A recent decision of the BC Supreme Court in North Pender Island Local Trust Committee v. Hunt, 2014 BCSC 1438 ("North Pender"), illustrates limits of non-conforming use protection.  

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 such use.  

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 bylaw.

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 purposes. 

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 use protection. 

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