OSOYOOS TIMES-June 3, 2009-

By Paul Everest – Osoyoos Times

A retaining wall that has been at the heart of a five-year-old battle between the Town of Osoyoos and a Lobelia Drive resident will have to be removed.
In a decision dated May 28, Justice G.M. Barrow granted the Town an injunction against Ken Nelmes to remove a five-and-a-half-metre-high retaining wall on his property bordering Jasmine Drive.
According to court documents, Nelmes began building the wall in May, 2004, to support the back edge of his property as it sloped towards Jasmine Drive.
After construction began, part of the slope collapsed and Nelmes and his contractor decided to relocate the base of the wall closer to the road.
Before continuing with construction, Nelmes learned he needed a building permit and on May 21, 2004, he applied for a permit and paid the $150 fee.
Two months later the Town asked for a copy of the engineering drawings and survey plan showing the location of the wall relative to property boundaries.
When the wall was completed, it was discovered that it encroached onto the Town’s road allowance by 2.11 metres at its north end and 2.82 metres at its south end.
Some of Nelmes’ neighbours also began complaining to the Town at that time about the wall.
In March of 2005, Osoyoos town council arranged a meeting to discuss an encroachment agreement with Nelmes and to allow his immediate neighbours to express their concerns to him.
Although the Town was prepared to allow Nelmes to rent the land where the wall was encroaching, he instead wanted to buy the land.
At the same time, more complaints about the wall were arising, especially after Nelmes hung bicycles on the wall.
The Town withdrew from all negotiations with Nelmes and in June, 2005, former mayor John Slater advised Nelmes that the Town had directed legal council to get an injunction to have the wall removed.
Legal action against Nelmes began by petition in August, 2005, and a hearing on the matter was set for the following January.
Nelmes, however, filed a motion seeking relief under the Property Law Act, asking the court to grant him title to the land where the encroachment occurred or declare that he has easement over that land.
Barrow denied Nelmes such relief on the grounds that the Town had identified Jasmine Drive as a potential road reconstruction project and the wall prevents the Town from upgrading the road “to the standard it wishes.”
Geotechnical engineers testified that the wall could be replaced by a structure that would not encroach on the road, but such a replacement could cost anywhere from $30,000 to $50,000.
Barrow recognized that such a cost would pose a “significant hardship” on Nelmes.
In the end, Barrow ordered that the injunction be stayed for one year with the possibility of extending the stay further to allow Nelmes to “arrange his affairs and further investigate the alternatives available to reconfiguring the wall or securing concessions from the utilities involved as to the allowances they require.”
The Town was also awarded its legal costs for the matter.
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