Permit Pitfalls: Lessons for Local Governments from Vanderhaeghe

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.

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BCSC Affirms: Good Faith Local Government Decisions to Not Enforce Bylaws Are Immune From Negligence Claims

In Fahr v Schnitzer Steel Canada Ltd., 2024 BCSC 296, the BC Supreme Court affirms that municipalities are not required to enforce bylaws so long as their decision to not undertake enforcement is done in good faith.This decision follows the Court’s prior decisions in Suncourt Homes (2019 BCSC 2258) and Lebourdais (2022 BCSC 281). Specifically, the Court endorsed the statement that “[m]unicipalities will be immune from liability if they contemplate [bylaw] enforcement in good faith, regardless whether action is ultimately taken.” (more…)

Implications of R v. Greater Sudbury for Local Governments in BC

In the recent case of R. v. Greater Sudbury (City), 2023 SCC 28 (“Sudbury”), the Supreme Court of Canada expanded the legal duties and potential liability of “employers” under occupational health and safety (“OHS”) legislation to owners of construction projects.  As a decision of the highest court in Canada, Sudbury could have significant implications for local governments nationwide.  However, it is unlikely to impact local governments in British Columbia because of differences between Ontario’s and British Columbia’s OHS legislation. (more…)

Court of Appeal Upholds Ucluelet’s Decision to Downzone a Developer’s Lands

A recent decision of the BC Court of Appeal affirms a local government’s authority to act quickly and in good faith to forestall development via downzoning of lands, and it clarifies the doctrine of “commitment to use” in respect of claims of an owner that it has already established a lawful non-conforming use.

In Onni Wyndansea Holdings Ltd. v. Ucluelet (District), 2023 BCCA 342, the Court dismissed an appeal by a developer, Onni Wyndansea Holdings Ltd. (“Onni”), seeking to quash zoning bylaws made by The District of Uclulet (the “District”) which downzoned its property and impeded its development plans or, in the alternative, seeking a declaration that Onni had a lawful non-conforming use for the property which would cause any downzoning to be inapplicable to its plans.

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BC Supreme Court finds that Re-Zoning Approval with Variances did not “Create a New Zone”

Recently, the B.C. Supreme Court denied a judicial review petition challenging the approval of a re-zoning application for an apartment complex. In Penticton Society for Transparent Governance and Responsible Development v Penticton (City), 2022 BCSC 2111, the Petitioner alleged that the City had effectively created a new, non-existent land use zone when it approved an amending bylaw that up-zoned a property to an existing zone but where the City was required to subsequently grant variances for aspects of the property that did not meet the requirements of that pre-existing zone. (more…)

Province Introduces Bill 43, Housing Supply Act – If You Don’t Build It, They Will Come

The BC government has introduced Bill 43 – 2022, the “Housing Supply Act” to the legislature, with the stated intention of providing “a framework for housing targets to be established for specified municipalities, and for the minister or Lieutenant Governor in Council to take certain actions if housing targets are not met.” The proposed legislation represents a significant incursion by the Province into local land use and planning authority, and provides the authority for the Province to directly override the decisions of municipal councils, including the power to enact a bylaw in the name of a municipality (more…)

CASE COMMENT: REGULATION OF LAND MAY RESULT IN LIABILITY FOR CONSTRUCTIVE TAKING

Annapolis Group Inc. v. Halifax Regional Municipality, 2022 SCC 36

The Supreme Court of Canada has issued a decision coming out of the province of Nova Scotia which broadens the basis upon which a local government may be held liable for “constructive taking” of private lands.

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Public Law Duties ≠ Private Law Duties of Care

Local governments, like other public bodies and officials, are required by legislation to perform specific public duties and responsibilities. If these “public law duties” are not conducted correctly, this may be grounds for finding that the decision or action was improper, and a court may send the matter back for reconsideration. However, it does not necessarily give rise to a claim in negligence. To successfully bring a lawsuit for negligence, the plaintiff must show that the public body or official owed the plaintiff a “private law duty of care”. (more…)

Amendments to Sign Bylaw Leads to Constitutional Challenge and Allegations of Bad Faith

Kaps v City of Surrey, 2022 BCSC 1191 (“Kaps“) is a recent decision of the BC Supreme Court which highlights the importance of ensuring that prohibitions in a sign bylaw are clear and concise in meaning so as to avoid infringing the constitutional protection for  freedom of expression. The Kaps decision also reiterated the evidentiary burden that must be met when a person alleges that a bylaw was enacted for an improper motive or in bad faith. (more…)

Reasons for Reconsideration Refusals: BC Supreme Court Reviews the Sufficiency of Reasons in the Context of a Reconsideration of a Business Licence Refusal

The BC Supreme Court recently added to the volume of caselaw regarding the procedural fairness requirements that are applied in reviewing decisions of municipal governments.

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