Accessory Use/Site Alteration – What is Permitted?

February 2015

Municipal site alteration bylaws may restrict site alterations inconsistent with permitted uses under municipal zoning bylaws.  Can a municipality prevent a landowner from expanding an existing business on the property and related site alterations which are contrary to permitted property use?

In a recent case considered by the Ontario Superior Court, a Township sought to restrain a landowner from his attempts to expand an existing landscaping business and related site alterations on two different properties.  The “Rural” zoning of both properties permitted a farm or nursery business and the Township’s site alteration bylaw permitted replacement of topsoil for restoration of agricultural lands as an incidental part of a nursery operation and topsoil storage not to exceed 1,000 cubic metres.  Previous owners had operated a small nursery or landscaping business on one of the properties with imported topsoil limited to two or three truckloads per year.  The landowner who acquired these properties then expanded the nursery or landscaping business to include a substantial triple mix and soil  screening operation with the other property being used for storage of vehicles, equipment and debris from an excavation and haulage business.  The site alterations effected to accommodate these uses left substantial portions of both properties unsuitable for agricultural use.

While the court determined that the gardening and landscaping business operated by the previous owner was a permitted use under the municipal bylaw, the court held that the new owner’s operations so intensified these operations as to constitute a difference in use.  In comparing the respective uses of the previous and current owner, the court stated:

“[The previous owner] had small amounts, being one to two truckloads at most according to the evidence, of soil product stored on the property at any given time. Even after beginning their landscaping business, the sale of such soils was clearly accessory to the main or principle activity of operating a nursery and greenhouse.  Accordingly, I find that the [previous owner’s] sale of soil products was lawful …

“Again, the [new owner] cannot establish that lawful use has continued.  The use now made of the property has changed to something tangibly different, being a commercial landscape supply outlet.  It is not just the case of a garden centre or nursery farm expanding in size or popularity; it is an altogether different use.  One has only to look at the quantity of material being delivered to a single customer as outlined in the 2012 purchase order to understand the scope of this enterprise.  The amounts outlined in the purchase order translate into 92 cubic metres of unscreened peat loam, 31 cubic metres of wood products, and 7 cubic metres of triple mix.  That is a total of 190 cubic metres of soil products, on a single day, for a single customer – approximately 19 truckloads.  That this has had negative effects on the community is supported by [the Township] evidence that complaints were received about the soil haulage activity/truck traffic.”

With respect to the second property, the court determined that use of the property for parking and storage of vehicles and equipment was not a permitted use under the zoning bylaw.  In addition, at least with respect to the property on which the nursery or landscaping business had operated, the court determined that the amount of imported fill substantially exceeded quantities permitted under the site alteration bylaw.  In this regard, the court concluded:

“[On the new owner’s] own evidence, the respondent [new owner] is in contravention of the bylaw.

“However, I do not accept that this is the extent of the soil material on the … property. It is suspicious, to say the least, that [the new owner] first indicated that he was unsure how much soil had been brought onto the property and placed in the ‘illegally filled area’.  He then indicated it was 240 truckloads, and only after hearing that an amount in excess of 1,000 cubic metres would require council’s approval of the permit, did he revise his application to indicate 880 cubic metres.”

Municipal bylaws may apply to restrict even expansion of existing property uses and related site alterations.  The landowner’s attempts to carry on such an expanded business in contravention of these municipal bylaws may be restrained by court order.

Author

Paul practises mainly in the areas of environmental law, energy law, and commercial litigation. He is author of "Civil Procedure in Practice" and a regular contributor of articles to various journals. Paul is certified by the Law Society as a Specialist in Civil Litigation. More →