Newfoundland court overturns Long Pond Harbor appeal
Opponents of the development of a cold store and wharf in Long Pond Harbour, Conception Bay South, had their day in court and lost.
Sunset Key Marina and the Advocates for the Responsible Development of Long Pond Harbor were unhappy with the decision of the Eastern Region Appeal Board last October to dismiss the groups’ appeal against a City Council decision to to authorize the filling of a section of the port for the construction of a cold store and a wharf.
Last June, the Town of Conception Bay South gave its blessing to the application of Omni Marine Services (a subsidiary of Ocean Choice International) for the project.
The group of lawyers took the case to the appeal board.
That council ruled that the province’s interim planning regulations of 2003 apply in this matter, as the property in question was not added to the city’s municipal planning area until June 10, 2021.
The lawyers then decided to file a legal challenge with the Supreme Court of Newfoundland and Labrador.
In addition to their allegation that the Appeal Panel made various errors in its decision, they also alleged that the Panel denied them procedural fairness by refusing to adjourn the hearing of the appeal.
In his ruling on April 6, Supreme Court Justice Garrett Handrigan ruled that the appeal board did not err in its decision and that it treated the groups fairly.
“I have no doubt that those behind the Advocates and Sunset Key are passionately engaged in this process. When I reflect on the history of the relationship between the city, Omni and them, it is clear that they sincerely believe in their cause and do their best to achieve it.
“However, the Appeal Board has a duty of fairness to all who appear before it, including, of course, the Town of Conception Bay South and Omni. Both of these parties are as committed to their cases as the attorneys and Sunset Key are, and the appeal board was compelled to take all interests into account when deciding on the requested postponement.
“His decision to deny the postponement request reflects that analysis.”
Disputes over the development of Long Harbor Pond began in 2018, when the province decided a full environmental assessment was not required for the project.
In his written decision, Handrigan noted the “long and complex history” of the relationship since 2020 on the matter between Omni and the city and involving the Eastern Regional Appeal Board, attorneys and Sunset Key.
He wrote: “Omni has been trying to undertake development in the town of Conception Bay South for at least two years. It has repeatedly revised and modified its plans to meet conditions imposed by all levels of government with regulatory authority over the development area.
“At the same time, it has faced continued challenges from the Advocates and Sunset Key, who have held Omni highly accountable for its compliance with regulatory regimes and stringent environmental standards.”
The defenders have also been criticized for the actions they took in January this year.
In November 2021, the group had appealed a building permit the city had granted to Omni and the appeal board had set a hearing for January 13, 2022.
Handrigan noted, “When all parties filed their documents and briefs with the Appeals Committee, the attorneys withdrew the appeal on January 12, the day before the hearing.”
According to Omni’s statements during the Supreme Court hearing, the failed appeal cost the company “more than $700,000 in losses to Ocean Choice.”
The company also described the appeal as “an abuse of process” and claimed the lawyers simply filed it to “take advantage of the legal stay” that applies while appeals to the board are pending.
After dismissing the case filed by attorneys and Sunset Key, Handrigan also ordered that the two groups be responsible for paying the legal costs incurred by the city and Omni.
OCI awarded a contract in February for preliminary work at the Long Pond Harbor site.
RJG Construction of St. John’s has been awarded the contract to begin construction of a drop-off and parking area to accommodate vehicles during the construction phase of the project.
In a February press release, OCI Chairman Blaine Sullivan said the company was still working to finalize the overall contract for the development “so we will be ready to proceed in a timely manner to minimize disruption to the region. during the high navigation season”.
He added: “As we finalize the contract and plans for the construction phase of the development and have more details regarding timelines and process, we will communicate those plans.”
Sullivan said in an interview last year that the company needed more cold storage space to accommodate the catches of its new trawler, the MV Calvert, and to prepare for the upcoming arrival of additional raw materials from of the opening of a redfish fishery on the east coast.
Sequence of events
- July 13, 2020 – Omni (OCI) applies for a permit from the city.
- August 6, 2020 – Omni is revising its app.
- August 19, 2020 – City issues approval in principle to Omni.
- October 2, 2020 – Sunset Key appeals approval to the Eastern Region Appeal Board.
- January 27, 2021 – Council hears the appeal.
- January 29, 2021 – Council allows the appeal, quashing the approval because the city did not have planning authority over the waters of Long Pond Harbour.
- Feb. 12, 2021 — The city is appealing to the Supreme Court to rule on the council’s decision.
- April 20, 2021 – The Town passes a resolution asking the Department of Municipal and Provincial Affairs to clarify if it had planning jurisdiction over the waters of Long Pond Harbour.
- June 3, 2021 – Omni cancels its request to submit a new Land Use Impact Assessment report.
- June 10, 2021 – The department is implementing Regulation 28/21 so that the 2003 Interim Planning Regulations apply to development within the city limits.
- June 10, 2021 – The department has implemented Regulation 29/21 to have the waters of Long Pond Harbor included in the town’s planning area and subject to the interim planning by-laws.
- June 16, 2021 – Omni is applying to the provincial Department of Environment and Climate Change for a permit to alter a body of water by installing a culvert in Long Pond Harbour.
- June 29, 2021 – City unanimously approves Omni’s revised application.
- June 30, 2021 – The city informs Omni that it has approved its revised application, with several terms and conditions.
- July 9, 2021 – Advocates for responsible development in Long Pond Harbor and Sunset Key are appealing the city’s June 29 approval to the appeal board.
- August 10, 2021 – The Department of Environment and Climate Change issues a permit to Omni to alter a body of water.
- October 20, 2021 – The group of attorneys and Sunset Key ask the appeal board to postpone the appeal hearing scheduled for that day, but the board refuses and the appeal continues.
- October 21, 2021 – Board dismisses appeal.
- October 25, 2021 – Lawyers and Sunset Key are appealing the board’s decision to the Supreme Court.
- October 25, 2021 – Lawyers and Sunset Key file an interlocutory motion for injunctive relief against the city and Omni.
- November 2, 2021 – The city issues a building permit to Omni to construct a harbor embankment, marginal wharf and pier.
- Nov. 3, 2021 – Lawyers are appealing the city’s decision to issue the building permit.
- January 12, 2022 – Lawyers withdraw their building permit appeal. The appeal commission was to hear him on January 13.
- January 14, 2022 – The Ministry of Municipal and Provincial Affairs implements Regulation 1/22, amending the Schedule of the Interim Planning Regulation, 2003 so that only the waters of Long Pond Harbor are subject to it and not all of Conception Bay South. Municipal Planning Area, effective June 10, 2021.
- February 22, 2022 – Omni contractor begins filling part of Long Pond Harbour.
- February 24, 2022 – Attorneys and Sunset Key have sought an interim (ex parte) injunction to stop the filler.
- March 1, 2022 – Supreme Court Justice Garrett Handrigan hears the motion for an interim injunction on an inter partes basis.
- March 2, 2022 – Handrigan denies motion for interim injunction.
- March 16, 2022 – Supreme Court Justice Handrigan hears the case Advocates and Sunset Key v Eastern Region Appeal Board, City of Conception Bay South and Omni Marine Services.
- April 6, 2022 – Handrigan makes his decision.