September 23rd - 2014

Legal Beat: Structure is aerodrome, not boathouse, owner argues

The purchaser of this Ontario recreational property was a long-time developer.

Mervin Burgard Q.C.

by Mervin Burgard 

The purchaser of this Ontario recreational property was a long-time developer. He demolished the existing lakeside cottage and built a luxurious new one. He then entered into a site plan agreement with the local township and sought a zoning amendment to build a boathouse. The township refused, responding that the boathouse was illegal and could not be constructed in the Environmental Protection zone on the water’s edge.

The owner/developer appealed the decision to the Ontario Municipal Board but then withdrew his appeal and began plans for an aerodrome. Construction of a dock to support the structure began, and the township issued a stop work order but construction continued. 

The owner argued that the new structure was not a boathouse but an aerodrome (a small airport or airfield.) He noted that municipal bylaws do not apply to a federally regulated and registered aerodrome. An earlier marketing document for the property created by a REALTOR® mentioned a “floatplane hangar/aerodrome” to be built. Subsequent listings and advertisements mentioned a boathouse. The REALTORS® involved acknowledged that this was an error.

The developer was not a pilot, nor did he have a pilot’s licence. Photographs revealed that the structure was being used as a boathouse. At issue was whether the facility was an aerodrome or simply a boathouse with a wider door. The judge concluded that the facility was built as a boathouse, not as an aerodrome or hangar. He ordered it to be demolished in 90 days.

Seguin (Township) v Bak 2013 ONSC 5788

MERV’S  COMMENTS

Mervin Burgard Q.C.

The judge also remarked: “Clearly there is a purpose for enacting environmental zoning or planning regulations and building regulations. Lakes and rivers are not immune from slow degradation as a result of human activity. If the respondent’s position … is correct, then subject to the expenditure of time, energy and costs, aerodromes looking like and operating as boathouses will, in due course, come to proliferate -- or at least become more prominent -- on Ontario’s lakes, all without environmental zoning or planning oversight.”

An airplane hangar will not necessarily have the protection of federal jurisdiction if it is also used as a residence or if it is used for storing non-aeronautical equipment such as boats. The courts will also look at the question of good faith and whether someone appears to be trying to avoid municipal bylaws. An online listing of the property for sale for $2.8 million last year still contained a reference to a boathouse. Is the structure a boathouse or an airplane hangar? If it walks like a duck, talks like a duck and acts like a duck, it’s probably a duck.

Mervin Burgard, Q.C.

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