In 1954 a residential development called Lynburn Estates was created in Departure Bay, Nanaimo. When the lots were built, a building scheme was placed on the entire development which stated that Lynburn Estates cannot be used for commercial purposes and cannot be subdivided. A building scheme binds buyers of the lots and their successors in title.
In 1995, Brooks Landing acquired 2190 Highland Blvd (Lot 72) of Lynburn Estates. In 2009, Brooks Landing purchased 2180 Highland Blvd (Lot 71) at the corner of Montrose Avenue. Brooks Landing applied to have the building scheme struck down in order that they be allowed to build a medical centre on the two lots.
In 2010, the Supreme Court of BC rejected Brooks Landing’s application to drop the building scheme. The judge said 2180 Highland Blvd cannot be used for commercial purposes as this would be incompatible with the surrounding residential neighbourhood.
In my view, the Building Scheme continues to have practical advantages to the respondents and to the owners of other lots it covers. While it may be that trucks use Montrose from time to time leaving the Shopping Centre, it is clear the residents continue to enjoy the residential nature of their neighbourhood. Despite its proximity to Highway 19A and the Shopping Centre, the neighbourhood has retained a residential character; the Building Scheme is to be credited, as least in part, for this.
Brooks Landing appealed the judge’s decision on the grounds that the residential neighbourhood building scheme was “obsolete.” The BC Court of Appeal rejected their case.
Now, Brooks Landing has asked the City of Nanaimo for a portion of Highland Boulevard to be given to them in order that 2180 and 2190 Highland Blvd can be “squared off.”
At the September 10, 2012 council meeting, Fred Taylor said according to the staff report, the intent is to add the portion of the roadway with 2180 and 2190 Highland Boulevard in order for Brooks Landing to have a large enough area for a liquor store/medical centre.
In response to Mr. Taylor’s presentation, Ted Swabey said that there have been several Lynburn Estate lots on Departure Bay Road that have been recently released from the building scheme which will allow those lots to be subdivided.
“It all depends on how the application is heard and what judge you have. Council is within its rights to authorize development that is contrary to a building scheme. That’s our legal opinion.” Andrew Tucker said “that the City swore affidavits in relation to the court action Mr.Taylor is referring to and we are fully advised of the court’s decision…”
At the October 1st Council meeting, Mr.Taylor said that he had obtained a Freedom of Information request and it was discovered that no such affidavits existed.
The motion to dispose of a portion of Highland Boulevard to Brooks Landing passed first reading.
Whose side is the City of Nanaimo on?
Supreme Court of BC case 2010 BCSC 1624: http://www.courts.gov.bc.ca/jdb-txt/SC/10/16/2010BCSC1624.htm
Appeal Court of BC case 2011 BCCA 447: http://www.courts.gov.bc.ca/jdb-txt/CA/11/04/2011BCCA0447.htm