West Kelowna wins temporary injunction ordering path at Boucherie Beach Resort be opened

Photo: AirBnB

A path along the waterfront at the Boucherie Beach Resort in West Kelowna. The city has won an injunction in court that will open it to the public.

The City of West Kelowna has won the first round in a legal fight against the strata owning the Boucherie Beach Resort over a walkway on the development’s waterfront.

Following a hearing earlier this month, a BC Supreme Court justice awarded the municipality an interlocutory injunction ordering the strata unlock the gates blocking the pathway and to remove any signs suggesting the path is not public.

When the City of West Kelowna in 2013 approved the rezoning related to the Boucherie Beach Cottages development, it included a covenant that secured a public walkway along the waterfront.

Around the same time, the city had embarked on a long-term plan for a beachfront path spanning from Peachland to the Bennett Bridge. The right of way for the path would be obtained through development deals like the one at the Boucherie Beach Resort.

The developer built the path in 2014, and because it was not connected to the north or south, it was used little by the public.

Things changed with the development of Frind Winery directly south and the Paradise Estates townhome project to the north. In 2020, Frind Winery removed the large hedge that separated the two properties.

According to court documents, the Boucherie Beach strata reported an immediate increase of several hundred, often drunk, pedestrians during the summer. Residents complained about an increase in trespassing on private amenities like the pool and dock.

In response, the strata erected gates blocking the path and signs declaring it private property. They also refused to consent to a city registration for a statutory right of way for the path.

In April 2021, the City of West Kelowna sued the strata over the issue. The matter has yet to go to trial, but the city was successful last week in obtaining a temporary injunction until then.

The strata argued in court that it did not yet exist when the deal was struck between the developer and municipality and claims the covenant related to the path has now expired.

In his decision granting the injunction, Justice Gary P. Weatherill noted that the public had uninterrupted access to the path for seven years before the gates went up. He also ruled the strata would not exist if not for the deal struck between the developer and city over the pathway, which was key to allowing the rezoning.

The strata now has until July 1 to hand over to the city the keys to the gate blocking the path and take down any signs suggesting it is private.

It is not known when the matter will make it to trial.