In the recent decision of Sunshine Coast (Regional District) v. Vanderhaeghe, 2024 BCCA 169 (“Vanderhaeghe”), a development permit issued based on a mistaken interpretation of a non-conforming use provision of the Local Government Act (the “LGA”) implicitly granted a homeowner a development variance permit.
Background
Ms. Vanderhaeghe wanted to replace her old waterfront cottage (the “Old Cottage”) with a new three-storey building (the “New Dwelling”). The Old Cottage was a lawful non-conforming building located within the setback area from the lake under the Regional District’s zoning bylaw. The New Dwelling would be roughly the same size and maintain the same footprint as the Old Cottage. Relying upon s. 529 of the LGA, the District issued a demolition permit for the Old Cottage and a development permit and building permit for the New Dwelling.
Construction began in April 2019, but complications arose when Ms. Vanderhaeghe sought to make a change that would add 28 square feet to the New Dwelling. The Regional District advised this would require a development variance permit (“DVP”). Additional issues arose when it was found that a deck post encroached slightly further into the setback and that the New Dwelling was taller than the Old Cottage.
Due to the complications, a stop work order was issued in December 2019. Despite the order, the New Dwelling was completed and Ms. Vanderhaeghe began residing in it without an occupancy permit, citing delays in the DVP process and concerns over potential weather damage.
Ms. Vanderhaeghe’s DVP application was not heard until November 2020. The Board formally rejected the application, based on recommendations from a staff report, and outlined a compliance pathway requiring new permits. Ms. Vanderhaeghe did not follow this direction and instead sought to amend existing permits to reflect the actual dimensions of the New Dwelling, which the Regional District refused.
Ms. Vanderhaeghe sought judicial review of the Regional District’s decisions, while the Regional District filed for an injunction requiring Ms. Vanderhaeghe to comply with its bylaws. Both petitions were heard together in Supreme Court Chambers and then subsequently appealed to the Court of Appeal by the Regional District.
Court of Appeal Decision
There were six issues before the Court of Appeal:
- Was the Board’s interpretation of s. 529 of the LGA reasonable?
The Regional District interpreted the authority to “maintain, extend or alter” under s. 529 of the LGA to include a full demolition and reconstruction of a non-conforming building when issuing a development permit to Ms. Vanderhaeghe. The Court of Appeal disagreed, stating that s. 529 only permits repairs and does not allow for a complete reconstruction. However, The Court of Appeal held that the development permit was valid and its issuance had implicitly granted Ms. Vanderhaeghe a variance from the zoning bylaw’s setback requirements.
- Was the Board’s decision requiring a DVP reasonable?
The Court of Appeal found the Regional District’s requirement for a DVP for the changes to the New Dwelling was reasonable. The Regional District has authority to impose conditions on construction to preserve environmental and community well-being and the original permit was found to include conditions for mass within the setback area and construction in strict compliance with the submitted design drawings.
- Was the District’s decision to require new permits reasonable?
The Court of Appeal held that the Regional District’s decision to require new permits for the changes to the New Dwelling was unreasonable. The decision was unreasonable taking into account the Regional District’s directions to Ms. Vanderhaeghe and the length of time to process the DVP application. The Court of Appeal held any necessary changes should be treated as amendments to the existing permits, not as grounds for new permit applications.
- Was the Board’s decision to deny the DVP application reasonable?
The Court of Appeal held that the Board’s decision to refuse the DVP, based on the staff report, was reasonable. It was held that the staff report was not inaccurate, and accordingly the Board could rely upon it. Further, it was sufficient for Board members to review the staff report and listen to submissions before reaching their conclusion. The Board was not required to review and consider all material filed by an applicant.
- Did the Board breach its duty of procedural fairness?
The Court of Appeal held that the Board met its duty of procedural fairness and that it was not required to adopt a court-like hearing while exercising its wide discretion to consider DVP applications. The content of the duty of procedural fairness is contextual based on the statutory scheme cand the nature and impact of the decision. In the case of a DVP application, the application process itself permits the applicant to convey their position to the Board.
- Is the Regional District entitled to the injunction sought?
The Court of Appeal was satisfied that the Regional District had proved non-compliance with its bylaws based on the changes to the New Dwelling that did not conform with the approved design plans. Although the Court was sympathetic to the hardship Ms. Vanderhaeghe may face, the Court held there was no basis to depart from the usual principle that an injunction should be issued to enforce compliance with the Regional District’s bylaws.
Conclusion and Takeaways
Ultimately, Ms. Vanderhaeghe was ordered to bring the New Dwelling into compliance with the approved building permit drawings within 16 months and any applications for variances are to be assessed against the approved building plans as amendments to the existing permits.
The key takeaways for local governments from Vanderhaeghe are:
- Section 529 of the LGA does not permit a non-conforming building or structure to be demolished and reconstructed as a new building.
- It is important to have accurate staff reporting and thorough consideration by decision-making bodies in the context of development and building permits.
- Decision-making bodies owe applicants a duty of procedural fairness which is informed by the circumstances and nature of the decision.
- If a permit is validly issued and authorizes the construction of an otherwise illegal structure, it may implicitly grant the variance required for that structure.
