Updated: August 7, 2013
The District of West Kelowna received notice August 6, 2013 that the Supreme Court of BC has ruled that the municipality was within its legal right to order the removal of moored houseboats from Gellatly Bay in July 2010, and that a houseboat owner in question breached the provisions of the District’s zoning regulations as well as the District’s Licence of Occupation covering Gellatly Bay.
The municipality received the decision from Honourable Madam Justice Beames from the Supreme Court of BC in Kelowna August 6, 2013, following a lengthy civil dispute with one houseboat owner regarding moorage of vessels in West Kelowna.
The court decided that temporary moorage is permissible so long as it is tied to active recreational use of the waters fronting West Kelowna; however, this will not conflict with the municipality’s practical approach to enforcement of the bylaw and licence concerning permanent moorage.
The District of West Kelowna must consider if it intends to pursue recovery of legal costs from the defendant.
Shortly after incorporation, the new municipality received concerns from residents regarding 13 houseboats mooring in Gellatly Bay. Between February 2009 and October 2009, West Kelowna Council worked to create and adopt a W1 Zone – Water Use Recreational to define appropriate uses of waters fronting District property, and in early 2010 worked with Westbank First Nation to develop a Joint Management Agreement for Gellatly Bay and received a Licence of Occupation from the Province of British Columbia for Gellatly Bay. The licence entitles the District, as owner of the land abutting a portion of Gellatly Bay, to enforce the uses spelled out in the W1 Zone.
In June and July 2010 the District began enforcement of the W1 zone and the Licence of Occupation, and provided notice to houseboat owners to move their boats and permanent mooring buoys from Gellatly Bay.
The validity of the Licence of Occupation and W1 Zone were challenged by one houseboat owner soon after the District began enforcement action on all houseboats moored in Gellatly Bay.
LICENCE OF OCCUPATION AND W1 ZONE
The District of West Kelowna holds a Licence of Occupation (LOC) from the Integrated Land Management Bureau (ILMB) of the BC Ministry of Forests, Lands and Natural Resource Operations. The licence covers the portion of Gellatly Bay directly abutting municipal property. The LOC and a W1 Water Use - Recreational Zone establish appropriate uses for the bay. This zoning allows temporary moorage and prohibits moorage of floating residential vessels.
JOINT MANAGEMENT AGREEMENT WITH WFN
On June 22, the District of West Kelowna and Westbank First Nation announced the signing of a Joint Management Agreement for Gellatly Bay. Both governments have agreed to respect each other’s jurisdiction and interest in the protection of Okanagan Lake, its foreshore and Gellatly Bay in particular. By signing the binding Joint Management Agreement, both Councils have committed that management of Gellatly Bay will be carried out through the Joint Management Committee established under the agreement. The Joint Management Committee will be comprised of two representatives from each government. The committee will consider and recommend policies regarding the public and private use of Gellatly Bay, as stipulated in the W1 Zone.