Property owners’ association takes operator to court 0
A property owners’ association on Paudash Lake was successfully in stopping a nearby gravel pit operation.
Following years of lobbying the local and provincial government and an expensive trip to court, the Paudash Shores Cottagers Association was given the ruling they were looking for: a stop to Ross Duncan’s pit on Colborne Creek Road.
“This is very, very important. I think the calculation was that people [the association] would not pull together,” said Paudash Lake cottager and retired lawyer John Conway.
The case hinged on whether Duncan’s property was an operating pit before bylaws were established prohibiting that work in a rural zone.
While Duncan, a longtime contractor, asserts that his property has been a pit for several decades, the Ontario Superior Court of Justice ruled otherwise – in favour of the cottagers’ association.
It set aside an MNR ruling that Duncan could operate a pit near Paudash Lake.
The association was first alerted to work being done when Duncan started operations in August of 2008 with permission from the Ministry of Natural Resources.
The PSCA president, Cathy Bowles, says she heard a droning bulldozer, which pushed her to check out the property, which abuts a 15-acre parcel of land owned by the cottagers’ group.
Bowles contacted Councillor Suzanne Partridge, who told her there was nothing that could be done; Duncan had a legitimate permit to run a gravel pit because the property use was grandfathered.
According to Bowles’s affidavit to the court, she spent more than a year doggedly researching and arguing her point to the MNR and municipality.
The next year, things intensified, cottagers say.
“In 2010, he had over the holiday weekend a stone crusher on the property, which made a terrific amount of noise,” said Conway, who was involved with the court case.
The noise was the last straw for Bowles.
“Duncan’s RED Construction (doing small cottage repairs and renovations) had become Duncan Aggregates. If he had the legal right to do that, I could not remain a cottager on Lewis Road [next to the pit] and the PSCA lands would be irreparably harmed. I decided to investigate for myself where that legal right came from,” Bowles wrote in her affidavit.
Duncan got permission to run a pit from the MNR, which relied on the municipality to either support or deny the request.
According to court documents, Highlands East staff told the ministry that the pit was of “legal non-conforming use,” meaning it was established before the law prohibited gravel pits in the area.
The PSCA disputed that assertion and questioned the process that led to MNR approval.
Duncan had given several documents to Highlands East CAO Sharon Stoughton-Craig indicating that the pit had been in operation since 1964 – years before the first bylaw came into effect.
However, the court found that these documents didn’t make Duncan’s case.
“The evidence is clear that there was no pit on this property prior to the date in 1985 when Mr. Duncan purchased it,” the documents read.
They go on to say that the owner prior to Duncan “did not operate a commercial pit on the property, nor did he know of anyone else who carried on such an operation.”
Stoughton-Craig was unable to comment on the case, referring the paper to the municipality’s lawyer.
The lawyer did not respond to inquiries by press time.
Highlands East Reeve Dave Burton also declined to comment.
Court documents do show that Highlands East appealed to the ministry in December 2010 “indicating that there may have been an error in the confirmation that Mr. Duncan had a legal non-conforming use.”
The documents go on to say that despite this, “the ministry refused to act, given the licence had been issued.”
For his part, Ross Duncan maintains that the pit was in existence, referring to it as a “borrow pit,” which was permitted under rural zoning until the definition was removed from municipal bylaws.
There is no firm definition of a borrow pit, but Duncan defines it as moving resources from one place to another and maintains that his land has been used for construction of local roads since the 1970s.
“The person who built the road has died,” he said in an interview.
“The person that looked after bringing the road up to standards ... is dead too. I had a hard time getting any evidence because everybody is passed away.”
The court’s judgment has stopped the work on Duncan’s property, but the landowner, now in his 70s, plans to resume operations as soon as he can.
“I certainly won’t be giving up on it. I have valuable material here. It’s very useful for the community,” he said.
The cottagers’ association represents just a few people, Duncan said, in a much larger area that could use the resources his pit produces.
Because his licence was set aside by the courts, Duncan said he plans to contact the minister to have it reinstated.
Conway doesn’t believe that will be successful.
“My view is the matter is effectively over. I don’t expect anything to happen at the ministerial level,” he said.