The BC Court of Appeal has upheld a decision last year by the Cowichan Valley Regional District to refuse a development permit in a riparian area in Honeymoon Bay.
But representatives for the landowners say the court’s decision was actually split and not a complete victory for the district.
Last year, the Supreme Court of BC sided with Mark and Dorothy Wilson, owners of 10119 South Shore Rd., against the CVRD over the couple’s development plans for the half-acre waterfront property they own.
The Wilsons wanted to remove a century-old cabin on their land, relocate a rock-pit septic system from its current location to the opposite end of the property, and construct a new home with an 1,829 sq. ft. footprint, which is within the size restriction for principal buildings in the area.
The Wilsons 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.
An 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 the Supreme Court of BC ruled last February 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.
The court concluded that 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.
But the CVRD appealed the decision and the BC Court of Appeal ruled last month that while the CVRD’s official community plan’s policy to prohibit any development in an SPEA was unreasonable, it was not unreasonable for the CVRD to refuse the development permit due to a flawed report from a qualified environmental professional, and set aside the Supreme Court order requiring the CVRD to issue the development permit.
However, Glen Quarmby, a land agent representing the Wilsons, said that in his opinion, the appeal court’s decision falls far short of the complete upholding of the CVRD decision.
He said the Wilsons’ lawyers reviewed the decision and maintain that it ruled that the official community plan policy adopted by the CVRD was invalid and that the district had overstepped its authority by prohibiting development in circumstances where building could be undertaken without damage to the environment.
“The court gave the applicants the opportunity to reapply,” a statement from the lawyers said.
“The Wilsons application at all times was respectful and protective of the riparian areas in issue. The Wilsons will continue to pursue their application.”
Ian Morrison, the CVRD’s director for the area, acknowledged that while the court did find the CVRD’s former OCP policy to be overly restrictive, the district was already well into the process of modernizing its land-use policies and regulations in the form of a single OCP for electoral areas.
“This process has involved significant community engagement and we are confident the new policies reflect our community values and will continue to discourage development that disrespects important riparian areas such as those found on the shores of Cowichan Lake,” he said.
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