| 2010-08-06 |
| Planning & Land Use |
An appeal from a finding that a legal non-conforming use of a cottage entitled the respondent to restore a sunken cottage. The respondent purchased the sunken cottage in 2005. The cottage began to sink in 1980 and was inhabited until 1991. In 2004 the property was rented to tenants who docked a houseboat to the roof of the cottage and used the cottage roof as a deck. The respondent started to raise the submerged cottage in 2006.
The appellant town advised the respondent that he needed a building permit and issued a stop work order. The respondent’s application for a building permit was denied on the ground that the proposed work did not comply with the town’s zoning bylaw and, as the cottage had been abandoned, it was no longer allowed as a legal non-conforming use. The application judge found that the respondent had a legal non-conforming use with respect to the property and building.
It was held that the appeal was allowed. The application judge erred in concluding that any legal non-conforming use of the cottage that might have existed in 1971 had continued to the present day. While the residential use of the cottage had been lost, respondent continued to enjoy a right to use the land generally for the docking of boats. Such activities had occurred since before the passage of the bylaw.
Feather v. Bradford West Gwillimbury (Town), [2010] O.J. No. 2549, Ont. C.A., per Rouleau J.A. (Sharpe and Epstein JJ.A. concurring), June 16/10. Digest No. 3012-019 (Approx. 9 pp.)
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