The Right To Build: A Prima Facie Right

In the recent decision of Turney v. Langley (Township), 2016 BCSC 1099, Chief Justice Hinkson ruled on a building permit dispute between a landowner, Albert James Turney, and the Township of Langley. Mr. Turney purchased a 7.5-acre property in the Township. He planned to live on the property and operate a hay farm.

There was an existing barn on the property that Mr. Turney planned on using to store hay bales and raise chickens and ducks. Mr. Turney decided that the barn was not large enough for these purposes so he commenced work on an extension. Mr. Turney wrongly believed that a building permit was not required given that the property was on an agricultural reserve and he had farm status.

As work proceeded the Township learned of the project and attended at the property to perform an inspection. The Township found that the existing accessory buildings on the property already exceeded the maximum allowable square footage. As a result, a stop work order was made and Mr. Turney was instructed to remove the extension. Mr. Turney was also told that if the violation was not rectified the Township may bring a court proceeding to obtain an order to remove the extension. In addition, until the matter was rectified, a notification would be placed on the property's tax information sheet, which "may negatively affect insurance, refinancing and sale of the [property]".

In an effort to rectify matters, Mr. Turney submitted a building permit application for the extension. However, the Township rejected the application. In communicating its decision, the Township advised that its inspection of the property revealed that the existing accessory building was not being used for farm purposes, that "little farming appears to be taking place on the property", and that the proposed extension was not necessary for farming on the property.

Unsatisfied with the result, Mr. Turney brought a petition seeking an order that the building application complied with the applicable zoning bylaws and that the Township be ordered to issue the building permit.

Mr. Justice Hinkson reviewed the relevant legislative scheme, which provided the Township with authority to make zoning by-laws. Specifically, section 479 of the Local Government Act (LGA) gave the Township authority to enact zoning bylaws, regulating, among other things, the "size and dimensions of buildings and other structure on the land." However, the Township's right to make such by-laws was limited by s. 481(2) of...