The Issue: Is intention to use in the future sufficient to preserve a legal non-conforming use?

The Answer: No. Actual continuation of the use is required.

In Feather v. Bradford (Town), 2010 ONCA 440, the Ontario Court of Appeal considered whether it is necessary to have evidence of an active intention to continue a legal non-conforming use.

The dispute centered on a cottage which had sunk into an adjoining river and which had remained virtually uninhabitable for over 14 years. During that time, the zoning of the lands had changed to not permit a cottage dwelling.

Regardless, a subsequent owner (Feather) sought to resurrect the structure and rebuild the cottage on the property, asserting that the use of the lands for a cottage dwelling was a legal non-conforming use. Feather brought a Rule 14.05 Application seeking a declaration recognizing his asserted legal non-conforming status.

Feather's Application was initially granted by the Application Judge, who determined that the use of the property for a cottage was a legal non-conforming use. This finding was made despite the fact that the cottage was submerged under water and had not been occupied or used for a significant period of time.

Though the Town challenged that the cottage use had not been continuous, the Application Judge focused on the subjective intention of successive owners in title to someday resurrect the cottage structure. In the opinion of the Application Judge, this was sufficient to preserve the legal non-conforming status of both the land and the submerged structure.

On appeal, the Court of Appeal reversed the Application Judge's finding that the cottage use of the property was a legal non-conforming use. In doing so, the Court of Appeal confirmed the two-part test for legal non-conformity: (1) lawfulness at the time the use commenced and (2) continuation of the use thereafter. The decision focuses on the second part of the test – continuity of the use.

The Court of Appeal found that the residential use of the structure had not been continuous. The Court applied the test for continuity from decisions in other cases such as Haldimand-Norfolk (Regional Municipality) v. Fagundes (2000), 11 M.P.L.R. (3d) 1, which requires that there not only be evidence of intent to continue to a use, but also actual continuation of the use so far as possible in the circumstances. Whereas the Application Judge was prepared to accept the successive owners' stated desire to rebuild the sunken cottage as sufficient evidence of continuation, the Court of Appeal was not prepared to stretch the law of legal non-conformity that far. In particular, the Court of Appeal found that the successive owners who purchased the land for nominal consideration were aware of the status of the cottage. Consequently, Feather was required to demonstrate more than simply a desire to rebuild at some indeterminate time in the future in order to satisfy the requirements of s. 34(9) of the Planning Act.

The Court of Appeal's decision recognizes a general intent in planning law that legal non-conforming uses are to be phased out over time, to be replaced with uses that comply with the zoning of the day. Accepting a test for legal non-conforming status that only required future intent to use would have thwarted this general intent. Accordingly, only those uses of land that constitute actual use of the property from the date the by-law changed are recognized as being legal non-conforming uses. This clarity will be welcomed by municipal buildings and enforcement officials who often must deal with assertions of legal non-conformity.

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