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2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach the defendants pertain to equipment. [129] I turn to address whether the renovations undertaken by the defendants constituted a structural addition pursuant to s. 911(5), which provides as follows: (5). A structural alteration or addition, except one that is required by an enactment or permitted by a board of variance under section 901 (2), must not be made in or to a building or other structure while the non-conforming use is continued in all or any part of it. (emphasis added) [130] Mr. Leach testified in his examination for discovery that the renovations to the Property were undertaken due to a leaky roof, which was replaced, and that replacement and upgrades were required to meet modern building codes. As referred to earlier, a bathroom was added and the house in total was expanded by 33 square feet. Two interior walls and the underlying foundations were changed. Mr. Leach deposed as follows: 28. The renovation and refurbishment included updated electrical wiring to meet current code requirements, plumbing upgrades, replacement of all mechanical HVAC components, utility upgrades and general finishing. The replacements and upgrades all need to be completed to modern codes for building, electrical and plumbing. [131] The defendants’ uncontradicted evidence is that the replacement of the roof was required by the applicable building codes and that the replacement and upgrades were required for compliance with the modern electrical, plumbing, and building codes. The evidence does not show, and I cannot accept, that the addition of a new bathroom constitutes either a replacement or an upgrade that was required to meet current code requirements. The evidence does not show that this structural addition or alteration was permitted by a board of variance. I conclude, therefore, that the addition of a new bathroom constitutes a structural alteration or addition which is prohibited by the provisions of s. 911(5). [132] In the result, with respect to the 1995 Zoning Bylaw the defendants have failed to establish that they meet the criteria for lawful non-conforming use. [133] In view of my findings, it is not necessary to address the Regional District’s submission that the defendants did not continue the operation of the Vacation Rentals, either after the renovations or following the commencement of these proceedings. CONCLUSION [134] The Regional District has failed to show that the defendants are utilizing the Property in breach of the 2008 Zoning Bylaw. As a result, I need not consider the issue of the appropriate remedy. The Regional District’s application is therefore dismissed. COSTS [135] Counsel have requested the opportunity to make submissions on costs following the delivery of these reasons for judgment. If the parties are unable to resolve the issue of costs, they may reserve a date through http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach Supreme Court Scheduling to address the issue. _________ “Dardi J.”______________ Dardi, J. http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
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