Green Dragon Medicinal Society v. Victoria (City) 2018 BCSC 116

Introduction

The British Columbia Supreme Court has recently upheld the City of Victoria’s decision to deny a rezoning application submitted by a medical cannabis dispensary. The facts in this case are unique to Victoria, given its particular bylaws and policies relating to cannabis dispensaries; however, this case contains some lessons and reminders regarding how a local government must treat an applicant for rezoning. This case also provides a glimpse into the challenges that lie ahead for local governments, when they will be called upon to consider rezoning applications submitted by cannabis retailers.

Factual Background

Victoria has adopted a bylaw that provides for the issuance of business licences to cannabis-related businesses (the Cannabis-Related Business Regulation Bylaw), and a policy relating to rezoning properties to permit storefront cannabis retailers (the “Storefront Cannabis Retailer Rezoning Policy”). The bylaw requires that a cannabis storefront retailer is required to apply for rezoning to permit cannabis retail. The rezoning policy states that a storefront cannabis retailer should be at least 200m from a public or independent elementary, middle or secondary school.

The Green Dragon Medicinal Society applied for rezoning to permit a storefront cannabis retail operation – at the time of its application Green Dragon operated a medical cannabis dispensary. Green Dragon sought rezoning to permit retail cannabis if and when retail cannabis is permitted under federal and provincial law.

The City’s staff recommended that council approve the application for rezoning, noting that Green Dragon’s storefront is not within 200m of a school. In fact, Green Dragon’s storefront is located within 200m of the Chinese Public School, an historic school that continues to offer Chinese language, literature, dance and music programs to children and adults.

At the council meeting during which Green Dragon’s application was considered, one of the main discussion points related to the rezoning policy’s minimum separation from schools. Evidently, the meaning of school, as the term appeared in the rezoning policy, was a matter of some debate.

Ultimately, council voted 7-2 to deny the rezoning application, without proceeding to a public hearing.

Decision

The Court framed Green Dragon’s complaints, and ruled on those complaints, as follows:

Reasonable Expectations

Green Dragon argued that it had a reasonable expectation that its rezoning application would succeed. The court confirmed that the doctrine of reasonable expectations does not apply to a legislative act such as a rezoning application. Furthermore, even if the doctrine applied, Green Dragon failed to prove that it had a reasonable expectation of success.

Meaning of “School”

Green Dragon argued that the meaning of “school” included only elementary, middle or secondary schools that operated during regular school times – this was also the view held by City staff.

Green Dragon further argued that council expanded the meaning of “school”, or relied on improper assumptions of its meaning, in finding that the Chinese Public School was a “school”.

The Court held that the rezoning policy was not intended to be determinative of the City’s response to rezoning application, and that council exercised its discretion in considering the policy, as well as other factors in denying the application. Furthermore, council did not modify the policy in its deliberations, nor did it rely solely on an improper assumption regarding the meaning of school.

Misapprehension of a purpose underlying the minimum separation from schools

Green Dragon argued that council misapprehended the rezoning policy as requiring that there must be a minimum separation between a cannabis retailer and young people. The Court could not identify the evidence of this, and in any event held that council had the discretion to draw that conclusion, given that the rezoning policy is not determinative of council’s decision.

Public Hearing

Green Dragon argued that it was unfair for council to decline to hold a public hearing in the matter.

The Court found that Green dragon was provided with the opportunity to address council, and that there was no requirement to hold a public hearing.

Bias

Green Dragon argued that one councilor had predetermined his decision, given that he had voted against all prior rezoning applications relating to cannabis retailers, and that another councilor held a bias in favour of the Chinese Public School, given that she was a former director of a related society. The Court did not accept these arguments.

It is noteworthy that the councilor that had rejected all prior applications remarked during the council meeting that “my unwillingness to support this one is based on overall policy considerations rather than an evaluation of this proposal versus other proposals”.

However, the Court remarked that that particular councilor appeared to have kept an open mind in discussing the application, noting that he remained “capable of persuasion”.

Consistency

Finally, Green Dragon argued that council’s decision was inconsistent with past decisions. The Court held that the City met its procedural obligations, including procedural fairness and that this complaint had no merit.

Implications

This case is unique to Victoria given its particular policies for dealing with cannabis retailers. However, once retail cannabis is authorized, many local governments will adopt rezoning policies of their own, and will be faced with any number of rezoning applications, relating to cannabis retailers. Therefore, this case provides a glimpse into the issues that may arise in rezoning applications relating to cannabis retailers (think: definition of “school”). As well, this case reminds us of the standard to which courts will hold municipal councils tasked with considering rezoning applications (think: procedurally fair, free from bias, but otherwise relatively wide discretion).

Wu v. Vancouver (City), 2017 BCSC 2072

Case Summary

On November 14, 2017, the British Columbia Supreme Court released its decision in Wu v Vancouver (City), 2017 BCSC 2072: (“Wu”), in which the Court ruled that the City had been negligent in processing a development permit (“DP”) application, and was liable for the plaintiff’s losses. The case is notable because the Court recognized for the first time that local governments owe a duty to DP applicants to process their applications in a reasonably competent manner, and more specifically, within a reasonable period of time. Failure to do so, as in this case, may result in a finding of bad faith and an order that the local government compensate the plaintiff for its losses.

The litigation centered on a DP application to demolish a house located in Vancouver’s First Shaughnessy neighbourhood – a house that the City believed had heritage value. The Court harshly criticized the City’s actions relating to the manner in which it processed the DP application.

The chronology of events spanned approximately 4 years, as follows:

• December 2011 – owners purchase the property for $4.65 million with the intention of demolishing the existing house and building a new house; the property was not a designated heritage property, but was listed on a heritage inventory
• March 2012 – owners begin DP pre-approval process
• May 2012 – the City expresses its preference that the house be retained
• October 2012 – the City advises the owners that the house has heritage merit and that it will seek retention of the house; conversely, the City also advises that its first step in the DP approval process would be to confirm whether the house is a house of merit (to be retained); the timeline for DP approval is estimated to be 10 to 14 weeks
• January 2013 – owners submit a DP application; City requests a report as to the heritage merit of the house (“SOS Report”)
• July 2013 – the owners submit the SOS Report; the City determines that the house has heritage merit and should be added to the Heritage Registry
• December 2013 – City Council grants temporary heritage protection on the house for 120 days, per s.589 of the Vancouver Charter, but does not designate the house as a heritage property
• March 2014 – City staff prepares draft report recommending that the house be designated has a heritage property
• May 2014 – the owners file the lawsuit
• June 2014 – the City implements temporary heritage control on all of First Shaughnessy and prohibits the demolition of any houses in the area for a period of one year
• September 2015 – City designates the First Shaughnessy District a protected heritage area and prevents demolition of any house unless the planning department finds that the house no longer has sufficient heritage value; no compensation is payable to property owners seeking to demolish their homes and build new.

Throughout this period the City repeatedly urged the owners to consider retention of the house, and each time the owners asserted that they were not interested in retention.

The Court found that the City had two choices regarding the owners’ DP application: 1) declare the house to be a heritage property and compensate the owners, or 2) process the DP for the demolition of the house.

The Court found that by repeatedly asking the owners to consider retaining the house despite the owners’ strong preference against retention, requiring the SOS Report when the City had already determined that the house had merit, adopting the 120-day freeze, and never seeking heritage designation, the City had embarked on a “circuitous course of delay”.

Furthermore, the Court found that “the only rational conclusion for the actions of the City is that they wanted to delay the Application until the new legislation was passed that designated all of First Shaughnessy District a protected heritage zone, thereby avoiding the required compensation.” Remarkably, the Court found that the City’s conduct amounted to bad faith.

The Court did not accept the City’s argument that the DP application was incomplete and therefore could not be processed, because the alleged shortcomings of the application could have been addressed by conditional approval or “prior-to” letters. Further, the Court did not accept that the DP application had lapsed (having extended beyond 12 months). On that point, the Court found that it “defied logic to accept that an application can lapse while applicants are actively dealing with the City”.

The Court stopped short of finding that the City’s conduct amounted to abuse of public office, because the tort of abuse of public office relates to a specific individual, and not the planning staff as a whole.

The Court also stopped short of finding that the City’s conduct amounted to expropriation, because the plaintiffs did not have the unconditional right to develop their property (and therefore did not lose that right) – in other words, there was always the risk that the City would designate the house as a heritage property.

Instead, the Court found that the City was liable in negligence. As there were no previously decided cases in which liability in negligence in relation to processing a DP application had been recognized, the Court embarked on an analysis of the relationship between the City and the applicants, and concluded that the City owed a duty of care to the applicants, and breached that duty by delaying the DP approval.

The Court noted that at the time the owners filed the lawsuit, it had been over 2 years since they embarked on the pre-approval process (which evidently started the clock running for the purpose of processing a DP application). This far exceeded the 10 – 14 weeks processing time, estimated by the City in its own bulletin, and the 1-year period within which DP applications lapse.

The Court was careful not to set out an expected timeline for processing DP applications, remarking that “what is reasonable [processing time] with respect to a different application will turn on the facts of that specific case”.

The Court left damages to be assessed at another hearing, but remarked that damages would include loss of property value due to the house being designated as heritage, as well as the expenses incurred as a result of the City’s “delay tactics” (i.e. carrying expenses, consultants’ fees).

Implications for Local Governments

Local governments should take note that they owe DP applicants a duty to process applications in a timely manner. Furthermore, if the local government wishes to deny a DP on the basis of bona fide concerns (as was the case here) it must do so decisively and within the bounds of its authority. Here, the City could have designated the house as a heritage property at the outset of its dealings with the plaintiffs, and thereby avoided liability. Of course, the City would have been required to compensate the owners for reduction in market value at that time. As the Court made clear, not making a decision (to approve the DP or to designate the house as heritage) was not an option.

The Province Releases Draft Cannabis Legislation

The Province of BC released draft legislation today for the regulation of the distribution, sale and use of non-medical cannabis, affirming public health and safety as its key priority. Two pieces of legislation were introduced in the Legislative Assembly for first reading: The Cannabis Distribution Act (Bill 31, the “CDA”) and the Cannabis Control and Licensing Act (Bill 30, the “CCLA”).

The CDA establishes a public wholesale distribution monopoly, whereby the province will regulate and manage distribution in a manner similar to liquor distribution through the existing BC Liquor Distribution Branch. The CCLA provides a framework for the licensing of public and private retailers, and sets restrictions on matters such as possession, personal cultivation, and consumption. The draft legislation is consistent with earlier details released by the province in February.

Subject to Local Government Recommendation

Of interest to local governments will be Division 3 of the draft CCLA, which concerns consultation with local governments and Indigenous nations. In particular, section 33 gives local governments a veto in the provincial licensing process. A general manager, who will be appointed by the province to oversee the licensing process, must not issue a licence or amend a licence unless the applicable local government gives the general manager a recommendation to that effect. Furthermore, upon receipt of an application, the province must give notice to the relevant local government.

The discretion of a local government to provide a recommendation is limited by the draft CCLA. Accompanying regulations, which are to be released at a later date, will further specify the criteria that must be considered by local governments in determining whether or not to make a recommendation in favour of a licence application. It is anticipated that the factors will relate to areas of natural local government jurisdiction such as zoning, land use, and community planning. Based on this assumption and previous announcements, local governments will likely retain control over the location and conditions imposed on cannabis retailers through business licensing and zoning regulations.

Public Consultation

Local governments will also be required to gather views of affected residents in one of the following manners:

1. By receiving written comments in response to a public notice;
2. By conducting a public hearing in respect of the application;
3. By holding a referendum; or
4. By using another method the local government considers appropriate.

Community Safety Unit

Another point of interest for local governments is the BC Government’s announcement regarding the creation of a new “Community Safety Unit” to target illegal cannabis operations. Though details are sparse at this time, this new unit may help lessen the burden on local governments to enforce against illegal dispensaries and other operations.

Lastly, consequential amendments to various pieces of legislation will accompany the CDA and CCLA, including to the Motor Vehicle Act, the Residential Tenancy Act, and the Provincial Sales Tax Act (noting that taxation will be consistent with the liquor regime). No amendments to the Local Government Act or the Community Charter have been announced at this time.

Legislation Highlights

Here are some highlights of the draft legislation:

CDA

• Public wholesale distribution model, where province has monopoly and exclusive jurisdiction
• Public government-run retail sales permitted, both in stores and online

CCLA

• 19 set as minimum age to purchase, sell or consume cannabis
• Smoking and vaping of cannabis prohibited everywhere tobacco is prohibited
• Smoking and vaping of cannabis prohibited in areas children commonly gather (playgrounds, sports fields, skate parks, etc.)
• No use of cannabis on school properties, in vehicles, or in boats
• Restrictions on sale and marketing to minors
• Cannabis cannot be sold by means of self-service machines
• Prohibits public intoxication and the sale of cannabis to those intoxicated by drugs or alcohol
• Landlords may be held responsible for allowing premises to be used for illegal sale of cannabis, unless have taken “reasonable steps” to prevent
• General manager considers whether retail sale license applicants are “fit and proper” and whether granting a licence is in “the public interest”
• Restrictions on connections between retail sale licence holders and their connections to federal producers
• Wide discretion to impose additional terms on licences or to suspend licences if there are safety issues, violence, or if in the “public interest”
• Fines for offences range from 2k-100k, with the possibility of imprisonment of 3-12 months

See the following Provincial government links for more information:

• B.C. reaches milestone with introduction of provincial cannabis legislation
• To find links to Bill 30 and 31.

Introduction

Global warming has altered the world climate to the extent that we are now seeing the real effects of climate change. More rain and flooding, larger forest fires and rising sea levels are products of climate change. These trends can have an important impact on risk management for Local Governments. This paper will address how climate change may affect the risk management policies of Local Governments by reviewing the types of legal liability that Local Governments can expect to face and by providing some guidance for risk mitigation.

This paper is separated into three categories of climate change effects: increased storm events and flooding, forest fires, and sea level rise. Each section will highlight a different aspect of the legal landscape. Negligence and nuisance will be discussed in the context of flooding, administrative law challenges will be discussed in the context of forest fires, and options to immunize local governments from liability will be canvassed in the context of sea level rise. It is important to note that each legal concept discussed applies to varying degrees to each climate change effect described, and that this paper does not contain an exhaustive list of all potential losses or areas of liability.

Storm Events & Flooding

Factual Context

1. Climate change is resulting in greater precipitation in some regions. Warmer temperatures lead to greater evaporation which results in more moisture in the atmosphere.
2. Annual average temperatures have increased by 0.6°C on the coast, by 1.1°C in the interior and by 1.7°C in northern BC over the past century. Temperatures are expected to rise by 1.4°C to 3.7°C by mid-century.
3. As a result, in BC annual rainfall is on the rise, and more extreme rainfall events are occurring with greater frequency. “Pineapple express” rainfall events have the potential to cause widespread flooding in the lower mainland, and high-intensity storm cells have caused flash flooding in otherwise arid regions of the southern interior.
4. Scientists predict there will be between 5% and 25% more precipitation in BC on average.
5. 1-in-100 year or 1-in-200 year storms are occurring at increased frequency – the City of Grand Forks recently experienced two 1-in-100 year floods within five years.
6. There is a compounding effect with the effects of climate change. For example, the pine beetle infestation, itself a result of climate change, results in greater run-off and erosion leading to more serious flooding and landslides when storms occur. Likewise, storm surges on the coast coupled with high precipitation can lead to more serious coastal flooding than would otherwise be the case.
7. Intense rainfall can cause:
   1. Watercourses to spill their banks, resulting in widespread flooding;
   2. Drainage infrastructure to become overwhelmed, resulting in localized or widespread flooding
   3. Landslides, as soil becomes oversaturated and unstable.
8. All of these affects have the potential to result in significant property damage and loss of life.
9. Some examples of recent events include:
   1. Landslide in North Vancouver that claimed a life in 2005;
   2. Landslide in Johnson’s Landing that claimed the lives of 4 people in 2012 – said to be caused by late snowpack and heavy June rains;
   3. Flashflood in Cache Creek in 2015, caused by an intense rainstorm, that damaged private property and infrastructure.

Legal Liability and Strategies to Mitigate Risk

The increased frequency and severity of intense rain storms and flooding produces more risk of liability for local governments in negligence and nuisance. Further, the increased frequency and severity of intense rain storms and flooding causes more frequent and severe property damage and personal injury, for which local governments become targets in litigation, whether they are liable or not.

Negligence

1. A Local government may be liable in negligence where it can be shown that it acted or failed to act in circumstances in which it was reasonably foreseeable that its action or inaction would cause harm.
2. Although there is uncertainty regarding cause and effect in cases involving climate change-related flooding and landslides, local governments are increasingly able to determine which effects may be “reasonably foreseeable”.
3. For example, climate change modelling offers predictions of what to expect for increases in temperature and precipitation in the coming decades. Furthermore, if recent events are an indication of what is to come, then local governments should consider the effects of recent events to be “reasonably foreseeable”, instead of relying upon historical data and existing standards that are rapidly becoming obsolete (think: the 1-in-100 year storm).
4. A local government may be liable in negligence for:
   1. Failing to take reasonable care in inspecting, maintaining, and building its infrastructure, such as drainage ditches, culverts and storm drains, having regard to the risk of intense rain storms and flooding;
   2. Inspecting and approving development and buildings within areas for which it is reasonably foreseeable that flooding will occur;
   3. Failing to respond to complaints in a reasonably timely manner;
   4. Failing to adhere to its policies with respect to inspection and maintenance;
   5. Causing or contributing to losses in its response to emergencies.
5. Local governments may have a policy defence to claims in negligence, where it took a course of action as a matter of policy, having regard to social, economic, political and financial constraints. The rationale for the policy defence is that a local government should have the discretion to make policy decisions based on these factors, without facing liability in negligence.
6. The policy defence does not apply to operational decisions. For example, if the policy is to conduct bi-annual inspections of the storm drain system, then the local government should ensure it is conducting its inspections according to the policy and with reasonable care. A failure do to so will not be excused based on a defence that there was insufficient resources to conduct such inspections.
7. A policy may be oral or written – clearly a written policy provides a much stronger evidentiary basis upon which to defend a claim in negligence. The policy should be determined by elected officials or management.

Nuisance

1. Local governments may be liable in nuisance where it can be shown that water, for example, escaped from the local government’s infrastructure and caused damage to private property.
2. Under section 744 of the Local Government Act, local governments have statutory immunity from claims of nuisance with respect to breakdowns and malfunctions of its infrastructure, however where the nuisance is caused by a lack of capacity of the infrastructure, this immunity is unlikely to apply.
3. There is no policy defence to a claim in nuisance. As well, reasonable care is not a defence to a claim in nuisance.
4. Examples of nuisance claims include where local government infrastructure collects surface water, but fails to discharge it safely, resulting in flooding to neighbouring properties.
5. Mitigation of the risk of legal liability involves avoidance and prevention of the loss itself, as well as proper practices, policies, and record keeping to avoid liability in negligence and nuisance. We suggest that local governments may consider the following strategies:
   1. Inspect and maintain existing infrastructure using reasonable care and according to any existing policies;
   2. Where no policies exist, consider having council or management adopt a reasonable, written policy to increase the likelihood of a policy defence succeeding;
   3. Educate employees with respect to policies;
   4. Ensure that complaints are being responded to in a timely manner;
   5. Assess the capacity of existing infrastructure, such as culverts, storm drains, and drainage courses, as it relates to recent storms and flooding events, and consider upgrades – if the infrastructure has been insufficient in recent times, chances are it will be insufficient in the future;
   6. Design new infrastructure according to more conservative models, perhaps incorporating the most recent rainfall and flood data – 1-in-100 years storms are occurring more frequently;
   7. Apply a more conservative approach in approving buildings and developments within suspected floodplains and drainage courses;
   8. Require more permeable and erosion-resistant surfaces in development plans;
   9. Rely to a greater extent on the opinions of hydrological experts relating to drainage works, flood mitigation and development plans – i.e. shift the risk of decision making to professionals;
   10. Consider updated floodplain mapping using recent data – this may result in expanding the areas within which section 219 floodplain covenants may be required;
   11. Consult the Pacific Climate Impacts Consortium Regional Analysis Tool http://pacificclimate.org/tools-and-data/regional-analysis-tool and Plan2Adapt http://pacificclimate.org/tools-and-data/plan2adapt website, to determine what may be expected in your region in terms of precipitation increases;
   12. Maintain thorough records of decisions and operations, to preserve the evidence of reasonable care being exercised;
   13. Learn from last year’s events – extraordinary events are becoming ordinary, or “reasonably foreseeable”.

Forest Fires

Factual Context

1. The summer of 2017 brought an unprecedented wildfire season. The province of British Columbia declared a state of emergency for 10 weeks. 65,000 residents were displaced from their homes. Over 1.2 million hectares of land burned, and the cost to the province is reported to be more than $564 million dollars.
2. The connection between the 2017 wildfire season and climate change is not direct. Researchers say that while climate change is not the root cause of wildfires, it does exacerbate them by extending the fire season and making conditions more favourable for intense flames.
3. For example, stronger winds contribute to the spread of fires, as do drier conditions. Furthermore, every degree of temperature rise increases lightning activity by 12%. The result of this is that fire activity in Canada has doubled since the 1970s.

Legal Liability and Strategies to Mitigate Risk

1. While the provincial government has primary jurisdiction over wildfires in the provinces, local governments are affected in many ways. A local state of emergency may have to be called; residents may be evacuated; infrastructure may be destroyed; smoke hazards may have health effects on residents.
2. Actions taken by local government to mitigate wildfires, respond to emergencies, or rebuild infrastructure may all create litigation risk, such as negligence claims. In that regard, the legal landscape is similar in many ways to the risks to local governments faced by flooding.
3. Instead of revisiting those areas, this section will instead focus on local government powers available to mitigate the risk of spreading wildfires through development and the legal risks that accompany that process.
4. One area in which local governments exercise control over the prevention of the spread of wildfires within municipalities is by controlling the amount of wildfire fuel present in “urban interface zones.”
5. An urban interface zone is defined as an area where structures and other human development meet and intermix with wildland areas containing flammable vegetation. Regulation of interface zones can occur on an emergency basis when forest fire danger is high, but can also be taken proactively.
6. For example, an Official Community Plan (“OCP”) passed pursuant to Part 14, Division 4 of the Local Government Act can impose “restrictions on the use of land that is subject to hazardous conditions or that is environmentally sensitive to development”. Those restrictions could be designed to mitigate the risk of interface fires by prescribing requirements regarding vegetation.
7. In the context of climate change, OCP’s are a valuable tool as they can be periodically updated to reflect changing hazards dictated by the changing climate. Furthermore, OCP’s can contain policy statements which specifically reference climate change and specific environmental risks.
8. There are some key points to keep in mind when regulating the development of land. The first is that restricting and controlling zoning is generally limited by the principles of prior non-conforming use. This means that local governments cannot retroactively impose development conditions upon existing landowners in the normal course. The ability to manage interface zones through an OCP is therefore limited to future development.
9. However, if a property poses an immediate and serious fire hazard, then local governments can consider options contained in fire safety bylaws or, potentially, the remedial action powers contained in Part 3, Division 12 of the Community Charter.
10. Controlling development through land use regulation, zoning or an OCP carries with it procedural requirements which may expose local governments to administrative law challenges. Decisions made by local governments pursuant to statutory or regulatory authority, even when they involve an exercise of discretion, are subject to the rules of administrative law. Generally speaking, administrative law is focused upon procedural and jurisdictional questions with an intent to supervise the actions of government without unduly interfering with or second guessing their ability to regulate society.
11. For example, in Guest v North Vancouver (District), 2012 BCSC 1626 [Guest], a resident sought judicial review of a decision by the Chief Building Official for the District of North Vancouver. The Building Official had rejected Mr. Guest’s building permit application to construct a single dwelling building on a property located in a densely forested area (para. 1).
12. The reason given for rejecting the application was due to the fact that the proposed recreational property did not have sufficient access for fire department equipment, as it was not directly serviced by a road.
13. A special variation under the BC Building Code, which would have allowed for the development to be approved notwithstanding non-compliance with the BC Building Code, was sought based upon a proposal to incorporate an on-site sprinkler system (para. 17). The variation was not granted primarily because the proposed development carried risks associated with forest fires given its location which, in the Building Official’s opinion, would not be adequately mitigated by an on-site sprinkler system (para. 2).
14. The petitioner alleged that the decision was unreasonable, and argued that there was a breach of procedural fairness. On the question of whether the decision was reasonable, the reviewing court’s role is to determine whether “the processes followed and the outcome fall within a reasonable range of alternatives in light of the legislative scheme and contextual factors relevant to the exercise of the power” (para. 40).
15. Essentially, if the Building Official followed a fair process, was not biased, and came to a decision which was available in light of the regulatory scheme, then a court will not interfere with the decision. The Building Official’s correspondence to the petitioner set out his rationale for denying the building permit, and the court found it was clear that the decision was based upon the provisions of the BC Building Code and the applicable zoning bylaw.
16. Further, there was no evidence of bias or an improper purpose (para. 43-46, 57). In particular, the Building Official’s adherence to safety concerns, the stated purpose of the BC Building Code, was found to be reasonable and appropriate.
17. The Guest case and a number of other judicial review decisions provide valuable guidance for local governments seeking to regulate development to minimize wildfires, including:
    1. When a local government official is making a land-use or development decision, it is important to carefully consider and reference the underlying statutory, regulatory and bylaw authority relevant to the decision;
    2. Decision-makers are advised to provide their rationale for making any particular decision, and ought to reference all points under consideration, even if ultimately not relied upon or accepted;
    3. Applicants should be provided the opportunity to respond to the concerns of the decision-maker prior to a final decision being made;
    4. An OCP should be carefully drafted to include specific guidelines and rationales for the mitigation of hazardous conditions or controlling development in environmentally sensitive areas. Development subject to an OCP is constrained to the factors and guidelines contained in the OCP itself, and local governments are well advised to take full advantage of the flexibility of the OCP by incorporating policy factors into planning principles where appropriate (see, for example, 0742848 B.C. Ltd. v Squamish (District), 2011 BCSC 747)
    5. Bylaws, policies and OCP’s ought to be reviewed periodically to ensure that they align with the changing risks being presented by climate change;
    6. When utilizing statutory powers which grant extraordinary or emergency powers (such as remedial action), it is imperative to strictly comply with statutory requirements such as notice periods; and
    7. Where necessary, local governments should consult with environmental experts or require developers to retain environmental experts when assessing risk that is outside the field of expertise of the local government and/or the developer.

Sea Level Rise

Factual Context

1. Sea levels are rising due to climate change. This phenomenon occurs because land ice is melting and salt water is expanding as temperatures rise. Similarly, ice is melting earlier and freezing later, which creates more open water and more storms. Even if drastic measures are taken now to reduce carbon emissions leading to climate change, sea levels will continue to rise due to past emissions.
2. Coastal local governments will be affected in a variety of ways, including:
   1. Coastal erosion and coastal inundation;
   2. Reduced drainage capacity;
   3. Loss of wetlands;
   4. More frequent and intense storms, storm surges, waves and flooding (impacts will reach further inland, or existing dikes will be unable to accommodate higher levels).
3. Over 80% of the population in British Columbia live within 5 kilometers of the coast. 59 of 161 municipalities in British Columbia have coastline exposure, while 14 of 29 regional districts have coastline exposure. The good news is that sea level rise on the British Columbia coast is occurring at a lower rate than the global average.
4. Much existing coastal infrastructure (barriers, dikes, and seawalls) was built without factoring in sea level rise, and will need to be upgraded or rebuilt.
5. Scientists say to plan for a sea level rise of approximately:
   1. 0.5 meters by 2050;
   2. 1 meter by 2100; and
   3. 2 meters by 2200.
6. Experts recommend a minimum flood construction level of 1.5 meters above the natural boundary of the sea and a minimum building setback from the sea of 15 meters.

Legal Liability and Strategies to Mitigate Risk

1. As with flooding and wildfire risks, coastal local governments may face claims or liability for operational decisions which are carried out negligently. In the context of sea level rise, operational negligence could arise in the following scenarios:
   1. Inadequate preparedness to prevent or limit a preventable emergency;
   2. Inadequate preparedness in response to an emergency.
2. Local governments can take steps to minimize their exposure to operational negligence claims. Beyond ensuring that infrastructure is adequate, certain legal tools can be utilized to protect local governments.
3. One drastic strategy would be to expropriate land along the coastline and “re-naturalize” it. This would create a buffer zone where the land could be flooded without harming people, homes, or important infrastructure. Of course, the expropriation of land pursuant to Part 3, Division 3 of the Community Charter and the Expropriation Act requires that landowners be fairly compensated for their property. However, when properties cannot be protected from sea level rise in a cost effective manner, expropriation may be the best option available.
4. Less drastically, local governments can utilize Official Community Plans and zoning bylaws to plan for sea level rise going forwards by restricting development, and creating setback requirements. Further, “No build” areas or limited use areas can be established through zoning and areas can be designated as land trusts.
5. In established flood risk zones, covenants indemnifying and otherwise protecting local governments from the consequences of coastal hazards on new or modified buildings are a prudent option already utilized by local governments. The use of covenants ought to be expanded as the risks posed by sea level rise are better modelled and understood.
6. As a starting point, section 56 of the Community Charter can be utilized to require an owner of land to commission a geotechnical report authored by a qualified professional when the land to be developed may be subject to flooding, erosion, or other risks. If, in the opinion of the expert, the land cannot be developed safely, then a building permit cannot be issued.
7. If the land can be developed safely but only under certain conditions described in the report, then the owner of land must enter into a covenant with the local government agreeing to indemnify them for failing to comply with the geotechnical conditions and to only use the land for the use intended upon application. Such a covenant is registered on title pursuant to section 219 of the Land Title Act, and can contain as an appendix the geotechnical report itself.
8. Section 219 covenants can contain language where owners assume the risks of developing on land subject to flooding. When properly drafted, covenants can effectively limit the liability of local governments. Such covenants run with the land and bind future owners to the same standard as the original owner.
9. Ultimately, a proactive planning approach is the most cost-effective option for local governments, and reduces the risk of future litigation.

Conclusion

As climate-change related weather events increasingly affect us, changing in frequency and intensity, local governments can expect to be exposed to higher levels of litigation risk given their role in developing our cities and creating infrastructure. These risks can be mitigated by being informed about the projected consequences of climate change, developing appropriate policies and regulations, and by utilizing proactive planning strategies.

The Provincial Government has recently announced proposed revisions to the Local Government Act.

The purpose of this revision is not to change the Act in any substantive way, but merely to reorganize it with the goal of improving “readability” and “usability”. The Act has undergone numerous amendments, particularly when the Community Charter was adopted in 2004, and as a result the Province felt that the Act in its current form was unwieldy, and reorganization was necessary.

The Province has published a Table of Concordance, which helps users navigate their way through the proposed revisions by showing which sections of the old Act correspond to which new sections of the proposed revised Act.

The Table of Concordance can be found here.

On November 16, 2015, the proposed revision bill was referred to a committee of the legislature for consideration. We anticipate that the committee will approve it, in which case it may be brought into force at any time by way of regulation.