Judge tosses legal challenge against Cabot Links, clears way for condos

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PORT HAWKESBURY, N.S. _ A legal challenge against Cape Breton’s Cabot Links golf resort aimed at blocking the construction of luxury beach front condos has failed.

Local activist and filmmaker Neal Livingston sought to have a 2.62-hectare Inverness property declared as dedicated for public use due to its historical use by the community.

Lawyers for the golf resort — which has received almost $17 million in government loans — opposed the application, saying it purchased the land in good faith from a private landowner.

A Nova Scotia Supreme Court judge agreed with the company, saying there is no evidence of an intent to dedicate the property to public use.

In a decision released Tuesday, Justice Patrick Murray says the recreational use of the beach does not support the conclusion that it was dedicated to the public.

Instead, he says there was a “tolerance extended” by previous landowners towards visitors of the beach.

Murray says the amenities provided to the community, such as picnic tables, fire pits and garbage cans, are “movable structures” and do not convey an intention to dedicate the land for public use.

“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 stated.

“This included some parking and the use of the recreational equipment,” the judge said. “It does not necessarily follow however that the provision of these items demonstrates an intention to dedicate (the land) as oppose to for example, tolerance extended by these owners toward visitors to the beach.”

The land was part of a coal mine until 1958, when it was turned over to the town of Inverness. In 1968, the town gave the land to the Royal Canadian Legion, which a year later deeded the property to the Inverness Development Association.

The deed specified that the lands were to be “used and developed for the benefit of the citizens of the town of Inverness,” according to court documents.

Livingston suggested that the development of nine upscale condos by a private golf resort would run contrary to the intention stated in the deed, and that the land has a long history of being used by the public.

For example, public funds were used to install picnic tables and playground equipment in 1969, and there was public parking available.

Livingston argued facilitating recreational use is a matter of public necessity.

Affidavit evidence by local residents suggested the land was then used by the public, including families who visited the beach to dig for clams, play and swim. Locals would also visit the area for lunch when a canteen was built in the late 1970s.

In 1986, the Municipality of the County of Inverness conveyed the property to Cape Bald Packers, a seafood processor, which in 2011 sold the land to Cabot Links.

According to court documents, the golf resort mortgaged the land using loans in part from the Nova Scotia government and the federal Atlantic Canada Opportunities Agency.

Cabot Links told the court it purchased the land in good faith from a private landowner _ Cape Bald Packers _ and then had the property rezoned through a public development permit process.

The golf resort also presented a number of affidavits from local residents, who said public use of the lands was sporadic and there was no organized use.

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