Authority to regulate ≠ authority to prohibit | Sara Blake

By Sara Blake

Law360 Canada (March 9, 2023, 1:44 PM EST) --
Sara Blake
Sara Blake
It has been a long time since any court reminded us that statutory authority to regulate an activity does not grant authority to prohibit it. In Cowichan Valley (Regional District) v. Wilson 2023 BCCA 25, the court set aside a district bylaw that prohibited a development in a location where development was to be regulated by a municipality pursuant to rules prescribed under statute.

The petitioners had applied to the district for a development permit to build a residence on lakeside land that was within a “streamside protection enhancement area,” as defined by provincial law. The purpose of the restriction is to protect fish habitat.

The protection of fish habitat is governed by overlapping federal, provincial and municipal laws. British Columbia law requires the landowner to deliver to all three governments a report of a “Qualified Environmental Professional” prepared in accordance with prescribed methodology and opining that the development as proposed, or as it might be modified by the imposition of conditions, will result in no harmful alteration, disruption or destruction of the conditions that support fish habitat. If the development is not opposed by the federal or provincial government, the decision whether to permit the development is made by the municipality.

The district refused to approve the development primarily because its bylaw prescribed an absolute prohibition on development in a streamside protection enhancement area, even if the expert opines that the development will not be harmful to conditions that support fish habitat. The Court of Appeal upheld the judge’s order striking down this absolute prohibition in the bylaw as invalid. It ruled that it is not the intention of the legislature to prohibit all development in streamside protection enhancement areas; rather, it is the intention of the legislature to empower local governments to prohibit development that would be harmful to conditions that support fish habitat.

The court also rejected the district’s argument that a municipality may pass bylaws that provide greater protection to fish habitat than that provided by provincial or federal law, ruling that the legislative scheme is protective, not prohibitive — it aims to prevent harm to fish habitat while allowing development that is not harmful. The law does not allow the municipality to alter the balance between these two aims; that is, to operationalize a philosophical approach to the protection of fish habitat that is at odds with the harm-based approach that lies at the core of the provincial scheme.

The court does not cite or discuss the Supreme Court of Canada decision in 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town) 2001 SCC 40, which upheld a municipal bylaw that imposed stricter environmental regulation than that imposed by federal and provincial laws. The Hudson bylaw prohibited the use of pesticides that had federal regulatory approval. It was upheld because it was not an absolute prohibition on pesticide use. It listed exemptions to the prohibition, which had the effect of permitting pesticide uses that were not purely aesthetic.

The Court of Appeal in Wilson commented that the district’s bylaw was “curiously worded.” After stating the prohibition the bylaw said, “and the owner will be required to implement a plan for protecting the [streamside protection enhancement area] over the long term through measures to be implemented as a condition of the development permit.” Was this a poorly drafted attempt by the district to make a bylaw similar to that upheld in Hudson?

Ultimately, the petitioner’s judicial review was dismissed because the district’s second reason to refuse a development permit was reasonable; specifically, the expert had not followed the methodologies prescribed by provincial law.

Sara Blake is the author of Administrative Law in Canada, 7th edition, LexisNexis Canada. Her practice is restricted to clients who exercise statutory and regulatory powers.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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