Vernon neighbour dispute over waterfront retaining wall 'trifling and nonsensical'
The fight over a small piece of a Vernon waterfront retaining wall escalated to the point where a judge ended up ruling squarely on the side of the wall.
The dispute started brewing after Giacomo D’Amico bought a home and a property next to Okanagan Lake at 9119 Smith Road in 2021.
Over many previous years that property had actually grown through accretion as Okanagan Lake built up material on the lake side of D’Amico’s land.
In early 2023, the Surveyor General agreed that Crown land next to the lake could be added to D’Amico’s property.
That award also meant that part of a retaining wall that had formerly been on the Crown land also became part of D’Amico’s property.
The intrusion totalled 4.5 square metres out of a property that BC Assessments says is 1.1 acres (4,451.5 square metres). It is a piece of the wall that is 4.9 metres long and 0.78 to 1.15 metres wide.
Trouble is, that retaining wall stretches out into Okanagan Lake and forms an integral part of the dock owned and used by his neighbour, John Edward Atkinson. He bought his land in 2009, some years after the retaining wall was built.
D’Amico wanted the wall removed from his land while Atkinson argued he should be granted an easement for as long as the wall “continues to exist.”
The two men could not come to an amicable agreement so Justice Gary Weatherill, in a Dec. 12 Supreme Court of BC decision, decided for them, saying the wall will stay.
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D’Amico had not only asked the court to force Atkinson to demolish the wall at an estimated cost of $19,500 but to also pay him almost $12,000 for a survey D’Amico had done of the land.
Both those demands were denied.
D’Amico argued that the retaining wall was in “his family’s favorite spot for relaxing and enjoying their waterfront,” the court ruling says.
He said the area is good for storing kayaks and other lake gear, the retaining wall interferes with his ability to place boats and other watercraft into the lake, the area around it is flat and shaded by trees whereas other areas of his property are rockier and harder to walk on and it “interfered with ongoing and future building and design plans for his property, including a planned boat lift.”
For his part, Atkinson agreed that the land now belonged to his neighbour but, given the fact that it had formerly been on Crown land, he should have an easement.
“At 4.5 square meters, mainly linear, the encroachment is extremely minor by comparison to the rest of the D’Amico property,” the ruling says. “The photographs in evidence support my findings and I therefore conclude that the petitioner’s complaints that the block retaining wall is an ongoing inconvenience causing a loss of enjoyment of his property are disingenuous, trifling, and nonsensical."
Besides, Weatherill pointed out, even if that small part of the wall was removed, the rest of the structure out into the lake would remain, just with a “jog” in it. Removal would also be likely to trigger expensive government environmental assessments because of the damage the work might cause.
Atkinson has to pay D’Amico $2,000 for the easement and the costs of registering it but D’Amico has to pay court costs.
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