More than two dozen residents in Queens County plan to take former Halifax mayor Peter Kelly to court over access to what they say is a right-of-way across his property that has been used by the community for decades.
Kelly and Diana Girouard purchased a 4.7-acre property at 112 Eagle Head Rd. in September 2021 and began developing the land in mid-June of this year.
Over the summer, a number of neighbours protested the development on the beachside property, saying it’s harming sensitive wildlife and the environment, as well as blocking public access to Eagle Head Beach.
In late June, Kelly and Girouard, along with an excavation company, were fined for altering a watercourse on the property.
The Region of Queens Municipality revoked the development permit in July, but municipality spokesperson Heather Cook said Tuesday that a new application for a development agreement has since been submitted and approved.
According to a notice of action filed in the Supreme Court of Nova Scotia on Oct. 7, the property owners are preventing neighbours from using the path on the property in Eagle Head, despite it being a “well-marked and commonly recognized right of way.”
The pathway has been used by community members for more than 20 years, the statement of claim said.
“The plaintiffs, their predecessors, and members of the community have made use of the pathway to travel between Eagle Head Wharf Road and Eastern Shore Road and in order to access the beach, the wharf, to visit neighbours, and to attend school and church, amongst other purposes,” it said.
“(They) have used and enjoyed the subject pathway in a continuous, uninterrupted, open and peaceful manner for a period of time well in excess of 20 years, without either consent or permission of the prior owners of the property.
“This use was at all times acquiesced by the various owners of the property, with the exception of the defendants.”
The statement of claim said that last October, one of the plaintiffs had told Kelly that the pathway provided a right of way, to which he allegedly replied: “Not anymore.”
It said there have been “several incidents” in which either Kelly or one of his contractors had told residents to not use the pathway, and that Kelly had asked police to prevent the plaintiffs from using the pathway “on more than one occasion.”
Last month, it said the defendants began pouring concrete as part of a construction effort “which unless restrained by this honourable court, will result in a structure that obstructs the subject pathway.”
The statement of claim said the pathway is connected to a larger trail system in the area, and also includes a bridge that was initially funded by the government and has been maintained by the community in recent years.
“There has been sufficient use of the pathway, including the investment of public funds in the maintenance of the pathway to establish it as a common and public highway … and that the defendant’s obstruction of the pathway is therefore unlawful,” it said.
The plaintiffs are seeking a mandatory order requiring the defendants to remove any obstruction to the path, and an injunction to prevent them from “obstructing, impeding, harassing or otherwise restricting or interfering” with people who want to use it.
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They are also looking for the pathway to be recognized as a common and public highway, as well as damages in an amount to be determined at trial.
Construction work would interfere with path: lawyer
In an email, Kelly’s lawyer, Brian Casey, said Kelly and Girouard purchased the property “seeking to build a quiet home.”
“When Peter and Diana bought, the vendors assured them they were getting good title,” he said, referring to a title free of restrictions.
“Because Peter and Diana did not live on the property in 1990-2010, they don’t know whether some of the claimants are right — that there is an unregistered easement across the property — or whether the vendors are right, that the vendors had good title.”
Casey said there are two other paths across the property that the owners have “no objection” to neighbours using, though he did not say where exactly they were.
“The plaintiffs are arguing that they should have a third path across Peter and Diana’s property. The construction and the work which is required to reinforce the property to prevent erosion from storm surge interferes with that third path,” he said.
“If the vendor was wrong and did not have title to the property, it is not clear why the plaintiffs require three paths across the property.”
The plaintiffs and their lawyer, Robert Grant, have declined to comment further on the legal action. The defendants have until Oct. 22 to file a notice of defence.
Kelly is a former mayor of Halifax who left office in 2012 following multiple controversies.
More recently, he made headlines for being dismissed from his job as chief administrative officer in Charlottetown following accusations he fired senior staff after they brought up issues about financial irregularities at the city.
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