COURT FILE NO.: CV-22-0052-00
DATE: 2022-10-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Paulette Celinski and George Celinski Applicants
- and -
Lakehead Rural Planning Board Respondent
COUNSEL: C. Bryson, for the Applicants J. Savini, for the Respondent
HEARD: July 19, 2022 at Thunder Bay, Via Zoom
BEFORE: Mr. Justice J.S. Fregeau
Decision On Motion
INTRODUCTION
[1] The applicants are residents of the unorganized Township of Gorham and reside approximately one kilometer south of property owned by Nadin Contracting Ltd. (“Nadin”), legally described as N Part Lot 1, Concession 3 North, Gorham Township (the “property”).
[2] Nadin is a contracting company headquartered in Thunder Bay, primarily conducting business as a municipal sewer and water contractor. Nadin also undertakes residential and commercial land development works. Nadin’s operations further include aggregate resource extraction and the processing and sale of aggregate resources.
[3] The Lakehead Rural Planning Board (the “Board”) is a planning board created by the Ministry of Municipal Affairs and Housing pursuant to the Planning Act, S.O. 1983, c. 1. The Board provides planning services for, among others, the unincorporated Township of Gorham.
[4] The applicants challenge the zoning applicable to the property. First, the applicants seek a declaration that Zoning By-Law Amendment #001-06 (the “2006 ZBA”), being an amendment to Zoning By-Law #001-98 (the “1998 ZB”), and which permitted aggregate extraction on the property, is of no force and effect. Second, the applicants seek a declaration that aggregate resource extraction and processing on the property as proposed by Nadin is not a legal non-conforming use of the property.
[5] The Board, which implemented the zoning by-laws in question, maintains that the present zoning permits aggregate extraction on the property as proposed by Nadin, pursuant to the transitional provisions in the 2014 Comprehensive Zoning By-Law (the “2014 CZB”). In the alternative, the Board submits that the aggregate extraction and processing contemplated by Nadin is a legal non-conforming use of the property.
BACKGROUND
[6] Nadin purchased the property on July 16, 1999. At that time, it was zoned Rural (RU), which did not allow for pit and quarry aggregate operations.
[7] It is not in dispute that the property is in an area with several other gravel pits and quarries and is in a significant location for aggregate resource deposits for the District of Thunder Bay. It is also not in dispute that Nadin purchased the property for the purpose of future commercial aggregate extraction.
[8] Nadin began developing the property in 2000 with the construction of a private access road. Aggregate materials from the subject property were used to construct the access road to a standard to allow dump trucks and other heavy equipment to access the property.
[9] In 2006, Nadin applied to the Board for a zoning by-law amendment to the 1998 ZB to rezone the property to Extractive Industrial (M2) to facilitate the operation of a gravel pit. The Board approved Nadin’s application and granted the requested zoning by-law amendment (the “2006 ZBA”) pursuant to By-Law 001-06, dated September 7, 2006.
[10] Nadin began to use the property intermittently for commercial aggregate extraction beginning in 2006 or 2007, with the sale of gravel and other aggregate material to residents in the surrounding area. Stockpiles of materials were also kept on site to facilitate the sale and delivery of gravel or other aggregate materials.
[11] Norman Nadin, Secretary-Treasurer and a Director of Nadin, provided evidence on behalf of Nadin for this application. Nadin has no written records regarding the sale of material prior to 2012.
[12] According to Mr. Nadin, the company sold and delivered “significant quantities of gravel, topsoil and aggregate” to Mr. Scott Gibson in Gorham Township “probably around …’06, ’07, somewhere like that”. In and around the same time, Nadin sold and delivered gravel, aggregate and topsoil excavated from the property to Mr. Lloyd Fournier and Mr. Vic Miller of Gorham Township for the development of their residential properties.
[13] Mr. Nadin deposed that, at some point in time after 2006 but prior to 2014, Nadin sold and delivered approximately “300 loads” of aggregate material extracted from the property to Mr. David Dashue of Gorham Township for the development of a commercial greenhouse operation.
[14] Mr. Nadin further deposed that, in general terms, materials were extracted from the property and sold to residents in the area “probably from 2005 or ‘06 to probably 2010, periodically we were in and out of there. And then we were back in there…I’m going to say maybe 2012. But material was used only to upgrade the road so we didn’t actually sell it to individuals, it was for upgrading”.
[15] In and around 2012 and 2013, Nadin began developing the Gemstone Estate subdivision in Thunder Bay. Aggregate materials from the property were used during the development of the subdivision, including the installation of the utilities and municipal services required, between August 2012 and June 2014.
[16] Mr. Nadin deposed that, in or around 2016, Nadin expanded aggregate extraction activities at the property due to the depletion of other aggregate resources. This apparently resulted in increased development of the gravel pit for the excavation and processing of gravel, stone, sand, and other aggregates.
[17] Work at the property was suspended in late 2016/early 2017 as a result of the introduction of new licensing requirements for aggregate resource extraction which required Nadin to apply for and obtain the required aggregate license, as detailed below.
[18] In 2013, the Board enacted the Official Plan for the unorganized Townships of Gorham and Ware. In the Official Plan the property is designated as Rural. Section 3 – Land Use Policies, Rural, subsection 3.2.3 of the Official Plan states that “it is the intent of the Rural designation to permit and encourage such rural uses as…aggregate resource extraction [and] pits and quarries”.
[19] It is not in dispute that the Official Plan contemplates aggregate resource extraction and pits within the Rural designation.
[20] In 2014, the LRPB enacted a Comprehensive Zoning By-Law (the”2014 CZB”). The 2014 CZB repealed and replaced the 1998 ZB and amendments thereto, including the 2006 ZBA. The 2014 CZB zoned the property as Rural, which does not permit extractive uses.
[21] Part III of 2014 CZB, entitled “General Regulations”, includes provisions to address existing legal uses at the date of the passing of the by-law. The relevant provisions of Part III of the 2014 CZB are as follows:
No lands to which this by-law applies shall hereafter be used and no building and/or structure shall hereafter be erected, located, or used except in accordance with this By-law;
In addition to the uses specifically listed as being permitted in each zone hereafter, continuing use of lands or buildings established as a legal use by…By-law 001-98, shall be deemed to be legal as if it were contained in the list of permitted uses for the relevant zone in which such lands are located, notwithstanding that…By-law 001-98 [has] been rescinded;
Notwithstanding item 1 above, nothing herein shall prevent the use of any land, building,or structure for a purpose prohibited by this By-law if such land, building and/or structure was lawfully used for such purpose on the day that this By-law comes into effect.
[22] Part III 2 of the 2014 CZB is the transitional provision in issue on this application and seeks to specifically address other uses that existed at the time the 2014 CZB came into effect; Part III 4 is the legal non-conforming use provision and reflects the general “grandfathering” provisions set out in section 34(9)(a) of the Planning Act.
[23] As noted above, pursuant to changes to the Aggregate Resources Act, R.S.O. 1990, c A.8, new licensing requirements for aggregate resource extraction were introduced in 2017 requiring existing gravel pits and quarries to be licensed under the new regime. Nadin was therefore required to apply for a Class A Category 3 Aggregate License to continue its extraction activities at the subject property. Nadin’s application was submitted to the Ministry of Natural Resources and Forestry (the “MNRF”) on January 19, 2017. Within this application, Nadin applied for the removal of “unlimited” tonnes of aggregate/year within a license area of 74 hectares.
[24] Zoning of the subject property was a factor to be considered in the aggregate license application. The MNRF requested confirmation that the subject property was zoned to permit the proposed aggregate extraction activity. On February 23, 2016, the then Secretary-Treasurer of the Board provided a form to the MNRF stating that the subject property was zoned Extractive Industrial (M2), which permitted pit and quarry operations.
[25] Upon receiving the required notice of Nadin’s license application, residents of Gorham Township and the surrounding area, including the applicants, filed objections with the MNRF. The MNRF referred Nadin’s application to the Local Appeals Tribunal (the “Tribunal”), now the Ontario Land Tribunal, for a determination of the outstanding objections. Zoning of the subject property was not an issue that was referred to the Tribunal by the MNRF as the MNRF was apparently satisfied that the subject property was zoned to permit gravel pit operations.
[26] The final hearing with respect to the objections began on September 20, 2021. The remaining objectors, including the applicants, continued to raise concerns regarding the zoning of the subject property. The Tribunal granted a preliminary motion brought by Nadin that the zoning issue be struck because that issue was not listed in the referral letter from the MNRF as an issue to be dealt with. Ultimately, the Tribunal directed the MNRF to issue Nadin the Class A Category 3 License they had applied for respecting the subject property. This license was issued to Nadin on February 2, 2022.
[27] Subject to this application, Nadin is now licensed to conduct aggregate extraction operations at the property in accordance with the issued Class A, Category 3 Aggregate License.
THE POSITION OF THE PARTIES
(a) The Applicants
[28] The applicants submit that the aggregate extraction and processing contemplated by Nadin on the subject property is not a permitted use under the 2014 CZB Rural zoning designation and that the transitional provisions, being Part III 2 of the 2014 CZB, which purport to deem as legal previous legal uses pursuant to the 1998 ZB and the 2006 ZBA, are not authorized by s. 34 of the Planning Act and are therefore of no force and effect.
[29] The applicants submit that s. 34(1)1 of the Planning Act authorizes local planning authorities to pass zoning by-laws prohibiting the use of land except for such purposes as may be set out in the by-law. The applicants contend that s. 34(9)(a) of the Planning Act, which provides that no by-law passed under s. 34 applies to prohibit a legal non-conforming use, is the only authorized exception to s. 34(1)1.
[30] The applicants acknowledge that the subject property was specifically rezoned to permit a gravel pit and accessory uses pursuant to the 2006 ZBA, which had the effect of amending the 1998 ZB. The applicants contend that it is not in issue that the 2014 CZB rescinded the 1998 ZB and all amendments thereto, which would include the 2006 ZBA.
[31] The applicants challenge the validity of the transitional provisions of the 2014 CZB, being Part III 2.
[32] The applicants submit that s. 34(9)(a) of the Planning Act, which prohibits zoning by-laws passed by local planning authorities from preventing the continuation of legal non-conforming uses, is the only exception available to the application of local zoning by-laws under the Planning Act. The applicants suggest that Part III 2 of the 2014 CZB is without underlying statutory authority and therefore invalid and of no force and effect.
[33] The applicants further contend that the aggregate extraction and processing intended by Nadin on the property does not qualify as a legal non-conforming use pursuant to Part III 4 of the 2014 CZB and s. 34(9)(a) of the Planning Act.
[34] The applicants submit that the onus is on the Board to establish on a balance of probabilities that the use of the property contemplated by Nadin existed on the date the 2014 CZB was passed and that it has continued thereafter.
[35] The applicants suggest that Nadin did not use the property for aggregate extraction and processing at all prior to 2006, used it only sporadically and intermittently for that purpose between 2006 and 2013 and that its use between 2006 and 2013 was a small scale operation for residential customers only. The applicants suggest that Nadin has not used the property for any commercial aggregate extraction since 2014.
[36] The applicants note that Nadin’s Aggregate Resources License authorizes the removal and processing of a maximum of 100,000 tonnes of aggregate over an extraction area of 30.4 hectares. The applicants submit that Nadin is now proposing to embark upon a large scale, commercial aggregate extraction, processing and storage operation, different in kind than anything undertaken since it began limited aggregate extraction in 2006.
[37] The applicants suggest that the Board has not established on a balance of probabilities that Nadin used the property for large scale commercial aggregate extraction and processing as of the date of the 2014 CZB or thereafter and that legal non-conforming use has therefore not been established.
(b) The Respondent
[38] The Board submits that pursuant to sections 34(1) and (2) of the Planning Act it has the authority to enact a zoning by-law prohibiting the use of land except for such purposes as set out within the by-law, including the making, establishment, or operation of a pit or quarry.
[39] The Board notes that the property was specifically rezoned to permit a gravel pit and accessory uses pursuant to Nadin’s application for rezoning and the 2006 ZBA, which had the effect of amending the 1998 ZB.
[40] The Board acknowledges that the 2014 CZB rezoned the property Rural and also repealed and rescinded the 1998 ZB and all amendments thereto, which would include the 2006 ZBA. However, the Board submits that the transitional provisions of the 2014 CZB, found at Part III 2 of the 2014 CZB, permit the continued use of the property established as a legal use by the 1998 ZB and amendments thereto, which would include the 2006 ZBA, notwithstanding that the 1998 ZB has been rescinded.
[41] The Board disputes the applicant’s assertion that the transitional provision in the 2014 CZB is of no force and effect. The Board submits that the authority for this transitional provision is found in s. 34(1)1 of the Planning Act which allows local planning authorities to pass zoning by-laws prohibiting the use of land except for such purposes as may be set out in the by-law.
[42] The Board submits that the transitional provisions of the 2014 CZB are in addition to the legal non-conforming use protection found at Part III 4 of the 2014 CZB and at s. 34(9)(a) of the Planning Act. The Board submits that the fact that the 2014 CZB contains a separate provision carrying forward prior uses in addition to a legal non-conforming use demonstrates the Board’s intention to expand the “grandfathering” provisions in the 2014 CZB.
[43] The Board submits that the modern principles of statutory interpretation apply to the interpretation of municipal zoning by-laws and that as a principle of statutory interpretation, it is presumed that a legislative body avoids superfluous or meaningless words.
[44] The Board suggests that the interpretation of a municipal by-law involves a consideration of the text of the by-law, the intent of the municipal council, and the purpose and scheme of the by-law as a whole. Given that zoning by-laws are the means by which an Official Plan is implemented, the Board submits that the terms of an Official Plan can further aid in the contextual interpretation of a particular zoning by-law.
[45] In this context, the Board submits that the Official Plan applicable to the property, despite designating the property as Rural, clearly recognizes, permits and encourages aggregate resource extraction, pits and quarries. The Official Plan also speaks to the importance of resource-based aggregate activities and recognizes Gorham Township as a prime source of construction aggregate for the City of Thunder Bay and for public road work throughout the area, according to the Board.
[46] The Board therefore submits that the property is currently zoned to permit aggregate extraction and processing, pursuant to the transitional provisions found at Part III 2 of the CZB.
[47] The Board submits that Nadin’s aggregate extraction use of the property is also a legal non-conforming use, falling within Part III 4 of the 2014 CZB and section 34(9)(a) of the Planning Act. The Board acknowledges that in order to establish a legal non-conforming use it is required to prove, on a balance of probabilities, that the use was lawful when the 2014 CZB was passed and its continuance thereafter. The Board suggests that a legal non-conforming use continues if there is an intention to continue and the use continues as far as possible in the circumstances.
[48] The Board submits that the evidence of Mr. Nadin demonstrates that a lawful bona fide use of the property as a commercial gravel pit occurred, albeit on an intermittent basis, between 2006 and 2014. The Board further submits that following the passage of the 2014 CZB, use of the property as a commercial gravel pit continued to the point in time when Nadin was required to obtain an aggregate extraction license in 2017. Nadin’s continued intention to use the property as a commercial gravel pit between 2017 and 2022 is evidenced by Nadin’s pursuit of the required license up to its issuance in 2022, according to the Board.
DISCUSSION
The Law
[49] In MacNeill v. Pope, 1999 CanLII 2278 (ON CA), 1999 CarswellOnt 253 (ONCA), at para. 30, the Ontario Court of Appeal stated that it is a “fundamental principle of statutory interpretation that where possible meaning should be attributed to all of the words that the legislature has chosen to use”. Quoting from Driedger on the Construction of Statutes, 3^rd^ ed., the Court held that “it is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose”.
[50] In 2222868 Ontario Inc. v. Grimsby (Town), 2020 ONCA 376, an appeal concerning the interpretation of a municipal by-law, the Ontario Court of Appeal, at para. 29 and citing its earlier decision in St. Mary’s Cement Inc. (Canada) v. Clarington (Municipality), 2012 ONCA 884, stated
The modern principles of statutory interpretation apply equally to the interpretation of a municipal by-law and a statute. Thus, the interpretation of a by-law involves consideration of the text of the by-law, the intent of municipal council, and the purpose and scheme of the by-law as a whole.
[51] In 2222868 Ontario Inc., at para. 32, the Ontario Court of Appeal set out the legal principles applicable to the interpretation of a municipal by-law (citations omitted):
The interpretation of a by-law is a question of law;
A zoning by-law is the end-product in law of the planning process legislated by the Planning Act;
The modern principles of statutory interpretation apply equally to the interpretation of a municipal by-law and statute. The interpretation of a by-law involves consideration of the text of the by-law, the intent of the municipal council, and the purpose and scheme of the by-law as a whole;
Official Plans are not statutes. The purpose of an Official Plan is to set out a framework of goals, objectives and policies. It establishes the broad principles that are to govern the municipality’s land use planning generally;
As by-laws are the means by which the Official Plans are implemented, the terms of the Official Plan aid in the contextual interpretation of the by-law.
[52] Wilcox J., in the recent decision of this court in Cobalt (Town) v. Coleman (Township), 2018 ONSC 3713, affirmed by the Ontario Court of Appeal at Cobalt (Town) v. Coleman (Township), 2019 ONCA 134, at paragraphs 58-63, comprehensively summarized the current state of the law pertaining to the establishment of a legal non-conforming use (citations omitted):
The onus is on the party asserting legal non-conforming use to establish it on a balance of probabilities;
In order to prove a legal non-conforming use, a party must establish that:
a) The use of the land, building or structure was lawful at the time of the enactment of the relevant zoning restriction; and
b) The previously lawful use has continued thereafter.
Increases in the intensity of use is not fatal to a finding of legal non-conforming use, so long as the same type of use is continued, and the intensification is not to such a degree as to create a difference in kind;
In considering the legal non-conforming use exemption, the court is to look at the essential purpose for which the property is being used to determine if the change of activities is beyond the scope of that purpose;
If the pre-existing use is merely expanded or, if different but within the generic description of the pre-existing use, the protection will not be lost.
[53] The specific factors that a court should consider in determining whether a landowner has proven legal non-conforming use were outlined in Saint-Romuald (Ville) v. Olivier, 2001 SCC 57, 2001 S.C.C. 57 at para. 39. I paraphrase the relevant factors as follows:
It is first necessary to characterize the purpose of the pre-existing use. The purpose for which the property was used is a function of the activities actually carried on at the site prior to the new by-law restrictions;
If the current use is merely an intensification of the pre-existing activity, the protection will not be lost. Where the intensification goes beyond a matter of degree and constitutes, in terms of community impact, a difference in kind, the protection may be lost;
To the extent a landowner expands its activities beyond those it engaged in before, the added activities may be held to be too remote from the earlier activities to be protected as a non-conforming use;
To the extent that activities are added, altered or modified within the scope of the original purpose, the court has to balance the landowner’s interest against that of the community;
Neighbourhood effects should not be assumed but must be established by evidence if they are to be relied upon;
The characterization of the existing right should not be so narrow as to rob the landowner of some flexibility in the reasonable evolution of prior activities.
[54] As noted by Wilcox J. in Cobalt, at para. 62, where it is argued that an otherwise protected non-conforming use has been interrupted, to qualify as a legal non-conforming use, an intention to continue the use must be found together with the continuation of the actual use so far as it is possible in the circumstances.
[55] With respect to pits and quarries, the courts have recognized that the use of either may be intermittent. See Rock Solid Holdings Inc. v. Lakehead Rural Planning Board et al., 2017 ONSC 6564, para. 8.
The Transitional Provisions of the 2014 CZB
[56] The parties’ submissions were at cross-purposes on this issue. The applicants submit that Part III 2 of the 2014 CZB is without enabling authority in the Planning Act and therefore invalid. The Respondent’s submissions focused on the interpretation of the transitional provision. The applicants do not dispute the Board’s interpretation of Part III 2 of the 2014 CZB.
[57] I reject the applicant’s submission that Part III 2 of the 2014 CZB is invalid and of no force and effect.
[58] Section 34(1) and (2) of the Planning Act provide as follows:
s. 34(1) Zoning by-laws may be passed by councils of local municipalities:
Restricting use of land
- For prohibiting the use of land, for or except for such purposes as may be set out in the by-law within the municipality or within any defined area or areas abutting on any defined highway or part of a highway.
Pits and quarries
(2) The making, establishment or operation of a pit or quarry shall be deemed to be a use of land for the purposes of paragraph 1 of subsection (1).
Section 34(9) of the Planning Act states:
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.
[59] Section 34(1) of the Planning Act is the general permissive or enabling provincial legislation authorizing local planning authorities to pass zoning by-laws. Section 34(9) is the “grandfathering” provision, prohibiting zoning by-laws passed under s. 34(1) from preventing legal non-conforming uses of land.
[60] The 2014 CZB is the “end product” of the 2013 Official Plan. The Official Plan, while designating the property as Rural, expressly states that “it is the intent of the Rural designation to permit and encourage such rural uses as…aggregate resource extraction [and] pits and quarries”.
[61] The 2014 CZB rezoned the property from Extractive Industrial to Rural, the latter designation not allowing for pit and quarry aggregate operations. However, the 2014 CZB incorporated the grandfathering or legal non-conforming use provision found at s. 34(9)(a) and added Part III 2, which expressly carried forward and permitted uses established as legal uses by the 1998 ZB and the 2006 ZBA, “as if it were contained in the list of permitted uses for the relevant zone in which such lands are located…notwithstanding that [the 1998 ZB has] been rescinded”.
[62] The applicant asserts, without pointing the court to any supporting authority, that Part III 2 of the 2014 CZB is invalid and of no force and effect. I reject this submission.
[63] Section 34(1)1 of the Planning Act enables local planning authorities to pass zoning by-laws prohibiting land use except for such purposes as may be set out in the particular zoning by-law. In Part III 2 of the 2014 CZB, the Board has expressly carried forward the continued use of lands established as a legal use by a previous zoning by-law, in addition to the general legal non-conforming use provision. In my view, this falls within the enabling language of s. 34(1) of the Planning Act.
[64] I accept the Board’s submission that Part III 2 of the 2014 CZB, a provision carrying forward prior uses in addition to legal non-conforming uses, demonstrates the Board’s intention to expand the “grandfathering” provisions in the 2014 CZB. I am not persuaded that the Planning Act precludes local planning authorities from doing so.
[65] As a result, I dismiss the applicant’s request for a declaration that Part III 2 of the 2014 CZB and/or the 1998 ZB and the 2006 CBA are invalid and of no force and effect.
Legal Non-Conforming Use
[66] In the event that I am incorrect as to the validity of Part III 2 of the 2014 CZB, I also find that use of the property by Nadin for aggregate resource extraction and processing is a legal non-conforming use and therefore not a prohibited use of the property pursuant to the 2014 CZB.
[67] The property is located in an area with several other gravel pits and quarries and the general area is recognized as a significant location for aggregate resource deposits for the District of Thunder Bay.
[68] While not strictly relevant to an analysis of the issue, Nadin purchased the property in 1999 for future commercial aggregate extraction. Between 2000 and 2006, Nadin developed the property for this purpose. In 2006 Nadin successfully applied to have the property rezoned to Extractive Industrial to allow for the operation of a gravel pit and accessory uses.
[69] Between 2006 and 2014, Nadin used the property intermittently for commercial aggregate extraction and sale, with stockpiles of aggregate materials kept on site. Toward the end of this time period, the scale of the operation increased, with significant quantities of aggregate and other materials being sold to Mr. Dashue and being used for the development of the Gemstone Estate subdivision in Thunder Bay.
[70] There appears to have been an interruption in the use of the property for commercial resource extraction between 2014 and 2016. However, as I understand the evidence of Mr. Nadin, beginning in 2016 aggregate extraction activities were focused on expanding the useable area of the property as a result of the depletion of the existing useable portion of the gravel pit. I infer that this was done with the intention of continuing and increasing the aggregate extraction business at the property.
[71] I do not find that the brief interruption in use between 2014 and 2016 is fatal to a finding of legal non-conforming use, given the fact that Nadin’s intention for the use of the property has been consistent.
[72] Operations were suspended as of 2017 due to the requirement for Nadin to obtain the required aggregate resource extraction license, which was eventually issued in 2022.
[73] The character of Nadin’s use of the property from 2006 to the date of the passage of the 2014 CZB was consistent and obviously for aggregate resource extraction on a commercial scale, albeit on an intermittent basis. The operation expanded over the years to the point where it became a significant commercial operation around 2013 and 2014. Following a brief interruption, activities resumed in and around 2016 with an expansion of the useable area of the gravel pit, consistent with an intention of expanding operations in the future. The aggregate resource extraction license issued to Nadin in 2022 authorizes a further significant expansion of aggregate extraction operations on the property.
[74] In my view, the anticipated use of the property going forward is an intensification and evolution of the pre-existing use which has continued, intermittently and with some interruption, since 2006. I find that Nadin’s intended expansion and intensification of use to be a reasonable evolution of the commercial activity that has occurred on the property since 2006. I reject the submission that the anticipated intensification in use changes the type of use of the property or that it amounts to a “difference in kind” from previous use. The essential purpose for which the property is going to be used has remained consistent throughout the relevant time period.
[75] In conclusion, I am persuaded that the use of the property, as contemplated by the terms of Nadin’s aggregate resource extraction license, qualifies as a legal non-conforming use of the property. The applicant’s request for a declaration that it is not is dismissed.
[76] The Board has been successful on this application and is entitled to their reasonable costs. I encourage the parties to agree on costs. If they are unable to do so, they shall file written submissions as to costs, not to exceed five pages, exclusive of the respective Bills of Costs.
[77] The Board’s Costs Submissions shall be filed within 14 days of the release of this decision; the applicant’s within 7 days thereafter.
The Hon. Mr. Justice J.S. Fregeau
Released: 20 October 2022
COURT FILE NO.: CV-22-0052-00
DATE: 2022-10-20
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
Paulette Celinski and George Celinski Applicants
- and –
Lakehead Rural Planning Board Respondent
DECISION ON MOTION
Fregeau J.
Released: 20 October 2022