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Supreme Court dismisses action against Nanaimo Regional District

A Nanaimo landowner was denied his bid to have a restrictive covenant on his property declared invalid by the B.C. Supreme Court last week.

The legal action, filed against the Nanaimo Regional District of Nanaimo, follows an injunction obtained by the RDN in April barring the landowner, David Bruce Buck, from further removal of vegetation from an 30 metre portion of his Jingle Pot Road property.

On Nov. 2, the court dismissed his case and has ordered the resident to pay court costs to the regional district.

According to court documents obtained regarding the injunction, Buck alleged the covenant to be invalid because it is not in compliance with the Farm Practices Protection (Right to Farm) Act and the Agricultural Land Commission Act section 22 (2).

"The [official] reasons aren't yet in the public record, but the court disagreed with the rationale behind it," said Tom Armet, RDN's manager of building, bylaw and emergency planning services, of the legal action. "It's now up to the regional district to provide the courts with the costs incurred and the courts will decide on the amount of cost that will be awarded back to the taxpayers."

Armet added that the regional district is not aware of any active farming occurring on the property.

The portion of land in question is located in the area known as Shady Mile, a popular destination for local residents to place their pumpkins after Halloween is over. Given the environmental sensitivity of the land, which included second growth trees, the RDN registered a covenant on the property when the Benson Meadows subdivision was created in 2005, Armet said.

In 2009, Buck offered a donation of the covenant area to be used as parkland to the RDN in exchange for their support with a subdivision application filed with the Agricultural Land Commission, after his first application was denied. However, the portion of land did not fit the district's criteria for parkland, nor was it in keeping with the Official Community Plan policies, and the offer was therefore declined, Armet explained.

"The RDN does not provide support for ALC applications, just technical information relating to zoning and OCP policies for the ALC to consider," he said.

In 2011, the RDN responded to two complaints of a 'substantial amount of trees' being cut in the covenant area by the property owner, and issued a cease-and-desist order.

The property is currently subject to the court injunction and the regional district is seeking further action to have the property remediated or compensated for damages occurred.

"That means somebody is going to have to pay the cost of returning that portion of the property back to a natural state again," Armet said.

Attempts to reach Buck before press deadline were unsuccessful.

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