The right to build: A Prima Facie Right

In the recent decision of Turney v. Langley (Township), 2016 BCSC 1099, Chief Justice Hinkson ruled on a building permit dispute between a landowner, Albert James Turney, and the Township of Langley. Mr. Turney purchased a 7.5-acre property in the Township. He planned to live on the property and operate a hay farm.

There was an existing barn on the property that Mr. Turney planned on using to store hay bales and raise chickens and ducks. Mr. Turney decided that the barn was not large enough for these purposes so he commenced work on an extension. Mr. Turney wrongly believed that a building permit was not required given that the property was on an agricultural reserve and he had farm status.

As work proceeded the Township learned of the project and attended at the property to perform an inspection. The Township found that the existing accessory buildings on the property already exceeded the maximum allowable square footage. As a result, a stop work order was made and Mr. Turney was instructed to remove the extension. Mr. Turney was also told that if the violation was not rectified the Township may bring a court proceeding to obtain an order to remove the extension. In addition, until the matter was rectified, a notification would be placed on the property’s tax information sheet, which “may negatively affect insurance, refinancing and sale of the [property]”.

In an effort to rectify matters, Mr. Turney submitted a building permit application for the extension. However, the Township rejected the application. In communicating its decision, the Township advised that its inspection of the property revealed that the existing accessory building was not being used for farm purposes, that “little farming appears to be taking place on the property”, and that the proposed extension was not necessary for farming on the property.

Unsatisfied with the result, Mr. Turney brought a petition seeking an order that the building application complied with the applicable zoning bylaws and that the Township be ordered to issue the building permit.

Mr. Justice Hinkson reviewed the relevant legislative scheme, which provided the Township with authority to make zoning by-laws. Specifically, section 479 of the Local Government Act (LGA) gave the Township authority to enact zoning bylaws, regulating, among other things, the “size and dimensions of buildings and other structure on the land.” However, the Township’s right to make such by-laws was limited by s. 481(2) of the LGA, which stated that a local government could not exercises its powers under s. 479 “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”.

As the Township did not have such an approval, the parties agreed that the issue to be resolved was whether the property was “being used or is intended to be used as a farm business”.

Mr. Justice Hinkson began his analysis by citing the Supreme Court of Canada decision of City of Ottawa et al v. Boyd Builders Ltd., [1965] S.C.R. 408, wherein Mr. Justice Spence stated:

      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.

Mr. Justice Hinkson found that although the Building Inspector concluded that the existing structures on the property were sufficient for Mr. Turney’s farming purposes, it was not apparent that this conclusion was based on “any informed view as to Mr. Turney’s farming practices and needs”.

Mr. Justice Hinkson found that there was clear evidence that the property had been used as a hay farm in the past and that Mr. Turney had made his intention to continue operating a hay farm clear. On this basis, it was unlawful for the Building Inspector to refuse the building permit on the basis that Mr. Turney would not “farm the property as he said he would.”

In coming to this conclusion, Mr. Justice Hinkson relied on three B.C. Supreme Court decisions where local governments had refused to issue building permits because of concerns that the buildings would not be put to the purpose set out in the application. The courts found that such considerations on the part of the local governments were given undue weight. If a building is not put to the purpose set out in the application, the local government’s recourse is to bring a court petition to prevent the owner from using the building for that purpose: 579340 B.C. Ltd. v. Sunshine Coast Regional District and Wills, 2005 BCSC 1203.

Mr. Justice Hinkson held that the building permit for the extension should be issued subject to the township confirming that the structure complied with the necessary building code requirements.