Case Summary: City’s unreasonable decision to void a building permit on the basis that no construction activities had occurred
The petitioner’s building permits were declared void by the City of Richmond on the basis that it performed no construction activities for a period of time, as it was required to under the Bylaw pursuant to which the permits were issued. However, the petitioner had undertaken significant excavation, soil densification and preload activities in order to prepare the site for construction of the residence, but no actual building construction had started. The City said these site preparation and preload steps were not construction activities within the meaning of the Bylaw. The court disagreed and quashed the decision.
Administrative law – Decisions reviewed – Municipal boards – By-laws – Building permits – Agricultural Land Reserve – Judicial review – Legislative compliance – Evidence, admissibility – Standard of review – Reasonableness
Minster Enterprises Ltd. v. Richmond (City),  B.C.J. No. 495, 2020 BCSC 455, British Columbia Supreme Court, March 30, 2020, Crerar J.
The petitioner owned property in the City of Richmond (the “City”) located in the Agricultural Land Reserve. It planned to build a large, 15,006 square-foot, two-storey, single family residential house on the property. The property was located in an area of moist and amorphous soil. As such, the petitioner was required to take a number of preliminary soil densification steps before it was able to commence construction of the residence.
The petitioner engaged a geotechnical engineer to provide recommendations to prepare the site for building and to address the risk the soil would sink under the weight of the proposed residence. A number of “site preparation and preload” steps were recommended by the geotechnical engineer.
On September 17, 2017, the City granted three building permits and a site service permit to the petitioner pursuant to the City’s Building Regulation Bylaw No. 7320, 2002 (the “Bylaw”). Each of the permits stated at the top: “Expires: March 18, 2018 (if no construction activity)”.
In October 2017, the petitioner engaged contractors to provide excavation and backfill services for the project. Weather delayed the work until February 2018. The contractors placed permanent structural fill in the building footprint excavation. Compaction of the fill also was undertaken. Preload was then placed on top of the structural fill. The preload sat until September 2018.
On March 14, 2018, a few days before the permits were to expire if “no construction activities” had occurred, the petitioner wrote to the City seeking an extension of the permits, which was granted. The amended permits said: “Expires: September 17, 2018 (if no construction activity)”. The City did not say whether the work that had been performed to date by the petition constituted “construction activity” under the Bylaw.
In September 2018, the petitioner’s geotechnical engineer recommended that the preload be left in place past the stated revised permit expiry date of September 17, 2018. The petitioner again wrote to the City seeking an extension. After some back and forth with the petitioner (taking the petitioner past the September 17, 2018 date), including a City official visiting the site, the City advised the petitioner had not undertaken any “construction activity” within the meaning of the Bylaw. Accordingly, the permits were void and a new building permit was required. No reasons were provided to substantiate the decision.
The issue before the court on judicial review was whether it was reasonable for the City to have concluded that none of the activities performed by the petitioner fell within the definition of “construction”, such that no “construction”, as defined, had occurred during the lifespan of the permits making them void.
The City’s position was that the placement of preload did not constitute construction activity as defined in the Bylaw. The City said the Bylaw only applies to construction of a building or structure, and not to preliminary site preparation. The petitioner, on the other hand, argued that the plain meaning and definition of “construction” clearly encompassed the activities performed by the petitioner at the property – excavation, placement of permanent structural fill and preloading the site.
The court agreed with the petitioner. Even applying the deferential standard, the decision was unreasonable. The court held that all of the activities performed by the petitioner were “necessary steps in the construction process” and were expressly and implicitly contemplated in the issuance of the building permits to the petitioner. The Bylaw defined construction as: “to build, erect, install, repair, alter, add, enlarge, move, locate, relocate, reconstruct, demolish, remove, excavate or shore”. The court noted the extreme broadness of this definition. No exceptions or carveouts were provided for in the Bylaw. The court observed that nothing in the definition limited the work to building of the residence, as the City tried to argue.
Further, the court looked to the City’s other bylaws – in particular, the Soil Removal and Fill Deposit Bylaw – that expressly anticipated soil densification process will occur after the issuance of a building permit. As such, it made no sense that these activities would not constitute construction activities within the meaning of the building permit.
Finally, the court put little weight on a Bulletin issued by the City in 2018, which tried to retroactively clarify the issue. The Bulletin suggested that preload did not constitute construction for the purpose of the building permit. The court observed that policies (the Bulletin) was not law and could not be used to undermine the Bylaw. Put simply, the City could not override a reasonable interpretation of the Bylaw through an unreasonable policy issued retroactively.
In the end, the court found the City’s decision was unreasonable. Rather than remitting the matter back for reconsideration, the Court said its decision was determinative of the matter. The court quashed the City’s decision and ordered that the petitioner’s permits remained valid and in full force and effect.
This case was digested by Adam R. Way, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Adam R. Way at firstname.lastname@example.org.