COURT FILE NO.: Divisional Court 94/04
DATE: 20050401
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Umberto Basso and Sylvia Basso, Applicants, Moving Parties;
-and-
Corporation of the Township of King, et al., Respondents.
HEARD: March 18, 2005
BEFORE: Lane J.
COUNSEL: Michael Melling and Amber Stewart, for the moving parties;
Josephine A. Matera and Eileen P. Costello, for the Respondents
E N D O R S E M E N T
[1] This is a motion for leave to appeal to the Divisional Court from the decision of the Ontario Municipal Board (“Board”) dated February 9, 2004. The applicants applied to the respondent Township for planning permission to erect a building to house a “bed and breakfast establishment” (“B&B”) on their property being part of lot 17, Con 5 in the Township. The Township Council refused to amend the relevant by-law and the applicants appealed to the Board. As a preliminary matter, to avoid the expense of a full planning hearing, the applicants asked the Board to determine a question of law: Whether a bed and breakfast establishment as defined in section 3(1) of the Oak Ridges Moraine Conservation Plan[^1] (“Conservation Plan”) is a permitted principal use of the applicants’ lands under section 11(3) of that document and is not an accessory use to a permitted principal use? The Board decided that a B&B was not such a principal use. The applicants seek leave to appeal from that decision.
[2] The applicants' lands are zoned RU1 and do not have frontage on a public street. They access their lands via a private road, Strawberry Hill Trail. The zoning by-law prohibits the erection of any building unless there is a minimum frontage on a public street. Hence, to build on their lands, the applicants sought and were refused relief from this restriction.
[3] In addition to the zoning by-law, the applicants' lands are governed by the Official Plans of the Township and of York Region. Under the former, the lands are designated ‘Rural’ and under the latter, ‘Rural Policy Area’. There are no references to B&B establishments in the policies applicable to these designations. Under the Conservation Plan the applicants' lands are designated as ‘Natural Core Area’ and single-family dwellings are permitted if they would have been permitted by the applicable zoning, as of November 15, 2001, and B&B are a specifically permitted use.
[4] The Township Planning Department recommended against the applicants’ proposed zoning amendment because of their opinion that the establishment of a new B&B as a new principal use was not permitted, although a B&B could be established as a new accessory use to a permitted principal residential use. As there was no existing principal residential use on the lands, the proposed amendment should not be allowed. Council rejected the proposed amendment and the applicants appealed.
[5] The Board held a hearing to determine the question of law. It heard an expert planner, Mr. David Sit, employed by the Ministry of Municipal Affairs and Housing, who opined on the meaning of the relevant sections of the Conservation Plan. In essence, he stated [^2] that his analysis of the legislation showed that the government did not intend to permit the erection of a single [family] dwelling in the Natural Core area merely because it is being proposed as a bed and breakfast establishment. The permission for the new dwelling must be found elsewhere in the legislation, specifically in sections 6, 7 or 8 of the Conservation Plan. Section 6 protects uses already lawfully in existence as of November 15, 2001, the inception date of the Conservation Plan, and the expansion or conversion of such uses, subject to certain conditions. Section 7 permits the erection of a single dwelling if permitted by the zoning in effect at November 15, 2001 provided there is no adverse effect on the ecological integrity of the area. Section 8 permits the erection of a building where authorized by the approval of an application commenced before November 17, 2001 and approved thereafter and also applications for further approvals in relation to existing conditional approvals. None of these sections assists the present applicants.
[6] In its reasons, the Board gave considerable weight to Mr. Sit’s opinions as to the objectives, purposes and permitted uses under the Conservation Plan. The board considered the definition of a B&B in the Conservation Plan:
Means an establishment that provides sleeping accommodation [and meals etc.] for the traveling or vacationing public in up to three guest rooms within a single dwelling that is the principal residence of the proprietor of the establishment.
[7] The Board then found:
..that the plain meaning of this definition is that the permitted use is irrevocably tied to a single dwelling; that importantly, is located within that dwelling and limited to three guest rooms; and further that such a single dwelling must be an existing principal residence of the proprietor. The bed and breakfast establishment changes an existing residential use by adding a guest residence to the principal residence or use.
[8] In its analysis of the definition, the Board considered that the use of the phrase “that is the principal residence”, was significant as it was in the present tense and not the future, which the Board found to be consistent with the objectives of the Conservation Plan although it did not specifically identify the objectives to which it was referring.
[9] The Board then placed its explanation of this definition into the context of the Act and the Conservation Plan and found that the interpretation was consistent with the objectives of these documents:
The clear intent of the Conservation Plan is to limit uses and the intensity of uses within the whole of the Conservation Plan area, but particularly to do so within the Natural Core Area. Residential uses are prohibited unless presently existing or unless they meet the tests required and detailed clearly in sections 6, 7 and 8.
A bed and breakfast establishment in an existing dwelling that is a principal residence would meet the objective of adding a “very restricted new resource management, agricultural, low intensity recreational” or “home businesses”. In contrast, the applicant’s interpretation would allow for the creation of new single dwellings, and then provide for their intensification, where no such right exists today. This interpretation would clearly defeat the purpose of the legislation and the Conservation Plan.
[10] In this analysis the Board refers only briefly to the section on which the applicants most heavily rely, section 11(3) of the Conservation Plan. Section 11 is found in a part of the Conservation Plan headed: “Natural Core Areas”. It is thus specific to the lands of that designation, including the lands of the applicants. It begins by reciting the objectives of the Natural Core Area, including preservation and restoration of key natural heritage features, hydrologically sensitive features, wildlife habitat and landform features, accommodating a trail system and in subsection 2(b) “providing for limited economic development that is compatible with” the other objectives.
[11] Section 11(3) provides for certain uses which are permitted in the Natural Core, including bed and breakfast establishments and several similar uses such as farm vacation homes. The Board found that the definition of B&B, which, as noted, it felt did not speak to a future principal residence, but only to an existing one, ruled out erection of a new building and only allowed a new use in an old building. It did not consider whether the effect of subsection 2(b) might signal that some new development of permitted uses was contemplated.
[12] In short, the Board has permitted an interpretation of a definition to effectively over-rule the Conservation Plan’s explicit statements that a B&B is a permitted use in the Natural Core Area and that some development in that area is permitted.
[13] The test for granting leave is the well-known one requiring a showing of good reason to doubt the correctness of the Board’s interpretation of the legislation plus a showing that the point of law is one warranting appellate attention.
[14] With respect to correctness, the leave court does not have to actually disagree with the decision; it is enough to find that the correctness of the decision is open to serious debate. The heart of the decision is the concept that the B&B can only be established in a dwelling that already exists. This requirement is nowhere specifically set out; it is inferred by the Board. In his cross-examination, Mr. Sit, to whose opinion the Board gave great weight, admitted[^3] that there were at least two clearer ways in which that intention, if it actually existed, could easily have been framed by the draftsperson. He also conceded that the uses “home business” and “home industry” were expressly described as accessory to a single dwelling in the Conservation Plan, language which does not appear in the B&B definition. The emphasis by the Board on the use of the present tense in the B&B definition seems problematic. Does it speak to the present-day use, or does it speak to the need for the co-existence in the future of the two uses, principal residence and B&B? The Board has given little consideration to section 11. In my view, the Board’s analysis of the Conservation Plan is open to serious debate.
[15] The second branch of the test is whether the point of law warrants the attention of an appellate court. The Board’s decision is a highly restrictive interpretation of an important new piece of legislation affecting a huge swath of land with many landowners affected. While the B&B question may be a narrow one, as the respondent contends, the Board’s restrictive approach may be expected to be duplicated in interpreting other sections if left unchallenged. It appears that no court has as yet considered the correct approach to the interpretation of this complex legislation. I think that the matter warrants the attention of the Divisional Court.
[16] For these reasons leave to appeal is granted. Costs of the motion for leave reserved to the panel hearing the appeal.
Lane J.
DATE: April 1, 2005
[^1]: Ont. Reg. 140/02 made under the Oak Ridges Moraine Conservation Act, 2001, S.O. 2001, c. 31
[^2]: Transcript in chief, pages 56 to 63.
[^3]: Transcript, page 101.