-by Anne Farries
A Nova Scotia court has overturned Inverness activist Neal Livingston’s attempt to stop golf course developers from building luxury condos.
In a written decision, Justice Patrick Murray ruled that although past owners permitted public use of the intended site for the condos, next to white-sand Inverness Beach, the owners’ tolerance was not sufficient for him to declare that the land had, as Livingston suggested, been “dedicated and accepted” as a park.
“On balance, I find the evidence does not show a clear intention to dedicate this parcel of six acres for public use,” Murray stated in his 25-page decision. “The primary use through the years was for parking to access the beach.”
Murray presided over a five day-hearing on the matter in late May and issued his decision Tuesday.
In July 2017, Livingston, an Inverness County film maker and maple syrup producer, asked the court to issue an injunction against Cabot Links Enterprises ULC, shortly after Director Ben Cowan-Dewar, one of the prime movers behind the adjacent Cabot Links golf course, obtained rezoning and building permits for the construction of high-end, cottage-style condos on the parcel.
The land lies on the north side of Beach Road #l in Inverness village. Below it, a thin strip owned by the Inverness Development Association separates it from the provincially-owned waterfront.
Until the 1950s, the site was the entrance to coal mines. Decades after the mines closed, the provincial government remediated it and later, for two summers, the federal government paid youth workers to install and maintain picnic tables and playground equipment.
But the playground quickly deteriorated, and Tuesday, Justice Murray stated that he accepted the evidence of former village CAO Joe O'Connor and lifelong resident Gary MacInnis that tourists and residents used the land more for parking than for camping or picnicking.
“Gary MacInnis was a helpful witness who in my view displayed no bias,” Murray wrote. “He said a level spot could not be found on the land. He said the picnic tables lasted only a short time due to harsh weather. He recalled one being taken to the dump.”
The land changed hands several times. In 1969, when the former Town of Inverness dissolved amid high unemployment, it passed the parcel to the Royal Canadian Legion. The Legion transferred it to the Inverness Development Association, a group of volunteer community leaders. At one, point it became part of a trade between the IDA and the municipalit. Eventually, with county approval, the fish-packing plant bought it.
Meanwhile, tourists and residents continued to make free use of the land, sometimes for camping, often as a route to the beach, even as the fish-packing plant came and went.
Livingston’s lawyers suggested that the continued public use of the land helped satisfy a legal test for whether the land had been dedicated to the public.
Their argument was bolstered by a 1986 county resolution that required the fish plant to return the site to public ownership when it no longer required it. However, the county resolution was not recorded on the deed, which the municipal solicitor has never explained publicly.
In his decision, Justice Murray noted, “It was obviously the intention of the municipality to maintain control over future use, as per the stipulation in the 1986 resolution.”
“But the reality is that never came to pass in the deed of conveyance.”
Further, “there is a difference between land being returned to its owner and that owner dedicating the land (as a park),” Murray wrote. “Any intention to dedicate must be followed up with the land being thrown open for public use.”
“An important question is not only how long the (federally-funded playground and picnic) infrastructure remained, but whether it was maintained during that period,” Murray said. “There is very little evidence that it was maintained.”
According to Livingston’s own testimony, “the picnic tables deteriorated, were never replaced, and were forgotten,” Murray said. “By 1984, it seems the use of this equipment had faded, and possibly before then.”
“Eventually, it disappeared but for a couple of tables that are visible at the far end of the property (in a 1984 aerial photo). In these circumstances, the lack of maintenance is telling as it relates to the intention to dedicate the lands as a park.”
Murray also noted that the IDA sought help to convert the land to something that would produce jobs, long before Cabot Links was on the horizon.
“(The IDA) were in negotiations and trying to establish a golf course, even before Mr. Cowan-Dewar arrived in 2004,” Murray wrote.
“There is no question that some amenities were provided on the lands to the benefit of those visiting and accessing the beach from time to time,” he continued. “This included some parking and the use of the recreational equipment. It does not necessarily follow, however, that the provision of these items demonstrates an intention-to-dedicate as opposed to, for example, tolerance extended by these owners toward visitors to the beach.”
“Picnic tables, garbage cans, and fire pits are movable structures, unlike a pier or a gazebo, which are more permanent or fixture-type structures.”
“I therefore find that the recreational use of Inverness Beach, as described in the evidence offer by the applicants (and in some cases the respondents), does not support or found an inference that this piece of land consisting of six acres, was dedicated to the public.”
In a press release Tuesday, Cabot’s Cowan-Dewar said the company welcomed the decision.
“Last year, legal proceedings were brought against Cabot by an individual with a history of opposing our development,” he stated. “At that time, we made the difficult decision to pause construction out of respect for the legal process, our partners and the community members who are directly involved.”
“Yesterday, the court validated our position and we look forward to resuming work on this important project — one that will benefit the community, including local contractors and trades people.
“We are proud to call Inverness home, and to be able to work with the community to showcase this incredibly beautiful area to visitors from around the world.”
The Oran requested comment from Neal Livingston but did not receive a reply.
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