Okanagan-Similkameen (Regional District) v ... - Rdosmaps.bc.ca

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2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach the Municipal Act, R.S.B.C. 1979, c. 290, which provided that a use would be protected as a lawful nonconforming use unless it was discontinued for a period of 30 days. There were periods of 30 days and more during which the mill itself did not operate. One winter, the roof collapsed and as a result the mill was inoperable for some time. However the Court held that this did not mean that the non-conforming use of the premises was discontinued, ‘just as it could not be said that a snow covered golf course was not used as a golf course’. The Court of Appeal concluded that although the sawmill property was not always running, it was still protected as a non-conforming use. The Court reasoned as follows at para. 13: it is non-use of the premises as distinct from non-operation of the mill that must be shown. All that the trial judge found was that the mill did not operate for periods in excess of 30 days. That is not enough. There must be a discontinuance of the use of the premises in order to satisfy s. 722(2). That is not shown by the evidence. (emphasis added) [120] In Osoyoos (Town) v. Nobbs, 2002 BCSC 1743, aff’d 2004 BCCA 431, Mr. Justice Meztger considered whether the use of the owner’s travel trailer for residential purposes and the use of the lot as a recreational vehicle park qualified as lawful non-conforming use. The previous owners and present owners had used the site every summer for camping. However, one of the issues raised was the fact that the owners only used the land for “summer camping”. Hence, the Town argued that the prior use was discontinued under s. 911 of the LGA, as there were periods of longer than six months that had elapsed between each camping use. Nevertheless, the Court found that there had been on-going use protected by s.911. The Court concluded as follows: 13. The purpose of allowing a non-conforming use to continue after a bylaw has been passed is to protect the status quo. This lot is to be used for summer camping, and that use has never changed. I find that the lapse provisions only apply if this lot was not used for camping in the May through September period in any one year. There has never been a thirty day or six month lapse of that particular use. The status quo is preserved ... (emphasis mine) [121] On appeal, Saunders J.A. writing for the Court, upheld the trial judgment. She noted as follows with respect to the proper approach to determining the relevant “use” in the context of an alleged discontinuance: 20. In my view the issue here on "use" is not whether the use of this lot meets a particular definition in a bylaw, but whether the present use is, in substance, the same as it was in 1973. Setting aside for the moment the issue of degree, in my view the answer is yes. The trial judge found as a fact, amply supported by evidence, that "[f]riends and relatives of the owners have brought tents, trailers and recreation vehicles onto the property every year since it was first purchased in 1969". The evidence establishes that the present owners use the trailer, still capable of road use, and that friends bring recreational vehicles and tents onto the property....Here, on the findings of fact by the trial judge, supported by the evidence, this lot was a "private camping site" available for all degrees of camping in 1973 to family and friends of the owners and it remains so today. That being the case, one cannot say there has been a discontinuance of that use so as to sever the legality of the non-conforming use under s. 911(1) of the Act. (emphasis added) Discussion [122] The defendants submit that they have continued their use since the summer of 2005. The defendants http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
2012 BCSC 63 Okanagan-Similkameen (Regional District) v. Leach contend that the “use” protected by s. 911 of the LGA is the “broad use” to which the property has been put, not the individual acts that make up that broad use. They maintain that they were not required to rent out the Property in exactly the same fashion and frequency every year. They simply must show that since 2005 the Property has been continuously used as a rental property in the same general manner. The defendants say that there has been continuous use in the broader sense since 2005, which includes the period in 2010 when the renovations were undertaken and the Property was not rented. [123] They rely on Cowichan Valley (Regional District) v. Ward (1994), 39 B.C.A.C. 154, where the Court of Appeal held that, although the sawmill property was not always running and had been subject to maintenance from time to time, the use was nonetheless protected under the provisions for lawful nonconforming use. [124] In my opinion, the fact that the defendants rented out the Property only during the summer months does not mean that the use was discontinued. This position accords with the plain wording of s. 911(2)(a) of the LGA, which provides that a seasonal use of land is not discontinued as a result of normal seasonal practices, including seasonal or market cycles. Moreover, it emerges from the jurisprudence that it is the actual use in the general sense that matters with respect to the continuance of lawful non-conforming use. As with the summer camping in Nobbs, short-term rentals during certain weeks in the summer months were part of the general status quo over the years. The Property was actually rented out for approximately five weeks out of the year, used by the defendants and their friends or family for one to three months per year, and vacant for much of the year. [125] However, there remains the issue of whether the defendants’ renovations, which commenced in 2009 and included the addition of a bathroom and 33 square feet of floor space, terminated the lawful nonconforming use. [126] The Regional District submits that the defendants’ comprehensive renovations to the Property have terminated the lawful non-conforming use pursuant to s. 911(8) of the LGA. That section provides that if a building that is being used for a non-conforming purpose is damaged or destroyed to the extent of 75% or more of its value above its foundations, as determined by the building inspector, it must not be repaired or reconstructed except for a conforming use in accordance with the bylaw. However, the evidence does not establish that the Property was damaged or destroyed to the extent of 75% or more of its value above its foundation, as determined by the building inspector. I conclude, therefore, that s. 911(8) of the LGA is not applicable. [127] The defendants submit that the renovation to the Property included upgrades to the plumbing, heating, and electrical system, all of which were needed to comply with modern codes to protect the health and safety of the occupants of the Property. They contend that the renovations fall within s. 911(2)(c) of the LGA, which provides that a use is not discontinued as a result of repairs to meet health and safety standards. [128] However, in my opinion, s. 911(2)(c) is not applicable because the section clearly refers to repair, replacement or installation of equipment. The record does not establish that the renovations undertaken by http://www.courts.gov.bc.ca/jdb-txt/SC/12/00/2012BCSC0063cor1.htm[03/29/2012 10:23:44 AM]
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