Protecting Waterfront Land from Erosion

By Del Elgersma.

Two recent court decisions in Fonseca v. Gabriola Island Local Trust Committee affect the rights of waterfront property owners to take steps to protect their land from erosion.  The result is that the “ancient common law right” to take steps to prevent erosion is now limited by all applicable local government regulations, such as those governing construction of new structures.

BACKGROUND

  • On one side in this court case was Mr. and Mrs. Fonseca (the “Fonsecas”), who owned waterfront property on Mudge Island.  On the other side was the Gabriola Island Local Trust Committee (the “Committee”), which is the local government with jurisdiction over their property.
  • Under its powers under the Local Government Act, the Committee had a bylaw prohibiting any structure within 30 meters of the sea.
  • Over the years the Fonsecas built a concrete boat ramp, and various other structures along the shoreline, including a deck, fences and two seawalls.  They did not obtain the Committee’s approval under the bylaw.
  • In 2012 a neighbour complained to the Committee about the Fonseca’s structures. The Committee took enforcement action against the Fonsecas under its bylaw, requiring that they remove the structures.

COURT DECISIONS

  • Justice Masuhara ordered the Fonsecas to remove a deck and fences, but not the seawalls.  The seawalls were saved because their purpose was to prevent erosion.  The judge exempted the seawalls because he held that the old common law right of a waterfront landowner to protect their property from erosion had priority over the Committee’s bylaw.
  • The decision was reversed on appeal. The Court of Appeal found that the bylaw had priority over the common law right, and ordered the Fonsecas to remove the seawalls.  In jurisdictions where a municipal bylaw regulates the construction of a seawall, the Court of Appeal limited the common law right to disputes between neighbouring land owners.  For example, the court quoted from a previous case that where “a landowner acts bona fide and does no more than is reasonably and honestly necessary for the protection of his property, then an adjoining land owner who suffers damage as a result has no claim”.  However, the ability to exercise this right is subject to municipal regulation.

OUR COMMENT

The right to prevent erosion is very important, because once land is lost to erosion, it cannot be reclaimed.  It becomes part of the foreshore and is owned by the Crown.  In an era of rising sea levels, waterfront properties that historically did not suffer from erosion will increasingly see it happening.

The old common law right is one of a group of rights of owners of waterfront property called “riparian rights” (Technically, riparian rights only apply to flowing water such as rivers, but the term is commonly applied to all bodies of water).  The right to prevent erosion is just the latest of these rights to be overtaken (the legal term is “abrogated”) by government legislation.

Two riparian rights that still apply in British Columbia are:  right of accretion (ownership of naturally deposited material that has taken on the characteristics of the uplands), and right of ingress/egress (access to and from navigable waters).

The Provincial Government has published a paper stating that “British Columbia recognizes the right of upland property owners to protect their land from erosion… to install protective structures on their own land; but they require the consent of the Crown to extend any structures below the natural boundary.” This would appear to uphold the right of owners to install seawalls.

However, the Fonseca case means that the right of local governments to regulate/prohibit seawalls (also granted to them by the Provincial Government) takes precedence over the owners’ right to prevent erosion.

Unless the Provincial Government changes the Local Government Act to modify the effects of this case, which is unlikely, the right of waterfront property owners to prevent erosion will be subject to bylaws of the relevant local government.  If you are a waterfront property owner concerned about erosion, you should check with your local government to determine if it has a bylaw that regulates the construction of seawalls.  If your local government does not currently have such a bylaw and you are concerned about future erosion, consider constructing a seawall before your local government adopts such a bylaw.

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