nan Date: 02/01/24 Docket: S.H. No. 173663 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Shooters Sports Inc. v. Municipality of East Hants, 2002 NSSC 020] BETWEEN: SHOOTERS SPORTS INC., body corporate and MUNICIPALITY OF EAST HANTS, body corporate nan HEARD BEFORE: The Honourable Justice David W. Gruchy, in chambers PLACE HEARD: Halifax, Nova Scotia DATE HEARD: December 19, 2001 DECISION: January 24, 2002 COUNSEL: Robert Belliveau, Q.C. and Robert Currie for the applicant Anne-Marie MacDougall for the respondent GRUCHY, J.: [1] This is an application for an order to declare that the Land Use By-law of the respondent permits the operation of a licensed billiard club open to the public at 192 Highway #2, Enfield, Nova Scotia. [2] In December, 1995, the applicant commenced the process whereby it eventually established private pool hall licensed to sell alcoholic beverages at the above location. The area in which the pool hall is located is within an area of the respondent known as the Village of Enfield and which is subject to the respondent's Land Use By-laws. [3] The premises is located is in land use zone known as "Core Village". The applicant has operated the billiard club since June, 1997 and has had "special premises liquor license" granted by the Alcohol and Gaming Authority of the Province of Nova Scotia. That license has allowed the sale of liquor, subject to certain restrictions including the following: 4. This license is for the use of members of the club only and not the general public. 5. No advertising of the availability of liquor service shall be permitted. 6. Access to the club shall only be obtained by way of card/key system. 7. member can only sign in two (2) guests at any one time. 9. book must be maintained in manner suitable to the Board in which the name of members entering the club on specific date is recorded along with any guests of the member. 10. No entertainment permit shall be issued in respect of this license. 15. The maximum days and hours of operation are as follows: Monday to Saturday 10:00 a.m.- 1:00 a.m. Sunday 12:00 noon 1:00 a.m. [4] On July 17, 2000 the respondent amended its Land Use By-laws whereby the permitted uses in Village Core (C6) Zone were set forth as follows: 8.7.1 PERMITTED USES No development permit shall be issued in the Village Core (C6) Zone except for one or more of the following uses. Lawfully existing uses nan Retail trade establishments as follows: furniture and home furnishings stores, electronics and appliances, building material and supplies dealers, nursery and garden centres, food and beverage stores, health and personal care stores, clothing and clothing accessories, sporting goods, hobby, book and music stores, and miscellaneous store retailers (with the exception of manufactured home dealers) nan Accommodation and food services as follows: bed and breakfasts, full-service restaurants **, limited service eating places (with the exception of drive-through restaurants), and special food services ** Taverns, night clubs, bars, lounges, and pubs will be considered by development agreement only. [5] According to the affidavit of Albert Walker, the president of the applicant, the premises was operated within the restrictions imposed by the Alcohol and Gaming Authority as club. It consisted of pool tables, as well as full-bar service and various snacks which could be purchased at the bar. It is common ground that this operation was conforming use of the Land Use By-law as it then existed. [6] In October, 2000, Mr. Walker says, he made the decision to build kitchen facilities for the club and received development permit from the respondent on December 4, 2000, pursuant to which kitchen was constructed and completed in May, 2001. He then decided, as well, to change the liquor license from that of "special premises liquor license" to "restaurant and lounge license". As he was familiar with the Nova Scotia Alcohol and Gaming Authority practices and its requirement that he should supply confirmation from the municipality that the proposed license would be in conformity with the Land Use By-law he requested of the respondent letter to that effect. He did not apply for development permit. [7] The respondent, by its development officers, replied in various correspondence, in effect, that a development agreement would be required as, apparently, they considered such a change to be a change of use. Mr. Grant C. Bain, the Director of Planning and Development of the respondent in letter dated July 20, 2001 to the applicant said: At this time, am confirming that the decision of the Development Officer, Ian Young constitutes the position of the Municipality on this issue. Our interpretation of the Land Use By-law is that, although both the existing use and proposed use are defined as drinking establishments, different types of licensed premises are defined separately based on the type of license they require. For example, club is defined differently than lounge. For reference, am attaching copy of definition #69 from the Municipality's Land Use By-law. Staff consider that the proposal for lounge on this property would be change in use, and would therefore be subject to development agreement. To add some explanation to the requirement for development agreement, it is felt that establishments which have certain types of liquor licenses have the potential to significantly impact the use and enjoyment of adjacent of [sic] nearby properties. development agreement is able to contain terms and conditions to mitigate, or at least minimize these impacts. In reference to the Shooters establishment, the changeover from the existing use to lounge would potentially create issues which don't already exist, or worsen issues which do. For example, having lounge license would permit Shooters to open their doors to the public rather than being restricted to private membership, hours of operation could be as late as 2:00 a.m. rather than the present 1:00 a.m., and it is possible that live entertainment would be permitted under lounge license. These issues present potential problems regarding additional traffic, noise and other off-site impacts, which are best addressed through development agreement. [8] The definitions to which Mr. Bain referred in his correspondence to the applicant included definitions of "club" and "lounge" as follows: 69. Licensed Premises means any premises for which license has been issued by the Nova Scotia Liquor License Board and is in effect in accordance with the Liquor License Board Regulations made under Section 50 of the Liquor Control Act, R.S.N.S., 1989, c.260. Licensed Premises include: c. Club means company or association that is operated solely for the objects of national, social, patriotic, political, or athletic nature, or the like, but not for pecuniary gain, which is also Licensed Premises serving liquor in accordance with Section 43 of the Liquor License Board Regulations as amended up to and including O.I.C. 92-908, N.S. Reg. 196/92, dated Sept. 8, 1992. Liquor may be sold 10:00 a.m. to 1:00 a.m. the next morning. d. Lounge means Licensed Premises which serves beer, wine, and spirits in accordance with Section 31 of the Liquor License Board Regulations as amended up to and including O.I.C. 92-908, N.S. Reg. 196/92, dated Sept. 8, 1992. Liquor may be sold Monday to Saturday 11:00 a.m. to 2:00 a.m. the next morning and Sunday 12:00 p.m. to 2:00 a.m. the next morning, unless an individual license specifies otherwise. [9] The respondent's position with respect to this application is set forth in para. 15. of the affidavit of Ian Young the Development Officer of the Municipality of East Hants as follows: 15. THAT the present use of the Shooters property as private pool hall with special premises liquor license is permitted use in C6 zone. The present use is therefore not non-conforming use. If Shooters is to operate as "lounge" or as billiards club, open to the public, with liquor license, it will require lounge license. development agreement would therefore be required as that is new use, and one that is significantly different from its former use as private pool hall. [10] That position sets forth the crux of the question now before me. That is, will the change of the liquor license sought by the applicant constitute a change in use requiring a development permit? [11] The Municipality's position taken before me is firstly that the applicant has not complied with the Municipal Government Act, S.N.S. 1998, c.18. That is, the applicant ought to have applied for development permit and then, if it was refused, that refusal should have been appealed to the Nova Scotia Utility and Review Board. The applicant, however, has taken the position that it is not proposing "development" within the meaning of the by-law and accordingly, no application for development permit was necessary. [12] The respondent has also brought to my attention other definitions of the By-law as follows: 13. Billiard/Snooker Club means private commercial establishment for the primary purpose of playing pool, and/or billiards, and/or snooker and requiring membership/registration as Joint Stock Company. 33. Development means any erection, construction, alteration, demolition, replacement, relocation, or addition to any structure, and any change or alteration in the use of land or structures. 34. Development Permit means permit, other than building permit, issued by the Development Officer which indicates that proposed development complies with the provisions of the Land Use By-law. 35. Drinking Establishment means an establishment, licensed by the Nova Scotia Liquor Licensing Board, in which alcoholic beverages are served for consumption on the premises, and any preparation or serving of food is accessory thereto, and includes licensed lounge that is ancillary to restaurant. Drinking establishment includes tavern, lounge, and/or cabaret. [13] The applicant's position is that in these circumstances there is no appeal to the Utility and Review Board. It says that its proposal is not "development" within the meaning of that word as defined by the By-law; nor is it development within the meaning of that word as defined by the Municipal Government Act which is as follows: Interpretation 191 In this Part and Part IX, unless the context otherwise requires nan (c) "development" includes the erection, construction, alteration, placement, location, replacement or relocation of, or addition to, structure and change or alteration in the use made of land or structures; The applicant says that it has not proposed development as it has not proposed any change or alteration in the use made of its property within these definitions. [14] Appeals to the Utility and Review Board are governed by ss.247 and 250 of the Municipal Government Act, the relevant portions of which read: Appeals to the Board 247(3) The refusal by development officer to (a) issue development permit; (b) approve tentative or final plan of subdivision, may be appealed by the applicant to the Board. 1998, c.18, s.247. nan Restrictions on appeals 250 (1) An aggrieved person or an applicant may only appeal (a) an amendment or refusal to amend land-use by-law, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; (b) the approval or refusal of development agreement or the approval of an amendment to development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy; (c) the refusal of an amendment to development agreement, on the grounds that the decision of the council does not reasonably carry out the intent of the municipal planning strategy and the intent of the development agreement. (2) An applicant may only appeal refusal to issue development permit on the grounds that the decision of the development officer does not comply with the land-use by-law, development agreement, an order establishing an interim planning area or an order regulating or prohibiting development in an interim planning area. [15] The applicant says there is no "decision" of development officer which may be appealed to the Board. agree with that position. It is apparent from the development officers' correspondence that they decided the proposal of the applicant will constitute "change in use" and accordingly the applicant must proceed to attempt to obtain development agreement. But it is clear, in my opinion, that if the proposal does not constitute "change in use" then no application for development permit is necessary and the development agreement process is not applicable. [16] It is clear that initially, the development officers considered the present use of the subject property as licensed billiard club to be non-conforming use. The respondent, correctly in my view, has resiled from that position and now states that the present use is conforming use. It is therefore unnecessary to consider the ramifications or results of possible change of non-conforming use. [17] The essential issue for consideration is whether the change proposed by the applicant is "change in use". The word "use" is not defined in either the By-law or the Municipal Government Act. It has, however, been the subject of judicial and academic discussion. Rogers, Canadian Law of Planning and Zoning (Toronto: Carswell), at p.210.26 said: The question is what constitutes "use". It means holding or occupying property or the employment of property for enjoyment, revenue or profit without in any way diminishing or impairing the property itself. [18] Further, at p.210.20(4) while addressing the matter of non-conforming uses, Rogers set forth the underlying policy for the protection of existing uses and said: The basis for legislative protection of existing contravening uses is preservation of property rights and the reluctance to forfeit them without compensation. The natural justice concept prevents the violation of such rights and permits an owner to retain the value which he or his predecessor in title created in his property at time when the law permitted him to do so. The community has an interest in the continuation of such value notwithstanding that the property it protects would not be considered desirable development of such land in the light of good planning principles, although it is not necessarily detrimental to the rest of the conforming community. While the above comment was made in reference to non-conforming uses, it seems to me to have application as well to conforming uses. [19] In Regina v. Grandview Holdings Co. Ltd. (1965), 1965 CanLII 580 (BC SC), 53 D.L.R. (2d) 276 (B.C. Co. Ct.) Macdonald, J. of the B.C. County Court stated at p. 278: The word "use" in the context of the definition of development contained in the Vancouver Charter simply means employment or application for some purpose. There is change in use when one purpose of the employment or application is abandoned and another purpose substituted for it. [20] The applicant's present establishment falls within the definition of "drinking establishment" as that term is defined in the By-law, set forth above. That is the "purpose" of the business. The various subcategories of defined drinking establishments all fall within that primary definition. The change proposed by the applicant will only have the effect of moving the applicant's use from one subcategory of drinking establishment to another. The premises as it currently exists constitutes an establishment wherein liquor and food are served in conjunction with the operation of the pool hall. The proposed change will have the effect of making it publicly accessible and with certain changes in the closing hours. [21] My learned colleague Justice Davison considered the matter of "change of use" in Dartmouth (City) v. Ramia (1990), 1990 CanLII 4115 (NS SC), 99 N.S.R. (2d) 50 (S.C.T.D.) when he considered whether change from grocery store to an establishment which could additionally sell pizzas and donairs constituted change of use. He said at p.54: [17] Has there been change in use? The premises has been neighbourhood grocery store for decades. The character of grocery stores has changed considerably over the years to the point where many grocery stores are referred to as "convenience stores". Undoubtedly, the emergence and growth of major food chains have contributed to the change in the smaller neighbourhood stores. [18] Corner stores are now selling multitude of wares which have no resemblance to food e.g. video tapes and magazines. It cannot be said that the addition of these new products amount to change in use. [19] The city takes the position that the delivery of the products to homes and the preparing of food on the premises are the factors which indicate "change in use". In years gone by delivery of groceries from small stores to private homes was commonplace. [20] The burden is on the city to prove change in use. The development officer said there was change in use. The building inspector said there was not change in use. [22] Use of premises as restaurant is distinct change from use of premises as store. But at what point between the two extremes can it be said that the use of the premises has changed? restaurant which sells bakery products does not change its use anymore than the use of premises as store changes because sandwiches are prepared and sold on the premises. It is question of fact as to when the character of the property changes to the extent it can be said there has been change in use. am not prepared on the evidence before me to find there has been change in use. Justice Davison's decision was affirmed by the Nova Scotia Court of Appeal (1991), 1991 CanLII 2549 (NS CA), 107 N.S.R. (2d) 170. [22] In Campbellton (City) v. Thompson et al. (1994), 1994 CanLII 6518 (NB CA), 151 N.B.R. (2d) (N.B. C.A.), the New Brunswick Court of Appeal considered whether there was "change of use" where the change consisted of the introduction of new process in rock quarry so that new or different grades of crushed rock would be produced. Chief Justice Hoyt addressed the matter of "whether the essential general use of the lands has been changed". [10] Using that test, cannot say that it has. The essential general use of the quarry will not change. The quarry will continue to produce sized rock. Nothing is being added to the rock to change its character or quality. new technique is being used, but the use of the land is not changed. If, as the judge predicted, there is more noise, dust, traffic and machinery on or from the site as result of the crusher's use, other remedies may be available. We have here, however, zoning case, not one in nuisance. [11] In sense, such determination results in generous, as opposed to narrow, interpretation of quarry's use. [23] Very recently (December 5, 2001) in Saint-Romuald (City) v. Olivier (2001), 2001 SCC 57 (CanLII), 204 D.L.R. (4th) 284 (S.C.C.) the Supreme Court of Canada considered the matter of changes of use from non-conforming use to another non-conforming use. While the instant case does not fall squarely within the parameters of that consideration, the majority opinion enunciated by Binnie, J. gives me very helpful guidance. The establishment there considered by the court was nightclub which had featured as entertainment country and western music. It had changed that entertainment to nude dancing. The question therefore arose as to whether such change amounted to change in use. While the case involved, to certain extent, consideration of the civil law doctrine of "acquired rights" by legal non-conforming uses (a concept embraced by judicial interpretation in the common law provinces City of Toronto v. Wheeler (1912), 1912 CanLII 513 (ON SC), D.L.R. 352 (Ont. H.C.)) Mr. Justice Binnie's consideration of the law with respect to change of use must be considered. He recognized the tension and interplay between the role of zoning and the protection of private property rights. He emphasized that planning law is not substitute for the common law of nuisance. (In the instant case also point out that in addition to the law of nuisance the Nova Scotia Alcohol and Gaming Authority has authority to intervene for the protection of neighbouring property owner's rights). Mr. Justice Binnie said at paras. [11] The objection to more sophisticated land use controls, when they emerged as an instrument of good government, was that they were to some extent confiscatory of the owner's rights: see Dinnick v. McCallum (1913), 28 O.L.R. 52 at p.58, 11 D.L.R. 509 (C.A.); Regina Auto Court v. Regina (City) (1958), 1958 CanLII 164 (SK QB), 25 W.W.R. 167 (Sask. Q.B.) at pp. 168-69; and Canadian Occidental Petroleum Ltd. v. North Vancouver (District) (1983), 1983 CanLII 539 (BC SC), 148 D.L.R. (3d) 255 (B.C.S.C.) at p.269. [12] To counter the concern about confiscation without compensation, lawful existing uses came to be protected under the concept of "acquired rights" both under the Civil code in Quebec, and by judicial interpretation in the common law provinces: Toronto (City) v. Wheeler (1912), 1912 CanLII 513 (ON SC), D.L.R. 352 (Ont. H.C.), per Middleton J., at p.353: ... it is, think, sound principle that the Legislature could not have contemplated an interference with vested rights, unless the language used clearly required some other construction to be given to the enactment. See also R. v. Howard (1884), O.R. 377 (Q.B.) at p. 381; and R. v. Clark Bros. Hughes Ltd., 1924 CanLII 476 (MB CA), [1925] D.L.R. 49 (Man. C.A.) at pp.51 and 53. [13] It is against that background that the modern regime of land use controls, with their inherent tension between the owner's interest in putting its own property to what it regards as the optimal use and the municipality's interest in having all of the land within its boundaries organized in plan which it thinks will maximize the benefits and amenities for all inhabitants, should be interpreted. [24] Justice Binnie recognized that permitted uses (or legal non-conforming uses) should be interpreted with flexibility so as to accommodate "the real and reasonable expectations" of the landowner, brought about by "normal evolution". That is, the intensity of the legal use may be increased so as to "adapt to the demands of the market or the technology that are relevant to it". [25] Mr. Justice Binnie made it clear that acquired rights or the common law equivalent of those rights relate only to the status quo. He said, in reference to the dissenting opinion of Mr. Justice Gonthier, at para. [4] The facts and applicable enactments are outlined in my colleague's reasons for judgment. fully agree with his rejection of the "categorical" approach. This is the theory under which an owner, whose use of land does not conform to new by-law, nevertheless has an "acquired right" to expand, alter or modify an existing use to include anything and everything permitted on that land under the "use category" defined in the prior law (if indeed there was prior law). ... ... the "categorical" approach is wrong in principle and will often deliver result that unduly favours individual landowners at the expense of the community interest. The protected "acquired right" properly relates only to the status quo. It does not protect potential or contemplated use that has never materialized. similar rule prevails in the common law provinces: see Heutinck v. Oakland (Township) (1997), 1997 CanLII 1284 (ON CA), 42 M.P.L.R. (2d) 258 (Ont. C.A.) ... [26] The phrase "status quo" relates to the use or physical activity to which the property in question is put. [27] Mr. Justice Binnie addressed the intensity and type of use of the premises in question. He was able to examine retrospectively the effect the change of entertainment had on the premises and on the neighbourhood. In my consideration herein, intensity may only be considered prospectively as have no evidence before me on that subject. [28] With respect to type of use Mr. Justice Binnie said at p.297: B. Type of Use [29] The appellant argues that nightclub offering western music is different type of use than nightclub presenting nude dancers. This is the real battleground between the appellant and the respondents. [30] "use" may include number of activities. nightclub, as stated, serves food and drink and provides entertainment. The question here is how many of these activities, and of what nature, can be added, subtracted or modified before it can no longer be called the same "type" of use? [29] Mr. Justice Binnie then examined the cases of R. ex rel.. Skimmings v. Cappy and Smith (1952), 1952 CanLII 280 (ON CA), 103 C.C.C. 25 (Ont. C.A.); R. v. Kelly Landscape Contractors Ltd. (1980), 13 M.P.L.R. 67(Ont. Co. Ct.); Campbellton (City) v. Thompson (1994), 1994 CanLII 6518 (NB CA), 151 N.B.R. (2d) (C.A.) and Lordon v. Pitman (1980), 33 N.B.R. (2d) 23. He then concluded at para. [34] In my view, both remoteness and neighbourhood effects have role to play in the proper disposition of this type of case. Each contributes to what Gonthier J. refers to as the real and natural expectation of the landowner. The Court's objective is to maintain fair balance between the individual landowner's interest and the community's interest. The landowner overreaches itself if (i) the scale or intensity of the activity can be said to bring about change in the type of use, as mentioned above; or if (ii) the addition of new activities or the modification of old activities (albeit within the same general land use purpose) is seen by the Court as too remote from the earlier activities to be entitled to protection; or if (iii) the new or modified activities can be shown to create undue additional or aggravated problems for the municipality, the local authorities, or the neighbours, as compared with what went before. The factors are balanced against one another. ... Mr. Justice Binnie continued at para.[35]: nan It stands to reason that in attempting to accommodate the landowner's real and natural expectation of the continuation of the status quo, and to properly maintain the balance between the interests of the landowner and the community, the Court should also have these "neighbourhood effects" in mind in considering the situation of landowner who has somewhat modified or extended pre-existing activities within the same general use category. The adverse impact of neighbourhood effects generated by added or modified activities constitutes one of the guiding principles under the somewhat different regulatory systems in Britain ... In those jurisdictions, as in Canada, planning is concerned not only with the physical use of land but also with any adverse effects of such uses on the surrounding area. It is appropriate to carry that concern forward into the Court's consideration of added, altered or modified activities which are claimed to be protected by the prior existing use. [30] While Mr. Justice Binnie was dealing with the question of prior existing use of non-conforming nature, his observations appear to have equal application to the rights of property owner acquired by virtue of conforming use. [31] Mr. Justice Binnie then set forth summary of his approach as follows: C. Summary of Approach [39] therefore approach the issue of limitations on the respondents' acquired rights as follows: 1. It is firstly necessary to characterize the purpose of the pre-existing use ((Central Jewish Institute, supra). The purpose for which the premises were used (i.e. "the use) is function of the activities actually carried on at the site prior to the new by-law restrictions. 2. Where the current use is merely an intensification of the pre-existing activity, it will rarely be open to objection. However, where the intensification is such as to go beyond matter of degree and constitutes, in terms of community impact, difference in kind (as in the hypothetical case of the pig farm discussed above), the protection may be lost. 3. To the extent landowner expands its activities beyond those it engaged in before (as where custom picture-framing shop attempted to add landscaping business in Nepean (City) v. D'Angelo (1998), 49 M.P.L.R. (2d) 243 (Ont. Ct. (Gen. Div.)), the added activities may be held to be too remote from the earlier activities to be protected under the non-conforming use. In such case, the added activities are simply outside any fair definition of the pre-existing use and it is unnecessary to evaluate "neighbourhood effects". 4. To the extent activities are added, altered or modified within the scope of the original purpose (i.e. activities that are ancillary to, or closely related to, the pre-existing activities), the Court has to balance the landowner's interest against the community interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g., the addition of rock crusher in residential neighbourhood is likely to be more disruptive than the addition of fax machine). The greater the disruption, the more tightly drawn will be the definition of the pre-existing use or acquired right. This approach does not rob the landowner of an entitlement. By definition, the limitation applies only to added, altered or modified activities. 5. Neighbourhood effects, unless obvious, should not be assumed but should be established by evidence if they are to be relied upon. 6. The resulting characterization of the acquired right (or legal non-conforming use) should not be so general as to liberate the owner from the constraints of what he actually did, and not be so narrow as to rob him of some flexibility in the reasonable evolution of prior activities. The degree of this flexibility may vary with the type of use. Here, for example, the pre-existing use is nightclub business which in its nature requires renewal and change. That change, within reasonable limits, should be accommodated. 7. While the definition of the acquired right will always have an element of subjective judgment, the criteria mentioned above constitute an attempt to ground the Court's decision in the objective facts. The outcome of the characterization analysis should not turn on personal value judgments, such as whether nude dancing is more or less deplorable than cowboy singing. am unable, with respect, to accept as legally relevant my colleague's observation that "[w]hereas erotic entertainment seeks to sexually arouse the audience by the stripping and suggestive behaviour engaged in by the performers, country and western shows seek to entertain by providing showcase for the special talents of singers, musicians or dancers" (para.76). Serious music is also commonly thought to arouse the passions profoundly, but in terms of acquired rights, music stores should not be differentiated by whether they offer Muzak or Mozart. [32] will therefore now approach the issues before me in the same fashion. 1. It is apparent that the purpose of the use to which the premises were put included the sale of liquor and food, together with the entertainment of billiards or pool. Those are the functions of the activities actually carried on at the site to the present time. 2. There is no evidence before me that the alteration of use will amount to an intensification of the activity but even if such were the case, Mr. Justice Binnie said that it will rarely be open to objection. The degree of intensification of activity cannot now be determined. 3. am unable to conclude that the categorization of type of liquor license will result in activities remote from those now enjoyed. The most obvious effect of the change of liquor license will merely be that the premises will be open to the public. There may be changes in hours and changes in entertainment, but those matters more appropriately fall within the jurisdiction of the Alcohol and Gaming Authority. 4. It is necessary to balance the interests of the applicants "... against the community's interest, taking into account the nature of the pre-existing use (e.g., the degree to which it clashes with surrounding land uses), the degree of remoteness (the closer to the original activity, the more unassailable the acquired right) and the new or aggravated neighbourhood effects (e.g. the addition of rock crusher in residential neighbourhood is likely to be more disruptive than the addition of fax machine). As there are no "... added, altered or modified activities ..." under consideration which are inconsistent with the present conforming use the balance is clearly in the favour of the applicant. 5. The respondent has submitted that there will be adverse neighbourhood effects. There is no evidence before me to lead logically to that conclusion. As Justice Binnie has said, such effects should not be assumed and in this case have not been established. 6. The amendment of the category of liquor license will not have the effect of liberating the applicant from the constraints of activities now carried out. It appears to me that the amendment of the category of liquor license is "reasonable evolution of prior activities". "That change, within reasonable limits should be accommodated". 7. Mr. Justice Binnie said that there will be an element of subjective judgment in considering the criteria mentioned above but should not turn on personal value judgments. The court should attempt to ground its decision on objective facts. Unlike the case before the Supreme Court of Canada where the irrelevant personal value judgment dealt with whether nude dancing is more or less deplorable than cowboy singing, the case before me might entail the irrelevant subjective comparison of one type of liquor license as against another much less contentious subject. CONCLUSION: [33] In my view, the change of liquor license sought by the applicant will not constitute a change of use from that presently enjoyed by the applicant. Subject to the regulations of the Nova Scotia Liquor Control Board, the applicant is permitted to operate a licensed billiard club open to the public at 192 Highway #2, Enfield, Nova Scotia. [34] will receive written submissions from the parties with respect to the matter of costs.
The applicant operated commercial private billiards club with liquor licence and served bar food. The applicant applied to amend the liquor licence to another category to allow public access and slightly longer hours of operation. The Municipality refused to issue a letter to the effect that the premises were properly zoned for that purpose, arguing that the proposal would result in a change in use requiring a development agreement. The applicant applied for an order declaring that the land use by-law permitted the proposed use. Application granted; the proposal did not constitute a change in use as the essential use of the premises was the sale of liquor and food in a pool hall and that would not change. There was no evidence that the proposal would result in a nuisance or increased traffic, neither of which could be presumed.