Decision Date: April 28, 2011

Panel: David Searle, CM, QC

Keywords:  Water Act – s. 9(1); approval; riparian rights; breakwater; foreshore; property boundary; costs

[Ed. Note: An Addendum to the Reasons for Decision released April 28. 2011 is appended in this document.]

Daniel Sapergia and Vyvian Burton appealed the decision of the Assistant Regional Water Manager, Ministry of Environment (the “Ministry”), refusing to amend an approval issued under the Water Act.

The original approval was issued to Mr. Sapergia in July 2008.  It allowed him to do certain work on the shoreline of Okanagan Lake, including removing a retaining wall in front of the Appellants’ property and a breakwater and willow tree built into the foreshore of an adjacent property owned by GDW Property Development Corporation (“GDW”).  The willow is growing on the breakwater, which was built on the Crown-owned foreshore without authorization over 30 years ago, by previous owners.  GDW was not notified of the approval, and became aware of it only after GDW’s tenant observed Mr. Sapergia attempting to kill the willow tree with a chainsaw.  Following a complaint by GDW that it was not notified of the approval, the Assistant Regional Water Manager amended the approval by ordering that all work, except for the willow’s removal by a certified arborist, stop until further notice.  The Assistant Regional Water Manager then invited submissions from both parties.  After reviewing the submissions, the Assistant Regional Water Manager issued a second amendment that deleted the permission to remove the breakwater unless support was obtained from GDW.

The Appellants applied for a further amendment to the approval, based on their proposal to remove the breakwater in front of GDW’s property and infill the foreshore in front of GDW’s property.  The Assistant Regional Water Manager refused that application on the basis that the proposal would likely cause erosion of the foreshore in front of GDW’s property, and the infilling would likely be contrary to the Fisheries Act.

In the appeal, the Appellants submitted that the breakwater is an environmental and aesthetic eyesore, and is dangerous and falling down.  They also argued that the breakwater was partially located on their property, and as such, it infringed their riparian right of full access to their property.  They requested that the Board order the City of Vernon to pay the Appellants’ appeal costs.

The Board found that the breakwater does not infringe the Appellants’ riparian right of full access to their property.  The Board held that the Appellants’ property line should be determined by drawing a line perpendicular to the general trend of the shoreline, and on that basis, no part of the breakwater is in front of the Appellants’ property.  Rather, the entire breakwater fronts GDW’s property.

The Board also found that the Appellants’ plans to redevelop their property, in accordance with the City of Vernon’s development requirements for shoreline areas, required removal of the retaining wall in front of their property only if it was geotechnically feasible, and that removing the retaining wall did not depend on removal of the breakwater.  Further, based on the evidence, the Board concluded that the breakwater was not dangerous or falling down, and that removing the breakwater would cause erosion of GDW’s property and the Appellants’ property.

Finally, the Board concluded that, although naturalization of the shoreline is in the best interests of the environment, the riparian rights and interests of GDW must be taken into account when issuing an approval in this case, and GDW’s rights would be threatened by removal of the breakwater and willow tree.  Regarding the tree, the Board accepted the evidence of GDW’s expert that it would be best to wait until the end of summer 2011 to assess whether the tree would survive.  On that basis, the Board ordered that the tree would remain in place until an expert in plant health advises the Assistant Regional Water Manager by the end of summer 2011 whether the tree will recover.

Accordingly, the appeal was dismissed, and the Appellants’ application for costs against the City of Vernon was denied.

On June 29, 2011, the Board issued an addendum to its decision.  The addendum addressed a request by GDW that the Board order the Appellants to pay GDW’s costs associated with the appeal.  The Board found that there were no special circumstances to warrant an order that the Appellants pay GDW’s appeal costs.  The Board found that GDW’s submissions in support of its request for costs mainly related to the Appellants’ actions or inactions before the appeal was filed, rather than during the appeal process.  Accordingly, the application for costs was denied.