The defendant was charged with two counts under the Building Code Act: failing to comply with an order to comply (count 1) and causing construction of a building without a permit (count 2).
The prosecution proved the actus reus of both offences beyond a reasonable doubt.
However, the court found that the defendant established a valid defence of legal non-conforming use on a balance of probabilities.
The defendant, as the current owner of property that had been in her family since the 1940s, demonstrated the requisite intent and commitment to rebuild structures destroyed in 1985 storms.
The court rejected alternative defences regarding direct evidence requirements, the existence of three independent structures, and due diligence.
Both counts were dismissed based on the legal non-conforming use defence.
