Canada: Case Commentary: Issuance Of Building Permit For Construction Of Residential/commercial Strata "unreasonable" Without Involvement Of Architect

Introduction

In the recent case of Architectural Institute of British Columbia v. Langford (City), the British Columbia Supreme Court conducted a judicial review of the issuance of a building permit for the construction of a residential/commercial strata complex in the City of Langford (the "City"), British Columbia. The project did not involve an architect; the designs and drawings were completed by a designer. The Architectural Institute of British Columbia ("AIBC") sought a declaration that the issuance of the building permit was unreasonable because the provisions of the Architects Act, (the "Act") required the involvement of an architect.

Statutory Requirements

The AIBC enforces the provisions of the Act respecting illegal practice. Subsection 27(2) of the Act prohibits persons from practising architecture unless they are registered to do so under the Act. The Act contains exceptions, including that section 27(2) does not prevent:

(h) a person from advising on, planning, designing or supervising the erection, alteration or repair of a building other than

...

(viii) any other building in excess of 470 m² gross area, being the aggregate area of all floors.

There was no dispute that the building in issue exceeded 470 m² in gross area. There was no dispute that the Act required the involvement of an architect for the project and that there was no such architect involved.

The City's Senior Building Inspector acknowledged that the Act required the involvement of an architect. However, he took the position that the City of Langford, Bylaw No. 1160, Building Bylaw (2008) (the "Building Bylaw") only conferred authority upon the City to enforce the British Columbia Building Code and not the Act.

Prior to the commencement of the judicial review proceedings, the AIBC wrote to the City expressing its view that the decision to issue a building permit for the project without having determined that the drawings for the building complied with the Act was unreasonable. The AIBC requested the City to provide a written commitment that it would confirm compliance with the Act in its permitting process in the future.

In its response to the AIBC, the City acknowledged that the Act is arguably an "enactment respecting health or safety". As such the Building Bylaw permits the City to refuse to issue a building permit where the proposed work does not comply with an enactment respecting health or safety. However, the City took the position that this power is discretionary and that building officials are not required under the City's Building Bylaw to take the Act into account when considering building permit applications. According to the City, it is sufficient that it reviews applications for compliance with the BC Building Code.

This disagreement between the AIBC and the City led to the judicial review proceedings.

On the judicial review, the AIBC adduced evidence that this issue has arisen in other local governments and that there does not appear to be a uniform approach. While the City of Vancouver and the City of Surrey insist plans be prepared by an architect when the Act requires one, other local governments, such as the City of Kamloops and City of Salmon Arm, do not.

Building Inspector's Decision to Issue Building Permit was "Unreasonable"

The Court concluded that the Building Inspector's consideration of only the Building Bylaw and Part 9 of the Building Code to reach a conclusion that a building permit should be issued was unreasonable. The Building Inspector failed to consider whether the "size or complexity" of the building warranted the involvement of an architect when a provincial statute (i.e. the Act) states that it would be unlawful for a non-architect to design a building of that size.

The Court noted that the Building Code is a regulation under the Building Act and, as such, it cannot take precedence over the Act, a statute.

The Court concluded that the Building Inspector's decision was flawed in the same way that the lack of consideration of the Act under the Building Bylaw was flawed. In exercising discretion under the Building Bylaw, the Building Inspector failed to take into account a relevant factor, namely the requirements of the Act. The Building Inspector's decision to issue the building permit without requiring the involvement of an architect was unreasonable given the size and complexity of the building and the legal constraints imposed by the Building Bylaw, s. 2.3.6.1 and the Act .

Conclusion

Although the building was completed by the time AIBC sought judicial review, it argued that the Court's decision would have significant practical benefit by providing guidance to municipal officials exercising their permitting powers. The AIBC stated that it has no way of knowing when an unlicensed person prepares and submits drawings in support of the building permit application. Thus, in the absence of a declaration, the problem that arose in this case will continue to arise. The Court accepted this reasoning and issued the declaration.

In news reports following the issuance of the Court's Reasons for Judgment, the City's mayor has stated that the City does not intend to appeal the decision. Practically speaking, the decision may affect the cost of construction projects as architects will be required rather than designers.

The decision clarifies the intersection of the Act with the municipal building permitting process in British Columbia. The takeaway for design consultants is that they must ensure a project's compliance, not only with the Building Code requirements, but also the Act.

Originally published 8 June 2020

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