Sitting on your dock in the bay? Maybe not.
In the past few years, the Ministry of Forest, Lands and Natural Resources has directed additional resources towards reviewing and enforcing the rules and regulations associated with the use and construction of docks, retaining walls and other structures along the shoreline.
As a result, waterfront property owners throughout the Okanagan-Shuswap are finding out that they don’t “own” their dock or waterfront deck and have far fewer rights than they otherwise believed they had.
Waterfront owners do not own the foreshore – this is land reserved to the Province by legislation. The “foreshore” is an area up to the present natural boundary, which is generally speaking the high water mark. All docks and many other common shoreline structures will make use of the foreshore. However, the precise determination of the present natural boundary can be difficult and owners should not rely on their own perception of where the high water mark is.
As the Province owns the foreshore, the Province is entitled to regulate the use of the foreshore. A property owner who wants to build a dock or other structure that encroaches on or over the foreshore must first obtain permission from the Province. In the past, this permission was generally in the form of a 10 year “license”. Today, it is referred to as a “specific permission”. Actual construction must conform to guidelines, including the Private Moorage Guidelines, established by the Province (and sometimes other levels of government). The guidelines have become more restrictive.
At the end of a 10 year license period, the homeowner does not continue to “own” the dock or have any rights over the foreshore established by that use. The owner must reapply for permission and could be ordered to remove or substantially change the dock.
As a practical (but not guaranteed to be permanent) matter, to date, if a homeowner has a dock (or other structure) that complied with the guidelines when it was built, the Province is not ordering it to be removed even if it does not comply with the current, more restrictive, guidelines. The more restrictive guidelines will apply when the dock has to be re-built.
If, however, the old dock (or other structure) was not compliant with the license or guidelines when it was built, an owner cannot obtain a specific permission to permit ongoing use and the Province is issuing Notices of Trespass for the offending structures and requiring removal.
Unfortunately a significant number of docks or structures were not built in conformity with the guidelines in place at the time. It appears that due to an absence of resources to inspect and enforce the guidelines, some owners or companies simply built docks and other structures (including retaining walls and shoreline decks) in the belief that they would never be caught or, if caught, they wouldn’t be ordered to remove the offending structures.
Adding to the problem, many properties were subsequently sold and new purchasers may not have been made aware that there could be problems with the dock and waterfront structures they were purchasing. Depending on the nature of the property in question, the waterfront structure – in particular retaining walls and shoreline decks – may have been integral to the value the purchaser was willing to pay for the property.
What all owners of waterfront property are finding out is that ignorance of the law – or being an innocent subsequent purchaser – is not, by itself, going to assist them with a non-conforming dock or structure. They will have to remove it or find some other way to approach the problem.
That being said, the Province is open to discussion and will allow some time to investigage the problem. It is therefore important to review in detail the past construction, as well as the old licensing and current guidelines. Applications can be made for more extensive rights in the foreshore, although they are hard to get approved. The assistance of land surveyors and legal counsel may, depending on the facts, allow homeowners to save all or some of the potentially offending structures. However, it is a complicated and difficult process and does require help from professionals.
If you own, or plan on purchasing, waterfront property in the Okanagan-Shuswap, you may want to seek immediate advice on the nature of water access and foreshore use permitted under the regulations.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.