West Van can sell donated parkland, court rules

The B.C. Supreme Court has cleared the way for the District of West Vancouver to sell a piece of land donated on the promise it would be turned into a park.

Any money raised from the sale of a portion of Brissenden Park in Upper Dundarave will be used to purchase more land for park space on the Ambleside waterfront.

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In the late 1980s, Pearley and Norine Brissenden agreed to bequest their sizable, tree-covered property at 2519 and 2539 Rosebery Ave. to the district “to be used and maintained for public park use.”

But after Norine died in 1990, the municipality never developed the land with any park amenities, and successive councils chose to continue renting out the Brissendens’ home to a caretaker.

After consulting with the public in 2017, council sought to vary the terms of the trust, allowing them to subdivide and sell the southern portion of the land to fund the purchase of the last two residential properties on Argyle Avenue. If approved, the lots would be renamed Brissenden Waterfront Park and held in trust.

The district argued the Rosebery lots were too steep and inaccessible to be suitable for a park.

The Attorney General of B.C., which is the guardian of trusts, opposed the sale in court, arguing the Brissendens’ gift was specifically intended to be a neighbourhood park, with the “explicit intention that the trees and natural growth remain, as may be practical.” The AG also took issue with the nearly $500,000 the municipality collected in rent between 1990 and 2018, which was funnelled into the parks budget.

Justice Peter Edelmann agreed that Norine’s will was specific enough that he couldn’t grant the district’s request for a declaration that selling the land would be “consistent with its obligations as a trustee.”

“In my view, the disposition of a portion of the Brissenden property to be developed as residential lots with the removal of a substantial number of trees is not consistent with the purposes of the trust,” he wrote.

But, a section of the Community Charter does state that “the Supreme Court may vary the terms or trusts as the court considers will better further both the intention of the donor … and the best interests of the municipality.”

The AG urged Edelmann to consider West Vancouver’s past conduct, not living up to the terms of the trust for 25 years. It was only because of the province’s prodding that the district installed a trail around the property in 2018, they argued, warning that varying the trust may put a chill on others who wish to donate land in their will.

Edelmann acknowledged there would be some risk of that, but said the district’s proposal strikes the right balance between respecting the trust and abiding by the legislation.

“The district in this case has engaged in the process in a reasonable manner that demonstrates consideration for the intentions of Ms. Brissenden, albeit sometimes at the prompting of the attorney general. While not without dissent, broad public consultation has shown extensive support for the proposed plan,” he wrote.

As for the land, the district argued in court that the Argyle properties would get much more use compared to Brissenden Park now, which only gets about six visitors per day.

In that context, the Brissendens’ intentions can be interpreted more broadly, Edelmann ruled.

“There is no dispute that the waterfront parks surrounding the Argyle properties are regularly used by many thousands of residents of the district. … I accept that the proposed plan takes into consideration the multiple factors that converge in managing a park system for a large urban community. It is a well-documented plan that has been subject to extensive study and consultation, taking into consideration the other park space available to residents in the various parts of the district. I accept that the proposed plan is in the best interests of the district and its residents,” he wrote.

Each of the new residential lots on Rosebery will have a tree protection covenant that states no trees can be removed from the northern 10 feet of the lot, to act as a buffer from the remaining Brissenden Park, and the new Brissenden Waterfront Park must remain as “green space,” that should maintain the natural environment Norine wrote about in her will, Edelmann ordered.

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