In the recent decision of Lougheed v Sechelt (District), 2026 BCSC 1219, the BC Supreme Court found that District staff’s failure to provide Council with complete information regarding staff’s engagement with the applicant rendered a Council decision to deny the applicant’s Development Variance Permit (“DVP”) unreasonable because it was based on incomplete factual assumptions.

This decision is a reminder that, even though the courts grant a high degree of deference to elected bodies, a municipal council decision may still be set aside where it was based on an incomplete or inaccurate record.

Background

The petitioner’s builder and engineer engaged in discussions with District staff to design and build a home for the petitioner according to District requirements. Since the home was located in an area where the District had implemented flood control requirements, the height of the building was subject to Flood Construction Level (“FCL”) requirements, as provided in Bylaw 580 (the “Bylaw”).

The home was constructed in accordance with the approved plans. However, the plans themselves did not comply with the Bylaw because the building height had not been calculated in accordance with FCL requirements.

Although the Building Permit expressly stated that its issuance did not relieve the owner from complying with the Bylaw, construction proceeded on the understanding that the approved plans complied with the District’s requirements. The District later issued a Stop Work Order to review the building height, and consequently informed the petitioner that the building height should have been calculated using the FCL.

The petitioner sought a DVP, on the advice of District staff, to allow construction to proceed. District staff recommended that Council approve the application, but it was denied by Council on the basis of preferring that the home comply with the Bylaw.

On judicial review, the petitioner argued that Council’s decision was based on an incomplete factual record. Specifically, the petitioner argued that Council was not told that District staff had worked with the builder and engineer throughout the design process, provided guidance on height calculations, and that the petitioner proceeded with construction based upon the approved design plans. Instead, the staff report characterized the issue as builder error and stated that construction did not adhere to the approved plans.

Decision

The Court noted that elected bodies must take into account the evidentiary record and the general factual matrix that bears on their decision, and the decision must be reasonable in light of them.

Applying this framework, the Court found that Council’s refusal to issue the DVP was unreasonable as it relied upon incomplete and erroneous factual assumptions.

Specifically, staff reports did not make Council aware that the builder and engineer had discussed the home plans with District staff and calculated the building height based on staff’s feedback before proceeding with the Building Permit application and subsequent construction. The court reviewed the discussions at the relevant Council meetings in light of the incomplete staff reports and found that the absence of this information led to an assumption of builder error which became an erroneous factor that grounded the Council’s decision. Accordingly, the DVP denial was quashed and the DVP application was sent back to Council for reconsideration.

Importantly, the Court’s decision does not weigh in on whether or not the DVP should or should not ultimately be granted, but is instead concerned exclusively with ensuring that Council has been given complete information that accurately presents the factual matrix before Council makes its decision.

Key Takeaways for Local Governments

• It is important that staff provide Council with complete and accurate information so that Council has the necessary information to make a decision.
• Where staff engage with applicants with respect to building permits, development variance permits, or similar, the details should be included in staff reports to Council. Staff reports should fairly present the applicant’s position before Council.
• A reasonable decision will be internally coherent and follow a rational chain of analysis that is justified in relation to the information before Council, provided that information is complete and accurate.

Thomas Haughian

Thomas Haughian is an associate in SMS Law’s litigation group. His practice includes civil litigation, municipal liability defence, bylaw enforcement, injunction proceedings, expropriations, and administrative law matters. He has particular expertise in the statutory powers and legal defences specific to local governments and public bodies.