IN THE SUPREME COURT OF BRITISH COLUMBIA
|
Citation: |
Chase Discount Auto Sales Ltd. v Waugh, |
|
|
2018 BCSC 2014 |
Date: 20181115
Docket: S56336
Registry: Kamloops
Between:
Chase Discount Auto Sales Ltd.
Garrick Automotive Ltd.
Petitioners
And:
Richard Waugh
Village of Chase
Respondents
Before: The Honourable Mr. Justice Grauer
Reasons for Judgment
|
Counsel for the Petitioners: |
Reinhard Burke |
|
Counsel for the Respondents: |
Joshua Krussel |
|
Place and Date of Hearing: |
Kamloops, B.C. October 12, 2018 |
|
Place and Date of Judgment: |
Vancouver, B.C. November 15, 2018 |
|
Table of Contents |
Paragraph Range |
|
[1] - [4] |
|
|
[5] - [17] |
|
|
[18] - [27] |
|
|
[18] - [21] |
|
|
[22] - [24] |
|
|
[25] - [27] |
|
|
[28] - [74] |
|
|
4.1 Did Mr. Waugh have the authority to issue the Order to Comply? |
[28] - [52] |
|
[53] - [74] |
|
|
[75] - [75] |
|
|
|
|
[1] The petitioners are the lessee (Chase Discount Auto Sales, or “CDASL”) and the owner/lessor (Garrick Automotive) of adjacent properties at 409, 421 and 425 Shuswap Avenue in Chase, BC (the “property”). CDASL is in the business of selling new and used automobiles, trucks, trailers, RVs and boats. Notwithstanding that one is the lessee of the property in question and the other is the owner/lessor, CDASL and Garrick Automotive share the same president, employ the same counsel, and take the same position. Accordingly, I will simply refer hereafter to “the petitioner”.
[2] On July 17, 2018, the respondent Richard Waugh, a bylaw enforcement officer of the Village of Chase, delivered to the petitioner an Order to Comply, requiring it to bring the property at 425 Shuswap into compliance with the village’s the Property Maintenance Bylaw No. 731-2010 (“PM Bylaw”). The infractions Mr. Waugh identified were the accumulation of discarded junk, refuse and rubbish principally comprising what he considered to be derelict cars, as well as the accumulation of unsightly growth. He gave notice to the petitioner that if it did not bring the subject property into compliance by August 1, 2018, then the village may perform the necessary remedial work at the owner’s expense.
[3] Pursuant to the Judicial Review Procedure Act, RSBC 1996, c 241, the petitioner seeks orders:
1. setting aside the Order to Comply on the ground that neither Mr. Waugh nor the Council had the authority to impose remedial action requirements under the provisions of the Community Charter, SBC 2003, c 26; and
2. setting aside the PM Bylaw on the ground that it is, in effect, a zoning bylaw passed without appropriate procedure, and purports to prohibit what the zoning bylaw expressly authorizes.
[4] For the following reasons, I have concluded that the petition must be dismissed.
[5] The Village of Chase requires parties carrying on business to obtain and pay for a business license. The Business Licence Bylaw provides that if a business is carried on from more than one premises, each premises shall be deemed a separate and distinct business, thereby requiring a separate license.
[6] The petitioner held, and still holds, a business licence to operate an automobile sales business for the property at 425 Shuswap Avenue. It did not and does not have a licence for either 409 or 421 Shuswap.
[7] On July 3, 2018, the petitioner, through its manager, Karen Bassett, submitted an application for a business licence at 421 Shuswap Avenue. Ms. Bassett maintains that she was applying to amend the petitioner’s existing business licence by changing the location from 425 to 421 Shuswap Avenue, rather than applying for a new licence at 421 Shuswap Avenue. The request for an amendment was apparently noted on the bottom of the application form.
[8] The application was added to the agenda for the Council meeting to be held on July 10, 2018.
[9] This was not the first time that the property had come to the attention of the Village of Chase. As the result of a complaint, Mr. Waugh had issued an earlier Order to Comply to the petitioner on May 29, 2017, concerning to outdoor storage. No further steps were taken in relation to that order.
[10] In this context, Sean O’Flaherty, corporate officer of the Village of Chase prepared a memorandum to Council on the subject of the application. He noted that 425 Shuswap Avenue required an active business licence because the property was associated with active vehicle storage and advertised auto sales. He also noted an assortment of derelict vehicles at that location. With respect to 421 Shuswap Avenue, he observed that it had operated without a business licence for years in contravention of the Business Licence Bylaw. He went on to note that 409 Shuswap Avenue was an undeveloped site, now cluttered with an assortment of vehicles advertised for sale, with others being stored there. It, too, was being operated without a business license.
[11] Contrary to the petitioner’s intention to apply to amend its current licence, Mr. O’Flaherty interpreted the petitioner’s application as one for a second licence at 421 Shuswap Avenue that would permit auto sales at that location, bringing it into compliance with the Business Licence Bylaw.
[12] The issues in this case do not turn on this point, except to this extent: the petitioner maintains that it was seeking the amendment because it had moved its sales office from 425 to 421 Shuswap, thereby moving its auto sales business from one property to the other. But there is no doubt that it intended to and did maintain the storage and display of vehicles for sale on 425 Shuswap. Given that it was in the business of selling automobiles, it seems clear that 425 Shuswap continued to be used for a business purpose, as did 421 Shuswap. It follows that the petitioner was required to have a licence for each property and could not simply transfer its business licence from 425 Shuswap to 421 Shuswap when both properties were used for business purposes.
[13] In the circumstances, Mr. O’Flaherty recommended that Council grant the application on conditions, including no more storage of derelict vehicles on the property at 425 Shuswap Avenue, no storage of vehicles in the front yard of 409 Shuswap Avenue, and establishment of a fully landscaped strip not less than 2 meters in width along the front parcel line.
[14] The copy of the application attached to Mr. O’Flaherty’s report and the Council agenda was photocopied in a manner such that the handwritten note at the very bottom of the page was cut off. This note is where Ms. Bassett deposes she indicated the application was for an amendment, not a new license. She accused the Council of fraud for cutting the note off. Ironically, the photocopy she attached to her affidavit to show what she had written on the bottom also cut that part of the application off. Accordingly, it is not in evidence. As I say, nothing really turns on this—other than to suggest that Ms. Bassett was going rather far in accusing Council of fraud.
[15] In any event, Ms. Bassett says that she concluded that the application was being incorrectly presented, and withdrew it on July 10, 2018. Council nevertheless resolved that the report regarding the application be received as information.
[16] At the meeting, Council further resolved by resolution 2018/07/10_012:
THAT Administration conduct a full review of the site conditions of the licensed property for Chase Discount Auto Sales at 425 Shuswap Avenue. A report with such information is to be brought back to a future meeting of Council for their consideration.
[17] Pursuant to this direction, Mr. Waugh inspected the property on July 17, 2018. As a result of his observations, he issued the Order to Comply.
[18] The property is zoned “C-3 Service Commercial” under Chase’s Zoning Bylaw No. 683–2006. By section 6.51, permitted uses in zone C-3 include:
· automobile, boat, trailer and recreation vehicle showroom and sales
· retail sale of new automobile parts and accessories
· truck and trailer sales, rental and repair establishments
· vehicle storage yards
[19] By section 6.53.3 concerning outdoor storage and display areas:
a. Outdoor storage and display areas shall be permitted in the C-3 zone in accordance with the following regulations:
b. Outdoor storage shall not be permitted in required front yards.
c. Any part of a parcel used or intended to be used as an outdoor storage area shall be enclosed by screening consisting of a solid 2.5 metre high fence or wall.
d. Outdoor display of items for sale or rental shall be permitted within the required front yard.
e.
A front yard used for display of items for sale or rental shall be
separated from an adjoining highway by a fully landscaped strip not less than 2
metres in width.
…
h. None of the permitted uses in this zone are to be interpreted to include Automobile Wrecking Yard
[Automobile Wrecking Yard is defined to mean “an area outside of an enclosed building where motor vehicles are disassembled, dismantled or junked or where vehicles not in operable condition or used parts of motor vehicles are stored or sold”].
[20] It is an offence to violate any of the bylaw’s provisions, or to fail to comply with an order, direction or notice given under this bylaw.
[21] The petitioner maintains that the effect of the Order to Comply is to prohibit it from using its property in a manner expressly permitted by this zoning bylaw because of the inclusion of “unlicensed, unused or stripped automobiles” in the definition of “refuse” in the PM Bylaw. In this way, argues the petitioner, the PM Bylaw is effectively a zoning bylaw, and is therefore invalid. I now turn to the PM Bylaw.
[22] The PM Bylaw is designed to prevent property from becoming “unsightly”. Relevant definitions in section 3 include:
REFUSE means and includes, but is not limited to, food wastes, market wastes, paper, cardboard, plastics, yard trimmings and brush, stumps, metal cans, glass containers, bulky wastes such as furniture, appliances, mattresses, tires, construction and demolition waste, unlicensed, unused or stripped automobiles, trucks, trailers, boats, vessels, machinery, tools, equipment, mechanical or metal parts.
RUBBISH means refuse.
UNSIGHTLY means an untidy or otherwise non-aesthetic accumulation of brush, trees, noxious weeds and other unsightly growth, filth, discarded materials, junk, refuse or clutter and includes the storage of any type of vehicle(s) in contravention of this Bylaw or Zoning Bylaw No. 683–2006.
[23] The PM Bylaw goes on to provide:
4. Application
(1) All real property within the Village of Chase must be maintained by the property owner or their designated so as to prevent the property from becoming unsightly.
5. Control of Refuse
(1) No person may
(a) cause or permit rubbish or noxious, offensive or unwholesome matter to collect or accumulate on lands or around buildings owned or occupied by them;
…
6. Unsightly Property
(1) No person may:
(a) allow property to become or remain unsightly by the accumulation of filth, discarded materials, rubbish or the storage of anything in a manner that is not permitted by Zoning Bylaw No. 683– 2006 and all amendments thereto;
…
7. Unsightly Growth
(1) Every owner or occupier of real property must clear the property of unsightly brush, trees, noxious weeds and other unsightly growth and at no time allow the height of grass to exceed 30 cm except on lands designated by the Agricultural Land Commission as Agricultural Land Reserve.
8. Vehicle Storage
(1) No person may:
(a) cause or permit motor vehicles to be placed as outdoor storage on real property unless done in accordance with Zoning Bylaw No. 683– 2006 and all amendments thereto.
…
9. Enforcement
(1) A Peace Officer, Bylaw Enforcement Officer or designate and any other person duly authorized by the Municipality may enter onto any property at any reasonable time to ascertain whether the provisions of this Bylaw are being observed and may take whatever action deemed [sic] necessary in accordance with section 10.
10. Offences and Penalties
(1) Any person who contravenes any provision of this Bylaw, or who suffers or permits any act or thing to be done in contravention of any provision of this Bylaw, or who neglects to do or refrains from doing anything required to be done by any provision of this Bylaw, commits an offence against this Bylaw and is subject to:
(a) a fine in accordance with Village of Chase Municipal Ticket Information Bylaw if an information respecting the infraction is laid by means of a ticket; or
(b) upon summary conviction, a fine not exceeding $2,000.00 and the costs of prosecution; or
(c) upon expiration of two weeks written notice to remove accumulations of filth, discarded materials, rubbish, graffiti, brush, vehicles or any unsightly matter, the Village may by its employees or other persons, at reasonable times and in a reasonable manner, enter on the property and effect the removal at the expense of the property owner.
Where the property owner at whose expense removal is carried out under…this section does not pay the costs of the removal on or before December 31st in the year that the removal was done, the costs shall be added to and form part of the taxes payable on the property as taxes in arrears.
[24] The petitioner argues that the Community Charter prohibits the Village from requiring it to take remedial action under section 10(1)(c), or permitting the village to do so at the property owner’s expense, except in specified circumstances that do not apply here. Nevertheless, asserts the petitioner, the Mr. Waugh purported to impose this requirement on the petitioner in his Order to Comply, which I review next. The relevant provisions of the Community Charter are reviewed below.
[25] The Order to Comply was delivered in the form of a letter to the petitioner. In the letter, Mr. Waugh observed that the Village Administration had been directed by Council to investigate the property for compliance with village bylaws. He indicated that there were several infractions, which would be reported back to Council. He then quoted the definition of “refuse”, emphasizing the words “…unlicensed, unused or stripped automobiles, trucks…”, and the definition of “unsightly”, emphasizing the words: “…discarded materials, junk, refuse or clutter…”.
[26] Mr. Waugh then quoted section 6(1)(a) of the PM Bylaw, emphasizing the words “…the storage of anything in a manner that is not permitted by Zoning Bylaw No. 683–2006…”, and section 7(1), relating to unsightly growth.
[27] Mr. Waugh went on to describe the potential penalties, and then said this:
This is your Notice that the subject property must comply with Village bylaws by August 1, 2018. Failure to comply by this date will result in escalated bylaw enforcement measures. On or after August 1, 2018, the Village may by its staff or agents, enter upon the property and perform or complete such work, at the expense of the owner of such property as per Section 10 of the bylaw.
The total cost shall, if not paid by the 31st day of December in the year in which they were incurred, be added to and form part of the taxes payable in respect of that property as taxes in arrears.
[Emphasis original.]
[28] It is not contested that Mr. Waugh was authorized to inspect the property and provide a report back to Council. But did he have authority to issue an Order to Comply that, among other things, required the petitioners to take remedial action?
[29] This turns on the provisions of the Community Charter concerning Council’s authority to impose remedial action requirements.
[30] The petitioner argues that Council’s authority to impose a remedial action requirement is limited to specific situations by sections 72 through 78 of Division 12 of Part 3 of the Community Charter. Moreover, the petitioner asserts, Council is prohibited from delegating its powers to impose remedial actions by section 154(2) of the Community Charter.
[31] The respondents say that section 17 of the Community Charter is a complete answer to that argument, and provides the necessary authority independent of Division 12.
[32] The petitioner counters that section 17 is not independent of the provisions of sections 72 through 78, and must be interpreted as limited by those provisions.
[33] I turn to review the sections in question. I include the subject headings. Pursuant to section 11 of the Interpretation Act, RSBC 1996, c 238, these headings do not form part of the Community Charter, but they are “a valid indicator of legislative intent and may be taken into account on interpretation”: Jacobs v Laumaillet, 2010 BCSC 1229 at paras 31–32; Arts Umbrella v British Columbia (Assessor of Area 9 – Vancouver), 2007 BCCA 45 at para 3. In this case, I find them very helpful in understanding the scheme of the Community Charter.
[34] Part 2 of the Community Charter deals with “Municipal Purposes and Powers” Division I of that Part deals with “Purposes and Fundamental Powers”, and provides in section 8:
Fundamental powers
8 (1) A municipality has the capacity, rights, powers and privileges of a natural person of full capacity.
(2) A municipality may provide any service that the council considers necessary or desirable, and may do this directly or through another public authority or another person or organization.
(3) A council may, by bylaw, regulate, prohibit and impose requirements in relation to the following:
(a) municipal services;
(b) public places;
(c) trees;
(d) firecrackers, fireworks and explosives;
(e) bows and arrows, knives and other weapons not referred to in subsection (5);
(f) cemeteries, crematoriums, columbariums and mausoleums and the interment or other disposition of the dead;
(g) the health, safety or protection of persons or property in relation to matters referred to in section 63 [protection of persons and property];
(h) the protection and enhancement of the well-being of its community in relation to the matters referred to in section 64 [nuisances, disturbances and other objectionable situations];
(i) public health;
(j) protection of the natural environment;
(k) animals;
(l) buildings and other structures;
(m) the removal of soil and the deposit of soil or other material.
…
(7) The powers under subsections (3) to (6) to regulate, prohibit and impose requirements, as applicable, in relation to a matter:
(a) are separate powers that may be exercised independently of one another,
(b) include the power to regulate, prohibit and impose requirements, as applicable, respecting persons, property, things and activities in relation to the matter, and
(c) may not be used to do anything that a council is specifically authorized to do under Part 14 [Planning and Land Use Management] or Part 15 [Heritage Conservation] of the Local Government Act.
(8) As examples, the powers to regulate, prohibit and impose requirements under this section include the following powers:
(a) to provide that persons may engage in a regulated activity only in accordance with the rules established by bylaw;
(b) to prohibit persons from doing things with their property;
(c) to require persons to do things with their property, to do things at their expense and to provide security for fulfilling a requirement.
[Emphasis added.]
[35] Division 3 of Part 2 sets out “Ancillary Powers”. These include the authority to enter on or into property, which may be exercised by officers or employees of the municipality under section 16(2), and which power is described in subsection 6 as follows:
16 (6) Without limiting the matters to which this section applies, a municipality may enter on property for any of the following purposes:
(a) to inspect and determine whether all regulations, prohibitions and requirements are being met in relation to any matter for which the council, a municipal officer or employee or a person authorized by the council has exercised authority under this or another Act to regulate, prohibit and impose requirements;
(b) to take action authorized under section 17(1) [municipal action at defaulter's expense];
(c) in relation to section 18 [authority to discontinue providing a service], to disconnect or remove the system or works of the service;
(d) to assess or inspect in relation to the exercise of authority under section 8(3)(c) [spheres of authority — trees].
[Emphasis added.]
[36] In the same division is section 17, the scope of which is the central issue:
Municipal action at defaulter's expense
17 (1) The authority of a council under this or another Act to require that something be done includes the authority to direct that, if a person subject to the requirement fails to take the required action, the municipality may
(a) fulfill the requirement at the expense of the person, and
(b) recover the costs incurred from that person as a debt.
(2) Division 14 [Recovery of Special Fees] of Part 7 [Municipal Revenue] applies to an amount recoverable under subsection (1) that is incurred for work done or services provided in relation to land or improvements.
[Emphasis added.]
[37] On its face, this section clearly authorizes Council to order remedial action (to “require that something be done”), and to fulfil that requirement itself at the owner’s expense. That is what Mr. Waugh purported to do. But is the authority to require that something be done “under this or another Act” subject to the provisions concerning remedial action requirements set out in Division 12 of Part 3?
[38] The “Remedial Action Requirements” upon which the petitioner relies comprise Division 12 of Part 3 – “Additional Powers and Limits on Powers”. The division begins with section 72:
Council may impose remedial action requirements
72 (1) A council may impose remedial action requirements in relation to
(a) matters or things referred to in section 73 [hazardous conditions],
(b) matters or things referred to in section 74 [declared nuisances], or
(c) circumstances referred to in section 75 [harm to drainage or dike]
…
[39] By section 77, notice of a remedial action requirement must be given by personal service or registered mail to the person subject to the requirement as well as to the owner of the land. By subsection (3):
(3) A notice under this section must advise
(a) that the person subject to the requirement, or the owner of the land where the required action is to be carried out, may request a reconsideration by council in accordance with section 78 [person affected may request reconsideration], and
(b) that, if the action required by the remedial action requirement is not completed by the date specified for compliance, the municipality may take action in accordance with section 17 [municipal action at defaulter's expense] at the expense of the person subject to the requirement.
[Emphasis added.]
[40] The petitioner observes, and it is not contested, that none of the “matters or things” referenced in section 72(1) (hazardous conditions, declared nuisances or harm to drainage or dike) apply to the property. Moreover, the petitioner points out, it was not provided with notice advising that it could request a reconsideration by council. Accordingly, the petitioner argues, council had no authority to impose remedial action requirements under Division 12 of Part 3, which, the petitioner submits, is a complete code for such authority.
[41] I do not see it that way.
[42] As I read the Community Charter, there is a fundamental difference between the “Fundamental Powers” and “Ancillary Powers” discussed under Divisions 1 and 3 of Part 2 on the one hand, and the “Additional Powers and Limits on Powers” discussed under Division 12 of Part 3. The former concern the ability of a municipality to regulate and impose requirements by bylaw in relation to a wide list of matters. The latter concern the ability of a municipality to impose requirements of a specific nature without the necessity of passing a bylaw, in strictly limited circumstances.
[43] Thus section 8 of Part 2 gives council the “fundamental power” to regulate, prohibit and impose requirements by bylaw. That power is exercisable in relation to an extensive list of matters including those described in section 8(3)(h), which by reference to section 64, would extend to the matters covered by the PM Bylaw.
[44] Section 17, then, provides an additional or “ancillary” power when council is authorized under the Community Charter or another Act to require that something be done. That ancillary power is the authority to direct that if a person subject to the requirement fails to take the required action, the municipality may fulfil the requirement at the person’s expense, and recover the costs incurred as a debt. That is the power exercised in this case, and it is ancillary to the “fundamental power” in section 8 to pass bylaws regulating, prohibiting and imposing requirements as described, and to any other powers granted under the Community Charter or other legislation.
[45] Reading the scheme of the legislation as a whole, I conclude that there are two circumstances within the Community Charter where that ancillary power arises, that is, where council is authorized “to require that something be done”.
[46] The first is the authority granted by section 8: the “fundamental power” to regulate, prohibit and impose requirements by bylaw in relation to the matters therein set out.
[47] The second is the authority granted in Division 12 of Part 3: the “additional power” to impose remedial action requirements without the necessity of passing a bylaw permitting it to do so. This power is limited to three particular situations (“limits on powers”). In these three situations, specific notice is required as no bylaw exists. The reference in section 77(3) to section 17 is simply a means of setting out the action the municipality may take, and is not intended to limit how the municipality acts under section 17.
[48] I conclude that Division 12 of Part 3 is not a complete code for imposing remedial action requirements. It is complete only with respect to the three specific circumstances set out in sections 73, 74 and 75.
[49] In this case, section 17(1) authorized Council to impose remedial action requirements by reason of its authority under the Community Charter, section 8, to require that something be done by bylaw. That authority extended to the protection and enhancement of the well-being of the community in relation to the matters referred to in section 64 (nuisances, disturbances and other objectionable situations). That is what occurred here. Thus the powers specified in sections 73, 74 and 75 do not limit the authority provided by section 8, but rather add to it. See, for instance, Kitimat (District) v Alcan Inc, 2005 BCSC 44 at paras 102–110, aff’d 2006 BCCA 75.
[50] It follows that Council had the authority to issue the Order to Comply.
[51] But what about Mr. Waugh? His actions were specifically authorized by section 16(2) in combination with section 16(6)(b). These authorize an officer or employee of the municipality to enter onto property and to take the action authorized under section 17(1).
[52] Consequently, the first issue is resolved against the petitioner. Mr. Waugh had the authority under the Community Charter to issue the Order to Comply.
[53] As we have seen, Council’s authority to enact PM Bylaw is found under section 8(3)(h) of the Community Charter, which refers to section 64. That section provides:
Nuisances, disturbances and other objectionable situations
64 The authority of a council under section 8(3)(h) [spheres of authority — nuisances disturbances and other objectionable situations] may be exercised in relation to the following:
(a) nuisances;
(b) noise, vibration, odour, dust, illumination or any other matter that is liable to disturb the quiet, peace, rest, enjoyment, comfort or convenience of individuals or the public;
(c) the emission of smoke, dust, gas, sparks, ash, soot, cinders, fumes or other effluvia that is liable to foul or contaminate the atmosphere;
(d) refuse, garbage or other material that is noxious, offensive or unwholesome;
(e) the use of waste disposal and recycling services;
(f) the accumulation of water on property;
(g) unsanitary conditions on property;
(h) drains, cesspools, septic tanks and outhouses;
(i) trees, weeds or other growths that council considers should be removed, cut down or trimmed;
(j) the carrying on of a noxious or offensive business activity;
(k) graffiti and unsightly conditions on property;
(l) indecency and profane, blasphemous or grossly insulting language.
[Emphasis added.]
[54] It follows that Council was authorized to enact a bylaw regulating property maintenance in relation to those matters. The PM Bylaw ostensibly does that. But does it go too far?
[55] By section 8(7)(c), the fundamental power to regulate by bylaw in relation to the matters set out under section 8(3)(h):
(c) may not be used to do anything that a council is specifically authorized to do under Part 14 [Planning and Land Use Management] or Part 15 [Heritage Conservation] of the Local Government Act.
[56] Part 14 of the Local Government Act, RSBC 2015, c 1, includes the power to adopt zoning bylaws that regulate the use of land within a zone, and prohibit use or uses in a zone. Consequently, the petitioner submits, the municipality may not use its authority under section 8(3)(h) to enact what is in effect a zoning bylaw by reason of its purporting to regulate or prohibit uses of land within a zone.
[57] The petitioner argues that the PM Bylaw amounts to a zoning bylaw because it has the effect of prohibiting vehicles that are unlicensed or unused from being on any property. That is a prohibition of use, the petitioner asserts, and is directly contrary to what is permitted under the Zoning Bylaw. Virtually by definition, automobiles offered for sale, a permitted use, will be unlicensed and unused, a prohibited use. This follows, the petitioner submits, from the PM Bylaw’s definition of “refuse” as including “unlicensed or unused automobiles or trucks”.
[58] As “unsightly” is a defined term that includes “refuse”, and “rubbish” is defined to include “refuse”, then this prohibition relating to unlicensed or unused vehicles invalidates sections 3, 4, 5 and 6 of the PM Bylaw.
[59] The problem, the petitioner says, is that zoning bylaws require a specific procedure before enactment, including notice of intention to hold a public hearing, the holding of a public hearing, and the dissemination to the public of the information it proposes to rely on in considering the bylaw: Local Government Act, sections 464–468. None of that occurred here.
[60] It follows, the petitioner contends, that Council did not have the statutory authority to enact the PM Bylaw.
[61] Once again, I am unable to agree.
[62] I turn first to the PM Bylaw’s definition of “refuse”. Does it in fact have the effect of prohibiting the property owner from having unlicensed and unused automobiles on the property?
[63] I do not read it that way. That a definition must be read in the context of the PM Bylaw as a whole, which itself must be considered in the legislative context under which it was enacted.
[64] As we have seen, subsection 8(3) of the Community Charter provides broad powers, including the ability to regulate, prohibit and impose requirements by bylaw. Subparagraph (h) extends that authority in relation to the matters set out in section 64, including unsightly conditions, and refuse.
[65] Subsection 8(8) then gives three examples of the power to regulate, prohibit and impose requirements:
8 (8) As examples, the powers to regulate, prohibit and impose requirements under this section include the following powers:
(a) to provide that persons may engage in a regulated activity only in accordance with the rules established by bylaw; [regulate]
(b) to prohibit persons from doing things with their property; [prohibit]
(c) to require persons to do things with their property, to do things at their expense and to provide security for fulfilling a requirement. [impose requirements]
[66] It follows that, prima facie, the PM Bylaw is intra vires its enabling legislation as it regulates, prohibits and imposes requirements relating to unsightly conditions, refuse, removal of growths, etc., all as authorized by section 8(3)(h) as informed by section 64.
[67] The petitioner, as I understand its argument, does not dispute that the Village of Chase could enact a bylaw regulating nuisances, disturbances and other objectionable situations. There is also no doubt that the Council had the authority to define words such as “refuse” and “unsightly”. The question becomes whether it is in substance a zoning bylaw as a result of the application of the definition of “refuse” to what the petitioner maintains is a permitted use under the Zoning Bylaw.
[68] As I read the definition of “refuse”, it does not mean that all “unlicensed, unused … automobiles” are refuse, any more than it means that all “trailers, boats, vessels, machinery, tools, equipment, mechanical or metal parts” are refuse, or that all “furniture” and “appliances” are refuse. The PM Bylaw is intended to regulate property for the purpose of “preventing unsightliness on real property”. Read contextually, these items become refuse when they are in such a condition as amount to waste. As suggested by section 6 of the PM Bylaw, such items will not constitute “refuse” to the extent they are stored in a manner permitted by the Zoning Bylaw. It will be recalled that the Zoning Bylaw does not permit outdoor storage or display that would include an Automobile Wrecking Yard, which would cover an area outside of an enclosed building where vehicles not in operable condition are stored.
[69] In the result, I do not interpret the definition of “refuse” as prohibiting an otherwise permitted use. It does not prohibit the petitioner from displaying automobiles for sale. Any attempt to apply it that way would surely fail. See, for instance, Chester District (Municipality) v Aloni, 1996 NSCA 83 at para 7, where the court endorsed an objective test for determining whether premises are unsightly within the meaning of a maintenance bylaw, being “what a reasonable person viewing the property would conclude, having regard for the nature of its use and occupancy and the standard of grooming that might reasonably be anticipated” [emphasis added].
[70] On a factual point, the petitioner asserts that the vehicles on its property to which Mr. Waugh objected were not derelict vehicles, or “refuse”, but rather were vehicles in operable condition that were unlicensed and for sale, to which state of affairs the petitioner’s president deposed in his affidavit. The president did not, however, adduce any photographs or other evidence about the vehicles.
[71] If his assertion is correct, one cannot help but be concerned for the safety of the good citizens of the Village of Chase. The photographs attached to the Order to Comply show badly damaged vehicles and loose wheels sitting among overgrown grass, weeds and shrubs in a manner that any reasonable person would describe as “unsightly”. One would expect that anybody attempting to operate such vehicles on the highway would be immediately apprehended.
[72] The petitioner objects to that evidence, because Mr. Waugh did not depose that he took the photographs or describe what they contained. The petitioner asserts that they therefore constitute hearsay and are inadmissible on this petition. But this is a petition for judicial review under the Judicial Review Procedure Act, and the photographs form part of the record before me. Accordingly, I find them to be admissible. That being said, the question is not whether there were derelict vehicles on the property (it certainly looks like there were), but whether the PM Bylaw amounts to a zoning bylaw because of how it defines “refuse”.
[73] As I have indicated, it is my view that it does not. Moreover, the PM Bylaw does not govern use within a zone. It applies to all properties across all zones and does not purport to establish different zones for different uses as a zoning bylaw would; see, for instance, Thompson-Nicola Regional District v 0751548 BC Ltd., 2014 BCSC 1867 at para 100, and Princeton (Town) v Hepner, 1989 47 MPLR 10 481 (BCSC) at paras 30–31.
[74] Accordingly, I conclude that the PM Bylaw is valid.
[75] The petition is dismissed, with costs.
“GRAUER, J.”