The Riparian Dissonance: Regulating Land Development Near Streams

Bull Housser Tupper LLP – Environmental Case Comment – August 2011:

The BC Court of Appeal recently issued its decision in Yanke v. Salmon Arm (City), 2011 BCCA 309, interpreting the Riparian Areas Regulation (the “RAR”), which came into force in 2004.  InYanke, the Court of Appeal concluded that certain provincial policies and practices were inconsistent with the RAR and thus unenforceable.

The Court of Appeal further declared that the RAR entrusts a qualified environmental professional, typically retained by a developer, to delineate a streamside protection and enhancement area.  If a qualified environmental professional’s report indicates that a proposed development in the streamside protection and enhancement area would not result in harmful alteration, disruption or destruction of fish habitat, a local government may approve such a development without the authorization of the Department of Fisheries and Oceans (the “DFO”).

The RAR

The RAR was enacted pursuant to BC’s Fish Protection Act as a regulation in respect of the protection and enhancement of riparian areas.  The RAR addresses two key areas: (a) the “riparian assessment area”, being a set area of 30 to 60 meters from the high water mark; and (b) the “streamside protection and enhancement area” (commonly referred to as “SPEA”), being an area which exerts influence on the stream and the size of which is determined by a qualified environmental professional.

The crux of the RAR, set out in section 4, is that a local government can approve development within the riparian assessment area if the qualified environmental professional certifies either (a) if the development proceeds as proposed, that there would be no harmful alteration, disruption or destruction of fish habitat, or (b) if a SPEA is protected from the development through specific measures, that there would be no harmful alteration, disruption or destruction of fish habitat.

If the qualified environmental professional indicates that a proposed development would result in harm to fish habitat, the development can only proceed with approval from the DFO.

The Guidebook

The BC Ministry of Environment set out its interpretation of the RAR in the Riparian Areas Regulation and Implementation Guide (the “Guidebook”) in which the Ministry took the position that any development intrusion into a SPEA must be approved by the DFO, unless the intrusion is minimal and irrespective of whether the intrusion results in harmful alteration, disruption and destruction of fish habitat.

Mr. Yanke’s Situation

Mr. Yanke owned a lot in Salmon Arm that fell within the riparian assessment area (as defined under the RAR) surrounding Shuswap Lake.  Mr. Yanke wanted to build a house on the lot approximately 15 meters from the high water mark of Shuswap Lake.

Mr. Yanke retained a qualified environmental professional to assess the effect of the proposed building.  The qualified environmental professional indicated that the SPEA in the relevant area was 26 meters.  However, the qualified environmental professional’s report indicated that no harm to fish habitat would ensue if the house was built 15 meters from the high water mark – within the boundaries of the SPEA.

The issue that arose between Mr. Yanke and the City of Salmon Arm and that was subsequently considered by the courts was whether the City of Salmon Arm could approve the development of the house 15 meters from the high water mark without authorization by the DFO.

The BC Supreme Court Decision

The trial judge declared that Mr. Yanke could build his house 15 meters from the high water mark without DFO approval.  The trial judge based his decision primarily on the fact that there was a restrictive covenant registered on title to Mr. Yanke’s lot in favour of Salmon Arm establishing a set back of 15 meters.  This covenant was registered to mitigate potential flooding.  However, according to the trial judge, the covenant had the effect of establishing a SPEA in accordance with the predecessor legislation to the RAR – the Streamside Protection Regulation.

The trial judge further stated that the Guidebook was inconsistent with the RAR and, irrespective of the Guidebook, the RAR did not mandate that the DFO must approve a development within a SPEA that does not result in harm to fish habitat.

BC Court of Appeal Decision

The Court of Appeal unequivocally supported the BC Supreme Court’s interpretation of the RAR and strongly criticised the BC Ministry for establishing practices that had no basis in the legislation.  The Court of Appeal described the legislative scheme under the RAR as follows:

• a SPEA is delineated by a qualified environmental professional in an assessment report using the assessment methods established in a schedule to the RAR;
• whether or not a proposed development can proceed in the riparian assessment area (including the SPEA) without DFO approval depends on whether it is anticipated that the development would cause harmful alteration, disruption or destruction of fish habitat;
• the elaborate regulatory framework developed in the Guidebook with respect to adjusting the SPEA, irrespective of harm to fish habitat, has no basis in law; and
• if the qualified environmental professional certifies that the assessment methods were followed in the report, the local government is not required to go behind such certification and question the report.

Interestingly, the Court of Appeal overruled the conclusion of the trial judge that the restrictive covenant establishing a setback for Mr. Yanke’s lot as a flood prevention mechanism had the effect of establishing the SPEA for the lot.  The covenant, according to the Court of Appeal, did not reflect the City of Salmon Arm’s duties and powers under the RAR.

Conclusion

The decision in Yanke is of significant importance as it delineates the responsibilities of the three levels of government involved in regulating development of land in riparian areas and serves a reminder that government policies are not always consistent with the laws they endeavour to explain.

This comment was originally posted on the Bull Housser Tupper web site: Bull Housser Tupper.