Can I Expand My Grandfathered Use Or Grandfathered Building? – Real Estate and Construction

In considering this question for a property in BC, it would be
easy to read the relevant provisions (in Division 14) of
the Local Government Act and
conclude that what is prescribed by those provisions would be
allowed, but not more. However, on careful consideration you should
not stop there. The common law may apply to expand your rights
(although this does not jump out from reading Division 14).

A trilogy of cases has come out of Ontario that speaks to how
the common law creates grandfathering rights that are not expressly
found under the Ontario Planning Act. The three decisions
of Re TDL, Brougham v. South Frontenac ,
and Fraser v. Rideau Lakes affirm
and provide rights to property owners that allow them to expand or
evolve the use of their grandfathered property.

Although the provisions of the Ontario Planning
Act are different than the Local Government
Act, it is not fully clear that the rights stated in the
trilogy of decisions would not apply in BC. There are arguments to
be made that the common law rights are not ousted by the
legislation. Therefore, property owners may have greater
grandfathering rights than initially appears and may be able to
evolve the use of their property.

If this situation arises for you, you can expect that the local
government will point to Division 14 and say “that’s
it”. But if there is money at stake for your proposed use, or
you really want to demolish and rebuild the family cottage,
consider looking further.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.