Riparian Areas Regulation – The Court’s First Consideration Of RAR In Yanke V. Salmon Arm
The Riparian Areas Regulation (the “RAR”) was established under the Fish Protection Act S.B.C. 1997 c.21 (the “FPA”), and came into force on March 31, 2005. RAR replaced the Streamside Protection Regulation (the “SPR/2001”), which was enacted under the FPA and came into effect in 2001. RAR was implemented with the purpose of protecting riparian areas from development so the areas can maintain natural features and conditions that support fish life.
Section 12 of the FPA permits the creation of policy directives through regulation for the protection and enhancement of riparian areas. If a policy directive is implemented, local government must include the directive in its zoning and land use bylaws or ensure local government has a comparable, or better, level of protection.
The definition of a “Riparian Assessment Area” in RAR includes a 30 meter strip from the high watermark of a watercourse, whether it usually contains water or not, a pond, lake, river, creek or brook. RAR restricts development within Riparian Assessment Areas except in accordance with the conditions set out in RAR.
To develop within a Riparian Assessment Area, a qualified environmental professional (a “QEP”) who must meet the qualifications set out in RAR, must prepare an assessment report on the potential impact of a proposed development in a Riparian Assessment Area. The assessment methods for the report are set out in RAR and must be followed when the QEP produces the report.
Section 4(2) of RAR sets out that a local government can permit a development to proceed if the local government notifies Ministry of Fisheries and Oceans Canada (“FOC”) and the Minister of the Environment (“MOE”) of the development proposal and provides an assessment report of a QEP indicating that if the development is implemented there will be no harmful alteration, disruption or destruction (“HADD”) of features or conditions that support fish life, if the development implements measures identified in the report.
If the QEP’s assessment report indicates there will be HADD, local government is only entitled under section 4(3) of RAR to approve or allow the development to proceed with the authorization of the FOC.
The Courts have for the first time considered RAR in the case of Yanke v. Salmon Arm. The case involved land owners who wished to build a house within the Riparian Assessment Area. A QEP provided an assessment report indicating that construction of the building with a 15 meter set-back would not create any HADD, and on the basis of that report the City of Salmon Arm approved the construction of the building.
However, Salmon Arm would not provide final approval for the building as it was under the belief that construction of the building with a 15 meter set-back also had to be approved by MOE and FOC. The Court found that the approval by the City of Salmon Arm was sufficient to permit the development of the building within the Riparian Assessment Area on two alternative basis, as follows:
1. A restrictive covenant had been registered in favour of Salmon Arm and the Department of Fisheries Canada against the land which established the requirements to protect the riparian area including a 15 meter set back. The restrictive covenant was found to create a streamside protection and enhancement area pursuant to SPR/2001. Section 8 of RAR provides that if streamside protection and enhancement areas were established under SPR/2001, they are deemed to meet the requirements of RAR and sections 4(2) and 4(3) of RAR therefore do not apply.
2. The assessment report of the QEP indicated there would be no HADD if the set-back was limited to 15 meters. Section 4(2) of RAR dealt with requirements of a non-HADD development and did not require approval by MOE or FOC. Although section 4(3) of RAR required approval by FOC if the assessment report indicated HADD would occur with the development, there was no HADD resulting from this development, and Mr. Yanke and the City of Salmon Arm did not require approval of the MOE or FOC.