Wilson v. Cowichan Valley (Regional District)

Wilson v. Cowichan Valley (Regional District)

Policy 15.6(b) of the OCP is invalid because it exceeds the CVRD's statutory authority under the LGA and RAPA: a regional district may regulate development in a development permit area through permit conditions but cannot enact a bylaw that wholesale prohibits development in a SPEA where the provincial RAR permits development if QEP requirements are satisfied; accordingly the Board's denial based on that policy was unreasonable and mandamus was appropriate because the petitioners had met all validly-enacted requirements for the permits.

Citation
2021 BCSC 1735
Parties
Petitioner: Mark Lee Wilson; Petitioner: Dorothy Kelly Wilson; Respondent: Cowichan Valley Regional District
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
2 September 2021
Procedural Posture
Judicial Review / Judgment (reasons for Judgment)
Outcome
Impugned Bylaw declared invalid; Board decision denying development permit and development variance permit quashed; mandamus granted requiring issuance of the permits on specified conditions.
Legal Topics
Riparian Areas Protection Act, Local Government Act, Development Permits, Development Variance Permits, Vires of Bylaw, Mandamus, Standard of Review, Qualified Environmental Professional (qep) Assessments
Source Language
English
Administrative Law Municipal Law Environmental Law Land Use Planning Judicial Review Riparian Areas Protection Act Local Government Act Development Permits +5 more

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Parties

Mark Lee Wilson

Petitioner

Dorothy Kelly Wilson

Petitioner

Cowichan Valley Regional District

Respondent

Procedural Posture

Judicial Review / Judgment (reasons for Judgment)

Legal Issues

  1. 1 Whether OCP Policy 15.6(b) (the Impugned Bylaw) was intra vires the CVRD
  2. 2 Whether the Board's decision to deny the development permit and development variance permit was reasonable
  3. 3 Whether mandamus should issue to compel issuance of the permits

Ratio Decidendi

Policy 15.6(b) of the OCP is invalid because it exceeds the CVRD's statutory authority under the LGA and RAPA: a regional district may regulate development in a development permit area through permit conditions but cannot enact a bylaw that wholesale prohibits development in a SPEA where the provincial RAR permits development if QEP requirements are satisfied; accordingly the Board's denial based on that policy was unreasonable and mandamus was appropriate because the petitioners had met all validly-enacted requirements for the permits.

Court Disposition

Impugned Bylaw declared invalid; Board decision denying development permit and development variance permit quashed; mandamus granted requiring issuance of the permits on specified conditions.

Orders

  • Impugned Bylaw (OCP Policy 15.6(b)) declared invalid and quashed
  • Board's July 10, 2019 decision denying Application 07-F-17 DP/VAR quashed