SUPREME COURT OF NOVA SCOTIA
Citation: Nova Scotia (Attorney General) v. Spence, 2004 NSSC 18
Date: 20031204
Docket: SH 02-188272
Registry: Halifax
Between:
The Attorney General of Nova Scotia
Applicant
v.
Ian Spence
Respondent
LIBRARY HEADING
Judge: The Honourable Justice Glen G. McDougall
Heard: November 4, 2003 in Halifax
Written Decision: January 28, 2004
Subject: An application under section 42 of the Agricultural Marshland Conservation Act (“AMCA”) and Civil Procedure Rule 37 for an order to remove a sheep barn built on marshland
Summary: The Respondent obtained a development/building permit to construct a sheep barn from the appropriate planning department albeit sometime after construction had already begun. The development permit gave notice to the Respondent that prior to commencing construction he had to first satisfy himself that all the requirements and necessary approvals under the recently enacted AMCA were satisfied. The respondent proceeded with construction without first getting the necessary approvals from the Nova Scotia Department of Agriculture and Fisheries. Shortly after construction began representatives from the Department visited the Respondent and alerted him first verbally then later in writing that the construction of the sheep barn was contrary to the Act. Despite repeated warnings to halt construction the Respondent nonetheless continued to completion. The Act provided a means to apply for a variance which might have allowed construction to take place, however, the Respondent had never availed himself of this avenue.
Issue: Was the construction of the sheep barn by the Respondent contrary to the provisions of the AMCA and, if so, should the Respondent be ordered to remove the offending structure?
Result: The construction of the sheep barn by the Respondent was done on land designated as marshland and was done in contravention of the AMCA. The construction did not qualify for an exemption under the Act and the Respondent did not seek a variance. The Respondent was warned both verbally and in writing not to continue with his construction efforts and also to remove the offending structure. He chose to ignore these warnings and hence proceeded at his own peril. The Respondent was given until September 30, 2004 to dismantle the structure failing which the Province may apply for an order authorizing it, or a contractor working on its behalf, to remove the barn at the Respondent’s expense.
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