In Compagna v. Nanaimo (City), 2018 BCCA 396, the British Columbia Court of Appeal has confirmed an earlier B.C. Supreme Court decision that recognized a building inspector’s discretion to request additional geotechnical reports following subdivision approval, at the building permit stage, as being consistent with the intent of section 56 of the Community Charter. Section 56 is a mechanism that local government building inspectors can use to require a geotechnical engineering report when a building or structure is proposed on hazardous lands, for example land at risk of landslide or flooding. The purpose of requiring such a report is to determine the suitability of the lands for the proposed building or structure and to obtain professional recommendations for conditions necessary to ensure the safe use of the land.
The land owners had petitioned the B.C. Supreme Court for a judicial review of the building inspector’s decision to deny a building permit. The permit was refused because the owners did not provide an updated geotechnical report in a satisfactory form, as had been requested. A summary of the lower court decision dismissing the petition is available in our earlier post: Court Clarifies Authority to Require Geotechnical Reports for Hazardous Lands.
There were two grounds of appeal:
- Whether the scope of the building inspector’s discretion under section 56 was improperly determined.
- Whether the chambers judge erred in failing to consider information in the building permit application that indicated the proposed building met the geotechnical requirements of the BC Building Code.
The scope of the building inspector’s discretion was analyzed through three sub-issues. First, whether an earlier report submitted with the subdivision application satisfied the requirements of section 56. Second, whether the building inspector had the authority to request a new report. Finally, whether the building inspector used the discretion granted by section 56 reasonably.
The land owners argued the previous report satisfied the requirements of section 56 because it included the language that the “land may be safely used for the use intended”. However, the Court of Appeal accepted the conclusion of the lower court that the previous report was requested under the authority of section 86 of the Land Title Act. Section 86 of the Land Title Act grants an approving officer the authority to require a geotechnical report as a condition of subdivision approval and includes the requirement that the report determine whether the “land may be safely used for the use intended”. The previous geotechnical report was provided in relation to the subdivision of the land for residential development, generally. The report requested by the building inspector was for the purpose of the approval of a building permit for a specific building on one parcel. At the time of the previous report, no specific buildings were proposed and, logically, that earlier report could not be interpreted as certifying the safety of the land for the proposed building, as required by section 56.
The broad and purposive approach to interpretation of local government legislation was applied by the Court of Appeal in determining that a building inspector does have the authority to request a new geotechnical report at the building permit stage, or when conditions have changed (such as a change in Building Code standards, as was the case here) such as to warrant a new report. The language of the legislation does not indicate the building inspector’s authority will be spent after one report is requested. In fact, such a limited interpretation would be inconsistent with the purpose of ensuring safe construction in geologically vulnerable areas. It is not logical that the building inspector can fulfil his or her obligation to ensure safe construction when there is only one outdated report available. Finally, the concerns identified by the building inspector that provided the rationale for the request for the report were reasonable. The building inspector was not able to properly assess the safety of the construction with an outdated report that was completed for another purpose.
The land owners also argued that a Schedule B Form submitted with the building permit application included an assurance that the geotechnical components of the proposed building complied with the BC Building Code standards and other safety enactments, and that this met the requirements of section 56. This argument was rejected because the purpose of section 56 is to allow a local government to request a report that certifies the land is safe for its intended purpose. The information in the Schedule B Form certified the building was safe, but did not provide such certification for the use of the land.
This case confirms that the requirement for a geotechnical report and covenant under section 56 of the Community Charter is an important tool in the building inspector’s “toolbox”, which ensures that construction on hazardous land will proceed only when appropriate conditions ensuring safety of the development are met. The Court of Appeal’s confirmation that the building inspector may request additional and updated reports as conditions warrant ensures that a decision whether to allow construction on hazardous land to proceed will be based on the most up to date information available.