Who do you contact to approve the building of a new dock or boathouse? A recent Ontario case changes the answer...
In Glaspell v Ontario the Superior Court of Justice was tasked with resolving a jurisdictional issue regarding the regulation and oversight of structures built over water. The Plaintiff brought a motion against the Township of North Kawartha (the “ Township ”), its Chief Building Official, the Crown as represented by the Ministry of Natural Resources (“ MNR ”), the Minister of Municipal Affairs and Housing, the Area Supervisor for MNR and the neighbors responsible for building the dock and boathouse (the “ Harts ”).
The Plaintiff owned a waterfront property and the Harts owned a nearby waterfront property where they constructed a boathouse on a floating dock without notice to the Plaintiff or any of their other neighbors. A thick steel cable runs from the dock to the shore at a point beyond the high water mark in front of the Harts’ property. The 1,000 square foot dock is not otherwise anchored to the bed of the lake. The boathouse is located in front of the Hart’s property and is 10 feet from the Plaintiff’s projected property line.
The Harts had contacted both the Township’s Building Department and MNR prior to constructing the boathouse. The Township’s position was that if the boathouse is located over the lakebed beyond the high water mark, it was exclusively MNR’s jurisdiction. MNR’s position was that the planned boathouse did not require a work or occupancy permit. Thus, the boathouse and its dock were constructed without a building permit from the Township or an occupancy or work permit from MNR.
The Plaintiff argued that the Township has jurisdiction to zone the Harts boathouse and dock and to enforce the Building Code Act and its zoning by-law with respect to their construction. He further argues that MNR should have required the Harts to comply with the Public Lands Act.
The issue before the Court turned on determining what rule of law governs the construction and use of docks and boathouses on Ontario’s lakes and rivers.
It is well established that the Crown has ownership of a waterbodies’ bed and it also has title to the foreshore between the low and high water marks. Somewhat contrastingly, a municipality has the authority to zone areas within its jurisdiction. The Court in Glaspell clarifies this contradiction by explaining that although the subject of a zoning by-law is land and zones are defined on the ground, zoning by-laws operate on the person using the land and not the land itself. As such, the Township can lawfully zone the lands under a lake and regulate the construction of buildings or structures to be erected or located within the Township. The by-law would not apply to the Crown or its Agents, but would apply to the private individuals like the Harts, who are not Crown Agents.
Once the Court determined that municipal zoning by-laws applies, it concluded that the Building Code Act applies to boathouses as well. As such the Harts and others constructing docks and boathouses must apply for, and obtain, a building permit with the municipality before construction. The Court went one step further and stated that the municipality is obliged to enforce its zoning decisions and the Building Code Act on structures within its jurisdiction, notwithstanding Crown-land designations. This must be taken to mean that in the context of an application having been made, the municipality will be expected to apply its by-laws and the provisions of the Building Code Act, and cannot simply claim lack of jurisdiction and ignore the application. The Court states earlier that there had been discussion of whether a municipality can employ discretion in the enforcement of its bylaws, but that that discretion is not relevant as to whether or not zoning applies to lands covered by water, and as such the Court would make no finding with respect to that discretion. This is consistent with the general approach that municipalities are not required to actively enforce their bylaws.
The Court delineated a role for the MNR as well. The Court found that the boathouse and dock are subject to s.26 of the Public Lands Act, a provision which makes it unlawful to take possession of public lands and erect improvements without lawful authority. An occupancy permit is required to build a floating dock and boathouse.
In the end, the Court ordered that the Harts were required to obtain an occupancy permit from MNR as well as comply with building and zoning-bylaws for their boathouse and dock. The Plaintiff’s success on his motion marked the end of the short-lived boathouse free-for-all on Big Cedar Lake.