Owners of a Cowichan Lake waterfront lot say they will try again for permission to build on their half-acre site, despite a B.C. Court of Appeal ruling.
It’s not known how a new application would differ from the original one.
The B.C. Court of Appeal recently backed the Cowichan Valley Regional District’s decision to refuse a development permit for a new single-family house at 10119 South Shore Rd. on Honeymoon Bay on the southeast side of the lake.
A permit with a variance was required because the new house would be inside a riparian area and because the design allowed for up to nine metres in height. The allowed limit is 7.5 metres.
The district’s official community plan included a policy giving it authority to prohibit development within the portion of a riparian area known as a streamside protection enhancement area, even if a qualified environmental professional says construction would not harm the land, the B.C. Court of Appeal said.
The new house would have replaced the single-storey, 801-square-foot house built in 1901 that now stands on the panhandle lot, according to B.C. Assessment records.
But the regional district board turned down owners Mark and Dorothy Wilson’s permit application on July 10, 2019.
On Dec. 17, 2019, the Wilsons challenged the district’s rejection of their proposal in the Supreme Court of B.C. That judge decided the regional district did not have the legislative authority to ban development inside the streamside protection area.
She also said the regional district was unreasonable when denying the development permit and ordered it to issue the permit.
The regional district then went to the B.C. Court of Appeal. The three justices agreed with the Supreme Court that it was unreasonable for the district to decide it had authority to ban any development inside the streamside protection area.
But the justices also said it was not unreasonable for the regional district to turn down the development permit, saying the report from a qualified environmental professional was flawed and not completed as it should have been under government regulations.
The justices decided the Supreme Court order requiring that the permit be issued should be set aside.
The Appeal Court decision was published on Jan. 18.
A report from an environmental professional said that most of the proposed project would be inside the streamside protection area, the Appeal Court said. The professional’s opinion was that the development would not lead to alteration or damage to riparian fish habitat.
Richard Margetts, the lawyer representing the Wilsons, said in a statement Wednesday that the Court of Appeal decision ruled that the official community plan policy adopted by the CVRD was invalid and that the CVRD 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 and they will continue to pursue their application, the statement said.
The Wilsons’ application was at all times respectful and protective of the riparian areas at issue, the statement said.
Asked if a new design would be different from the previous one, Margetts said the riparian area regulations and official community plan have since been amended and “we are considering the appropriate approaches for submission in accordance with the courts reasons.”
For its part, the regional district welcomed the Appeal Court ruling.
Ian Morrison, who represents Cowichan Lake South and Skutz Falls, said although the judges found the regional district’s former official community plan policy overly restrictive, “we were already well into the process of modernizing our land-use policies and regulations in the form of a single official community plan for electoral areas.”
Morrison said new policies will discourage developments that do not respect important riparian areas such as those on the shores of Cowichan Lake.
The regional district has launched a major planning effort to harmonize its official community plan and local area plans.
Public meetings for Cowichan Lake South are planned for Feb. 9 from 4 p.m. to 8 p.m. at the Sahtlam Fire Hall and on Feb. 25 from noon to 4 p.m. at Honeymoon Bay Community Hall.
For local area planning information go to: planyourcowichan.ca.
cjwilson@timescolonist.com
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