Court of Appeal for Ontario

Date: 2018-06-28 Docket: C64986

Judges: Simmons, Huscroft and Miller JJ.A.

Between

Margaret Hutchinson Applicant (Appellant)

and

The Corporation of Norfolk County and Debono Greenhouses Ltd. Respondents (Respondents)

Counsel

Michael Bordin, for the appellant

Mark Abradjian, for the respondent Corporation of Norfolk County

Dennis M. Touesnard, for the respondent Debono Greenhouses Ltd.

Heard: June 19, 2018

On appeal from the order of Justice Donald J. Gordon of the Superior Court of Justice, dated January 10, 2018.

Reasons for Decision

[1] The appellant homeowner resides approximately 450 metres from the respondent greenhouse owner's business, which includes 37 greenhouses. Seventeen of those greenhouses are heated by wood that the respondent has delivered to the greenhouse property. The greenhouse owner stores the wood on site and grinds it into woodchips.

[2] The appellant sought a declaration that storing and grinding wood on the property contravenes the Corporation of Norfolk County's Zoning Bylaw I-Z-2014, which in relevant part provides as follows:

1.4.3 (b) where the main use is wholly situated in one zone, an accessory structure or use may be permitted in any other Zone than the Provincially Significant Wetland Zone (PSW) provided it meets all provisions of section 3.0 except non-residential accessory structures shall not be permitted in residential zones.

2.3 "ACCESSORY USE" shall mean a use naturally and normally incident to, subordinate to and exclusively devoted to a principal use and located on the same lot herewith.

[3] The appellant had several complaints about the respondent greenhouse owner's use of wood, including noise, environmental harm, fire hazard and property devaluation. The application judge found that the appellant's evidence was subjective and speculative, but in any event the appellant's "real complaint" was non-compliance with the bylaw, which did not depend on this evidence.

[4] Storing and grinding wood is not a permitted use under the bylaw, so it was incumbent upon the respondent to establish that it was an "accessory use" of the greenhouse operation within the meaning of the bylaw.

[5] The application judge interpreted the bylaw as requiring that an accessory use be:

i) naturally and normally incidental to the principal use, namely not unnatural or abnormal;

ii) subordinate to the principal use;

iii) exclusively devoted to the principal use; and

iv) located on the same lot as the principal use.

[6] Applying this approach, the application judge found that storing and grinding of wood is naturally and normally incidental to the principal use, and is clearly subordinate and devoted to the permitted use of the greenhouse property. He issued a declaration that storing and grinding of wood is an accessory use to the property.

[7] The appellant submits that the application judge failed to consider the plain and ordinary meaning of the terms "naturally and normally incidental". The appellant says that it means the same as "customarily incidental" – a requirement found in other bylaws – and that both phrases indicate restrictive interpretations of accessory use. The appellant contends that evidence of customary use is required to establish accessory use; that the application judge erred in concluding that there was sufficient evidence; and that he relied on hearsay and irrelevant considerations in reaching his decision in any event.

[8] We disagree.

[9] There is no need to determine whether or the extent to which the language of this bylaw differs from language in other bylaws. The words of this bylaw are to be interpreted and applied in the context of the bylaw as a whole.

[10] In determining the meaning of "naturally and normally incidental", it is of no assistance to frame the question in the negative, asking whether a proposed accessory use is "not unnatural or abnormal", as stated in Noddle v. City of Toronto et al (1982), 37 O.R. (2d) 421 (H.C.) and Doublerink Arenas Ltd. v. North York (City) Chief Building Official, [1996] O.J. No. 2493 (Gen. Div.). That a use is not abnormal does not necessarily mean that it is normal.

[11] Accessory use is a concept common to zoning bylaws. It provides a measure of flexibility in using property. It is not necessary to give the term a restrictive interpretation, as the appellant submits, but nor is it appropriate to give it an overly expansive interpretation. In every case, the question is simply whether a particular use meets the definition considered in the context of the bylaw as a whole.

[12] It is not contested either that the storing and grinding of the wood is for the purpose of heating some of the greenhouses, or that this method of heating is legally permissible. The sole issue concerns storage and grinding of the wood on-site.

[13] In our view, the application judge made no error in concluding that the storage and grinding of wood is an accessory use of the land. If heating a greenhouse by burning wood chips is naturally and normally incidental to operating a greenhouse, as is conceded, it is a very short step to the further conclusion that processing the wood for burning, and storing the wood prior to that, are similarly natural and normal incidents of heating a greenhouse. In this regard, we note that the bylaw definition of "accessory building or structure" refers to a "storage or shelter of materials" as an example of an accessory use. The woods chips are not used for any purpose other than heating the greenhouses, and neither is the wood stored for any purpose other than to be processed into fuel to heat the greenhouses.

[14] This result obtains regardless of whether there is evidence of any other greenhouses storing and grinding wood in this manner. But we note, in any event, that there was at least some evidence that another greenhouse in Ontario grinds its fuel on site, in addition to evidence (from a website) suggesting that another greenhouse may do so. The admissibility of this evidence may have been debatable, but no objection to its admissibility was made before the application judge.

[15] There is no basis to interfere with the application judge's findings that the storage and grinding are 1) subordinate to the principal use of the property for greenhouses; 2) devoted exclusively to that use; and 3) located on the same lot as the greenhouses.

[16] Accordingly, the appeal must be dismissed.

[17] We note that neither the respondent the Corporation of Norfolk County nor Debono Greenhouses Ltd. sought relief in response to the appellant's application. Despite this, rather than simply dismissing the appellants' application, as the respondents requested, the application judge made an order declaring that Debono's use is an accessory use to the commercial greenhouses on its property.

[18] No issue was raised on appeal by any of the parties concerning the propriety of this order. Nothing in these reasons is to be taken as sanctioning the application judge's decision to make a declaration in the circumstances.

[19] The appeal is dismissed.

[20] The respondent Debono Greenhouses Ltd. is entitled to costs in the agreed amount of $6,000, inclusive of taxes and disbursements and there is no order as to the costs of the respondent the Corporation of Norfolk County on the appeal or the underlying application.

"Janet Simmons J.A."

"Grant Huscroft J.A."

"B.W. Miller J.A."