Cumberland (County) v. W.B. Wells Ltd.

Cumberland (County) v. W.B. Wells Ltd. Court Supreme Court Date 2003-06-18 Citation 2003 NSSC 94 Docket 3865 Judge/Registrar/Adjudicator McDougall, Glen G. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Cumberland (County) v. W.B. Wells Ltd., 2003 NSSC 94 Date: 20030618 Docket: 3865 Registry: Amherst Between: Municipality of the County of Cumberland Plaintiff v. W.B. Wells Limited Defendant Before: The Honourable Justice Glen G. McDougall Heard: April 15, 2003, in Amherst, Nova Scotia Counsel: Beryl A. MacDonald, on behalf of the plaintiff Jim M. O’Neil, on behalf of the defendant McDougall, J.: [1] W.B. Wells Limited (the “company”) is an incorporated company solely owned by Mr. Walter E. Wells (“Mr. Wells”). The company has extensive land holdings in Nova Scotia, New Brunswick and Prince Edward Island. It is primarily in the business of growing and selling blueberries although for approximately the past six years the Company has sold the right to grow and harvest blueberries to other producers. The Company has not worked the lands itself. [2] The company owns various pieces of machinery and equipment as well as vehicles which were acquired in the normal course of business over a number of years. At one time the company stored these vehicles and other machinery and equipment on a property within the boundaries of the Town of Amherst. Mr. Wells could not acquire a permit to construct a building to store and repair his equipment and because the Town complained that his property was unsightly he decided to acquire property in the County. This property at 341 Highway 6, East Amherst (the “property”) was used to store the company vehicles and other machinery and equipment. There was already a two-bay garage built on the property and the front portion was paved. According to Stephen Ferguson (“Mr. Ferguson”), the Development Officer for the Municipality of the County of Cumberland (“the County”) the property is zoned “general”. It was used for a commercial purpose prior to acquisition by the company. This type of zoning in the county permits pretty well any kind of use except for a salvage yard. [3] In the Spring of 1999, Mr. Ferguson received some complaints about the condition of the property. In addition to being the Development Officer for the County, Mr. Ferguson is designated the Administrator responsible for the dangerous and unsightly premises provisions of the Municipal Government Act, S.N.S. 1998, c. 18 (the “MGA”). It was in this capacity that he visited the property. Based on his personal opinion that the property was unsightly he wrote to the owner on May 14, 1999. No response was forthcoming so an order was issued by the county and personally served on Mr. Wells on June 14, 1999. The order gave the company until June 28, 1999 to remedy the situation. It also provided notice of an appeal process if the company wished to challenge the order. The company did nothing. Mr. Ferguson visited the property and took pictures on two separate occasions - June 11, 1999 and again on July 30, 1999. He also video taped the condition of the property. The photographs and the video were presented in evidence at the trial. The company was charged in Provincial Court with contravening the Act and with failing to comply with an order issued by the county. At trial the company was convicted but this was later set aside on appeal to the Nova Scotia Supreme Court. [4] On January 17, 2002 the county commenced this action seeking a declaration that the property is dangerous and unsightly pursuant to the provisions of the Act and an order requiring the company to remedy the condition of its property by removing or demolishing the allegedly derelict vehicles and other equipment and machinery. The county further sought an order giving it permission to remove or demolish the items in question if the company failed to comply with the order. Any costs incurred in doing so would be paid by the company. The county also sought costs of the action. ISSUES: [5] The main issue to be decided in this case is whether or not the property is unsightly. A review of the MGA should begin with Section 344 which states: Requirement to maintain property 344 Every property in a municipality shall be maintained so as not to be dangerous or unsightly. [6] Section 347(1) of the MGA further states: Order to remedy condition 347 (1) A municipality may apply to a court of competent jurisdiction for a declaration that a property is dangerous or unsightly and an order specifying the work required to be done to remedy the condition by removal, demolition or repair. [7] Section 3(r) of the MGA provides a definition of dangerous or unsightly: Interpretation 3 In this Act, (r) "dangerous or unsightly" means partly demolished, decayed, deteriorated or in a state of disrepair so as to be dangerous, unsightly or unhealthy, and includes property containing (i) ashes, junk, cleanings of yards or other rubbish or refuse or a derelict vehicle, vessel, item of equipment or machinery, or bodies of these or parts thereof, (ii) an accumulation of wood shavings, paper, sawdust, dry and inflammable grass or weeds or other combustible material, or (iii) any other thing that is dangerous, unsightly, unhealthy or offensive to a person, and includes property, a building or structure (iv) that is in a ruinous or dilapidated condition, (v) the condition of which seriously depreciates the value of land or buildings in the vicinity, (vi) that is in such a state of non-repair as to be no longer suitable for human habitation or business purposes, (vii) that is an allurement to children who may play there to their danger, (viii) constituting a hazard to the health or safety of the public, (ix) that is unsightly in relation to neighbouring properties because the exterior finish of the building or structure is not maintained, (x) that is a fire hazard to itself or to surrounding lands or buildings, or (xi) that has been excavated or had fill placed on it in a manner that results in a hazard; [8] Section 3 (v) of the MGA states: (v) "derelict vehicle, vessel, item of equipment or machinery " includes a vehicle, vessel, item of equipment or machinery that (i) is left on property, with or without lawful authority, and (ii) appears to the administrator to be disused or abandoned by reason of its age, appearance, mechanical condition or, where required by law to be licensed or registered, by its lack of licence plates or current vehicle registration; DISCUSSION: [9] The plaintiff agreed that the property was not dangerous. It based its case on the allegation that the property was unsightly. Furthermore the plaintiff conceded that the vehicles, machinery and equipment parked or stored on the property had not been abandoned. The evidence showed that Mr. Wells performed repairs or caused repairs to be performed on the vehicles whenever vandals caused damage to them. On occasion the vehicles had to be moved although they could not be taken on the highway because of the lack of proper registration, but they could be trailered or towed. For the most part, the vehicles, machinery and equipment remained idle. They have been parked or stored for possible future use. Some of the vehicles appear to have settled into the pavement of the parking lot. Although most of the parking area is being used, the vehicles and other machinery and equipment are not placed in a haphazard manner. Other than the repairs to the broken windshields and side windows of the buses and perhaps tire replacement on one vehicle and some touch-up painting, nothing much else had been done to the vehicles. The paint on some of the vehicles, including an old fire truck, is peeling and in obvious need of either a touch-up or complete re-painting. None of the vehicles have been safety inspected nor have they been properly registered and licensed for highway use. The vehicles and other machinery and equipment are rusting and deteriorating as one would expect from the obvious lack of use. Some tires are going flat and there is evidence of past oil leakage from some of the vehicles onto the ground. One vehicle has a bucket placed beneath it to catch leaking oil or some other kind of fluid. This container has been in place for several years. [10] Although the zoning does not prohibit the manner in which the Company is using the property, I am satisfied that based on the evidence presented the property is unsightly. The vehicles, equipment and machinery, although not abandoned, have not been used since being placed there some four years ago. They have been simply stored with the expectation that, possibly, at some future time they could be put to use. This disuse of the vehicles, equipment and machinery and their deteriorating condition make them derelict as described in Section 3(v) of the MGA. In accordance with Section 3(r) of the MGA, property containing such derelict vehicles, equipment or machinery is unsightly. The minor repairs done by Mr. Wells have done little to preserve the condition of these chattels which continue to deteriorate. DECISION: [11] The defendant shall therefore have sixty days in which to either remove or demolish the vehicles, machinery and equipment presently located on the property at 341 Highway 6, East Amherst, Cumberland County, Nova Scotia. If the defendant fails to do so then the County shall be permitted to carry out the work of removal or demolition or to contract out the work and to be reimbursed by the defendant for all reasonable expenses it might incur in so doing. [12] The plaintiff shall have its costs on a party and party basis along with all reasonable disbursements. If the parties cannot agree on an amount I am prepared to hear from them. J.