Skip to main content

In This Volume

490 (1) Subject to this section, a local government may, by resolution, issue a development permit that does one or more of the following:

  • (a) varies or supplements a land use regulation bylaw or a bylaw under Division 11;
  • (b) includes requirements and conditions or sets standards under section 491;
  • (c) imposes conditions respecting the sequence and timing of construction.
  • (2) The authority under subsection (1) must be exercised only in accordance with the applicable guidelines specified under section 488 in an official community plan or zoning bylaw.
  • (3) A development permit must not
  • (a) vary the use or density of the land from that permitted in the bylaw except as authorized by section 491(3) or
  • (b) vary the application of a zoning bylaw in relation to residential rental tenure.
  • (4) A development permit must not vary a flood plain specification under section 524(3).
  • (5) If a local government delegates the power to issue a development permit under this section, the owner of land that is subject to the decision of the delegate is entitled to have the local government reconsider the matter.

1985-79-8; 1987-14-36; 1993-59-37; 1994-43-73, effective October 14, 1994 (B.C. Reg. 374/94); 1995-23-22, effective April 1, 1996 (B.C. Reg. 70/96); 1997-24-12, effective October 20, 1997 (B.C. Reg. 354/97); 1998-34-198, effective September 23, 1998 (B.C. Reg. 311/98); 1999-38-58, effective December 3, 1999 (B.C. Reg. 406/99); 2000-7-163, effective January 1, 2001 (B.C. Reg. 399/2000); 2003-52-390, effective January 1, 2004 (B.C. Reg. 465/2003); 2007-6-26; 2008-23-24; RSBC 2015-1-490, effective January 1, 2016 (B.C. Reg. 257/2015); 2018-26-6.


Local Government Reasonable to Put Faith in Professional Surveyors as to Avulsion

In Fipke v. Kelowna (City), 2023 BCCA 26, the appellant, Dr. Fipke, appealed from dismissal of his application for judicial review of two development permits the City of Kelowna had granted to the respondent neighbour, Aqua, for a large, multi-unit development property on the shore of Okanagan Lake.

Aqua’s land was identified in a plan registered in 1939 based on a survey conducted in 1938. The lakeshore had moved inland over the years. Aqua had provided, to the City, licensed land surveyor’s opinions to the effect that Aqua still owned the portion of the land that had become submerged because it was due to avulsion rather than erosion. Aqua then, at the suggestion of the City, gave the submerged portion to the provincial Crown by filing a new subdivision plan marking the submerged portion as “return to Crown”. The City relied on s. 1.8.1 of bylaw 8000 to treat the size of the property as the same as prior to the return to the Crown of the submerged portion. The City considered the submerged land as part of the land owned by Aqua for the purpose of satisfying a density calculation requirement imposed by bylaw 8000.

In the judicial review application, Dr. Fipke challenged the inclusion of the submerged land, saying it did not belong to Aqua because further recession of the shoreline suggested erosion following avulsion. Further, he said that while Aqua surrendered the land to the Province in the course of negotiations with the City, it was not the subject of a “taking” for public use by dedication, expropriation, or purchase, as required by s. 1.8.1 of the bylaw if it were to be included in the density calculation, because “taking” means “compulsory taking”.

Held: Appeal dismissed. On the correct standard of review, reasonableness, it was reasonable for the City to put its faith in professional surveyors who had investigated the matter and articulated reasoned conclusions. The City did not act outside legal constraints when it considered that the submerged portion still belonged to Aqua because it had become submerged due to avulsion, even if there had been subsequent changes to the shoreline. Further, the court said a “taking” is not necessarily the product of compulsion; accordingly, the City did not act outside the legal constraints of s. 1.8.1 when it considered in all the circumstances that the act of Aqua returning the portion to the Crown constituted a “taking”, by way of dedication to the Crown for public benefit, and it was not an abandonment by Aqua. The City’s decision to grant the permits was reasonable.


Regarding the filing of notices and permits, see s. 503 of the Act.