David W. DeMille

Following an application regarding the interpretation of a municipal zoning by-law and legal non-conforming use, the parties made written submissions on costs.

The applicant, a public interest litigant, had partial success but the main issue was decided in favour of the respondents.

The court awarded partial indemnity costs of $40,000 to the respondent Picton Terminals.

The court declined to award costs to the respondent County, finding that its failure to recognize the trans-shipment use in its 2006 zoning by-law generated the uncertainty that led to the application, and recognizing the applicant as a public interest litigant.

The applicant, representing local ratepayers, brought an application to interpret a municipal zoning by-law, arguing that a deep water port facility's trans-shipment operations contravened the by-law.

The respondents argued the operations were protected as a legal non-conforming use.

The court interpreted the historical zoning by-laws and applied the framework for pre-existing uses, finding that the general historic use of the property for trans-shipment of bulk commodities had not fundamentally changed.

The court held that the current operations constituted a reasonable expansion of earlier activities and remained protected as a legal non-conforming use.