Limits on Municipal Tree Protection, The Duty to Defend, and No Permit Demolition

We started by discussing a captivating case from Central Saanich, a family farm at the center of a contentious legal dispute over tree protection bylaws. As we delved deeper into the case, we questioned the extent of the Community Charter's power on municipalities and whether farming should be classified as 'development'. Understanding the limitations and restrictions of tree protection bylaws is crucial, as it can help property owners avoid unnecessary legal disputes.

Our exploration didn't stop there. We moved to Surrey, where we dissected two riveting cases involving property conversions. The first case highlighted the role of insurance companies in defending their insured during a civil claim. It underscored the necessity of the insured party's cooperation in the defence process and emphasized the insurance company's right to control the defence, given they bear the financial responsibility.

The second case presented a cautionary tale of a homeowner who attempted to convert a single-family home into a fourplex without obtaining the necessary permits. The repercussions were severe and served as a chilling reminder of the importance of adhering to building regulations. The consequences of failing to comply with such regulations can lead to drastic measures, such as an order for the destruction of the unpermitted structures.

Throughout our conversation with Mulligan, we emphasized the real-world implications of these legal issues. The laws and regulations governing tree protection and property conversions aren't abstract or remote concepts. They are rules that have a direct impact on our everyday lives, affecting everything from our living arrangements to our interactions with nature.

Our discussion underscored the necessity of understanding these laws, especially for property owners. Knowing the limitations of tree protection bylaws can prevent costly and time-consuming legal disputes. Similarly, understanding the consequences of failing to comply with building regulations can save property owners from harsh penalties, including the destruction of their property.

Overall, this episode serves as a reminder of the intricate, often challenging, nature of property law. It highlights the importance of seeking expert advice when navigating this complex field. Whether it's understanding the nuances of tree protection bylaws or the specifics of property conversions, legal professionals like Michael MUlligan provide invaluable guidance, shedding light on these complicated issues.

Stay tuned for future episodes where we continue to explore the intricate world of law and its impact on our daily lives. We promise it will be a rollercoaster ride through the world of law that you won't want to miss.

Follow this link for links to the cases discussed. 

Transcript

Adam Stirling: 0:00

It's time for our regular segment Legally Speaking with Michael Molligan Barrister and Slister with Molligan Defense Lawyers. Morning Michael, how we doing.

Michael Mulligan: 0:08

Hey, good morning, I'm doing great.

Adam Stirling: 0:09

It was good to be here. Some interesting topics on the show. It says here the BC Court of Appeal agrees that you cannot farm in a forest and dismisses Central Sandwich's appeal regarding their ability to enforce a tree protection bylaw. I know we've discussed this one in the past. What happened?

Michael Mulligan: 0:27

Indeed, I must say I love the fact there's no appellate authority for the proposition that you can't farm in a forest, and so this is a case, as you mentioned, it's out of Central Sandwich and it's a case involving a farm. It's a farm that's been in the same family since 1937. And the farm part of it was in the agricultural land reserve, but a large portion of the property was not in the agricultural land reserve, and back in 2020, the family that owned the farm started clearing trees from the portion of the property that was not in the agricultural land reserve so that they could expand their production of green and forage crops, including barley. As a result of increased demand, they want to make their farm bigger, right, and so they start cutting down these trees, and that engages Central Sandwich, who writes them a letter telling them they have to stop doing that, and then, ultimately, the municipality demands that they pay $422,000 as security pursuant to their tree protection bylaw and directs that the family has to replace 103 of the 108 trees that were removed. On that basis, the case winds up in court, with the municipality seeking an injunction and asking for this money and demanding the trees be replanted, and that led to a case which is now just resolved by the Court of Appeal, and the issue in the case involved what powers does a municipality have to restrict trees from getting cut down?

Michael Mulligan: 2:12

That's kind of a topical thing, and municipalities, as we know, are all of their power is delegated by the province to them. They have independent authority to do anything. And so you have to look at the provincial legislation that grants the municipality's authority to do something. And in BC we have this thing called the Community Charter and it sets out various powers that grants to the municipality, or delegates to them, various powers for a municipality which is incorporated under the Local Government Act. And so where you go and you're trying to figure out, can the municipality do this, you go to that and you would look at it and say, okay, well, what does it say the municipality can do?

Michael Mulligan: 2:56

And indeed there is a section of that Community Charter Section 50, that allows a municipality to restrict trees getting cut down. Now the trouble is it doesn't just say the municipality can restrict trees from getting cut down. That would be pretty broad. It has some restrictions on that, and the restrictions set out in the legislation include things like the municipality can't apply a tree protection bylaw to a number of specific places, like a place with a tree farm license. That kind of makes sense, right. It can't say you can't cut down your trees at your Christmas tree farm. That would be pretty oppressive.

Adam Stirling: 3:36

Yeah, I could see that one not going well.

Michael Mulligan: 3:39

No, other things like tree protection bylaws don't apply to a utility. So let's say, bc Hydro is trying to put up a hydro pole or something. The municipality can't stop them by a tree protection bylaw. And then the one which, and that makes sense as well, otherwise everyone would be just frozen and incapable of doing anything. We'd have no electricity, you couldn't put up power lines, we'd be in a state of paralysis if some little municipality was able to prevent that. So they're not.

Michael Mulligan: 4:10

Now the relevant section here. There's a part of the section 50, the community charter, which provides that municipal restrictions on cutting down trees do not apply if they would have the effect of preventing the uses permitted pursuant to a zoning bylaw. And they also don't apply if the tree bylaw, tree protection bylaw, would prevent the development to the density permitted under the applicable tree, applicable zoning. And finally, there are restrictions that you can't restrict. You can't use tree bylaws to prevent the development of a property in accordance with the way it's zoned. And last, and you can do it this, you can do it as a municipality, but you must then pay compensation for the reduction in market value or provide a different permit to permit development to the permitted density. And so the point there is this right, if you have a piece of property that's zoned, let's say, to build a single-family home, right, and it's got a bunch of saplings on it, right? I mean, some of the bylaws says no trees can be cut down, right, something like that. I mean, well, you just couldn't build a house there, right, if you have little saplings all over the place. You'd be paralyzed, and so that they cannot do that unless they effectively want to pay. In that case it would be the entire value of the property because you could do nothing with it right Now.

Michael Mulligan: 5:42

The reason this was controversial, the legal argument, was what the farmer and family family farm wanted to do was not to build a house on the portion of the property, or a barn or something. What they were wanting to do was to farm the property, right, they wanted to grow more barley, right. And so the municipality said well, no, no, no, we're quite free to stop you from doing that. That's not what development means. Development is just putting up a building. You're not putting up a building, you're trying to run a farm. We can stop you just fine. That's the legal argument that went to court and then now to the court of appeal, with the North Sannich arguing, the Proposal District of Central Sannich sorry, not North Sannich arguing that development just means building structures and so therefore the tree buyer law that stops you from growing more barley is fine. That's what they were arguing.

Michael Mulligan: 6:41

The conclusion from the court of appeal is essentially no. That interpretation is unreasonable and wrong and the court of appeal has upheld the decision made by the original Chambers judge. And they found that that narrow interpretation doesn't fly and is not reasonable and is not the law, and the municipality retreated to. It looks like a piece of a decision, one of those sort of slippery slope arguments. The municipality argued that well, if we can't stop trees being cut down for somebody to increase their farming capacity, that anyone could come along with a single family home and say they wish to have more lawn or they want to plant a garden there. Therefore they cut down all the trees on their property.

Michael Mulligan: 7:35

And the court of appeal said no, no, no, that's not what's meant by this. What is meant is that the restriction on the tree zoning or the tree protection bylaws in the community charter is to prevent a municipality from implementing a tree protection bylaw which would restrict the permitted use under the zoning bylaw and so in this case this property, both parts of it, both the part outside of the ALR, was zoned for farming, agricultural use, right, and so that's a different thing when the person says, look, this is zoned for agricultural use, I'm trying to take down these trees so I can maximize my agricultural use, and municipality cannot stop that unless they want to pay for the impact of what they've done, which is going to be a pretty substantial amount and, in fairness, so they should. Right, it's not the municipality's property, yeah, right. To the extent that the municipality wants to come along and start materially interfering with your ability to do something for which your property is expressly zoned. It's for a farm the people are trying to farm, yeah. To the extent that the municipality wants to come along and muck with that and say you can't farm on that part of it.

Michael Mulligan: 8:50

We like the aesthetics of the trees or whatever it might be.

Michael Mulligan: 8:53

It seems only fair that if you think there's a great public interest in that, that financial burden should fall on the municipality, right, and that's really what the court of appeal has determined here.

Michael Mulligan: 9:06

And that's a different thing from somebody saying I want to knock down that tree in the corner so I can make my lawn bigger, because the growing of a lawn isn't the permitted use of like a residential lot. Right, the permitted use of residential lot would be to build a house, and as long as the tree protection bylaw doesn't restrict your ability to build the house, the house, that's fine, right. But once the definition of development is not just a building, it is things like farming, and so we now have a clear decision from the court of appeal that the municipality has no authority to stop the farm development by restricting trees from being cut down. And, as the trial judge on the court of appeal has said, you can't farm in a forest. So that's the end of the argument for the district of Central Sandwich, and it will no doubt have application elsewhere now that that law has been clarified by the court of appeal.

Adam Stirling: 10:03

Michael Mulligan with Mulligan Defense Lawyers, legally speaking, will continue more right after this. All right back on the air here at CFAQ's 1070. Michael Mulligan with Mulligan Defense Lawyers as we continue legally speaking. Michael up next on the agenda an attempt to sue a lawyer, it says here, appointed by ICBC based on pleadings dismissed.

Michael Mulligan: 10:23

Yeah, there are a whole bunch of things wrapped up in this case that I think were worth commenting on, because it shines a light on sort of issues of who's in charge when you're getting sued for something and you've got insurance, and what are these pleadings, what's going on and what about things in them that might not be true. Well, those are really the key things here. And so that first issue about sort of who's in charge when you get sued for something when you've got insurance and this case was an ICBC case because it predated no fault insurance Now we're in the land of nobody's responsible. This predated that, and so there was an issue as to who's responsible for a car accident. Um, and the way that works and this would apply to other kinds of insurance as well like, let's say, you've got house insurance and, uh, you know something, as somebody trips on a uh I see spot and sues you, for example, right, something that might be covered by your home insurance. One of the things that you get as part of your insurance coverage is this concept of a duty to defend the claim. So, let's say, somebody wipes out on your sidewalk and sues you for their injured back at your home when you have home insurance. Well, in addition to the fact that your home insurance might pay that claim, if it is found to be meritorious, the insurance company would also be responsible for hiring a lawyer to defend the claim, and that's a pretty important part of the insurance, right? Otherwise, that could be a pretty expensive operation, uh, and so, uh, what happens is the insurance company in this case was ICBC hired a lawyer to defend the claim?

Michael Mulligan: 11:56

Uh, and in this case, the person who was one of the drivers who was being sued, right Um, had some disagreements with that lawyer in terms of how they were conducting the defense of the case, right, uh, and the uh argument. One of the arguments there was an interesting one, because that touches on that other concept there of this idea of what's in a notice of a civil claim or response to it. And the way that works is, if you're suing somebody, there's this thing which would be like the notice of the civil claim. It would set out why am I suing you? What do I say? You've done? Right, you know you've uh, crashed into the back of my car, or you, uh, you know, didn't, you know properly salt your sidewalk, or whatever it might be Right, and you said, all the details of who you're suing and why and why they say the damages are.

Michael Mulligan: 12:42

The other side then files a response to that and they might set out why they say they're not responsible or how they cleared their sidewalk properly or that they didn't hit you, whatever it might be, and the person who is being sued in this case she took issue with some of the things that the lawyer had listed in the response to the civil claim and often, if you look at what these one of these things if you're in the unfortunate position of ever being sued or suing somebody, um, often these things will set out a whole bunch of sort of possible things that uh, happened, like in the car accident example. Often they will say things like well, you person ran into me from behind and, uh, you weren't properly looking in front of you or you might have been messing with the stereo, or perhaps you were impaired. Something went wrong here because you crashed into the back of me inexplicably, right, um, and the woman who was being sued took issue with that and she said well, I don't think this person was drunk. I don't like that. You've listed here that they might be impaired, fred, she, she took the view that somehow that was lying or, uh, you know, accusing the person of something fraudulent, right? And so she wanted to be able to tell the lawyer you can't do that on my behalf, don't do that, you can't list that and tried suing over that and telling a person you can't do that and not wanting to cooperate with the lawyer and asking for a different one to be appointed. And ICBC said, no, you don't have control over that, on the basis that at the end of the day, if the claim is successful, icbc is going to have to pay the claim, right?

Michael Mulligan: 14:13

And the other thing is that in a civil claim like that, those two documents, like the notice of the claim and the response to it, they kind of set out the parameters of what this thing is all about, right? And if you don't allege something in there, then you're not permitted to ask about it or claim that that's what went on here, right? So if you were suing somebody for running into you back when you could do that and it wasn't free for all of no fault out there, you might say, well, you crashed into me from behind. I'm not necessarily sure why you did that, but perhaps you were not being attentive, or you weren't keeping a proper lookout, or maybe you were drunk, or perhaps you were fiddling with your stereo, I'm not sure. You didn't list them. And then you tried to ask about them, saying did you have anything to drink before you crashed into me? There'd be an objection. Well, hold on. You'd never even alleged that you can't ask about that, and so that's why, in those kinds of documents, things would be listed that may or may not have transpired, because the other side is in a state of imperfect knowledge about why did you hit me from behind, right? Or why was there a big blob of ice on the steps right, whether that you didn't clean it or that you were cleaned it poorly, or you who knows right. And so we get listed there, and it's not a matter of making some false claim, and that's why the perception of this woman was not a basis to sue the lawyer. It wasn't as if the lawyer was making some intentionally false claim about why the accident happened.

Michael Mulligan: 15:44

Those documents sort of set out the parameters of what's being claimed and what might be the reason for it, and so there wasn't anything improper about that. And then the other element is that that part of that duty to defend ultimately is that the insurance company. They have that duty, right. But that also means they have some control over what's going on. Because otherwise, if you were the insured person who is getting sued for you know somebody slipping on your steps if you were allowed to just say, well, let's just tell the person I feel bad for them, let's just say I was completely careless and let's pay them everything you're asking for, right? The insurance company, if you will hold on a minute, that's not what you're insured for, right? And so that's why the insurance company would have control over it and the person who's insured can't just say take that over the pleadings or go ahead and pay that person everything they're asking for.

Michael Mulligan: 16:31

And furthermore, when you're an insured person who's being where the insurance company is defending you, you also have an obligation to assist the insurance company, right, like when they ask the insurance company or their lawyer says okay, well, we're preparing to defend you in this slip and fall case. You know, did you clear the sidewalk? Did you put salt down? When did you do that? If you say no, no, no, no, I'm not helping you, right, the result of that can be well, that's fine. Then I guess you're not getting covered, right, you're on your own buddy, you've got to help, right.

Michael Mulligan: 17:03

And so in this case, the person being sued wasn't really the one in charge.

Michael Mulligan: 17:07

It's really was the insurance company, because they're the ones on the hook for it.

Michael Mulligan: 17:11

They've got to pay for the lawyer and you've got to help them.

Michael Mulligan: 17:14

And you don't have a, you don't have a right as an insured person to say no, I don't like what you're listing in there, or let's just pay them everything they're asking for, or give me another lawyer who will do what I want.

Michael Mulligan: 17:23

And that's because, at the end of the day, the money is coming out of the pocket of the insurance company, and so the claim against the lawyer, saying you were negligent, didn't do what I said you were going to do when you were committing fraud by saying the person might have been intoxicated, had no merit, and the attempt to sue the lawyer was to smith both at trial and then now by the court of appeal. But I thought the case we were talking about, because it has those important elements who would come up lots of times and people would often, I think, might have a reaction like this woman did, not knowing those what those things are, if you were to receive a notice of claim saying, hey, maybe you were drunk or you're tuning your radio or something, I think, well, that's outrageous. I wasn't drunk. It's not a claim that you were in as sort of an evidentiary thing, it's just sort of setting the parameters of what could be asked about to figure out why did you run into somebody or why was there a blob of ice on your steps.

Adam Stirling: 18:19

So that's the that's that one Interesting In the three and a half minutes we have left. This next one is fascinating because every so often we hear about controversies, like there was one in the West Shore recently, about what could happen if somebody attempted to have unpermitted work done on a residence to try to create an extra suite or something similar. I'm looking at this case in Surrey of a foreplex. Does that say ordered, destroyed?

Michael Mulligan: 18:43

Correct Wow Order for destruction. So the background of it and this is the second one I've seen of these cases out of Surrey recently and so there doesn't need to appear to be a trend and the background is that a fellow owned a single family home there and he decided to turn it into a foreplex by building an additional foundation out the back, walling it in, building a suite in the basement and renting out four different apartments. And the evidence was overwhelming that he was doing that. There was a complaint and the inspector showed up and saw them building the foundation. He said stop doing that. Then he came back and they were framing it. He said stop doing that. And then they came back again and they were putting in plumbing and he said stop doing that. And then he showed up again and they were saws and things were going on inside. He said stop doing that. And they wouldn't let him in and just kept doing it.

Michael Mulligan: 19:32

And then Surrey eventually went to court and got an injunction ordering the man to stop doing this. And he didn't stop doing it and he rented out all four units and then he was eventually found to be in contempt of court by not stopping and was fined ultimately $13,000 for being contempt of court for still not stopping. And so this recent decision was the city of Surrey going to court and asking for an order that the ban be first of all, get a permit to demolish it, ironically and then, within 60 days of getting the ordered permit, demolish the addition, decommission the secondary suite and return the thing to a single family home. And so that's what he's been ordered to do. The result of it, of course, is going to be the tenants are all going to get evicted, but that's the way it is.

Michael Mulligan: 20:25

And then the other thing which I thought was interesting when reading this I mean there are a couple of levels to it. Right, one is that, of course, people should be following bylaws that are in place about things, and the idea of ignoring just ignoring everything, including the adjunction telling you stop doing this, is really not on. We will have chaos in the world if people are just doing whatever they feel like. But oh, and I should also say this, it was interesting, the man's defense to it wasn't any evidence or claiming he didn't do it.

Michael Mulligan: 20:55

It was claiming he was unfairly targeted because many other people were doing the same thing. That's not going to work as a defense. Yeah, Now the other level of this. So he's going to destroy it. He'll find himself pretty quickly in jail for could be contempt again. But the other ironic thing about all of this is that we now have, of course, the province saying they're going to remove the authority of municipalities to stop people from building various things, including forplexes. So by the time this thing gets destroyed, it may well be not far off from when the man could go back and the municipality would be required to give them permission to rebuild it. And so I want to keep an eye on Surrey. At the moment, we'll get the tenants evicted and we'll destroy the permit free forplex, but it may very well be within a few months that you'd be able to get permission and build exactly that, exactly there. Michael Mulligan, what's going on in Surrey With Mulligan defense?

Adam Stirling: 21:50

lawyers. I learn new things every week on legally speaking. Thanks so much as always. Thanks so much. Have a great day. All right, you too.