Commercial Tenants Can Be Liable for Zoning Contraventions Even Where Servicing Is the Landlord’s Responsibility

Why the Tenant Was Liable

Pacifica occupied land subject to the I-1D provisions of the South Cowichan Zoning Bylaw No. 3520, 2012. Those provisions made community water and sewer servicing a condition of use. Neither system was in place.

The Regional District issued 17 bylaw notices between October 2024 and March 2025. Although the adjudicator found that Pacifica was using the property, the notices were cancelled because the adjudicator considered the registered owner legally responsible for providing the services.

The Court’s reasoning distinguished the failure to install servicing from the prohibited use of unserviced land. The property could have remained without the services without giving rise to the particular contravention at issue. The breach arose because the property was being used while the servicing condition remained unsatisfied.

The bylaw applied to a person who violated its requirements or caused or permitted a contravening act. Liability was not restricted to registered owners. The owner’s responsibility for installing infrastructure therefore did not determine Pacifica’s responsibility for its own use of the land.

Section 21 of the Local Government Bylaw Notice Enforcement Act requires an adjudicator who finds that a contravention occurred as alleged to order the penalty payable. Conversely, the notice must be cancelled if the contravention did not occur as alleged. Because the adjudicator had already found the prohibited use, the Court concluded that there was no basis to cancel the notices merely because the owner might also bear responsibility. It ordered the penalties payable rather than returning the matter for another adjudication.

Stopping Operations Did Not End the Use

Pacifica said its firewood supply contract had lapsed and that its business was not operating during the period covered by the notices. Photographs nevertheless showed firewood, a shelter and a metal receptacle remaining on the property.

The adjudicator treated that continuing presence as use of the land. Justice Giltrow upheld the finding as reasonable under the bylaw and on the evidence before the adjudicator. The photographs, together with Pacifica’s admission that it had operated a firewood business from the property, supported the conclusion.

An inactive business does not necessarily mean an unused property. That distinction matters for storage yards and seasonal operations. Under this bylaw, each day that an offence continued constituted a separate offence. Leaving materials on site could therefore support repeated notices even during a period without active trading. Simply suspending operations was not enough to establish that the use had ended.

Practical Implications for Commercial Tenants

Check the Conditions Attached to a Permitted Use

A proposed activity may appear among a zone’s permitted uses but remain subject to requirements that the property does not satisfy. In this case, the absence of community water and sewer servicing prevented otherwise permitted uses from lawfully occurring. Before committing to a site, your review should address both the proposed use and the conditions attached to it. A zoning designation alone may not answer the question.

The practical lease issue is related but distinct. Negotiating who must provide infrastructure does not establish that the property is ready for lawful occupation or use. Review the lease alongside the zoning requirements rather than treating the contractual allocation of responsibility as a substitute for that assessment. These are practical implications of the decision, not findings about the effectiveness of particular lease provisions.

Address the Alleged Use When Responding to a Notice

A response should examine the contravention alleged against the tenant, including the activity said to constitute use and the evidence connecting the tenant to it. Relying only on the landlord’s responsibility for the underlying condition may leave the central allegation unanswered.

The statutory screening process may be relevant where a screening officer has been appointed. Section 10 permits cancellation on specified grounds, including that the contravention did not occur as alleged, that the notice lacks required information, or that a locally authorized cancellation ground applies. Screening does not provide an unrestricted power to transfer responsibility to another party.

The evidence also deserves attention. In this case, dated photographs helped establish what remained on the property during the notice period. For a tenant disputing continuing use, records of the site’s condition and any removal of materials may be relevant to the factual assessment.

Practical Implications for Owners and Property Transactions

A notice issued to the tenant does not necessarily resolve the landlord’s position. Justice Giltrow observed that an owner may also have obligations under the bylaw for permitting prohibited conduct. The Court expressly declined to determine the registered owner’s liability in this case.

For landlords, the decision provides a reason to review lease provisions addressing regulatory compliance, inspection rights and responsibility for bylaw penalties. Arrangements for materials remaining after active operations cease may also deserve attention. The practical concern is the continuing use of the property, not simply the tenant’s trading status.

Purchasers and lenders have a related due diligence concern. Reviewing an income-producing property should include comparing the zoning conditions with the servicing actually installed, as well as examining the uses made by existing tenants or occupiers. The physical condition of the site can reveal an issue that the stated nature of the tenant’s business does not.

The Limits of the Decision

The Court did not resolve the arguments concerning fixtures and split zoning that had not been presented to the adjudicator. It also did not decide that commercial firewood storage was itself a permitted use in the I-1D zone.

The result should therefore be understood in the context of the bylaw and evidentiary record. It does not establish that every stored item constitutes prohibited use. It demonstrates that tenant status and inactive trading do not, by themselves, answer an allegation of continuing unlawful use.