Legal Non-Conforming Land Use

Municipal Act, 2001, S.O. 2001, c. 25

58 (1) An upper-tier municipality has, in respect of land lying within 45 metres from any limit of an upper-tier highway, all the powers conferred on a local municipality under section 34 of the Planning Act for prohibiting the erecting or locating of buildings and other structures within that area. 2001, c. 25, s. 58 (1).

(2) If there is a conflict between a by-law passed by an upper-tier municipality under subsection (1) and a by-law passed by a lower-tier municipality under section 34 of the Planning Act, the by-law of the upper-tier municipality prevails to the extent of the conflict, but in all other respects the by-law passed by the lower-tier municipality remains in effect. 2001, c. 25, s. 58 (2).

Boyce v Norfolk (County), 2018 CanLII 35095 (ON LPAT)

[9] Starting at Highway 59 and moving westerly along Hastings Drive, on that eastern portion of Registered Plan 206, there are lakefront cottages: about 14 or so on the south side of Hastings Drive, and about 5 on the north side of Hastings Drive, (not part of the Subject Lands).

[10] Commencing at Lots 66 and 67 on Registered Plan 206, the lots appear to be entirely water lots, as do Lots 1 and 2 on Registered Plan 251.

[11] Lots 3 to 17 are partial water lots, vacant and owned by the County. One encounters the first cottage owned by Ellen Boyce at Lots 18 and 19, then at Lots 29 and 30 there is the cottage owned by Suzanne Boyce, and then it is at or about Lots 79 and 80 where there are a number of cottages in a row. Commencing at about Lot 94 through to Lot 120, the lots are vacant and owned by the County. At Lot 121, there appears to be a cottage, and at Lot 125 there appears to be another cottage, with the last cottage being at Lot 143. In total, the Tribunal is advised that there are 24 private cottages, all of which are on the south side of Hastings Drive, 47 vacant lots owned by Norfolk County, and the remaining vacant lots (about 75) are in private ownership.

[32] As noted above, the County undertook a Comprehensive Zoning By-law Review which led to the adoption of its new CZB. The CZB replaced the four former zoning by-laws with one new County-wide CZB.

[33] The 1985 zoning for Hastings Drive (By-law 1-NO-85) was retained in order to undertake the Hastings Drive Zoning Study (including the Subject Lands).

[34] The Hastings Drive Zoning Study was carried out by MHBC Planning and Mr. Chauvin was the lead planner.

POLICY REGIME

[42] Land use planning in the Province of Ontario is a policy-led system established through the provisions of the Planning Act, the PPS, and various Provincial plans.

[43] It is a “top-down” system as the Province of Ontario sets out by statute and by provincial policy, the planning direction for Ontario and its municipalities.

Planning Act

[44] Section 1.1—Purposes of the Planning Act include:

(b) to provide for a land use planning system led by provincial policy.

[45] Section 2 outlines the matters of provincial interest which include:

(a) the protection of ecological systems including natural areas, features and functions;

…

(h) the orderly development of safe and healthy communities;

…

(o) the protection of public health and safety; and

(p) the appropriate location of growth and development.

[46] Section 3 provides that the Minister may from time to time issue policy statements and s. 3.5 states that:

a decision of the council of a municipality, a local board, a planning board, a minister of the Crown and a ministry, board, commission, or agency of the government, including the Municipal Board in respect of the exercise of any authority that affects a planning matter, (a) shall be consistent with the policy statements issued under subsection 1…

[47] A municipality’s zoning authority comes pursuant to s. 34(1) of the Planning Act which states in part:

Zoning By-laws may be passed by the councils of municipalities:

1. Restricting the 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…;

3. Marshy lands etc.;

For prohibiting the erection of any class or classes of buildings or structures on land that is subject to flooding or on land with steep slopes or that is rocky, low-lying, marshy, unstable, hazardous, subject to erosion or natural or artificial perils.

3.2 Natural features and areas;

For prohibiting any use of land and the erecting, locating or using of all or any class or classes of buildings or structures within any defined area or areas,

(i) that is a significant wild life habitat, wetland, woodland, ravine, valley or area of natural or scientific interest;

(ii) that is a significant corridor or shoreline of a lake, river or stream;

(iii) that is a significant natural corridor, feature or area.

[48] Subsection 34(4) provides this definition for purposes of interpretation:

A trailer is defined in subsection 164(4) of the Municipal Act 2001 or subsection 3(1) of the City of Toronto Act, 2006, as the case may be, and a mobile home as defined in section 46(1) of this Act are deemed to be buildings or structures for the purpose of this section.

[49] In s. 46(1):

mobile home means any dwelling that is designed to be made mobile, and constructed or manufactured to provide a permanent residence for one or more persons, but does not include a travel trailer or tent trailer or trailer otherwise designed.

[50] Section 164(4) of the Municipal Act 2001 defines trailer as:

Trailer means any vehicle constructed to be attached and propelled by a motor vehicle and that is capable of being used by persons for living, sleeping or eating, even if the vehicle is jacked-up or its running gear is removed.

[166] To the Tribunal it is abundantly clear that the intent of the Official Plan is to direct development and site alteration away from Hazard Lands; not to allow development on hazard lands; more specifically not to allow development within the dynamic beach hazard; and finally most specifically, not to allow new development and site alteration on Hastings Drive (and the Subject Lands).

[167] A zoning by-law must conform with its official plan. In this regard, the Tribunal finds that the proposed draft zoning by-law as found in the Draft Order (Exhibit 17 Tab15) conforms to the Official Plan.

[168] In response to the submission that were the Draft Order to be approved, it would constitute the overriding of the “Nepean Principle” and extinguish or debilitate the proprietary interests of existing owners, the Tribunal does not agree. The Tribunal was not shown any case law to support the proposition that the Nepean Principle “trumps” the PPS. In fact all the case law presented to the Tribunal on this issue predate the PPS.

[169] And to the contrary, the Tribunal finds that s. 3.5 of the Planning Act requires the Tribunal to make decisions that are consistent with the PPS.

[172] With regard to the submission that the Tribunal should approve a zoning by-law similar to the 2016 Zoning By-law of the County (Exhibit 4), the Tribunal is not persuaded that it would be appropriate to make legally existing uses into “permitted” uses, as this would mitigate against the entire concept that legal but non-conforming uses are to eventually cease.

[173] The Tribunal finds that the placement of trailers on the Subject Lands would constitute a change in use which is contrary to the PPS and the evidence before the Tribunal is that where there has been the placement of trailers on the Subject Lands, it has resulted in site grading, excavation, and placement of fill, which are also contrary to the PPS.

[174] With regard to the submission that docks and boat ramps are a permitted use under s. 6 of By-law No. 1-NO-85, the Tribunal disagrees. Exhibit 25, Tab 6 provides with regard to the repeal of By-law No. 1-NO-85 that only the Hazard Land zone as set out in No. 1-NO-85 remains in effect. The rest of the by-law was repealed including s. 6 General Provisions.

[175] With regard to the submission that the placement of one motor home on a lot of the Subject Lands is not regulated as a use, the Tribunal disagrees. In the Hazard Land zone, there is an outright prohibition that no land shall be used, and no building or structure shall be used, altered or erected, except for the permitted uses, which are a public park or a day use.

[176] The Tribunal finds that the placement of a motor home on a lot of the Subject Lands and leaving it there overnight, seasonally, or permanently does not comply with the permitted uses.