A B.C. judge has tossed out a Kelowna man’s bid to hold on to a dock he built on his property.
Clark Smith’s home at 3130 Shayler Court is on a rocky outcropping on the eastern shore of Okanagan Lake.
He was served trespass notices in 2010 and 2012 and he petitioned for them to be set aside, citing he applied for permits but because of long wait times, he went ahead and built the dock.
But his petition was dismissed because he took too long to actually do something about his trespass notices and even check his permit status.
“He was aware that his dock was unauthorized well before he received a trespass totice in 2012. He did not properly dispute that earlier trespass notice,” court documents stated.
“He also did not seek judicial review of the decisions made in July 2010 and May 2012 that underlie both trespass notices until September 2019.”
In June 2010, Smith built a dock worth $173,00 in front of the property even though he had no permit to do so. Court documents said long delays for dock approvals were common at the time, so Smith relied on “unofficial policy,” historic practices and unattributed reassurances.
Smith needed two permits for the dock, one under the Water Act and Water Regulation and another under the Land Act.
Even so, he was supposed to wait for 45 days for the DFO to contact him to see if his dock would disturb fish spawning and habitat areas but he didn’t.
Because his petition for the trespass notices to be set aside was struck down, this means the province might seize the expensive dock.
“Mr. Smith’s delay in seeking judicial review cannot be justified … he was fully aware that his dock was not authorized. He elected to lay low and was rewarded with … the use of his unauthorized dock,” court documents said.
“Having made that choice and reaped those benefits, he now has to live with the consequences.”
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