The Corporation of the Township of Langley Petitioner v. Vancouver Ready Mix Inc. and, 2015 BCSC 1048

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Langley (Township) v. Vancouver Ready Mix Inc., 2015 BCSC 1048 Date: 20150618 Docket: S142428 Registry: Vancouver Between: The Corporation of the Township of Langley Petitioner And Vancouver Ready Mix Inc. and Fraser Way Pre-Kast Ltd. Respondents - and - Docket: S1410018 Registry: Vancouver Between: Fraser Way Pre-Kast Ltd. and Vancouver Ready Mix Inc.

Petitioner And The Corporation of the Township of Langley and Beverly Weller, the Licence Inspector for the Township of Langley Respondents Before: The Honourable Madam Justice Maisonville Reasons for Judgment Counsel for The Corporation of Township of Langley and Beverley Weller: J.H. Goulden and E.L. Lambert Counsel for Fraser Way Pre-Kast Ltd. and Vancouver Ready Mix Inc.: P. Kenward P. Hardwick Place and Date of Hearing: Vancouver, B.C. January 26-28, 2015 Written Submissions: May 26 and June 2, 2015 Place and Date of Judgment: Vancouver, B.C.

June 18, 2015 [ 1 ] In this petition, the Corporation of the Township of Langley (the “Township”) seeks an injunction enjoining Fraser Way Pre- Kast Ltd. (“FWP”) and Vancouver Ready Mix Inc. (“VRM”) from the operation of a ready-mix concrete plant at 22765 Fraser Highway (the “Property”) contrary to s. 701.1 of the Township of Langley, Bylaw No. 2500, Zoning Bylaw (1987) [ Zoning Bylaw ], and from carrying on business without a business licence contrary to s. 1.5(1) of the Township of Langley, Bylaw No. 4050, Langley Business Licence Bylaw (2001) [ Business Bylaw ]. [ 2 ] FWP and VRM oppose the Township’s petition, and have commenced a related petition against the Township and Ms.

Beverly Weller, the Township’s Licence Inspector. In this related petition, FWP and VRM seek additional relief in the form of a declaration that FWP and VRM are entitled to business licences for past years and an order that they be issued those licences.

I. Background facts [ 3 ] FWP was incorporated on November 10, 1972. It purchased the Property, which is located at the corner of Fraser Highway and 228 Street in Langley, British Columbia, on December 11, 1972, and commenced business shortly thereafter. It remains the sole registered owner of the Property.

The Property is located in the Service Industrial M-1B zone and permitted uses are enumerated in the Zoning Bylaw , s. 701.1. [ 4 ] It is undisputed that FWP has been involved in the sale of pre-cast concrete products as a manufacturer, wholesaler and retailer since the beginning of its operations on the Property. Concrete is a building material that is created by combining various ingredients, including cement, water, sand and gravel, in a concrete batch plant, which includes a stationary mixing drum.

In pre-cast concrete manufacture, wet concrete is mixed, then transported to another on-site location where it is poured into a mould and allowed to dry, and then the dried product is transported to buyers off-site. FWP manufactures a variety of pre-cast products, including municipal wastewater products, traffic control products, utility products, and burial crypts.

Its pre-cast concrete customers include property owners, developers, builders and the Township. [ 5 ] FWP submits that it has also engaged in the sale of ready-mix concrete to the same groups of customers since 1973, when it installed the on-site concrete batch plant at the Property. In ready-mix concrete manufacture, wet concrete is mixed through the same process as in the pre-cast case, but is then transported, while still wet, to buyers off-site.

While it is possible to mix ready-mix concrete in the drum of a ready-mix truck, FWP submits that it uses the same on-site concrete batch plant to mix the wet concrete for both its pre- cast and ready-mix uses. [ 6 ] Mr. Fraser Atkinson is the President and sole director of FWP and VRM. Company searches dated July 3, 2013, also list Mr. Jason Snyder as a co-director, but he has since resigned due to illness. [ 7 ] Mr. Atkinson deposes that VRM was incorporated on May 7, 2009, with the intent that it would carry out the ready-mix concrete element of FWP’s business.

The two companies have the same officer, director and shareholders. Together, FWP and VRM employ 39 people. All employees participate in the pre-cast concrete manufacture aspect of the operations and the same concrete batch plant is used for both the pre-cast and ready-mix forms of manufacture. [ 8 ] The Township submits that the Township’s Development Planning Department only became aware of the use of the Property for ready-mix concrete manufacture in June 2011, when Ms. Dani Miller, the then Erosion and Sediment Control Coordinator for the Township, learned of the use through industry contacts. Ms.

Miller has a work history relevant to concrete manufacture; however, she was not certified as an expert in this proceeding. [ 9 ] Ms. Miller deposes that upon learning of the read-mix concrete use, she reviewed aerial photographs of the Property dating from 2001-2010 on the Township’s web-based mapping system. Based on her observations of the relative area of yard storage taken up by stored pre-cast concrete products as compared with stored cement and aggregates, she concluded that between 2008-2010 there had been a shift from pre-cast to ready-mix use on the Property.

After also becoming aware that the Township was considering an amendment to the Zoning Bylaw that would permit senior and other residential housing on the properties located east of the Property, she brought her conclusions to the attention of staff in the Township’s Development Planning Department. [ 10 ] Mr. Atkinson deposes that the Township has always been aware of the ready-mix concrete component of his businesses. He provided over 150 pages of financial records and invoices showing ready-mix sales to the Township dating from June 30, 2004, until October 7, 2013.

While the earliest of these financial records do not specify the particular product sold or refer to it only as “concrete” and while some few of the invoices appear to relate to the sale of washed sand or other products, a long-time neighbour, Mr. James Ralph, deposed that he has observed multiple sales a month of ready-mix concrete to the Township over the past 40 years. All invoices dated after August 20, 2009 (approximately 50) were issued by VRM. [ 11 ] The Township does not dispute that these sales occurred. Mr.

Roeland Zwaag, the Township’s Director of Public Works, deposed that the Township’s Parks and Engineering Departments had purchased both pre-cast and ready-mix products from FWP and VRM. He submitted financial records relating to these transactions dating back to 1990. He deposes that these departments did so while unaware that the manufacture of ready-mix concrete was not an approved use of the Property, and that they sourced out a different supplier shortly after being advised of this on September 24, 2013.

The last sale to the Township was in October 2013. [ 12 ] VRM applied for a business licence for a “ready mix concrete” business on or about February 8, 2012 (the “2012 Licence Application”). FWP had been granted a series of yearly business licences up until that time; however, this was VRM’s first application. The Licence Application was not approved by the Township on the basis that the ready-mix use was a violation of the Zoning Bylaw . The Township has not granted any subsequent business licences to either VRM or FWP. The Township filed its petition on March 28, 2014. II.

Issues [ 13 ] The issues to be determined in this matter are: (1) whether FWP and VRM are in fact in breach of s. 701.1 of the Zoning Bylaw ; (2) whether FWP and VRM’s operation of a ready-mix concrete business on the Property is permitted as a lawful, non-conforming use pursuant to s. 911 of the Local Government Act , R.S.B.C. 1996, c. 323, and (3) whether FWP and VRM’s operation of a ready-mix concrete business on the Property, without a business licence, breaches s. 1.5(1) of the Business Bylaw . III. Positions of the Parties

[ 14 ] The Township takes the position that: (

a) the operation of a ready-mix concrete business is in breach of s. 701.1 of the Zoning Bylaw ; (

b) FWP and VRM’s operation of a ready-mix concrete business on the Property is not permitted as a lawful non-conforming use; and (

c) FWP and VRM’s operation of a ready-mix concrete business on the Property without a business licence is in violation of s. 1.5(1) Business Licence Bylaw . [ 15 ] The Township accordingly seeks an injunction pursuant to s. 274 of the Community Charter , S.B.C. 2003, c. 26, to restrain FWP and VRM’s contraventions of its bylaws. [ 16 ] The position of FWP and VRM is that: (

a) the operation of a ready-mix concrete business is not in breach of s. 701.1 of the Zoning Bylaw ; (

b) in the alternative, that this use amounts to a lawful non-conforming use since FWP has been in the business of ready-mix concrete manufacture since 1973; and (

c) FWP and VRM’s business licence applications were unreasonably refused and should be subject to the same application process that has been imposed in the past. IV. Other Significant Facts [ 17 ] There is disagreement between the parties as to some of the underlying facts in this case; however, I have not found that those facts or disagreements are material such that this proceeding should be referred to the trial list: Supreme Court Civil Rules , R. 16-1(18); Southpaw Credit Opportunity Master Fund LP v. Asian Coast Development (Canada) Ltd. , 2012 BCSC 14 at para. 25 . Instead, the dispute revolves around the proper

interpretation of the Zoning Bylaw . A. History of The Zoning Bylaw [ 18 ] Since 1972, two zoning bylaws have regulated use of the Property. The first of these, the Township of Langley, Bylaw No. 1302, Township of Langley Zoning Bylaw (1970) [ 1970 Bylaw ], underwent two notable amendments. The second, the Zoning Bylaw , also underwent two notable amendments. [ 19 ] At the time of purchase, the Property was zoned RR-1 and uses were regulated by s. 9 of the 1970 Bylaw .

Until March 12, 1973, s. 9 only regulated residential uses of the Property. [ 20 ] On March 12, 1973, Council adopted the Township of Langley, Bylaw No. 1380, Township of Langley Zoning By-Law 1302 Amendment By-law [ 1973 Amendment ]. The Township submits that when interpreting the 1973 Amendment , concrete production would fall within the scope of a “comprehensive development” use.

The 1973 Amendment , s. 3, amended s. 9 to specify that comprehensive development uses would only be permitted if a development area bylaw was adopted and a land use contract was registered against title. [ 21 ] No land use contract was ever registered against title to the Property; however, the Township issued a building permit for the construction of a 5600 square foot, 1 storey, pole and frame building for pre-cast concrete manufacture at the same March 12, 1973 meeting. [ 22 ] The Township accepts that the minutes of the March 12, 1973 meeting indicate that the Township may have intended to enter into a land use contract at the Property.

The minutes of that meeting provide: Mr. P. Oreck – re: Fraser Pre - Kast Ltd. Indicated that it was understood that Zoning By - Law 1380 was approved by Council. Fraser Pre-Kast Ltd. is suffering serious financial hardships and it was stated that the proposed development received approval by Council In December, 1972. Mr. Oreck requested that the company be permitted to commence construction as soon as possible to meet their contractual obligations and prevent bankruptcy. Mr. Oreck Indicated that it would take much longer if they had to wait and sign the Land Use Contract.

On motion of Aldermen Kitsul and Blair a Building Permit be issued and conditions be attached similar to those proposed for the eventual Land Use Contract. Carried. [ 23 ] FWP and VRM submit that the Township’s

interpretation of the 1973 Amendment is flawed as the amendment does not expressly reference concrete production and it is not at all clear that that use would fall within the scope of “comprehensive development”, which is defined in the 1973 Amendment , s. 5, quite vaguely as “mean[ing] a combination of uses”. [ 24 ] A Township building permit issued to FWP on March 11, 1974, had as a condition that FWP “sign the land use contract when presented”.

The Township provided no evidence that it had ever presented a land use contract to FWP for signature. [ 25 ] On August 14, 1978, Council adopted the Township of Langley, Bylaw No. 1719, Fraser Highway Business Zoning Amendment By-Law (1978) [ 1978 Amendment ]. This amendment re-zoned the Property as a “Service Industrial (SI)” zone, in which the only permitted uses were:

Light Manufacturing of building or agriculture products, concrete products other than ready mix, wholesale or retail of building or agricultural products, offices, storage, and workshops for contractors, warehousing. This is the first time that a ready-mix concrete use is specifically addressed by the Township’s zoning bylaws. [ 26 ] On February 9, 1987, the 1970 Bylaw was repealed and the Zoning Bylaw enacted in its place.

The Zoning Bylaw re-zoned the Property as a M-1B Service Industrial zone, with specified permitted uses in s. 701.1, including: (1) accessory buildings and uses … (8) other uses not incompatible with service industrial uses … (14) retail sales accessory to permitted industrial uses … (16) the light manufacture, assembly, repair, finishing and packaging of products [ 27 ] The Zoning Bylaw also created an Heavy Industrial M-3 zone, with specified permitted uses in s. 703.1, including: “(3) cement plants”. [ 28 ] On January 6, 1992, Council adopted Township of Langley, Bylaw No. 3088, Township of Langley Zoning By-Law 1987 No. 2500 Amendment (Omnibus Seven) Bylaw (1991), which amended the Zoning Bylaw to, among other things, rewrite s. 701.1(8) to read: “(8) other service industrial uses compatible with service industrial areas”. [ 29 ] On July 27, 1998, Council adopted Township of Langley, Bylaw No. 3782, Township of Langley Zoning Bylaw 1987 No. 2500 Amendment (Omnibus Nine) Bylaw (1998) [ 1998 Amendment ], which amended the Zoning Bylaw to, among other things, rewrite s. 703.1(3) to read: “(3) concrete plants”. [ 30 ] The July 26, 1999, Report No. 99-202 to Mayor and Council, which addressed a rezoning application submitted by one of FWP’s neighbours, noted that: Surrounding land uses include CPI Equipment and McTaggart Brick Plant located immediately to the west; the Fraserway Prekast/U-cart concrete plant and Langley Christian School located immediately to the north across the Fraser Highway; and rural uses (including the Britco Export Packers site) to the east and south.

U-cart is a form of ready-mix concrete whereby a customer picks up a load of concrete directly from the manufacturing site. [ 31 ] As of July 17, 2013, s. 701.1 of the Zoning Bylaw stated that the only permitted uses in the M-1B Service Industrial zone, were: 1) accessory buildings and uses 2) accessory open storage 3) auction marts 4) bakeries 5) building supplies, lumber yards 6) commercial recreation, instruction and entertainment uses excluding arcades, pool halls and casino halls 7) dog daycare subject to Township of Langley Noise Control Bylaw 1988 as amended 8) nurseries and garden supply centres 9) offices accessory to permitted industrial uses 10) other service industrial uses compatible with service industrial areas 11) parking of commercial vehicles 12) public works yards, maintenance and storage facilities 13) printing and publishing 14) refund container return centre 15) residential uses accessory to industrial uses and subject to

Section 701.4 16) restaurants

17) retail sales accessory to permitted industrial uses 18) service stations, gas bars 19) the light manufacture, assembly, repair, finishing and packaging of products 20) transportation and trucking terminals and compounds including public transportation depots 21) u-brews 22) vehicle body shops 23) vehicle repair shops 24) vehicle sales, rental and leasing 25) vehicle servicing 26) vehicle towing and temporary storage compounds for licensed vehicles excluding the storage of wrecked vehicles and/or discarded material, and excluding a wrecking and salvaging yard 27) veterinary clinics 28) warehousing, wholesaling and storage facilities excluding bulk energy storage facilities and the bulk storage of industrial chemicals, by-products and allied products 29) workshops for the following and similar trade contractors; building, electrical, heating, air conditioning, plumbing, refrigeration, roofing, septic tanks, signs, paving, and landscape contractors including the sale of garden ornaments, swimming pools and outdoor furniture. [ 32 ] No part of 701.1 or the Zoning Bylaw as a whole specifically addresses ready-mix concrete uses. “Concrete plants” continue to appear as a permitted use in the Heavy Industrial M-3 zone pursuant to s. 703.1(4).

B. FWP’s Development of the Property [ 33 ] As per the notes summarizing Mr. Oreck’s comments at the March 12, 1973 Council meeting, FWP’s “proposed development received approval by Council in December, 1972”. [ 34 ] Since that time, the Township has issued a number of development permits to FWP for construction at the Property, including for example, the initial building permit issued on March 12, 1973, and a permit for the placement of a box girder crane on the Property issued on May 16, 2006.

As follow up to the construction undertaken under these permits, the Property has been inspected numerous times and final inspection notices indicating that construction was substantially complete in accordance with the relevant building codes were issued on those occasions. There is a dispute on the facts as to whether all the structures currently on site were authorized by a building permit; however, that is not a material issue before me. [ 35 ] In regards to the equipment present on site, both Mr. Atkinson and Mr.

Ralph deposed that FWP has always undertaken its business by way of the on-site concrete batch plant installed in 1973. In addition to the concrete batch plant, there is a crane mobilization area, which aids in the production of large pre-cast concrete products by moving them and putting them in place to shape and cure the product. Additionally there are indoor and outdoor curing and storage areas.

Also located on the Property are trucks, including heavy crane trucks to deliver the pre-cast concrete products to customers and concrete mixer trucks to transport the wet concrete from the concrete batch plant to the crane and mobilization area, and to other parts of the Property where other small molds are used. There is additionally a washout area for the trucks and an office area. Photographs of the plant were placed into evidence, which confirm the presence of this equipment. [ 36 ] In argument, FWP and VRM describe the improvements on the Property as follows: 48.

The Concrete Batch Plant operated at the Property is a small single silo single conveyor plant that exists to produce wet concrete for a pre-cast business, and for related ready mix sales. The Concrete Batch Plant has a footprint of a mere 675 square feet (approximately) for the aggregate and cement silos, conveyor, batch plant and dust collector shroud.

The height of the Concrete Batch Plant is approximately 20 feet at the maximum point. [ 37 ] It is argued that there are essentially no dust emissions from the concrete batch plant itself in light of a specialized dust collection system and a shroud that covers the connection point between the concrete batch plant and the concrete transport trucks, which was installed in July 2010.

While there can be minor dust emissions from the Property, it is submitted that that is not a consequence of the concrete batch plant but rather the result of vehicles travelling over gravel surfaces on the Property and the unpaved portion of the Township’s street immediately adjacent to the Property. [ 38 ] FWP has paved the highest traffic areas on its Property, roughly 50,000 square feet, and applies regular dust suppression to unpaved areas. Mr.

Atkinson notes that the Greater Vancouver Regional District has indicated that it is satisfied with the operations of the Property from an environmental emissions perspective. Mr. Atkinson also deposed that FWP has taken steps to obtain the Township’s approval to pave additional surfaces on the Property and the entrance to the adjacent street; however, those works have not been approved as a result of the same dispute that is the subject of these proceedings. [ 39 ] With respect to waste water, there are no offsite waste water emissions other than to the municipal sanitary sewers systems. In

September 2010, FWP installed a 3,000 gallon tank, and a two foot wide by 50 foot long trench with grated covering to receive rain, surface water and any waste water, and recycle it to the plant. In October 2010, FWP installed a carbon dioxide system to PH-adjust any water discharged to sanitary sewers. [ 40 ] In regards to traffic impacts, Mr. Atkinson deposed that the concrete transport trucks used by FWP and VRM’s operation do not produce a greater traffic impact than the other service industrial operations in the area. FWP argues that the neighbours have confirmed this, as discussed below. C.

FWP’s Neighbours [ 41 ] FWP has a number of neighbours who have sworn affidavits in these proceedings: Mr. Ralph, who is the owner/president of Ralph & Sons Trucking Ltd., Mr. Henry Vanderveen, who is the Superintendent of the Langley Christian School, and Mr. Berkley Glazer, who is the principle of the Langley Christian Middle School. [ 42 ] Mr. Ralph deposes that he has resided in the area since 1970. As a teenager he worked for FWP “preparing forms, filling forms, stripping forms and making precast products such as septic tanks, burial vaults and stair cases from approximately 1971 to 1973”.

As noted above, he deposes that he has observed the Township of Langley obtaining ready-mix concrete from the Property numerous times, multiple times a month, for the past 40 years. He has also deposed to his observation that: 9. Generally, the nature of the operations carried out at the respondent’s property have not changed in any substantial way since 1973, apart from increased volumes of production, additional paved areas, and improved drainage works. [ 43 ] His property, at which he both lives and works, is an immediate neighbour to FWP’s Property.

He describes impacts as a result of operations on the Property as follows: 13. The negative impacts arising from the Respondents’ Property for me and my enjoyment of the Ralph Property, and for the Company and its operations and enjoyment of its premises, in the form of noise, smells, dust, vehicular traffic, safety or otherwise, are negligible. 14.

The nature of the noise, smells, dust, vehicular traffic and safety issues arising from the Respondent’s Property is less than from a number of other businesses along Fraser Highway in the immediate vicinity of the Ralph Property and the Respondents’ Property. [ 44 ] Mr. Ralph identifies the neighbouring pork processing plant, timber companies, church and school as having a larger impact on local noise, smell, dust and vehicular traffic. [ 45 ] The Langley Christian School’s Middle/High School is also located immediately adjacent to the Property and its Elementary School is located nearby. Mr.

Vanderveen deposed that he has worked for Langley Christian School for 17 years and at the Middle/High School property for ten years. Mr. Glazer deposed that he has worked at the Middle School for seven years. [ 46 ] Each of Mr. Vanderveen and Mr. Glazer deposed that they have not observed any negative impacts arising from the Property in the form of noise, dust, smells, vehicular traffic, safety or otherwise, and that if such impact had been raised by teachers, students or parents, it would likely have come to their attention.

On the contrary, they have described FWP and VRM as conscientious, respectful, thoughtful and cooperative neighbours. [ 47 ] The other businesses that exist in close proximity to the Property (22765 Fraser Highway), according to the affidavits of Mr. Atkinson and Mr.

Ralph, include Timberland Cedar Products, a company which re-saws cedar and is located at 22518 Fraser Highway; Britco Pork, a pork processing plant located at 22940 Fraser Highway; Inland Truck & Auto Towing, a towing company with a fleet of trucks located at 23138 Fraser Highway; and Dharney’s Salvage & Enterprises Ltd., a used auto parts business located at 23360 Fraser Highway. D. Events Since 2011 [ 48 ] As discussed above, the Township submits that the Development Planning Department first became aware of the ready-mix concrete use on the Property in 2011, when Ms.

Miller raised the issue as a potential concern in light of proposed amendments to the Zoning Bylaw which contemplated neighbouring residential use. [ 49 ] Of course, this submission does not reflect the knowledge of other departments within the Township as is evidenced by the affidavit evidence of Mr. Atkinson, Mr. Ralph and Mr. Zwaag and supported by the financial records of all the parties. [ 50 ] It is unclear what steps were taken by the Township between June 2011, when Ms.

Miller deposed that she informed the Development Planning Department of the ready-mix use, and February 8, 2012, when VRM submitted the 2012 Licence Application. [ 51 ] Following VRM’s 2012 Licence Application, the Township performed an inspection, during which staff found that a ready-mix concrete business was operating on the Property. [ 52 ] There was much correspondence back and forth, beginning with a March 22, 2012 letter from Ms. Weller.

In that letter, she stated that the business licence was refused on the basis that the use of the Property had expanded from its original approved pre-cast concrete manufacturing use to include ready-mix concrete use. The Township took the position that while a pre-cast concrete use was permitted in the M-1B zone, a ready-mix concrete use was not permitted. FWP, as owner of the Property, was advised to cease the unauthorized ready-mix concrete business and to restore the Property to its approved use within 30 days. [ 53 ] A former co-director and officer of FWP and VRM, Mr.

Snyder, initially dealt with the Township. He contacted the Township staff by telephone on March 30, 2012, advising that he was unaware that a ready-mix concrete use was not permitted on the Property. He

advised that he would contact the Township’s Planning and Development Division regarding rezoning. He followed that with a letter to the Township in April 2012, requesting that VRM be granted a six-month extension to address the zoning requirements. Ms. Weller responded for the Township and advised that the Township would grant only a three-month extension but that it might be possible to extend the three-month period further, pending a review. [ 54 ] A further inspection of the Property was performed on June 8, 2012.

In the Township’s petition, it is stated that its staff determined a ready-mix concrete business continued to operate on the Property and observed an accumulation of debris, dirt and stones in breach of s. 506(1) of the Township of Langley, Bylaw No. 4758, Highway and Traffic Bylaw (2010), an offence punishable by a municipal fine. There is no evidence before me that such a fine was issued. On or about June 18, 2012, Ms. Weller sent a letter to Mr.

Snyder indicating the results of the inspection. [ 55 ] On July 10, 2012, the Township’s Mayor, Jack Froese, and the General Manager of Community Development and Engineering, Ramin Seifi, met with Mr. Snyder to discuss the Property’s use. A six-month extension was granted to VRM to relocate the ready-mix concrete business to a property where, in the opinion of the Township, ready-mix concrete would be permitted under the Zoning Bylaw ; however, other property options were limited. [ 56 ] There were three further meetings with Mr. Snyder and Township staff between July 11, 2012, and September 20, 2013.

Many other meetings were scheduled but then canceled on account of Mr. Snyder’s illness. A letter was forwarded on September 20, 2013, to the Township’s Mayor by Mr. Snyder, advising that a deal had been made with Lafarge to relocate the ready-mix concrete business. Council gave an extension until October 21, 2013, for the owner to relocate, but this did not come to pass. [ 57 ] On November 7, 2013, a further letter was sent by Mr.

Snyder enclosing a non-disclosure agreement from Lafarge to Township staff; however, Township staff did not accept the letter as sufficient evidence of compliance as it was from Lafarge, and not from FWP and VRM, and there was no compliance date set. [ 58 ] Mr. Snyder told the Township staff he would provide the information by November 15; however, nothing was received and on January 7, 2014, Township legal counsel sent a letter to Mr.

Snyder advising the Township would give one final extension to VRM until February 28, 2014, by which time they were to have complied with the Township’s bylaws. [ 59 ] An inspection, performed on February 28, 2014, found that the ready-mix concrete business was still operating on the Property, and the Township’s petition was commenced on March 28, 2014. [ 60 ] At around this time, Mr. Snyder, who had become increasingly ill, removed himself from the discussions and Mr. Atkinson took his place. [ 61 ] A further visit to the Property occurred on July 15, 2014, during which Ms.

Weller observed that the ready-mix concrete business was still in operation. V. First Issue – Bylaw [ 62 ] The first issue to be decided in these proceedings is whether a ready-mix concrete use is permitted in the M-1B zone, as defined in the Zoning Bylaw . If it is permitted, than FWP and VRM’s use lawfully conforms with the Zoning Bylaw . If it is not permitted, than the onus is on FWP and VRM to establish the non-conforming use. A.

Interpretation of the Bylaw [ 63 ] The appropriate interpretative approach to municipal legislation was succinctly set out in Society of Fort Langley Residents for Sustainable Development v. Langley (Township) , 2014 BCCA 271 at paras. 11-18 , where the court reviewed the basic principles of statutory

interpretation, including the common law rules, the direction provided by the

Interpretation Act , R.S.B.C. 1996, c. 238, s. 8, and the direction provided by the Community Charter , s. 4(1), and concluded: [18] Frankly, the Court can take the hint – municipal legislation should be approached in the spirit of searching for the purpose broadly targeted by the enabling legislation and the elected council, and in the words of the Court in Neilson , “with a view to giving effect to the intention of the Municipal Council as expressed in the bylaw upon a reasonable basis that will accomplish that purpose”. [ 64 ] The legislation at issue in Society of Fort Langley Residents was the provincially enacted Local Government Act , but this interpretative approach has subsequently been adopted in the context of zoning bylaws: Paldi Khalsa Diwan Society v.

Cowichan Valley (Regional District) , 2014 BCCA 335 at para. 33 [ Paldi ]; Kelowna Mountain Development Services Ltd. v. Central Okanagan (Regional District) , 2014 BCCA 369 at para. 16 . [ 65 ] Paldi is a particularly relevant case for its application of the Society of Fort Langley Residents approach. In Paldi , the Court of Appeal was asked to consider whether a non-religious commercial crematorium, which originally offered religious non-commercial services, was a permitted use within the P-1 zone in which it was located.

There, the original wood-fueled crematorium had been used since the 1960’s, had been upgraded in compliance with a building permit in 2010 and began operating as a commercial facility in 2011. It was operating under a valid BC licence; however, the municipality challenged the validity of the commercial use after becoming aware of the changed nature of the business from newspaper advertisements. [ 66 ] The issue before the court in Paldi was whether the drafters of the bylaw intended to include commercial crematoriums in the scope of “institution”, which was a defined term.

In its analysis, the court cited the approach set out in Society of Fort Langley Residents ; considered factors tending to establish the intended purpose of the zone, such as any express statement of purpose, an examination of the bylaw as a whole and dictionary

definitions; and concluded that “the purpose broadly served by the P-1 zone is to provide for uses that serve public needs, including specific uses not listed in the definition in the bylaw”, and that including crematoriums would give effect to

that purpose: at paras. 33-45. B. What is the Purpose of the Service Industrial M-1B Zone? [ 67 ] The Zoning Bylaw , like the bylaw at issue in Paldi , does not expressly state the purpose of the M-1B zone. The court’s task therefore is to “search for the purpose broadly targeted by the enabling legislation” based on a consideration of the bylaw as a whole and other tools of statutory

interpretation: Paldi at paras. 39, 45 . [ 68 ] Beginning broadly, zones established in zoning bylaws must be aimed at regulating the use, rather than user, of the lands; Local Government Act , s. 903(1)(c). So, the issue is not whether FWP and VRM’s particular businesses fall within the intended purpose of the M-1B zone, but whether a ready-mix concrete use falls within the intended purpose of the M-1B zone.

That said, on the facts of this case, FWP and VRM’s particular combination of operations does take on some significance because of the pre-cast concrete use, which the Township acknowledges falls within the scope of the M-1B zone and to which I will return. [ 69 ] Looking to the bylaw as a whole, the Zoning Bylaw establishes a number of categories of industrial uses. Both parties agree that the purpose of these different industrial use categories, at least in part, is to locate differing uses in order to account for impacts on adjoining properties.

These categories include: service industrial zones (e.g., M-1B uses), general industrial zones (e.g., M-2 uses), and heavy industrial zones (e.g., M-3 uses). These three zones inter-relate such that uses permitted in M-1B are also permitted in M-2 and uses permitted in M-2 are also permitted in M-3: ss. 702.1(1), 703.1(1). In other words, the M-1B service zone is the most restrictive of these three zones. [ 70 ] There is disagreement as to the meaning that should be ascribed to the use of the word “service” in the naming of the M-1B zone.

The Township submits that the purpose revealed by this naming choice is to permit “uses that service other industrial uses”: May 26, 2015 submissions at para. 15. FWP and VRM submit that that the purpose revealed is a desire to locate uses that more broadly “serve businesses, the public and others”: June 2, 2015 submissions at para. 7. [ 71 ]

Section 701.1 specifies the permissible uses in the Service Industrial M-1B zone. It is excerpted in full above and the permissible uses include “bakeries”, “dog daycare”, “restaurants”, and “u-brews”. These uses generally serve the public, rather than industry, implying that the Township’s intended purpose when naming the zone “service industrial” was to broadly permit industrial uses that not only serve industry but also serve businesses, the public and others. C.

Does the Principle of Implied Exclusion Restrict all Concrete Plants to the Heavy Industrial Zone? [ 72 ] I have already noted that the Zoning Bylaw expressly lists “concrete plants” as one of the permitted uses in the Heavy Industrial M-3 zone. Based on this, the Township argues that “the principle of implied exclusion applies in this case to indicate that a ready-mix concrete use is only permitted in the M-3 Zone as a ‘concrete plant’”: May 26, 2015 submissions at para. 18. FWP and VRM counter that the principle of implied exclusion is at odds with the purposive approach to bylaw

interpretation set out in Paldi and with the Township’s acceptance that pre-cast concrete use is permitted in the M-1B zone. [ 73 ] I begin with a consideration of the term “concrete plant”, which is not defined in the Zoning Bylaw . In 1998, Council made the decision to replace the reference to “cement plant” in s. 703.1(3), with “concrete plant” in what would become s. 703.1(4): 1998 Amendment , s. 4(b). Concrete, as described above, is a mixture of a number of substances including cement.

Plant is defined in the Concise Oxford English Dictionary , 11th ed., as: “a place where an industrial or manufacturing process takes place.” As a place where the manufacture of concrete takes place, the plain language of this inclusion supports a finding that both ready-mix and pre-cast uses fall within the meaning of the term. [ 74 ] At one point in reply submissions at para. 23, the Township attempts to remove the pre-cast use from the scope of a “concrete plant” use by characterizing the concrete batch plant as a s. 701.1(1) “accessory use” to the light manufacture pre-cast concrete use.

Section 102 of the Zoning Bylaw defines “accessory use” as “a use that is customarily and clearly incidental or subordinate to a permitted principal use of the land, building or structure situated on the same lot.” On all evidence before me, including the affidavit of Ms. Miller, a concrete plant of some sort is required for, not incidental or subordinate to, a pre-cast concrete manufacturing use.

Further, this characterization is at odds with the Township’s arguments that expressly rely on a characterization of the pre-cast use as a “precast concrete manufacturing plant” (reply submissions at para. 12(e)) and with the Township’s overall characterization of the pre-cast use as a “precast concrete product manufacturing business” (submissions at para. 81), which meets the definition of a concrete plant. [ 75 ] Turning to the applicability of the principle of implied exclusion, a number of cases decided prior to Paldi and Society of Fort Langley Residents applied the principle to the

interpretation of bylaws, including Regional District of Kootenay Boundary v. McKay , 2008 BCSC 174 at paras. 16-19 and Okanagan-Similkameen (Regional District) v. Leach , 2012 BCSC 63 at para. 55 . [ 76 ] I do not agree that the application of the principle of implied exclusion is at odds with the approach later articulated by the Court of Appeal in Paldi and Society of Fort Langley Residents . In Society of Fort Langley Residents at para. 12, the court applied the following statement from North Pender Island Local Trust Committee v.

Conconi , 2010 BCCA 494 at para. 13 , as part of the basis for its articulation of the purposeful approach to be adopted: …quoting Elmer Driedger, The Construction of Statutes (Toronto: Butterworths, 1974) at 67, which I will modify slightly to conform to the context of this case: ... the words of an [enactment] are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the [enactment], the object of the [enactment], and the intention of [the legislative body that passed the enactment]. [ 77 ] In a more recent edition of the Driedger text, Sullivan on the Construction of Statutes , 5th ed. (Markham, Ont.: LexisNexis

Canada, 2008) at 204, the author elaborates on the tools available to establish intent: …in reading the legislation, the courts draw heavily on their knowledge of how legislation is drafted.

This knowledge forms the basis fordrawing inferences about what the legislature intended (or did not intend) by drafting its provision in a particular way. [78] The author then discusses the standard Latin maxims that assist in textual analysis, including expressio unius est exclusioalterius or the implied exclusion principle (at 244): An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thingwithin its legislation, it would have referred to that thing expressly.

Because of this expectation, the legislature’s failure to mention thething becomes grounds for inferring that it was deliberately excluded. [79] Here, the intention, or purpose, of the enacting body is at issue, and so presumptions about how legislation is drafted andassociated textual tools, such as the implied exclusion principle, have some role to play. However, these tools are not determinative andmust be considered “in the spirit of searching for the purpose broadly targeted”: Society of Fort Langley Residents at para. 18. [80] In Orchiston v.

Formosa, 2014 BCSC 1080, Skolrood J stated: [47] With respect to the petitioners’ argument based on the implied exclusion principle of statutory

interpretation, I note that thisprinciple is simply an aid or guide to

interpretation and does not pre-ordain an outcome and requires a considerable measure of caution inits application (see Sullivan on the Construction of Statutes at 251, citing Dorval v. Dorval, [2006] S.J. No. 94 at paras. 13 - 14 (Sask.C.A.), and Jones v. New Brunswick (Attorney General), (SCC), [1975] 2 S.C.R. 182). [81] Here, concrete plants are a listed use in the M-3 zone and are not a listed use in any other zone. This could imply that that theTownship intended to locate all concrete plants only in the Heavy Industrial M-3 zone.

However, this implication must be considered inthe context of the bylaw as a whole. In Paldi for instance, the court did not consider that the establishment of five commercial zones wasdeterminative of the issue of whether a commercial use could exist outside of one of those specified zones: at paras. 46-47. [82] Looking at the Zoning Bylaw as a whole, the “outside storage of wood and wood products” and “cargo handling” are alsospecifically listed as Heavy Industrial M-3 uses in s. 703.1.

When read with s. 701.1’s list of the permitted uses in the Service IndustrialM-1B zone, including “lumber yards”, “trucking terminals” and “accessory uses”, it is apparent that least some “outside storage of woodand wood products” and “cargo handling” must have been contemplated for the M-1B zone despite their express inclusion in the M-3zone.

This is consistent with the fact that though “concrete plant” appears in the M-3 zone, the Township acknowledges that FWP andVRM’s pre-cast concrete use is acceptable as a “light manufacture” use in the M-1B zone. [83] Further, while the Zoning Bylaw expressly permits M-1B uses in the M-3 zone (ss. 702.1(1), 703.1(1)) and expressly states thatall uses other than those listed in s. 701.1 are prohibited (s. 701.1), it does not expressly exclude M-3 uses from the M-1B zone. Thismakes sense.

If the purpose of establishing these zones is to differentiate based on the impact of particular uses, which the parties agreeis the case, and if a particular M-3 use has a small enough impact to also fall within the more restrictive M-1B uses, then there is noreason to choose to exclude that use from the M-1B zone. [84] Therefore, contrary to what would be implied under the implied exclusion principle, in this case, the purpose of including“concrete plant” as a permitted use in the M-3 zone is not to limit all versions of that use to that zone.

Rather, some forms of this use maybe permitted in the M-1B zone if they also properly fall within the more restrictive enumerated uses in s. 701.1. D.

Does a Ready-Mix Concrete Use Fall within the Uses Enumerated in s. 701.1? [85] Here, unlike in Paldi, the court’s task is not to determine whether a particular use was intended to fall within the meaning of aparticular defined term; rather, this Court must determine whether a ready-mix concrete use falls within the meaning of one of the useslisted in s. 701.1. [86] FWP and VRM submit that ready-mix concrete use falls within the meaning of one or all of: 701.1(19) “the light manufacture,assembly, repair, finishing and packaging of products”, 701.1(10) “other service industrial uses compatible with service industrial areas”or 701.1(17) “retail sales accessory to permitted industrial uses”. [87] A “ready-mix” use does not appear in s. 701.1.

There was a reference to “ready-mix” concrete in the 1978 Amendment, whichexpressly excluded the use in service industrial zones and in light industrial zones; however, that act was repealed and replaced by theZoning Bylaw in 1987. The existence and then removal of a prior express reference to “ready-mix” implies that upon redrafting, Councilwas aware of the type of use and chose to remove the blanket exclusion and focus instead on lists of permissible uses grouped by level ofimpact. 1.

Does a Ready-Mix Concrete Use Amount to Light Manufacture? [88] I begin with s. 701.1(19) and note that the Zoning Bylaw does not contain a definition of, nor a list of acceptable forms of, “lightmanufacture… of products”. Both “manufacture” and “products” are capable of capturing a wide range of uses, and so this provisionreflects an attempt to locate a variety of uses. [89] In interpreting the meaning of “light manufacture… of products”, the parties are in agreement that the word “light” is ofsignificant importance. Further, they do not differ widely on the meaning that should be attributed to this word.

The Concise OxfordEnglish Dictionary, defines “light” as “of little weight” and “relatively low in density, amount, or intensity”. Both parties agree that inthe context of the M-1B zone and 701.1(19) in particular, “light” refers to the extent of impact that the manufacturing will have onadjacent property uses in terms of dust, noise, traffic and other nuisances.

[ 90 ] The Township submits that while pre-cast concrete uses can be characterized as “light manufacture”, ready-mix concrete uses cannot be: 81. … As the use of the Property for a precast concrete product manufacturing business involves little dust or noise and little truck traffic, such a use has a “light” impact on adjacent property uses and constitutes “light manufacture…of products” within the meaning of

section 701.1(19) of the Zoning Bylaw. 82. By way of contrast, however, because the use of the Property for a ready-mix concrete business involves significant levels of dust, noise and truck traffic, as well as the movement of concrete batch plants on to and off of the Property, it has a “heavy” impact on adjacent property uses and does not constitute “light manufacture…of products” within the meaning of

section 701.1(19) of the Zoning Bylaw. [ 91 ] FWP and VRM acknowledge that some ready-mix concrete uses would not fit within the scope of “light manufacture”. Mr. Atkinson identifies the Ocean Concrete plant in Vancouver, with its much larger footprint, volume and height, as an example of a heavy impact form of ready-mix concrete manufacturing. [ 92 ] However, FWP and VRM submit that some ready-mix concrete uses, theirs in particular, can be characterized as having only a light impact: 96.

The business and operations of FWP and VRM do not contain any such elevated nuisance or hazards, noting, as above, that: – the creation of concrete in either wet [or] solid form, does not involve any form of explosive or hazardous materials or processes: and – the operations taking place at the Property are not such as to produce significant emissions, wastewater, traffic or other significant nuisance or safety impacts external to the Property. … 103.

There is no basis for distinguishing, as the Township now, at this late date, is proposing to do, the manufacture of: – dry pre-cast concrete products, and – wet “ready mix” concrete, insofar as this specifically authorized permitted use is concerned, because the concrete in both cases are “products” that are “manufactured” in a “light” (i.e. – no meaningful external impacts) fashion. 2.

The Township’s Evidence [ 93 ] The crux of the Township’s argument is that it would be contrary to the Council’s purpose to include ready-mix production as a form of “light manufacture” in industrial service zones because ready-mix concrete production results in increased levels of truck traffic and associated noise and dust concerns. [ 94 ] The only evidence the Township has tendered as to any necessarily high impacts of a ready-mix concrete use is contained in Ms. Miller’s affidavit: 12.

There are significant differences between a precast concrete product manufacturing business and a ready-mix concrete business. In particular, (

a) to manufacture precast concrete products: (

i) cement from a silo, additives, aggregates (granular material of mineral composition, such as sand, gravel or crushed stone) from a bin are mixed together with water in a stationary mixing drum (collectively, a concrete batching plant) to produce concrete; (ii) the concrete is poured into reusable molds or “forms” located on-site which are then cured in a controlled environment (inside a building) for about 3 days; (iii) once the forms have cured, they are stripped and the concrete product which remains (e.g. tank, box, block) is left in the on-site work yard to cure further ( more strength is gained as concrete ages and usually 28 days are necessary before a concrete product hits design strength and is likely to be sold) ; and (iv) finished (cured) precast concrete products are loaded on flat-bed trucks and shipped to customers off-site. (

b) to produce ready-mix concrete: (

i) cement from a silo, additives, aggregates from a bin are mixed together with water either in a stationary mix drum or, more commonly, in the mixing drum of a ready-mix truck (collectively, a concrete batching plant) to produce concrete; and (ii) if the concrete was mixed in a stationary mix drum, it is transferred to ready-mix trucks and shipped to customers off-site or, alternatively, if the concrete was mixed in the mixing drum of a ready-mix truck, it is immediately shipped to customers off-site. (

c) in the manufacture of precast concrete products, the production of concrete in a concrete batching plant is only a small part of the operation (1-2 hours a day for a small operation) and most of the operation involves employees splitting, cleaning, reassembling, and repairing forms and moving concrete products around the work yard ;

(

d) in the production of ready-mix concrete, the production of concrete in a concrete batching plant is the operation (8-12 hours a daywith seasonal variability); (

e) a property that is used for the manufacture of precast concrete products will likely have little truck traffic (because of the time ittakes to cure and store the concrete products there is likely no need to load multiple trucks with products for shipment every day); (

f) a property that is used for the production of ready-mix concrete will likely have significant truck traffic (a new truck for each load ofready-mix concrete that is produced – typically 30 or so loads per day although in the winter, they can be closed for several weeks ofbad weather); (

g) the dust and noise emanating from a property that is used for the manufacture of precast concrete products will be significantly lessthan the dust and noise emanating from a property that is used for the production of ready-mix concrete; and (

h) the amount of water which is used for the manufacture of precast concrete products is significantly less than the amount of waterwhich is used for the production of ready-mix concrete because the mixing drum of each ready-mix truck must be cleaned out before anew load of concrete is mixed in the drum. [95] FWP and VRM say that portions of this affidavit are inadmissible opinion evidence. The Township replied that this evidencewas tendered as factual evidence and is admissible as such. [96] While some portions of the above statements are indeed factual, some are not.

For example, statements such as “a property thatis used for the production of ready-mix concrete will likely have significant truck traffic” and “the dust and noise emanating from aproperty that is used for the manufacture of precast concrete products will be significantly less” do not simply describe Ms. Miller’sfactual observations, they reflect her inferences and opinions. Ms. Miller was not certified as an expert, and so while some of heraffidavit evidence remains admissible, those portions that amount to opinions, which have been italicized above, are inadmissible: seee.g. R. v.

K.(A.) (1999), (ON CA), 45 O.R. (3d) 641 at paras. 71-72 (C.A.). [Emphasis added.] 3. FWP and VRM’s Evidence [97] In the factual

section of their response to petition, which Mr. Atkinson deposes is true, FWP and VRM state: 8. FWP has at all times since the construction of the Concrete Batch Plant engaged in the sale of wet concrete direct to third parties, inwhich case the wet concrete is referred to as “ready mix”. 9. The ready mix element of the business involves, and has at all times involved, the same improvements and equipment as the pre-castelements of the business.

In particular: − the wet concrete is produced in the same concrete batch plant; − the same production process is used for wet “ready mix concrete” as for “pre-cast concrete”; and − the wet concrete goes from that concrete batch plant into the same trucks; with the difference being that: − in one instance the wet concrete is transported to another part of the Property for pouring into molds, whereas − in the other instance the wet concrete is transported off-the Property and poured where the customer requests. 10.

The sale of wet concrete as ready mix has not involved any additional improvements, or physical site changes, relative to the use ofwet concrete as part of the pre-cast business. [98] In the sections above, I have summarized the other evidence before the Court as to impacts caused by FWP and VRM’s use ofthe Property. [99] The Township submitted in reply arguments, at para. 20, that “[t]he Respondents’ evidence about the size of its business and itsimpact on adjacent properties is irrelevant to the court’s

interpretation of the Zoning Bylaw”, since the focus of the inquiry is “notwhether Council intended to permit the Respondents’ business on the Property, but rather whether Council intended to permit a ready-mix concrete use in the M1-B Zone”. [100] I have stated above that the focus of this bylaw analysis is on the intended use, rather than user. I have so far found that Councilintended to include those uses that fall within the enumerated 701.1 uses.

Section 701.1(19) allows for the “light manufacture…ofproducts”, such that a wide range of business were intended for the M-1B zone, so long as they have low impacts.

As the Township hastaken the position that ready-mix concrete does not have a light/low impact, and as the parties agree that FWP and VRM have beenengaged in a ready-mix concrete use in recent years, I consider that FWP and VRM’s evidence as to their business’s impact onneighbours is relevant as one example of impacts caused by a ready-mix property. [101] I note that for the purposes of this analysis, I have not considered the Township’s historical purchases of ready-mix concretefrom the Property. The evidence establishes that these purchases spanned many years and were at times quite frequent.

However, thecase law is clear that “[a]s a general rule, municipal rights, duties and powers, including the duty to carry out the provisions of a statute,are of such public nature that they cannot be waived, lost or vitiated by mere acquiescence, laches or estoppel”: Langley (Township) v.Wood, 1999 BCCA 260 at para. 12. 4. Some Ready-Mix Concrete Uses Could Amount to Light Manufacture

[ 102 ] I find that the evidence before this Court does not support the Township’s position that ready-mix uses necessarily involve high impacts on neighbouring properties. From the factual portions of Ms.

Miller’s affidavit, and in particular her description of the two different processes, it is possible to infer that a ready-mix use could involve traffic flow differences and may permit some increase in cement batch plant production as compared to a pre-cast use; however, even before considering any of FWP and VRM’s evidence, it is not possible to determine that that difference would necessarily amount to a more-than-light impact on neighbouring uses. [ 103 ] Instead affidavits from individuals at a school and trucking business adjacent to a property where ready-mix manufacturing has been where dust and water issues have been addressed, overwhelmingly indicate that that ready-mix use has had little-to-no impact on neighbouring uses.

This can be contrasted with the evidence before the court in Paldi at paras. 38, 51 , where neighbourhood impact evidence was “equivocal”. [ 104 ] While this evidence is particular to FWP and VRM’s specific use of the land, it is also evidence that a ready-mix concrete use has the capacity to fall within the intended light impact scope of “light manufacture” appearing in s. 701.1(19) of the Zoning Bylaw . [ 105 ] In its May 26, 2015 submissions at para. 17, the Township added that a ready-mix use is not permitted since it is a use that “constitutes the ‘heavy’ manufacture of a product (i.e. the manufacture of a product which potentially has a high or significant impact on adjacent property uses)” (emphasis added).

I do not consider the fact that heavy versions of a particular use exist as a bar to the inclusion of light impact versions of that same use. The “manufacture” of many “products” could result in high impacts. Council choose to cast the net wide and then limit, not based on the type of manufacture or the type of product, but rather based on the extent of impact. This reflects a recognition that while impact levels of any one manufacturing use will vary, only light impact uses were intended in the M-1B zone. E.

Conclusion [ 106 ] In conclusion, it is consistent with the bylaw as a whole to find that the purpose broadly served by the M-1B zone is to provide for a range of low impact industrial uses aimed at serving businesses, the public, and others. Consistent with this purpose, the “light manufacture of… products” is specifically permitted pursuant to s. 701.1(19). I have concluded that a ready-mix concrete use could fall within the scope of “light manufacture”, where the particular operation in question has a low impact on neighbouring uses.

Therefore, permitting some ready-mix uses in the M-1B zone would give effect to the purpose of the Zoning Bylaw . Accordingly, I dismiss the Township’s petition in this regard. [ 107 ] In light of my finding that a ready-mix concrete use could fall within the scope of s. 701.1(19), it is not necessary to consider FWP and VRM’s alternative ss. 701.1(10) and 701.1(17) arguments. VI. Second Issue - Non conforming Use [ 108 ] Like the court in Paldi at para. 54 , I have concluded that the ready-mix use is in conformity with the Zoning Bylaw , and therefore these reasons need not address the non-conforming use issue.

VII. Third Issue - Business Licences [ 109 ]

Section 60 of the Community Charter grants municipalities the authority to regulate businesses: 60

(1) An application for a business licence may be refused in any specific case, but (

a) the application must not be unreasonably refused, and (

b) on request, the person or body making the decision must give written reasons for the refusal. …

(5) If a municipal officer or employee exercises authority to grant, refuse, suspend or cancel a business licence, the applicant or licence holder who is subject to the decision is entitled to have the council reconsider the matter. [ 110 ] Business licencing in Langley is governed by the Business Bylaw . The relevant provisions of the Business Bylaw provide: 1.4

(1) The Council hereby delegates to the Licence Inspector the power to grant a Business Licence where the Licence Inspector is satisfied that the applicant has complied with the bylaws of the Municipality regulating building, zoning, health, sanitation, and business. … 1.5

(1) No person shall carry on, within the Municipality, any business unless he is the holder of a valid and subsisting licence issued to him under the provisions of this bylaw. [ 111 ] A letter from the Township’s legal counsel, dated October 24, 2014, was presented in response to the FWP and VRM’s request for a complete listing of reasons for the Township’s refusal of the 2012 Licence Application (“October 24 Letter”).

This letter reads in part: As outlined in the Licence Inspector’s Affidavit sworn in the Petition Proceeding on July 21, 2014, we confirm that the reason for the Licence Inspector’s refusal to issue business licences to VRM and FWP in relation to the Property is that the Property is not being used

in compliance with the Township’s Zoning Bylaw 1987 No. 2500 (the “Zoning Bylaw”). In particular, either or both of VRM and FWP are operating a ready-mix concrete business on the Property, and such a business is not permitted on the Property under the Zoning Bylaw. If, as a result of the Petition Proceeding, the Court determines that a ready-mix concrete business is not permitted on the Property under the Zoning Bylaw, the Licence Inspector’s refusal to issue business licences to VRM and FWP will stand.

We also note that VRM and FWP may request that Council reconsider the Licence Inspector’s decision, in accordance with subsection 60(5) of the Community Charter . If, as a result of the Petition Proceeding, the Court determines that a ready-mix concrete business is permitted on the Property under the Zoning Bylaw, which we deny, the Licence Inspector will then refer VRM and FWP’s VRM Business Licence Applications (the “Applications”) to the Township’s building and fire departments, in keeping with the Township’s standard practice for reviewing VRM business licence applications.

Each of these departments will then: 1. review the Applications and determine the applicable technical requirements for a ready-mix concrete business (e.g. those set out in provincial building and fire codes and in the Langley Building Bylaw 2008 No. 4642 and the Fire Prevention Bylaw 2013 No. 4956); 2. conduct one or more inspections of the Property to assess whether the ready-mix concrete business on the Property is in compliance with these technical requirements; and 3. if any non-compliance issues are identified as a result of the aforesaid inspections, determine how such issues should be addressed.

Provided VRM and/or FWP address any non-compliance issues identified by the Township in step (3) above, the Licence Inspector will then issue the required business licenses. [ 112 ] Here, I have found that a ready-mix concrete use is a permitted use on the Property. The Township therefore submits that it plans to proceed as outlined in its October 24 letter and its response to petition at para. 12. In particular, staff will: (

a) review VRM’s application to determine applicable technical requirements for ready-mix concrete businesses, (

b) perform one or more detailed inspections to identify areas of non-compliance, (

c) require FWP and VRM to address non-compliance issues, (

d) provide written confirmation once compliance has been confirmed, and (

e) submit the licence to the Licence Inspector for review upon payment of the applicable fee. [ 113 ] The Township’s submissions and Ms. Weller’s affidavit elaborated on this procedural choice. They state that as a matter of general practice, applications to renew a business licence for an existing business are processed upon payment of the fee. This is consistent with Mr. Atkinson’s evidence that between 2009 and 2012, it took only a week or two following payment for the Township to issue FWP with its licence.

The process on those instances was straightforward: he received a letter notifying him of his upcoming expiry, he paid the applicable fee, and then he received his licence. No inspections were required. This

summary process is also consistent with the volume of business licences reported by the Township in its annual reports: 6,256 in 2013, 7,388 in 2012, 7,163 in 2011, and 6,942 in 2010. [ 114 ] According to the Township and deposed to be true by Ms. Weller, there are two exceptions to this general practice: (1) in renewal applications where the Licence Inspector has reason for concern that the licence holder is not in compliance with one or more of the Township’s bylaws regulating building, zoning, health, sanitation and business or (2) in “most, if not all,” applications for new businesses.

In these two cases, the Township advises that it proceeds as described in the enumerated paragraphs of its October 24 letter. [ 115 ] FWP and VRM’s related petition requests that this Court issue declarations that the Township failed to properly process the 2012 Licence Application, failed to provide required reasons, and unreasonably refused to issue the licences. They also request an order compelling the issuance of licences to FWP for 2013-2014 and to VRM for 2012-2014, by way of the

summary, no inspection, process applied to FWP’s renewal applications in the past. A. The Requested Declarations [ 116 ] In this case, Ms. Weller sent a letter on March 22, 2012, slightly more than a month after the 2012 Licence Application, to explain her reasons for not granting the licence, stating in part that: Upon further review of this application it was noted that the use of the property has expanded from its originally approved use for [FWP] as a light manufacturing of pre-cast products to now include a ready-mix business.

The content of this letter is consistent with the many discussions that followed and with the reason for refusal given in the October 24 Letter.

FWP and VRM do not dispute the Township’s assertions that formal reasons were not requested prior to the commencement of these proceedings and that a reconsideration pursuant to the Community Charter , s. 60(5) was never requested. [ 117 ] FWP and VRM’s position is that these reasons are not adequate as they list only a single reason for refusal, rather than all the “reason s ” that licences would be refused for the Property, as specified in the Community Charter , s. 60(1)(b). [ 118 ] In the s. 60 context, reasons are reasonable if they adequately convey the issues that were “troubling” the municipality in the circumstances of the case and are not based on an “indirect or improper motive or alien or irrelevant grounds”: 377050 BC Ltd. v.

Burnaby (City of) , 2007 BCCA 162 at para. 13 ; Dragonwood Enterprises Ltd. v. Burnaby (City) , 2009 BCSC 1236 at para. 81 . [ 119 ] Here, the reasons provided by Ms. Weller succinctly stated the basis on which the 2012 Licence Application was refused: concern about the zoning validity of a “ready-mix” use. [ 120 ] The issue of whether a ready-mix concrete use was permitted under s. 701.1 of the Zoning Bylaw was a legitimate interpretative

issue to be resolved. As per the Business Bylaw, s. 1.4(1), the Licence Inspector’s power to grant a licence is dependent upon her beingsatisfied that “the applicant has complied with the bylaws of the Municipality regulating … zoning”. Until the issue of permitted use wasresolved, it is reasonable that she could not be satisfied as to compliance with the Zoning Bylaw.

It was therefore not unreasonable for herto decline to issue the licences on that ground, and having so decided, for her to accurately communicate only that ground as the reasonfor her refusal. [121] Nor did she commit an error in terms of the process she followed in relation to the 2012 Licence Application. On its 2012Licence Application, which was its first such application, VRM described its business as “Ready Mix Concrete”. VRM was a new legalentity and therefore required its own business licence: Business Bylaw, s. 1.5(1).

Accepting that the Township’s usual practice for “most,if not all,” new businesses was as described above and in light of the interpretative issue to be resolved around the “ready-mix” use andthe fact that VRM was a new business seeking its first licence, it is not inconsistent with the general practice of the Township to haveproceeded as it did. [122] I therefore decline to make the requested declarations. [123] However, in light of my finding that a low impact ready-mix use is permitted in the M-1B zone, I declare that the Townshipwrongfully rejected VRM’s 2012 Licence Application and wrongfully refused to consider and/or rejected any subsequent businesslicence applications from FWP and VRM.

B. The Requested Past Business Licences [124] The Township argues that the decision as to whether FWP and VRM are granted business licences for past years should beremitted to the Licence Inspector for reconsideration in light other applicable requirements, such as conformity with building and fireregulations. [125] In support of this position, the Township relies on Great Canadian Casinos Inc. v. City of Surrey, 2000 BCSC 708, in whichRalph J. considered the appropriate remedy to follow his finding that the casino had a valid non-conforming use.

He noted, at paras. 9,15, that zoning compliance does not guarantee the issuance of a licence and that the Judicial Review Procedure Act, R.S.B.C. 1996,c. 241, provides for two forms of relief: an order of mandamus under s. 2 and a direction to reconsider under s. 5.

Ultimately, Ralph J.concluded that a declaration and a s. 5 order for reconsideration were most appropriate in the circumstances, since “it is unclear whetherthere are any proper licensing considerations which arise by reason of the Petitioner having assumed operation of the casino from itsparent company”: at para. 17. [126] FWP and VRM submit that Great Canadian Casinos is distinguishable on the basis that it related to a licence dispute heardduring the year in issue. They submit that the more applicable cases are those that considered remedies related to past years’ licences, inparticular Collins v.

City of Prince George, 2007 BCSC 1, and Tomaro v. Vanier (City) (1978), (ON CA), 20 O.R.(2d) 657 (C.A.). [127] In Collins at paras. 25, 50-51, Chamberlist J. found that the municipality had refused to transfer a business licence onimpermissible grounds and concluded that “it is appropriate and equitable” to assume compliance and order licences for past years. InTomaro at 664, the majority of the court similarly ordered that a past licence be issued following a finding of a legal non-conforminguse.

In both cases, the businesses had already undergone all required inspections and had received confirmation that, except for theimpugned reason, their businesses were in conformity with all requirements: Collins at para. 13, 31; Tomaro at 663. [128] As in Collins and Tomaro, FWP and VRM argue that this Court should order the Licence Inspector to issue the past years’licences. [129] In Guy Régimbald, Canadian Administrative Law, 1st ed. (Markham, Ont.: LexisNexis Canada Inc., 2008) at 484, the authorsummarizes the nature of the requested mandamus order: An award of mandamus will compel the performance of a statutory duty. … The order can be thought of as being a royal command toperform a legal public duty, and for which failure to obey is a contempt of court.

Mandamus is not available to compel the exercise ofdiscretionary power, however, it may be used to force the decision maker to act in a way that is not unreasonable and which takesrelevant factors into account. As most public officials are granted some form of discretion through their enabling legislation, the writ ofmandamus is rarely applicable. [Footnotes omitted.] [130] In Paldi, the court accepted the following

summary of the court’s jurisdiction to order the remedy of mandamus: [56] The principles applicable to a claim for mandamus relief were summarized by the Federal Court of Appeal in Apotex Inc. v.Canada (Attorney General), (FCA), [1994] 1 F.C. 742 at 766-769 (citations omitted): 1. There must be a public legal duty to act. 2. The duty must be owed to the applicant. 3. There is a clear right to performance of that duty, in particular: (

a) the applicant has satisfied all conditions precedent giving rise to the duty: (

b) there was (

i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright;and (iii) a subsequent refusal which be either expressed or implied, e.g. unreasonable delay;

4. Where the duty sought to be enforced is discretionary, the following rules apply: (

a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as “unfair”, “oppressive” or demonstrate “flagrant impropriety” or “bad faith”; (

b) mandamus is unavailable if the decision-maker’s discretion is characterized as being “unqualified”, “absolute”, “permissive” or “unfettered”; (

c) in the exercise of a “fettered” discretion, the decision-maker must act upon “relevant”, as opposed to “irrelevant”, considerations; (

d) mandamus is unavailable to compel the exercise of a “fettered discretion” in a particular way; and (

e) mandamus is only available when the decision-maker’s discretion is “spent”; i.e., the applicant has a vested right to the performance of the duty. 5. No other adequate remedy is available to the applicant. 6. The order sought will be of some practical value or effect. 7. The Court in the exercise of its discretion finds no equitable bar to the relief sought. 8.

On a “balance of convenience” an order in the nature of mandamus should (or should not) issue. [ 131 ] Applied to the case at bar, the Licence Inspector holds a discretionary power to consider FWP and VRM’s business licence applications; however, this discretion is fettered: she cannot refuse them unreasonably and she cannot grant them until she “is satisfied that the applicant has complied with the bylaws of the Municipality regulating building, zoning, health, sanitation, and business”: Business Bylaw , s. 1.4(1); Community Charter , s. 60(1). [ 132 ] The cases summarized above reflect the significance of the requirement to satisfy all conditions precedent in the municipal context.

Where all requirements were otherwise met, the mandamus order was granted: Paldi at para. 57 , Colins at paras. 13, 31, and Tomaro at 663. Where they were not met, the mandamus order was not granted: Great Canadian Casinos at para. 17. [ 133 ] In the case at bar, Ms.

Weller’s July 21, 2014, affidavit explains that the Township communicated its refusal on the zoning grounds prior to determining whether FWP and VRM were in conformity with all other licencing requirements: Furthermore, even if FWP and/or VRM’s use of the Property is in compliance with the Zoning Bylaw, I cannot issue a business licence to these companies in relation to the Property until I am satisfied that they have complied with the Township’s building, health and sanitation bylaws (as provided for under the Business Licence Bylaw).

In particular, I cannot issue a business licence to these companies in relation to the Property until the Township’s Building Department advises me that these companies have complied with requirements contained in the Langley Building Bylaw 2008 No. 4642; and the Township’s Fire Department advises me that these companies have complied with the requirements contained in the Fire Prevention Bylaw 2013 No. 4956.

Although I understand that several structures may have been constructed on the Property without the necessary permits and inspections from the Township, in breach of the Langley Building Bylaw 2008 No. 4642, I have not yet referred the business licence application of FWP and VRM to the Building Department or the Fire Department, as will be required, because it would not, in my view, be an appropriate or efficient use of time for such departments to review business licence applications that ultimately cannot be approved due to non-compliance with the Zoning Bylaw. [ 134 ] These statements are also consistent with the content of the October 24 Letter, which states in part: With respect to your suggestion in the Reasons Requests Letter that the Licence Inspector is obligated to refer the Applications to the Township’s building and fire departments before the Court has decided whether a ready-mix concrete business is permitted on the Property under the Zoning Bylaw, we do not agree.

The Township has already provided VRM and FWP with the reason for the Licence Inspector’s refusal to issue business licences to VRM and FWP. Furthermore, it would not be in keeping with the Township’s standard review of VRM business licence applications, which is entirely reasonable, to refer the Applications to these departments at this time.

Finally, it would not be an appropriate or efficient use of time and resources for the Township’s building and fire departments to undertake the process outlined in (1), (2) and (3) above if a ready-mix concrete business is ultimately not permitted on the Property under the Zoning Bylaw, as is the Township’s position in the Petition Proceeding. [ 135 ] FWP and VRM submit that this decision not to consider and communicate all possible reasons for refusal unfairly shifts the burden to the licence applicants and puts FWP and VRM into a position wherein they will face “detailed inspections” and the possibility of a multiplicity of proceedings in connection with business licences that would have already expired. [ 136 ] The Township submits that Ms.

Weller’s power to issue licences, as Licence Inspector, is fettered by the requirement that she be satisfied that all the relevant compliance conditions have been met and it would therefore be inappropriate for this court to order that the licences be granted. However, Ms. Weller has also identified that her usual practice in renewal cases is assume compliance on the basis of an existing licence and, unless there was some reason to have cause for concern, simply issue the renewal licence upon receipt of payment of the fee.

This type of usual practice was not at issue in any of Paldi, Colins, Tomaro or Great Canadian Casinos . [ 137 ] In regards to FWP’s licence, I accept FWP and VRM’s submission that there was no reason other than VRM’s ready-mix use application to expect that FWP’s subsequent business licence renewal applications would have stood out from the thousands of other applications that the Township received and approved in a

summary way during the years in question. Here, the Township gave as its sole reason for refusing past licences the existence of the ready-mix use, which I have found, as a low impact readi-mix, is a lawful use of the Property and is therefore an irrelevant consideration. Had other factors been presented as the basis of the refusal or as a reason for Ms. Weller to have had compliance concerns, then this Court would have had before it a valid reason for her to have departed from the usual

summary practice. As it is, the Licence Inspector choose to focus throughout the years in question on the one invalid ground and

expressly declined to explore or clarify any other potential ground. In light of the usual

summary practice and the lack of relevant grounds advanced to support a reason to deviate from it, I consider that subjecting FWP to the enhanced scrutiny described in order to retain its status as a continuing business licence holder can be characterized as unfair. [ 138 ] Turning to whether the order sought wi

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