On Monday, the British Columbia Supreme Court released its decision dismissing a petition against the Bowen Island Municipality by Zongshen Envirotech Limited for with-holding a building permit for a docks on the shoreline of Cape Roger Curtis.
Zongshen purchased waterfront Lots 1 and 14 in 2011 and first submitted applications to the provincial Ministry of Forests, Lands and Natural Resources to build a dock across the foreshore in 2013. In February of that year, Zongshen also obtained a biophysical survey and marine assessment to show the docks would “not negatively impact eelgrass meadows, kelp beds, clam beds or mussel beds.”
As explained in detail in the court’s written decision, the municipal council elected in 2014 asked the Ministry to delay their considering the application. Council then denied Zongshen a building permit based on the fact that provincial approval for the docks had yet to be granted. By the time provincial approval for the docks was given, council denied Zongshen a building permit based on the enactment of the bylaw disallowing docks on the shoreline of Cape Roger Curtis.
In petitioning against the municipality, Zongshen did not dispute the docks bylaw, but argued that the municipality improperly used the building bylaw to delay the application for a building permit. The argument relies on Mandamus, “an extraordinary remedy to overcome inaction or misconduct by public officials,” which required Zongshen to prove the clear and legal right to docks on the properties in question.
The Municipality argued that while, within the limits of appropriate zoning, property owners have the right to a building permit, but the permit in this case would have impacted the public foreshore.
The court determined that while Zongshen did have “riparian” rights to the foreshore as the waterfront property owner, these rights simply meant that no one else could acquire the right to build a dock on the property.
“As of the date it applied for a building permit, March 23, 2015, the petitioner had applied to the Ministry and may have had every reason to believe that approval would be forthcoming; but the Ministry had not in fact made its decision. In my view, the analysis in Bradshaw is a complete answer to the petitioner’s argument,” wrote Justice Smith in his decision.
The decision came with the costs awarded to the Municipality for the price of the lawsuit.
