Halifax headed to court over public access to beach in Cow Bay

A long-running dispute over access to Silver Sands Beach in Cow Bay will be heard by a Nova Scotia judge in April.

The Halifax Regional Municipality wants a court order to restore a public right-of-way over private land. The landowner says coastal erosion has made the path unusable.

It's the latest development in a lengthy dispute with the beach's former owner Ross Rhyno, whose home on Cow Bay Road overlooks the beach. 

"The community has been very, very upset, very concerned," said Becky Kent, Halifax municipal councillor for District 3.

"With social media, there's a narrative that the beach is going to be closed forever, that this shouldn't be happening ... And they're right."

The legal dispute has its roots in an agreement from 2003 that saw the municipality buy the beach from Rhyno for $56,000, along with a separate tract for a parking lot.

The two properties were connected by a public right-of-way crossing Rhyno's remaining property to the beach — a rocky spit that separates Cow Bay Lake from the ocean waters of Cow Bay. 

Erosion creates friction

The status of the right-of-way has been the subject of community anger over the years. Rhyno built fences and a garden on either side of the public path and banned dogs because owners weren't picking up after them.

"There was a lot of debris and landscaping done in that area. And slowly over the course of many years, it got choked off to the point where it's just a pathway," Kent said. 

But Kent said the right-of-way has been blocked at both ends since last June.

"It was blocked completely by fences and a trench and a [portable toilet], all under the guise that it was going to deal with some water issues," she said. "In fact, the water issues are never resolved. They left the fence, the access closed."

Kent said the municipality has tried to resolve the conflict privately, but, with summer approaching, a court application is supported by her constituents. 

"They're very happy that they can finally hear and see that the municipality has taken action," she said. 

Landowner disagrees

CBC News contacted Rhyno through his lawyer, Eugene Tan, of the Halifax firm Walker Dunlop.

Tan said his client intends to fight the municipality's application. 

In an email, Tan said that since coastal erosion has swept away most of the municipal easement, only a small triangle of land still connects it with the beach, meaning there is "essentially no actual access," to HRM's land anymore.

Tan provided CBC News with a video he says shows the connecting land was under water during a fall high tide. 

Tan said Rhyno will also argue that HRM has not kept up its end of the easement agreement.

The 2003 agreement of purchase and sale for the property was submitted by Halifax in court documents. 

It shows the municipality agreed to repair erosion damage on the shoreline identified in June 2003, and promised to maintain a $2-million liability insurance policy for the easement. 

Halifax's position

Documents filed with the Nova Scotia Supreme Court show the municipality is asking for an order "declaring the right of HRM and the public to unrestricted use of the right-of-way."
 
It's also requesting a 10-day deadline for Rhyno to restore the path to its original condition, removing all impediments to access, including signage, gates, barriers, construction equipment and a portable toilet.

The municipality is also seeking permission to do that work itself and bill Rhyno if he doesn't comply.

The municipality declined a request to interview staff about the issue. 

In an email statement, spokesperson Laura Wright wrote, "Depending on the tides, the beach may be accessed via the right-of-way. The municipality is exploring opportunities to provide alternative access."

Long-term access uncertain

Kent said HRM is still looking to purchase an alternative route to the beach. 

Kent said if that's not possible, the municipality should consider expropriation. 

"From a municipal perspective, and council perspective, it is absolutely out there as an option," she said.

But Kent hopes a court order will solve the issue first.

A Supreme Court justice will consider arguments from both sides April 19.

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