Diamond magnate’s attempt to block Kelowna development kiboshed by B.C.’s highest court

B.C.’s highest court has rejected a Kelowna diamond magnate’s latest attempt to shelve plans for a massive waterfront development in his neighbourhood.

Charles Fipke launched legal action against the City of Kelowna and Aqua Resort in an effort to stop a large multi-unit development from being built. In that lawsuit, he’d unsuccessfully argued that the overall size of the development site was improperly calculated using land that had been underwater for years.

The judge ruled that the city had acted reasonably and in accordance with the law and he also dismissed Fipke’s application for a judicial review of development permits granted by the City of Kelowna in 2021.

In the latter issue, Fipke argued that the city ignored legal constraints that prevented it from granting development permits.

“The issues turned on how to treat a part of Aqua’s originally surveyed property that had become submerged by Okanagan Lake. Aqua provided, to the City, licensed land surveyor’s opinions to the effect that Aqua still owned the land as it had become submerged due to avulsion,” Justice Susan Griffin wrote in a decision published Thursday.

“Aqua then, at the suggestion of the city, gave the submerged portion to the provincial Crown by filing a new subdivision plan marking the submerged portion as ‘return to Crown.’”

The city relied on one of its bylaws to treat the size of the property as the same as prior to the return to the Crown of the submerged portion.

When the matter came before a three-person panel in the court of appeal, Fipke had his appeal dismissed.

“The chambers judge identified and applied the correct standard of review, reasonableness. The city did not act outside the legal constraints of its (bylaw) when it considered in all the circumstances that the act of Aqua returning the portion to the Crown constituted a taking, by way of dedication to the Crown for public benefit, and it was not an abandonment by Aqua,” Griffin wrote.

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Griffin also said the city’s decision to grant the permits was reasonable and that it did not act outside of legal constraints.

At the time of Aqua’s dealing with it, the submerged land still belonged to Aqua because it had become submerged due to avulsion, even if there had been subsequent changes to the shoreline.