2005 BCSC 114 Young v. Cowichan Valley Regional District

Before: The Honourable Mr. Justice McEwan

Reasons for Judgment

Counsel for the Petitioner:	W.R. Southward
Counsel for the Respondent:	G. McDannold
Date and Place of Trial/Hearing:	January 17, 2005
	Victoria, B.C.

[1] The petitioner applies for Judicial Review seeking:

A. An Order setting aside the decision of the Cowichan Valley Regional District concerning Development Permit 1-E-03DP on the ground that the Cowichan Valley Regional District failed to comply with the Official Community Plan By-Law No. 1490 of the Cowichan Valley Regional District, and, as a result, prejudiced the Petitioner's right to continue the construction of an accessory building on lands owned by him; and

B. In the alternative, an Order setting aside the decision of the Cowichan Valley Regional District concerning Development Permit 1-E-03DP on the ground that the Cowichan Valley Regional District failed to comply with Section 899 of the Local Government Act, R.S.B.C. 1996, Chapter 323 and amendments thereto; and, as a result, prejudiced the Petitioner's right to apply for a construction variance pursuant to Section 901(2) of the Local Government Act.

[2] A claim for special damages appearing in the petition has been withdrawn on the basis that there is no jurisdiction for such an order.

[3] The petitioner owns land at 3959 Johns Road, Duncan, British Columbia. The land is in the Cowichan Valley Regional District (CVRD). It is located adjacent to the Cowichan River, within the "Cowichan River Development Permit Area" contained in CVRD Official Community Plan By-Law No. 1490.

[4] Properties along the river are vulnerable to erosion and flooding. CRVD Zoning By-Law No. 1840 provides that no buildings or structures within the Development Permit area will be located within 30 metres of the top of the bank of the Cowichan River.

[5] The petitioner began construction of a 24' x 32' garage/workshop/storage building in February 2003 without applying for a Development Permit or a Building Permit. The partly finished building is 10.8 metres from the top of the river bank, considerably within the 30 metre set back required under the Zoning Bylaw.

[6] The CVRD issued a stop work order on June 13, 2003.

[7] In response, the petitioner submitted a Building Permit application, and on July 7, 2003, the Regional District advised him that he was required to have a Development Permit.

[8] The petitioner marshalled a number of materials in support of the Development Permit Application. A geotechnical assessment prepared on July 16, 2003 by Jacques Whitford and Associates Limited concluded:

In summary, our assessment is that the proposed shop will not adversely impact the stability of the slope or the river below provided that our recommendations as outlined in this letter are implemented. We also consider that there is a low (less than 10 percent probability of exceedance in 50 years) likelihood of the structural integrity of the building foundation being compromised by natural slope instability or by flooding. Therefore, the intent of the bylaw can be achieved with the proposed setback of 10.8 to 12.5 metres from the crest of the slope. However, there is a possibility of part of the back yard being lost due to natural slope instability over the next several years, with or without construction of the shop building.

[9] A staff report prepared by Dave Paras, a planning technician, on August 8, 2003, set out the extent to which the petitioner's building did not comply with the requirements of the official Community Plan and the Zoning Bylaw. It also passed along the results of the geotechnical study that had been performed for Mr. Young to the Electoral Area "E" Advisory Planning Commission (the A.P.C.).

[10] On August 21, 2003 the A.P.C. recommended that the application not go forward for variance.

[11] The application then came before the Electoral Services Committee for consideration.

[12] Mr. Paras prepared staff reports before each of two meetings. The first recommended that the Development Permit Application be approved in principle. The second included that recommendation as the first of two options:

Option 1

To support the original recommendation as presented to them at the September 29, 2003 meeting, which is as follows:

That Development Permit Application No. 1-E-03DP be approved in principle and that the Planning Division be authorized to issue a Development Permit to Dennis Young pursuant to the Cowichan River Development Permit Area to allow the partially constructed workshop to be completed to within 10.8 metres of the top of the bank of the Cowichan River to avoid placement over the sewage disposal area, and that it be subject to the recommendations of the Geotechnical report prepared on this property by Bruce R. Dagg, P.Eng., Senior Geotechnical Engineer from Jacques Whitford and Associates Ltd. Consulting Engineers dated July 16, 2003, being completed, and that implementation of these recommendations be supervised by this Engineering firm during the completion of this project.

Option 2:

That Development Permit Application No. 1-E-03DP (Dennis Young) not be approved as the construction of the workshop in this location violates the intent of the environmental protection justification and guideline policies of the Cowichan River Development Permit Area. Mr. Young should be requested to remove said workshop from his property that was initially constructed without benefit of a building permit.

[13] On October 20, 2003 the Electoral Area Services Committee recommended to the Regional District Board that the Application not be approved.

[14] The Regional District Board met November 12, 2003 and referred the matter back to the Electoral Area Services Committee because the petitioner had submitted new materials respecting the impact of the variance on fish habitats.

[15] These were a report prepared by Sea-Mount Consulting on November 6, 2003, which concluded that proper roof design to control drainage could eliminate any concern about damage to the fishery, and a November 12, 2003 letter from the Department of Fisheries and Oceans indicating that, in its opinion, the impact on fisheries could be effectively mitigated.

[16] On December 1, 2003, the Electoral Area Services Committee, having considered this material, again recommended against approval of the Development Permit.

[17] On December 10, 2003, the Regional District Board ratified the recommendation of the Electoral Area Services Committee, and Mr. Young was notified by letter December 18, 2003:

Please be advised that the Board of the Cowichan Valley Regional District considered the above-described Development Permit application at their regular meeting held on Wednesday, December 10, 2003, and they passed the following resolution:

"That Development Permit Application No. 1-E-03DP (Dennis Young) not be approved as the construction of the workshop in this location violates the intent of the environmental protection justification and guideline policies of the Cowichan River Development Permit Area; and further that Mr. Young be requested to remove said workshop from his property that was initially constructed without benefit of a building permit."

In accordance with the above resolution, you are hereby requested to remove the subject workshop, including the foundation from your property and that this work be completed within 60-days from receipt of this letter.

III

[18] On February 9, 2004, the petitioner asked the Regional District to "suspend" their request for removal of the building from his property so he could go to the Board of Variance.

[19] At the time there was no Board of Variance in place. This had come about due to a legislative amendment to the Local Government Act changing the composition of Boards of Variance. The process of advertising for, and then appointing, new members took until April 30, 2004.

[20] Mr. Paras, of the Development Services Department, responded to the petitioner's request as follows:

Further to the above-described Development Permit and your correspondence dated February 9th, 2004, requesting a suspension of any action pending an application to the Board of Variance, please let us clarify the Regional District's position on this matter. The issue related to a Board of Variance decision was perhaps overstated when this matter was brought up, as they do not have the authority to issue a Development Permit. Their role would be to make a decision to vary (or not to vary) the distance of the existing accessory building from the top of the bank of the Cowichan River.

Regardless of the decision they would make, you still need Regional District approval for issuance of a Development Permit authorizing this accessory building to remain in its current location. As you are obviously aware, this process was exacerbated through two Electoral Area Committee meetings, which resulted in a decision by them and the Regional Board to not issue the Permit. They also requested removal of the workshop as part of this decision.

As earlier noted, any discussions on referring this matter to the Board of Variance does not alter the past decision, but due to the confusion this may have created, we will provide you an additional 30 days from the date of this letter to initiate removal of the accessory building.

[21] In submission, the petitioner acknowledges that a Development Permit would still have been required, but suggested that a favourable ruling from the Board of Variance would have been useful in support of his application for a Development Permit, and that he should have had an opportunity to obtain such a ruling before a final decision was made by the Regional District Board.

[22] Under section 920(2)(a) of the Local Government Act, however, the jurisdiction to vary is a jurisdiction the Regional District Board may exercise in connection with a Development Permit. I do not see on what principle a body having full jurisdiction to rule on the merits of an application should be restrained from doing so, so that another tribunal of more limited jurisdiction could rule on a fraction of the issue, in order to furnish a potentially persuasive – but not conclusive - opinion. Because the Regional District Board had the jurisdiction required, it is irrelevant that a Board of Variance did not exist. It is simply beside the point.

[23] The question remains as to whether there are valid grounds under the Judicial Review Procedure Act to set aside the decision of the Regional District.

[24] The limited role of a court on Judicial Review is set out in Lawson v. British Columbia (Solicitor General) (1990), 65 D.L.R. (4th) 537 (S.C.B.C.):

... the power of the Court to review is a power to determine whether a person or body has statutory jurisdiction to make a decision as opposed to whether the power has been, in the view of the Court, rightly or wrongly exercised as on an Appeal.

[25] The Regional District has the jurisdiction to enact a Zoning Bylaw:

903.(1) A local government may, by bylaw, do one or more of the following:

(a) divide the whole or part of the municipality or regional district into zones, name each zone and establish the boundaries of the zones;

(b) limit the vertical extent of a zone and provide other zones above or below it;

(i) the use of land, buildings and other structures,

(ii) the density of the use of land, buildings and other structures,

(iii) the siting, size and dimensions of

(A) buildings and other structures, and

(B) uses that are permitted on the land, and

(iv) the location of uses on the land and within buildings and other structures ...

[26] It may establish Development Permit Areas:

920 (1) If an official community plan designates areas under section 919.1(1), the following prohibitions apply unless and exemption under section 919.1(4) applies or the owner first obtains a development permit under this section:

(a) land within the area must not be subdivided;

(b) construction of, addition to or alteration of a building or other structure must not be started;

(d) land within an area designated under section 919.1(1)(a) or (b) must not be altered;

(e) land within an area designated under section 919.1(1)(d), or a building or other structure on that land, must not be altered ...

[27] Section 919.1, which is referred to in s. 920, governs the designation of Development Permit areas:

919.1(1) An official community plan may designate development permit areas for one or more of the following purposes:

(a) protection of the natural environment, its ecosystems and biological diversity;

(b) protection of development from hazardous conditions;

(d) revitalization of an area in which a commercial use is permitted;

(e) establishment of objectives for the form and character of intensive residential development;

(f) establishment of objectives for the form and character of commercial, industrial or multi-family residential development.

(2) With respect to areas designated under subsection (1), the official community plan must

(a) describe the special conditions or objectives that justify the designation, and

(b) specify guidelines respecting the manner by which the special conditions or objectives will be addressed.

(3) As an exception to subsection (2)(b), the guidelines referred to in that subsection may be specified by zoning bylaw but, in this case, the designation is not effective until the zoning bylaw has been adopted.

(4) If an official community plan designates areas under subsection(1), the plan or a zoning bylaw may, with respect to those areas, specify conditions under which a development permit under section 920(1) would not be required.

[28] The Regional District may, by resolution, vary such matters as setback requirements in a Zoning Bylaw as provided in Section 920(2)(a):

920. (2) Subject to subsections (3) to (6), a local government may, by resolution, issue a development permit that

(a) varies or supplements a bylaw under Division 7 or 11 of this Part,

(b) includes requirements and conditions or set standards under subsections (7) to (10), and

(3) The authority under subsection (2) must be exercised only in accordance with the applicable guidelines specified under section 919.1 in an official community plan or zoning bylaw.

(4) A development permit must not vary the use or density of the land from that permitted in the bylaw except as authorized by subsection (5).

(5) If the land was designated under section 919.1(b), the conditions and requirements referred to in subsection (7.1) of this section may vary that use or density, but only as they relate to health, safety or protection of property from damage.

(6) A development permit must not vary a flood plain specification under section 910(2).

[29] Having reviewed the enabling legislation, I am satisfied that the Regional District had the jurisdiction to pass the Zoning Bylaw and Development Permit requirements prohibiting what the petitioner did. Nothing he has advanced in this case, in fact, challenges this jurisdiction. Rather, the petitioner’s argument is that, having demonstrated that geotechnical and fish habitat concerns could be obviated without removing his workshop, the Board has committed reversible error, or acted in bad faith, in turning him down.

[30] The nature of discretionary decision making is set out in 511784 BC Ltd. v. Salmon Arm (District), 19 M.P.L.R. (3d) (B.C.S.C.), 232 where, at page 243, the court observed:

All discretion is inherently discriminatory in that decisions are made which result in a choice or distinction being made. The exercise of discretionary power is only unlawful if the discretion is exercised in an improper discriminatory manner, that is for some improper purpose or on some irrelevant basis. (See Bignell Enterprises Ltd. v. Campbell River (District) (1996) 34 M.P.L.R. (2d) 193 (B.C.S.C.).

[31] Where a Regional District Board has made a decision within its jurisdiction, the appropriate test is that set out in Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 (S.C.C.) adopting the following from Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231 per McLachlin J. (as she then was), at 244:

Recent commentary suggests an emerging consensus that courts must respect the responsibility of elected municipal bodies to serve the people who elected them and exercise caution to avoid substituting their views of what is best for the citizens for those of municipal councils. Barring clear demonstration that a municipal decision was beyond its powers, courts should not so hold. In cases where powers are not expressly conferred but may be implied, courts must be prepared to adopt the “benevolent construction” which this Court referred to in Greenbaum, and confer the powers by reasonable implication. Whatever rules of construction are applied, they must not be used to usurp the legitimate bodies as community representatives.

[32] Here, the petitioner placed himself in the position of having taken significant steps toward building his workshop, including foundations and some framing, without the authority of the required permits. He offers no sensible explanation for having done so.

[33] The onus does not somehow shift in these circumstances to the Regional District to defend the reasonableness of its requirements. The law is in place and the petitioner is in breach. He has shown that some of the specific interests these requirements are intended to protect will not be harmed by situating his workshop where it is. But a glance at the minutes of the Electoral Area Services Committee meeting of December 1, 2003 shows that a broad range of considerations were weighed in the balance in making a recommendation against the petitioner, including concerns about consistency, fairness to others, and the impact of the petitioner’s request on the overall community plan, all precisely the kind of issues that ought to be addressed by, and left to, local politicians.

[34] The Regional District Board, in coming to the conclusion that it did, simply did not accept that the petitioner’s case was so compelling that it ought to make an exception for him. The petitioner has not demonstrated that the Board acted on any improper motive, that it was biased, or took account of irrelevant considerations, or did anything else that might arguably amount to “bad faith” as he used the term.

[35] The standard of review applying to intra vires municipal actions in “patent unreasonableness.” It would, I think, be a most unusual case where a decision to adhere to the terms of validly enacted legislation, rather than to grant an exception to a person in breach of that legislation, would be found to be “patently unreasonable.” This is not, in any event, such a case.

[36] The petition is dismissed.

[37] The respondent shall have costs on scale 3, unless there is some reason to hear further submissions, costs not having been addressed specifically at the hearing.

“T.M. McEwan, J.”
The Honourable Mr. Justice T.M. McEwan

Citation:	*Young v. Cowichan Valley Regional District,*
	2005 BCSC 114