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.

In its reasons for judgment, the Court first addresses the issue of whether the Gorge is within the territorial jurisdiction of the Province.  The Court navigates this issue by finding that the Gorge is within provincial boundaries because:

  1. the Gorge Waterway is water inter fauces terrae (“in the jaws of the land,”) and was therefore presumed to be within the province’s jurisdiction;
  2. although the federal government was granted ownership of Victoria Harbour in 1924, the Gorge Waterway was not part of the Victoria Harbor; and
  3. the Gorge Waterway Park was entirely within the boundaries of the City of Victoria.

Once the Court determined that the Gorge Waterway Park was within the territorial boundaries of the city and the province, the Court sails through the jurisdictional issue of whether the City was acting outside of its jurisdiction by regulating an activity that is within the federal government’s power over navigation and shipping. In doing so, the Court relies on the decision West Kelowna (District) v. Newcomb, 2013 BCSC 1441 (aff’d 2015 BCCA 5,). West Kelowna states that the regulation of permanent moorage of vessels does not offend the federal jurisdiction over navigation and shipping.  The Court in Zimmerman follows this decision and finds Victoria’s bylaw to be a valid exercise of its powers.

Victoria v. Zimmerman offers important clarification on the planning powers of a local government relating to moorage.  This decision anchors the understanding that a local government’s zoning powers apply to regulating the use of land covered by water, so long as this land is within the territorial boundaries of the province and the local government.  These powers to regulate moorage only apply to permanent moorage, and a local government cannot use its zoning powers to regulate temporary moorage, or moorage incidental to active use.  Zimmerman does not comment on where the dividing line between temporary and permanent moorage lies.

In light of Victoria v. Zimmerman, local governments that are restricting moorage by their zoning bylaws should  consider  the following questions:

  1. Is the area in question within provincial territorial limits?
  2. Does the proposed bylaw only prohibit permanent moorage, rather than temporary moorage?

If the answer to these two questions is “yes”, then the bylaw is on its way to being ship-shape.

Josh Krusell Joins Stewart McDannold Stuart

We are pleased to announce that Josh Krusell has joined Stewart McDannold Stuart as an associate. Josh will be working with our litigation practice group, acting for our local government clients.

 

 

 

 

 

 

 

 

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.

Upcoming CLEBC Course on Planning and Development Law

The Continuing Legal Education Society of BC is presenting a one day course on planning and development law on November 23, at the Pan Pacific Hotel in Vancouver. Peter Johnson will be participating, and will present a session on Practice Management and Ethics Issues in the Planning and Development Process.

New Articled Student

We are pleased to announce that Andie Britton-Foster, a graduate of the University of Victoria Law School, has joined us for her year of articles.

The Annual Tax Sale Approaches!

Here is a link to our post from last year concerning the annual municipal tax sale:

The Annual Tax Sale Approaches!