On June 9, 2021, the British Columbia Court of Appeal released reasons for judgment in Yu v. Richmond (City), 2021 BCCA 226. In this court action the City of Richmond (the “City”) appealed a judicial review decision of the Supreme Court of British Columbia in which it was held that pre-building soil densification measures that were undertaken on two properties in Richmond, British Columbia constituted construction within the meaning of the City of Richmond Building Regulation Bylaw No. 7230 (the “Building Bylaw”).
This decision will be of interest to local governments and building inspectors in British Columbia, as well as building inspectors in other Canadian jurisdictions, as an indication of how courts will assess what constitutes a construction activity within the meaning of a building bylaw.
Background
The respondents in this appeal, Fu Li Yu and Jing Yang (the “Yu’s”), had obtained building permits from the City to construct a single family detached home on a property located in the Agricultural Land Reserve in Richmond, BC.
On August 11, 2017 the Yu’s began excavation on the subject property and later obtained building permits on August 30, 2017, which had an expiration of February 26, 2018. Soil densification activities continued throughout the fall of 2017. No buildings or structures were erected on the property throughout the fall and winter of 2017 and in the spring of 2018 settlement surveys were taken and a sand removal process on the property commenced. Beginning in the fall of 2018 construction of a retaining wall began.
A building inspector attended at the property in October of 2018. The building inspector determined that the building permits were expired as of February 27, 2018, and the City took the position that the soil compaction work that was underway on the property did not constitute construction as contemplated in the Building Bylaw.
The Yu’s brought court proceedings through a judicial review, calling on the Court to assess whether the decision of the City and their building inspector in ruling that their permits were expired was a reasonable decision. On this judicial review, the Supreme Court of British Columbia found that the decision of the City was unreasonable and held the building permits were valid and in full force and effect. The City appealed the decision.
The Decision & Analysis
Madam Justice Mackenzie of the Court of Appeal identified the issue before Court as being whether the City’s conclusion that the soil densification process did not fall within the definition of “construction” found in Part Fifteen of the Building Bylaw, such that no construction occurred during the period the building permits were valid, was a reasonable decision.
“Construction” was defined in the Building Bylaw as follows:
- CONSTRUCT/CONSTRUCTION means to build, erect, install, repair, alter, add, enlarge, move, locate, relocate, reconstruct, demolish, remove, excavate or shore.
The Court considered the definition of “construction” in conjunction with a number of sections of the Building Bylaw and applicable regulations. This analysis included a review of section 5.1.1 of the Building Bylaw, which set out when property owners must obtain building permits:
5.1.1 Every owner must obtain:
(a) a building permit prior to commencement of construction, or prior to a change in the use, occupancy or both, of a building or structure.
The Court noted that s. 5.1.1 of the Building Bylaw states that an owner was to obtain a building permit for the construction of a “building” or “structure” and made no indication that a building permit would be required for any soil densification or site preparation work. When reviewing the Building Bylaw, the Court held that it was clear that the verbs included in the definition of construction (build, erect, install, repair, alter, add, enlarge, move, locate, relocate, reconstruct, demolish, remove excavate or shore) were only engaged by the Building Bylaw when the construction is of a “building” or a “structure”. The Court then turned its mind to the definition of “building” and “structure” in the Building Bylaw:
- BUILDING means a structure or a portion of a structure, including foundations and supporting structures for equipment or machinery or both, which is used or intended to be used for supporting or sheltering a use, occupancy, persons, animals, or property.
- STRUCTURE means all or part of a construction, whether fixed to, supported by, sunk into, or located in, land, water or airspace, and includes freestanding sign structures over 3.0 m in height and supporting structures for such signs, and includes a sewage holding tank, but excludes landscaping, paving, a fence, or a retaining wall under 1.0 m in height.
It was evident from these definitions that the City did not intend for pre-structural site preparation work, such as soil densification, to be captured in the definition of “construction” found in their Building Bylaw. The Court concluded that this meant that activities that engage a verb in the definition of “construction” that are not related to a building or structure are not regulated by the Building Bylaw and no building permit would be required for such an activity.
Accordingly, the Court held that soil densification measures are not construction of a building or structure and no building permit would be required to engage in soil densification activities. Therefore, the commencement of soil densification at the Yu’s property did not constitute a construction activity within the meaning of the Building Bylaw. As a result, the building permits would have been expired as a result of the failure to commence construction of a building or structure prior to February 26, 2018.
Takeaways for Local Governments & Building Inspectors
The implications of this decision will be welcomed by local governments and their building inspectors, who, depending on the wording of their building bylaw would have been severely curtailed in their regulation of construction and development activities if soil densification or other site preparation work had been interpreted as constituting “construction” pursuant to the provisions of the Building Bylaw. Depending on the wording of a building bylaw, such a result could have led to situations where a building permit could never expire once the preloading process or other soil compaction activities were commenced.
This ruling should also provide clarification to building inspectors in regard to whether soil densification and site preparation work constitutes a construction activity as contemplated in a local government’s building bylaw. In instances where a building bylaw indicates that construction activities relate only to structures or buildings then a soil densification activity cannot be said to be construction as contemplated within the meaning found in the bylaw.
As is often the case the answer to these questions is found in the definitions, provisions and language of the bylaw itself and this is where the Courts will turn their mind to when called upon to address these disputes. The British Columbia Court of Appeal’s interpretation of the Building Bylaw in this case demonstrates how the Canadian courts will analyze and apply the provisions of a municipal bylaw in assessing whether decision of a local government actor, such as a municipal building inspector, was reasonable in the circumstance and in consideration of the provisions found in the governing bylaw.
