Applications / Legal Non-Conforming Use

Legal Non-Conforming Use Opinion

Sometimes called grandfathered rights. A written opinion on whether an existing use or structure is legally protected under Section 34(9) of the Planning Act, and exactly how far that protection goes.

What a legal non-conforming use is

When a zoning by-law changes, uses that existed lawfully before the change do not automatically become illegal. Section 34(9) of the Planning Act protects a use that was lawfully in existence on the day the by-law was passed and has continued since.

The protection is narrower than most owners expect. It protects the use as it existed, not a larger or different version of it. It can be lost through abandonment or discontinuance. And it does not extend automatically to expansion, which usually requires permission under Section 45(2).

Whether the right exists at all turns on evidence: what was there, when, and whether it has run continuously since. That is the work.

When you need the opinion in writing

A purchaser's lender or lawyer asks whether the use is legal and the zoning says otherwise. A building department refuses a permit because the use no longer conforms. An enforcement officer issues a notice. A municipality disputes that the right survived a period of vacancy.

In each case an assertion is not enough. What settles it is a documented opinion setting out the by-law history, the evidence of lawful establishment, and the evidence of continuity.

What you get

A written opinion identifying the relevant by-law and the date the use became non-conforming, the evidence relied on, a conclusion on whether the right exists, and a clear statement of its scope, meaning what you can and cannot do with it.

Where the right does not survive, we say so and set out the route to legalise the use instead, usually a zoning amendment or a variance under Section 45(2).

FAQ

Common questions

There is no such term in the Planning Act. What people mean is a legal non-conforming use, protected under Section 34(9) where the use was lawfully in existence when the by-law was passed and has continued since. The protection covers the use as it was, not an expanded version of it.

Yes. Discontinuance or abandonment can end it, and municipalities frequently argue that a period of vacancy did exactly that. Continuity of use is usually the contested question, which is why evidence of the years in between matters as much as evidence of the original use.

Not as of right. Enlargement or extension generally requires permission from the Committee of Adjustment under Section 45(2) of the Planning Act, which is a separate application with its own test.

That is usually why it is commissioned. The opinion sets out the by-law history and the evidence, signed by a Registered Professional Planner, which is what a lender or a purchaser's solicitor needs in order to close.