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Hamilton landowners face expropriation amid deluge of tourists

Moyez Ladhani and his partner built their dream home in Greensville, Ont., in 2010, but they’ve grown increasingly frustrated with tourists who use a path on their property to reach two waterfalls in the area.

Glenn Lowson/The Globe and Mail

From their front window, Luc Lalonde and Moyez Ladhani overlook one of Hamilton's best views, a cascading canopy of trees in the Spencer Gorge on the edge of the Niagara Escarpment.

The couple bought their property in Greensville – a rural village within Hamilton city limits – in 2010 and built their dream home. The natural landscape is central to the home's minimalist design.

On either side of the house, within a short walk, are two of the area's largest waterfalls, Tew Falls and Webster Falls. Hikers had long been using a path along the edge of the property to travel between them. The path also served as a side trail within the Bruce Trail network.

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After moving in, Mr. Lalonde and Mr. Ladhani continued to allow public access to the pathway. At first, they said, it was just a few people here and there; always pleasant, always sticking to the trail.

But over the years, the trickle became a deluge. Mr. Lalonde and Mr. Ladhani say thousands of people were passing through their land on busy weekends, sometimes picnicking on their property, sometimes leaving garbage. They revoked public access to their land in September, 2016.

Now, to create a new trail to reconnect the waterfalls, the Hamilton Conservation Authority (HCA) is expropriating a piece of the family's land. The agency describes the small parcel in the corner of the property as the size of "two-and-a-half parking spaces."

The expropriation battle is illustrative of the community's frustration with the conservation authority. Greensville residents say a HCA campaign to market its parks to tourists has resulted in complaints, traffic jams, parking battles and increased calls for rescues on nature trails. The continuing tension between people who live there and those who visit is a long way from being resolved.

Mr. Lalonde and Mr. Ladhani are among several area residents who feel overwhelmed by an onslaught of visitors, citing increased out-of-town interest in Hamilton's waterfalls and inadequate infrastructure to accommodate the tourists. They describe their narrow, winding, dead-end road choked with stopped traffic on busy weekends. They say hikers routinely cross their property and have come right up to the house to press their faces against the windows. Once, they say, strangers conducted a naked photo shoot on their property.

"We have a neighbour down the street who was building her house, so it wasn't occupied," Mr. Lalonde said. "They broke in. They used her house as a toilet."

Shannon Kyles, a resident of nearby Harvest Road, says that despite being set back about 140 metres from the road, tourists were regularly walking up the driveway to her house before she installed "no trespassing" signs. She says she walked out of the shower one day to come face to face with two strangers, one walking a dog, on the other side of a large window in her bedroom.

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"I'm taking the towel off and I see two men. Two large men," she said, adding, "I immediately hit the floor but I watched as they casually took a stroll around."

Both Webster Falls and Tew Falls see numerous emergency rope rescues a year, mostly when visitors who leave the marked paths become injured or stranded.

"Ninety-five per cent [of the conservation area visitors] are great, but if you have 3,000 people a day, that's 45 people who are [unruly]," Ms. Kyles said.

The HCA says it doesn't have exact visitor numbers for Spencer Gorge because there are multiple unstaffed points of entry, but it estimates up to 100,000 people visit annually. HCA deputy chief administrative officer Scott Peck says those numbers have been fairly steady over the past five years but appear to be an increase from the years before that.

"It's always been popular, but as with all natural heritage lands, people want to get out and see these areas," he told The Globe and Mail.

Mr. Lalonde and Mr. Ladhani say they terminated their trail-use agreement, which was with the Bruce Trail Conservancy, because they are not satisfied the organization's insurance will cover them if someone leaves the trail and gets hurt on their property. Bruce Trail Conservancy CEO Beth Gilhespy says the organization's liability insurance covers incidents that occur "on the trail," but it would be up to the courts to decide what that actually means.

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"Whether that's strictly on the metrewide treadway, or some distance either side, or even a greater distance either side, it's really hard to know as we haven't had any cases go to court," she said. "It is a bit of a leap of faith. We believe our coverage is very solid."

There are also provincial laws covering people who leave the trail. The Trespass to Property Act imposes fines and damages on trespassers who damage property. The Occupiers' Liability Act shields homeowners and tenants from liability unless they have knowingly placed a hazard on their land.

Those protections don't satisfy Mr. Lalonde because they would still involve a legal hassle for his family.

"Our lawyer said, 'That's all fine and dandy but you still have to defend yourself. You would still have to fight this and you still could be held liable,'" he said.

Mr. Lalonde doesn't want to install a fence between the trail and his house because he believes it would negatively impact the property value. As a counterproposal, the couple offered the HCA a swath of land on the other side of their house for free. This section would run behind the house to the road, instead of along the escarpment brow, and Mr. Lalonde says he would be willing to fence off that area.

Mr. Peck says that land isn't topographically appropriate for the construction of a trail, is too narrow and would end at the road, which hikers would then have to cross. He said the plan is for the trail to use HCA land, a road allowance that cuts through Mr. Lalonde and Mr. Ladhani's property and the small piece of land to be expropriated. He added that HCA will add fencing to keep hikers off the family's property.

"We want to put up a fence that meets their needs and still [allows] the view they have from their property."

This still means hikers passing within close proximity of the family's front yard, but Mr. Lalonde and Mr. Ladhani may not have much choice in the matter. McMaster University political scientist Greg Flynn says that in expropriation proceedings, a landowner's objections are not really part of the process. Prof. Flynn, an assistant professor teaching public law and Canadian government, says that individuals can object on the grounds of whether the land is really needed and the amount of compensation.

If the HCA can prove that the property is necessary to its mandate – which Mr. Peck says includes a "tourism component" – then there isn't likely to be much debate. "The [Expropriations] Act [privileges] the rights of the expropriating authority," Prof. Flynn said. "There is no need to justify it other than [whether] it's part of their mandate. If they need it, they need it."

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