By Angelica Ingram
A decision by the Ontario Superior Court of Justice found in favour of Dysart et al on Feb. 5 in a case between the municipality and Haliburton Forest and Wild Life Reserve.
The case was heard by Judge Guy Di Tomaso in December 2015 with the municipality acting as the applicants and the Forest as the respondents.
The case involved a number of buildings and additions that were constructed without building permits according to the court file.
The properties and structures listed in the case include a structure at Stocking Lake and a number of structures located at 3798 Kennisis Lake Road including the EcoLog Mill building a building used for firewood processing a lean-to addition to a chip processor and an addition to the sawmill.
“In respect of the Stocking Lake and 3798 Kennisis Lake Road structures no building permits were ever applied for or obtained by the respondents [Haliburton Forest]” it states in the court document.
“Certainly this is conceded by the respondents regarding three structures located on the 3798 Kennisis Lake Road property.”
The court matter also includes an addition made to the Logging Museum for which the Haliburton Forest did make application for a building permit however one was never granted by chief building official Dan Sayers for a variety of reasons.
“A building permit had been issued for the construction of a storage building. The respondents sought to add an addition to the storage building which was later used as a museum where the public could view historic artifacts. The respondents intended to build an addition to the Logging Museum for which a building permit was sought. The chief building official Dan Sayers rejected the request for the building permit on Nov. 12 2014 on the grounds that the site plan was not adequate a change of use permit was required and the engineered plan was not legible. The respondents took the position that a change of use to the storage use was only incidental and temporary and that it was not necessary to apply for a change of use permit regarding the expansion of the Logging Museum” the court file states.
The change of use permit requested by Sayers is in regards to the Logging Museum being used to host music concerts during the annual Forest Festival every August.
Sayers told the Echo he believes the original permit for the museum does not cover what it is now being used for and results in a health and safety issue.
“To hold that type of a concert is an assembly occupancy under the building code and there’s very strict health and safety regulations that go with that” he said. “There’s requirements for proper exits fire protection washroom facilities.”
The respondents took the position that a change of use permit was not necessary as the Logging Museum was used as a storage space for close to 99 per cent of the year and that its principle use of the space was not changed according to the court document.
The judge ruled in the municipality’s favour saying Sayers was correct in his interpretation of the Building Code Act and in his request for a change of use permit before issuing a building permit.
In regards to the EcoLog Mill building the Haliburton Forest alleged that this was not a new building but one that Haliburton Forest owner/operator Peter Schleifenbaum had moved a distance of two kilometres south from 4460 Kennisis Lake Road to 3798 Kennisis Lake Road. However the judge said this is not accurate and that only some machinery and some of the interior finishes were moved.
“The previous structure remained intact at 4460 Kennisis Lake road where the structure is currently used as a workshop” states the court document. “The structure at 4460 Kennisis Lake Road was never moved and the structure located at 3798 Kennisis Lake Road was a new build.”
The judge wrote that building permits were required for the EcoLog Mill building and the structure at Stocking Lake which is used in a dormitory setting.
The other additions built at 3798 Kennisis Lake Road were done so without any applications for a building permit which were required.
“I agree with the position of the chief building official that the failure and refusal of the respondents to obtain building permits for these structures is a flagrant and unjustified violation of the Ontario Building Code Act. I accept the evidence of Mr. Sayers that this major construction has rendered it impossible for the chief building official to now assess much of the construction and carry out his responsibilities for inspection under both the Act and the Code” wrote Judge DiTomaso.
He went on to further state that the respondents were not inexperienced in this matter and were aware of what was necessary to obtain a building permit.
As a result the judge ruled that the structures and additions named in the case were to be demolished and removed by the Haliburton Forest or by the municipality with the cost added to Haliburton Forest’s tax bill.
He also ruled “a permanent injunction restraining the Haliburton Forest their guests tenants invitees employees or others from entry into or occupancy of all structures and additions built without the benefit of a building permit until such time as the respondents have obtained building permits and any necessary change of use permits.”
A permanent injunction also restrains the Logging Museum from hosting music concerts or any type of public assembly.
Schleifenbaum told the paper he plans to appeal the decision.
“It is very unfortunate that and especially how this case was brought against Haliburton Forest by the Municipality of Dysart et al” wrote Schleifenbaum in an email to the Echo.
“This case which is much more complex than appears on the surface has the potential to permanently taint the relationship between Dysart and its largest private industry employer. Haliburton Forest has appealed the judgment so the last word has not been spoken yet. I would hope that in the interim both parties use the time and work together to conclude this action amicably.”
CBO for Dysart since 1999 Sayers told the Echo he doesn’t know why Haliburton Forest did not apply for the proper building permits.
“A lot of these buildings especially public buildings have strict regulations to protect the health and safety of the public. If you don’t follow them we have no way to determine if they should be used or not” he said.
Dysart Reeve Murray Fearrey said it is unfortunate the situation could not be resolved before it got to the court stage.
“Council over the years has always tried to find compromises as they did this time” he said.
Fearrey said Sayers did his job properly and that he’s a well respected building official.
There is a 30-day appeal period following the judge’s decision.