Patricia A. Foran

The respondent sought a building permit to raise and renovate a cottage that had been submerged and uninhabitable for 14 years.

The municipality refused, arguing the legal nonconforming use had been lost.

The application judge ordered the permit issued, finding the successive owners' intention to repair preserved the use.

The Court of Appeal allowed the municipality's appeal, holding that intention alone, without reasonable steps to resume the use, is insufficient to preserve a legal nonconforming use over such an extensive period.

However, the Court declared that the respondent retained a legal nonconforming use of the land for docking boats, though no new structures could be erected.

Following the dismissal of two related appeals brought by groups of developers, the successful municipal respondents sought costs.

The City of Mississauga sought partial indemnity costs of $70,379.25, while the Region of Halton and City of Burlington sought full indemnity costs of approximately $176,000.

The Court of Appeal determined that costs should follow the event on a partial indemnity scale.

Considering the complexity of the issues, the prior proceedings before the Ontario Municipal Board and Divisional Court, and the consolidated hearing, the court awarded $50,000 to Mississauga and $50,000 to Halton and Burlington.

Developers appealed decisions of the Divisional Court regarding the interpretation of 'conflict' under O. Reg. 82/98 between pre-existing subdivision agreements and municipal development charge by-laws.

The Court of Appeal held that the Divisional Court correctly applied a standard of correctness to the Ontario Municipal Board's decisions.

The Court affirmed that a conflict exists only if the subdivision agreement, properly interpreted, precludes the infrastructure charges imposed by the development charge by-law.

The appeals and cross-appeal were dismissed.