The Rural Voice, 2003-09, Page 63Agrilaw
Building permit no guarantee
Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
By Paul Vogel
The use of land in Ontario is
governed by many complex and
inter -related provincial laws and
regulations. The Building Code Act
requires that a building permit be
issued by the municipal chief
building official before construction
or demolition of any building. Prior
to the issue of a building permit,
the chief building official must
satisfy himself that the proposed
building, construction or demolition
does not contravene the Building
Code Act, the building code, or
"any other applicable law". Faced
with an alleged contravention of
another "applicable law" following
issue of the permit and
commencement of construction, will
this determination by the chief
building official and his issuance of
the permit protect the permit recipient
from conviction?
The Ontario Court of Appeal
recently considered this issue in a
case where a conservation authority
asserted that construction of two hog
barns and a liquid manure storage
tank was contrary to regulations
under the Conservation Authorities
Act even though a building permit
had been issued for their
construction. In the prosecution of
the landowner instituted by the
conservation authority, the lower
court had acquitted the landowner for
constructing the building in a swamp
or area subject to flooding contrary to
the regulations on the basis that the
landowner had acted in good faith in
reliance on the issuance of the
building permit and was entitled to
rely on the building permit even if it
was issued in error. The Court of
Appeal set aside the acquittal and
ordered a new trial holding that the
landowner could not rely on the
building permit to avoid a conviction
for contravention of "other applicable
law".
In coming to this conclusion, the
majority of the Court of Appeal held
that, although the building permit
establishes determination by the chief
building official that the proposed
construction complies with all
applicable laws, good faith reliance
by the recipient on the permit to
establish compliance with all
applicable laws cannot be inferred
simply from issue of the permit. The
court stated:
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Harriston, Ontario 519-338-2111
SEPTEMBER 2003 59