Shipping Containers and Municipal By-laws

Can a person leave a shipping container on their property indefinitely, without a permit or authorization from the city? This was the question the Municipal Court of Montréal was asked to rule on last October, when the Ville de Montréal filed a claim against 168244 Canada Inc. (the “defendant”) for having installed a container on its property without having obtained the appropriate certificate of authorization.

On March 8, 2022, the Ville de Montréal received a complaint about a shipping container at an address in the Ville-Marie borough, north of Sherbrooke Street.

The borough’s building inspector checked the register of permits and certificates but didn’t find anything concerning a shipping container at the address in question.

He arrived at the site to find a 20-foot-long, 9-foot-high and 8-foot-wide shipping container at the rear of the building. The container was positioned between the rear wall of a building and the fence delimiting the back of the property, leaving a gap of around 30 cm. The container was closed at the top and on all sides. The inspector took photos.

According to the assessment roll, the main building is detached and it dates back to 1940. It’s classified as a commercial building and is owned by 168244 Canada Inc. On March 11, 2022, the inspector wrote a letter notifying the company that it was in violation of section 110 of the Règlement d’urbanisme de l’arrondissement de Ville-Marie (the “urban planning by-law”), namely by having failed to obtain authorization for the installation of an outbuilding of 15 m² or less in the sector of the Ville-Marie borough located north of Sherbrooke Street. 

He explained that a certificate of authorization was required. A period of time was given to remedy the situation.

On March 22, 2022, a lawyer contacted the inspector to explain that the container was protected by an acquired right. On April 26, 2022, he sent proof that the container had been purchased on May 1, 2012.

On July 6, 2022, the inspector found the container in the same place as before. He issued a statement of offence to the defendant for violating sections 41 and 75 of the Règlement sur les certificats d’autorisation et d’occupation (the “certificate of authorization by-law”), which prohibit a person from installing, having installed or allowing another person to install, or maintaining or allowing another person to maintain the construction, installation or development of a landscaping element without having obtained the appropriate certificate of authorization. For a corporation, the offence is punishable by a fine of $600 to $1,000 for a first offence, $1,000 to $2,000 for a second offence, and $2,000 to $4,000 for a subsequent offence.

The defendant, 168244 Canada Inc., pleaded not guilty. At the time of the hearing, it had not applied for a certificate of authorization, and the container was still in the same spot.

Is a Shipping Container Considered a Landscaping Element?

At first glance, you might not think so. The term “aménagement paysager” (landscaping) is normally associated with landscape beautification. However, the definition provided in the municipal by-law must be applied. 

The term, referred to in section 41 of the certificate of authorization by-law, is explained in section 40 of that same by-law:

For the purposes of this section, the term “landscaping” means the work referred to in section 110 of the urban planning by-law, the fences referred to in the first paragraph of section 21 of the Règlement sur les clôtures [fence by-law] (CA-24-225) and the installation of a fence in the space between a façade and the right-of-way of a public road, with the exception of temporary fencing around a construction site, as well as the development of an impervious paved surface of 1,000 m² or more. 
[Translation]

The installation of a container corresponds to “the installation […] of an outbuilding of 15 m² or less […]” according to section 110 of the urban planning by-law. An outbuilding is defined as a “building […] occupied by a use that is incidental, necessary or advisable to the principal use of a lot or building and located on the same lot, including a storage area […],” as per section 5 of the urban planning by-law. [Translation]

Consequently, the 14.88 m² shipping container in question was part of the “landscaping” within the meaning of section 41 of the certificate of authorization by-law.

Is the Container’s Presence Protected by an Acquired Right?

Title VII of the urban planning by-law provides for the recognition of acquired rights for non-conforming uses or structures.

According to section 665, a “non-conforming use is protected by an acquired right if it complied with the by-law in effect at the time it was established.” [Translation]

And as per section 696, a “non-conforming structure is protected by an acquired right if it complied with the by-law in effect at the time it was established.” [Translation]

The defendant argued that section 110 of the urban planning by-law, which only came into effect in 2013, couldn’t have applied in 2012, the year the container was purchased and installed. What’s more, it was used to store the files of a law firm.

The defendant asserted that section 118.1 of the 2012 version of the urban planning by-law only required authorization for the installation of an outbuilding for residential use, not commercial use. The defendant claimed that the installation of the container complied with the by-law in effect at the time and was therefore protected by an acquired right. Section 118.1 states as follows:

In the historic and natural district of Mount Royal and in the sector of Mount Royal, no one may carry out the following work without having first obtained a permit:

1. The construction, installation, alteration or removal of a fence within the meaning of the fence by-law (R.R.V.M., chapter C-5);

2. The construction, installation, alteration, removal or demolition of any residential outbuilding or stairway;

3. The construction of an access ramp, landing, or any other private vehicular or pedestrian path. 
[Translation]


However, the Court rejected that argument. Instead, it referred to sections 32 and 33 of the Règlement sur la construction et la transformation de bâtiments [building construction and conversion by-law], which was in effect in 2012.

Section 32 states that:

The following is prohibited without a permit:

1. The construction of a building;
2. The conversion of a building within the meaning of the [National Building] Code;
3. The alteration, replacement or addition of a structural element of a building subject to a zoning by-law, a site planning and architectural integration program, or any other municipal by-law;
[…] 
[Translation]

Section 33 stipulates that:

Notwithstanding section 32: 

1. A permit is not required for the installation or construction of a temporary structure on a work site that is necessary for the completion of the work for which a permit has already been issued. Such a building must be removed by the earliest of the following dates:
a) 30 days after completion of work for which the permit was issued;
b) Immediately upon revocation of the permit;
c) The permit expiry date;
2. A permit is not required for the installation, construction or expansion of a subordinate building, whose total area does not exceed 15 m² and which serves a residential building.
[Translation]

The by-law exempted from municipal authorization containers installed temporarily during construction work, as well as garden sheds typically installed behind dwellings. But the exemption didn’t apply to permanent shipping containers.

The Court found the defendant guilty of the offence and ordered the payment of a $2,000 fine.

Leaving a shipping container on your property indefinitely, without the city’s authorization, is generally illegal. Regardless of whether the shipping container in question constitutes a non-conforming structure or a non-conforming use, it’s only protected by an acquired right if, at some point in time, it complied with the by-law in effect. Yet, this is rarely the case. A shipping container is a piece of equipment designed for sea, rail or road transport, or for the collection and removal of waste during renovation or demolition work. It’s not meant to be a permanent fixture in the urban landscape. Before installing a shipping container, the owner should either ask the city if they need authorization or consult a lawyer.