A B.C. couple that excavated their crawl space and converted it into a secondary suite, in violation of a municipal bylaw, was recently ordered to restore their home to its original condition.
In 1994 the couple built a two-storey house with a crawl space on a lot they owned in Burnaby. The lot was zoned for single-family homes with a maximum floor area of 2,400 square feet. The house built on the lot was just under the maximum permitted floor area. In 1995 the owners excavated part of the crawl space for a suite, resulting in the floor to ceiling height being increased from 4 feet to 8 feet, and increasing the floor area of the home by about 700 square feet.
After the City found out about the excavation, the owners applied for a building permit, which was refused. An application for a variance was also refused, and in 1997 the city began legal action against the owners to force them to restore the crawl space. The trial judge found in favour of the City. The owners appealed to the B.C. Court of Appeal.
The owners’ main defence was that the City didn’t prosecute thousands of owners of illegal suites, but only those that it received a complaint about. They argued that by ignoring the other illegal suites and proceeding only against the defendants because a complaint was received, the City was violating their right to equality under the Charter of Rights.
In essence the defendants’ position was that the City should not be permitted to enforce its bylaws unless it had a system in place for enforcing all breaches of its bylaws.
The Court of Appeal dismissed this argument, comparing it to a motorist ticketed for speeding arguing that the ticket should be ruled invalid because other motorists have driven over the speed limit without being issued tickets.
Finally, the court refused to exercise its discretion to refuse to make the order. Restoring the crawl space would require the defendants to spend a considerable sum of money. The court weighed the public interest of enforcing the bylaw against the hardship the order would impose on the defendants.
Given that the defendants knowingly and deliberately flouted the bylaw for their own benefit, the court ordered that they restore the crawl space to its original condition. This case illustrates the danger for homeowners who attempt to circumvent local bylaws. The courts may not be sympathetic to them if they are prosecuted.