The principle of non-conforming use means that if an owner was
lawfully using their land under an old zoning bylaw, they can
continue doing so even if a current zoning bylaw no longer permits
The decision in North Pender illustrates and reminds us
that non-conforming use protection does not legitimize uses which
were never permitted, no matter how long such uses may have
lasted. In order for a use to be grandfathered, it has to have
been lawful under the old bylaws.
In North Pender, the parties argued over a use of a
rather large shed, which the property owner used as a residence and
a business office.
The shed in question was built around 1910 alongside a wharf on
North Pender Island. It was historically used as a storage area for
a nearby general store.
In the early 1990s, Ronald Hunt purchased the shed from its
previous owner. Mr. Hunt made numerous renovations to the shed and
used it as a business office as well as a residence until he sold
it to his son in 2009. The younger Mr. Hunt continued to use the
shed for both purposes.
In 2011 the North Pender Island Trust Committee brought an
action against the Hunts asking that they cease residential use of
the shed because such use was contrary to the current zoning
When the matter went to Court, the Hunts argued (among other
things) that the residential use was a permitted non-conforming use
in light of the shed's historic use as a residence.
The Court disagreed. Firstly, the Court found that residential
use of the shed only started when Mr. Hunt bought the land.
Secondly, the Court found that Mr. Hunt did not get any permits or
authorizations to renovate the shed for residential
Lastly, and most importantly, the Court found (rather strictly)
that the only residential use that was permitted in the shed prior
to the current bylaw was for a "self-contained dwelling
unit." Mr. Hunt, on the other hand, did not separate his
residential and his commercial uses of the shed. In other words
"there [was] no business office in the Shed, distinct from the
residential portion of the Shed." As such, Mr. Hunt's
residential use was not a "self-contained dwelling unit"
and, therefore, was never permitted.
This case is an excellent illustration of the limits of
non-conforming use protection. In order to be grandfathered, the
use has to have been lawful under prior laws. If the
use was never lawful, it will not benefit from non-conforming
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).