Vanderhaeghe v. Sunshine Coast (Regional District)

2025 BCSC 1699 Vanderhaeghe v. Sunshine Coast (Regional District)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Vanderhaeghe v. Sunshine Coast (Regional District), 2025 BCSC 1699 Date: 20250902 Docket: S216560 Registry: Vancouver Between: Lorna Vanderhaeghe Petitioner And The Sunshine Coast Regional District Respondent Before: The Honourable Madam Justice Burke Reasons for Judgment Counsel for the Petitioner: N. Baker Counsel for the Respondent: S. Dubinsky Place and Dates of Hearing: Vancouver, B.C. August 25-26, 2025 Place and Date of Judgment: Vancouver, B.C. September 2, 2025

INTRODUCTION [1] The facts of this matter were originally set out in this court's decision in Vanderhaeghe v. Sunshine Coast (Regional District), 2022 BCSC 2100. I will provide a very brief overview for ease of reference. [2] On July 16, 2021, the petitioner, Lorna Vanderhaeghe, sought judicial review of a number of decisions made by the Sunshine Coast Regional District (the "District") in respect of a property located within in the Sunshine Coast Regional District at 4355 Lake Road (the "Property") that fronts directly on Sakinaw Lake (the "Lake"). [3] After lengthy consultations with the District, the petitioner received the following permits to allow the redevelopment of the Property: a) Development Permit DP000077, issued on March 12, 2019 (the "Development Permit"); b) Building Permit BP001554, issued on March 15, 2019 (the "Building Permit"); and, c) Demolition Permit BP001759, issued on March 25, 2019 (the "Demolition Permit"); (collectively, the "Permits"). [4] The petitioner went on to construct a new 4,800-square-foot home on the Property (the "New Dwelling"), with two stories located 9.5-metres from the Lake--well within the 20-metres setback required by applicable bylaws--in the footprint of a now-demolished cottage that had been sited there (the "Old Cottage"), and an additional story on that portion of the property outside the setback. [5] The petitioner asked the

court to review the following decisions of the District: a) The rejection of Development Variance Permit Application No. 00054 (the "Permit Application"), which was made in respect of the New Dwelling, by the Sunshine Coast Regional District Board of Directors (the "Board") denying; b) The issuance of a full stop work order regarding the New Dwelling on November 12, 2020 (the "Full Stop Work Order"); c) Requiring that the petitioner seek new development and building permits for the New Dwelling; and, d) Refusing to consider an application to amend the building permit issued (the "Amendment Application"). [6] On October 29, 2021, the District filed its own Petition (the "District Petition") seeking various declarations that Ms. Vanderhaeghe was in breach of numerous pieces of legislation, including: a) The following Sunshine Coast Regional District bylaws: i. Electoral Area A Zoning Bylaw No. 337, 1990; ii. Building Bylaw No. 687, 2014; and, iii. Egmont/Pender Harbour Official Community Plan Bylaw No. 708. b) Sections 489, 491, 501 and 529 of the Local Government Act, R.S.B.C. 2015, c. 1. [7] The Petitioner District sought orders (i) requiring Ms. Vanderhaeghe to bring the property into compliance with the various bylaws and acts, (ii) permitting the District to demolish, remove, or modify any illegally constructed structures on the property and (iii) awarding the costs of this

petition to the District. [8] As part of the overview in the District Petition, the District noted that the respondent sought and, in 2019, obtained the Permits that allowed her to begin construction of the New Dwelling. It pointed out the permission was predicated on strict conformance with the New Dwelling's approved plans. The District Petitioner says that Ms. Vanderhaeghe constructed a structure that was significantly different than the structure approved by the District.

BACKGROUND [9] The BCSC released Reasons for judgement dealing with these two Petitions on December 1, 2022. The court allowed the Vanderhaeghe Petition and dismissed the District's Petition. [10] On May 2, 2024, the BCCA allowed the appeal in part on various terms, including: 1. Ms. Vanderhaeghe is to bring the New Dwelling into compliance with the approved building permit drawings.

2. The effect of the above order is stayed for 16 months to give Ms. Vanderhaeghe an opportunity to obtain amendments to permits to address the differences between the approved building plans and the new dwelling as constructed.

3. Applications to amend or vary the permits issued to Ms. Vanderhaeghe are to be assessed against the approved building permit plans, not the mass and volume of the previous dwelling under s. 529 of the Local Government Act.

4. The requisite approvals should be sought through applications to amend the existing development and building permits. The judge below retains jurisdiction to address matters arising out of the implementation of these orders. [11] The parties say "matters have arisen relating to the implementation of the Court of Appeal's orders". This application has therefore been set before this court. [12] The Petitioner maintains the Sunshine Coast Regional District refuses to review and process her development permit and building permit unless she first applies for a development variance permit to vary s. 515(1)(c) of the SCRD's Electoral Area A Zoning Bylaw. [13] The Petitioner notes the SCRD position is: 1. In order to authorize the additional height, square footage and massing within the 20m setback as build relative to as approved in March 2019, an additional variance beyond the variance implicitly granted in DP000077 is required"; and that 2. The additional variance is to s. 515 (1) (c), to authorize the additional height, square footage and massing within the 20 m setback beyond that which was approved in 2019 (at per par 49. [14] Section 515 (1) (c) of Electoral Area A Zoning Bylaw No. 337 provides: "Notwithstanding any other provision of this bylaw, and for the purpose of flood protection, no building or any part thereof, except a boathouse or wharf located solely on a water

body, shall be constructed, reconstructed, moved, located or extended within: (c) 20 metres of the natural boundary of all other lakes. [15] The Petitioner points out the BCCA agreed with the BCSC conclusion at para. 153 of her Reason for judgement that the District had issued a valid development permit to Ms. Vanderhaeghe and had thereby implicitly granted her a variance from s. 5151 (1) (c) of the Electoral Area A Zoning Bylaw from 20 m to 9.5-metres (as per para. 39 of the BCCA judgement). The BCCA ordered that approvals for any difference between the approved building plan and the new dwelling as constructed "be sought through applications to amend the existing development and building permits" as per para. 99 of the BCCA judgement. [16] Ms. Vanderhaeghe therefore applies for a declaration that she is not required to apply for a new or separate development variance permit to relax s. 515 (1) (c) in order to apply to amend/vary her existing development permit and building permit. She also applies for an order compelling the District to review and process Ms. Vanderhaeghe proposed amendment to her permits on an expedited basis. [17] In response, the District argues that a further variance application is required which may be granted by a development variance permit, which must be granted directly by the District's Board of Directors, as the Board has not delegated authority

to any District stall to issue development variance permits (s. 498 and 498.1 of the Local Government Act and s. 6 of the District's Planning & Development Procedures and Fees Bylaw no. 522, 2003). The District says Petitioner's application will therefore be a matter for the Board, in the same way it was in November 2020. [18] After hearing submissions from the parties on this matter, I grant the Petitioner's application. I conclude Ms. Vanderhaeghe is not required to apply for a new or separate variance permit in order to apply to amend/vary her existing development and building permit. I also direct the District to review and process Ms. Vanderhaeghe's proposed amendments to her permits on an expedited basis. [19] My reasons will be brief to ensure this matter proceeds in a timely manner. [20] In coming to my conclusion, I am guided by the words of the BCCA in this matter. [21] The parties extensively reviewed the various findings of the BCCA in its decision to argue their respective positions. I have considered those submissions. I conclude the reasoning in that judgement set out a number of propositions that support the Petitioner's position in this matter. [22] First, the BCCA agreed with the BCSC conclusion that the District has issued a valid development permit to Ms. Vanderhaeghe and thereby implicitly granted her a variance from the 20 metre setback in the Electoral

Area A Zoning Bylaw. While it ultimately disagreed that development permit entitled Ms. Vanderhaeghe to build the new dwelling as constructed, as it was reasonable for the District to require a variance for any development within the setback area, its final orders provided a path for Ms. Vanderhaeghe to seek a variance for the dwelling as constructed. [23] While the BCCA ordered Ms. Vanderhaeghe to bring the dwelling into compliance with the approved building permit drawings, it also stayed that order for 16 months to give Ms. Vanderhaeghe an opportunity to obtain amendments to permits to address the differences between the approved building plans and the new dwelling as constructed. [24] The BCCA specifically noted with respect to applications to amend or vary the approved building permits that "the requisite approvals should be sought through applications to amend the existing development and building permits". It did not require a new application and in particular noted at para. 59 that the District's decision to require Ms. Vanderhaeghe to apply for new development and building permits, albeit in that context, to be unreasonable. It said "to the extent that changes must be approved, those changes should be considered as amendments to existing permits". The BCCA indicated Ms. Vanderhaeghe could apply for a variance from the approved Development permit to obtain amendments to

permits to address difference between the approved building plan and the new dwelling as constructed. The requisite approvals are to be sought through applications to amend the existing development and building permits. [25] The District acknowledges there are several different routes by which a variance can be obtained. A variance can be included as part of the development permit pursuant to s. 490 of the Local Government Act. A variance may be granted by a development variance permit, which must be granted directly by the District's Board of Directors. While a board of variance may also order that a "minor variance" from the requirements of a bylaw is permitted in specific circumstances, this latter route is not applicable in this case. [26] As the Petitioner argues, the District's requirements and insistence that Ms. Vanderhaeghe apply for a development variance permit effectively puts them back at "square one". The BCCA did not order the Petitioner must in essence file an application de nova and I agree. In its orders, it specifically directed approvals should be sought through applications to amend the existing development and building permits. [27] While the District says a development variance permit is not de nova as it is not requiring new development or building permits, the recent conduct of the District belies that narrative. In its reasons, the BCCA noted the

unreasonableness of the conduct of the District as para. 59 to require Ms. Vanderhaeghe to apply for new development and building permits in the past. It did so in the context of circumstances where as it noted: The District has for over a year directed Ms. V to apply for a DVP and then to bring her building permit and development permit generally into line with that variance. Their focus on s. 529 and the volume and mass of the Old Cottage, rather than the plans approved in March 2019, added considerable to the complexity of the permitting process. The District took an inordinately long time to address Ms. Vandehaeghe's DVP application, cancelling a meeting at the 11th hour on one occasion. In these circumstances, it was unreasonable in my view to require her to start all over again. [28] The present material demonstrates potential further elements of this behaviour. As part of the present situation, the District has set out numerous further requirements for Ms. Vanderhaeghe, including additional requirements associated with the height of the retaining wall to the March 4, 2025 assessed Provincial approval of a "Condition and Impact Assessment" under the Riparian areas (protection) regulation undertaken by Ms. Vanderhaeghe. This Provincial approval clearly indicates "the Condition and Impact Assessment meets standard practised for restoration and the remediation plan is ready

to implement". [29] As has been argued, the BCCA did not require the Petitioner to return to "square one". The BCCA at para. 39, 47 and 49 agreed with this court's finding that the Director of planning issued a valid development permit with variances. In doing so, it also noted the "divided success" of the parties in this matter. The District's recent actions do not acknowledge this divided success and many of the same arguments made at the BCSC level are repeated in response to this application. [30] Further variances can therefore be approved in the same way they were approved when the development permit was originally issued i.e. by approving new plans and attached the plans to the development permit. The District's General Manager of Planning and Development does not dispute that District staff have delegated authority to approve certain variances with a development permit, although indicating that is not the usual practice. [31] This is consistent with the BCCA reasoning in this case, and the court's specific direction in this matter. To find otherwise would be to ignore the BCCA's direction in this matter. [32] The Application of the Petitioner is therefor granted. The Petitioner's request to vary her existing development permit can proceed and the District will review and process the proposed amendment to her permits on an expedited basis. [33] Unless one of the parties indicates a rationale otherwise within the next 30 days, costs are granted to the applicant as the successful party in this instance. "Burke J."