The Supreme Court of B.C. has sided with landowners in Honeymoon Bay against the Cowichan Valley Regional District over the couple’s development plans for the half-acre waterfront property they own.
Mark and Dorothy Wilson, owners of 10119 South Shore Rd., were denied a development permit in 2019 by the CVRD because their plan didn’t meet the district’s criteria in a number of ways, with the most important being the couple’s intent to build within the property’s stream-side protection and enhancement area.
A SPEA is an area adjacent to a stream that links aquatic to terrestrial ecosystems, and includes both the riparian area vegetation and the adjacent upland vegetation.
But Justice Veronica Jackson, from the Supreme Court of B.C., ruled on Feb. 7 that the regulation the CVRD used to deny the development permit is invalid as it goes beyond the district’s grant of statutory authority to regulate development permit areas.
“It fully prohibits development in an area in which the CVRD has the statutory authority to regulate development, through conditions in place to protect the natural environment, but not prohibit development entirely,” Jackson said in her ruling.
Jackson said the Wilsons had met all the requirements to receive a development permit at the time of the application, and there was no reasonable basis to deny it.
“The board’s decision to deny the application…is unreasonable, and is quashed.”
The CVRD said in a statement that the district is continuing to consider its options over possibly filing an appeal, and isn’t at liberty to discuss the issue any further at this time.
The Wilsons wanted to remove a century-old cabin on their property, relocate a rock pit septic system from its current location — which is only a few metres from the shoreline of Cowichan Lake — to the opposite end of the property, and construct a new home with a 1,829 sq. ft. footprint, which is within the size restriction for principal buildings in the area.
While the Wilsons’ plan was to remove the dilapidated cabin from the property’s stream-side protection and enhancement area, the proposed new dwelling would see some of its footprint encroaching back into the SPEA.
A staff report on the development permit application in 2019 stated that, in staff’s opinion, the removal of non-conforming buildings and structures is not an acceptable rationale for allowing an encroachment back into a SPEA.
“As a baseline, all new development is expected to be outside of a SPEA as it is the intent and spirit of the riparian areas regulations for non-conforming buildings to be removed from SPEAs and for the land to be returned or enhanced to natural habitat as re-development occurs,” the report said.
“Any encroachment into a SPEA should be as minimal as possible, where every effort is made to reduce the amount of encroachment that may be necessary. This was discussed with the applicant previously, however no revisions were made to the site plan.”
The report said the Wilsons hired a qualified environmental professional who, after a study of the property, concluded that there should be a 28-metre SPEA at the site, but due to hardship, the SPEA should be 15 metres.
But staff disagreed, stating in the report that what is being considered with this application is an encroachment into the SPEA, not a “variance” to an SPEA.
“This is a significant distinction because the SPEA is a protected area under the riparian areas regulation and, in this case, the SPEA should be 28-30 metres from the high water mark,” the report stated.
“Despite staff’s attempt to clarify the regulations and expectations of the CVRD, the applicant has chosen to proceed with the proposed development plan. Staff strongly believes that more effort can be made to decrease encroachment into the SPEA.”
Staff recommended that the application be denied.
When the permit application was brought to the CVRD’s electoral area services committee in July, 2019, Glen Quarmby, an agent representing the Wilsons, said that the qualified environmental professional, Bill Rublee, was hired by the couple to do an environmental assessment of their development plans.
He said Rublee concluded that if the Wilsons’ development plans moved forward without any changes, there would be “no harmful alteration, disruption or destruction of the natural features, functions and conditions that support fish life processes in the property’s riparian areas.”
Quarmby said that a provincial judge had agreed with Rublee’s findings in a similar case and allowed the development to proceed, and a court of appeal also agreed with Rublee when the case reached that level.
“Without any evidence to the contrary, there is no reason the CVRD can’t approve a development permit based on environmental issues,” he said.
“[Rublee] said it was OK and he’s the authority, and the courts agree that he is the authority, and the CVRD must go along with what he said.”
Mark Wilson also spoke at the meeting in 2009, and told the committee that he didn’t bring any legal counsel to the meeting because he thought he’d have a better chance to appeal to the committee members’ common sense on the issue.
“I don’t want to go to court, but I will if I have to,” he said.
“I think the law allows us to build what we want to build and I want to move forward with it,” he said.
Sierra Acton, the CVRD’s director for Shawnigan Lake, asked staff at the same meeting if the CVRD has the legal right to refuse a development permit in an SPEA.
Tom Anderson, the CVRD’s general manager of planning and development, said the district does play a role in the approval of development permits in riparian areas within its jurisdiction.
“We’re of the understanding that [the committee and the board] have the right to approve or deny these applications,” he said.
“Every case is different.”