



COURT OF APPEAL FOR ONTARIO

CITATION: Hutchinson v. Norfolk (County), 2018 ONCA 592

DATE: 20180628

DOCKET: C64986

Simmons, Huscroft and Miller JJ.A.

BETWEEN

Margaret Hutchinson

Applicant (Appellant)

and

The Corporation of Norfolk County and Debono
    Greenhouses Ltd.

Respondents (Respondents)

Michael Bordin, for the appellant

Mark Abradjian, for the respondent Corporation of
    Norfolk County

Dennis M. Touesnard, for the respondent Debono
    Greenhouses Ltd

Heard: June 19, 2018

On appeal from the order of Justice Donald J. Gordon of
    the Superior Court of Justice, dated January 10, 2018.

REASONS FOR DECISION

[1]

The appellant homeowner resides approximately
    450 metres from the respondent greenhouse owners business, which includes 37
    greenhouses. Seventeen of those greenhouses are heated by wood that the
    respondent has delivered to the greenhouse property. The greenhouse owner
    stores the wood on site and grinds it into woodchips.

[2]

The appellant sought a declaration that storing
    and grinding wood on the property contravenes the Corporation of Norfolk
    Countys Zoning Bylaw I-Z-2014, which in relevant part provides as follows:

1.4.3 (b) where the main use is
    wholly situated in one zone, an accessory structure or use may be permitted in
    any other Zone than the Provincially Significant Wetland Zone (PSW) provided it
    meets all provisions of section 3.0 except non-residential accessory structures
    shall not be permitted in residential zones.

2.3  ACCESSORY USE shall mean a use
    naturally and normally incident to, subordinate to and exclusively devoted to a
    principal use and located on the same lot herewith.

[3]

The appellant had several complaints about the
    respondent greenhouse owners use of wood, including noise, environmental harm,
    fire hazard and property devaluation. The application judge found that the
    appellants evidence was subjective and speculative, but in any event the
    appellants real complaint was non-compliance with the bylaw, which did not
    depend on this evidence.

[4]

Storing and grinding wood is not a permitted use
    under the bylaw, so it was incumbent upon the respondent to establish that it
    was an accessory use of the greenhouse operation within the meaning of the
    bylaw.

[5]

The application judge interpreted the bylaw as
    requiring that an accessory use be:

i)

naturally and normally incidental to the
    principal use, namely not unnatural or abnormal;

ii)

subordinate to the principal use;

iii)

exclusively devoted to the principal use; and

iv)

located on the same lot as the principal use.

[6]

Applying this approach, the application judge
    found that storing and grinding of wood is naturally and normally incidental to
    the principal use, and is clearly subordinate and devoted to the permitted use of
    the greenhouse property. He issued a declaration that storing and grinding of
    wood is an accessory use to the property.

[7]

The appellant submits that the application judge
    failed to consider the plain and ordinary meaning of the terms naturally and
    normally incidental. The appellant says that it means the same as customarily
    incidental  a requirement found in other bylaws  and that both phrases indicate
    restrictive interpretations of accessory use. The appellant contends that
    evidence of customary use is required to establish accessory use; that the
    application judge erred in concluding that there was sufficient evidence; and
    that he relied on hearsay and irrelevant considerations in reaching his
    decision in any event.

[8]

We disagree.

[9]

There is no need to determine whether or the
    extent to which the language of this bylaw differs from language in other
    bylaws. The words of
this
bylaw are to be interpreted and applied in the
    context of the bylaw as a whole.

[10]

In determining the meaning of naturally and
    normally incidental, it is of no assistance to frame the question in the
    negative, asking whether a proposed accessory use is not unnatural or
    abnormal, as stated in
Noddle v. City of Toronto et al

(1982), 37 O.R. (2d) 421 (H.C.) and
Doublerink Arenas
    Ltd. v. North York (City) Chief Building Official
, [1996]
    O.J. No. 2493 (Gen. Div.). That a use is not abnormal does not necessarily mean
    that it is normal.

[11]

Accessory use is a concept common to zoning
    bylaws. It provides a measure of flexibility in using property. It is not
    necessary to give the term a restrictive interpretation, as the appellant
    submits, but nor is it appropriate to give it an overly expansive
    interpretation. In every case, the question is simply whether a particular use meets
    the definition considered in the context of the bylaw as a whole.

[12]

It is not contested either that the storing and
    grinding of the wood is for the purpose of heating some of the greenhouses, or that
    this method of heating is legally permissible. The sole issue concerns storage
    and grinding of the wood on-site.

[13]

In our view, the application judge made no error
    in concluding that the storage and grinding of wood is an accessory use of the
    land. If heating a greenhouse by burning wood chips is naturally and normally
    incidental to operating a greenhouse, as is conceded, it is a very short step
    to the further conclusion that processing the wood for burning, and storing the
    wood prior to that, are similarly natural and normal incidents of heating a
    greenhouse. In this regard, we note that the bylaw definition of accessory
    building or structure refers to a storage or shelter of materials as an
    example of an accessory use. The woods chips are not used for any purpose other
    than heating the greenhouses, and neither is the wood stored for any purpose
    other than to be processed into fuel to heat the greenhouses.

[14]

This result obtains regardless of whether there
    is evidence of any other greenhouses storing and grinding wood in this manner.
    But we note, in any event, that there was at least some evidence that another
    greenhouse in Ontario grinds its fuel on site, in addition to evidence (from a
    website) suggesting that another greenhouse may do so. The admissibility of
    this evidence may have been debatable, but no objection to its admissibility
    was made before the application judge.

[15]

There is no basis to interfere with the
    application judges findings that the storage and grinding are 1) subordinate
    to the principal use of the property for greenhouses; 2) devoted exclusively to
    that use; and 3) located on the same lot as the greenhouses.

[16]

Accordingly, the appeal must be dismissed.

[17]

We note that neither the respondent the
    Corporation of Norfolk County nor Debono Greenhouses Ltd. sought relief in
    response to the appellants application. Despite this, rather than simply
    dismissing the appellants application, as the respondents requested, the
    application judge made an order declaring that Debonos use is an accessory use
    to the commercial greenhouses on its property.

[18]

No issue was raised on appeal by any of the
    parties concerning the propriety of this order. Nothing in these reasons is to
    be taken as sanctioning the application judges decision to make a declaration
    in the circumstances.

[19]

The appeal is dismissed.

[20]

The respondent Debono Greenhouses Ltd. is entitled to costs in the
    agreed amount of $6,000, inclusive of taxes and disbursements and there is no
    order as to the costs of the respondent the Corporation of Norfolk County on
    the appeal or the underlying application.

Janet
    Simmons J.A.

Grant
    Huscroft J.A.

B.W. Miller
    J.A.


