Legal Non-conforming Use Explained

By Brian Madigan LL.B.

This is an issue under the zoning by-laws. It is important to note that all zoning by-laws are forward looking. They speak to the future and not the past. They regulate future uses of a property not existing ones. They are prospective not retrospective in nature. They are not retroactive.

So, if you have a present use which is legal, then it may continue forever. But, that entitlement applies to that property and that property alone, no others. If a new zoning by-law is enacted, it will apply only to other properties which do not have the existing and now prohibited use.

Let’s say that the municipality does not want a parking lot in the area. It will first have to designate the area to which the new zoning will apply. Once the by-law is enacted, it will apply to every property in the area.

If any property had a parking lot in use at the time of passage of the by-law, then the owner will be able to demonstrate that this use is a “legal non-conforming” use. The activity predates the by-law. The use was a legal use at that time, and that same use has continued in an uninterrupted fashion since the by-law. It’s not enough simply to show the start date, there must also be evidence that this particular use has not been abandoned. It has been continuous.

This continuous and uninterrupted use is at times difficult to prove. Let’s take the example of a restaurant which is the only restaurant in an area that now excludes restaurants. What if the property closed down? What if the property were sold? How long can the property not be open to the public? What if it had a sign: “closed for renovations”? In all such cases, this is ultimately a matter for the Courts. For a vendor who wishes to ensure that such a use may continue, then legal advice should be sought in order to document the continuance of the use, particularly during lengthy periods of renovation and repair.

Property owners should not assume that the municipality will not seek to enforce its by-law. They have a very specific by-law BECAUSE they want to enforce it. There’s no free ride here. Document the continued use! The lack of documentation is the precise reason why the legal non-conforming status is lost in most cases.

The building structure may no longer comply with the area requirements or the minimum setbacks. Generally, these properties may be repaired so long as the new structure complies with the existing use, and the legal non-conformity is not extended.

You will often see a number of buildings with modest setbacks from the sidewalk, perhaps they abut the sidewalk or may be set back just a foot or two. You will often find a row of commercial stores constructed in the early part of the 20th century that follow this alignment. Then, every so often you will find one brand new store set back from the street line, on its own, by about 20 feet. Why is this? The reason is that the new setback requirement under the current by-law calls for 20 feet from the sidewalk. The prior building was probably demolished and then the owners submitted an application for a building permit. These buildings are typically 30 to 40 years old.

Since that time, builders have become a little smarter. They repair and renovate. They never demolish and reconstruct. No matter how bad the structure might be, it is always improved or shored up. It is never torn down and replaced. This allows the “new” building to be reconstructed over the old building and retain its right to abut the sidewalk.

This is a very valuable right and should not be lost through oversight. If you own a legal non-conforming property, be sure to document its start date, and its continuous use. Would you have the evidence available if the municipality claimed that the use was lost? It’s up to you to prove the legal non-conforming status. All the municipality needs to do is prove its current by-law. The onus to prove the right to non-compliance is upon the property owner. Paper the file!

Brian Madigan, LL.B., Broker

Comments 10

  1. Thank you for the explanation of legal non-conforming.
    Our situation, living in a trailer park and our lot is designated legal non-conforming. Which means we can live here year round, contrary to the by-law (circa 2010). So does that mean the by-laws prior to 2010 apply to us. IE we could build custom add ons then but now pre-fabs are required.

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      It’s good to hear that you have legal non-conforming status. You should still check with the municipality concerning any improvements. Those are always questionable as to whether or not they might be grandfathered.


      1. Mr. Madigan – we live in Russell township in Ontario. Our county’s updated Official Plan is now with the Province pending approval. In the updated plan, our area (occupied by approximately 14 other homeowners) was changed from Agricultural to Trade and Industry. The township has purchased the land directly behind our home which has been here since 1890. They intend to extend the Industrial Park right up to our Road, essentially engulfing us. Should we pursue legal non-conforming status? Are there any other legal avenues to pursue to protect our investment.

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  2. question Brian, I have a hedge that surrounds my corner lot that has been there since about 2000. I bought in 2006. the city is saying it doesn’t conform with the by-law passed in 2010. they say I can’t rely on section 34 (9) of the planning act because a Hedge is not a structure. what do you think?

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  3. This is very helpful information. Thank you.

    Brian, we own a farmhouse in 3 acres built in 1860. It’s legal non-conforming because the whole area became an Industrial Park (zoned GM) years ago. We have 3 acres. Would we be able to entirely renovate our house some day or do we have to wait until our house falls into disrepair and only make small updates?

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      Renovation should be fine. The zoning has changed to industrial in the area, but you can still have a residential property.

      The issue of course would be whether it is wise or unwise to continue as a residence.

      There may be better value switching over to some sort of a commercial purpose. Depending upon the specific location, there may be very few people who would want a residential property in a commercial/industrial neighbourhood.

      It would be wise to obtain a CMA, that is a Comparative Market Report.

  4. Great article – very helpful.

    My question is about a legal non-conforming dock that was granted status at approximately 60 feet in length in 2015. This dock grows every few years and is now 155 feet in length. Is this dock allowed to continue to grow in length under it’s LNC status?

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