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Municipal Legal Liability – Weathering Climate Change

By Devin Buchanan (posts) and Kaitlyn Cumming (posts)

Introduction

Global warming has altered the world climate to the extent that we are now seeing the real effects of climate change. More rain and flooding, larger forest fires and rising sea levels are products of climate change. These trends can have an important impact on risk management for Local Governments. This paper will address how climate change may affect the risk management policies of Local Governments by reviewing the types of legal liability that Local Governments can expect to face and by providing some guidance for risk mitigation.

This paper is separated into three categories of climate change effects: increased storm events and flooding, forest fires, and sea level rise. Each section will highlight a different aspect of the legal landscape. Negligence and nuisance will be discussed in the context of flooding, administrative law challenges will be discussed in the context of forest fires, and options to immunize local governments from liability will be canvassed in the context of sea level rise. It is important to note that each legal concept discussed applies to varying degrees to each climate change effect described, and that this paper does not contain an exhaustive list of all potential losses or areas of liability.

Storm Events & Flooding

Factual Context

  1. Climate change is resulting in greater precipitation in some regions. Warmer temperatures lead to greater evaporation which results in more moisture in the atmosphere.
  2. Annual average temperatures have increased by 0.6°C on the coast, by 1.1°C in the interior and by 1.7°C in northern BC over the past century. Temperatures are expected to rise by 1.4°C to 3.7°C by mid-century.
  3. As a result, in BC annual rainfall is on the rise, and more extreme rainfall events are occurring with greater frequency. “Pineapple express” rainfall events have the potential to cause widespread flooding in the lower mainland, and high-intensity storm cells have caused flash flooding in otherwise arid regions of the southern interior.
  4. Scientists predict there will be between 5% and 25% more precipitation in BC on average.
  5. 1-in-100 year or 1-in-200 year storms are occurring at increased frequency – the City of Grand Forks recently experienced two 1-in-100 year floods within five years.
  6. There is a compounding effect with the effects of climate change. For example, the pine beetle infestation, itself a result of climate change, results in greater run-off and erosion leading to more serious flooding and landslides when storms occur. Likewise, storm surges on the coast coupled with high precipitation can lead to more serious coastal flooding than would otherwise be the case.
  7. Intense rainfall can cause:
    1. Watercourses to spill their banks, resulting in widespread flooding;
    2. Drainage infrastructure to become overwhelmed, resulting in localized or widespread flooding
    3. Landslides, as soil becomes oversaturated and unstable.
  8. All of these affects have the potential to result in significant property damage and loss of life.
  9. Some examples of recent events include:
    1. Landslide in North Vancouver that claimed a life in 2005;
    2. Landslide in Johnson’s Landing that claimed the lives of 4 people in 2012 – said to be caused by late snowpack and heavy June rains;
    3. Flashflood in Cache Creek in 2015, caused by an intense rainstorm, that damaged private property and infrastructure.

Legal Liability and Strategies to Mitigate Risk

The increased frequency and severity of intense rain storms and flooding produces more risk of liability for local governments in negligence and nuisance. Further, the increased frequency and severity of intense rain storms and flooding causes more frequent and severe property damage and personal injury, for which local governments become targets in litigation, whether they are liable or not.

Negligence

  1. A Local government may be liable in negligence where it can be shown that it acted or failed to act in circumstances in which it was reasonably foreseeable that its action or inaction would cause harm.
  2. Although there is uncertainty regarding cause and effect in cases involving climate change-related flooding and landslides, local governments are increasingly able to determine which effects may be “reasonably foreseeable”.
  3. For example, climate change modelling offers predictions of what to expect for increases in temperature and precipitation in the coming decades. Furthermore, if recent events are an indication of what is to come, then local governments should consider the effects of recent events to be “reasonably foreseeable”, instead of relying upon historical data and existing standards that are rapidly becoming obsolete (think: the 1-in-100 year storm).
  4. A local government may be liable in negligence for:
    1. Failing to take reasonable care in inspecting, maintaining, and building its infrastructure, such as drainage ditches, culverts and storm drains, having regard to the risk of intense rain storms and flooding;
    2. Inspecting and approving development and buildings within areas for which it is reasonably foreseeable that flooding will occur;
    3. Failing to respond to complaints in a reasonably timely manner;
    4. Failing to adhere to its policies with respect to inspection and maintenance;
    5. Causing or contributing to losses in its response to emergencies.
  5. Local governments may have a policy defence to claims in negligence, where it took a course of action as a matter of policy, having regard to social, economic, political and financial constraints. The rationale for the policy defence is that a local government should have the discretion to make policy decisions based on these factors, without facing liability in negligence.
  6. The policy defence does not apply to operational decisions. For example, if the policy is to conduct bi-annual inspections of the storm drain system, then the local government should ensure it is conducting its inspections according to the policy and with reasonable care. A failure do to so will not be excused based on a defence that there was insufficient resources to conduct such inspections.
  7. A policy may be oral or written – clearly a written policy provides a much stronger evidentiary basis upon which to defend a claim in negligence. The policy should be determined by elected officials or management.

Nuisance

  1. Local governments may be liable in nuisance where it can be shown that water, for example, escaped from the local government’s infrastructure and caused damage to private property.
  2. Under section 744 of the Local Government Act, local governments have statutory immunity from claims of nuisance with respect to breakdowns and malfunctions of its infrastructure, however where the nuisance is caused by a lack of capacity of the infrastructure, this immunity is unlikely to apply.
  3. There is no policy defence to a claim in nuisance. As well, reasonable care is not a defence to a claim in nuisance.
  4. Examples of nuisance claims include where local government infrastructure collects surface water, but fails to discharge it safely, resulting in flooding to neighbouring properties.
  5. Mitigation of the risk of legal liability involves avoidance and prevention of the loss itself, as well as proper practices, policies, and record keeping to avoid liability in negligence and nuisance. We suggest that local governments may consider the following strategies:
    1. Inspect and maintain existing infrastructure using reasonable care and according to any existing policies;
    2. Where no policies exist, consider having council or management adopt a reasonable, written policy to increase the likelihood of a policy defence succeeding;
    3. Educate employees with respect to policies;
    4. Ensure that complaints are being responded to in a timely manner;
    5. Assess the capacity of existing infrastructure, such as culverts, storm drains, and drainage courses, as it relates to recent storms and flooding events, and consider upgrades – if the infrastructure has been insufficient in recent times, chances are it will be insufficient in the future;
    6. Design new infrastructure according to more conservative models, perhaps incorporating the most recent rainfall and flood data – 1-in-100 years storms are occurring more frequently;
    7. Apply a more conservative approach in approving buildings and developments within suspected floodplains and drainage courses;
    8. Require more permeable and erosion-resistant surfaces in development plans;
    9. Rely to a greater extent on the opinions of hydrological experts relating to drainage works, flood mitigation and development plans – i.e. shift the risk of decision making to professionals;
    10. Consider updated floodplain mapping using recent data – this may result in expanding the areas within which section 219 floodplain covenants may be required;
    11. Consult the Pacific Climate Impacts Consortium Regional Analysis Tool http://pacificclimate.org/tools-and-data/regional-analysis-tool and Plan2Adapt http://pacificclimate.org/tools-and-data/plan2adapt website, to determine what may be expected in your region in terms of precipitation increases;
    12. Maintain thorough records of decisions and operations, to preserve the evidence of reasonable care being exercised;
    13. Learn from last year’s events – extraordinary events are becoming ordinary, or “reasonably foreseeable”.

Forest Fires

Factual Context

  1. The summer of 2017 brought an unprecedented wildfire season. The province of British Columbia declared a state of emergency for 10 weeks. 65,000 residents were displaced from their homes. Over 1.2 million hectares of land burned, and the cost to the province is reported to be more than $564 million dollars.
  2. The connection between the 2017 wildfire season and climate change is not direct. Researchers say that while climate change is not the root cause of wildfires, it does exacerbate them by extending the fire season and making conditions more favourable for intense flames.
  3. For example, stronger winds contribute to the spread of fires, as do drier conditions. Furthermore, every degree of temperature rise increases lightning activity by 12%. The result of this is that fire activity in Canada has doubled since the 1970s.

Legal Liability and Strategies to Mitigate Risk

  1. While the provincial government has primary jurisdiction over wildfires in the provinces, local governments are affected in many ways. A local state of emergency may have to be called; residents may be evacuated; infrastructure may be destroyed; smoke hazards may have health effects on residents.
  2. Actions taken by local government to mitigate wildfires, respond to emergencies, or rebuild infrastructure may all create litigation risk, such as negligence claims. In that regard, the legal landscape is similar in many ways to the risks to local governments faced by flooding.
  3. Instead of revisiting those areas, this section will instead focus on local government powers available to mitigate the risk of spreading wildfires through development and the legal risks that accompany that process.
  4. One area in which local governments exercise control over the prevention of the spread of wildfires within municipalities is by controlling the amount of wildfire fuel present in “urban interface zones.”
  5. An urban interface zone is defined as an area where structures and other human development meet and intermix with wildland areas containing flammable vegetation. Regulation of interface zones can occur on an emergency basis when forest fire danger is high, but can also be taken proactively.
  6. For example, an Official Community Plan (“OCP”) passed pursuant to Part 14, Division 4 of the Local Government Act can impose “restrictions on the use of land that is subject to hazardous conditions or that is environmentally sensitive to development”. Those restrictions could be designed to mitigate the risk of interface fires by prescribing requirements regarding vegetation.
  7. In the context of climate change, OCP’s are a valuable tool as they can be periodically updated to reflect changing hazards dictated by the changing climate. Furthermore, OCP’s can contain policy statements which specifically reference climate change and specific environmental risks.
  8. There are some key points to keep in mind when regulating the development of land. The first is that restricting and controlling zoning is generally limited by the principles of prior non-conforming use. This means that local governments cannot retroactively impose development conditions upon existing landowners in the normal course. The ability to manage interface zones through an OCP is therefore limited to future development.
  9. However, if a property poses an immediate and serious fire hazard, then local governments can consider options contained in fire safety bylaws or, potentially, the remedial action powers contained in Part 3, Division 12 of the Community Charter.
  10. Controlling development through land use regulation, zoning or an OCP carries with it procedural requirements which may expose local governments to administrative law challenges. Decisions made by local governments pursuant to statutory or regulatory authority, even when they involve an exercise of discretion, are subject to the rules of administrative law. Generally speaking, administrative law is focused upon procedural and jurisdictional questions with an intent to supervise the actions of government without unduly interfering with or second guessing their ability to regulate society.
  11. For example, in Guest v North Vancouver (District), 2012 BCSC 1626 [Guest], a resident sought judicial review of a decision by the Chief Building Official for the District of North Vancouver. The Building Official had rejected Mr. Guest’s building permit application to construct a single dwelling building on a property located in a densely forested area (para. 1).
  12. The reason given for rejecting the application was due to the fact that the proposed recreational property did not have sufficient access for fire department equipment, as it was not directly serviced by a road.
  13. A special variation under the BC Building Code, which would have allowed for the development to be approved notwithstanding non-compliance with the BC Building Code, was sought based upon a proposal to incorporate an on-site sprinkler system (para. 17). The variation was not granted primarily because the proposed development carried risks associated with forest fires given its location which, in the Building Official’s opinion, would not be adequately mitigated by an on-site sprinkler system (para. 2).
  14. The petitioner alleged that the decision was unreasonable, and argued that there was a breach of procedural fairness. On the question of whether the decision was reasonable, the reviewing court’s role is to determine whether “the processes followed and the outcome fall within a reasonable range of alternatives in light of the legislative scheme and contextual factors relevant to the exercise of the power” (para. 40).
  15. Essentially, if the Building Official followed a fair process, was not biased, and came to a decision which was available in light of the regulatory scheme, then a court will not interfere with the decision. The Building Official’s correspondence to the petitioner set out his rationale for denying the building permit, and the court found it was clear that the decision was based upon the provisions of the BC Building Code and the applicable zoning bylaw.
  16. Further, there was no evidence of bias or an improper purpose (para. 43-46, 57). In particular, the Building Official’s adherence to safety concerns, the stated purpose of the BC Building Code, was found to be reasonable and appropriate.
  17. The Guest case and a number of other judicial review decisions provide valuable guidance for local governments seeking to regulate development to minimize wildfires, including:
    1. When a local government official is making a land-use or development decision, it is important to carefully consider and reference the underlying statutory, regulatory and bylaw authority relevant to the decision;
    2. Decision-makers are advised to provide their rationale for making any particular decision, and ought to reference all points under consideration, even if ultimately not relied upon or accepted;
    3. Applicants should be provided the opportunity to respond to the concerns of the decision-maker prior to a final decision being made;
    4. An OCP should be carefully drafted to include specific guidelines and rationales for the mitigation of hazardous conditions or controlling development in environmentally sensitive areas. Development subject to an OCP is constrained to the factors and guidelines contained in the OCP itself, and local governments are well advised to take full advantage of the flexibility of the OCP by incorporating policy factors into planning principles where appropriate (see, for example, 0742848 B.C. Ltd. v Squamish (District), 2011 BCSC 747)
    5. Bylaws, policies and OCP’s ought to be reviewed periodically to ensure that they align with the changing risks being presented by climate change;
    6. When utilizing statutory powers which grant extraordinary or emergency powers (such as remedial action), it is imperative to strictly comply with statutory requirements such as notice periods; and
    7. Where necessary, local governments should consult with environmental experts or require developers to retain environmental experts when assessing risk that is outside the field of expertise of the local government and/or the developer.

Sea Level Rise

Factual Context

  1. Sea levels are rising due to climate change. This phenomenon occurs because land ice is melting and salt water is expanding as temperatures rise. Similarly, ice is melting earlier and freezing later, which creates more open water and more storms. Even if drastic measures are taken now to reduce carbon emissions leading to climate change, sea levels will continue to rise due to past emissions.
  2. Coastal local governments will be affected in a variety of ways, including:
    1. Coastal erosion and coastal inundation;
    2. Reduced drainage capacity;
    3. Loss of wetlands;
    4. More frequent and intense storms, storm surges, waves and flooding (impacts will reach further inland, or existing dikes will be unable to accommodate higher levels).
  3. Over 80% of the population in British Columbia live within 5 kilometers of the coast. 59 of 161 municipalities in British Columbia have coastline exposure, while 14 of 29 regional districts have coastline exposure. The good news is that sea level rise on the British Columbia coast is occurring at a lower rate than the global average.
  4. Much existing coastal infrastructure (barriers, dikes, and seawalls) was built without factoring in sea level rise, and will need to be upgraded or rebuilt.
  5. Scientists say to plan for a sea level rise of approximately:
    1. 0.5 meters by 2050;
    2. 1 meter by 2100; and
    3. 2 meters by 2200.
  6. Experts recommend a minimum flood construction level of 1.5 meters above the natural boundary of the sea and a minimum building setback from the sea of 15 meters.

Legal Liability and Strategies to Mitigate Risk

  1. As with flooding and wildfire risks, coastal local governments may face claims or liability for operational decisions which are carried out negligently. In the context of sea level rise, operational negligence could arise in the following scenarios:
    1. Inadequate preparedness to prevent or limit a preventable emergency;
    2. Inadequate preparedness in response to an emergency.
  2. Local governments can take steps to minimize their exposure to operational negligence claims. Beyond ensuring that infrastructure is adequate, certain legal tools can be utilized to protect local governments.
  3. One drastic strategy would be to expropriate land along the coastline and “re-naturalize” it. This would create a buffer zone where the land could be flooded without harming people, homes, or important infrastructure. Of course, the expropriation of land pursuant to Part 3, Division 3 of the Community Charter and the Expropriation Act requires that landowners be fairly compensated for their property. However, when properties cannot be protected from sea level rise in a cost effective manner, expropriation may be the best option available.
  4. Less drastically, local governments can utilize Official Community Plans and zoning bylaws to plan for sea level rise going forwards by restricting development, and creating setback requirements. Further, “No build” areas or limited use areas can be established through zoning and areas can be designated as land trusts.
  5. In established flood risk zones, covenants indemnifying and otherwise protecting local governments from the consequences of coastal hazards on new or modified buildings are a prudent option already utilized by local governments. The use of covenants ought to be expanded as the risks posed by sea level rise are better modelled and understood.
  6. As a starting point, section 56 of the Community Charter can be utilized to require an owner of land to commission a geotechnical report authored by a qualified professional when the land to be developed may be subject to flooding, erosion, or other risks. If, in the opinion of the expert, the land cannot be developed safely, then a building permit cannot be issued.
  7. If the land can be developed safely but only under certain conditions described in the report, then the owner of land must enter into a covenant with the local government agreeing to indemnify them for failing to comply with the geotechnical conditions and to only use the land for the use intended upon application. Such a covenant is registered on title pursuant to section 219 of the Land Title Act, and can contain as an appendix the geotechnical report itself.
  8. Section 219 covenants can contain language where owners assume the risks of developing on land subject to flooding. When properly drafted, covenants can effectively limit the liability of local governments. Such covenants run with the land and bind future owners to the same standard as the original owner.
  9. Ultimately, a proactive planning approach is the most cost-effective option for local governments, and reduces the risk of future litigation.

Conclusion

As climate-change related weather events increasingly affect us, changing in frequency and intensity, local governments can expect to be exposed to higher levels of litigation risk given their role in developing our cities and creating infrastructure. These risks can be mitigated by being informed about the projected consequences of climate change, developing appropriate policies and regulations, and by utilizing proactive planning strategies.

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