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.

In this case, the court heard two matters together:

  1. the Local Trust Committee’s petition for a declaration that the owners of a property on Mudge Island had contravened the zoning bylaw by building two concrete embankment walls within the 30-metre setback area, as well as a deck, stairs, and fences; and
  2. an action commenced by the property owners seeking a declaration that the zoning bylaw was inapplicable to the extent it infringed upon their common law riparian right to protect their property from erosion, a declaration that the zoning bylaw was inapplicable to the structures in issue by reason of the doctrine of interjurisdictional immunity or was inoperative under the doctrine of paramountcy, and that the zoning bylaw infringed the owners’ rights under section 7 of the Canadian Charter of Rights and Freedoms.

The court was not persuaded by the owners’ arguments about interjurisdictional immunity or paramountcy – those arguments were raised in an attempt to limit the effect of the zoning bylaw by reference to the federal government’s power over navigation and shipping. In the view of the court, the zoning bylaw did not adversely affect the core of the federal power. Nor was there any conflict between the zoning bylaw and the Navigable Waters Protection Act. The court also found that there was no breach of the owners rights under the Charter of Rights and Freedoms. Certain of the structures – a deck and fences – were found to contravene the zoning bylaw and were ordered removed.

Significantly, the court held that the zoning bylaw should be read down to conform with the common law riparian right of the owners to protect their property against erosion through the construction of the embankment walls.

The court found that at common law, the owner of property adjoining a body of water has the right to protect their property from erosion caused by the “inroads of the sea”.  The court found as a fact that the ocean had caused erosion to the island, and that the embankment walls had been constructed to protect against erosion. The court then concluded that nothing in the Local Government Act or the Islands Trust Act had abrogated the owners’ riparian rights, or allowed the Local Trust Committee to abrogate the owners’ riparian rights, either expressly or by necessary implication.

In concluding that the Local Government Act did not abrogate the the owners’ riparian right to protect their property from erosion, the court referred to Bryan’s Transfer Ltd. v. Trail (City) 2010 BCCA 531, where Kirkpatrick J.A. considered whether sections 94 to 96 of the Land Title Act had modified the common law doctrine of accretion by requiring landowners to apply to the Surveyor General, through the process set out in the Land Title Act, in order to amend their registered title to include accreted Crown land. Citing previous decisions that have held the legislature needs to express its intention to depart from the general system of law with “irresistible clearness”, Kirkpatrick J.A. determined that the Land Title Act was not sufficiently clear in its intention to modify the common law doctrine of accretion so as to preclude resort to the courts.

The court in Fonseca v Gabriola Island Trust Committee left open the possibility that the Local Government Act might allow for narrower regulation in relation to how walls on the seashore are constructed or repaired.

The court’s conclusion that section 479 of the Local Government Act has not by necessary implication abrogated a property owner’s right to construct structures such as the embankment walls is surprising. The use of local government zoning powers to regulate the construction of structures within and adjacent to the foreshore has been  upheld in previous court cases, although the issue of the riparian right to protect against erosion has never before been raised in a B.C. case. This decision in this case could have far reaching implications for local goverments, and may curtail their authority to adopt bylaws for the protection of the natural environment, and to implement climate change adaptation strategies. The extent to which the reasoning in this case would apply to properties that border bodies of fresh water and that are subject to the Riparian Areas Regulation, or might curtail the exercise of a local government’s development permit powers, remains to be seen.

We do not know yet if this decision will be appealed. In the meantime, local governments should seek legal advice if their authority to regulate construction on or adjacent to the foreshore is challenged on similar grounds.