No “Grandfathering” Out of Requirement for Development Permit

In a recent decision, the BC Supreme Court confirmed that on-going development projects commenced before the enactment of an Official Community Plan are not exempt from the requirements of that OCP, nor will they be protected by the  “legal non-conforming” provisions of the Local Government Act.

The case of Columbia Shuswap (Regional District) v Darnell, 2016 BCSC 1674 (“Darnell”) concerns the developer of a lakefront property. In 2005, the developer undertook a project to restore a field on the property, which entailed placing large amounts of fill within 30 meters of the lake.

In 2014, the Regional District adopted an official community plan bylaw (the “OCP”), which, amongst other things, created a riparian development permit area. Under the OCP, any work involving the disruption or disturbance of soil and vegetation within 30 meters of a watercourse requires a development permit.

The property fell within the OCP’s riparian development permit area. Shortly before the OCP was adopted, the developer met with Regional District staff, and was (allegedly) informed that she would not be required to obtain development permits for her on-going project (although at trial staff denied telling the developer she did not need a development permit). A few months later, the developer dumped 20 loads of fill within 30 meters of the lake without obtaining a development permit. The Regional District then informed her that she needed to obtain a development permit, which she refused to do. This led the Regional District to seek a declaration that the developer was in breach of the OCP, an injunction requiring the developer to obtain a development permit in accordance with the OCP, and an order that if the developer failed to do so, the Regional District could enter the property and remove the fill at the developer’s expense.

At trial, the developer argued that her on-going project was a legal non-conforming use and not subject to the OCP. The Court did not agree.

The Court found that the developer’s project did not come within the definition of a “non-conforming use” under sections 528-535 of the Local Government Act (the “LGA”). The Court rightly pointed out that those sections apply only where land or a building or structure is being lawfully used before a local government adopts a new land use regulation bylaw. The LGA defines “land use regulation bylaw” as a bylaw under any of Divisions 5 [zoning bylaws], 12 [phased development agreements], and 13 [other land use regulation powers] of Part 14. OCPs and development permits, which are authorized under Division 4, and Division 7 respectively, are outside the LGA definition of “land use regulation bylaws”.

In short, even though the developer started her project before the OCP came into force, the OCP was not a “land use regulation bylaw” and the developer could therefore not claim the protection of legal non-conforming status. The Court therefore issued a declaration that the developer was in breach of the OCP, and found that the Regional District was entitled to an order requiring the developer to obtain a development permit for the project within 90 days, failing which the Regional District would be authorized to remove the fill at the developer’s expense.

Although the Court was unable to determine whether staff had misled the developer, it did point out that, in any event, misinformation could not prevent the Regional District from enforcing its bylaws. The Court cautioned, however, that a negligent misrepresentation could render the Regional District liable, and interestingly, it refused to award the Regional District costs of the litigation because of the alleged, unproven misrepresentation. This underscores the need for local government representatives to exercise caution when responding to inquiries concerning legal obligations under applicable bylaws and legislation.

The Darnell case serves as a useful reference for local governments considering whether a new OCP applies to on-going developments. The non-conforming use protections of the LGA only apply to “land use regulation bylaws”, and absent specific wording in an OCP that exempts on-going developments, Darnell confirms that local governments are within their rights to insist that such developments comply with the OCP.