Court File and Parties
CITATION: Feather v. Bradford (Town), 2010 ONCA 440
DATE: 20100616
DOCKET: C51137
COURT OF APPEAL FOR ONTARIO
Sharpe, Rouleau and Epstein JJ.A.
BETWEEN
Michael Feather
Applicant (Respondent)
and
The Corporation of the Town of Bradford West Gwillimbury and Jack Tosta, in his capacity as Chief Building Official
Respondents (Appellants)
Patricia A. Foran and Patrick Harrington, for the appellants
James S.G. Macdonald, for the respondent
Heard: February 12, 2010
On appeal from the order of Justice Fred Graham of the Superior Court of Justice dated September 17, 2009 with reasons reported at 64 M.P.L.R. (4th) 234.
Reasons for Decision
Rouleau J.A.:
[1] This appeal concerns a cottage structure that has been submerged and uninhabited for over 14 years. The respondent now seeks to obtain a building permit to raise the building out of the water and renovate it. The appellants maintain that the proposed repairs and resumption of use of the building as a cottage are not permitted by the zoning bylaws of the town nor are they allowed as a nonconforming use.
[2] The central legal issue raised by this case is whether the intention of successive parties to carry out the required remedial work is sufficient to preserve the legal nonconforming use status of the cottage for the 14 years that it remained uninhabitable. A secondary issue is whether the land in question may be used for the purpose of boat docking.
The Facts
[3] The subject property is located on the western bank of the Schomberg River. The property fronts onto a private roadway known as "Private Drive".
[4] In 1958, the property was owned by Maurice Delight. On the site, he built a two-storey boathouse with a loft equipped with a sink, hot plate, cupboard, toilet and sleeping area. In 1961, the property was sold to Ernest Luff who, in 1963, built the now submerged cottage. Mr. Luff resided in the cottage, used the boat house to store personal property, and docked two boats on the property from 1963 until his death in 1966.
[5] The property was then sold to Douglas Alder in 1968. The cottage began to sink sometime in the 1980. Despite this, Mr. Alder resided in the cottage until 1991, by which time the building had sunk into the mud to the point that Mr. Alder had to wear rubber boots while in the cottage. While residing on the property, Mr. Alder, who owned a boat, also used the boathouse. In 1991, Mr. Alder's sister convinced him to move out of the cottage and reside with her.
[6] After moving out, Mr. Alder periodically attended at the cottage and placed sand around it in an attempt to shore it up. After a period of illness, Mr. Alder passed away in January 1994.
[7] Mr. Alder's estate did not have the resources necessary to raise the cottage and therefore opted to sell the property to Brian Davey in May 1994 for $2.00.
[8] Mr. Davey used the land recreationally, placing a tent trailer there as well as docking his and his family's boats. He stated that over the 10-year period that he owned the property he "never gave up trying to find affordable techniques to raise the house" but that he simply did not have enough money. During the course of his ownership, the boathouse was demolished.
[9] In 2004, Mr. Davey sold the property to Donald Grant for $20,000. Mr. Grant's common-law partner intended to use the land residentially but, in the interim, leased the land to tenants who moored their houseboat to the sunken cottage and used the roof of the sunken cottage as a sort of deck.
[10] The respondent purchased the property in July 2005. Prior to selling the property, Mr. Grant's common-law partner wrote to the Lake Simcoe Conservation Authority requesting permission to upgrade the cottage's support pilings.
[11] Because the property is within the regulatory flood plain of a provincially significant wetland, the respondent Corporation of the Town of Bradford West Gwillimbury and the Conservation Authority have concurrent jurisdiction over it.
[12] The Conservation Authority responded to the inquiry in August 2005 indicating that a permit from it was not required for the proposed work. A copy of this response was sent to the town.
[13] In December 2005, the respondent wrote to the Conservation Authority requesting a site clearance for the property. In the letter the respondent indicated that "work to be done to existing building is to replace wood negatively affected by mold and decay due to moisture."
[14] The respondent was advised that a permit from the Conservation Authority was not required for the proposed work and the town was copied with the Conservation Authority's response.
[15] In February 2006, the respondent started to raise the submerged cottage. In late March 2006, representatives of the town went to the property in response to a complaint and advised the respondent to stop his work as he had not obtained a building permit. A stop work order followed shortly thereafter. The respondent complied.
[16] In September 2006, the respondent applied for a building permit. The town's chief building official, the appellant Jack Tosta, denied the application because, in his view, the proposed work did not comply with the town's zoning bylaw and, as the cottage had been abandoned, it was no longer allowed as a legal nonconforming use.
[17] In response to the refusal, the present application was brought.
The Zoning Bylaws
[18] The zoning bylaws respecting the use of the subject property have changed over time. In 1958, when the boathouse and loft were built, Bylaw 869 was in effect. Pursuant to this bylaw, no dwelling or accessory building could be erected on a lot having "street frontage" of less than 40 feet.
[19] In 1963, when the cottage was built, Bylaw 1009 was in effect. It zoned the property as agricultural but allowed for the construction of a cottage on such lands provided that the cottage fronted on a public street or highway and was not occupied more than 6 months in any calendar year. It also permitted buildings used for, amongst other things, the storage of boats.
[20] In 1971, Bylaw 2263 came into force. Pursuant to that bylaw, the land continued to be zoned agricultural, however, a person could not use the land or erect or use a building or structure except for listed agricultural uses. The listed uses did not include building or using a cottage building or using a property for docking a boat.
[21] The application judge found that, as of the date that Bylaw 2263 came into effect, the land, cottage and boathouse had always been lawfully used by the property owners and these uses had not been abandoned or otherwise discontinued within the meaning of the law. Consequently, the current owners had a legal nonconforming use with respect to the property and buildings.
Issues
[22] On appeal, the appellants argue that:
the property was never lawfully used for residential purposes and, when it was built, the construction and residential use of the cottage was not lawful; and
in any event, the use of the property and cottage for residential purposes has not been continuous since Mr. Alder vacated the cottage in 1991, and, as a result, any status as legal nonconforming use was lost.
[23] For the reasons that follow, I am of the view that the application judge erred in concluding that any legal nonconforming use of the cottage that may have existed when Bylaw 2263 was adopted has continued to the present day. As a result, I need not address the first issue raised by the appellants and will assume, without deciding, that the use in 1971 of the cottage was lawful. However, I am also of the opinion that the respondent does enjoy a right to use the property for the purpose of docking boats, though they do not have a right to erect any new structures for this purpose.
Discussion
[24] It is accepted by the parties that the property's current zoning prohibits the construction of a cottage and prohibits the use of any building located on the property as a cottage.
[25] The issue, therefore, is whether the respondent is entitled to carry out the remedial work on the sunken structure on the basis that the status of the building as a legal nonconforming use was never lost.
[26] Legal nonconforming uses constitute exceptions to the requirement that property owners must comply with municipal zoning bylaws. Provision for nonconforming uses is made in s. 34(9) of the Planning Act, R.S.O. 1990, c. P.13. It reads as follows:
Excepted lands and buildings
- (9) No by-law passed under this section applies;
(a) to prevent the use of any land, building or structure for any purpose prohibited by the by-law if such land, building or structure was lawfully used for such purpose on the day of the passing of the by-law, so long as it continues to be used for that purpose; or
(b) to prevent the erection or use for a purpose prohibited by the by-law of any building or structure for which a permit has been issued under subsection 8(1) of the Building Code Act, 1992, prior to the day of the passing of the by-law, so long as the building or structure when erected is used and continues to be used for the purpose for which it was erected and provided the permit has not been revoked under subsection 8(10) of that Act.
[27] In order to prove a legal nonconforming use, a party must prove that:
the use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and
the previously lawful use has continued thereafter.
See Rotstein v. Oro-Medonte (Township) (2002), 34 M.P.L.R. (3d) 266 (Ont. S.C.), at para. 35.
[28] As set out in Ian MacFee Rogers & Alison Scott Butler, Canadian Law of Planning and Zoning, 2d ed., looseleaf (Toronto: Carswell, 2009), at para. 6.2.1:
The general intention of planning legislation is eventually to eliminate non-conforming uses and replace them with permitted uses; thus the council may be said to zone out such uses. This is based on the premise that such a use is undesirable because it is incompatible with the existing permitted uses but is to be tolerated because it was a lawful use prior to its prohibition by by-law. It has been said that gradual elevation of a district is an end towards which progress should always be made.
[29] As indicated earlier, I will, for purposes of this decision, assume that the original construction and use of the now-sunken cottage constituted a permitted use at the time that Bylaw 2263 was enacted. I will also assume that the use continued at least until Mr. Alder moved out in 1991. The remaining issue, therefore, is whether the legal nonconforming use status was lost in the period between 1991 and 2005.
[30] The respondent maintains that the legal nonconforming use status of the cottage was not lost. In support of his submission he argues that, as found by the application judge, there was continuous use of the property for residential purposes and, even if the use for residential purposes was discontinued as a result of the cottage sinking into the water and mud, each of the successive owners intended to return the cottage to use. Such an ongoing intention serves to preserve the legal nonconforming use status of the building.
[31] The critical period for analysis is from 1991 when Mr. Alder moved out of the cottage until 2005, when the respondent purchased the property. It is uncontested that during this period the cottage was uninhabitable as it was largely submerged in the Schomberg River. In the absence of actual habitation, was the intention to use the cottage enough to prevent the loss of the nonconforming use during this period?
[32] To establish a legal nonconforming use s. 34(9) of the Planning Act provides that the respondent must establish both an intention to use and the continuation of the actual use so far as possible in the circumstances.
[33] The application judge found that both elements of the test were satisfied for the relevant period. Specifically, the court found that even though the cottage was uninhabitable during that period, Mr. Alder did not have the funds to carry out the repairs, Mr. Davey had maintained the residential use of the property as far as possible through his regular use of a tent trailer and Mr. Grant's common-law partner maintained the use to the extent possible by renting the property to tenants who used the cottage as a place to dock their houseboat. With respect to the 10 years of ownership by Mr. Davey, the application judge accepted Mr. Davey's testimony that he always intended to raise the cottage and use it as a residence but that he was impecunious.
Was the cottage used?
[34] In my view, the application judge erred by conflating the use of the land for a purpose such as parking his tent trailer with the use of the cottage. The central issue is the respondent's ability to raise the cottage out of the mud and water, reconstruct it and put it back into use and the application judge's order requiring the issuance of the required building permit.
[35] In 1971 when Bylaw 2263 was passed, Mr. Alder was residing in the cottage and, in addition, was using the balance of the property for recreational purposes such as the docking of his boat. The Bylaw restricted both the use of the property and the erection and use of any structure, except for certain listed agricultural uses. Residential or recreational uses were not allowed.
[36] Bylaw 2263 provided that:
Nothing in this Bylaw shall prevent the continuance in any Zone of a use existing on the date of the passage of this Bylaw, including the repair and renovation of existing buildings subject to the provisions of this Bylaw respecting setback, yard requirements and height, so long as it continues to be used for the same purpose.
[37] In the bylaw, "use" is defined as "the purpose for which a lot or building or structure or any combination thereof is designed, arranged, occupied or maintained" (emphasis added). The definition therefore clearly makes a distinction between the lot and the building or structures erected thereon. This distinction is consistent with s. 34(9) of the Planning Act where the same distinction is made in para. (a) between use of land, a building, or a structure. As a result, the use made of the lots and existing buildings should be looked at separately from erecting or rebuilding a structure when considering nonconforming uses.
[38] With this distinction in mind, I turn now to a brief review of the relevant facts as they relate to the use of the cottage structure. Until 1991, Mr. Alder lived full time in the cottage. As it sunk into the mud and water he attempted to shore up the building and continued to use it until the water in the cottage became too deep. Although he left the cottage in 1991, he maintained an intention to fix the problem and return to live in the cottage. He did not have the money to raise the cottage, but he did periodically place sand around the building in an attempt to stop its sinking. He later became ill and died in 1994 without having carried out the intended repairs.
[39] By 1994, after Mr. Alder's death, the estate became concerned about the potential liability with respect to the property as it could not afford to retain someone to take down or secure the boathouse or cottage.
[40] As a result, in 1994, the estate decided to sell to a neighbour, Lorraine Davey. Because Davey did not want the property to merge with neighbouring properties that she owned, she decided that her son Brian Davey would purchase it. Mr. Davey then purchased the property for $2. As a result of this purchase the Davey family now owned four properties on Private Drive: The subject property No. 27, as well as No. 37, No. 41 and No. 47. Lorraine Davey resided seasonally at No. 37 and her mother resided seasonally at No. 47. From the record it is not clear who, if anyone, resided at No. 41. The structures at No. 37 and 47 had also previously begun to sink into the mud. They were raised and placed onto new piles in the 1980s.
[41] Brian Davey deposed that he and his mother "enjoyed the use of our family's properties on Private Drive over the years" and, with respect to the subject property "I docked my boats on the property as well as my family's other boats. I placed a tent trailer on the land and resided in it when I was present on the land, which was a very quiet and scenic location next to the river." Mr. Davey also used a backhoe to create parking spaces on the property that were used for his and his family members' vehicles.
[42] The four Davey properties on Private Drive appear, therefore, to have operated as a type of family compound with the subject property being used as a place to dock family boats and park family cars.
[43] Brian Davey's use of the property, to dock boats and occasionally to stay in a tent trailer is of little relevance to the continued use of the cottage structure. On the evidence, it is clear that from 1994 to 2004, use of the cottage structure for the purpose for which it had been built had been wholly discontinued.
[44] Further, the fact that in 2004 and 2005 the property was rented to tenants who docked the houseboat to the roof of the cottage and who used the cottage roof as a deck does not, in my view, constitute use of the cottage for the purpose for which the building was designed, arranged, occupied or maintained as required by the bylaw. It cannot be maintained that docking a house boat on the roof of the cottage falls within the properly defined scope of the original nonconforming use; it is not a change in intensity, but rather a change in kind: see Saint-Romuald (City) v. Oliver, 2001 SCC 57, [2001] 2 S.C.R. 898. It cannot, therefore, amount to the "residential use of the bungalow" as the application judge found. In any event, even if it amounted to residential use, it could not revive a legal nonconforming use if that use had been lost over the course of the preceding 10 years.
Was the intention to repair the cottage sufficient to preserve the right?
[45] The respondent argues that Mr. Davey's intention to raise the cottage out of the mud and water and renovate it was sufficient to preserve the legal nonconforming use even if use of the cottage had been wholly discontinued during that period. I disagree.
[46] In Haldimand-Norfolk (Regional Municipality) v. Fagundes (2000), 11 M.P.L.R. (3d) 1, this court quoted with approval the Ontario Municipal Board's decision in 572989 Ontario Inc. v. North York (City) Committee of Adjustment, [1997] O.M.B.D. No. 976 (QL) wherein the Board found, at para. 10, that "In all the cases of vacancy where the Court or the Board found that the use had continued despite the vacancy, there was some reasonable explanation for the vacancy or some circumstance at least partially outside the owner's control that temporarily prevented the use" and that "if intention was determinative, the intention was at least an active intention consistent with the spirit of the provision."
[47] In my view, the evidence in this case falls far short of the active intention consistent with the spirit of s. 34(9) of the Planning Act.
[48] Although the application judge relied on Mr. Davey's impecuniosity to explain his failure to undertake the work necessary to raise the cottage and render it habitable, in my view, a lack of funds cannot justify inaction in the circumstances of this case for such an extensive period. Impecuniosity may well be a valid consideration for Mr. Alder who had been residing in the cottage for many years prior to its sinking into the mud and water. His lack of funds and illness were circumstances truly beyond his control, and his continued genuine intention to use the cottage and the steps he took to try and shore up the cottage may well have preserved the nonconforming use during his tenure.
[49] The situation, however, is quite different for Mr. Davey. He purchased the property for $2 fully aware of the need to raise the cottage if the nonconforming use was to be preserved. The fact that he did not have the funds to do so cannot, in light of his informed choice to purchase the property, preserve the nonconforming use status of the cottage for the 10 years that he owned it. A purchaser of a property in circumstances such as these needs to do more than simply maintain an intention to resume use of the property. The intention to resume a use must be coupled with reasonable steps to resume that use. Keeping in mind the general intention of the planning legislation to eventually eliminate nonconforming uses, it is neither unfair nor inequitable to require that Mr. Davey, as purchaser, act within a reasonable time to resume the use in question. He simply cannot justify such an extensive delay by reference to costs he knew or ought to have known would have had to be incurred when he made the decision to purchase.
Use of the Land for Boat Docking
[50] While the residential use of the cottage has been lost, I am of the view that the respondent continues to enjoy a right to use the land generally for the docking of boats.
[51] The affidavit of John Luff indicated that, as early as 1953, boats had been docked at the subject property. A photograph taken in 1953 and attached as an exhibit to his affidavit shows a docked boat on the river at 27 Private Drive. During this period, the property was zoned under Bylaw 869. While this bylaw prohibited a "garage or other outbuilding" from being used as a "residence or living quarters" and regulated the erection of a "dwelling or accessory building", it neither prohibited the docking of boats nor barred the erection of a dock on the subject property.
[52] The application judge found that Luff, Alder, Davey and Grant each docked boats or allowed boats to be docked on the land during their respective periods of ownership. These activities could, as I have noted, be traced back to the docking of boats on the property in 1953, even prior to the erection of the boathouse by Maurice Delight around the spring of 1958, and certainly prior to the passage of Bylaw 1009.
[53] While the appellants argue that the boathouse was never lawfully erected as it violated the "street frontage" requirements contained in Bylaw 869, in my view, this does not affect the legality of the docking of boats that occurred in the 1950s. As I have already noted, Bylaw 869 did not prohibit the erection of a dock, nor did it prohibit the use of land for boat docking purposes. This use of 27 Private Drive was a permitted use from 1953-1958, and the owners of the subject property have continuously put the property to this use ever since.
[54] Although the practical ability to use the land to dock boats may be limited by the destruction of the boathouse and the inability to raise the cottage, I see no reason to interfere with the application judge's finding that such activities occurred since before the passage of Bylaw 869. It follows that in all of the circumstances, this particular nonconforming use continues to this day. However, as I have noted previously, a use referable to the land does not automatically give rise to a right to erect or rebuild new structures or buildings. While the respondent may continue to dock boats on the property, this does not mean that he has a right to erect new structures for that purpose, unless they conform with the current zoning Bylaw.
Estoppel
[55] The respondent takes the position that the letters sent to the conservation authority put the Municipality on notice as to his plans to raise the cottage, and by their silence, they have become estopped from opposing his attempts to do so. Although the respondent argued estoppel before the application judge, the application judge made no finding in that regard. The respondent asks that, in the event the appeal is granted, the matter be remitted to the court of first instance to consider the issue of estoppel. I see no reason to do so.
[56] The general principle of estoppel by representation is aptly stated in Jill E. Martin, Hanbury and Martin: Modern Equity 16th ed. (London: Sweet & Maxwell, 2001), at p. 891:
[A] person who makes an unambiguous representation, by words, or by conduct, or by silence, of an existing fact, and causes another party to act to his determent in reliance on the representation will not be permitted subsequently to act inconsistently with that representation. [Emphasis added.]
[57] Where a party seeks to invoke estoppel on the basis of silence, they must show that the party to be estopped was under a duty to make a statement, in the sense that in all of the circumstances their failure to communicate the actual state of affairs to the other party is dishonest: see Fung Kai Sun v. Chan Fui Hing, [1951] A.C. 489 (P.C.), at p. 501.
[58] The estoppel argument is based, almost exclusively, on the fact that a copy of two pieces of correspondence from the Conservation Authority were sent to the town. Both documents simply state that "[t]he type of work shown on the attached plan does not require a permit from the Conservation Authority." It did not indicate or even suggest that the work did not require approval by the chief building official of the town.
[59] The fact that the town received a copy of these letters did not impose a duty on the town to advise the respondent of his obligations under the law or to otherwise act in response to their receipt. The town's silence could not reasonably be said to constitute a "dishonest" assertion that the respondents did not require a municipal building permit. At its highest, the Municipality might be estopped from arguing that a permit from the conservation authority was required. This argument has never been relied upon by the respondent.
Conclusion
[60] In conclusion, I would allow the appeal, set aside the application judge's decision and substitute therefore a declaration allowing for the continued nonconforming use of the land for the purpose of docking boats, without the ability to erect new buildings or structures. I would award the appellants their costs of the appeal fixed at $10,000 and of the application below also at $10,000, both inclusive of disbursements and GST.
"Paul Rouleau J.A."
"I agree Robert J. Sharpe J.A."
"I agree Gloria Epstein J.A."
RELEASED: June 16, 2010