A concrete seawall built to prevent erosion on a property on Driftwood Drive on Mudge Island. (Islands Trust image)

A concrete seawall built to prevent erosion on a property on Driftwood Drive on Mudge Island. (Islands Trust image)

Appeal Court says Mudge Island homeowners’ seawall has to go

Court decides right to guard against erosion isn’t a ‘privileged’ property right

Islands Trust has won its appeal case against Mudge Island homeowners who built a seawall to try to prevent erosion on their property.

A B.C. Appeal Court decision Jan. 22 overturned a B.C. Supreme Court decision from 2018 and found that a concrete seawall built more than a decade ago on a property on Driftwood Drive contravenes a land-use bylaw and must be removed.

The Appeal Court found that the supreme court judge “erred in his approach to the riparian right to protect one’s property from erosion caused by the inroads of the sea … conferring on the riparian right a privileged status, not shared by other types of property rights.”

Peter Luckham, Islands Trust council chairman, said in a press release that the trust is very pleased to have won the case as part of its efforts to protect island shoreline.

“The ability of local governments to prohibit seawalls and other shoreline armouring is critical to achieving environmental protection objectives, as well as to ensuring the beauty and scenic values of shoreline areas,” noted the press release.

The Appeal Court judgment also included a cross-appeal, in which the property owners argued that a non-compliant deck had actually been modified into a permitted walkway, but the court determined that that structure is “objectively a deck.”

The court said Islands Trust should bear its own costs of the appeal since it “did in certain respects re-cast [its] argument,” but not its costs related to the cross-appeal.

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editor@nanaimobulletin.com

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