Concrete Footings on Covenanted Land, Above the Natural Boundary
1. Property Line is Always at the Natural Boundary, which is the “visible high
water mark”
We are concerned that the footings now poured at lot 11 are located on the land subject to the ocean
fronting lands covenant. We note that the covenant states that:
2. The Owner covenants and agrees with the Municipality that, except as provided in Section 3 of this
Agreement, the Owner: (a) will not build, place or install any building or structure of any kind on, over or
under the Covenant Area;
If the footings are located within the covenanted area, this would place the footings in clear violation of
this covenant. We understand that the owners have been warned about this potential violation and
that their position is that the land in question is below the natural boundary, which legally separates the
Crown land and the private property at lot 11. This boundary is defined by the Land Act in this way:
“natural boundary” means the visible high water mark of any lake, river, stream or other body of water
where the presence and action of the water are so common and usual, and so long continued in all
ordinary years, as to mark on the soil of the bed of the body of water a character distinct from that of its
banks, in vegetation, as well as in the nature of the soil itself;”
It is our belief that this “natural boundary” is located below the footings in question and we have set out
our reasoning below. We acknowledge that the determination of this boundary on a bare rock face is
trickier than an area where soil easily accumulates, but nonetheless, changes of vegetation are easy to
discern in the location in question, as documented here. We also include photographs of the high tide
as a useful indication of where the natural boundary is likely to be located.
The discussion below is the result of careful study of the issues, as well as detailed conversation with
natural boundary expert and senior deputy surveyor general from the BC Land Title and Survey
Authority, Mr Jeff Beddoes BCLS, CLS. Of course he was unable to make a determination without
inspecting the site, but he did kindly examine my photographs and the analysis here is consistent with
his general comments on determining the location of the natural boundary.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
2. Visible Stripes Indicate the Persistent Natural Boundary
Figure 1
When looking for the persistent natural boundary, the simplest indication is the visible macro change in
flora type. These trends are easy to discern in the panorama in figure 1. To the right of the white sign,
just above sea level, can be seen marine vegetation and mussels, in this photo appearing as a greenbrown stripe. Above that is a transition zone, with neither marine nor terrestrial vegetation, a thin
stripe of bare, light-grey rock, scattered with a few barnacles. Above that the thick black line of lichen
known as sea tar, is taken by surveyors as the rule-of-thumb demarcation of the natural boundary. You
can see in figure 1 above, that the start of that zone is well below the wooden form.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
Figure 2
In the image above, the bare rock transition can be seen more clearly, below the purple paint line* in
the lower centre of the shot. Below is bare rock with a few barnacles. Above the purple line is black,
sea tar lichen with patches of a pale grey-green lichen, common on bare rock.
*This purple line was spray painted by contractors or surveyors for the proponent. These lines can be
seen all along the Cape coast, at each lot for which a dock is proposed. We assume it is the painter’s
approximation of the high water mark, and coincides with the black line of sea tar lichen mentioned
above. Note that the orange tape, mentioned later, can just be discerned near the right hand edge of
figure 2 above.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
3. Lichen and Moss are Terrestrial Species
Figure 3
In figure 3, you can see the round patches of the light coloured lichen, the black lichen, and the tufts of
rock moss quite clearly. These are all terrestrial species of vegetation, suggesting that the area is well
above the natural boundary, according to the Land Act definition. This shot is of the seaward side of the
framing.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
4. High Tide is Helpful When Locating the “visible high water line”
While the “visible high water line”, as defined in the Land Act, is not precisely equivalent to the high tide
mark, it is a helpful indication of where the mark will be. The natural boundary will usually be a little
below the maximum tidal range, where at full deflection, the ground will only be inundated for a few
minutes per month. Here are some photographs (figures 4 and 5) of the high tide at about 4.5m. This
can be checked on the government site at http://tides.gc.ca/eng/data. The maximum tidal range in this
area is 4.8m. The photos are time stamped.
Figure 4
In figure 4, the tide has just turned and is beginning to drop. The purple stripe can just be discerned
above the water on the left hand side of the rocky outcrop on which the footing stands, and is the same
purple stripe that can be seen in figure 2 above. If you can imagine an additional 40cm above this water
level, that would bring you approximately to the full tidal range of 4.8m, which would be just below the
lowest whorl of lichen that can be seen just below and to the left of the framing of the footing.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
Figure 5
Figure 5 is blurry because it was taken without a flash with a long exposure, taken four minutes after the
previous shot. I included this to show the area in context.
Please note that the orange tape, not visible in this image, is nailed between the two diagonal 2x4
framing supports, just below the retaining wall.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
5. Orange Tape Claims to Mark the Natural Boundary
Figure 6
The orange tape in figure 6 was recently nailed to the rock at lot 11. As you can see, the writing
suggests it is meant to mark the natural boundary. In the Land Act definition of the natural boundary, it
says that it is the ‘visible high water mark […] where the presence and action of the water are so
common and usual…’ In figure 6 above, there is a visible accumulation of terrestrial debris – leaves, pine
needles, a fir cone, lots of dust. These would be immediately washed away with the first inundation of
the area, which might also deposit marine debris such as seaweed etc. That this point is covered in
dusty, terrestrial debris, suggests that it is not ‘common and usual’ for water to inundate this point.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
Figure 7
This same tape can be seen in figure 7, above, in the centre of the photo. Note that it is above where the
diagonal 2x4 supports meet the ground. The purple stripe mentioned elsewhere can also be seen in the
lower left hand edge of the image. Referring back to the photographs of high tide in section 4, the tape
is in line with the retaining wall, far above the water line.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
6. Concept of Natural Boundary Confused in the Plans
We note that on the latest plan supplied to us by the Province, there are two lines marked (figure 8
below). One is the title plan boundary, to which arrows point indicating this as the covenanted area.
The second relevant line is the high water line. These lines are distinct on the plan. There is no
indication of the natural boundary. The plan has the access ramp cross the high water line (HWL) to the
title plan line, marked “LOT 11 BOUNDARY”. This places the access ramp on covenanted land. This error
suggests to us that at the time of drafting, the contractors believed that the title plan line indicated the
property boundary. It seems possible that neither the proponent nor the contractors understand the
matter well. Clearly this error needs to be recognized and corrected prior to the start of construction.
Figure 8
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Concrete Footings on Covenanted Land, Above the Natural Boundary
7. If Orange Tape Marks HWL, Footings Do Not Comply with Drawn Plans
Figure 9
In figure 9 above, we can see that the design is such that the footing is 1.5m from the ‘natural boundary’
and a few inches below the high water line. We can also see that the ramp and wharf are supported by
a concrete pillar, which must extend 7’ above the high water mark, according to the drawing (see figure
9 above). This means that the height of the ‘concrete pillar’ as poured, should give us an indication as to
where the contractors and proponent believe the high water line location to be. The pillar stands
approximately 2m from the orange tape and about 18” below it, if the contractors believe the orange
tape to be the high water line, we would expect the pillar to be roughly 8’6” tall. Our measurements
indicate that the concrete pillar stands at approximately 6’ tall, indicating that the contractors believe it
to be approximately 1’ above the high water line at the same time as standing below the “natural
boundary” as they have marked it on the orange tape.
As we have discussed above, in fact the high water line and the ‘natural boundary’ are pretty much in
the same place (from the Land Act: ‘“natural boundary” means the visible high water mark…’). Our
observed measurements of the pillar height and its location in relation to the orange tape, suggest that
the contractors are building to the faulty conception of the property line demonstrated above and that
indeed, the pillar is on the covenanted land.
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Concrete Footings on Covenanted Land, Above the Natural Boundary
8. Conclusions
Our analysis of the matter indicates that the property line is well below the orange tape that the owners
claim marks the natural boundary. This means that despite being warned of the problem by the
municipality, the owners have gone ahead and poured their footings on the covenanted land. Further
the proponent’s latest plans indicate that, despite their labeling to the contrary, the designed intention
is to build on what, in reality, is covenanted land.
The ocean fronting lands covenant serves a very important purpose and function, and this ‘error’ on the
part of the developers constitutes a serious violation of the municipality’s property rights. Given the
developer’s other deliberate and informed violations of the covenant – fence and hedgerow, retaining
walls, out-of-corridor tree limbing and clearing, etc – it is important that the municipality take steps to
ensure that the property rights set out in the covenant are not eroded. Inaction on this point will make it
more difficult to enforce further violations, likely to occur as the owners continue to struggle to design
and construct a transition from the wharf to the covenanted land.
We therefore ask that:
(a) The municipality require the proponent to redraft their plans such that the design does not enter the
covenanted land, and the boundary contradictions outlined in sections 6 and 7 are resolved, prior to
recommencing construction work on that project.
(b) The municipality seek its own clarification of the location of the natural boundary, from a registered
BC land surveyor who has expertise in the determination of marine natural boundaries.
(c) That the offending structure is removed and the area restored, at the expense of the owner, as set
out in the covenant.
Melissa Harrison
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