This is another neighbour dispute case (see for example my other post entitled “Causing a Nuisance to Neighbours.”)
In this instance, one neighbour sued the Township and its Chief Building Official, seeking an order that they violated the Zoning and Building Code laws when they granted a building permit that allowed their neighbour to erect a second story: the primary complaint was that the set-back requirements were not met.
However, because the second storey was built on top of the existing foundation, the court considered the now non-compliant set-backs as a legal non-conforming use (“LNCU”) because at one time the existing setbacks were lawful. Hence, the court concluded that the building permit to add a second storey on the existing foundation was lawful.
As the court pointed out:
- A LNCU does not restrict a structure to its exact size and usage at the time it was originally created;
- Landowners have a right to normal evolution of non-conforming rights, which includes the right to exercise the LNCU more intensively;
- The addition of the second storey was permitted as the LNCU ran vertically upwards;
- The renovations approved under the permit did not change the existing side yard setbacks, so there was no increase in the extent of the non-conformity.
The court also highlighted the Supreme Court of Canada’s decision in Saint-Romuald (City) v. Olivier, where the Court provided a list of seven criteria to be used in the analysis of acquired rights or LNCU. Briefly, the court must characterize the pre-existing use and then assess whether the requested change modifies the use (which may give rise to possible challenges), or whether it simply intensifies the use (normally not challengeable). If it is a modified use, the court must consider whether the new altered use precludes the application of LNCU (ie: the change is so drastic that it is not even possible to consider the matter a LNCU). If the new use is similar to the old use, but expanded, the Court then has to balance the landowner’s interest against the community interest: the greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right.
Steimle v. Township of Wainfleet and Methot, 2022 ONSC 4357
https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4357/2022onsc4357.html