The BC Court of Appeal was unanimous in dismissing an appeal of a decision of the Supreme Court of BC, thereby continuing to uphold the Denman Island bylaw that regulates development on the Komas Bluff.
The decision, rendered Tuesday, relates to construction and land alterations on the face, at the crest and on the plateau above the Komas Bluff, on land owned by Daniel and Debra Stoneman of Denman Island.
Chief Justice Bauman, writing for the appeal court, also upheld the lower court’s award of special costs to the Denman Island Local Trust Committee.
In his reasons for judgment, the chief justice explained his decision was based on “the Stonemans’ deliberate breaches of the laws they well knew to be in place before they embarked upon their construction activities.”
The Stonemans' property lies within the Komas Bluff Development Permit Area, which requires geotechnical studies before activities such as tree-cutting and building construction can take place.
In areas of B.C. that are subject to natural hazards, development permits are one of the primary mechanisms that local governments use to protect structures from flooding, mudflows, erosion, land slip, rock falls, avalanche and wildfire. While development is allowed, it must be done pursuant to permit conditions to reduce the risks associated with natural hazards.
Earlier this year, the Supreme Court of BC found that the Stonemans breached the Local Government Act when they cleared and excavated their land, and constructed buildings and structures, including a path, stairs, a ramp, drainage works, a residence and accessory buildings within the Komas Bluff Development Permit Area without the necessary permits.
The judgment prohibited the Stonemans from further altering the land within the Komas Bluff Development Permit Area without valid permits or further order of the Court.
Tuesday’s decision from the Court of Appeal upholds the order of the BC Supreme Court requiring the property owners to:
• Remove any existing structures they are unable to obtain a permit for, and rehabilitate the property at their own expense,
• Allow access to the property to Islands Trust staff or contractors in order to assess and ensure compliance with the order, and
• Pay the full legal costs incurred by the Denman Island Local Trust Committee in enforcing the Local Government Act and defending its bylaws.
The case dates from 2005, when the Mr. Justice Groberman ruled that the Komas Bluff Development Permit Area was valid, in relation to an earlier court action involving the Stonemans and Mr. Dean Ellis, the previous owner of the property.
In 2006, the Stonemans applied for and were granted a development permit for their proposed construction, subject to the completion of specific work recommended by their engineer in relation to their proposed construction.
However, the Stonemans began construction of a residence without completing the requirements for the permit. Beginning in 2010 they constructed stairs down the face of Komas Bluff, also without permits. They claimed the bylaws were invalid and that no development permit was required.
David Graham, a Denman Island local trustee responded by saying, “This judgment confirms the decisions of three previous court decisions and we hope it’s over. Once again, it confirms that the Stonemans must work with the Denman Island Local Trust Committee to comply with Denman bylaws both by remediating the land and fulfilling the conditions necessary to obtain the proper permits.”
Laura Busheikin, also a Denman Island local trustee, added, “We look forward to moving past this issue. The Stonemans should have certainty now about the need to respect the community’s bylaws and to work with the Denman Island Local Trust Committee.”
The Islands Trust is a federation of local government bodies representing 25,000 people living within the Islands Trust Area, which includes Denman and Hornby islands.
— Islands Trust