Kayaks and an ocean view may be the first things that come to mind when one thinks of Deep Cove. But what happens when the two collide in front of the Civil Resolution Tribunal?
The judicial body was recently called to settle a dispute between a Deep Cove Crescent townhouse strata and one of its owners who complained their neighbours’ kayak rack spoiled their ocean view.
Edward O’Brien and Luella O’Brien first complained to their strata in July 2019 after their neighbour installed a rack in their carport capable of holding three kayaks, according to a written ruling from the tribunal released May 26. The O’Briens alleged the strata failed to follow its own bylaws by allowing the rack to be built.
Strata council members visited the unit with the rack and wrote back to them saying they “generally agreed with the strata’s precedent of allowing small watercraft to be stored in carports ‘as a normal feature of life’ in the strata,” the ruling noted. They did, however, ask that the rack be redesigned so that it would be free-standing and not bolted into the carport.
In August, the O'Briens wrote again to say an engineer had inspected the kayak rack and found it was “very dangerous and unstable,” though they didn’t include a copy of an engineer’s report. In addition to being a fire and safety hazard, they also said it interfered with the use and enjoyment of their “daily view,” and threatened legal action if it was not removed.
In September, they wrote again demanding the “unsafe eyesore obstructive and dangerous structure” be removed, alleging it was affecting their health. They said they would seek $50,000 in damages if it was not removed, the tribunal documents show.
When they met for a strata meeting in October, the O'Briens noted the rigorous approval process they had to go through to get their deck built, which the kayak rack apparently did not require. They said they spent a lot of money every year beautifying their deck, which was wasted because of the presence of the kayak rack.
The strata sought legal advice the next month, the ruling stated, and wrote back to the O’Briens to say the rack was not an alteration to common property and that “views and lines of sight are not protected in law.”
The strata later decided to take the matter to the Civil Resolution Tribunal. Initially, the strata sought an order forcing the O’Briens to “stop complaining about the kayak rack” but later requested only that the tribunal declare valid the strata’s decision to approve the rack.
After reviewing the submissions from both parties, tribunal vice-chairman J. Garth Cambrey found there was nothing illegal about the way the rack had been approved.
Cambrey also found the rack doesn’t meet the legal definition of a “nuisance.”
“I accept the kayak rack, especially with stored kayaks, might impact the respondents’ ability to use and enjoy their deck, but I find that effect is not unreasonable, particularly in strata living,” he wrote. “In addition, the courts have held that blocking or changing a view is not a legal nuisance.”
Lastly, the tribunal ruled there was no evidence submitted to show the rack was a fire or general safety hazard.
Cambrey could not grant the strata's request to uphold their decision to approve the rack, however, because the Civil Resolution Tribunal does not have the power to make declaratory orders under the Strata Property Act. Only the B.C. Supreme Court could do that, he found.
“This decision confirms the strata’s decision to allow the installation of the kayak rack in the SL12 carport was reasonable and appropriate. However, given my finding that the tribunal does not have authority to issue declaratory orders, I make no specific order about the SL12 kayak rack installation.”
