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In This Volume

56 (1) For the purposes of this section:

  • “construction” means
  • (a) the new construction of a building or other structure, or
  • (b) the structural alteration of or addition to an existing building or other structure, but does not include the repair of an existing building or other structure;
  • “qualified professional” means
  • (a) a professional engineer, or
  • (b) a professional geoscientist
  • with experience or training in geotechnical study and geohazard assessments.
  • (2) If
  • (a) a bylaw regulating the construction of buildings or other structures is in effect, and
  • (b) a building inspector considers that construction would be on land that is subject to or is likely to be subject to flooding, mud flows, debris flows, debris torrents, erosion, land slip, rockfalls, subsidence or avalanche,
  • the building inspector may require the owner of land to provide the building inspector with a report certified by a qualified professional that the land may be used safely for the use intended.
  • (3) If a qualified professional determines that the land may not be used safely for the use intended, a building inspector must not issue a building permit.
  • (4) A building inspector may issue a building permit in accordance with subsection (5) if a qualified professional certifies that the land may be used safely for the use intended if the land is used in accordance with the conditions specified in the professional’s report.
  • (5) A building permit under subsection (4) may only be issued on the following conditions:
  • (a) the owner of the land covenants with the municipality to use the land only in the manner certified by the qualified professional as enabling the safe use of the land for the use intended;
  • (b) the covenant contains conditions respecting reimbursement by the owner for any expenses that may be incurred by the municipality as a result of a breach of a covenant under paragraph (a);
  • (c) the covenant is registered under section 219 of the Land Title Act.
  • (6) If a building inspector is authorized to issue a building permit under subsection (4) but refuses to do so, the council may, on application of the owner, direct the building inspector to issue the building permit subject to the requirements of subsection (5).

2003-26-56, effective January 1, 2004 (B.C. Reg. 443/2003); 2003-52-537, effective January 1, 2004 (B.C. Reg. 465/2003).


Restrictive Covenants

The powers conferred on building inspectors under s. 56(4) and (5) of the Community Charter are permissive rather than mandatory. The underlying purpose of the power to require the giving of a restrictive covenant and the registration of it in the land title office is to give notice to the owner of land, or subsequent owners, of municipal concerns as to the stability of the land for purposes of construction. It is a method of warning a landowner of the danger of building on the property and the safeguards required before permission to build will be granted. There is no requirement in the legislation that the restrictive covenant be monitored or enforced by the building inspector. Consequently, there is no common law duty of care on a municipality to enforce the discretionary powers contained in a restrictive covenant (Century Holdings Ltd. v. Delta (District), 1994 CanLII 2254 (BC CA), reversing (1992), 2 C.L.R. (2d) 186 (S.C.), leave to appeal refused [1994] S.C.C.A. No. 293 (QL)).