Kelowna diamond magnate loses court challenge of development next door to home

Photo: Contributed

Artists rendering of proposed Aqua development in Lower Mission.

One of Kelowna’s richest people has lost a court battle with the city over a planned development next door to his Lower Mission waterfront home.

A B.C. Supreme Court justice has denied Charles Fipke’s request for a judicial review of a decision by the City of Kelowna to issue a development permit and development variance permit on June 22, 2021, to Aqua Resorts for property along Capozzi Road.

Aqua plans to build a housing development on the site, which will include towers of 13, 15 and 17 storeys, just south of the Hotel Eldorado.

Fipke’s case centred on the inclusion of submerged land in the density calculation for the project. He maintains that the submerged land did not belong to Aqua and could not be taken into account. As a result, the lawsuit contended that the city incorrectly performed the density calculation of the project on the lot.

In his decision, Mr. Justice Gomery ruled the City of Kelowna had acted reasonably in granting the development permit and the variance.

On the issue of the submerged land, Gomery noted that “at a council meeting on January 23, 2018, the mayor asked the planning manager, Terry Barton, to explain the reference to unique development rights over the water. Mr. Barton told the Council that Aqua had established that the shoreline had receded due to avulsion, rather than erosion. If the shoreline had receded due to erosion, the property line would have shifted and the parcel belonging to Aqua would have shrunk in size. Because this was a case of avulsion, Aqua retained its ownership of the submerged land, which Mr. Barton described as “development rights over the water”.

Avulsion refers to water quickly submerging land or moving land to another location.

Justice Gomery also ruled, “The heart of the distinction between erosion and avulsion lies in the idea that, while both involve the loss of land into water, erosion involves a gradual, imperceptible loss, whereas avulsion is rapid and dramatically obvious. Where land is lost by erosion, the property line shifts at common law, and also under the Land Title Act in cases where the boundary of a lot is defined by reference to a shoreline or a river. Where land is lost by avulsion, the property line remains where it was.”

He concluded that while certain aspects of Fipke’s argument rest on solid ground, he was not persuaded that it was unreasonable for the city to proceed on the basis that Aqua owned the submerged land prior to surrendering it to the Province in May 2019.

Some residents of the neighbourhood have been vocal opponents to the Aqua project, voicing concerns about the density, size of the towers, traffic and parking.

In a statement to Castanet, executive vice president of the Mission Group Luke Turri said they understand new home development projects can have impacts on neighbouring properties.

"It is always our practice, as good community partners and citizens, to work very closely with local regulatory bodies in the planning and development of our new communities."

"Mission Group has completed all necessary due diligence on Aqua Waterfront Village and the project has been approved by the appropriate regulatory bodies in order to move forward."

–with files from Wayne Moore