British Columbia

District ignored late couple's wish to have property turned into a park, lawsuit claims

The attorney general of B.C. has filed a lawsuit against West Vancouver alleging the district has not touched land intended to be turned into a park — and has instead pocketed a hefty profit by privately renting the previous owners' home on the property.

Attorney general alleges West Vancouver rented donated property for profit instead of creating promised park

A sign for Brissenden Park at 2519 Rosebery Avenue. A lawsuit from the attorney general of B.C. alleges the District of West Vancouver has failed to turn the property into a public park as it agreed with its former owners. (Ben Nelms/CBC)

Just below the buzz of the highway running through West Vancouver, B.C., in a neighbourhood packed tight with handsome homes on the hill overlooking Burrard Inlet, Pearley and Clara Brissenden lived on a precious 2½ acres insulated by tall trees.

The married couple had a modest house at the end of a snaking driveway, its mouth marked by a lopsided tin mailbox in the brief gap between hedges, but they left the rest of their property mostly untouched.

The Brissendens agreed they wanted their land to be turned into a public park after they died. They told district officials about their plan and adjusted their wills accordingly.

When Clara Brissenden died in 1990, following Pearley's passing, the District of West Vancouver became trustee of the couple's property.

However, nearly 30 years later — while the Brissendens' land is still stuffed with greenery and marked as "Brissenden Park" — the province says the property is still not a park.

The forest at 2519 Rosebery Ave. in West Vancouver, B.C. The attorney general of B.C. claims the District of West Vancouver has not touched the land intended for a park, but has instead pocketed a hefty profit by privately renting the previous owner's home. (Ben Nelms/CBC)

The attorney general of B.C. filed a lawsuit against the district earlier this month in defence of the Brissendens' wishes, alleging the district has not touched the land and instead pocketed a hefty profit by privately renting the couple's old home out for 17 years.

"None of the physical characteristics of the property … have changed since the late 1980s when the Brissendens made their intention [known]," the lawsuit reads.

The claim says the same tin mailbox still sits askew at the end of the drive.

A 'welcome' addition

The lawsuit filed in B.C. Supreme Court says the district heartily agreed to take the Brissendens' land when the couple proposed the donation in the late 1980s, with officials saying the "welcome" property would be "appropriate" for a neighbourhood space.

The attorney general's office alleges nothing happened in the first decade after Clara Brissenden's death.

Then, in 2001, the notice of civil claim says, West Vancouver rented the home to a caretaker — despite the absence of a park and any need for a caretaker — at a discount from "at least 2001 to 2018," collecting just over $498,219 in rent over that time.

"West Van treated the rent as its own money and not as trust money of the park trust," the lawsuit reads.

Pearley and Clara Brissenden donated their property to the District of West Vancouver when they died, so that it could be turned into a neighbourhood park. (Google Maps)

In 2017, the district applied for permission to vary the park trust. Officials wanted to subdivide nearly half the Brissendens' land into three lots that would be sold to pay for more public-use waterfront land in the nearby neighbourhood of Ambleside.

West Vancouver's application argued the couple's acreage does not work as a public park because it's on a steep hill and inaccessible to any would-be parkgoers, and it's far from transit lines and public parking.

The attorney general opposed the 2017 application.

District response

In a statement Wednesday, the district said it is not taking steps to defend the lawsuit because it has not been served. However, the statement said the district "does not agree with the way in which the attorney general has characterized the events."

The statement described the Brissenden land up the hill as a park, saying it has been upgraded with trails that connect to other routes in the area.

The district said it moved to sell part of the Brissenden property to raise money for the waterfront area so it could "continue providing the best overall park service possible for its residents."

Materials from a structure formerly at Rosebery Avenue, which looks out to the Burrard Inlet. (Ben Nelms/CBC)

It also said the new waterfront parkland, which the district still wants to purchase, would be commemorated as "Brissenden Waterfront Park."

The district also said it "does not agree with the characterization that the district is making a "profit," as it is a public body running on a non-profit basis. 

The province is suing to declare the district in breach of trust for failing to turn the Brissendens' land into a park and for profiting from private rent. The lawsuit also asks any rent money be given back to the park trust.

The province also said the land needs to be turned into a park, as was promised.

None of the allegations raised in the lawsuit have been proven in court.