Turney v. Langley (Township)

2016 BCSC 1099 Turney v. Langley (Township) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Turney v. Langley (Township), 2016 BCSC 1099 Date: 20160615 Docket: S162246 Registry: Vancouver Between: Albert James Turney Petitioner And The Corporation of the Township of Langley, Roberto Cesaretti and The Board of Variance of the Township of Langley Respondents Before: The Honourable Chief Justice Hinkson Reasons for Judgment Counsel for the Petitioner: N. Baker and R. Veerapen Counsel for the Respondents: J. Goulden and E. Lambert-Shirzad Place and Date of Hearing: Vancouver, B.C. June 6, 2016 Place and Date of Judgment: Vancouver, B.C. June 15, 2016 [1] In April 2014, the petitioner purchased a 7.5 acre property located at 19771 8th Avenue in the Township of Langley, with a legal description of Parcel Identifier 011-138-131, Lot 4 except: Part Subdivided by Plan 25154; Section 10 Township 7 New Westminster District Plan 5505 (the "property"). [2] The respondent, the Corporation of the Township of Langley ("the Township"), is incorporated pursuant to the Local Government Act, R.S.B.C. 2015, c. 1, and the Community Charter, S.B.C. 2003, c. 26. It is empowered to and has passed zoning bylaws respecting the use of property within its jurisdiction. [3] The respondent Roberto Cesaretti is the Manager of Permit, Licence and Inspection Services and Chief Building Inspector for the Township (the "Building Inspector"). [4] The respondent, the Board of Variance of the Township of Langley, is a board of variance established by the Township pursuant to s. 536(1) of the Local Government Act and the Township's Board Establishment Bylaw 2011 No. 4881. [5] On February 23, 2016, Mr. Cesaretti refused a building permit application by the petitioner, who has, as a result, brought a petition for various relief pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA]. The relief sought on the application before me is limited to only part of the relief sought in the petition, and is for: a) A declaration that the petitioner's application for building permit #132364, for the construction of an addition to an existing barn on the property, complies with the applicable provisions of the Township's zoning bylaw No. 2500; b) An order in the nature of mandamus directing the Building Inspector to issue building permit #132364 to the petitioner for the addition to the existing barn; and c) Costs. Background [6] The property is in the Agricultural Land Reserve and is assessed as a farm by B.C. Assessment. The property is zoned Rural Zone RU-1 pursuant to the Township's Zoning Bylaw No. 2500 which permits residential, agricultural and accessory building uses. [7] There is a single family dwelling, a barn that is approximately 3000 square feet in size, a 1500 square foot shed and a detached garage on the property. Approximately 5.5 acres of the property has been operated as a hay farm. [8] The petitioner deposed that he purchased the property to live on it, and to operate a farm with his adult grandchildren. He further deposed that in both 2014 and 2015 he did not own the farming equipment needed to harvest and bale hay, so he hired a local farmer to harvest and bale the hay on the property, which hay he then sold. [9] In October 2015, the petitioner began construction of an addition to the barn. He deposed that he did so in order to expand his farming operation. The proposed addition is roughly an additional 3600 square feet, which the petitioner deposed he requires for storage and other uses because: a) he has purchased his own farming equipment, including an additional tractor with harvesting attachments and a flatbed trailer, in order to harvest and transport the hay; b) he intends to purchase additional farm equipment, including a new baler, in order to harvest the hay; and c) he intends to raise livestock on the property, including chickens, pigs and ducks. [10] The petitioner further deposed that the hay that he anticipates from a first harvest this month (a second is expected in the fall of this year) will produce approximately 600 bales of hay, which will take up most of the space in the existing barn, and that he requires even more space for the equipment and livestock that he proposes to acquire. [11] The petitioner also deposed that he did not obtain a building permit for the addition to the barn because he believed that such a permit was not required as his property was in the Agricultural Land Reserve and had farm status. [12] The construction of the addition came to the attention of the Township, whose staff inspected the property on November 10, 2015. The Township issued Bylaw Offence Notice No. B015368 on November 12, 2015, due to the petitioner's lack of a building permit. The following day, counsel for the Township wrote to the petitioner, advising in part that: The RU-1 zone limits the maximum total building area for accessory buildings located on the [property] to 200 square meters (2,152 square feet). Prior to any additions or further construction, the existing main accessory building located on the [property] has a total building area of 3,024 square feet. As well, there is also a large workshop located on the Lands, with a total building area of 1,500 square feet, bringing the total building area for accessory buildings located on the [property] to 4,524 square feet. As a result, no further building area for accessory buildings located on the [property] is permitted. [13] The letter also advised the petitioner that he would have to remove the addition by no later than November 27, 2015 and: In addition, the Township may proceed with Court proceedings against you in the Supreme Court of British Columbia. In such proceedings, we may seek a Court Order authorizing the Township to take whatever steps are necessary to bring the [property] into compliance with the Township's bylaws, including removal of all work undertaken without a building permit or contrary to the Zoning Bylaw, at your full expense. We will also seek to recover the Township's legal costs from you, which costs have exceeded $5,000 in past similar cases. In the meantime, we are advised that the current unlawful situation existing at the Lands has been recorded in the following Township records: 1. In Building Department records as an "Order Against the Property"; and 2. on the Property Tax Information Sheet as a "Cautionary Note" warning of a possible "Property Use Violation." The above notations may negatively affect insurance, refinancing and sale for the [property]. In any event, these notations will only be removed once the [property has] been brought into compliance with the Township's bylaws, as set out in this letter. [14] On November 20, 2015, the Township issued a stop work order for the construction work on the addition. [15] The petitioner submitted a bylaw notice dispute on November 26, 2015, explaining why he had not applied for a building permit. He deposed that at that time, and later in March 2016, the barn was not being used for hay storage because it was not yet time to harvest the hay, nor for livestock because the stop work order obviated the completion of the addition to serve that purpose. [16] On January 17, 2016, the petitioner submitted a building permit application number BP132364 for approval for the proposed addition to the barn. [17] On February 23, 2016, the petitioner's application was rejected on the basis that: The property is zoned RU-1 and is located within the Agricultural Land Reserve. The RU-1 limits the maximum total building area for accessory buildings located on the Lands to 200 square meters (2,152 square feet), unless exempted for farm use. Prior to any additions or further construction, the existing accessory building located on the [property] already has a total building area of 3,024 square feet. No further building area for accessory buildings located on the [property] is permitted, unless exempted for farm use. Recent inspections performed by Township staff have confirmed that the existing 3,024 square foot accessory building is not being used for farm use. Little farming appears to be taking place on the [property]. Further, the farming taking place on the [property] does not require an agricultural building with total floor area, including the proposed addition, of 5,857 square feet in size; creating an accessory building with a building area of 8,881 square feet (as calculated from the building permit drawings submitted to the Township). The existing accessory building is more than sufficient for any current or likely farm use indicated for the [property]. Based on the above, a building permit will not be issued by the Township for the proposed accessory building addition. As well, any portion of the proposed addition to the accessory building that has already been constructed must be immediately removed from the [property]. [18] On February 25, 2016, the Township advised the petitioner that the offence bylaw ticket issued earlier for the failure to obtain a building permit had been withdrawn, but the stop work order remained in effect. The Legislative Scheme [19] Section 479 of the Local Government Act authorizes the Township's council to enact zoning bylaws regulating the use of land within its jurisdiction, including dividing the whole or part of the municipality or regional district into zones, and regulating within a zone the use of land, buildings and other structures, the density of the use of land, buildings and other structures, and the siting, size and dimensions of buildings and other structures on the land. It also permits the Township to regulate the uses permitted on land, and the location of uses on land and within buildings and other structures. [20] However, s. 481(2) of the Local Government Act limits the application of s. 479 by providing that a local government must not exercise the powers under that section to prohibit or restrict the use of land for a farm business in a farming area unless the local government receives the approval of the minister responsible for the administration of the Farm Practices Protection (Right to Farm) Act, R.S.B.C. 1996, c. 131 [FPPA]. Section 481(3) allows that same minister to make regulations that define areas and circumstances in which approval under (2) is not required, and the conditions under which such exceptions will be granted. Such an exception has not been made with respect to the Township's jurisdiction. [21] The Right to Farm Regulation, B.C. Reg. 261/97 provides that s. 481 of the Local Government Act applies to the Township. [22] Section 455 of the Local Government Act provides that the terms "farm business", "farm operation" and "farmer" all have the same meaning as those terms in the FPPA. The terms are defined in the FPPA as follows: "farm business" means a business in which one or more farm operations are conducted, and includes a farm education or farm research institution to the extent that the institution conducts one or more farm operations; "farm operation" means any of the following activities involved in carrying on a farm business: (a) growing, producing, raising or keeping animals or plants, including mushrooms, or the primary products of those plants or animals; (c) using farm machinery, equipment, devices, materials and structures; (e) conducting any other agricultural activity on, in or over agricultural and; "farmer" means the owner or operator of a farm business; [23] The term "farming area" is defined in s. 455 of the Local Government Act in part as: an area of land (a) that is in an agricultural land reserve as defined in the Agricultural Land Commission Act, (b) that is designated as a farming area under the Farm Practices Protection (Right to Farm) Act, [24] Section 1 of the Agricultural Land Commission Act, S.B.C. 2002, c. 36 [ALCA] defines farm use as: "farm use" means an occupation or use of land for farm purposes, including farming of land, plants and animals and any other similar activity designated as farm use by regulation, and includes a farm operation as defined in the Farm Practices Protection (Right to Farm) Act; [25] Section 2 of the Agricultural Land Reserve Use, Subdivision and Procedure Regulation, B.C. Reg. 171/2002, made pursuant to ALCA, provides in part that: (1.1) The activities designated under this section as farm uses for the purposes of the Act must not be prohibited (a) by any local government bylaw except a bylaw under section 917 of the Local Government Act, and includes that: (2) The following activities are designated as farm use for the purposes of the Act: (c) storing, packing, preparing or processing farm products, if at least 50% of the farm product being stored, packed, prepared or processed is (i) produced on the farm, or (iii) feed required for farm production purposes on the farm; (o) the construction, maintenance and operation of farm buildings including, but not limited to, any of the following: (ii) a farm building or structure for use in an intensive livestock operation or for mushroom production; [26] Section 102 of the Township's Zoning Bylaw No. 2500 defines agricultural use as including: a) the growing, producing and harvesting of agricultural products, but excluding commercial greenhouses; b) the keeping of poultry, pigeons, doves, bees, or other livestock, but excluding fur farms, kennels, feedlots with more than 12 cattle per hectare, and intensive swine operations having more than three brood sows and four feeder swine; e) the processing and/or sale on a bona fide farm of the primary agricultural products grown on that farm; g) the storage on a bona fide farm of agricultural supplies and equipment used on that farm and the repair of farm machinery, implements, equipment and other agricultural machinery and implements used on that farm; [27] Section 201.6 of the same Zoning Bylaw provides that: 1) Except for commercial greenhouses, buildings and structures shall not cover more than 33% of the lot area. 2) Commercial greenhouses shall not cover more than 66% of the lot area inclusive of all buildings and structures on the lot, provided the buildings and structures on the lot other than commercial greenhouses shall not cover more than 33% of the lot area. 3) Accessory buildings and structures not used for agricultural or farm purposes shall not exceed a total of 200 m2 of ground floor building area. [28] Section 5.2 of the Township's Building Bylaw No. 4642 provides in part that: 5.2 The Building Inspector may issue a Permit for Construction where: a) a valid and subsisting application has been made (the "Permit Application"); b) the proposed Construction set out in the Permit Application conforms in all respects with this Bylaw, the Building Code and all other applicable enactments including other Township bylaws; Issue [29] The parties are in agreement that the issue to be determined to resolve the first form of relief sought by the petitioner is whether the petitioner's building permit application was permitted or not, pursuant to s. 201.6(3) of the Township's Zoning Bylaw No. 2500. The issue turns upon whether the property is being used or is intended to be used as a farm business. Standard of Review [30] The parties agree that the decision of the Building Inspector is a matter of law, thus attracting a standard of correctness. Discussion a) Declaratory Relief [31] In City of Ottawa et al v. Boyd Builders Ltd., [1965] S.C.R. 408, dealing with an application for a building permit, Mr. Justice Spence, for the Court, held that: An owner has a prima facie right to utilize his own property in whatever manner he deems fit subject only to the rights of surrounding owners, e.g., nuisance, etc. This prima facie right may be defeated or superseded by rezoning if three prerequisites are established by the municipality, (a) a clear intent to restrict or zone existing before the application by the owner for a building permit, (b) that council has proceeded in good faith, and (c) that council has proceeded with dispatch. [32] The Township properly contends that the relevant statutory provisions of the legislative scheme, including the Township's bylaws, are to be read in their entire context, in their grammatical and ordinary sense, harmoniously with the scheme and its objects and the intention of the legislative body that passed them: North Pender Island Local Trust Committee v. Conconi, 2010 BCCA 494 at para. 13. See also Neilson v. Langley (Township), [1982] B.C.J. No. 2313 (C.A.) at para. 18. [33] The Township also directed me to s. 8 of the Interpretation Act, R.S.B.C. 1996, c. 238, and s. 4 of the Community Charter, which both direct that enactments be given a broad interpretation based upon attaining the objects intended by the bodies that passed them. [34] The Township contends that the Building Inspector could not issue the building permit sought by the petitioner because the accessory building was not being used for agricultural or farm purposes and would exceed the area limits set out in s. 201.6(3) of the Township's Zoning Bylaw. [35] While the Building Inspector referred to recent inspections performed by Township staff that he asserted confirmed that the accessory building was not being used for farm use, and his view that the existing accessory building was more than sufficient for any current or likely farm use indicated for the property, it is not apparent to me that these conclusions were as a result of any informed view as to the petitioner's farming practices and needs. [36] Be that as it may, the petitioner has explained the seasonal nature of the farming in which he intends to engage, and why he has not yet begun farming activity involving livestock. The real question, as I have stated above, is whether the property is being used or is intended to be used as a farm business. [37] There was clear evidence before the Building Inspector that the property had been used to farm hay in 2014 and 2015. In his purported affidavit described as "sworn (or affirmed)", Robert Baker, the assistant chief inspector for the Township stated that "[i]n or about early 2016, Township staff inspected the [p]roperty and confirmed that little farming appeared to be taking place on the [p]roperty". Mr. Cesaretti appears to have appreciated that the property was being used and was intended to be used for farming purposes, as he referred to "current or likely farm use indicated for the [property]" in his letter of February 23, 2016. [38] The petitioner has made clear his intention to farm the property in this year and beyond in his petition, and I find it likely that the Township, through its staff, was aware that that was his stated intention when his building permit application was rejected. I therefore find that it was unlawful for the Township or its Building Inspector to refuse the building permit sought by the petitioner on the basis that he would not farm the property as he said he would. [39] In Westfair Foods Ltd. v. Saanich (District) (1997), 30 B.C.L.R. (3d) 305 (S.C.) [Westfair], Westfair applied to Saanich Municipal Council for a development permit and business licence in order to operate a wholesale grocery business. The applications were rejected by the Council based on a belief that Westfair did not intend to operate a wholesale grocery warehouse but a retail grocery facility. Mr. Justice Cohen held that in rejecting the applications, Saanich acted outside the scope of its legislative authority and that its decision was based on irrelevant considerations. His decision was upheld by the Court of Appeal in reasons indexed at [1997] B.C.J. No. 2852. [40] In 579340 B.C. Ltd. v. Sunshine Coast Regional District and Wills, 2005 BCSC 1203, Madam Justice Smith applied the reasoning of Cohen J. in Westfair, when the Regional District refused to issue a building permit for a boathouse of unconventional design. At paras. 43 - 44 Smith J. held: [43] The proposed structure may not look like other boathouses. It may be that the SCRD had in mind covered moorage of large boats when it decided to permit boathouses within 30 metres of the lake. However, kayaks and canoes are boats, and this structure is designed to store them. I find that the proposed structure does meet the definition of "boathouse" set out in Bylaw 337. [44] As Mr. Baker pointed out, if it transpires that this structure is not in fact used as a boathouse, it will be open to the SCRD to move against the petitioner. [41] In Paul Esposito Holding Ltd. v. Abbotsford (City), [1997] B.C.J. No. 1481 (S.C.), a developer intended to operate a non-profit gambling casino and applied to the City for a building permit to build the casino. The permit was refused on the grounds that the province had not yet issued a licence to operate the casino, but the City offered to grant the building permit if all references to the casino were deleted. Mr. Justice Boyle concluded that the building code requirements were not connected to the entitlement to the licence and the developer realized that completion of construction improvements did not assure the granting of a licence. He thus issued a declaration and order pursuant to s. 2 of the JRPA that the application complied with the zoning bylaw and that the building permit be granted. [42] As the petitioner has based his application for a building permit on the use of the property as a farm, he is exempted from the application of s. 479 of the Local Government Act, and permitted, pursuant to 201.6 of the Township's Zoning Bylaw, to construct a building that does not cover more than 33% of the lot area of the property, so long as his the proposed construction set out in his permit application conforms in all respects with Section 5.2 of the Township's Building Bylaw No. 4642, the Building Code, and all other applicable enactments including other Township bylaws. b) Mandamus [43] It is clear from the authorities referred to by the petitioner that relief in the form of mandamus is available to compel the issuance of a building permit if one is unlawfully refused by a municipal authority: Morin v. Surrey (District) (1988), 26 B.C.L.R. (2d) 91 (S.C.); Cheung v. Victoria, [1994] B.C.J. No. 3022 (C.A.); Windset v. Delta, 2002 BCCA 70. [44] I find that it is premature to determine whether the petitioner's building permit has been lawfully refused by the Township. Although I have found that the Township's reason for refusing the petitioner's building permit was unlawful, I am unable to determine whether proposed construction set out in his permit application conforms in all respects with "all other applicable enactments including other Township bylaws". [45] Given the basis upon which the Township rejected the petitioner building permit application, it did not determine whether the proposed addition to the barn complied with the provisions of the National Farm Building Code of Canada, 1995, NRCC 38732. In my opinion, the Township must be permitted to assess whether the proposed addition meets these provisions. Counsel for the respondents advised me that this could be done in 10 days or less. I will therefore permit the parties to determine this matter, and grant leave to the petitioner to appear before me after the expiry of 10 days from the date of these reasons for judgment, should his application not be approved by the Township. [46] The respondent is to advise the Court through its counsel, via the Registry, of the result of the Township's reconsideration of the petitioner's application within two business days of that reconsideration. c) Costs [47] If the petitioner's building permit application is approved by the Township, he should recover his costs of this application to the Court from the Township. If the petitioner's building permit application is not approved by the Township, any of the parties may make submissions in writing with respect to the costs of this application to the Court. "The Honourable Chief Justice Hinkson"