An Oakville couple has been ordered to pay $40,000 in legal costs and to remove a swimming pool and deck they built over land subject to an easement held by the Town of Oakville and Oakville Hydro.
In a decision released Jan. 6, the Ontario Court of Appeal upheld an earlier court ruling finding that the pool, surrounding deck and other pool elements amounted to a “building or structure” prohibited under the easement.
Michael Sullivan and Margaret Di Pede purchased 1194 Stirling Drive, a home south of Lakeshore Rd just east of Coronation Park, in 2012.
A 10-foot strip on the western edge of their property is subject to an easement held by the town and Oakville Hydro. Underground wiring in that strip provides electrical services to a nearby house.
Registered on the property in 1972, the easement allows the town and hydro access to maintain services, and bans “the erection of any building or structure” on that land.
According to court documents, the couple knew of the easement when buying the property, but in 2014 built a swimming pool and deck extending over the area, without seeking a building permit.
Neither Sullivan or Di Pede responded to our messages seeking an interview. But in court their lawyer argued that they believed the easement was abandoned or no longer in use, partly because the town had previously permitted a portion of the house and carport to be built within the easement.
Last spring, the town and Oakville Hydro asked a court to order the pool removed.
In March, Justice Clayton Conlan of the Superior Court of Justice ruled that the pool and its amenities violated the terms of the easement, and ordered it removed.
This week, the Ontario Court of Appeal upheld with the decision. The couple has been given 30 days to pay $40,000 to cover legal costs incurred by the town and Oakville Hydro, and until the end of June to remove the pool.
Jim Barry, the town's acting commissioner of community development, said the town is satisfied with the ruling and the clarity it provides.
“It is a significant ruling that confirms the town’s authority to deal with preventing encroachments on town easements without prior town approval," he said via email. "These easements are there to protect the critical public services that are in them."