Court Clarifies Authority to Require Geotechnical Reports for Hazardous Lands

Section 56 of the Community Charter, which applies not only to municipalities, but also to regional districts by virtue of section 302 of the Local Government Act, has been given some helpful interpretation by a recent decision of the Supreme Court of British Columbia. In Compagna v. Nanaimo (City), 2016 BCSC 1045, the court concluded that while the language of section 56 is broad enough to permit a building inspector to consider, and potentially rely upon a geotechnical report previously prepared for another purpose, such as an application for subdivision, it does not require the building inspector to do so.

By way of background, section 56 provides authority for a building inspector to deal with hazardous conditions, namely flooding, mud flows, debris flows, debris torrents, erosion, land slip, rockfalls, subsidence, or avalanche. Where such a hazardous condition exists, a building inspector may require the applicant to provide a geotechnical report prepared by a qualified engineer. If the report concludes the land cannot be used safely for the use intended, the building inspector cannot issue a building permit. If the report concludes that the land may be used safely for the use intended in accordance with the conditions specified in the report, then the permit can be issued, but only if a covenant under section 219 of the Land Title Act is registered against title to the land, securing the owner’s promise to abide by the conditions of the report, and to reimburse the local government for any expenses resulting from the owner’s breach of the covenant.

In the Compagna case, the court upheld the denial of a building permit where the applicant sought to rely upon a geotechnical report prepared a number of years earlier in relation to subdivision of the parent parcel. That report had been registered against title to the subject property pursuant to a covenant. The applicant refused to have a new report prepared, insisting that the existing report was sufficient. The building inspector denied the permit in part because the seismic requirements of the BC Building Code had become significantly stricter since the geotechnical report was prepared.

The court noted that the change in seismic requirements presented a compelling reason to require a new report, and to deny a building permit in the face of the applicant’s refusal to provide one. However, the court went on to state that even in the absence of such a reason, the building inspector was entitled to require a new report simply on the basis that the building permit stage is a different stage of development than subdivision, and therefore the considerations to be taken into account may be different. The authority of a building inspector under section 56 of the Community Charter is similar to, but distinct from the authority of an approving officer under section 86(1)(d) of the Land Title Act.

In essence, the court held that the building inspector’s hands could not be tied by a report prepared at another time and for another purpose, a result that accords nicely with common sense.

In addition, the court found no fault with the City’s policy of requiring geotechnical reports provided by permit applicants to be reviewed and approved by a third-party engineer chosen by the City. This did not fetter the discretion of the building inspector to decide each case on its merits, but merely enabled the building inspector to obtain the professional advice needed to inform the exercise of that discretion.

The court’s decision in the Compagna case amounts to a clear recognition of the public interest in ensuring that development on hazardous lands is carried out in a safe manner. It is also an affirmation of the authority of building inspectors to take advantage of the legal tools at their disposal to ensure that each development, considered on its own merits, is safe.