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
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
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
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.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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