In a ruling that was released this week, Justice L.S. Marchand went into great detail about the case, which saw Clark Ken Smith of Kelowna petitioning a decision from B.C.’s Ministry of Forests, Lands and Natural Resources that called for his dock to be removed.
According to the decision, the dock was built at 3130 Shayler Court at a cost of $173,000 in June 2010.
Marchand called Smith’s home “beautiful,” noting it was located on a rocky outcropping of Okanagan Lake.
The decision said Smith hired Burton Marine Pile Driving Inc., in October 2009 to construct the dock. However, since the dock was going to be built in an area identified as critical for spawning kokanee, Smith also hired a biologist to conduct an environmental assessment.
In April of 2010, Smith applied for the two authorizations he needed: one under the Water Act and the other under the Land Act. His application was supported by an environmental assessment.
Marchand wrote that “in 2010, long delays in approval of docks were common,” but that on June 11, Smith went ahead and had the dock constructed anyway, and that he relied on “a provision under the Water Regulation Act, historic practices, unattributed reassurances and unofficial policy.”
On that same day, Front Counter BC wrote to Smith indicating that his application had been accepted, but that the acceptance did not mean he had the authorization to build the dock.
On May 15, 2012, Smith was informed that his dock application had been disallowed on the basis that its construction would likely cause harm to a sensitive fish habitat.
Then, on June 14, Smith was issued a trespass notice under the Land Act, and was told he had to remove his dock by Sept. 1, 2012, but that he had 30 days to dispute the notice.
On July 28, Smith said he submitted a dispute of sorts, emailing two B.C. MLAs, but the ministry said it had no record of receiving Smith’s dispute.
Fast forward six years to Aug. 21, 2018, following no enforcement by the Ministry, and Smith’s dock comes under scrutiny after ministry staff noticed work being done on the dock.
A follow-up by ministry staff showed that the dock was not properly authorized, resulting in a second trespass notice that was issued on Sept. 7.
In weighing both sides of the decision, Marchand noted that there was no dispute by Smith to obtain authorization to lawfully construct the dock.
Marchand also touched on lengthy delays by both the Ministry and Smith in trying to get legal authorization, but stated “nevertheless, Mr. Smith went about things in an entirely inappropriate way,” and later added, “Mr. Smith has never had the right to build a dock.”
In summing up his decision, Marchand said, “he elected to lay low and was rewarded with seven additional years of the use of his unauthorized dock.
“Having made that choice and reaped those benefits, he now has to live with the consequences.”