Court of Appeal Decision of the Week

Can a Municipal Bylaw Prohibit a Dock on Waterfront Property?

Case: Zongshen (Canada) Environtech Ltd. v. Bowen Island (Municipality), 2017 BCCA 267 (CanLII)

Keywords: Dock; Municipal Bylaw; Private Moorage Facility; Permanent Moorage

Synopsis:

The Appellant owns waterfront property on Bowen Island at Cape Roger Curtis in B.C. and wants to build a dock. Bowen Island Municipality has a bylaw amendment (adopted by council after the Appellant applied for a building permit) prohibiting construction and refuses to issue a building permit. The Appellant’s application for judicial review is dismissed, based on a determination that, as amended, the bylaw prohibits the dock.

On appeal, the Appellant raises the following questions:

  • whether the amendment actually prohibits construction of the dock;
  • whether the Appellant has satisfied the test for an order in the nature of mandamus (compelling the Municipality to issue a building permit); and
  • whether it has established some alternative legal right to construct the dock despite the prohibition.

The Court of Appeal allows the appeal, finds the dock does not constitute a prohibited use, but it rather a structure accessory to the permitted use of “boat moorage” provided in the bylaw. The Municipality is ordered to issue the building permit.

Importance:

As defined in the bylaw, “private moorage facility” means “a float on the surface of the water that is affixed to the sea bed.…” (See para. 31).

The Trial Judge determined that the Appellant’s proposed dock fell within the definition. The Court of Appeal disagreed. It found the Trial Judge discounted the requirement that, in order to be considered a “private moorage facility”, the Appellant’s dock would have to “float on the surface of the water”. (See para. 31).

The Court of Appeal determined, however, that the proposed dock would not float on the surface of the water. As such, the Court of Appeal found the words of the bylaw do not apply:

Read in their entire context and in their grammatical and ordinary sense, the words employed to define “private moorage facility” simply cannot be read to mean that a structure that is secured to the sea bed is such a facility if it is clearly not a float on the surface of the water.  The words could not be harmoniously read with any contrary scheme or object of the bylaw or intention of the municipal council which adopted it.  The words have to mean what they say. (See para. 32).

Since the Court of Appeal found “no ambiguity” in the language of the bylaw (See para. 33), the Trial Judge’s interpretation was not entitled to deference. (See para. 34).

The Municipality contended that, even if the dock was not a “private moorage facility”, its use would be prohibited as a structure “designed or intended to be permanent moorage”. (See para. 41). The Court of Appeal again determined that the Appellant’s dock would not meet the definition within the bylaw. Permanent moorage is associated with floating facilities not used in navigation, whereas the purpose of the Appellant’s dock is to provide a “permanent structure affording moorage for boats regularly engaged in navigation”. (See para. 42).

In arriving at these conclusions, the Court of Appeal addressed the balance between the Municipality’s objectives and those of the Appellant as follows:

…The dock that is the subject of Zongshen’s applications for a building permit is not prohibited by the Land Use Bylaw as amended by Bylaw No. 381, 2015.  The municipal council may well have wanted to “Stop the Docks” in the vicinity of Cape Roger Curtis for understandable reasons, but here the law requires that its intention in adopting the bylaw must be drawn from the expressed wording employed. This is particularly so given that it would have been a simple matter to provide a broader definition for what constitutes a “private moorage facility” if it was to be said it would include the dock Zongshen seeks to build adjacent to its upland property. (See para. 44).

Counsel for the Appellant: Peter Kenward (Clark Wilson LLP, Vancouver)

Counsel for the Respondent: Christopher Murdy and Anthony Price (Murdy & McAllister, Vancouver)

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Posted: Wednesday, August 02, 2017