Annapolis County (Municipality) v. Hankinson et al., 2002 NSSC 149

• Judge: Haliburton, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: May 28, 2002
• Jurisdiction: Nova Scotia
• Citations: 2002 NSSC 149;(2002), 205 N.S.R.(2d) 304 (SC)

Annapolis County v. Hankinson (2002), 205 N.S.R.(2d) 304 (SC);

 643 A.P.R. 304

MLB headnote and full text

Temp. Cite: [2002] N.S.R.(2d) TBEd. JL.010

The Municipality of the County of Annapolis a body corporate under the provisions of the Towns Act (plaintiff) v. Mark Christopher Hankinson and Dexter Construction Company Limited (defendants)

(S.AR. 01921; 01956; 2002 NSSC 149)

Indexed As: Annapolis County (Municipality) v. Hankinson et al.

Nova Scotia Supreme Court

Haliburton, J.

May 28, 2002.

Summary:

The Municipality of the County of An­napolis brought an action for an injunction to restrain the defendants from continuing the operation of a gravel pit and/or quarry on lands located in the Municipality. A gravel pit or quarry was not a permitted use under the Municipality's Land Use Bylaw adopted in 1997.

The Nova Scotia Supreme Court dismissed the action. The court held that the legislature had not delegated authority over pits and quarries to the Municipality, but rather had retained jurisdiction to control and authorize such activities under provincial laws. Fur­ther, if the Municipality had authority over such activities, then the court found that the operation of a pit and quarry would be a pre-existing nonconforming (permitted) use under the Municipality's Land Use Bylaw.

Land Regulation - Topic 2504

Land use control - Zoning bylaws - Gen­eral principles - "Use" defined - A Munici­pality brought an action for an injunction to restrain the defendants from continuing the operation of a gravel pit and/or quarry on lands in the Municipality - A gravel pit or quarry was not a permitted use under the Municipality's Land Use Bylaw adopted in 1997 - The Nova Scotia Supreme Court dismissed the action - The operation of a pit and quarry was not subject to municipal regulation under the Municipal Government Act, but rather was regulated under provincial legislation - The legislature did not intend to abdicate the responsibility for gravel pits and rock quarries to municipal authority by way of the planning provisions of the Municipal Government Act - That authority was retained by the Province under the auspices of the Department of Environment - The court followed cases which held that pits and quarries were not a "use of land" - See paragraphs 50 to 58.

Land Regulation - Topic 2802

Land use control - Exemptions - Nonconforming use - Use not conforming to zoning bylaw - Lawful use prior to zoning - A Municipality sought an injunc­tion to restrain the defendants from con­tinuing the operation of a gravel pit and/or quarry on lands in the Municipality - A gravel pit or quarry was not a permitted use under the Municipality's Land Use Bylaw adopted in 1997 - The land had been used for that purpose for 30 years - The Nova Scotia Supreme Court held that the defendants' present operation was a pre-existing nonconforming (permitted) use under the Land Use Bylaw - The addition of blasting activity to the prior method of operation was an "intensification" of the previous operation - It did not change the essential general use of the land from that which existed prior to the adoption of the Land Use Bylaw - See paragraphs 40 to 49.

Land Regulation - Topic 2865

Land use control - Exemptions - Loss of exemption - Change or discontinuance of use - Change of use - [See Land Regula­tion - Topic 2802 ].

Municipal Law - Topic 1430

Powers of municipalities - Respecting land - Land use - [See Land Regulation - Topic 2504 ].

Cases Noticed:

Campbellton (City) v. Thompson et al. (1994), 151 N.B.R.(2d) 1; 387 A.P.R. 1 (C.A.), refd to. [para. 28].

Saint-Romuald (Ville) v. Olivier et al., [2001] 2 S.C.R. 898; 275 N.R. 1, appld. [para. 29].

Shooters Sports Inc. v. East Hants (Mu­nicipality) (2002), 200 N.S.R.(2d) 302; 627 A.P.R. 302 (S.C.), refd to. [para. 35].

Pickering (Township) v. Godfrey, [1958] O.R. 429 (C.A.), folld. [para. 36].

Dexter Construction Co. v. Saint John (City) (1982), 35 N.B.R.(2d) 217; 88 A.P.R. 217; 126 D.L.R.(3d) 39 (C.A.), folld. [para. 37].

Jellinek v. Tri-Gil Paving and Construction Ltd. and Gillcash (1990), 108 N.B.R.(2d) 139; 269 A.P.R. 139; 1 M.P.L.R.(2d) 97 (T.D.), refd to [para. 38].

Desrosier v. St-Anaclet-de-Lessard (Cor­poration Municipale) (1982), 21 M.P.L.R. 162 (Que. Sup. Ct.), dist. [para. 43].

Halifax (Regional Municipality) v. Dunphy et al. (2001), 191 N.S.R.(2d) 394; 596 A.P.R. 394 (S.C.), refd to. [para. 48].

Counsel:

Ronald D. Richter, for the plaintiff;

Alan G. Hayman, Q.C., and Michael J. Wood, Q.C., for the defendants.

This action was heard on January 28-30, 2002, at Digby, Nova Scotia, before Haliburton, J., of the Nova Scotia Supreme Court, who delivered the following decision on May 28, 2002.