IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130916

Docket: S128222

Registry:
New Westminster

Between:

Rodney Daniel Dick
and 611481 BC Ltd.

Plaintiffs

And

City of Coquitlam

Defendant

Before:
The Honourable Mr. Justice Truscott

Reasons for Judgment

[1]            
The City of Coquitlam applies pursuant to Rule 9-7 of the Rules of
Court for dismissal of this claim on the basis that the plaintiffs have
failed to comply with statutory and bylaw requirements of the City for the
development of their property and the City is entitled in law to enforce the
requirements of those statutes and bylaws and has therefore breached no duty of
care to the plaintiffs.

[2]            
In addition the City submits that the plaintiffs’ claim is
statute-barred pursuant to s. 285 of the Local Government Act,
R.S.B.C. 1996, c. 323, and pursuant to s. 3 of the Limitation Act,
R.S.B.C. 1996, c. 266, as amended.

[3]            
Mr. Dick commenced this action on June 11, 2010 by way of Writ of
Summons and Statement of Claim.

[4]            
The Statement of Claim seeks compensation for the years of delays caused
to his company and equipment and for loss of business, a permit for his right
to work on his property, compensation for the personal stress in not allowing
him to build on his property, general damages, special damages, punitive
damages, compensatory damages and costs.

[5]            
The body of the Statement of Claim alleges that he purchased his property
in October of 2003 and excavated 2,000-plus dump truck loads of material from
October 2003 to November 2003 for the purpose of building a driveway.

[6]            
He acknowledges that in November 2003 he received a Stop Work Order for
unauthorized activity and says that as of the date of the Statement of Claim he
still did not have access to his property.

[7]            
He also acknowledges that he applied for a Conservation Permit in
December 2003 to allow for the preparation to build a house but his Conservation
Permit was denied due to the amount of material to be removed from the site. He
says that this would have required about 100,000 cubic metres of material to be
removed to make the slope of his land 2 horizontal to 1 vertical with no retaining
walls.

[8]            
In the Statement of Claim he indicates that he would like a right to
re-grade his property to a plan submitted as engineered by Underhill and
stamped and approved by BCLS. He alleges the City has refused him the right for
seven years to develop the property and has been collecting taxes for the full
3.76 acres.

[9]            
He acknowledges that without a permit the City forbids the right to remove
soil materials exceeding 5,000 cubic metres per year but he says he did not
make the land the way it is and he has every legal right to make the most of
his property within the standards set forth by the City’s bylaws.

[10]        
He acknowledges that the property requires a large amount of earth to be
removed to make it a buildable site and there is no place buildable on the
property without doing a large amount of excavation.

[11]        
The City filed a Statement of Defence on July 26, 2010 denying any
liability and stating that it has established a policy with respect to the approval
of, building, development and subdivision of the property and with respect to
the issuance of permits for those matters. At all times it says it has followed
its policy and exercised all reasonable care, skill and diligence, followed all
established and required standards, practices and procedures, and complied with
all applicable standard statutory requirements, building codes and bylaws.

[12]        
The Statement of Defence alleges that the system for building,
development and subdivision approval and the issuance of permits and bylaw
compliance is a matter of policy within the sole discretion of the City for
which the City is not answerable at law to the plaintiffs.

[13]        
The City also alleges that if the plaintiffs suffered loss, damage,
injury or expense, it is as a result of their failure to comply with all
statutory and bylaw requirements including but not limited to obtaining proper
and adequate engineering reports and recommendations for development of the
property and complying with all requirements for development and/or subdivision
of the property.

[14]        
Finally the City alleges that the plaintiffs failed to give notice in
writing as required by s. 286 of the Local Government Act and the
defendant has been prejudiced in its defence.

[15]        
In addition it alleges that the plaintiff’s claim is statute-barred
pursuant to s. 3 of the Limitation Act.

[16]        
At the time of the hearing of this matter on December 6, 2012, Mr. Dick
had filed five personal affidavits.

[17]        
This judgment was taken on reserve at the conclusion of the hearing but
subsequently Mr. Dick sought to tender a sixth affidavit without seeking
leave of the Court or even advising counsel for the City.

[18]        
Upon my advising counsel for the City of the existence of the sixth
affidavit, counsel agreed to my consideration of this sixth affidavit as well
but did not consent to the admission of any further evidence or argument from Mr. Dick.

[19]        
Subsequent to that Mr. Dick sought to file an amendment to his Statement
of Claim as a Notice of Civil Claim under the new Rules.

[20]        
At another hearing on February 20, 2013, I informed the parties that I
will decide the City’s application on the material presented to me at the
hearing of December 6, 2012, to include only in addition the sixth affidavit of
Mr. Dick.

[21]        
I indicated that if the proposed amendments to the Statement of Claim to
change it to a Notice of Civil Claim were already covered in the material and
submissions before me on December 6, 2012, I would decide that in this judgment
as well, which I intend to do.

[22]        
Mr. Dick has subsequently sought to file further affidavits which I
decline to consider on this application in keeping with the ruling that I made
at the hearing of February 20, 2013.

[23]        
The City has made a number of decisions over the years with respect to
applications made by Mr. Dick to develop his property.

[24]        
The proper legal remedy for Mr. Dick to pursue against the City to
compel the City to give him a permit is judicial review under the Judicial
Review Procedure Act, R.S.B.C. 1996, c. 241, seeking an order
compelling the issuance of permits he seeks or a direction from the Court that
the City reconsider and determine Mr. Dick’s rights to these permits.

[25]        
An application for judicial review must be brought by way of a petition
proceeding. However, for the purpose of the City’s application to have Mr. Dick’s
claim dismissed under Rule 9-7 of the Rules of Court, I will consider Mr. Dick’s
Statement of Claim as including a petition under the Judicial Review
Procedure Act seeking an order that the City grant him the necessary
permits for development of his property or a reconsideration of its refusals to
date.

[26]        
The property is at 1430 Pipeline Road in the City of Coquitlam. Until
February 25, 2010, it was owned by 589969 BC Ltd., a company owned by Mr. Dick’s
parents, in which Mr. Dick had no ownership interest.

[27]        
On February 25, 2010, 589969 BC Ltd. sold the property to Mr. Dick
personally, who presently owns it.

[28]        
The co-plaintiff 611481 BC Ltd. is a company owned by Mr. Dick
which holds no legal or other interest in the property. It is not mentioned in
the Statement of Claim other than as a co-plaintiff.

[29]        
There being no application before me to have 611481 BC Ltd. removed from
the action, I make no order in that regard at this time, although its
participation in this claim is still subject to the application of the City to
have the entire claim dismissed.

[30]        
Although Mr. Dick only took ownership of the property on February
25, 2010, his applications date back to 2003 when 589969 BC Ltd. owned the
property. The City appears to have accepted Mr. Dick as an agent for that
company in the applications made prior to February 25, 2010. Accordingly I will
proceed on that basis.

[31]        
Pipeline Road proceeds generally in a north and south direction with one
lane each way. Mr. Dick’s property is on the west side of Pipeline Road
just north of Robson Drive in the City of Coquitlam.

[32]        
The property has an approximately 60 metre elevation change from its western
property line at the top (at 130 metres) to its eastern property line at
Pipeline Road at the bottom (at 70 metres).

[33]        
The property consists of about 3.76 acres with grades of between 27
degrees to 31 degrees in some areas and steeper grades of up to 100 degrees in
other areas.

[34]        
The property is zoned RS-2 (One-Family Suburban Residential) under City
Zoning Bylaw No. 3000, 1996.

[35]        
Pipeline Road is said to be a main access road for the residential
neighbourhoods in the area and a primary thoroughfare for vehicle and equipment
traffic associated with the commercial gravel extraction operations located on
Pipeline Road to the north of this lot.

[36]        
The provisions of Part 10 of the Zoning Bylaw dealing with one-family
residential zones incorporate by reference the General Regulations found in
Part 5 of the Bylaw, the General Regulations to Residential Zones set out in
Part 9 of the Bylaw, and the provisions of Part 6 of the Bylaw dealing
with subdivision.

[37]        
The General Regulations in Part 5 of the Zoning Bylaw require that no
building or any part of a building may be constructed, reconstructed, moved or
extended on a slope in excess of 20 degrees (36%).

[38]        
The only exceptions to that set out in the Zoning Bylaw are if it is a
slope with a vertical difference in elevation of six metres or less from the
toe to the crest or a slope created with the construction of highways or
constructed as a condition of subdivision in accordance with the plans approved
by the city engineer.

[39]        
As one of the facts Mr. Dick puts forth on this application, he
admits that from October to November 7, 2003 he removed about 2,000 cubic
metres of soil from the property.

[40]        
On November 7, 2003, the Planning and Development Department of the City
wrote to 611481 BC Ltd., taking the position that this activity was contrary to
several City bylaws.

[41]        
One such bylaw named was the City of Coquitlam Conservation Bylaw No. 2454,
1994.

[42]        
Section 930.1 of the Municipal Act, R.S.B.C. 1979, c. 290,
in force in 1994, provided that a municipal council may, by bylaw:

regulate or prohibit or require the holding of a permit for
the removal of soil from and the deposit of soil or other material on, any land
in the municipality or any area of the municipality; and

(b)        impose rates or levels
of fees for the removal or deposit of soils or the application and issuance of
a permit.

[43]        
The Conservation Bylaw enacted pursuant to that authority stated in
s. 4.1 that:

Except as permitted in section
4.2, no person will deposit on or remove soil from land within the City unless
that person has first obtained a permit in accordance with the provisions of
this bylaw.

[44]        
In the circumstances, the provisions of s. 4.2 are not relevant.

[45]        
The Conservation Bylaw included requirements for an application for a
permit, to include the applicable information set out in Schedule E to the
Bylaw, and authorized the director to require certain additional information
including a report from a professional engineer.

[46]        
Schedule E to the Conservation Bylaw indicated that a lot of different
information might be required, including re-grading plans, type of soil being
deposited or removed, amount of soil being deposited or removed, soil stability
provisions, drainage details along top of slopes, and a geotechnical
engineering report.

[47]        
In the letter to Mr. Dick of November 7, 2003, the City also
expressed concerns with the stability of the steep vertical cuts within the
slope and the potential for slope failure or land-slip and erosion, especially
during rainfall events.

[48]        
It was also pointed out that construction activity had impacted several
trees on the site and turned them into hazardous situations and the removal of
the hazardous trees or other trees on site would require the owner to obtain a
tree-cutting permit as the site was located within a tree-cutting permit area.

[49]        
The letter stated that action was required to be undertaken immediately
including a review and recommendations from a qualified professional engineer
in geotechnical matters to stabilize the site, and to ensure that the work does
not violate the City’s Stream and Drainage System Protection Bylaw.

[50]        
On December 11, 2003, the City received an engineering report on behalf
of Mr. Dick from Jacques Whitford & Associates Ltd. with a
geotechnical assessment of a proposed site access road for a residential
subdivision of this property.

[51]        
The City wrote to Mr. Dick on December 17, 2003, acknowledging
receipt of this engineering report and point out that there was no current
application for a subdivision of the property and the City was therefore unable
at the time to provide any comments related to proposed earthworks that were
not part of a current subdivision or development application.

[52]        
Reference was also made to discussions that Mr. Dick had with City
staff wherein he had indicated that he wished to construct a house on the
property and he was advised that he needed to review the building permit
application requirements with the City’s permit section in order for the City
to comment on the feasibility of his application as it related to current City
of Coquitlam bylaws, including the Building Bylaw, the Zoning Bylaw, the
Tree-Cutting Permit Bylaw and the Subdivision and Development Servicing Bylaw.

[53]        
On December 22, 2003, 589969 BC Ltd. applied for a Conservation Permit
as well as for a Subdivision approval.

[54]        
The City replied on February 13, 2004, acknowledging receipt of both
applications and pointing out that the proposed lot configuration shown on the Conservation
Permit application differed from the lot configuration shown on the Subdivision
application.

[55]        
The City requested clarification, seeking information as to the lot
configuration of the proposed Subdivision application layout and requesting the
purpose and intent of the proposed earthworks and construction access road
associated with the Conservation Permit application, noting that the three-lot
subdivision application did not indicate a proposed road/driveway into the
property.

[56]        
This brought about a reply from Mr. Dick the same day in which he
indicated that his intention was to excavate for one single-family residence
and build when ready, and when his three-lot subdivision passed approval, build
two more.

[57]        
The City says that because of the magnitude of the earthworks proposed
and concerns with slope stability, drainage and other site limitations, and
safety concerns, it decided to obtain an independent third party review of the Jacques
Whitford engineering report.

[58]        
For that purpose it consulted with Golder Associates which submitted a
report of February 11, 2004 on the Conservation Permit application.

[59]        
The report noted that the Jacques Whitford report dealt specifically
with the construction of an access road and appeared to be general in nature
and recommended that detailed drilling be carried out after access to the site
was available and a slope stability analysis be carried out when that data was
available.

[60]        
Golder Associates rendered the opinion that although access on the slope
was not then available, boreholes could be drilled from the top of the slope
which would provide viable relevant information on the geotechnical conditions
on the slope and further, shallow pit excavations on the slope might provide
useful information.

[61]        
It recommended that a comprehensive detailed excavation plan be prepared
for this work and the plan should define who is the engineer of record for the
work and should be detailed in all aspects of development. At a minimum it should
address a number of issues including grades and cut and fill slopes, seepage
zones, environmental washout problems and cross-drainage, instability issues,
environmental issues, and how the housing platform would be developed to ensure
that stability is maintained at all times.

[62]        
On March 5, 2004, the City Manager of Planning and Development sent a
memo to the City Manager recommending that Council deny the Conservation Permit
for the construction and earthworks associated with a proposed site access road.

[63]        
The memo made reference to Mr. Dick’s stated intention to excavate
for one single-family residence and build when ready and pointed out that no
building permit had been applied for and such an application would require a
development variance permit authorized by Council in relation to s. 519(2)(a)(iv)
of the Zoning Bylaw that restricted construction of buildings on a slope in
excess of 36% or 20 degrees.

[64]        
It was noted that the applicant had also applied for a subdivision of
the lands and the application was still under review by the City’s approving
officer.

[65]        
In addition it was pointed out that Mr. Dick was required to apply
for and obtain a tree-cutting permit prior to removal or disturbance of trees
on the site and no such permit had been applied for.

[66]        
On March 15, 2004, Council denied the Conservation Permit for the
construction and earthworks associated with a proposed site access road.

[67]        
This brought about another letter from Mr. Dick of April 8, 2004
which he wrote to the Mayor and Council directly asking what requirement he
needed to meet to excavate and remove material for the construction of a house
and driveway.

[68]        
The General Manager of Planning and Development responded on April 26,
2004, stating that the City understood he wished to develop for construction of
a single-family home and stating that to assist him in preparing his building
permit application certain comments were being provided.

[69]        
It was pointed out to him that his lot fell within a tree-cutting permit
area under the Tree-Cutting Permit Bylaw and that a tree-cutting permit
application had to be accompanied by (a) a geotechnical report prepared
and sealed by a professional geotechnical engineer certifying that the cutting
or removal of trees would not create a danger from flooding, erosion or land slip;
(b) a survey prepared and sealed by a registered BC land surveyor showing
legal lot boundaries; (c) a site plan; (d) depending on the location
and extent of the proposed tree-cutting, a certified arborist’s might also be
required; and (e) his building permit application would be required to
comply with current zoning constraints or else he would have to obtain a
separate development variance permit for which he was invited to contact the
Development Planning section for information regarding a development variance
permit.

[70]        
The letter went on to indicate that only one building permit application
for a single-family dwelling would be considered and enclosed a brochure to
assist him on his building permit application.

[71]        
It was pointed out to him that his building permit application should
include a legal survey of the property, a geotechnical report, plan and profile
views of the site showing an outline of all proposed buildings and structures,
detailed re-grading plans showing existing and proposed finished elevations and
cross-sections, details for eliminating any life safety hazards, details for
eliminating hazards to adjacent property and structures, a settlement control
plan, and details of drainage at the top of the slope.

[72]        
It was stated that all these elements were part of a preliminary review
of the documentation provided and did not represent a complete list and
additional information and requirements might be identified upon further review
of any submission.

[73]        
Finally, it was indicated that building permits would only be issued on
lots with approved services and access.

[74]        
The Tree-Cutting Permit Bylaw authorized, in s. 4:

For tree-cutting permits on lands
with slopes of 20 degrees or greater, the City of Coquitlam may require an
applicant for a permit to provide, at the applicant’s expense, a report
certified by a professional engineer, that the proposed cutting of trees will
not create a danger from flooding or erosion.

[75]        
Section 6 of the Bylaw required that applications be accompanied by a
written description of the proposed tree-cutting and to include information on
the purpose and scale of the proposed tree-cutting and the methods to be used,
a site plan, methods proposed to control the erosion of the soil from any
slopes of the land, proposed methods of access to the site during the cutting,
and such further and other information as Council may require.

[76]        
The Community Charter is a provincial statute, S.B.C. 2003,
c. 26.

[77]        
Part 2 of that statute deals with municipal purposes and powers and sets
out fundamental powers of a municipality. It specifically states that a council
may, by bylaw, regulate, prohibit and impose requirements in relation to trees,
protection of the natural environment, buildings and other structures, and the
removal of soil and the deposit of soil or other material.

[78]        
It is stated that these powers to regulate, prohibit and impose
requirements include the power to regulate, prohibit and impose requirements as
applicable respecting persons, property, things and activities in relation to
the matter and, by way of example, prohibit persons from doing things with
their property and require persons to do things with their property at their
own expense and provide security for fulfilling the requirement.

[79]        
Section 55 of the Charter authorizes council by bylaw to require
applicants for building permits to provide the municipality with a
certification by a qualified professional that the plans submitted with the
permit application comply with the current provincial Building Code and other
applicable enactments and authorizes the building inspector who considers that
construction would be on land that is subject to or is likely to be subject to
flooding, mud flows, debris flows, debris torrents, erosion, landslip,
rockfall, subsidence or avalanche, to require the owner of land to provide a
report certified by a qualified professional that the land may be used safely
for the use intended.

[80]        
The Coquitlam Building Bylaw requires a building permit for any work
that relates to a building or temporary building and requires every application
to be accompanied by plans of the building with respect to which the work is to
be carried out in such quantities as prescribed by the General Manager of
Planning and Development from time to time, showing the dimensions, proposed
use, the dimensions of the parcel on which the building is to be located and
the location of the building relative to the parcel’s property lines. “Building”
under the bylaw includes a retaining wall whose height is not less than 1.2
metres.

[81]        
Section 23.1(i) requires in relation to retaining walls the application
to be accompanied by geotechnical, structural and drainage plans prepared and
sealed by a professional engineer for retaining walls.

[82]        
Section 24.1 provides that an application for a building permit must
comply with all applicable City bylaws including the zoning bylaw, development
permits, environmental protection bylaws, and traffic, water and drainage
bylaws.

[83]        
On May 19, 2004, Mr. Dick applied for a permit to build a
single-family dwelling.

[84]        
On June 8, 2004, the Subdivision Committee indicated to Mr. Dick it
was recommending that the approving officer decline his proposed subdivision sought
on December 22, 2003 due to the fact that under s. 86(1)(c)(v) of the Land
Title Act, the land was subject to or could be reasonably expected to be
subject to erosion and land-slip and under s. 87 of the Land Title Act
the proposed subdivision did not conform to the City of Coquitlam’s Zoning
Bylaw as amended (s. 519(2)(iii) and (iv)).

[85]        
On June 17, 2004, the City confirmed receipt of Mr. Dick’s Building
Permit application and noted that he proposed to build on a slope that
exceeded 20 degrees in contravention of s. 519(2)(iv) of the City’s
Zoning Bylaw.

[86]        
He was told that his only recourse was to approach Council for a
development variance permit.

[87]        
On June 21, 2004, Mr. Dick sought this Development Variance Permit
for the purpose of excavation for a house and sought a variance to the zoning
requirement for construction on a slope exceeding 20 degrees.

[88]        
Prior to preparation of a report to Council on the Development Variance
Permit, the City indicated to the engineering consultant, Ashford Engineering,
that it would require from Jacques Whitford a plan demonstrating the extent of
cuts and fills associated with the proposed driveway construction, additional
cross-sections through the site including a driveway profile, and the estimated
quantity of net material to be removed from the property in cubic metres with a
specific breakdown of cut and fill volumes.

[89]        
On November 2, 2004, Ashford Engineering sent to the City a
supplementary report of Jacques Whitford dated September 23, 2004 and stated
that the Jacques Whitford report confirmed the stability of the site slope
would be increased with the removal of the gravel as required to accommodate
the proposed single-family dwelling access road and the proposed access
driveway would require a net cut of some 101,000 cubic metres of soil.

[90]        
On June 17, 2004, the Jacques Whitford engineers had written to Mr. Dick
indicating that they had completed a geotechnical slope assessment and
siltation control system for the proposed residential development on the
property with the purpose being to enable Mr. Dick to obtain development
permit approval from the City for the proposed development.

[91]        
The report confirmed that Mr. Dick was proposing to construct a
single-family dwelling to include a new road located on the lower half of the
slope consisting of two straight sections and a switchback with general grades
ranging from 10 to 12.5%.

[92]        
It was indicated in the June 17, 2004 report that in order to facilitate
the construction of the proposed development, Mr. Dick was proposing to
unload the existing slope by means of gravel extraction and the opinion was
given in the report that the proposed development could proceed with the
construction of an access road and gravel extraction once the siltation control
system was constructed. It was stated that the stability of the slope would
correspond to factors of safety which were above the minimum requirements for
both temporary and permanent works. However for the long-term performance of
the proposed single-family dwelling it was stated to be important to confirm
the subsurface conditions that had been adopted in the slope stability analysis
and it was suggested that this could be ascertained through a drill-hole
investigation that might be more easily facilitated once the access road was
constructed and gravel extracted from the site. The opinion was expressed that
the timing of the proposed subsurface investigation would be better following
the construction of the access road.

[93]        
On November 9, 2004, the City wrote to Mr. Dick responding to the
November 2, 2004 memo of Ashford Engineering indicating a net cut of
101,000 cubic metres of soil and advising him that the Soil Removal Regulation
Bylaw No. 1914, 1988, regulated the removal of soil substances from lands
and specifically limited the maximum quantity to 5,000 cubic metres incidental
to building construction in any one-year period.

[94]        
Based on this it was indicated that the Planning and Development Department
would not be proceeding to Council with a proposed Development Variance Permit
until such time as Mr. Dick amended his application to be in compliance
with that Soil Removal Bylaw. A copy of the Bylaw was attached for his
reference.

[95]        
It was also indicated that if Mr. Dick did not amend his application
by December 17, 2004, his Development Variance Permit application would be
put before Council with a recommendation it be declined due to its failure to
comply with the City’s bylaws.

[96]        
On January 21, 2005, the City wrote to Mr. Dick confirming that his
Development Variance Permit application was seeking a variance in contravention
of the Zoning Bylaw on the issue of the slope of the site and his proposal to
remove 101,000 cubic metres of excavation exceeded the maximum allowed of 5,000
cubic metres.

[97]        
The letter confirmed that he was advised to modify his Development Variance
Permit application to eliminate this contravention but also confirmed that he
did not intend to modify his proposal and he wished the matter to be moved
forward as quickly as possible.

[98]        
He was advised that the file would be brought before the appropriate
committee of Council at the next available opportunity with the intention of
bringing his Development Variance Permit application to Council for a decision
on February 21, 2005.

[99]        
The letter expressed the City’s understanding that Mr. Dick was
experiencing a great deal of frustration with the process but the City was
attempting to assist him as best it could.

[100]     On
February 1, 2005, Mr. Dick wrote to the City, asking what information he
was lacking that he needed to get the City’s support to have this pushed
through with a positive outlook.

[101]     On
February 14, 2005, the City wrote Mr. Dick, indicating that his Development
Variance Permit application was scheduled to proceed to the Land Use and
Economic Development committee on February 28, 2005 and Council on
March 7, 2005.

[102]     The letter
set out additional issues that staff had with respect to the extent of
earthworks associated with the single-family building permit proposal,
including the length of time that would be needed to complete proposed
earthworks that had not been provided, the absence of details of how traffic on
Pipeline Road would be controlled and how impacts on neighbouring properties of
dust and noise would be mitigated, the apparent potential to develop one
single-family house on a portion of the site that minimized the extent of earthworks
and associated site servicing, and the need for a further assessment from his
consulting engineer to better determine the viability of his proposal including
borehole and shallow pit excavations to provide valuable relevant information
on the geotechnical conditions and other matters of engineering set out in a
list.

[103]     Mr. Dick
responded by letter of February 17, 2005, stating that the City already had
three geotechnical reports from Jacques Whitford dated December 11, 2003, June
17, 2004 and September 23, 2004, and those reports should answer all the City
questions.

[104]     He also
set out his answers to all of the issues outlined in the City letter. In answer
to the concern for noise and dust affecting neighbouring properties on Pipeline
Road, he said there would be no more noise than what the construction required
and what the dump trucks from nearby gravel pits created.

[105]     In answer
to the issue of the apparent potential to develop one single-family house on a
portion of the site that minimizes the extent of earthworks and associated site
servicing, Mr. Dick responded that, “Whatever it takes to develop my
property, and how much money I spend is determined by me. I pay taxes on the
whole property, not just a piece of it.”

[106]     On
February 28, 2005, the General Manager of Planning and Development recommended
to the City manager that Council not authorize the Development Variance Permit
application which related to development on a slope in excess of
20 degrees (36%).

[107]     The report
indicated that Mr. Dick was proposing to build a single-family dwelling of
about 600 square feet to be located mid-way up the slope, with the construction
of an access driveway near the centre of the property. It was stated that the proposed
on-site development would result in the excavation and removal of approximately
101,000 cubic metres of material from the slope.

[108]     The report
confirmed that Mr. Dick had submitted a geotechnical report prepared by a
professional engineering consultant but the report had been reviewed by staff
and clarification of certain aspects of the proposal had been sought.

[109]     The report
went on to say that notwithstanding a number of specific concerns as outlined,
staff contended that the overall scope of the earthworks proposed was
significant. To provide some sense of the magnitude of the earth-moving
activity proposed, staff estimated that it would take five dump-truck loads per
hour, eight hours per day, five days per week, for a one-year period, in order
to complete the proposed site development. Should such a trucking activity
occur, staff indicated significant concerns, one being traffic safety, given
the limitations of the site access and the area available on-site for the
loading of material.

[110]     The report
pointed out that even though Mr. Dick had submitted a geotechnical report
it was premised on geotechnical work being undertaken during the course of
excavation and staff recommended that excavation not be permitted to commence
until such time as a detailed geotechnical investigation was fully completed by
a qualified professional.

[111]     On March
7, 2005, Council resolved not to authorize the Development Variance Permit
application which related to development on a slope in excess of
20 degrees (36%).

[112]     Mr. Dick
was told of this result by a letter of March 21, 2005 from the City and was
told of many factors for that including the views expressed by a number of
neighbours in the vicinity of the property about the extensive excavation work
that would have to be undertaken to allow Mr. Dick to construct the
proposed residence on the property, concerns with the stability of the slope on
the property in light of a number of unauthorized activities, including soil
and gravel disturbance and removal from the property, concerns with construction
of an access road and placement of structures and heavy equipment on the
property, concerns over the lack of information on various geotechnical matters
such as sediment control, general site conditions, drainage and risk
assessment, and concerns over the length of time that would be required to
excavate the property to the extent needed to construct the proposed
single-family dwelling unit.

[113]     In this
letter, Mr. Dick was informed that with the denial of the grant of the Development
Variance Permit, he had no lawful authority to proceed with any work on the
property, all work to date was unauthorized, and as well his application for a
building permit to construct could not be approved by staff.

[114]     On March
24, 2005, the City issued a Notice of Remedial Action Requirement pursuant to
s. 72 of the Community Charter, requiring 589969 BC Ltd. as the
registered owner to take remedial action of obtaining a slope stability
assessment of the property from a professional engineer or geoscientist with
experience or training in geotechnical study and geohazard assessments and
deliver such a report to Council for the City within 30 days.

[115]     The owner
was also notified that if the owner failed to take the remedial action within
the time frame specified, the City may carry out the remedial action pursuant
to s. 17 of the Charter with costs to be borne by the registered
owner and if unpaid by December 31 in the year, to be added to the property
taxes for the property as taxes in arrears.

[116]     589969 BC
Ltd. did not carry out the remedial action required by the notice under
s. 72 of the Community Charter within 30 days of March 24, 2005 and
therefore the City went ahead to obtain its own report.

[117]     On
September 12, 2005, the City sent to Mr. Dick a copy of a Thurber
Engineering Ltd. report dated September 7, 2005, but indicated that the report
did not address what was intended which was the current stability of the slope,
and that the City would be requesting that Thurber do another report that did
address that situation.

[118]     Thurber
sent a further short letter of October 14, 2005 to the City, providing comments
on the stability of the current excavation face left by Mr. Dick’s
activities, stating that the overburden exposed by the excavation was generally
dense but the upper face was steep, possibly 1H:1V.

[119]     It appears
that matters remained in abeyance through to February 23, 2006 when Mr. Dick
met with some of the City staff.

[120]     The
following day, on February 24, 2006, the City wrote a letter to Mr. Dick
pointing out that he still had three avenues available to him for advancing
development, including a building permit for a single dwelling coupled with a
development variance permit permitting him to develop a site at variance with
the zoning bylaw, subdivision coupled with a development variance permit permitting
him to develop the resulting lots at variance with the zoning bylaw, or a conservation
permit.

[121]     He was
told that each of these vehicles would bring his proposal before Council and it
was important for him to choose a single development option. Any approach to Council
would entail public notification and would subject his development proposal to
public scrutiny.

[122]     He was
also told that his previous permit applications raised issues that any future
application should address or recognize and that a number of these were
discussed at the meeting, including:

1.       the
need for a complete and accurate characterization of his development plans;

2.       the
need to demonstrate that the proposal being advanced was the best of the
development options available;

3.       the
need for the City to rely on the independent advice of his professional
consultants;

4.       the
need for him to engage the appropriate professionals;

5.       the
comprehensiveness of the geotechnical assessment and design provided by his
professional consultants;

6.       the minimization
of the duration of the excavation and the amount of haul traffic;

7.       the
need to address the real and perceived impact of development on neighbours;

8.       the
need to consult with neighbours; and

9.       the
nature of public process.

[123]     This was
stated not to be an exhaustive list and not to provide any guarantee that his
application would meet with success.

[124]     On May 19,
2006, Beazley Engineering Ltd. applied on behalf of 589969 BC Ltd. for a Conservation
Permit to allow removal of the existing soil to allow for construction of a
driveway and home as shown in an enclosed drawing.

[125]     It was
stated that the volume of material to be removed, while quite large, was the
minimum required to construct a 15% driveway and a home in accordance with
current City requirements.

[126]     The City
replied to Beazley on June 12, 2006, providing Beazley with the background to
its involvement and asking how Beazley wished to proceed.

[127]     On June
16, 2006, Mr. Dick sent a letter to the City with a drawing indicating a
cut slope at the bottom of the slope next to Pipeline Road and indicating that
would require removal of 60,000 metres of soil plus more excavation to build at
the bottom with a long, sloping back yard.

[128]     Another
drawing showed the building site being in the middle of the slope.

[129]     On August
14, 2006, the City wrote to Beazley Engineering on its Conservation Permit
application, indicating that while the proposal appeared to show two
development options, the City continued to have concerns of the magnitude of
earthworks and asked a number of questions of Beazley.

[130]     On
September 15, 2006, the City wrote to Mr. Dick, indicating that they were
waiting for the information from Beazley Engineering which had not yet been
received and notifying Mr. Dick that if there was no response from him by
September 22, the City would take it that no further information would be
forwarded to the City for review to support his Conservation Permit application
and his application would proceed to Council for its consideration.

[131]     On October
27, 2006, the General Manager of Planning and Development sent a memo to the
City Manager with a recommendation that the Conservation Permit application
that would entail removal of approximately 100,000 cubic metres of soil be
denied by Council.

[132]     The memo
indicated that a meeting had been held on October 18, 2006 with Mr. Dick
and his engineering consultants Mr. Beazley and Mr. Denby of Jacques
Whitford, along with a Chris Clark of Nilex Inc., a supplier of earth retention
materials, to discuss the current status of the application and various
proposals to date.

[133]     The memo
indicated that while the discussion was wide-ranging and touched on different
development options, related issues and challenges, in the end a resolution
could not be reached and Mr. Dick requested that his Conservation Permit
application as submitted be provided to Council for consideration.

[134]     The memo
indicated that City staff had reviewed the Conservation Permit application and
while the information submitted demonstrated a proposal to develop the site,
the application as submitted did not evaluate all site development options.
Further professional evaluation was recommended regarding a number of issues
including how the earthworks and the proposed access road would be constructed
in a safe manner, erosion control and avoidance of potential landslip during
and post-construction, temporary and permanent drainage controls, and
mitigation of impacts to adjacent properties, public roads and the environment.

[135]     The memo
indicated the significant issue that remained was the review of all site
development options and City staff had requested the applicant and his
consultants to explore other design options and locations for the proposed
single-family dwelling, with the objective of reducing the magnitude and impact
of earthworks required on the site.

[136]     The memo
expressed an understanding that these options might even require further
variances to zoning regulations to facilitate the dwelling and the applicant
had been advised that City staff would be supportive of set-back and other
variances in order to achieve a more site-sensitive solution to the development
of a single-family home on the parcel.

[137]     It was
also pointed out that Beazley Engineering had prepared and submitted drawings
showing a proposed house location closer to Pipeline Road on the northeast
corner of the property but the proposal still raised a number of design questions
and further information had been requested.

[138]     The report
indicated that while these issues had been identified to the applicant, he had
requested that the Conservation Permit application be forwarded to Council for
consideration.

[139]     Staff
indicated a number of concerns regarding the application and recommended Council
decline the Conservation Permit application as submitted.

[140]     The staff
contended there was likely to be alternative approaches to the development of a
single-family home on the subject property which would result in significantly
less impact to the site and incur much less earthworks. Staff had attempted to
explore these options with the applicant; however, insufficient information had
been received to adequately evaluate other alternatives and the applicant
preferred proceeding based on the Conservation Permit application as submitted.

[141]     On October
30, 2006, the committee of the whole of Council heard from Mr. Beazley on
behalf of Mr. Dick, indicating that Mr. Dick did not want to build a
home with numerous retaining walls, that a geotechnical report had been
submitted stating that the slope would be safer when reconstructed, truck
traffic should not be an issue, and the house would be approximately 4,000
square feet.

[142]     Mr. Dick
said he planned to build a retaining wall along Pipeline Road.

[143]     The
recommendation of the Committee of the whole was that Council deny the Conservation
Permit applied for that would involve the removal of approximately 100,000
cubic metres of soil and would require extensive site earthworks to accompany
the construction of a proposed driveway and single-family dwelling.

[144]     On
November 7, 2006, the application came before Council and was rejected.

[145]     The
applications of Mr. Dick at that point appear to have gone into a lengthy
hiatus with no activity involving the City again until April 19, 2007.

[146]     At that
time, the City wrote Mr. Dick referring to recent approaches to Council and
staff regarding his property and pointing out that there were no active
applications for the property being processed by the City at that time.

[147]     The
history was reviewed in this letter and the City indicated to Mr. Dick
that if he wished to submit a new application the decision was his. However, in
order to have the greatest likelihood of success, he was told any further
application should take into account the issues that had been clearly
identified to date, the application process options available, Council’s
concerns and the concerns of neighbours.

[148]     On May 22,
2007, Mr. Dick applied for another Conservation Permit in the name of
589969 BC Ltd.

[149]     The form
did not set out why a Conservation Permit was being sought and this led to a
follow-up letter of May 25, 2007 from the City to Mr. Dick, indicating
that the letter was being provided to assist him in completing his latest Conservation
Permit application. The City understanding was stated that his proposal was
identical to his previous applications, that no new information was going to be
provided, and that he would be referring to information already provided to the
City with previous applications.

[150]     The letter
went on to say that given this direction and after a further review of the
application form, the City had conducted a review of previous Conservation
Permit applications of his and outlined them in the letter.

[151]     The letter
stated that if it was his intention to include these already-existing reports
and drawings with his latest application, the City requested written
confirmation from Jacques Whitford and Beazley Engineering that the material
remained applicable and valid for City review in conjunction with the current
application.

[152]     The letter
also noted that Mr. Dick had been given a copy of the City’s Conservation
Bylaw which included Schedule E, a checklist of items that might be required to
be submitted in order to contain a Conservation Permit. The City noted several
of the outstanding items that needed to be submitted in Schedule E to initiate
a review of his Conservation Permit application and a copy of that
Schedule E with the items noted was attached.

[153]     The matter
seems to have gone into an abeyance again at that point in time because the
next message from Mr. Dick was a letter of March 16, 2008 in which he said
that he was proposing to build three houses with house foundations five metres
above Pipeline Road. The letter said the foundations were to be placed on flat
ground similar to the house to the north and a three-lot subdivision did not
require to be pre-approved by Council.

[154]     He also
indicated that he could not reduce the amount of excavation to meet building
requirements.

[155]     On April
3, 2008, the City wrote to Mr. Dick acknowledging receipt of an
application from him for subdivision that was received at the front counter on
March 4, 2008. He was told that staff had reviewed the application and
regretted to advise that it was incomplete and as such the City was unable to
process the application any further.

[156]     The letter
also indicated that his current proposal was very similar to previous
applications and in order to adequately deal with the site constraints and to
have the greatest likelihood of success, his application should address the
issues that had already been clearly identified to date.

[157]     There was
no further attempt by Mr. Dick to advance any application until early
2009.

[158]     On January
29, 2009, Mr. Dick sent a letter to the City seeking an answer whether he
could build on his property, yes or no, whether he could re-grade his property
to the bylaws of the City, yes or no, whether the City accepted the drawings of
his engineers, yes or no, and to please mark up the drawing and tell him what
was wrong with the reports from 2003 until then.

[159]     On
February 13, 2009, Mr. Dick sent two further letters. One of them
indicated that he could not meet the requirements of reducing the amount of
earth to be removed, but the City’s engineer Thurber did not have a problem
with his proposal and the City would have its chance to explain in court.

[160]     The second
letter was a short one that simply asked whether he was allowed to put a
retaining wall on his property.

[161]     The City
responded on February 16, 2009, acknowledging his communications and informing
him that his proposed work of creating a terrace at a nominal elevation of 100
metres by means of substantial soil removal from the upper portion of the site
could only be done under a permit issued pursuant to the Conservation Bylaw or
as work incidental to work authorized under a building permit or as part of
subdivision approval.

[162]     He was
also informed that the Building Bylaw permitted an owner to construct retaining
walls only under a duly-authorized building permit but apart from that the Zoning
Bylaw prohibited the construction of any structure, including a retaining wall,
at a slope in excess of 20 degrees.

[163]     He was
told that this prohibition was not absolute as Council might issue a
development variance permit but such permission would be based on Council’s
consideration of the merits of the application and subject to any conditions Council
should choose to impose.

[164]     In summary
it was stated that under the City’s Bylaws he could develop his property but
any development activity could not be undertaken at his sole discretion, but only
after he had obtained the appropriate approvals.

[165]     Mr. Dick
apparently met with the Mayor on March 3, 2009 and subsequently on March 13,
2009 the City wrote Mr. Dick a letter, pointing out that based on the
discussion and review of the material he had submitted, it appeared he proposed
to re-grade the subject property to create a building platform at the northeast
corner of the site, against Pipeline Road.

[166]     The letter
said that given the preliminary nature of his material, one option the City offered
him to consider was to apply for a soil conservation permit to remove material
in excess of 500 cubic metres permitted for landscaping and apply for a
building permit for the construction of a retaining wall exceeding 1.2 metres
in height, together with an application for a development variance permit to develop
on a site with a slope exceeding 20 degrees. On completion he would apply for a
building permit for his dwelling. Alternatively it was suggested he could apply
for building permits for construction of the retaining walls and the dwelling
and a development permit.

[167]     It was
stated that these applications could run concurrently as once the DVP
application was authorized by Council and the engineered designed approved and
inspected site preparation work reached completion, he could apply for a
building permit for the actual dwelling.

[168]     Alternatively
it was stated that he could apply for the building permits for the construction
of retaining walls exceeding 1.2 metres in height and the dwelling, and as well
a DVP application would be necessary for the proposed development on a site
with a slope exceeding 20 degrees. Again, these applications could be processed
concurrently.

[169]     It was
stated that once he selected his preferred development approach, City staff
were available to discuss with him the specific requirements that were
necessary to productively move forward with his development concept. He was
told that it would be necessary for his applications to take into account the
need for a complete and accurate description and illustration of the
development proposal and the accompanying plans, the need to engage the
appropriate professionals, the need for the City to rely on the independent
advice of his professional consultants, the minimization of the amount and
duration of excavation and the resulting additional truck traffic on Pipeline
Road, and the need to address the impact of the proposed development on
neighbours, noting that development of the lands (either soil conservation or
building permit) would require Council approval.

[170]     He was
told that once he had had an opportunity to review the letter and select the
development approach, he was to call the General Manager of Planning and Development
to determine the next steps in proceeding forward.

[171]     Mr. Dick
submitted another Conservation Permit application on April 20, 2009.

[172]     On May 4,
2009, the City wrote to him confirming that he did not propose to provide any
new information but to refer to information already provided on previous
applications and his previous applications were listed in the letter.

[173]     The new
application proposed construction of a dwelling platform four metres above
Pipeline Road. Clarification was sought by the City.

[174]     He was
also told that his professional consultants would need to provide updated
reports and drawings to accurately reflect his new proposal with updated
letters of assurance.

[175]     His
attention was also brought to the requirements of Schedule E of the
Conservation Bylaw and another copy of Schedule E was provided to him at that
time.

[176]     The letter
indicated that City review of the application would commence once all of the noted
items had been addressed and a written response and confirmation of the
proposal from him was provided.

[177]     A meeting
was held between Mr. Dick and the City on July 14, 2009 at the property.

[178]     On July
15, 2009, a letter was sent to Mr. Dick.

[179]     Mr. Dick
was reminded in the letter that City Council, on July 6, 2009, had approved a
resolution dealing with his most recent Conservation Permit application,
directing staff to notify property owners when the Conservation Permit
application with the necessary additional information was returned to Council
for further consideration.

[180]     The letter
said that while a number of issues remain outstanding and would require
resolution, including but not limited to the associated tree removal/permits,
site access, site safety and drainage/sediment/erosion control, staff had
attempted to narrow the most significant technical issues down to the three
areas of:

1.       clear and
updated explanation of the proposal with plans and reports prepared and
endorsed by the appropriate professionals;

2.       given
the magnitude of the proposal, professional evaluation and certification that
the proposal as submitted was a safe and viable development option to
facilitate development of a single-family dwelling on the site; and

3.       assurance
(certification) by the professional consultants endorsing the plan, that they
would be involved for the duration of the project and would assume full
responsibility for the earthworks.

[181]     He was
told that while a number of other issues and considerations would have to be
resolved, it was felt that if he could adequately and properly resolve these
three issues, staff would be in a position to provide the adjoining property
owners with appropriate information on the proposal as directed by Council and
subsequently bring the application back to Council for further consideration.

[182]     Mr. Dick
was told that the Conservation Permit was one step in the site development
process that needed to be resolved specific to the earthworks proposed, that
future development applications including subdivision, tree-clearing, building
and development variance permits would all require separate applications and
resolution of associated requirements and given the complex nature of the site
this would need to be resolved one step at a time.

[183]     Mr. Dick
was asked to provide the information requested so the General Manager of Planning
and Development could ensure the public notification process commenced and
related information was provided back to Council for further consideration.

[184]     Mr. Dick
sent numerous faxes and made numerous telephone calls to various City employees
and City Council over the summer and fall of 2009.

[185]     The City
received a copy of a letter from Beazley Engineering of November 13, 2009
to Mr. Dick, indicating that in August 2006 it had been instructed not to
provide the City with requested information as he was not interested in
building a house at the location shown close to Pipeline Road and he wished the
Conservation Permit application of May 19, 2006 to proceed as requested with
the re-grading and driveway.

[186]     It was
pointed out that the City, on September 15, 2006, had once again requested
further information that Mr. Dick had instructed Beazley not to provide.

[187]     The City
received a letter from Mr. Dick of November 13, 2009, indicating that he
planned to remove 15 feet from the top of the slope and expose the west
property line.

[188]     The City
also received a copy of a letter of October 19, 2009 from Stantec (formerly
Jacques Whitford).

[189]     The City also
received copies of December 11, 2003 and September 23, 2004 letters to Mr. Dick
from Jacques Whitford.

[190]     On
November 27, 2009, the General Manager of Planning and Development recommended
to the City Manager that Council decline the latest Conservation Permit
application for this property on the basis that the applicant had not complied
with the resolution of Council to provide the necessary information so that the
Conservation Permit application could be returned to Council for further
consideration. Instead it was stated that Mr. Dick had continued to pursue
the application without addressing the three significant issues requiring
additional information and that he had been told that staff would be in a
position to move to the public notification process once these three issues had
been adequately addressed.

[191]     The report
indicated the three issues remained outstanding but said Mr. Dick had
subsequently met with and frequently contacted staff to discuss other land use
and development scenarios that did not advance those issues any further, and
while he had submitted the letters from Stantec Consulting, Beazley and Jacques
Whitford and this confirmed he had consulted engineering professionals, it did
not address previous questions and concerns raised by staff and Council.

[192]     Mr. Dick
appeared before the Land Use and Economic Development standing committee on
Monday, November 30, 2009 with respect to his Conservation Permit application
and advised that he was unable to reduce the amount of excavation on the
property more than what he already had and he was not prepared to construct a
60-foot-high retaining wall as it would greatly reduce the size of his lot.

[193]     The
committee recommended that Council decline the Conservation Permit application
and Council did so on December 7, 2009.

[194]     The City
wrote Mr. Dick on December 11, 2009 informing him that his Conservation
Permit application had been denied and the application was now considered
closed.

[195]     On
February 2, 2010, Mr. Dick filed yet another Conservation Permit
application in the name of 589969 BC Ltd. with the description of a proposed
project to remove and level the top of the property to an elevation of 124
metres geodesic two to one slope on the west property line.

[196]     The City
replied on February 12, 2010, acknowledging receipt of this application and
pointing out that it appeared to be different than his previous applications,
and updated details, plans and related engineering assessments were required to
complete the application.

[197]     Again the
City noted that Mr. Dick had been provided with a copy of Schedule E
of the City’s Conservation Bylaw with the checklist of items that might be
required to be submitted in order to obtain the Conservation Permit, and
another copy of Schedule E was attached to the letter with items highlighted in
yellow as required to address his application.

[198]     Finally
around April 30, 2010 the City received an application from Mr. Dick for a
five-lot bare land strata lot subdivision that included his property and the
property immediately north of his property on Pipeline Road.

[199]     The City
replied on May 12, 2010 and informed Mr. Dick that his subdivision
application was incomplete and the City was unable to process the application
any further.

[200]     It pointed
out to him that the application was incomplete for the reason that he did not
provide any written authorization from the current owner of the property he included
north of his property to the subdivision application, he did not send the
required application fee, he did not indicate the current title for the
property north of his property, and the survey plan submitted in connection
with his application needed to be amended to include location, dimensions and
set-backs of all existing buildings and structures to be retained on the site,
building envelopes indicating all required zoning bylaw set-backs, existing
grades at each corner of the lots, or spot elevation/contours of the property
at one metre intervals, and all existing trees within the lands and on adjacent
road allowances that were 20 centimetres (eight inches) in diameter or
greater when measured than 1.4 metres (four feet six inches) above the ground.

[201]     He was
told again that his property presented challenges to development and any
development proposal would need to satisfactorily address a range of site
constraints, that to date he had been unable to clearly demonstrate to the City
that his proposal, which included the removal of significant volumes of soil
from the site, would be the safest and least disruptive development option, and
staff continued to highlight the need to have his professional consultants
provide this information along with their assessment and recommendations in
that regard.

[202]     It was
stated that until that complete information was submitted it was anticipated
that Council, the approving officer and the public would continue to raise
questions and issues that would be unresolved such that his application would
be unable to proceed.

[203]     On August
18, 2010, the City wrote to Mr. Dick, informing him that it was advised he
had been conducting works on the property including removal of soil from the
property and he had created a situation on or near Pipeline Road which appeared
a threat to the safety of passing motorists as a result of falling rocks and
other debris.

[204]     He was
reminded that he was not authorized to conduct any works that included soil
removal on the property and told that should he disregard the order the City
would take enforcement action against him without further notice.

[205]     On January
17, 2011, Mr. Dick wrote again to the Mayor and Council requesting a
meeting and indicating that his lot required a substantial amount of excavation
to make it 100% usable to build and meet the Building Code requirements. He
said in this letter that he reduced the amount of excavation from the original
plan in 2003 back to the minimum of two to one slope which was acceptable under
the Building Bylaw, that in 2003 his engineer’s report said it was safe for him
to excavate a driveway to do a geotechnical report, and that he would have an
engineer come to the site with every 20 feet he took off the top of the
property to ensure the safety of the operation.

[206]     He also
indicated in this letter that he had already removed 300 to 400 truckloads out
of the corner where he had access to load the trucks.

[207]     On
February 8, 2011, the City wrote to Mr. Dick, indicating that his latest Conservation
Permit application submitted on February 2, 2010 had been referred for
consideration by Council’s Land Use and Economic Development standing committee
on February 28, 2011.

[208]     It pointed
out to him that apart from his application form no new reports had been
received in support of his application and as such in reaching a recommendation
staff would be considering those documents submitted in support of his Conservation
Permit applications back in 2003, 2006 and 2009, all of which had been
declined. Those documents were listed in the letter.

[209]     He was
asked if he had any additional reports he would like staff to consider and if
so to ensure that they were submitted no later than the end of business on
February 18, 2011.

[210]     On
February 21, 2011, the General Manager of Planning and Development sent another
memo to the City Manager, recommending that Council advise Mr. Dick that
his Conservation Permit application was incomplete and that the application was
being referred back to staff with the processing of the application held in
abeyance until he submitted the necessary supporting information.

[211]     The memo
to the City Manager noted that the subject application was to remove and level
the top of the property and the proposal differed from previous Conservation
Permit applications which had proposed a more substantial reconfiguration of
the entire slope and had been declined.

[212]     It was
stated that previous information provided by the owner, including details of previous
site earthworks and engineering assessments, were inconsistent with the current
application and therefore the information needed to be updated.

[213]     It was
pointed out that Mr. Dick continued to express frustration with previous
applications and the request by staff that additional information be submitted.

[214]     The memo
indicated that he had not submitted information on the purpose of the proposal
to remove several metres of soil materials from the top of his property and had
not allowed staff to meet with his professional consultants to discuss the
application and associated technical issues and questions.

[215]     The memo
indicated that Mr. Dick had been told that failure to submit the required
information would result in the application being deemed incomplete, and he had
been given until the close of business on February 18, 2011 to submit any
additional information. No additional information had been received.

[216]     Nevertheless
it was stated Mr. Dick wished the application to be forwarded to Council
for consideration as it was and staff recommended that the application be
referred back to staff and the application be held in abeyance until the owner
submitted the necessary information to the City.

[217]     On
February 28, 2011, the Land Use and Economic Development standing committee
suggested that Mr. Dick meet with the Manager of Development Services to
discuss the matter further and recommended that Council advise Mr. Dick
that his Conservation Permit application was incomplete and the matter was
being referred back to staff until he submitted the necessary supporting
information.

[218]     On March
15, 2011, the City met with Mr. Dick and a new consultant, Geo Media
Engineering Ltd., where a lengthy discussion was held about the City’s
requirements for conservation permits in general and specifically with respect to
Mr. Dick’s property because of its steep topography and because of the
magnitude of earthworks proposed as part of his permit application.

[219]     This
appears to have followed upon Mr. Dick resubmitting his February 2, 2010 Conservation
Permit application as an amended application by taking out the reference to
elevation 124 metric geodesic to indicate that the proposed project was to remove
and level the top of the property to a two to one slope on the west property
line.

[220]     On March
30, 2011, the City wrote Mr. Dick a letter, informing him of Council’s
decision to return the application to staff, and pointing out that he had
submitted a formal Amendment to the Conservation Permit application on March 2,
2011 to modify the extent of earthworks proposed on his property, but no new
technical material had been submitted by his consulting engineer that endorsed
previous information in relation to the current application.

[221]     It was
noted that at the meeting of March 15, 2011 Mr. Grandberg of
Geo Media Engineering had confirmed that he had not yet visited the site.

[222]     The City’s
concerns were repeated once again in this letter to Mr. Dick and once
again Schedule E was attached as well as Schedule A dealing with geotechnical
engineering report requirements and Schedule D dealing with assurance of
professional design and commitment for field review – geotechnical.

[223]     Mr. Dick
was told that the City awaited submission of his preliminary information from
his consulting engineer and he was urged to take proper action.

[224]     Another
meeting was held with Mr. Dick on May 5, 2011 and subsequently on June 9,
2011 the City wrote Mr. Dick another letter.

[225]     This
letter pointed out that since the March 30, 2011 letter, Mr. Dick had
submitted a May 24, 2011 letter with attached slope displacement calculation
report from Geo Media dated May 19, 2011, a letter dated May 25, 2011
requesting whether the property could be subdivided into three lots, and a
letter dated May 26, 2011 including a Schedule D assurance of professional
design and commitment for field review completed and signed on December 11,
2003 by Wayne Quong, P.Eng.

[226]     The letter
also indicated that a subdivision sketch submitted on May 26, 2011 but dated
February 9, 2004 with handwritten notations, did not denote whether it was to
be a permanent road to serve a possible future subdivision or a temporary road
to allow excavation of the site, and the plan had not been endorsed by his
qualified professional.

[227]     A bare
land strata plan from Underhill & Underhill Professional Land Surveyors
submitted on May 26, 2011, but dated April 15, 2010, showed a proposed five-lot
bare land strata subdivision as well as two site sections showing the original
site slope and a proposed two to one slope, but the plan had not been prepared
or endorsed by his qualified professional.

[228]     Another
plan of survey of the subject land prepared by Underhill & Underhill
Professional Land Surveyors submitted on May 26, 2011, but dated April 21, 2001,
showed a site section as well as a proposed 12.5% road and proposed survey
grades of the road, but with no cover information and no explanation from his
qualified professional on this plan.

[229]     Several
plans were submitted on June 3, 2011 but with no cover information or
documentation to relate this to the current proposal by his qualified
professional. Handwritten notations had been added to the plans with no
explanation.

[230]     It was
noted that with the exception of the geotechnical reports, none of the
information submitted had been endorsed by his qualified professional, Darryl
Grandberg of Geo Media. Further the majority of the plans submitted were stated
to be of a standard that was inadequate to support the application.

[231]     Mr. Dick
was told again that all submissions needed to be prepared by professional
consultants based on standards of professional practice based on detailed data
collection and analysis, appropriate methodology and complete documentation. He
was told the City could not accept hand-sketched notations on previously
photocopied material from previous studies with no supporting technical basis
in relation to the current application, or use conceptual subdivision-based
plans as part of his submissions, as the City was not considering a subdivision
application.

[232]     The City
also said it could not accept information or submissions without cover
information or documentation as to their purpose or their relationship to his
geotechnical or other technical reports, or any plans or associated information
in relation to the technical aspects of the proposal that were not endorsed by
his qualified professional.

[233]     He was
told that continuing submissions of material of inferior quality without
oversight by his qualified professional would not be acceptable and would
prevent the City from undertaking the necessary review to complete the
processing of the application.

[234]     He was
told the City required Geo Media as the qualified professional to provide
letters of assurance to ensure complete oversight of all construction phases of
his application and the December 11, 2003 assurance provided by Mr. Quong
pertained to a previous proposal and was not acceptable.

[235]     Mr. Dick
was reminded again of the requirement to satisfy Schedule E of the Conservation
Bylaw and that he consult with owners of adjacent properties and this
preliminary feedback be included in his next submission.

[236]     In
relation to the May 4, 2011 geotechnical report submitted by Geo Media, the
City noted several issues that had been identified as part of the preliminary
review, including that the report was focused on excavation and construction of
single-family dwellings rather than the elements that were the subject of the Conservation
Permit application, including the proposed excavation and earthworks to
re-profile the entire slope, as well as ancillary issues (access, slope
stability, erosion and sediment control, etc.) that was the subject of the
application request.

[237]     It was
said the May 4, 2011 geotechnical report relied on limited field exploration
review and limited laboratory testing on soil samples and while the report
raised concerns and made recommendations in relation to loose soils,
construction and excavation requirements, and required oversight by a
geotechnical engineer, letters of assurance that Geo Media would oversee all
construction and excavation were not provided.

[238]     The report
also cited the September 14, 2004 excavation plan prepared by Jacques Whitford
and said the excavation plan did not appear to be sufficiently detailed to
ensure appropriate measures and controls would be in place to address safety
and geotechnical slope stability through the excavation process.

[239]     Further,
the report confirmed that Mr. Dick had told the City in a telephone
conversation of June 6, 2011 that the plan was prepared by him and not Jacques
Whitford and it was very concerning to the City that his qualified professional
had accepted these representations as those of Jacques Whitford despite the
fact that Mr. Dick admitted that he had completed the plan.

[240]     It was
also noted that there was no discussion in the May 4, 2011 Geo Media geotechnical
report about site access and constraints or requirements in relation to
establishing an access road on the site for excavation and the report did not
address a number of the issues and requirements noted in the March 30, 2011
letter from the City.

[241]     Given all
of this, the City indicated an intention to proceed with an independent
external peer review of these reports by another qualified professional.

[242]     However it
noted that on June 8, 2008 Mr. Dick had requested both verbally and in
writing that his application proceed immediately to Council and no further
processing be undertaken. He was told that being the case staff would proceed
with his request and would include a summary of the current deficiencies in
relation to his current application for Council’s information.

[243]     The City
sought an independent external peer review of Mr. Dick’s reports from Geo
Media, by Golder Associates. Golder reviewed the two Geo Media reports of May
4, 2011 and May 19, 2011 for a proposed three-lot residential subdivision.

[244]     Golder
concluded that the geotechnical assessments undertaken by Geo Media were
general in nature and insufficient for detailed design and the level of effort
required at the Conservation Permit application stage for authorization to
carry out earthworks in advance of future development.

[245]     In
Golder’s opinion the limited nature of the geotechnical investigations carried
out to that date did not appear to address the inherent risks that might
prevail within the hillside area.

[246]     In
particular there was no specific geotechnical documentation confirming the soil
or groundwater conditions in the vicinity where most of the construction effort
was to take place.

[247]     The City
says that one of the biggest shortcomings of the supporting materials provided
by Mr. Dick in respect of his 2010 Conservation Permit application was
that the materials were directed towards the condition of his lot after the
proposed earthworks were complete but provided little if any information about
the process by which the land would be excavated over the estimated three-to-five-year
period.

[248]     On June
30, 2011, the City wrote Mr. Dick again, referring to a meeting of the
previous day with the City representatives when Mr. Dick indicated an
intention to proceed with land clearing and soil removal activities on the
property notwithstanding that no Conservation Permit had been issued for this
work and in fact the property remained subject to a Stop Work Order preventing
that work.

[249]     He was
reminded that he was not authorized to conduct any activities involving soil
removal of the property and failure to comply with the City’s Conservation
Bylaw and Stop Work Order could result in the City taking enforcement action
against him without further notice.

[250]     On June
20, 2012, the City wrote to Mr. Dick, indicating that the City had not
received any response to any of the outstanding materials required for the Conservation
Permit application and therefore pursuant to s. 10.1 of the City’s
Development Procedures Bylaw his Conservation Permit application had been
closed.

[251]     There are
three provincial statutes that are applicable to the applications for permits
that Mr. Dick has made over the years since 2003. They are the Community
Charter, S.B.C. 2003, c. 26, the Local Government Act, R.S.B.C.
1996, c. 323, and the Land Title Act, R.S.B.C. 1996, c. 250.

[252]     The Community
Charter authorizes council, by bylaw, to regulate, prohibit and impose
requirements in relation to trees, protection of the natural environment,
buildings and other structures, and the removal of soil and the deposit of soil
or other material (s. 8(3)).

[253]     Section
8(8) sets out as examples of the powers of council to regulate, prohibit and
impose requirements that persons may engage in a regulated activity only in
accordance with the rules established by the bylaw, and persons can be
prohibited from doing things with their property or be required to do things
with their property and at their own expense.

[254]     Section
15(1) of the Charter authorizes council in regulating under the Charter
or under the Local Government Act, to provide for a system of licences,
permits or approvals, including by doing one or more of prohibiting an activity
or thing until a licence, permit or approval has been granted, providing for
the granting and a refusal of licences, permits and approvals, providing for
the effective periods of licences, permits and approvals, and establishing
terms and conditions of the licence, permit or approval.

[255]     Dealing
with building permits, s. 55(2) authorizes the council by bylaw to require
applicants for building permits, in circumstances as specified in the bylaw
that relate to site conditions, provide the municipality with a certification
by a qualified professional that the plans submitted with the permit
application comply with the current provincial Building Code and other
applicable enactments respecting safety, and authorize building inspectors for
the municipality to require applicants for building permits to provide the
municipality with that certification if the building inspector considers it is
warranted by the circumstances.

[256]     Section
56(2) authorizes the building inspector to require the owner of land to provide
the building inspector with a report certified by a qualified professional that
the land may be used safely for the use intended, if the building inspector
considers that construction would be on land that is subject to or is likely to
be subject to flooding, mud flows, debris flows, debris torrents, erosion, land
slip, rockfalls, subsidence or avalanche.

[257]     The Local
Government Act states that the purpose of the Act is to provide
local governments with the powers, duties and functions necessary for
fulfilling their purposes, and s. 903(1) of the Act authorize a
local government by bylaw to divide the whole or part of the municipality into
zones and regulate within a zone the use of land, buildings and other
structures.

[258]     The Land
Title Act, under s. 77, authorizes municipal council to appoint an
approving officer to govern subdivisions and under s. 86 authorizes the
approving officer to consider matters in approving a subdivision application
including whether the land is subject, or could reasonably be expected to be
subject, to flooding, erosion, land slip or avalanche.

[259]     The
Conservation Bylaw of the City of Coquitlam stipulates in s. 4.1 that no
person will deposit on or remove soil from land within the City unless that
person has first obtained a permit in accordance with the provisions of the
Bylaw.

[260]     Section
5.1 of the Bylaw requires that an application for a permit include the
applicable information set out in Schedule “E” to the Bylaw and s. 5.2
stipulates that after a preliminary review of any application for a permit made
pursuant to s. 5.1, additional information may be required by the Director
of a survey plan prepared by a surveyor showing the area in which the removal
or deposit of soil is to occur with details of the surface of the permit lands
before and after the removal or deposit as the case may be, as well as existing
drainage methods before removal or deposit, the drainage methods to be used
during removal or deposit and the drainage methods to be implemented following completion
of the removal or deposit.

[261]     In
addition the Director of Permits and Licences may seek a report from a
professional engineer containing a completed Schedule “D” Assurance of
Professional Design and Commitment for Field Review, drawings and design prepared
in accordance with Schedule “A” of the Bylaw showing the design of all
permanent and temporary slopes, drainage, pre-load and landscaping on the permit
lands, a certification that all aspects of the soil removal or deposit
contemplated in the permit application will comply with the provisions of Part
8 of the British Columbia Building Code and a certification that the work will
not injuriously affect adjacent land, structures, buildings or utilities.

[262]     The Director
may also seek information on the location of the site from which soil is to be
moved from or the site to which soil is to be moved to.

[263]     Section
6.3 authorizes the Director or Council to refuse to issue a permit if the
proposed removal or deposit of soil will or is reasonably likely to contravene
any bylaw of the City, or result in soil on the permit lands or on adjacent
land becoming soft soil or susceptible to erosion, slippage, landslides,
slumping or settling, or may threaten the health, safety or welfare of the
public or be otherwise contrary to the public interest.

[264]     Schedule
“E” to the Conservation Bylaw lists a number of information that may be
required as part of the permit application process.

[265]     The Zoning
Bylaw under s. 519(3) provides that no building or structure can be built
on a slope in excess of 20 degrees.

[266]     The
Building Bylaw under Article 23.1 authorizes the building inspector, if the
parcel contains slopes in excess of 15%, to require the applicant for a
building permit to provide additional details on proposed final grading, retaining
structures and drainage provisions.

[267]     Article
24.2 authorizes the General Manager of Planning and Development to cancel an
application if the applicant does not provide the City with requested
additional information after 90 days of the written notification of the
requirement.

[268]     The Soil
Removal Regulation Bylaw included a provision as of 1989 that no person shall
remove any soil substance from lands within the District of Coquitlam unless
the removal of soil substance is incidental to building construction or
landscaping activities for which approval has been granted by the District of
Coquitlam and the quantity of soil substance is less than 5,000 cubic metres.

[269]     The Stream
and Drainage Protection Bylaw provides that an owner or other person undertaking
any construction work requiring a permit, permission or approval by the City,
with the exception of construction work related to a building permit for the
construction of a single or two-family dwelling, to submit a sediment control
plan that complies with the requirements of s. 7 of the Bylaw as part of
the application for the permit, permission or approval prior to proceeding with
the construction work.

[270]     The Tree
Management Bylaw No. 4091, 2010 sets out a definition of “protected tree”
and requires a permit for the cutting down or damage to a protected tree.

[271]     If slopes
are greater than 60%, a detailed site assessment prepared by a geotechnical
engineer may be required by the General Manager along with a tree replacement
plan as part of the tree-cutting permit application.

[272]     The
Tree-Cutting Permit Bylaw No. 2169, 1990 designates shaded land shown on
maps attached as Schedules “A” and “B” that may be subject to flooding,
erosion, land slip or avalanches, as tree-cutting permit areas. Mr. Dick’s
land falls within these areas.

[273]     In
addition, apart from these areas, any slope of 20 degrees or greater, where the
slope has a vertical height of three metres or greater, are designated as
tree-cutting permit areas and a tree-cutting permit is required before any
person cuts any trees within a designated tree-cutting permit area.

[274]     For
tree-cutting permits on lands with slopes of 20 degrees or greater, the City
may require an applicant for a permit to provide at the applicant’s expense a
report certified by a professional engineer that the proposed cutting of trees
will not create a danger from flooding or erosion.

[275]     There are
two standards of review of decisions of council or permit officers that are
applicable to the claims of Mr. Dick.

Law

[276]     The first
standard is one of correctness as to whether the City acted within its
jurisdiction in refusing to issue Mr. Dick permits through the years.

[277]     Mr. Dick
does not challenge the jurisdiction of the City to issue or refuse to issue
permits to him.

[278]     In any
event it is clear to me that the City has that jurisdiction under the
applicable statute or bylaw that pertains to Mr. Dick’s applications for
permits.

[279]     The second
standard is whether the council or permit officer has acted reasonably in
exercising their discretion.

[280]    
In Dunsmuir v. New Brunswick, 2008 SCC 9, the Supreme Court of
Canada said the following about reasonableness:

47.       Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that come
before administrative tribunals do not lend themselves to one specific,
particular result. Instead, they may give rise to a number of possible,
reasonable conclusions. Tribunals have a margin of appreciation within the
range of acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to outcomes. In
judicial review, reasonableness is concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.

[281]    
In a previous case of Vancouver (City) v. Simpson, [1977] 1
S.C.R. 71, Mr. Justice Martland cited with approval the lower court’s
reasons as follows:

Where, as here, there is direct
statutory foundation for the ground given for the decision to approve or
disapprove, and where it is not shown that that decision, despite its impact on
an individual, was made in bad faith, or with the intention of discriminating
against that individual, or on a specious or totally inadequate factual basis,
there should, in my opinion, be no interference by the court with municipal
officials honestly endeavouring to comply with the duties imposed on them by
the Legislature in planning the coherent and logical development of their
areas.

[282]    
This deferential standard has been maintained in more recent decisions
such as Young v. Cowichan Valley (Regional District), 2005 BCSC 114,
where the court said:

30        The nature of discretionary decision making is set
out in 511784 BC Ltd. v. Salmon Arm (District), 19 M.P.L.R. (3d) 23 (B.C.S.C.),
where, at page 243, the court observed:

All discretion is inherently
discriminatory in that decisions are made which result in a choice or
distinction being made. The exercise of discretionary power is only unlawful if
the discretion is exercised in an improper discriminatory manner, that is for
some improper purpose or on some irrelevant basis. (See Bignell Enterprises
Ltd. v. Campbell River (District) (1996) 34 M.P.L.R. (2d) 193 (B.C.S.C.).

31        Where a Regional District Board has made a decision
within its jurisdiction, the appropriate test is that set out in Nanaimo
(City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342 (S.C.C.) adopting the
following from Shell Canada Products Ltd. v. Vancouver (City),
[1994] 1 S.C.R. 231 per McLachlin J. (as she then was), at 244:

Recent commentary suggests an emerging consensus that courts
must respect the responsibility of elected municipal bodies to serve the people
who elected them and exercise caution to avoid substituting their views of what
is best for the citizens for those of municipal councils. Barring clear
demonstration that a municipal decision was beyond its powers, courts should
not so hold. In cases where powers are not expressly conferred but may be
implied, courts must be prepared to adopt the "benevolent construction"
which this Court referred to in Greenbaum, [1993] 1 S.C.R. 674, and
confer the powers by reasonable implication. Whatever rules of construction are
applied, they must not be used to usurp the legitimate bodies as community
representatives.

Discussion

[283]     Mr. Dick
has made multiple applications through the years for different permits that
fall under different bylaws or a combination of bylaws, principally under the
Conservation Bylaw.

[284]     Mr. Dick’s
property is very challenging for development as it has a slope that varies
from 27 degrees to 31 degrees in some areas and grades of up to
100 degrees in other areas

[285]     On each
application City staff informed Mr. Dick why his application for a permit
was rejected and what was missing.

[286]     While Mr. Dick
supplied the City with letters from engineers he had retained, the City turned
to Golder Associates for independent advice and declined to authorize the
permits on the basis of those engineering opinions for reasons given to Mr. Dick
by the City. Mr. Dick refused to update his engineering opinions when he
changed his applications.

[287]     On my
review of the City’s reasons for denying the applications through the years, I
find those reasons to be reasonable and in accordance with the authority given
to the City under the provincial statutes and their bylaws.

[288]     Instead of
seeking to meet the requirements of the City Mr. Dick elected to have his
permit applications put before Council directly without meeting the City
requirements, with the result that in each case Council declined to issue a
permit.

[289]     Mr. Dick
must understand that the councillors do not have the expertise in these areas
held by the City staff members and will unlikely grant a permit that is not
endorsed by staff for perfectly good reasons.

[290]     Through
the years Mr. Dick has changed course of seeking building permits to
conservation permits for construction of a driveway and single-family dwelling,
to development four metres above Pipeline Road at the bottom of his slope, to
development at the top of his slope, to a five-lot bare-land strata lot
subdivision, and then to a three-lot bare-land strata lot subdivision submitted
through Geo Media Engineers.

[291]     He even
proposed to obtain a permit for development to include the property of his
next-door-neighbour without any approval of his next-door-neighbour being
offered to the City.

[292]     Mr. Dick
may be understandably frustrated with all of the bylaw requirements, but he
must realize and accept that his property sits in a municipality with bylaws
authorized by the provincial government, and not in unorganized territory out
in the hinterlands somewhere.

[293]     At no
point in time has the City said that no development on his property will be
allowed. To the contrary, it has spent a great deal of time and effort in
trying to make Mr. Dick understand what he needed to do to obtain permit
approval. Meetings were held with Mr. Dick and the letters I have outlined
from the City indicate genuine efforts on the part of the City to assist Mr. Dick.

[294]     However,
the City does not have any authority to issue permits that would place
surrounding neighbours and the general public at risk from land slip, or anyone
who might purchase any structure on his property that had been given a permit
for which there was land slippage following development.

[295]     There is
no evidence that the City ever acted in bad faith towards Mr. Dick nor did
the approving officer dealing with his subdivision applications.

[296]     I am
completely satisfied that the City acted reasonably in rejecting Mr. Dick’s
applications for the reasons given by the City at those times.

[297]     The claim
of Mr. Dick and 611481 BC Ltd. as set out in Mr. Dick’s Statement of
Claim issued June 11, 2010, as well as his January 31, 2013 proposed changes
that are already covered in his Statement of Claim, are dismissed pursuant to
Rule 9-7 of the Rules of Court.

[298]     In
addition, if this application should be considered to be a petition under the Judicial
Review Procedure Act, R.S.B.C. 1996, c. 241, the relief Mr. Dick
and his company seek is refused.

[299]    
Mr. Dick will pay the costs of the action of the City under Appendix
B at Scale B.

“The
Honourable Mr. Justice Truscott”