Nova Scotia

Halifax driveway dispute case nears costly conclusion

There could finally be a costly conclusion to a right-of-way dispute that's lasted decades. But Susan Sutherland hopes Halifax regional council will give her some leniency when it comes to the $230,000 bill.

Home along Northwest Arm could finally get a legal right-of-way after years of dispute

Susan Sutherland's long walk from the Dingle Tower parking lot with groceries and heating fuel may finally be over. (Pam Berman/CBC)

There could finally be a costly conclusion to a right-of-way dispute that's lasted decades.

But Susan Sutherland hopes Halifax regional council will give her some leniency when it comes to the $230,000 bill.  

Sutherland and her family live at 9 Milton Dr., a landlocked property along the Northwest Arm. But her neighbours, Dr. Charles and Marie Cron, have always blocked any attempt to allow vehicles over their land, Sutherland says.  

Instead, she lugs groceries and heating oil to her home along a public trail and worries about fire trucks getting access to her property, maintaining insurance and even power pole repairs.

"Without a legal means of access, you don't actually have the right to power," Sutherland says

"I have power, but if I ever need a new pole or services, Nova Scotia Power has clear rules and one of them is you need to have a legal access route."

This map shows the right-of-way at the centre of a decades-old dispute. (CBC)
The problems for the Sutherland property began in 1966 when a court ruling extinguished a right-of- way up the hill in back of the property, leaving them with only the public footpath that crosses  the Cron's land.  

Thirty-one years later when an ambulance was denied access by the Crons, Harold Sutherland petitioned regional council for a right-of-way under the Private Ways Act.  

After he died, his daughter re-applied in 1998.  

It took only six months for the commissioner appointed to the case to discover the in-filled lands actually belonged to the Crown under the direct control of the Halifax Port Authority, ending the municipality's role in the situation. 

A few years later the port authority offered Susan Sutherland a 10 year licence for a three-metre wide right-of-way.  

"At the time, I remember making inquiries. Why would it just be a licence? Can it be something  more permanent?" Sutherland recalled. "And I was told at the time you can't give public lands to private  landowners, so I was very grateful for the licence and accepted." 

But just before the licence expired in April 2010, without notice to Sutherland, the federal minister of transportation transferred the title of the land back to the Crons.

They then covered over the gravel road with dirt and planted rose bushes. The Crons also applied to Nova Scotia Supreme Court to have the Private Ways Act quashed. Their case was dismissed in December 2010.

Sutherland petitioned regional council for a second time under the Private Ways Act. But this time she was told the case would not proceed unless she agreed ahead of time to pay for arbitration costs.

Susan Sutherland walking along a public trail to her landlocked home .

"After carrying oil for five years I really felt like it was my only option," Sutherland says. "I was given some assurances that it would be a reasonable amount."

This time around, however, the process took more than three years.

The Crons raised issues of liability if a fuel truck ever slipped off the right-of-way into the Northwest Arm. They also suggested other routes through the back of the property, but estimated costs for those options were up to $350,000.

On November 27, 2013, the commissioner established a 3.6 metre wide right-of-way slightly above the one Sutherland had while she was licensed by the Port Authority. Sutherland made an offer for compensation, but it was turned down by the Crons.

A three-person arbitration panel convened on September 23, 2014. Two months later, it ruled that the Crons should receive money for the value of land used for the right-of-way, plus the loss of value to their property.

The compensation award, including legal fees, totals $168,477.15  The bill for the arbitration process itself is $61,583.52. The case goes to regional council for a final decision.

According to the report by Halifax staff, even if councillors deem the compensation award excessive, they cannot change the amount. They could send it back to arbitration but that could increase the costs to the petitioner.

At this point Sutherland is afraid of losing her home.

"I was born here. It's the only home I know," Sutherland says. "So losing it in this situation is a struggle to think about."

Sutherland says she's willing to pay the compensation to the Crons, but she hopes regional council will waive the arbitration costs, or at the very least place a lien on the property so she can pay it back over time.

"I feel somewhat betrayed by the process. The whole point of the legislation is very clearly intended to balance the rights of neighbouring landowners," she says. "But you've got to be able to come up with a decision that is accessible, otherwise it's not justice at all."

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