Streamside Protection Regulation, Continued #338

By Gerry Neely
B.A. LL.B.

Column 337 ended with formula descriptions for establishing streamside protection areas (also referred to as “leave strips”). The formulas apply to both sides of the stream, so that it is possible to have setbacks as wide as 60 metres. The Streamside Protection Regulation does, however, introduce some flexibility.   Local governments have the authority to make allowances for circumstances that reduce their ability to establish setbacks based only upon the formulas.

Examples of circumstances include biophysical conditions, parcel sizes, existing or proposed roads, works and services or the existence of artificial controls on the high water mark. This may give a landowner whose land lies largely or wholly within the streamside protection area (SPA), some relief from the strict application of the formulas.

How does the Regulation affect the landowners’ use of their lands?
Existing buildings and their footprints are grandfathered under the Streamside Protection Regulation. Renovations to an existing building are not affected by the Regulation unless the building footprint is expanded. Activities that create impermeable surfaces on land within the SPA, that disturb fish habitat, may be subject to approval by local governments. Those activities include paving or asphalting driveways or adding new buildings.

Many owners of lands with streams may become aware of the implications of the Streamside Protection Regulation only when they decide to subdivide or develop their lands or when they require a building permit. Federal and provincial law may already affect the lands. If so, they are nonconforming in the same way as are lands in an area where zoning bylaws have changed land use. As such, even if a building is erected closer to a stream than SPA allows, landowners may continue the use and enjoyment of it.

Vegetation in the upland area within a SPA contributes to desirable fish habitat. Paragraph 3 of the Regulation requires a local government, when dealing with residential, commercial and industrial development, to protect streamside protection and enhancement areas.

The extent to which landowners can be prevented from using that part of their lands is unclear. There is no definition of “protection”, so we can’t say whether any activity that would damage vegetation is prohibited. For example, could a landowner be prevented from walking on the vegetation within the SPA or from continuing to use the area for barbeque/picnic recreation activities?

It is clear that landowners can’t be compelled to grow vegetation to support fish habitat. It is also clear that landowners can be prosecuted under the federal Fisheries Act for harmfully altering, disrupting or destroying fish habitat. It is probable that a judge interpreting the effect of this Regulation would not impose a blanket prohibition on all uses by landowners of the SPA, but only those uses that would materially damage vegetation with detrimental consequences to fish.

Activities such as tree cutting, soil removal and watercourse protection are subject also to approval by some local governments. Landowners intending to do work in streamside areas should contact their local government, the Ministry of Water, Land and Air Protection (responsible for the Streamside Protection Regulation) or the Department of Fisheries and Oceans for advice.

When is a ditch a stream?
A ditch is a stream only when it is defined as such under the Regulation, which complicates the decision of landowners as to whether they need advice. A Ministry of Water, Land and Air Protection discussion paper notes that ditches which are actually modified or channelized and provide important fish habitat, are streams. Ditches that provide temporary or seasonal flood control are not intended to fall within the Regulation. 

Are landowners entitled to compensation for SPA restrictions?
The effect of creating streamside protection by regulation is similar to regulation of land use through zoning bylaws, official community plans or subdivision and development requirements.  The Local Government Act and the Fish Protection Act (the responsibility of the Ministry of Sustainable Resource Management) both authorize local governments to create setbacks for streamside protection.

Judicial decisions deny compensation for a drop in property values resulting from a downzoning or from a restriction on land use. In a 1996 case, a Campbell River development permit required a 30-metre setback for fish protection. The owner of streamside property subject to the permit claimed that his land was “rendered of little value” and was “unsuitable for almost any purpose”.

The owner argued that this was expropriation without compensation. The claim was denied because the municipality had the authority to request the setback, the municipality did not receive any part of the property (for which compensation would have been ordered had it done so), and the owner was left with some uses for his property.

There are two circumstances upon which compensation is payable because of a deemed expropriation. The first is where the effect of a bylaw is to convert private land to a public purpose (Burnaby rezoned industrially zoned land to “parking”). The second is where landowners are deprived of all permitted uses of their lands (Port Coquitlam created a holding zone pending a decision as to a future course of action, effectively freezing all uses).

Cases such as these illustrate that a distinction is made between regulation and actual acquisition of an owner’s rights. It is evident that only a rare set of circumstances will lead to payment of compensation.

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The definitions referred to in Legally Speaking 337 are ambiguous. “Potential vegetation” exists if there is a reasonable ability for regeneration. Fish bearing stream means fish are present or “potentially present”.

What standards are there to measure the potential for vegetation to regenerate or for fish to repopulate streams? Who decides these standards - will it be done by regulation or by local government bylaw? If the latter, with how many differing standards will we end up?

A local government has slightly less than five years to establish a SPA and, until it does, the existing bylaws as well as the federal and provincial laws concerning fish and water will apply to subdivision and developments.

(Editor’s note:  In Legally Speaking 337 substitute “flows” for “flood” in item 3 of the Streamside Protection Regulation definitions.)

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