The City of Victoria says derelicts and live-aboard vessels must be removed from the Gorge Waterway by May 7, 2018, following a BC Supreme Court ruling on Monday.
The court ruled on Monday that the city has the authority to regulate the waterway. It was previously under federal jurisdiction only. The city was also seeking an injunction that would require owners of abandoned or derelict vessels to move their boats. Owners would also have to remove illegally moored docks.
“Today’s judgment confirms that the city’s zoning regulations for the Gorge Waterway do not intrude on federal jurisdiction over navigation and shipping and that they represent a reasonable balance between the municipality’s role in regulating land use and boaters’ rights to occasionally anchor,” City of Victoria lawyer Tom Zworski said in a statement.
In May 2016, changes were made to the city’s Zoning Regulation Bylaw that limited long-term mooring to a maximum of 48 hours and not more than 72-hours in a 30-day period. According to the city, the changes regulated the use of the waterway for recreation without restricting navigation, prohibited live-aboard use and storage and vessels and addressed the negative impacts that “unregulated marine activities have on the marine environment and Victoria residents.”
Then in November of last year, the city sought an injunction to remove 17 boats and four docks out of a section of the Gorge Waterway. It was contested by boat owner Barry Zimmerman on behalf of the group in the area north of the Selkirk Trestle and adjacent to Banfield Park.
The hearing ran for two-and-a-half days. Zworski said a municipal bylaw should decide the issue while Brian O’Reilly, a lawyer for one of the boat owners, said that navigation and shipping came under federal control.
B.C. Supreme Court Justice Peter Voith also said in the judgment that while the respondents argued that the public hearing that led to the bylaw was unfair and that there was considerable opposition to the bylaw, the “time to have raised such concerns has come and gone.”
The bylaw is an example of land-use planning that alters the character of an area or community within the city. Such examples are common,” Voith said.
“Neighbourhoods are, for better or worse, often transformed as local governments make land-use planning decisions under the authority that is provided to them. Often these planning
decisions are strongly opposed because they change the character and use of both local communities and of areas in circumstances where those uses have been in place for a long time.”
The city said vessel and dock owners must remove their property from the Gorge Waterway by May 7, 2018.
“It is the city’s expectation that owners will respect the court order and comply with the deadline to remove their vessels and property from the area,” said Zworski.
Outreach services will be offered by the city to those living aboard vessels that cannot be moved in order to help them find alternate housing.
“Some of these individuals have kept their vessels in the Gorge Waterway for a very long time. For some, the area has been their home. The Gorge Waterway also provides unusually good winter
moorage,” Voith said in the judgment. “While I accept that there are other places and other marinas that the respondents and others will now have to moor their vessels I consider it reasonable
to provide them with sufficient time to make these arrangements.”
The BC Supreme Court also recognized that the right to anchor does not extend to the permanent or semi-permanent occupation of public space for private purposes. This was addressed in a case between the District of West Kelowna and a man who had moored his houseboat on Okanagan Lake and in another regarding the constitutionality of mooring restrictions related to how long a vessel could be anchored in False Creek in Vancouver
According to the judgement, there is a common law right to navigation, which includes the incidental right to anchor. However, it is not a right to anchor or moor permanently “but it must be exercised reasonably as determined by the circumstances at the time of anchoring, such as weather, loading or unloading of the vessel or the need for repairs to the vessel. The right to anchor, therefore, contemplates the right to do so for a reasonable time, for a reasonable purpose.”