Gauthier v Commission de protection du territoire agricole du Québec [1989] 1 S.C.R. 859: Protection of agricultural land - Acquired rights - Permits authorizing use

 Environmental law - Protection of agricultural land - Acquired rights - Permits authorizing use - Land bought and developed for residential purposes - Subdivision plan for location of street approved by municipal council - Subdivision plan for development filed with Department of Lands and Forests - Part of land located in agricultural zone after adoption of Act to preserve agricultural land - Development work done in part located outside agricultural zone - Whether appellant had acquired rights over lots in his residential development located within agricultural zone - Whether approval of municipal council or filing of subdivision plan, or both, constitutes a permit authorizing use for purpose other than agriculture within meaning of s. 101 of Act - Act to preserve agricultural land, R.S.Q., c. P-41.1, s. 101.

In 1975 the appellant bought a piece of land intending to turn it into a residential development and began the construction of a street and ditches. Two years later the municipal council approved by resolution the plan for subdivision of the land used in constructing a street, and the appellant filed the subdivision plan for the entire development with the Department of Lands and Forests in accordance with art. 2175 C.C.L.C. This subdivision plan was accepted by the Department. The appellant proceeded with the development work. He built an electricity and telephone line and a model house. He also sold several lots. When the Act to preserve agricultural land came into effect, part of the appellant's land was included in an agricultural zone. This part, which is the subject of the litigation, though subdivided, had not been developed and had not been the subject of any building permit, sale or promise of sale. It was fallow land apart from an earth and gravel street extending the street located in the non-agricultural part of the land.

In order to proceed with his residential development project, the appellant made several requests to the respondent for permission to use his land located in the agricultural zone for purposes other than agriculture and to alienate it. His requests were denied. The appellant then applied to the Superior Court asking it to declare that he had acquired rights over the lots located in the agricultural zone. The Superior Court dismissed the application and the Court of Appeal affirmed the judgment, except as regards the roadbed. The appeal at bar seeks to determine whether the appellant holds acquired rights pursuant to s. 101 of the Act.

Held: The appeal should be dismissed.

The appellant does not have acquired rights to proceed with his entire residential project, by virtue of either the use made by him of his land or the permit authorizing use which he says he holds.

Section 101 of the Act to preserve agricultural land requires not only use for non-agricultural purposes but also that such use must be effective and in progress at the time the Act became applicable to the lot in question. Effective and current use can only be demonstrated by verifiable human intervention that would indicate that the lots are currently being used for a purpose other than agriculture. However, such effective and current use of a lot does not guarantee the existence of acquired rights to non-conforming use of the lot as a whole. The second paragraph of s. 101 limits the acquired rights resulting from use for purposes other than agriculture exclusively to the area of the lot actually used. The concept of the "vocation" of land regarded as a whole is foreign to the Act and cannot be a source of acquired rights. In the case at bar, looking at the appellant's lots as they were at the time the Act came into effect, it can be seen that they were unoccupied land, which, except for the street, was not being used for any apparent purpose and on which no activity was taking place. In fact, the use of the appellant's land appears to be use for agricultural purposes, since the word "agriculture" is defined in s. 1(1) of the Act as being, inter alia, "leaving land uncropped".

The approval of his subdivision plan by the municipal council or the filing of this plan with the Department of Lands and Forests, or both, does not constitute a permit authorizing use within the meaning of s. 101. A permit authorizing use within the meaning of that section must (1) be issued by a body having public powers; (2) be in effect at the time the provisions of the Act became applicable to the lot; (3) mention a specific use for a purpose other than agriculture; and (4) apply to a given lot or surface area. The approval of the subdivision plan by the council and its filing with the Department do not meet these criteria. Moreover, whereas a permit authorizing use allows the use requested, a "subdivision permit" is only intended to allow the marking out of a new property or identification of a new lot. It does not authorize use.

The respondent did not act in a discriminatory manner contrary to s. 15 of the Canadian Charter of Rights and Freedoms by denying the appellant's requests to use his land for a purpose other than agriculture. Under s. 12 of the Act, the respondent must take a number of factors into consideration before rendering a decision. It is the diversity of the facts and circumstances it must consider in arriving at each decision which leads the Commission to authorize some applications and deny others.

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