Chase (Village) v. Garrick Automotive Ltd.

2022 BCSC 325 Chase (Village) v. Garrick Automotive Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Chase (Village) v. Garrick Automotive Ltd. 2022 BCSC 325 Date: 20220303 Docket: S58219 Registry: Kamloops Between: The Village of Chase Plaintiff And Garrick Automotive Ltd., 450114 BC Ltd., and Gary Bruce Lanoue Defendants Corrected Judgment: The text of this judgment was corrected at para. 81 on June 23, 2022. Before: The Honourable Madam Justice Walkem Reasons for Judgment Counsel for Plaintiff: T. W. McNeil-Hay Counsel for Defendants: E. Cooke Place and Dates of Trial: Kamloops, B.C. July 6 & 7, 2021 Place and Date of Judgment: Kamloops, B.C. March 3, 2022 Table of Contents FACTS.. 3 Background. 3 Condition of the Property. 3 Position of the Parties. 4 Issues.. 6 Issue 1: Was the 2006 Zoning Bylaw validly enacted?.. 6 Law.. 7 Analysis. 8 Issue 2: What is the extent of the legal non-conforming use?.. 9 Law.. 9 Analysis. 11 Issue 3: Do the Impugned Activities violate s. 6.83.2(a), (b), and (e) of the 2006 Zoning Bylaw?.. 12 Village's Position.. 12 Defendant's Position. 13 Analysis. 14 Issue 3: Do the Impugned Activities violate s. 6(1)(a) and s. 8(1)(a) and (c) of the PM Bylaw... 16 Village's Position.. 16 Defendant's Position. 17 Law.. 18 Analysis. 21

FACTS Background [1] This is a bylaw enforcement proceeding brought under the Community Charter, S.B.C. 2003, c. 26, by the Village of Chase (the "Village"). [2] The property in question is located at 117 Aylmer Road in the Village of Chase (the "Property"). The Property is owned by the defendant, 450114 BC Ltd. The defendant, Garrick Automotive Ltd. ("Garrick"), operates an automobile wrecking and recycling business on the Property known as "Adrenaline Automotive". The Defendant, Gary Bruce Lanoue, is the principal and operating mind of both Garrick and 450114 BC Ltd. I refer to these parties, who were represented by the same counsel and advanced the same position at trial, collectively as the "Defendant", unless otherwise noted. [3] Pursuant to the Village's current zoning bylaw, Village of Chase, by-law No. 683, Zoning Bylaw (2006) (the "2006 Zoning Bylaw"), the Property is located in the M-1 Zone. The M-1 Zone does not permit automobile wrecking and recycling. However, the use of the Property for automobile wrecking and recycling is a valid prior non­conforming use pursuant to the previously enacted 1992 Village of Chase, by-law No. 450, Zoning Bylaw (1992) ("1992 Zoning Bylaw") and s. 528 of the Local Government Act, R.S.B.C. 2015, c. 1 [LGA]. The 2006 Zoning Bylaw applies but not to the extent that it purports to restrict the Defendant's prior non-conforming auto wrecking

use. Condition of the Property [4] The evidence adduced by the Village included an affidavit of Richard Waugh, the Village bylaw enforcement officer, setting out his observations when he viewed the Property. The bylaw officer swore an affidavit stating that on visits on May 12 and May 19, 2021, he observed: a. vehicles, including unlicensed and derelict vehicles, stored outside of the fence and inside the front yard of 117 Aylmer; b. other materials, including vehicle parts, rubbish, and discarded materials, stored outside of the fence and inside the front yard of 117 Aylmer; c. vehicles stacked inside the fence at 117 Aylmer, but above the height of the fence; and d. portions of the fence at 117 Aylmer having partly or completely fallen down. [5] Pictures attached to the affidavit showed a fence which was in a poor state of repair, with panels down and cars piled over three cars over the height of the fence in places. Items not clearly related to an auto wrecking use were stored in the front yard, including a stove. Position of the Parties [6] The Village claims that the use of the Property violates various restrictions in both the 2006 Zoning Bylaw and the Village of Chase, and by-law No. 731-2010, Property Maintenance Bylaw (2010) (the "PM Bylaw"). [7] The Village alleges that the Defendant causes or permits: a. vehicles, including unlicensed and derelict vehicles, to be

stored outside of the fence and inside the front yard of the Property; b. other materials, including rubbish and discarded materials, to be stored outside of the fence and inside the front yard of the Property; c. vehicles or other items or materials to be stacked inside the fence at the Property, to a level above the height of the top of the fence; and d. the fence or any portion thereof to fall on the ground such that it no longer forms a continuous and solid barrier; (Collectively, the "Impugned Activities"). [8] The Village seeks: 1. A declaration that the Defendant is in breach of s. 6.83.2(a), (b), and (e) of the 2006 Zoning Bylaw; and s. 6(1)(a) and s. 8(1)(a), and (c) of the PM Bylaw; 2. A permanent injunction under s. 274 of the Community Charter enjoining the Defendants or any of them from using the Property in a manner contrary to the provisions of the 2006 Zoning Bylaw or the PM Bylaw, and, without limiting the generality of the foregoing, from causing or permitting the Impugned Activities on the property.

3. Pursuant to s. 274 of the Community Charter, a mandatory injunction requiring the Defendant, within 14 days of the injunction order being made by the Court, to: a. Remove all vehicles and other materials, including rubbish and discarded materials as defined in the PM Bylaw, from the front yard of the Property; b. With respect to vehicles that are stacked inside the fence at the Property, to remove vehicles from the stacks so that no portion of any vehicle is stacked at a height that is above the height of the fence; and c. To replace, reattach, or reinstall any portion or section of the fence so that the fence provides a continuous and solid barrier to the height of 2.5 metres around the entire circumference of the Property. [9] The Defendant argues that an injunction should be denied as the 2006 Zoning Bylaw does not apply to its use of the Property. They allege that the 2006 Zoning Bylaw suffers from procedural defects that render it invalid. Further, as a legal non-conforming use, the Defendant's use of the Property as an automobile wrecking yard is not subject to the 2006 Zoning Bylaw, but rather to an earlier bylaw in force (the 1992 Zoning Bylaw) before their current use was prohibited by subsequent zoning bylaws. [10] The Defendant also argues that the PM Bylaw does not apply as its application would constrain the permitted use of the Property, and, because it references the 2006 Zoning Bylaw. In the alternative, the Defendant asserts that if the PM Bylaw does apply, they are not in breach of it. Issues [11] I have framed the issues to be decided as follows: 1. Was the 2006 Zoning Bylaw validly enacted?

2. What is the extent of the legal non-conforming use?

3. Do the Impugned Activities violate s. 6.83.2(a)(b) and (e) of the 2006 Zoning Bylaw?

4. Do the Impugned Activities violate s. 6(1)(a) and s. 8(1)(a) and (c) of the PM Bylaw.

5. Is the Village entitled to injunctive relief? Issue 1: Was the 2006 Zoning Bylaw validly enacted? [12] The Defendant challenges the validity of the 2006 Zoning Bylaw, alleging procedural deficiencies in how it was passed. [13] Section 892 of the LGA sets out the requirements for notices of public hearings at which a zoning bylaw is being considered. In general notices of a public hearing must include: "the time and date of the hearing", "in general terms, the purpose of the bylaw", identification of "the land or lands that are the subject of the bylaw", and "the place where and the times and dates when copies of the bylaw may be inspected". Notice is required to be "published in at least 2 consecutive issues of a newspaper". [14] The Defendant argues that the adoption of the 2006 Zoning Bylaw was procedurally unfair because of the failure to provide the Defendant with "personal written notice" and there was a lack of "sufficient detail" in the notice. In particular: a. There was insufficient notice of the proposed changes; b. the Defendant should have been given notice of the public hearing, which identified that their auto wrecking use, generally, was targeted for elimination (per Kelowna (City) v. Khurana, 2018 BCSC 392 at paras. 19, 22-23); c. the notice was published less than three days before the public hearing; d. the notice was published in the Shuswap Market News,

which, according to the Defendant, does not meet the definition of "newspaper"; and e. the Village has not kept an adequate written record of the public hearing. Law [15] The LGA provides that challenges to the validity of bylaws may be brought under ss. 622-624. Sections 622 and 623 of the LGA provide that an elector or other person interested in a bylaw may make an application to the court to set aside the bylaw. Pursuant to s. 623(5), such an application must be heard within two months of the bylaw being adopted. [16] In O'Shea/Oceanmount Community Association v. Town of Gibsons, 2020 BCSC 698 at para. 51, Madam Justice Shergill found that " s. 623 of the LGA exists only to confer a limited right of standing to bring judicial review of bylaws and municipal resolutions", and "serves to clarify for whom a right to judicial review exists, the powers the court can exercise on such a review, and what procedural requirements must be met to assert that right". [17] Section 624(2) of the LGA reads as follows: 624 (2) Except for an instrument referred to in section 623(4)(a) [instrument requiring assent of the electors], a declaratory order relating to a municipal instrument must not be made unless the application is heard within 2 months after the adoption of the instrument [emphasis added.] [18] The Village submits that the purpose of s. 624 is to capture situations where a party

who has missed the s. 623(5) limitation period tries to circumvent that section by seeking, rather than an order setting aside a bylaw, a declaration that the bylaw is invalid or of no force and effect. [19] The Village argues that challenges to the 2006 Zoning Bylaw were possible when it was first passed approximately 15 years ago. The Village further argues that the current attack on irregularity of notice and associated procedural fairness arguments in the passage of that bylaw are really a collateral attack meant to avoid enforcement proceedings. [20] Section 623 sets up a particular process to challenge a municipal bylaw, and requires that this challenge be heard within a two-month period. Other options exist to challenge a municipal bylaw, including through the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA]. Analysis [21] I am of the opinion that the validity challenge brought by the Defendant in this case would open the door to precisely the mischief that s. 624 was meant to prevent - a bylaw being declared invalid fifteen years after its adoption. I agree with the submissions made by the Village. The time limit to challenge procedural irregularities in passing the 2006 Zoning Bylaw is captured by ss. 623 - 624 of the LGA, and that time has long since passed. [22] Even if the time period for bringing this application were not constrained by those provisions,

and only subject to the more general concerns of delay pursuant to the JRPA and common law, I would find the delay inordinate and unduly prejudicial to the third parties that have relied on the validity of the 2006 Zoning Bylaw in the interim, and would dismiss the Defendant's challenge to the 2006 Zoning Bylaw on that basis. Issue 2: What is the extent of the legal non-conforming use? [23] The parties disagree about the extent of the prior non-conforming use protection that the property enjoys. Law [24] Legal non-conforming protects property owners' ongoing and legal use of property. Legal non-conforming use occurs when, at the time a new bylaw is adopted, an existing lawful use of the land, does not conform with the new land regulation bylaw. The use may continue despite not conforming with the new bylaw, so long as it meets the requirements set out in Division 14 the LGA. [25] Section 528 of the LGA applies to land use affected by a new land-use regulation bylaw, and allows the continuation of a use that is lawful under the pre-existing bylaw when that use would breach the terms of the new bylaw: 528. (1) Subject to this section, if at the time a land use regulation bylaw is adopted, (a) land, or a building or other structure, to which that bylaw applies is lawfully used, and (b) the use does not conform to the bylaw; the use may be continued as a non-conforming use. [26]

Section 528 provides protection only from "land use regulation bylaws" and not from bylaws of general application, including bylaws for the abatement of nuisances. While a previously lawful existing use may continue, there are restrictions. Section 530 states that s. 528 "does not authorize the non-conforming use of land to be continued on a scale or to an extent or degree greater than that at the time of the adoption of the land use regulation bylaw". The use that continues must be the same as that which existed before the new bylaw restrictions came into effect. [27] The case of Saint Romuald (City) v. Olivier, 2001 SCC 57 [Saint-Romuald] involved a struggling country western bar that was replaced with a cabaret featuring nude dancers. The Supreme Court was asked to decide whether this use was so different so as to fall outside of the pre-existing use protection. At para. 5 the majority noted that: The acquired right is no more than a right to carry on using the land for the purpose to which it was in fact previously being put. The issue, of course, is how widely or narrowly to circumscribe the description of the purpose of that "pre-existing use". [28] The majority, at para.8, identified the question in Saint-Romuald as whether the definition which applied to the prior non-conforming use protection was for the broad definition ("nightclub") or a narrow definition ("country

and western nightclub"). [29] In Saint Romuald, the majority summarized the character of the protection offered through non-conforming use protection: [39] I therefore approach the issue of limitations on the respondents' acquired right as follows: 1. It is firstly necessary to characterize the purpose of the pre-existing use The purpose for which the premises were used (i.e., "the use") is a function of the activities actually carried on at the site prior to the new by-law restrictions.

2. Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond a matter of degree and constitutes, in terms of community impact, [a difference in kind], the protection may be lost.

3. To the extent a landowner expands its activities beyond those it engaged in before the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such a case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate "neighbourhood effects".

4. To the extent activities are added, altered or modified within the scope of the original purpose (i.e., activities that are ancillary to, or closely related to, the pre-existing activities), the Court 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. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities.

5. Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon.

6. The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what [they] actually did, and not be so narrow as to rob [them] of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use.

7. While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court's decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, .... [30] It is established law that the status of a property as a legal non-conforming use does not grant the property owner insulation from all municipal bylaws. Legal non-conforming uses are provided with protection from zoning bylaws that restrict or eliminate that kind of use or structure in their applicable zone. Other bylaws of a general application, such as noise or property maintenance bylaws, must still be abided by. [31] In Cowichan Valley (Regional District) v. Cowichan Valley Gun Club, 1994 CanLII 679 at para. 46 (B.C.S.C.), the Court outlined the balance between allowing legal non-conforming uses while simultaneously allowing the local government to regulate the property: A lawful non-conforming use does not establish a property right. It does no more than permit continuation of an activity subject to restrictions of the kind dealt with herein. The use is not immune from regulation so long as it is regulation and not prohibition MacNutt et al v. The Queen (1972) 5 W.W.R. 402. [MacNutt] [32] In Sunshine Coast (Regional District) v. Sheppard, 2007 BCSC 1754, the defendant

property owners argued that the bylaw concerning dog kennel noise abatement was so restrictive that it robbed them of their legal non-conforming use. Mr. Justice Groves concluded that the defendant's non-conforming use did not preclude the application of the noise abatement bylaw: at paras. 46-48. Analysis [33] The 2006 Zoning Bylaw for the M-1 zone does not include "automobile wrecking yard" as a permitted use. Use of the Property as an automobile wrecking yard was permitted under the 1992 Zoning Bylaw and prohibited under the 2006 Zoning Bylaw. [34] This is not a case where the Defendant has sought to re-define their use of a property and now attempts to shield that new use under the guise of calling that use "automobile wrecking". The Property has been continually used for automobile wrecking since at least 1996. That prior use is protected. [35] The Defendants' prior non-conforming use to operate an auto wrecking yard (1) is bound by the parameters guiding that use in the 1992 Zoning Bylaw, and (2) subject to bylaws of general application within the Village. The question is whether the particular way that they are exercising the auto wrecking use is protected from regulation in the PM Bylaw or the 2006 Zoning Bylaw. [36] The Defendant argued that an earlier bylaw applied, a 1974 zoning bylaw. However, as stated above, automobile wrecking was a permitted use under the 1992

Zoning Bylaw, and the legal non-conforming use of the Property flows from that bylaw, not the 1974 zoning bylaw. I also understood the parties to agree in oral arguments that the 1992 Zoning Bylaw applied to the Property. Issue 3: Do the Impugned Activities violate s. 6.83.2(a), (b), and (e) of the 2006 Zoning Bylaw? [37] The parties disagreed about whether the Impugned Activities, prohibited in the 2006 Zoning Bylaw were allowed under the 1992 Zoning Bylaw. Village's Position [38] The Village argues that, though the auto wrecking use is protected, the particular way that Defendant is carrying out this use was not allowed under the 1992 Zoning Bylaw, and so cannot be considered to enjoy prior non-conforming use protection. In particular, that the Defendant could not have stored materials in the front yard, and could not have stored items above the height of the fence under the 1992 Zoning Bylaw, and therefore the way the Defendant is using the Property is in a manner that does not fall within the bounds of s. 528 and does not receive non-conforming use protection. The Village argues that it is not a logical reading of the 1992 Zoning Bylaw that the Village wanted the space enclosed by a fence but had no concern for stacking above the height of that fence. [39] The Village further argues that the Impugned Activities are not land uses but are methods of use, which are not subject

to s. 528 protection. Finally, they say that the PM Bylaw prohibits the Impugned Activities independent of the 2006 and 1992 Zoning Bylaws. Each argument is considered separately below. Defendant's Position [40] The Defendant argued that their use of the Property was allowed under the 1992 Zoning Bylaw, in much the same way that their current use occurs. The Defendant further argues that the requirement that their operations be enclosed by fencing refers to the need for a fence, but should not be read to indicate that stacking could not occur above the height of the fence. Stacking of vehicles is an aspect of auto wrecking. [41] The Defendant argues that the principles of fairness that underpin statutory protection for legal non-conforming uses would be defeated if the 2006 Zoning Bylaw could be used to curtail legal non-conforming uses through the guise of general regulation, contrary to the ruling in MacNutt v. The Queen, 1972 CanLII 1601, [1972] 5 W.W.R. 402 (B.C.S.C.). [42] The Defendant argues that, by definition, lawful automobile wrecking yard use includes the outdoor disassembling, dismantling, junking, and storing of non-operable motor vehicles and used parts. Given that automobile wrecking yard is explicitly excluded as a permitted use in the M-1 Zone, regulation of that use contained in the 2006 Zoning Bylaw does not apply to the defendant's use of the Property. The

Defendant argues that (1) they have stacked "automobiles" above the fence, not "materials" as stated in the bylaw (so it doesn't apply) and (2) it does not constrain their use as this section is clearly not meant to accommodate auto-wrecking since they are legal non-conforming. That is, that the 2006 Zoning Bylaw prohibits the stacking of "materials" not "automobiles", suggesting that height limitation does not apply to the storage of automobiles". I do not accept the Defendant's argument. The items being stacked are wrecked automobiles in the process of being junked or recycled, and fall within the definition of "materials". Analysis [43] In order to be lawful pursuant to the 1992 Zoning Bylaw, which permitted the use of the property as an "automobile wrecking yard", the Defendant's use had to comply with the provisions of that bylaw. The definition of "automobile wrecking yard" per s. 2.1 of the 1992 Zoning Bylaw is as follows: Automobile Wrecking Yard means an area outside of an enclosed building where motor vehicles are disassembled, dismantled or junked or where vehicles not in operable condition or used parts of motor vehicles are stored or sold. [44] Section 6.16 (which contains the specific rules relating to the M-1 Zone) of the 1992 Zoning Bylaw contains two provisions pertinent to the Impugned Activities: 6.16.4.1 Outdoor storage shall not be permitted in required

front yards. 6.16.4.2 Any part of a parcel used or intended to be used as an outdoor storage area shall be enclosed by screening consisting of a solid 2.5 metre fence or wall. [45] Provisions of the 1992 Zoning Bylaw clearly preclude storage in the area of the Property between the fence and Aylmer Road. Such storage is both "in the front yard" of the Property, contrary to s. 6.16.4.1, and is not "enclosed by screening", contrary to s. 6.16.4.2. [46] The fact that a later bylaw provided explicit clarification prohibiting stacking of items above a certain height does not mean, by implied exclusion as argued by the Defendant, that the 1992 Council intended to permit material to be piled up and stored above the height of the fence. I cannot accept that the only limit on how high wrecked vehicles may be stacked under the 1992 Zoning Bylaw is the imagination and ingenuity of a property user in stacking wrecked vehicles. [47] The fallen portions of the fence are violations of the 1992 Zoning Bylaw because with the fallen portions, or portions that are partially torn away or otherwise in significant disrepair, the fence does not meet the definition of "enclosed by screening", and the storage taking place adjacent to the fallen portions is not "enclosed". Further, piling flattened cars above the fence is contrary to s. 6.16.4.2 because vehicle bodies stacked above the height of the

fence are not "enclosed by screening". Each of these factors - (1) the fence which is in a dilapidated condition, and does not provide contiguous screening, with panels missing and down; and, (2) the piling of wrecked vehicles, in places three cars above the height of the fence - on its own, supports the finding that the activities are not enclosed by screening. [48] I find that the Defendant violated provisions 6.16.4.2 and 6.16.4.1 of the 1992 Zoning Bylaw. While it may be possible to temporarily park some vehicles in the front yard in the process of being processed into the facility, something considerably more was happening. There was evidence from the bylaw enforcement officer that items were being stored in the front yard, including a stove, plywood, partially broken-down wood pallets, and vehicles in a considerable state of disrepair. [49] The requirement for the screening of outdoor storage areas through a fence represents a balance which allows the use to continue and imposes some conditions on that activity which constrains its impact on other properties. [50] Based on a review of the evidence of the Village bylaw enforcement officer and the arguments of the Village, I agree that the Impugned Activities were not lawful pursuant to s. 6.16.4.1 and s. 6.16.4.2 of the 1992 Zoning Bylaw, and therefore could not continue as lawful non-conforming uses pursuant to s. 528 of

the LGA. They are not permitted pursuant to the 2006 Zoning Bylaw. Issue 3: Do the Impugned Activities violate s. 6(1)(a) and s. 8(1)(a) and (c) of the PM Bylaw [51] The Village seeks injunctive relief pursuant to s. 274 of the Community Charter enjoining the Defendant from using the property contrary to s. 6(1)(a) and s. 8(1)(a) and (c) of the PM Bylaw. These provisions prohibit properties from becoming or remaining "unsightly" by the accumulation of filth, discarded material, rubbish, or the storage of anything in a manner that is not permitted by the 2006 Zoning Bylaw. Village's Position [52] The Village argues that the Impugned Activities are unsightly and that the Defendant has stored inoperable vehicles haphazardly outside the fence, piled stripped vehicle bodies well above the fence, and allowed sections of the fence to fall over, which meet the definition of unsightly from the PM Bylaw: "untidy or otherwise non-aesthetic accumulation of brush, trees, noxious weeds and other unsightly growths, filth, discarded materials, junk, refuse or clutter" and, notably, the definitions of the words "refuse" and "rubbish" specifically include "unused or stripped automobiles, trucks, [and] trailers". [53] The Village says that the PM Bylaw is a bylaw of general application, a category which includes bylaws for the abatement of nuisance, and is therefore not subject to s. 528 legal

non-conforming use protection. [54] The Village says that there is no obvious reason why the automobile wrecking yard use would be unprofitable or unfeasible if the Defendant had to pile stripped vehicles only to the height of the fence (rather than above it), store vehicles only inside the fence (rather than outside it), and keep its fence in a good state of repair. [55] The Village submits that the Defendant can continue stripping parts from vehicles, or store stripped vehicles at the Property, but asks the Defendant to do those activities in a way that is effectively screened from passersby, in compliance with the requirements of the PM Bylaw. Defendant's Position [56] The Defendant argues that the Village's attempt to use the PM Bylaw's prohibition on "unsightly" properties (s. 6(1)(a)) and limitations on vehicle storage (s. 8(1)(a) and (c)) are an end-run around the legal non-conforming status enjoyed by the Property. The Defendant argues that the PM Bylaw does not apply because the automobile wrecking use of the Property has prior legal non-conforming use protection, and the Impugned Activities are "fundamental" to the automobile wrecking yard use. [57] The Defendant says that the Property does not contain an accumulation of any filth, discarded materials, or rubbish. Everything at the Property has a purpose and an economic value, and while automobile wrecking yard use

may not be pretty, it is a lawful industrial use of the Property that has been maintained for more than 40 years. Further, to allow the Village to apply subjective aesthetic preferences to a legal non­conforming industrial use would be to allow the Village to incrementally constrain the lawful use of the PM Bylaw by means it cannot achieve through a zoning bylaw that targets their use. [58] The Defendant argues that the Impugned Activities are fundamental to their use, and that, therefore, the PM Bylaw does not apply as it would in effect curtail this use. [59] The Defendant points out that the PM Bylaw's adoption of the standards set in the 2006 Zoning Bylaw creates uncertainty for it because their use is not allowed in that bylaw, but continues as a prior non-conforming use authorized in an earlier bylaw. As none of their use is in accordance with the 2006 Zoning Bylaw, absent the saving provision of Division 14 of the LGA, the Defendant argues it is possible to read the PM Bylaw's referential incorporation of standards in the 2006 Zoning Bylaw, as though their use of the property for valid auto wrecking purposes is entirely disallowed. For example, s. 8(1) prohibits vehicles from being placed as outdoor storage, and prohibits storage of motor vehicle or recreational vehicle parts, unless in accordance with the 2006 Zoning Bylaw. Law [60] The relevant provisions of the PM

Bylaw are as follows: Definitions: REFUSE means and includes, but is not limited to, food wastes, market wastes, paper, cardboard, plastics, yard trimmings and brush, stumps, metal cans, glass containers, bulky wastes such as furniture, appliances, mattresses, tires, construction and demolition waste, unlicensed. unused or stripped automobiles. trucks, trailers, boats, vessels, machinery, tools, equipment, mechanical or metal parts, RUBBISH means refuse. UNSIGHTLY means an untidy or otherwise non-aesthetic accumulation of brush, trees, noxious weeds and other unsightly growths, filth, discarded materials, junk, refuse or clutter and includes the storage of any type of vehicle(s) in contravention of this Bylaw or Zoning Bylaw No. 683 - 2006.

6. Unsightly Property (1) No person may: (a) allow property to become or remain unsightly by the accumulation of filth, discarded materials, rubbish or the storage of anything in a manner that is not permitted by Zoning Bylaw No. 683 - 2006 and all amendments thereto; 8. Vehicle Storage (1) No person may: (a) cause or permit motor vehicles to be placed as outdoor storage on real property unless done in accordance with Zoning Bylaw No. 683 - 2006 and all amendments thereto. (c) cause or permit on real property storage of motor vehicle or recreational vehicle parts or supplies unless in accordance with Zoning Bylaw No. 683 - 2006 and all amendments thereto. [61] The distinction between "use" and "method of use" was drawn by the Court of Appeal in Chase Discount Auto Sales. Ltd. v. Waugh, 2019 BCCA 271 [Chase Discount Auto Sales], where the Court noted that one of the reasons the PM Bylaw could not be described as a "zoning bylaw" is that it only restricted how activities could be carried out, and not which activities could be carried out. [62] Chase Discount Auto Sales concerned the same PM Bylaw applicable to the current case, and shared some of the same Defendants as this case. However, the activity at issue there was automobile sales not subject to prior non-conforming use protection. Nonetheless the Court of Appeal's discussion of the definitions within the PM Bylaw of

"waste" "refuse" and "unsightly" are germane to the discussion at hand. [63] In Chase Discount Auto Sales, the Court of Appeal confirmed that ss. 8 and 64 of the Community Charter grant the Village the power to pass bylaws that regulate and impose requirements with respect to unsightly conditions and refuse, including derelict vehicles: [68] As I read the definition of "refuse", it does not mean that all "unlicensed, unused automobiles" are refuse, any more than it means that all "trailers, boats, vessels, machinery, tools, equipment, mechanical or metal parts" are refuse, or that all "furniture" and "appliances" are refuse. The PM Bylaw is intended to regulate property for the purpose of "preventing unsightliness on real property". Read contextually, these items become refuse when they are in such a condition as amount to waste. As suggested by section 6 of the PM Bylaw, such items will not constitute "refuse" to the extent they are stored in a manner permitted by the Zoning Bylaw. It will be recalled that the Zoning Bylaw does not permit outdoor storage or display that would include an Automobile Wrecking Yard, which would cover an area outside of an enclosed building where vehicles not in operable condition are stored. [64] Before the chambers judge in Chase Discount Auto Sales, the appellant property owner contended that the definition of "refuse" in the PM Bylaw

contradicted the zoning bylaw as all unlicensed and unused automobiles could be considered "refuse" which would prohibit the permitted use of selling used automobiles. The chambers judge rejected this notion. Reading the PM Bylaw in context, the chambers judge found that unlicensed or unused automobiles were only "refuse" when they amounted to "waste". The appellant appealed the decision and the Court of Appeal dismissed this appeal. The Court of Appeal agreed with the chambers judge that the PM Bylaw did not prohibit all unlicensed or unused automobiles on the property, rather in keeping with the bylaw's purpose of preventing "unsightly" properties, it set conditions on vehicle storage and display: at paras. 31-32. [65] The Court of Appeal also rejected the argument that the PM Bylaw was "in effect a zoning bylaw by reason of its purporting to regulate or prohibit uses of land within a zone": at para.

14. The Court stated that the PM bylaw applied across all zones to regulate how activities could be carried out, not which activities could be carried out. [66] Section 6(1)(c) reads as follows: 6. Unsightly Property (1) No person may: (a) allow property to become or remain unsightly by the accumulation of filth, discarded materials, rubbish or the storage of anything in a manner that is not permitted by Zoning Bylaw No. 683 - 2006 and all amendments thereto; [67] Regarding the unsightly property provision, it is useful to look to Chase Discount Auto Sales which also considered the PM Bylaw. The starting point for an interpretation of "unsightly" must be informed by the reality that the Property is lawfully used as an automobile wrecking yard. An automobile wrecking facility in its very nature will be unsightly. The question is whether the Property exceeds an acceptable level of "unsightliness" in the overall consideration of the context. The line between the regulation of unsightliness and the prohibition of the permitted automobile wrecking must be found. This requires an assessment of what is an acceptable degree of unsightliness or amount of "filth, discarded material, rubbish" for an automobile wrecking facility. [68] In Chase Discount Auto Sales, the Court of Appeal considered the reference to "refuse" in s. 6(1)(a): [69] In the result, I do not interpret the definition

of "refuse" as prohibiting an otherwise permitted use. It does not prohibit the petitioner from displaying automobiles for sale. Any attempt to apply it that way would surely fail. See, for instance, Chester District (Municipality) v Aloni, 1996 NSCA 83 at para 7, where the court endorsed an objective test for determining whether premises are unsightly within the meaning of a maintenance bylaw, being "what a reasonable person viewing the property would conclude, having regard for the nature of its use and occupancy and the standard of grooming that might reasonably be anticipated" [emphasis added]. [69] In Chase Discount Auto Sales, Mr. Justice Grauer found that whether the vehicles in that case were "unsightly, finding that there was evidence was that the vehicles were "badly damaged" and there were "loose wheels sitting among overgrown grass, weeds and shrubs in a manner that any reasonable person would describe as "unsightly": at para.

71. Analysis [70] Local governments are permitted to make bylaws of general application and enforce those bylaws even against properties which enjoy prior non-conforming use protection. The Court of Appeal has said that the PM Bylaw is a law of general application. [71] Based on the evidence of the Village bylaw enforcement officer, the vehicles or other items stored in front of, or around, the Property, are "unsightly". The affidavit evidence by the bylaw officer contained pictures which showed a stove, piece of plywood, fence panels which were in a dilapidated and unkempt state of repair, panels which were bent haphazardly outward, or missing altogether, and at places there were partial wooden pallet or pieces of plywood leaning against other items. Overall, on a consideration of the evidence of the bylaw enforcement officer, I am satisfied that a reasonable person viewing the Property would conclude that items were stored on the property in a way that was unsightly. [72] I find that the Defendants have violated this s. 6(1)(a) of the PM Bylaw, by allowing "property to become or remain unsightly by the accumulation of filth, discarded materials, rubbish or the storage of anything" as I set out below with reference to the evidence about the state of the property as provided by the bylaw enforcement officer. I would grant the injunction sought on this basis [73] The Village

also sought an injunction based on s. 8(1)(a) and (c) of the PM Bylaw. On its face, I am not sure that s. 8(1)(a) of the PM Bylaw, concerning using vehicles as outdoor storage, applies to this situation, and would not grant an injunction based on that section. Vehicles (in their wrecked and in-process of being recycled forms) are not being used as storage, rather they are being stored. There are areas where the PM Bylaw's adoption of standards in the 2006 Zoning Bylaw which prohibit the Defendant's use in their zone, are problematic because the Defendant has a lawful non-confirming right to continue that use pursuant to s. 528 of the LGA. This is not the case with s. 8(1)(c) which may be unable to retain meaning or legality without reference to the prior non-conforming use of the Defendant as they would then read as prohibiting storage of motor vehicle parts or supplies. Storage of motor vehicle parts would seem to be protected as part of the Auto Wrecking use. I do not accept the Village's argument on that point, I would not grant an injunction pursuant to s. 8(1)(a) and (c). Injunctive Relief [74] The Village seeks a statutory injunction on the basis of s. 274 of the Community Charter. Section 274 reads: Actions by municipality 274 (1) A municipality may, by a proceeding brought in Supreme Court, enforce, or prevent or restrain the contravention of, (a) a bylaw or resolution

of the council under this Act or any other Act, or (b) a provision of this Act or the Local Government Act or a regulation under those Acts. [75] The injunction the Village seeks is a statutory, rather than an equitable remedy, and, as such, "once a clear breach of an enactment is shown, the courts will refuse an injunction to restrain the contained breach only in exceptional circumstances": Vancouver (City) v. Maurice, 2005 BCCA 37 at para. 34. [76] The Defendant argues the injunctive relief sought is inappropriate as there is no "clear" breach of the applicable bylaws and therefore no injunction may be granted; the injunctive relief sought by the Village is not "set out with sufficient specificity"; and there is no basis for an injunction against Mr. Lanoue personally. [77] The authority the Defendant relies on is North Pender Island Local Trust Committee v. Conconi, 2007 BCSC 1436, aff'd 2010 BCCA 494 [Conconi], where the Court refused an interlocutory injunction on the basis that the Defendant property owner had an "arguable case" that its use was not a breach of the applicable bylaw. [78] The decision relied upon by the Defendant was an interim summary trial application seeking an interlocutory injunction. Following the Conconi decision cited above, the local government proceeded to a summary trial and did obtain a permanent injunction, which was upheld on appeal. The land

owner's "arguable case" in Conconi did not prevent the injunction from being imposed and upheld after a summary trial. [79] Given my findings on the Defendant's breach of the 2006 Zoning Bylaw and s. 6(1)(a) of the PM Bylaw, the Village is entitled to injunctive relief. [80] I find it appropriate in the circumstances to issue a personal injunction against Mr. Lanoue, as the principle operating mind behind both other business defendants. [81] I make the following orders: 1) The Defendant is enjoined from causing or permitting: a. Vehicles, including unlicensed and derelict vehicles, to be stored outside of the fence and inside the front yard of 117 Aylmer; b. Other materials, including rubbish and discarded materials, to be stored outside of the fence and inside the front yard of 117 Aylmer; c. The fence or any portion thereof to fall on the ground such that it no longer forms a continuous and solid barrier; and d. Vehicles or materials, including vehicles in the process of being junked or recycled, to be stacked above the height of the fence of 117 Aylmer.

2) Within 14 days of this decision, the Defendant must: a. Remove all vehicles and other materials, including rubbish and discarded materials as defined in the PM Bylaw, from the front yard of 117 Aylmer; b. To replace, reattach, or reinstall any portion or section of the fence so that the fence provides a continuous and solid barrier to the height of 2.5 metres around the entire circumference of 117 Aylmer; and c. Remove the vehicles or materials, including vehicles in the process of being junked or recycled, stacked above the height of the fence so that no portion of any vehicle, or materials including vehicles in the process of being junked or recycled, is stacked at a height that is above the height of the fence. [82] In Saint-Romuald, at para. 1, Mr. Justice Binnie, writing for the majority, noted that the Court's task in considering whether a prior non-conforming use protected the current activities, is, in essence, to find the proper balance between an individual's right to the continued use and enjoyment of his or her property and the power of the community, expressed through the local municipality, to enhance, by changing the land use regulations, the amenities of surrounding and other affected landowners That is much the same question as before this court. [83] The Defendant can continue operating their automobile wrecking business. The injunction ensures those operations be conducted within the bounds of the applicable regulations as to storage, screening, and unsightliness. "A. Walkem J."