations in effect over properties adjoining a body of water need to be aware of the British Columbia Supreme Court’s October 1, 2018 decision in Fonseca v Gabriola Island Trust Committee, 2018 BCSC 1684.

At issue in the case was a zoning bylaw of the Local Trust Committee that required that all buildings and structures be sited a minimum of 30 metres from the natural boundary of the sea or other body of water. (more…)

Election Day Hotline

Stewart McDannold Stuart’s Election Day Hotline will be available on Saturday, October 20.

Our lawyers will be available by telephone from 8am to 8pm to assist our clients’ Chief Election Officers and their staff.

Anchors Aweigh: Local Government’s Jurisdiction over Permanent Moorage of Vessels

In The Corporation of the City of Victoria v. Zimmerman, 2018 BCSC 321, the City of Victoria obtained a statutory injunction to restrain the permanent moorage of boats in the Gorge Waterway, on the grounds that permanent moorage of boats contravened the City’s zoning bylaw.

The respondents challenged the validity of the zoning bylaw, arguing that restricting moorage encroached upon the federal jurisdiction over navigation and shipping under the Constitution Act. In other words, they argued that the City’s zoning bylaw was venturing in unnavigable waters, jurisdictionally.

(more…)

MIABC Webinar – Wu v. Vancouver (City)

The Municipal Insurance Association of British Columbia is providing members of BC local governments with access to a free 45 minute webinar on the recent BC Supreme Court decision in Wu v. Vancouver (City), on February 20 at 10:00 am. Jeff Locke and Peter Johnson will be sharing their insights about this case, its implications for local governments, and risk management tips that local government planning and building officials should consider. More information about this webinar is available on MIABC’s website: http://www.miabc.org/Member-Services/Webinars/2018/02/20/default-calendar/duty-of-care-for-process-development-applications

CAO Forum February 20-22

Colin Stewart and Kathryn Stuart are pleased to have been invited to participate as part of the Knowledge Cafe at the CAO Forum being held in Victoria on February 20-22, 2018.

Seasons Greetings from Stewart McDannold Stuart

From all of the lawyers and support staff at Stewart McDannold Stuart, we wish you all the best for the holiday season, and a happy and prosperous New Year.

In lieu of sending greeting cards this year, we have made a donation support of Victoria’s Sandy Merriman House, which has been providing shelter and support for women in need since 1995.

Local Governments May Owe a Duty of Care to Process Development Applications in a Timely Way

In Wu v. Vancouver (City) 2017 BCSC 2072, Madam Justice Murray of the BC Supreme Court held that the City of Vancouver owed a duty of care to the plaintiffs, the purchasers of a home in the Shaughnessy area, who had applied for a development permit for the demolition of an existing house and construction of a new house. According to the decision, the City owed the plaintiffs a duty to make a final decision on their permit application, in accordance with the applicable statutory framework, within a reasonable time. Madam Justice Murray concluded that the City was negligent in this case since it acted in bad faith and failed to conduct itself in accordance with the standard of a reasonably competent municipality when dealing with the plaintiffs’ application. (more…)

Capilano University Course

Kathryn Stuart will be teaching a session on administrative law on November 17, as part of Capilano University’s Local Government Law Course.