LAKEWOOD DEVELOPMENT CORPORATION Applicant And: TOWN COUNCIL OF TOWN OF POUCH COVE Respondent, 2022 NLSC 134

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: Lakewood Development Corporation v. Pouch Cove (Town), 2022 NLSC 134 Date: September 1, 2022 Docket: 202101G3609 Between: LAKEWOOD DEVELOPMENT CORPORATION Applicant And: TOWN COUNCIL OF TOWN OF POUCH COVE Respondent Before: Justice Alexander MacDonald Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 20-21, 2022 Appearances: Michael J. Crosbie, Q.C. Appearing on behalf of the Applicant Giles W. Ayers Appearing on behalf of the Respondent Authorities Cited: CASES CONSIDERED: Allen v.

Conception Bay South (Town) (2002), (NL SC), 215 Nfld. & P.E.I.R. 88, 644A.P.R. 88 (N.L.S.C. (T.D.)) STATUTES CONSIDERED: Urban and Rural Planning Act, R.S.N. 1990, c. U-7, as rep. by Urban and Rural Planning Act, 2000,S.N.L. 2000, c. U-8; Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8; Development Regulations, N.L.R. 3/01

RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT MACDONALD J. : INTRODUCTION [ 1 ] Lakewood Development Corporation (Lakewood) owns the Marine Park, a 142-hectare facility located in the Town of Pouch Cove (Town). Her Majesty the Queen in Right of Newfoundland and Labrador (Province) opened the Marine Park as a day-use facility in 1981. [ 2 ] Lakewood acquired the Marine Park from the Province in 1997 when it gave it a five-year license.

The Province renewed the license in 2002 and 2007, and gave it a 50-year lease in 2016 and freehold title in 2018. [ 3 ] Pursuant to conditions in the licenses and lease, the Province required Lakewood to operate the Marine Park and to undertake specified development activities as were specified in Lakewood’s response to its request for proposals. [ 4 ] The response contemplated the expansion of the Marine Park to accommodate all-season activities.

Lakewood expanded the Marine Park from a 35 day-use campsite in 1997 to more than 400 overnight camping sites today. [ 5 ] During this expansion, Lakewood did not comply, nor did the Town require it to comply, with the Town’s municipal plan or applicable development regulations. However, from 2014 the Town issued Lakewood permits [1] for ancillary projects including a convenience store, accessory buildings and general repairs.

It had not issued an overall business permit authorizing Lakewood’s general activities. [ 6 ] During the COVID-19 pandemic in the winter of 2020-21, the Newfoundland and Labrador Chief Medical Officer gave about 20 families permission to live full-time in the Marine Park.

Although the Town agreed to these residents for the short term, it objected to long-term residents for a number of reasons but primarily because of its concerns about emergency responders’ inability to access the residents’ homes. [ 7 ] Accordingly, in 2021 it issued a “Business Permit Commercial Recreation Park” permit (“Business Permit”) [2] under which Lakewood may open the Marine Park on May 1 of each year, but must close it on October 31. Furthermore, it provided that “[w]inter lodging is strictly prohibited”. [3] Thus, the Town banned all-season camping.

ISSUE [ 8 ] Lakewood sought a declaration that the “Property is a non-conforming use” and a declaration “as to the nature and details of Lakewood’s non-conforming use.” However, at the hearing the parties asked me to decide only whether all-season camping is a non- conforming use under the regulatory framework governing Lakewood’s operations or under common law. [ 9 ] I find that all-season camping is a non-conforming use. I will now tell you why I made this decision.

DISCUSSION [ 10 ] Lakewood’s non-conforming use can arise either under the regulatory framework governing Lakewood’s operations or under common law. I will first turn to Lakewood’s use and expansion of the Marine Park and the applicable regulatory framework. Lakewood’s 1997-2002 Expansion and Use [ 11 ] In 1997, the Province, as part of its plan to divest itself of non-core assets, called for public proposals (RFP) from the public to take over development and operation of the Marine Park. [ 12 ] In April 1997, Lakewood made a proposal (Proposal) in response to the RFP.

The Proposal described its development opportunity as, “Upgrading the existing facilities, and providing for more activities, especially on a year round basis, will increase visitor satisfaction and part use to much higher levels…. There is great potential for other recreational opportunities both in the summer and winter.” [4] [ 13 ] The Proposal included projected capital expenditures and cash flow statements.

Lakewood committed to service standards and development timelines. [ 14 ] The Province accepted Lakewood’s Proposal, and in July 1997, the Province provided it with a license to occupy the Marine Park for five years. The Province provided in the license that Lakewood comply with its commitments contained in the Proposal. [ 15 ] The Province renewed the license for a further five terms in 2002 and again in 2007. In July 2009, the Province replaced the license with a 50-year lease. Lakewood again agreed to comply with its Proposal.

The lease stipulated that Lakewood would open the Marine Park to the public for a minimum of five months from May 1 to September 30 of each year. 1992-2002 Regulatory Framework

[ 16 ] The Town concedes that the Province is not subject to municipal regulation but says that Lakewood is after it acquired the Marine Park in 1997. [ 17 ] In 1997, the 1992 Municipal Plan and the Land Use Zoning, Subdivision and Advertisement Regulations governed development in the Town [5] ( 1992 Development Regulations ). The Province issued these under the authority of the Urban and Rural Planning Act , R.S.N. 1990, c. U-7, as rep. by the Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 . (I call this and the later consolidations the “ Act ”.) [ 18 ]

Section 36 of the Act (and

section 29 of the current Urban and Rural Planning Act, 2000 , S.N.L. 2000, c. U-8 ), directs that the Town “shall develop … a scheme for the control of the use of land in strict conformity with the municipal plan”. [ 19 ] The Province added

section 108 to the Act on January 1, 2000. This section, in various versions of the Act , applies to Lakewood at all relevant times after January 1, 2000. [ 20 ] Section 108(1) of the Act provides that the Town shall allow a use of land to continue in a manner that does not conform to the regulation or plan if the non-conforming use legally existed before the adoption of the plan or regulation. [ 21 ] Under section 108(3)(a), an owner cannot extend or expand the non-conforming use unless Council approves it. Section 108(3) (

f) provides that where the non-conformance is with respect to the standards included in development regulations, it shall not be expanded if the expansion would increase the non-conformity. [ 22 ] The 1992 Municipal Plan says, “Marine Drive Provincial Park is located within the Town of Pouch Cove.

It shall be the Policy of this Plan to encourage and support the development of recreational facilities within the Park boundaries .…” [6] [ 23 ] The 1992 Municipal Plan deals with non-conforming use by saying, “Nothing in the Plan shall effect the continuation of a use which was legally established on the day that this Plan was approved by the Minister .… Where a building or use exists which does not comply with the intent of the Plan and the designated use, then it shall not be substantially expanded.

Minor extensions may be approved provided there will be no adverse affects on surrounding properties or the environment.” [7] [emphasis added] [ 24 ]

Section 7 of the 1992 Development Regulations [8] provided that that no person can carry out a development unless the Town issues a permit. The definition of development is expansive to include all of the activities undertaken by Lakewood after it acquired the Marine Park. [ 25 ] However, section 45(1)(

a) of the 1992 Development Regulations also deals with non-conforming use and says, “Any legal use of … land at the date of the coming into effect of these Regulations may although not conforming with the Regulations of the Use Zone in which they are located … be continued.” [9] [ 26 ] Section 45(2) says, “A building, which is legally used for a purpose not permissible within the zone in which it is located, shall not be enlarged, extended, reconstructed, or altered structurally, unless such … is … used for [the] purpose permitted with that zone . …” [10] [ 27 ] No one gave me the zoning maps for the 1992 plan.

I cannot say then whether the Town included the Marine Park in the zone maps. It would not be surprising if it did not because it had no jurisdiction over the Marine Park when it adopted the municipal plan. [ 28 ] However, the Town did include a zone for a recreational open space zone in the 1992 Development Regulations . Permitted uses in that zone allowed “Recreational open space and conservation” and “Discretionary Use Classes [of] Outdoor assembly, antenna, and cemetery.” [11] [ 29 ] If I assume the Marine Park is located in this zone, camping is not one of the permitted uses. Under

section 87 of the 1992 Development Regulations , if a use is not in the land-use table, it is not a permitted use. [ 30 ] Thus, whether the Marine Park is in the open space zone or none of the zones, Lakewood’s existing campsites became a non- conforming use in 1997. Lakewood can therefore continue this use under the Act , the 1992 Municipal Plan and the 1992 Development Regulations. [ 31 ] Lakewood immediately began its expansion plans, called for under its Proposal. The parties did not tell me the number of campsites at the Marine Park by the end of the 1992 Municipal Plan.

However, by 2006 Lakewood had expanded the Marine Park from 35 seasonal day-use campsites, to about 50 seasonal overnight campsites. [ 32 ] The Town says that under

section 7 of the 1992 Development Regulations , Lakewood should have applied for a building permit when it expanded the Marine Park from 35 campsites, and when it offered overnight camping. The Town should have issued a stop work order of the expansion until it did so. Neither happened. [ 33 ] However, under section 45(2) of the 1992 Development Regulations , Lakewood could expand the use because the

section only applies to expansion of buildings. [ 34 ] Under the 1992 Municipal Plan, an owner shall not substantially expand a non-conforming use if the use does not comply with the intent of the Plan, or the designated use. I find that Lakewood’s expansion of the number of campsites and the overnight seasonal use complies with the intent of the policy statement contained in the 1992 Municipal Plan. [ 35 ] However, there is no evidence that the Province offered overnight camping prior to Lakewood’s acquisition in 1997.

Thus, Lakewood’s overnight seasonal camping and the expansion conforms to the policy of the plan but not the designated use. However, I find that an expansion of the campsite from 35 day-use to 50 overnight campsites is not a “substantial” expansion.

[ 36 ] Finally, section 108(3)(

f) of the Act does not apply to any expansion or change of use after January 1, 2000, because there is no evidence that the nonconformance “is with respect to the standards included in development regulations ….” [ 37 ] Therefore, Lakewood did not require the Town’s permission for either its post-1997 overnight seasonal use, or for its 1997 to 2002 expansion from 35 to 50 campsites. That use and expansion is therefore a permitted non-conforming use. Even if Lakewood required the Town’s permission, the Town gave it.

I will discuss why I say this later in this decision. [ 38 ] However, there is no evidence that Lakewood provided all-season camping between 1997 and 2002. I will now turn to the change from seasonal to all-season use and Lakewood’s post-2002 campsite expansion. Lakewood’s Post-2002 Expansion and Use [ 39 ] Lakewood’s rapid expansion of the Marine Park almost all occurred after 2002 and before the adoption of the 2020 Municipal Plan.

I illustrate the expansion below: [12] Year No. of Campsites Year No. of Campsites 2006 50 2014 1 st permit 2009 65 2015 spring 280 2011 1 st serviced all-season campsites 2015 fall 320 2012 140 2016 320 2013 200 2017 360 2014 230 By 2020 400 Post-2003 Regulatory Framework [ 40 ] The 2003 Municipal Plan and 2003 Development Regulations govern development during these years.

Section 108 of the Act continues to apply after 2002. [ 41 ] This Plan contained the same policy statement as the previous plan, being, “Marine Drive Park is located within the Town of Pouch Cove. It shall be the Policy of this Plan to encourage and support the development of recreational facilities within the Park boundaries ….” [13] [emphasis added] [ 42 ] The 2003 Municipal Plan says, “Nothing in the Plan shall effect the continuation of a use which was legally established on the day this Plan … came into effect.

Where a building or use exists which does not comply with the intent of the Plan and the designated use or standards … it shall not be substantially expanded. Minor extensions may be approved provided there will be no adverse affects on surrounding properties or the environment.” [14] [emphasis added] [ 43 ] Lakewood’s overnight seasonal camping is already a permitted nonconforming use.

I find that Lakewood’s expansion of the number of campsites for all-season use complies with the intent of policy statement contained in the 2003 Municipal Plan. [15] However I still must consider whether it such expansion and use remains a permitted nonconforming use under the 2003 Development Regulations. [ 44 ]

Section 7 of the 2003 Development Regulations still provided no person would carry out a development unless the Town issues a permit. [16] [ 45 ] The 2003 Development Regulations slightly changed the definition of non-conforming use by saying, “[A] legally existing use that is not listed as a permitted or discretionary use for the use zone in which it is located or which does not meet the development standards for that use zone.” [17] [ 46 ] Section 49(1) of the 2003 Development Regulations says, “Notwithstanding the Municipal Plan [or] … regulations the [Town] shall … allow a development or use of land to continue in a manner that does not conform with a regulation … or plan that applies to that land provided that the non-conforming use legally existed before” the effective date of such plan or regulation. [18] [ 47 ] Section 49(3)(

a) now says, “A building, structure or development that does not conform to a … plan or regulations … that is allowed to continue … shall not be internally or externally varied, extended or expanded unless otherwise approved by the [Town].” [19] [emphasis added] [ 48 ] Thus, unlike the 1992 Development Regulations , the 2003 version includes developments other than buildings and would therefore include expansion of campsites in the Marine Park.

They also allow the Town to approve expansions of non-conforming uses from seasonal to all-season camping. [ 49 ] The parties did not give me the zoning maps for the 2003 Municipal Plan. I cannot say then whether the Town included the Marine Park in the zone maps.

However, the Town again included its recreational open space zone in the 2003 Development Regulations . [ 50 ] Permitted uses in that zone now allow for “Recreational open space and outdoor assembly” while Discretionary Use Classes were “Amusement, taxi stand, antenna, take-out food service, and convenience store”. [20] Again, camping is not one of the uses. Under

section 91 of the 2003 Development Regulations , the Town does not permit a use in a use zone if the use it not listed in the land-use table. [ 51 ] Section 49(3) of the 2003 Development Regulations governs Lakewood’s 2002 use, as it is an extension of a prior use. [ 52 ] Therefore, Lakewood must obtain the Town’s permission to both expand the number of campsites and to offer all-season camping. Did it do so? To answer this question I will consider what the Town and Lakewood did, and did not do, from 1997 to 2020.

Town’s Actions Post-2002 [ 53 ] Until 2007, Lakewood operated under a series of five-year short-term licenses. This also explains the slow pace of Lakewood’s expansion. It is difficult to finance the capital expenditures when an investor must amortize them over five years. Lakewood’s expansion of the Marine Park accelerated after 2008 when it acquired a fifty-year leasehold interest. [ 54 ] In a perfect world, Lakewood would have applied to the Town for permits each time it undertook development activities, and if it did not, the Town would act to stop developments until it did.

However, the Town maintained a light regulatory footprint after Lakewood acquired the Marine Park. [ 55 ] In theory, the Town governed its relationship with Lakewood through its Municipal Plans and Development Regulations .

I say in theory because from 1997 to 2014, Lakewood did not seek, nor did the Town require, approvals for most of the development activities for the Marine Park. [ 56 ] Despite this lack of oversight, in October of 2010, when the Marine Park had about 65 overnight campsites, the Town gave Lakewood a “Municipal Compliance Certificate” [21] confirming the Marine Park: (a) “Is designated in the … Municipal Plan for commercial use, and as far as is known [Marine Drive Park] complies with the policies of the Plan”; (b) “Is zoned in the Town … Development Regulations as commercial and as far as is known complies with the requirements of the regulations”; (c) “As far as is known complies with the Town’s Building Regulations”; and (d) “Has no outstanding Work Orders issued against it by the Town”. [ 57 ] In 2011, Lakewood installed all-season water and sewer and electrical service to 50 of these campsites.

Lakewood increased the number of campsites from about 230 in 2011 to about 400 today. More than 300 are suitable for serviced and unserviced all-season camping. [ 58 ] The Town’s lack of oversight began to change after 2013 when it issued a number of permits for a variety of ancillary businesses and improvements. Lakewood did not request, nor did the Town require, permits for Lakewood’s expansion of the number of campsites, all-season use, or an overall business permit. [ 59 ] In April 2016, Lakewood gave the Province a “Revised Business Plan” to support conversion of the lease into a freehold.

In December 2018, the Province conveyed the freehold to Lakewood in exchange for $675,876.44. [ 60 ] Lakewood said in its Business Plan that it had invested more than $4 million into the expansion of Marine Park.

It said that beginning in 2011, Lakewood enabled serviced all-season camping by installing 50-amp electrical service and year-round water service. [ 61 ] The Business Plan referred to Lakewood’s future development plans and its intent to increase the number of camping sites from 400 to more than 600, while improving ancillary facilities. [ 62 ] The Business Plan further provided that, “Another key component of Lakewood’s development plan would be to continue to transform Marine Park from a RV Park and day beach, utilized predominantly in the summer, to a four-season ecotourism resort destination.” [22] [emphasis added] [ 63 ] Despite the lack of permitting, the Town supported Lakewood and its activities.

For example, in October 2018, the Town submitted a “Funding Response to [Department of Tourism, Culture, Industry and Innovation] TCII Cellular Service Pilot Initiative Call for Proposals” by which it applied to the Department for funding to enhance cell service for the Park (Funding Response). [23] [ 64 ] The Funding Response included the Town’s endorsement of Lakewood’s activities. The Town acknowledged that the Marine Park is a fully serviced RV campground with over 400 campsites available.

It said that it is the largest campground in the Province.” [24] It said that the Marine Park is an “ all-season campground with campers and staff on the property 365 days per year .” [25] [emphasis added].

Thus, the Town knew that Lakewood offered all-season camping in Marine Park. [ 65 ] The Town said that the cellular project and associated services “are a critical requirement for more than $1.5 million dollars of private investment in job-creating projects in the Marine Park area .…” [26] It referred to Lakewood’s plans to expand the services by adding dedicated tent sites, glamping sites, rental trailers and rental cottages. [ 66 ] Thus, the Town supported Lakewood’s all-season operations in the Marine Park.

The Town took no action to prevent all-season camping or Lakewood’s development activities, including the expansion of the number of campsites. Furthermore, it took little action to ensure that Lakewood complied with the Town’s permitting requirements. [ 67 ] By 2020, Lakewood continued its business of leasing campgrounds. Its standard form all-season lease for the 2021 - 2022 season requires tenants to agree, “to use the premises for camping ONLY”. [27] The lease has no seasonal restriction. Rent for the site ranges between $3,050 and $3,650 a year.

Lakewood also rents sites for the summer season - May 19 to September 15. This lease has a similar restriction of use for camping only. [ 68 ] Lakewood did not submit an application for approval of its entire operation until June 2020. Lakewood made this application in response to the Town’s February 19, 2020 “Internal Business Permit Analysis Paper.” [28] [ 69 ] The author of the Analysis Paper described the expansion of the Marine Park up to 2017. He described that the Town issued a number of building permits, as I have discussed earlier in this decision.

[ 70 ] The author acknowledged that Lakewood had not applied for, nor had the Town insisted on, a general business permit, when he said, “One thing we do not seem to have is an overall business permit issued from the Town to Marine Park.” [29] [ 71 ] The Analysis Paper said, “The way that this should work is that Marine Park should have an application for a business permit on file where a business plan is submitted that outlines all the actual or desired uses by Marine Park .

Then, once an overall permit is issued, individual building permits can be requested and issued provided that they align with the overall business permit.” [30] [emphasis added] [ 72 ] In what appears to be a quote from a communication with Lakewood, the author states, “I would like to get this properly organized going forward. As a starting point, would you be able to send me your most recent comprehensive business plan (or multiple plans) that identify all of the ongoing and proposed uses (or lines of business) operating within your park?

I intend to take this and discuss with council to determine the best way forward at an upcoming committee meeting on Monday April 27, 2020.” [31] [emphasis added] [ 73 ] Thus, beginning in 2020, Lakewood and the Town settled into a more conventional regulatory environment.

By the summer of 2020 it seemed that the Town had a plan to regularize its relationship with Lakewood and the Marine Park and begun the process to approve activities in accordance with its Municipal Plan and Development Regulations , if “they align with the overall business permit”. [ 74 ] However, Lakewood’s relationship with the Town came under strain because of the COVID-19 pandemic when the Province closed provincial parks.

The Province allowed people camping in mobile homes in the Marine Park to stay there. [ 75 ] The Town was concerned because, it says, some of these residents became permanent residents of the Marine Park. [32] This was a problem because the Town says that any mobile homes used as permanent residences might not meet the appropriate regulations: [33] Furthermore the Town says: (

a) the roads in the campground were not constructed and maintained to the appropriate standard; (

b) while Lakewood snow cleared, the Town does not enforce it to any standard; and (

c) the campsites occupied by permanent residents have no visible address. [ 76 ] The Town did not provide any indication of what standard or regulations it refers to, but it concedes its biggest concern is emergency service vehicle access to permanent residents. The Town says the issues identified in subparagraphs (a), (

b) and (

c) might impede emergency responders’ access to permanent residents. [ 77 ] The Town offered no explanation why these issues were not a concern prior to COVID-19 when there were all-season campers in the Marine Park. It only objects to people living there permanently. It did not explain how this differs from people who camp year- round. Post-2020 Regulatory Framework [ 78 ] By 2020, Lakewood’s activities were subject to the Town’s 2020 Municipal Plan and its Development Regulations [34] as provided for in the Development Regulations , N.L.R. 3/01 .

While Lakewood substantially completed its expansion by 2020, some aspects of the Town’s regulatory framework after 2020 are relevant. [ 79 ] The 2020 Municipal Plan says, “It shall be the Policy of this Plan to encourage and support the development of private recreational and commercial facilities within the Park boundary.” [35] [ 80 ] The 2020 Municipal Plan says, “It is a policy of Council … to recognize that any development or land use that legally exists on the day this Plan comes into effect, may continue.

Where a building or use exists which does not comply with the intent of the Plan and the designation use, it shall not be allowed to substantially expand. Minor extensions may be approved provided there will be no adverse effects on surrounding properties or the environment ….” [36] [ 81 ] I find that Lakewood’s expansion of the number of campsites and the all-season use complies with the intent of the policy statement contained in the 2020 Municipal Plan. [37] [ 82 ] The Marine Park is now zoned “Recreational Park” in the 2020 Municipal Plan.

It says, “The predominant use of land within the area designated Park shall be for recreational uses and facilities, public, private, and commercial parks, and natural areas.” [38] The Town defined the term in the 2020 Development Regulations , which I refer to later. [ 83 ] “Permitted uses include hotels, motels, tourist cottage, campgrounds, tourist information services, outdoor amusement uses, recreational open space, campgrounds or trailer parks, tourist cabins (rental), outdoor assembly, convenience store, [and] outdoor market for the sale of recreational trailers.” [39] The land-use table identifies permitted use classes as campgrounds, trailer parks and rental tourist cabins, convenience stores, and outdoor markets. [ 84 ] The 2020 Municipal Plan has no restriction on all-season operation of the Marine Park. [ 85 ]

Section 7 of the 2020 Development Regulations still provided no person would carry out a development unless the Town issues a permit. [40] [ 86 ] The 2020 Development Regulations continues the 2003 Development Regulations ’ definition of non-conforming use, which says, “[A] legally existing use that is not listed as a permitted use or discretionary use for the use zone in which it is located or which does not meet the development standards for that use zone.” [41] [ 87 ] The 2020 Development Regulations define the Recreational Park zone’s permitted use classes as “Recreational open space,

campgrounds or trailer parks, tourist cabins (rental), outdoor assembly, convenience store, [and] outdoor market”. [42] [ 88 ] It defines “seasonal recreational park” as “any area designated as a recreational park typically operating from May to October for the purpose of picnicking, overnight camping or use of recreational vehicles (RV) by the general public.” [43] [emphasis added]. Presumably, the designating entity is the Town.

This definition is relevant because it further says, “[a] RV Park or Campground shall have the same meaning.” [44] [emphasis added]. [ 89 ] Section 49(1) and 49(3) of the 2020 Development Regulations dealing with non-conforming use carry over from the 2003 Development Regulations. Town’s Approval of Non-conforming Seasonal Use [ 90 ] Perhaps because COVID-19 crystallized Lakewood’s permitting issues, in 2021 the Town finally issued the Business Permit.

The Town, by issuing the Business Permit, in effect approved Lakewood’s development activities from 1997, its expansion of the number of campsites, and its overnight seasonal use of the campground. [ 91 ] However, it also stipulated that Lakewood must close the Marine Park annually from October 31 to May 1. Furthermore, it provided that “[w]inter lodging is strictly prohibited”. [45] This is the first time that the Town purported to restrict Lakewood’s all-season operations. [ 92 ] The Town did so because of the seasonal restriction on a “Campground” contained in the definition of that term.

The Town included this restriction in other ancillary permits it subsequently issued. It did so despite previously asking Lakewood to identify “ all of the ongoing and proposed uses (or lines of business) operating within your park”. [46] [emphasis added] [ 93 ] The Town could not have issued this Business Permit without approving the expansion of the number of campsites under section 108(3)(

a) of the Act and sections 49(3)(

a) of the 2003 Development Regulations and the 2020 Development Regulations .

As it approved the expansion, the expansion must have met the “standards” in the various Development Regulations . [ 94 ] Thus, the Town says that while it had not previously approved Lakewood’s camping expansion from 1997 to 2020 for seasonal camping, it now approves its May 1 to October 31 seasonal use because it issued the Business Permit in 2021 and thereby retroactively ‘cured’ Lakewood’s failure to comply with the Town’s regulations. [ 95 ] Therefore, it is now clear that the Town has approved Lakewood’s expansion of the number of campsites and permits their seasonal overnight use. [ 96 ] I now turn to whether the all-season camping at the Marine Park is a non-conforming use.

All-Season Camping and Non-conforming Use [ 97 ] The Town does not oppose all-season camping but is targeting permanent residency indirectly.

Indeed the Town’s Chief Administrative Officer made this clear when he said in his Affidavit, “The Town’s prohibition of winter camping … was intended to address permanent residency in the Campground.” [47] [ 98 ] He continued and said, “Assuming that Lakewood can maintain a valid building permit and can submit to the Town a satisfactory plan for winter operations to address fire and life safety issues and also prevent permanent residency, I am not aware of any issue in principle Council would have with use of the Campground in wintertime.” [48] [ 99 ] Thus, the parties present me with a Kafkaesque situation where the Town, rather than impose a condition that targets its real concern of permanent residency, banned all-season camping, an activity it supports.

Thus, the Town relies on a technical

interpretation of its legislative framework, being: (

a) prior to 1997 the Town had no authority over the Marine Park because the Province owned it; (

b) when Lakewood acquired the Marine Park in 1997, there is no evidence that the Province used it for all-season camping. Thus Lakewood did not inherit a non-conforming use as defined under the 1992 Municipal Plan and section 108(1) of the Act (for use after January 1, 2000); (

c) as the Province did not use the campground for all-season camping in 1997, Lakewood should have obtained the Town’s permission and a municipal permit under the applicable Development Regulations for such change in use; and (

d) as Lakewood did not obtain a municipal permit, any later use for all-season camping cannot be non-conforming because the use did not predate the Development Regulations . [ 100 ] In the alternative, the Town says that if the Province did use the Marine Park for all-season camping in 1997 (or by extension in 2003, if Lakewood did not require the Town’s permission for expansion up to 2002), Lakewood thereby inherited a non-conforming use and expanded that use without the Town’s approval. [ 101 ] That, says the Town, ends the discussion and therefore I cannot find that all-season camping is a non-conforming use. [ 102 ] From the Town’s perspective, it does not matter that: (

a) the Province mandated development of all-season camping through its RFP; (

b) the Town’s policy statements in the Municipal Plans support the development of recreational facilities within the Marine Park;

(

c) its 1992 Municipal Plan allows expansion of a non-conforming use if that expansion is not substantial; (

d) its 2003 and 2020 Municipal Plans and Development Regulations say that a non-conforming use can be expanded with theTown’s consent; (

e) the Town knew of, and supported, Lakewood’s expansion of the Marine Park yet did not require Lakewood to apply forpermits; (

f) in 2010, the Town issued a Municipal Compliance Certificate when it knew of Lakewood’s expansion and use of the MarinePark; (

g) Lakewood’s campground lease says that Lakewood’s customers agree to use the campsite for camping only; (

h) the Town, in the Funding Response, applied for funding for a cell phone expansion based in part on Lakewood offering all-season camping; (

i) the Town, beginning in 2014, issued ancillary permits (as I referred to in paragraphs 5 and 58 of this decision), withoutimposing seasonal restrictions; and (

j) the 2020 Municipal Plan land use zoning table allows Lakewood’s use of the Marine Park land for campgrounds, trailerparks, and rental tourist cabins.

It did not restrict all-season operations. [103] What does matter, says the Town, is that the legislative framework does not allow Lakewood’s all-season camping as non-conforming use. [104] If I were to accept the Town’s argument that it could restrict Lakewood’s all-season use, the Town could have used the samearguments to restrict Lakewood’s expansion from the 35 seasonal day-use campsites that existed in 1997. [105] The Town may have been aware of this problematic outcome when, in the Business Permit, it cured Lakewood’s permittingdeficiencies.

It retroactively approved Lakewood’s seasonal overnight campsite expansion. However, it decided to exclude Lakewood’sall-season camping, in what it admits is an indirect attempt to restrict permanent residency. [106] If the Town had concerns relating to permanent residents, including snow clearing, winter access by emergency vehicles ormobile home standards, it did not address them. It indirectly dealt with these concerns by prohibiting all-season camping, an activity itencourages and supports. [107] I find that the Town approved Lakewood’s non-conforming use of the Marine Park for all-season camping.

The Town had alreadyapproved the expansion and use of the Marine Park under section 108(3) of the Act and under sections 49(3)(

a) of the 2003 DevelopmentRegulations and the 2020 Development Regulations because the Town: (

a) did not require Lakewood to obtain its approval of the extension or use, nor did it take action to prevent either the expansion oruse despite it knowing of, and encouraging both; (

b) in 2010, issued a Municipal Compliance Certificate and confirmed that Lakewood complies with the policies of the MunicipalPlan and that the Marine Park complies with the requirements of the Development Regulations; (

c) beginning in 2014, it issued ancillary development permits when it knew that Lakewood offered all-season camping. It isdifficult to conclude that it would have done so if the Town had not already approved the expansion and use; (

d) in 2018, endorsed the expansion and the all-season use in its Funding Response. Again, it is difficult to conclude that it wouldhave done so if the Town had not approved the expansion and use; and (

e) in 2019, asked Lakewood to apply for the Business Permit and for approval of “all of [its] ongoing and proposed uses (or linesof business)”.[49] [emphasis added]. The ongoing use then included the expanded number of campsites and all-season use. This requestconfirms that the Town sought to permit the use it had already approved. [108] The Town knew of, encouraged, and agreed with Lakewood’s all-season camping. Thus, the Business Permit is a writtenconfirmation of the Town’s prior approval of the all-season expansion of use.

All-season camping is a permitted use under the 2020Municipal Plan. [109] Therefore, the Town should not have restricted all-season camping in the Business Permit, as the permit reflects approvals thatthe Town had already made. [110] Furthermore, the Town implemented its decision in the definition of “campground” in the 2020 Development Regulations, whichit says, is “any area designated as a [campground] typically operating from May to October”.[50] [111] Lakewood did not “typically” operate from May to October. By 2021, Lakewood operated an all-season campground.

The Towncannot designate seasonality when the Marine Park operated on an all-season basis before the adoption of the 2020 DevelopmentRegulations. [112] Furthermore,

section 1.3 of the 2020 Municipal Plan requires the Council to develop regulations in strict conformity with thePlan.

Section 4.3 requires the Council to adopt development regulations based on the Plan. [113] In Allen v. Conception Bay South (Town) (2002), (NL SC), 215 Nfld. & P.E.I.R. 88, 644 A.P.R. 88 at para.24 (N.L.S.C. (T.D.)), our Court distinguished between provisions of a municipal plan, which contains “broadly stated policies” and

development regulations that “provide a detailed method of implementation”. [ 114 ] I am not satisfied that the definition of “campground” contained in the 2020 Development Regulations is a “detailed method of implementation” of “broadly stated policies”. [ 115 ] A definition in the 2020 Development Regulations that purports to restrict operations for one-half of each year is a fundamental alteration of the rights associated with that land. If this was the Town’s intention, it should have included this restriction in the 2020 Municipal Plan . [ 116 ] I now turn to some other issues raised by the parties.

Other Issues [ 117 ] I need not deal with Lakewood’s common law rights, as it has a non-conforming use under the Town’s applicable regulatory framework. I also make no findings about: (

a) the Town’s ability to otherwise regulate what is now Lakewood’s permitted non-conforming use including its ability to regulate road standards, signage, snow clearing or winter access by emergency vehicles; (

b) the Town’s ability to regulate “permanent residency”; (

c) the Town’s ability to regulate expansion of the number of campsites in the Marine Park beyond that approved by the Town in the Business Permit; (

d) The Town’s ability to zone a portion of the Marine Park as a conservation zone, as is referred to in Lakewood’s brief at paragraph 15; or (

e) Lakewood’s current appeals of the Town’s actions before the Eastern Newfoundland and Labrador Regional Board of Appeal as is referred to in Lakewood’s brief at paragraph 18. [ 118 ] I now turn to costs. COSTS [ 119 ] Lakewood succeeded. It is entitled to its Column 3 costs according to the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . I will not order Column 5 costs as requested by Lakewood because Lakewood did not agree to narrow the issues in this application until the day of the hearing. Had it done so prior to the hearing, I may have ruled otherwise.

DISPOSITION [ 120 ] I therefore declare that Lakewood’s use of the Marine Park for all-season camping is a non-conforming use. Lakewood is entitled to costs from the Town on a Column 3 basis. _____________________________ ALEXANDER MACDONALD Justice [1] Index of Exhibits, June 7, 2021 [Exhibits], Internal Business Permit Analysis Paper, February 19, 2020 [Analysis Paper], Tab 17 at p. 12. [3] Business Permit, Business Permit Information and Conditions [Business Permit Information and Conditions], at para. 12.

There was an exception for pre-existing leases from January 2021 to May 2021. [12] Supra note 1 at pp. 1-6, Compiled from Analysis Paper. [13] Peach Affidavit, Town of Pouch Cove Municipal Plan, 2003-13 [2003 Municipal Plan], Tab C at p. 24. [14] Ibid. at p. 10. [16] Peach Affidavit, Town of Pouch Cove Development Regulations, 2003-2013 [ 2003 Development Regulations ], Tab D. [17] Ibid. at Sch. A, pp. 7-8. [18] Ibid. at s. 49(1). [19] Ibid. ( 1992 Development Regulations - Equivalent 45(2)). [21] Reply Affidavit of David Snow, November 1, 2021, Tab 1.

[23] Exhibits, Response to TCII Cellular Service Pilot Initiative Call for Proposals [Funding Response], Tab 1. [24] Ibid. at p. 6, 1st para. [25] Ibid. at p. 14, para. (b). [26] Ibid. at p. 4, para. (b). [27] Exhibits, All Season Site Lease, Tab 18 at para. 4. [28] Supra note 1. [30] Ibid . [31] Ibid . [33] Peach Affidavit, pp. 3-4, para. 14. [36] Ibid. at para. 3.1.1.16, p. 19. [37] Ibid [38] Ibid. at para. 3.2.6.1, p. 35. [39] Ibid. at para. 3.2.6.1, p. 35. [42] Ibid. at p.102. [43] Ibid. at pp. 46-47. [44] Ibid. at p. 47. [45] Supra note 3. [46] Supra note 1 at p. 14.