At the council meeting that took place on April 24, a local resident approached council about an issue she and her neighbours are having with a flooding and malfunctioning water easement on the back of their properties. This woman, let’s call her Jane for the sake of the article, has asked that her name be withheld so as not to reduce the chances of her house selling once it is listed. Jane told council that her property, and those of her neighbours, have been flooding with water from an overflowing and malfunctioning easement.
Jane begged the council to look into this matter with a sense of urgency. She says it will be disastrous if nothing is done as there are several trees on the property above her that have been undercut at their roots and she fears that at some point they will fall and injure someone. She told me later that up until sometime last week, she has not had a response from council about this matter since the summer of 2010.
Jane’s property sits on the side of a fairly steep bank overlooking the bottom end of Cowichan Lake. She took me on a trek around her property, and those of her neighbours, to illustrate the problem she has been facing. Above her there is a large piece of land, which also sits on the slope, and which the owner has been steadily clearing since July of 2010. It is this clearing that Jane says has caused the flooding of her property to become unmanageable. Before the man started to clear, she was dealing with flooding, but it was “never this bad.” At the time of the meeting, Mayor Ross Forrest told her that there are legalities involved with the issue of this landowner and the clearing he has done, and that any discussions council has have to be conducted in-camera. He also said he is legally bound not to speak about the issue at this time.
Jane says that this property owner has not applied for, or been approved for any permits for the clearing that he has done to his property. When she approached him about the problem he was unreceptive and did not seem to think that he needed a permit, geotechnical report, or hydro engineering report in order to prepare the land and eventually build a house at the bottom of his property.
The property owner has been ordered by the town to stop any clearing activities, but Jane says she still hears him working with a chainsaw and has seen him clearing and dumping debris. Although she continues to report his activities to the town, her efforts do not seem to have any affect on his actions. She says he also cleared a portion of his neighbours property, without permission, and that the town subsequently forced this other, uninvolved property owner to obtain permits for work he had not done.
The clearing and its resulting water run-off has been compounded by the fact that the water easement that runs along the back of Jane’s property is clogged. She says it is in desperate need of clearing in order to properly channel the water away from her house and those of her neighbours. Along her section of the easement, Jane has built an emergency barrier. Both Jane and one next door neighbour have spent time and money digging trenches and putting in drainage pipes and gravel in an attempt to deal with the excess water because “this so called easement for storm water conveyance is leaking, malfunctioning piece of you know what, which is logical because it’s never been understood that it was here, probably from its inception.”
Jane says that she is not sure how the houses, which were built as part of a 1990-91 development project, could have been properly inspected. She says that if they had been the building inspector would have noticed the easement and recognized that it would need to be properly maintained. She has looked at the development plans, which do show the water easement, but says there is no record of it after those initial plans were drawn up. She can only speculate that the any records of the easement having been put in were destroyed in a fire or by some other means.
At the council meeting, Jane says all she wanted to know was whether or not the town is planning to do anything about the problem, both in terms of the easement and in terms of enforcing town bylaws when it comes to the neighbour who is clearing his land. Because the easement passes through private property, “we can’t really go after him [the neighbour] because there is the town trench in between. I have been told the town has the option to do nothing, non-feasance, and then they are out in the clear, but then if something happens all of us are going to sue the town because it’s the town’s job to do the job of bylaw enforcement. They could also force this man above to do remedial work and if he doesn’t do it they can get it done and send him a bill. That is totally legal, as I understand it. In the meantime, the problem wouldn’t be half as bad if, regardless of what the man has done, this trench would have worked properly.”
She says that she is asking council to “make the storm water conveyance system in the easement function properly.” Jane and the other property owners have told council that crews can gain access to the easement through their properties in order to do the work of clearing and maintaining the easement.
I spoke with Joseph Fernandez, the chief administrative officer for the town, at the town office to see what he had to say about Jane’s problem. He told me that council and the town are taking her and her neighbours concerns seriously and that they have approached the two property owners above her. “In terms of the easement, that’s not really an issue that’s been addressed in this process,” says Fernandez. When it comes to clearing out the debris that is clogging the easement on Jane’s property, Fernandez says “There’s not a lot we can do because there is private property all across below it. Property owners have approached us and said, you know, you can access it through our lands, but it’s a humongous issue if we start to deal with it. Right now the town has not seen a need to undertake that.We were under the impression that the issue was resolved and now we are dealing with an entirely new set of circumstances, at least so we thought.”
In terms of the property owners above Jane, Fernandez says he has written them letters and given them some issues that they have to address. “My understanding is that the work they undertook is the cause of all this kafuffle.”
When it comes Jane’s claim that council has had a delayed response to her concerns, Fernandez says “Not true. She’s been in contact with the previous bylaw officer, and the responses have gone back and forth and her claim that we have not responded to her is not correct.”
I asked Fernandez what Jane can do about the dangerous trees. “That would be a civil matter. If it’s between neighbours, we cannot get involved. But if it’s work that they’ve done and it effects the development permit issue, then that’s where we get involved.”
In the meantime, Jane and her neighbours can only maintain and prevent as best they can and wait to see if the bylaws are properly enforced when it comes the property owner above her. As it is, water can be heard running down the slope to the road under the blackberry bushes and has started to flood down onto North Shore Road below.