Trust wins riparian rights court of appeal case against Mudge islander

Sounder News

Wednesday, January 27 2021

On January 22, 2021, in a unanimous decision, the Court of Appeal for British Columbia overturned the B.C. Supreme Court’s October 1, 2018, decision in Fonseca v. Gabriola Island Local Trust Committee. 

The landowners - Joaquin Da Fonseca and Olinda Da Fonseca - had not provided comment on the decision as of press time.

The Islands Trust, in a press release, said the previous B.C. Supreme Court decision had resulted in the Gabriola Island Local Trust Committee being unable to enforce its zoning bylaw - in respect of a seawall that Mudge Island landowners had constructed to protect their shoreline property from erosion.

That previous decision - referencing old English and Roman law - expressed that the Local Trust Committee is unable to prevent the owners from building an embankment wall on the edge of their property, because the Local Government Act and related provincial legislation does not explicitly repeal or do away with the common law riparian right. 

The Islands Trust appeal considered the circumstances in which a common-law right to use or protect property is subject to regulation by local government land use zoning bylaws. 

The Court of Appeal for British Columbia upheld the Gabriola Island Local Trust Committee bylaws and confirmed they do apply to seawalls.

“We are very pleased to have won this important case,” said Peter Luckham, Islands Trust Council Chair. “The Islands Trust Area has 1,426 kilometres of shoreline. 

“To properly implement our provincial mandate to preserve and protect the region it is critical that local trust committees and island municipalities, indeed all local governments, have the ability to regulate seawalls to ensure green methods of shoreline protection are in place.”

The Islands Trust statement also said the ability of local governments to prohibit seawalls and other shoreline armouring is critical to achieving environmental protection objectives, as well as to ensuring the beauty and scenic values of shoreline areas, adding, “Landowners who consider seawalls to address erosion should know there are many soft shore protection designs that reduce erosion and preserve the natural shoreline dynamics that coastal ecosystems need. More information is available in the Islands Trust’s Landowner’s Guide to Protecting Shoreline Ecosystems.”

The Court had considered a counter-appeal by the landowner. 

The landowner asked the Court to declare that a previous Court decision that the Gabriola Island Land Use Bylaw did apply to a deck, fences, and a set of gates on their property was in error. The Court dismissed the counter-appeal.

The Islands Trust began bylaw enforcement action regarding the Mudge Island property in 2012 by demanding the removal of the non‑conforming structures. 

In May 2015, the property owners applied to the Gabriola Island Local Trust Committee for a development variance permit seeking permission to keep the structures. The Gabriola Island Local Trust Committee granted permission for some structures, but denied for others, including the deck, seawall, and fences. 

According to the Mudge Island Official Community Plan (OCP), buildings and structures must be sited a minimum of 30 meters from the natural boundary of the sea, except for barge/boat ramps, stairs, and walkways.