The City of Surrey has lost a petition in B.C. Supreme Court in New Westminster against a Surrey property owner the city argued had contravened the city’s building bylaw.
The city asked Justice Terry Schultes for a declaration to that end and to order an injunction to address the contraventions alleged against Amandeep Singh Kallu, related to an addition and enclosed deck he constructed on his property in Surrey.
The City of Surrey maintained the construction was done without necessary building permits. An injunction would have required Kallu to secure a permit to demolish the structures that he built, Schultes noted in his reasons for judgment, posted Feb. 28.
The court heard Kallu obtained a permit to build a house on his property on 130 Street in January 2020 which he says was completed the following year. But according to the city, this permit didn’t include the “offending” structures and there was no allowable room for them to be built under the zoning bylaw. The large addition is connected to the back of the house at ground level.
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Schultes noted the city maintains what was before him was a “clear case of a long-standing, direct contravention of the building bylaw, and there is no reasonable prospect of it being remedied by a subsequent approval. This is both because it exceeds what is permitted under the applicable zoning, and because its compliance with the building requirements, particularly in respect to safety, cannot now be verified.”
Kallu’s counsel argued the city’s petition should be dismissed due to a lack of probative evidence as the affidavits it submitted to the court that the construction was unauthorized were “either based on hearsay” or are “based on general statements that are unsupported by actual documentation of what was authorized, in contrast to what was actually built.
“Crucially in relation to the latter, his counsel points out that the plans that were authorized pursuant to the building permit are, for the most part, not part of the record,” Schultes noted.
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“The difficulty in this case,” the judge decided, “is that the key witnesses on behalf of the city all derive their knowledge of the extent to which the building on the respondent’s property deviates from what has been authorized from reviewing records by someone else, including the building permit itself” which did not set out limitations on what was authorized, and the “one drawing of the rear of the property, which contains a hand-drawn indication of the enclosure and a City of Surrey stamp whose author and origins are unknown.
“What this means is that the resourceful efforts of the city’s counsel to contrast the drawing to the offending construction fall short of providing the required proof, because the provenance of the drawing is unknown and has not been properly proven,” Schultes explained.
“Without admissible evidence before the court defining the extent of what was authorized, the context within such an inference might properly be drawn is absent.”
“I also do not think this is an appropriate case to grant the city an adjournment to remedy these deficiencies in its evidence,” the judge concluded. “Parties in an adversarial process must generally put their best foot forward in presenting the evidence on which they seek to rely. In absence of a compelling reason for an initial deficiency, they will not be given an opportunity to resubmit the evidence in admissible form.”