Halifax Regional Municipality is headed to court to restore the public’s access to a shrinking beach in Cow Bay.
Silver Sands Beach is a municipal park accessible only by a right-of-way across private property, starting from the parking lot off Cow Bay Road — the one with the big moose.
It was once one of the municipality’s most popular beaches, a “long stretch of fine white sand” that served as a respite from the city even before cars.
But as Tim Bousquet noted in a 2018 Morning File and Magen Lilli Hudak wrote in her master’s thesis at Saint Mary’s in 2014, it’s now just a strip of gravel. That’s because, “from as early as the 1940s, the beach was also the site of commercial resource extraction.” The sand and gravel from the beach was “used for various government construction projects around the Halifax Regional Municipality” from the 1950s through to 1971. By 1966, it was no longer “a fully functional recreational site.”
In 2003, HRM bought the land for the moose parking lot and the beach from a company called Silver Sands Realty Ltd., and it negotiated a right-of-way across the company’s property in between to join the two, allowing public access to the beach. It also negotiated an easement with another property owner on the opposite side for emergency and maintenance access.
At that time, Ross Rhyno was vice-president of Silver Sands Realty, and a year later, he conveyed the property ownership to himself. In 2018, Rhyno added his spouse, Amall Hanna Massey, to the deed. Massey died in January 2022, so the property now belongs solely to Rhyno.
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.”
Harvey wrote that he went to the property in February 2022 and was unable to access the easement, and Rhyno had put up a sign along his fence.
“The sign was made to look like HRM signage and tells the public that the right-of-way is under construction and that the beach is closed and previously included an HRM phone number for people to call,” Harvey wrote.
“However, the sign is not HRM signage and was produced without HRM’s authorization.”
The Halifax Examiner went to the park on Thursday. The gate was locked, and there were several signs, but the one Harvey described seems to be gone. Rhyno appears to have put up his own sign banning dogs, and there’s a plywood sign in front of the locked gate with faded red spray paint reading, “Stay out. Closed.”
Harvey said he and other municipal staff have raised these issues with Rhyno, and he hasn’t opened the gates or removed his items from the path.
“Notwithstanding that HRM has provided the Respondent with more than sufficient time to comply with the directions make the right of way passable, the Respondent has not done so,” Harvey wrote.
“As a result of the Respondent’s action the public have been denied access to the Silver Sands Beach for almost 2 years. The beach is popular all year long for surfers and is a very popular destination for summer swimming.”
Harvey’s affidavit forms part of HRM’s evidence in favour of a court order. It filed a notice of application in chambers last Friday asking a judge to order Rhyno “to remove, within 10 days of the date of the Order, all impediments to the use by HRM and by the public of the right-of-way over Parcel B.”
None of the allegations contained in HRM’s filing has been proven in court. A hearing is scheduled for May 3.
Rhyno’s lawyer, Eugene Tan, told the Examiner he and his client see things differently.
“Our perspective is that there is no land to which the right of way applies that is not under water,” Tan wrote in an email.
Tan attached a recent survey, dated September 2021. He argues that due to coastal erosion and the new high water mark, HRM’s right-of-way no longer leads to the beach, but rather a tiny sliver of land that’s often under water.
“When you look at it, the beach property itself is no longer in contact with the Rhyno property. Any part of the right of way that would have applied for access to the beach is now fully submerged, and the right of way only leads to the property of a third party,” Tan wrote.
“The right of way was never intended itself to act as access directly to the ocean, as this would be inviting the public to use my client’s land for other purposes as well.”
Tan also attached a video “taken by my client showing that there is no actual access.” Presumably the narrator is the late Massey:
It shouldn’t be this difficult to determine if the right of way is submerged under water or not. We need documents detailing the right of way purchased by HRM in 2003, and then we need to compare that to the rebar and the fence post depicted in the video.
If HRM negotiated a right of way submerged under water, I’m sure we’ll find out well after the court hearing on May 3 and after millions of dollars spent. I would hope however that somebody would have thought of that issue.
Any land below normal high tide is considered crown owned. This landowner has been obstinate in refusing to accept the right of public access since the land was bought years ago. It never should have been sold. We are losing coastal access points at an increasing rate due to selfish landowners who feel they have a right to own common use lands. Pretty soon you will not be able to get to any coastal spot due to gates and “no trespassing “ signs.
This is true but also the exact legal boundaries of public and private land across the coast is complex. It may be defined by high-water mark, but in other cases, it’s determined by other factors like the location of a coastline at a specific point in time. You also have to take into account property records, the deal that was negotiated here, comb through all the legalese, etc..
And HRM can’t just send the police out to tear the gates down and appropriate the gear, scrap, and equipment that is in the way? Odd, I thought that was how they did things.
If that were a homeless person the city would be there with equipment and trucks to remove the impediments today!