When the interpretation of any bylaw is in question, the court’s task is to determine the intent of the Board or Council, as expressed through the wording of the bylaw. That is not always a straightforward matter. Two recent cases illustrate the approach the courts use when interpreting zoning bylaws: Whistler (Resort Municipality) v. Whistler Aggregates Ltd., 2012 BCSC 151; and Okanagan-Similkameen (Regional District) v. Leach, 2012 BCSC 63. In both cases the court rejected the local government’s own interpretation of the bylaw.
The modern approach to legislative interpretation
At one time the courts tended to hold that zoning bylaws were to be interpreted strictly, and that any doubt or ambiguity was to be resolved in favour of the property owner. This approach was rejected by the British Columbia Court of Appeal in Neilson v. Langley (Township) (1982), 134 D.L.R. (3d) 550, where the court held that the provisions of a zoning bylaw ought to be interpreted with a view to giving effect to the intention of the municipal council upon a “reasonable basis” that will accomplish that purpose.
The modern approach taken by the courts recognizes only one approach to the interpretation of legislation. In cases such as Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, the Supreme Court of Canada has accepted the following statement from the 2nd edition of Driedger’s Construction of Statutes as the “one rule” of statutory interpretation:
“Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
This approach is consistent with the requirement of s. 8 the Interpretation Act that:
“Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.”
Under the Interpretation Act, an “enactment” includes a bylaw adopted in execution of a power conferred under an Act of the Legislature.
In North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494, the B.C. Court of Appeal stated that when interpreting zoning bylaws, their general purpose must be considered. The court accepted the following statement from I.M. Rogers, Canadian Law of Planning and Zoning, as an apt statement of that purpose:
“The principal purpose of zoning regulations, as with restrictive, covenants, is to preserve property values by prohibiting uses which are believed to be deleterious to neighbourhoods mainly residential in character…”
Whistler (Resort Municipality) v. Whistler Aggregates Ltd.
Whistler Aggregates is a textbook example of the application of the “one rule” of statutory interpretation. The case involved an alleged violation of the municipality’s zoning bylaw – the property owner was operating an asphalt manufacturing plant in an Industrial Processing One (IP1) zone where the manufacturing and processing of gravel and aggregate was a permitted use. The operator used aggregate extracted from the site, and combined it with bitumen brought from off the site to create asphalt. The municipality argued that the zoning bylaw only permitted the manufacturing and processing of gravel and aggregate. The court referred to dictionary definitions and previous cases where the meaning of the word “manufacture” was at issue. The court noted that while gravel and aggregate could be processed, and could be manufactured into something else, they were raw materials extracted from the ground, and in and of themselves were not commodities that could be “manufactured”. The court held that the grammatical and ordinary sense of the words used in the bylaw included the manufacture of gravel and aggregate into other products, including asphalt.
When considering the scheme, object and intention of the bylaw, the court also reviewed the bylaw’s history, and compared the regulations for the zone in which asphalt manufacturing was occurring to the regulations for other zones. In particular, in another Industrial Processing (IP2) zone, processing activities were limited to materials extracted from the site. There was nothing in the bylaw that suggested that the “manufacturing” permitted in the IP1 zone could only involve materials found on the site.
Okanagan-Similkameen (Regional District) v. Leach
This case arose from the use of property in a residential zone for short-term visitor accommodation. The defendants had purchased the property as a vacation home for their own use, but also rented out the home to others on a weekly basis, which gave rise to complaints. The facts in the case are somewhat complicated since the bylaw was amended after the owners purchased the property, and a lawful non-conforming use defence was raised. This discussion will focus on the court’s approach to interpreting the provisions of the zoning bylaw in force at the time the case was tried.
The zoning bylaw permitted the use of the property as a “single detached dwelling”. The bylaw also permitted “private visitor accommodation” as a secondary use, subject to certain limitations. The court had to determine whether the owners’ use of the property for short-term vacation rentals was permitted under the zoning bylaw as either a principal or a secondary use.
The court noted that the definitions of “single detached dwelling” and “dwelling unit” (the latter term was cross-referenced in the definition of “single detached dwelling”) did not expressly define the use by reference to a “residential” purpose. A “dwelling unit” was defined by reference to its use for living and sleeping purposes only. The owners pointed out that they were using the property for their own vacations, that they allowed friends and family to use the property at other times, and that they rented the property to others for about five weeks each year – all of which, they argued, was consistent with the use of the property for “living and sleeping purposes”.
The court concluded that despite the limitations of the definition of “dwelling unit”, the provisions of the bylaw as a whole (including that the heading of the part of the bylaw applying to this zone was “Residential Single Family One Zone”) led to the conclusion that the Board intended that a single detached dwelling be used for “residential” purposes. Short-term vacation rentals were not permitted as a principal use, since (referring to Whistler (Resort Municipality) v. Miller, 2001 BCSC 100) rentals to short-term paying guests were not a normal and customary residential use of property.
However, the vacation rental use was held to be a permitted “secondary use”. The bylaw allowed the use of a single detached dwelling for certain secondary uses such as “private visitor accommodation”. The definition of, and regulations respecting private visitor accommodation required that certain conditions be met, including that the “occupation” be conducted within a “principal dwelling unit” by the “residents” of the dwelling unit. The bylaw defined “principal dwelling unit” in a somewhat circular manner as a principal residential unit that was used or intended for residential purposes. Of note, the term “residential” was not defined in the bylaw, but the word “residence” was defined to include a permanent or seasonal home. The court rejected the Regional District’s argument that the owners were not “residents” of the property. The term “resident” was not defined and was to be given its ordinary meaning, which in the context of the bylaw as a whole could include both permanent and seasonal residency. Given the limited use of the property for rentals (five weeks of the year), the use was a “secondary” use. The bylaw stated that private visitor accommodation included bed and breakfast operations, but the court rejected the Regional District’s argument that the scope of the use was limited by those words. Other forms of private visitor accommodation were permitted, and there was no requirement under the bylaw that the residents of the property be physically present on the site when conducting a private accommodation use.
Zoning bylaws are usually quite lengthy, with numerous definitions, general provisions, a multitude of zones each with their own regulations, and a great many other provisions that interrelate. Discerning the underlying intent is not always a straightforward task, and the court’s interpretation of a bylaw does not always square with the local government’s own view of what it intended. This is not a matter of the courts favouring the interests of the property owner in the event of doubt. The courts will interpret the bylaw according to a local government’s “real” intentions as long as those intentions are expressed in clear and unambiguous terms! Care and consideration to detail at the bylaw preparation stage will clearly reduce the risk that a local government’s intentions and purpose will be frustrated by its own choice of words.