Last November, the BC Supreme Court dismissed a petition against the Bowen Island Municipality (BIM) by Zongshen Envirotech Limited for withholding a building permit for a dock on the shoreline of Cape Roger Curtis, and on Monday, the Court of Appeal for British Columbia overturned that decision and ruled in favour of Zonshen.
Zongshen purchased waterfront Lot 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. 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. At the time, Zongshen argued that the municipality improperly used the building bylaw to delay the application for a building permit. When the court ruled in favour of BIM, it awarded the municipality the costs of the lawsuit.
In the appeal, which the court heard several months ago, Zongshen argued that the previous judges interpretation of the terms “private moorage facility” or “permanent moorage” as defined by the Land Use Bylaw, and and disallowed on the shoreline of Cape Roger Curtis by Bylaw No. 381.
The judgement hinged on this particular definition. As explained in the reasons written by Mr Justice Lowry, as defined by the Land Use Bylaw a private moorage facility means:
a float on the surface of the water that is affixed to the sea bed.
Justice Lowry noted that the previous judge “discounted the requirement that to be such a facility, the dock would have to be ‘a float on the surface of the water.’ As stated, the proposed dock would not in any way be a float on the surface of the water. It would all be supported by pilings resting on concrete footings: no part of it would float on the water.”
The court has ordered that the Municipality issue a building permit for Lot 14 that is subject to the application made in March, 2015, subject only to Zongshen submitting to the municipality a current title search and re-submitting the application fee.
BIM’s lawyer in the case, Christopher S. Murdy, said that theoretically the municipality could appeal this decision to the Supreme Court of Canada, but getting the court’s permission to do so would be difficult.
