Limits to Lawful Non-Conforming Uses – Campgrounds, Park Models and Storage Sheds

A recent British Columbia Supreme Court case involving the Columbia Shuswap Regional District and a proposed development of a campground on the shore of Shuswap Lake within the Regional District may be of some interest to local government.

In MM Project Management Services Inc., Re, 2012 BCSC 47 the owner of the campground lands sought declarations of the Court entitling it to protection under section 911 of the Local Government Act over certain non-conforming uses.

Among the orders sought by the owner was a declaration that each campsite within the campground was entitled to have constructed upon it a small storage shed building.  The intention of the owner was then to sell leasehold interests in the storage sheds (199 year leases) with a license for the Lessee to occupy the designated campsite.

The leasehold interest acquired would then be registered on title to the lands, thus becoming an interest that could be bought and sold, and a marketable commodity.

The manner in which these leasehold interests would be created and registered was also intended to take advantage of the exception to the restrictions on subdivision of land contained within section 73(3) of the Land Title Act, in which those restrictions do not apply to a subdivision for the “purpose of leasing a building or part of a building”.

The initial question that had to be answered was whether or not the proposed storage shed buildings could be erected on each campsite as accessory uses or structures to the permitted campground use.

The Regional District’s zoning bylaw defined accessory use as “the use of land, buildings and structures that is subordinate to, customarily incidental to and exclusively devoted to the principal use or single family dwelling with which it relates”. The zoning bylaw defined accessory building as “a detached structure, not used for human habitation, that is subordinate to, customarily incidental to, and exclusively devoted to the use for which it relates”.

The Court concluded that permanently affixed buildings and structures such as the storage sheds as proposed by the owner were not accessory to the permitted campground use under the zoning bylaw, and found that such buildings were not customarily incidental to the camping use allowed.

As a result of this decision, the development utilizing these storage shed structures as intended could not proceed.  Thus, while it became somewhat moot as to whether or not leases of such buildings would be accepted for registration by the Registrar of Land Titles, it is notable that one such lease that was submitted to the Land Title Office had been rejected by the Registrar.  A review process of that decision was underway as of the date of the delivery of the Court judgment.

This case may also be of some importance to local governments that allow recreational vehicles as part of a campground use. Until a later amendment to the Regional District zoning bylaw, Park Model units, which are typically designed for seasonal and more permanent use than other recreational vehicles, were not specifically identified and excluded as part of a campground use.  The Court found that Park Models were akin to recreational vehicles, and as there was evidence of some use of these units prior to the amendment to the bylaw excluding their use, Park Models were allowed on a protected lawful non-conforming basis.  However, the Court clearly pointed out that the protected Park Models could not be permanently affixed to the property, and could only be brought on to the property and used as the other recreational vehicles had been historically. This aspect of the case may be instructive to those local governments who have made no distinction in their zoning bylaws between types of recreational vehicles (including, for example, Park Model units) but may wish to take steps to do so.