LETTER: Adverse precedent

The current owner’s commitment to replacement trees and appropriate site restoration is welcome.

City council’s “reconsideration” of unauthorized tree removal from the Esplanade (a dedicated park since 1905) affirms the unfortunate aphorism “it is better to seek forgiveness than ask for approval.”

Unauthorized removal in parkland is covered under a License to Use (LTU) issued by the city on Aug. 25, 2015, essentially continuing the one issued to the previous owner of the adjacent private land.

The intent of the new owner was to demolish the old house and develop three separate, pre-existing lots. This was apparently not disclosed when the LTU was transferred in 2015.  At the Aug. 15 appeal, he stated there was no reason not to transfer this license to him.  Parkland status is that reason.

Having signed this LTU for a portion of the park, he subsequently removed three mature trees (as well as recently using it as a construction site). This was without regard for explicit conditions prohibiting any damage or destruction on the land.  Moreover the city’s tree protection bylaw prohibits interference with any city tree unless expressly authorized.

At the appeal, the owner stated that his purchase was conditional on maintaining access to the LTU area. Surely, having purchased the three lots, both he and his referenced legal advisors would have to know, through land registration, that any temporary use permit on public land is not an entitlement to it, as he implied. The new owner also claimed that on the basis of legal advice to him, he was “in the right” and allowed to do what he did. It’s hard to imagine that lawyers involved in property conveyancing would arrive at that conclusion.

Moreover, it seems improbable that legal review would conclude that explicit license terms prohibiting destruction on the land and requiring compliance with applicable bylaws would not pertain. The owner stated he didn’t know of those conditions in the agreement he signed.

Councilor Sentes asserted that “extenuating circumstances” applied, but provided no supporting evidence. This rationale sets an adverse precedent, as does the waiving of penalties. The risk is that unspecified extenuating circumstances could become a standard basis for future appeals.

The current owner’s commitment to replacement trees and appropriate site restoration is welcome.  As the “backyard” of his home and the two adjacent lots he owns, it is obviously also in his self-interest. The promised landscape restoration plan must recognize that use of this parkland is not exclusive to the licensee, and that the esplanade is not irrigated.

For details, see the Aug.15 council meeting video.

Denis O’Gorman

Penticton