By / Liam M Robertson, Kuhn LLP
As can be expected, parents are naturally concerned about the safety of their children. In the recent case of White Rock (City) v Mashiana, 2023 BCSC 2352, two homeowners attempted to encroach upon City property under the guise of parental concern.
The Facts
The Homeowners in this case own a residence located in White Rock, BC, the lands to the west of which are owned by the City.
The Homeowners purchased their home in 2020 and recently thereafter, erected a series of retaining walls, stairs, fencing, a gravel area, and a concrete pad for parking. The Homeowners never obtained any permits from the City for the construction of these structures.
When the City became aware of this issue in 2022, the City sent the Homeowners a letter requesting that the retaining wall (which had been constructed on top of a sanitary main) and the gravel (which had covered the storm sewer manhole) be removed. Rather than removing these structures, the Homeowners “doubled down” and installed additional structures, including fencing and gates.
The City sent several additional letters to the homeowners requesting that the structures be removed. However, the Homeowners did not respond to these letters.
The Homeowners contend that they installed the retaining walls and fencing out of concern for the safety of their young children due to a steep slope on the west side of their property.
The homeowners did not dispute they erected structures on City land without a permit. However, they argued that there was no harm caused by their structures and that the Court ought to exercise its discretion to refuse the City’s request.
The Decision
The Judge found that the evidence was overwhelming that the Homeowners have erected structures on City property without any authorization. There was no legal basis for the encroachments on City land. No permits were applied for, no permits were granted, and the City made several requests for the Homeowners to demolish and remove the structures once the City was made aware of them.
Instead of complying with these demands, the Homeowners built additional structures to increase the size of their home by simply taking over the City’s property.
The evidence is that the Homeowners were made aware that their structures were unauthorized, but continued to put up more structures. The City acted promptly to advise the Homeowners of the encroachments once it was made aware of the structures.
The reasons put forth by the Homeowners as to why they put up the structures do not absolve them of liability. If the Homeowners had concerns about safety, they ought to have brought this to the attention of the City.
Lessons Learned
- If you try to encroach upon City property and build permanent or semi-permanent structures, the costs associated with constructing these structures may be lost in the event the City is given authorization to remove the structures; and
- Safety concerns will likely not allow you to, unbeknownst to the City, encroach upon City property.▪
This article was written by Liam M. Robertson, lawyer, who practices in construction law with the law firm of Kuhn LLP. This article is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have any questions or comments about this case or other construction law matters, please contact us at 604-864-8877 (Abbotsford) or 604-684-8668 (Vancouver).
