The municipality has won its court battle to reopen a public path to a beach in Cow Bay.
As first reported by the Halifax Examiner in March, Halifax Regional Municipality went to court seeking an order to restore a right-of-way across Ross Rhyno’s land to Silver Sands Beach:
Over the past few years, as coastal erosion has thinned out the beach property, public access via the right-of-way over Rhyno’s property has become an issue.
As Richard Harvey, manager of parks policy and planning, wrote in a staff report to council last year, the path to the beach “is being compromised by being increasingly moved beyond the bounds of the municipality’s easement. There have also been conflicts between local property owners and users of the easement.”
In April 2021, council voted to direct staff to buy property for a new public access to the beach. That hasn’t happened yet, and the municipality is headed to court to shore up the existing one.
In an affidavit filed in court last week, Harvey said Rhyno has been blocking the entrance to HRM’s easement, known as Parcel B. Harvey said Rhyno has built fences along the property lines with gates blocking public access on both sides.
“Numerous items of personal property (including construction equipment and materials, an outhouse and other obstacles) have been placed on Parcel B which continue to impede travel along the pathway within HRM’s lawful right-of-way. These obstacles and the fence and chained and locked gate have prevented HRM and the public from accessing the Silver Sands Beach for more than a year,” Harvey wrote in the affidavit.
“To best of my knowledge and belief the Respondent is an employee of and/or has an ownership interest in a landscaping and scrap business, and he has been personally engaged in construction work on the property using heavy equipment from the business. The path on Parcel B has been obstructed with construction equipment and used construction and scrap materials since at least 2020. I believe that construction equipment would have been used to pile the mound of soil directly behind the gate.”
The municipality tried to work with Rhyno to get the gate opened, but it was unsuccessful, so it went the legal route. Rhyno’s lawyer argued the receding shoreline had rendered the easement invalid because HRM’s land is so often underwater.
In a decision dated Friday, Justice Denise Boudreau has sided with HRM.
“It is clear to me that the respondent finds this easement to be inconvenient and irritating. He has made many unilateral efforts to rid himself of it; even going so far (and boldly) as to block it altogether,” Boudreau wrote in the decision.
“It is also abundantly clear that he should not have done so, and that he had no authority in law to do so.”
Boudreau rejected Rhyno’s argument about the high water mark.
“In my view, whether the applicant or the respondent is correct about the present location of the high-water mark is not material in the context of the dispute before me. I say this because, even if the respondent is correct, and even if the seawater reaches the end of the pathway at high tide, I remain entirely unconvinced that such extinguishes the easement,” Boudreau wrote.
Rhyno now has to get the path cleared and open “immediately.” If it’s not done “within a reasonable time,” the municipality is authorized to do so on its own. Boudreau retained jurisdiction over the case for 90 days to oversee that process.
In a Facebook post on Saturday, Dartmouth South-Eastern Passage Coun. Becky Kent celebrated the decision.
“This is great news for our community. The judge ordered to reopen the easement immediately with a reasonable amount of time to complete. HRM will give about a week and then take action if Property owner doesn’t,” Kent wrote.
“Please remain patient for this next step. We will be able to get to the beach soon.”