THE DISPUTE WITH ISLANDS TRUST
A Land-Use Dispute Over Silva Bay's Existing Off-Site Well
For decades, the off-site well parcel and the Silva Bay waterfront were operated and transferred together, with the well serving as the waterfront's water source.
The dispute between Silva Bay and Islands Trust is sometimes described as a dispute about “water.” That is true in the sense that the redevelopment depends on water from an existing off-site well. But the court case itself was fundamentally a land-use and zoning dispute.
The Silva Bay waterfront and the well are located on separate parcels. The well is approximately 600 metres inland from the waterfront, and an existing water line runs from the well property to the Silva Bay waterfront. This arrangement was not created by the present owners for the proposed redevelopment.
The well was drilled in 1970 and has a long history of serving the Silva Bay waterfront. For substantial periods over the decades, the off-site well parcel and the waterfront properties were held and transferred together as part of the Silva Bay operation. Water from the well was pumped to storage facilities on the waterfront and then distributed to the various buildings and uses there. For many years, the off-site well was the sole water source for the Silva Bay waterfront operation.
That history is important. Silva Bay did not purchase an unrelated residential property and later decide to use its well to supply a new commercial development. The inland well parcel has long performed a specific supporting function for the waterfront operation by providing its water supply.
The legal problem arises because the two properties are separately zoned. Silva Bay accepts that the current zoning, considered on its own, does not permit a well on the residential parcel to supply a commercial operation on another property.
The disagreement was whether Silva Bay’s longstanding historical use of the well was nevertheless legally protected under provincial law as a lawful non-conforming use because that use began before the relevant zoning restriction and continued thereafter.
Silva Bay said it was. Islands Trust took the opposite legal position.
The dispute ultimately went to the Supreme Court of British Columbia. Silva Bay lost the case. We disagree with important parts of the decision and are appealing it.
At the same time, we are pursuing a practical zoning solution that could expressly permit the well to serve the waterfront under defined conditions, rather than leaving the future of the redevelopment dependent solely on the outcome of the appeal.
THE PHYSICAL SETTING
The Well and Water Infrastructure
THE WELL PARCEL
THE PUMPHOUSE
THE MARINA / WATERFRONT
HISTORY
A Short Timeline
Existing off-site well drilled
Well serves the Silva Bay waterfront through successive ownerships
Land-use dispute with Islands Trust arises
BC Supreme Court rules in favour of Islands Trust
Silva Bay is appealing while also pursuing a zoning solution
THE COURT CASE
Islands Trust has an important responsibility to administer and enforce Gabriola’s land-use bylaws. Silva Bay accepted that the current zoning, considered on its own, does not permit the off-site well to serve a commercial operation on another property. The disagreement was whether this longstanding historical use was nevertheless legally protected under provincial law as a lawful non-conforming use.
Silva Bay argued that it was. Islands Trust took the opposite legal position. This was an issue capable of differing legal interpretations, and ultimately the Supreme Court of British Columbia accepted Islands Trust’s position and dismissed Silva Bay’s claim.
We lost at trial and are appealing that decision.
The QUESTION BEFORE THE COURT
Could Silva Bay continue using the longstanding off-site well under the existing zoning and the law protecting historical uses?
THE COURT'S DECISION
The Court accepted Islands Trust’s legal position. Silva Bay lost at trial and is appealing.
WHAT THE COURT DID NOT DECIDE
The Court did not find that the well was environmentally unsafe, that responsible use would harm neighbouring wells, or that the proposed redevelopment was inappropriate for Gabriola.
The case concerned whether the existing zoning and historical-use rules permitted Silva Bay to continue using the off-site well.
The important point for the community is what the case was, and was not, about.
Islands Trust was aware that access to a viable water source was fundamental to the redevelopment and that, if its legal interpretation prevailed, Silva Bay would be prevented from using the off-site well under the existing zoning. The practical consequence was therefore clear: unless another lawful water solution could be found, the redevelopment would be seriously impeded.
That is why, while pursuing the appeal, we are also asking Islands Trust to consider a different path: a carefully regulated zoning amendment that would expressly permit measured use of the existing well while protecting neighbouring residents and Gabriola’s groundwater.
That question was not decided by the Court. It remains open to Islands Trust and the community now.
