One of Kelowna’s wealthiest people has lost his latest attempt to prevent his Okanagan Lake waterfront neighbors from building a large housing complex beside his single-family home.
In a recent ruling, the Court of Appeal for BC rejected a third attempt by Charles Edgar Fipke to get the courts to overturn a decision by the City of Kelowna to approve the development by Aqua Resort Ltd., which was allowed under the neighbor’s zoning
Fipke, who is credited with discovering commercial quantities of diamonds in the Northwest Territories, bought his home in the Mission Creek area south of downtown Kelowna in 2006. Two years later, Mission Group Enterprises bought up several of his neighboring properties and, in 2021, won the right from the city to turn that into three towers with 344 units, marketed as the Aqua Waterfront Village.
One of the towers will be 13 storeys high and be built right beside Fipke’s home.
Fipke argued the city should not have included a now-underwater portion of the Mission Group’s lots when it calculated how much density it would permit on the land.
The issue was whether the underwater portions had got that way due to avulsion — such as being torn away by flooding — or routine erosion. If it had been avulsion then under law it would be included and if it was erosion then it would not and therefore the density would need to be reduced.
“The issues turned on how to treat a part of Aqua’s originally surveyed property that had become submerged by Okanagan Lake,” a panel of three judges said in their ruling.
Aqua provided to the city a licensed land surveyor’s opinions to the effect that Aqua still owned the land as it had become submerged due to avulsion.
Aqua then, at the suggestion of the city, gave the submerged portion to the provincial Crown by filing a new subdivision plan marking the submerged portion as ‘return to Crown.’ The City relied on (a bylaw) to treat the size of the property as the same as prior to the return to the Crown of the submerged portion.”
The court found the city did not act outside the legal constraints of its bylaws when it considered “that at the time of Aqua’s dealing with it, the submerged land still belonged to Aqua because it had become submerged due to avulsion, even if there had been subsequent changes to the shoreline. The city’s decision to grant the permits was reasonable.”
Court heard the Mission Creek area was subdivided in 1939 and, in 1948, a flood occurred that lasted 149 days and led to a permanent rise in water levels in the lake. This was presumed to be due to avulsion because it occurred relatively quickly, and meant that lost portion of land still remained under ownership.
Fipke was granted the Order of Canada in 2022.
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