The Alberta Court of Appeal has dismissed a case filed toward the Town the Cochrane by the Cochrane Golf Club.
The decision was filed on June 26.
The appeal by the Cochrane Golf Club (CGC) was regarding a decision made by the King’s Court of Alberta in favour of the Town last year.
In 2007, council approved the development of a condo development, with the condition that a restrictive covenant was established for landowners with property surrounding the golf course would have a voice in any its future developments.
The case involved the CGC applying to remove the covenant that was registered by the Town against the course’s lands. Following a hearing on April, Alberta Court of King’s Bench Justice Barbara Johnston sided with the Town and residents who intervened in the case, and dismissed the application on June 19, 2023.
CGC filed an appeal about the decision on July 13, 2023. The appeal was heard on June 12, which was dismissed by the Justices Patricia Rowbotham, Jolaine Antonio, and Kevin Feehan in Calgary on June 26.
In the memorandum of judgment regarding the case written, the Court of Appeal found the restrictive covenant enforceable.
“She (the original justice, Justice Johnson) held the covenant was not contrary to public policy because this was not a case of ‘zoning for consideration’, the covenant did not fetter council’s discretion, and there was no imbalance of bargaining power between the golf club and the town,” it read. “The chambers judge also found that the restrictive covenant ran with the land.
“In particular, she disagreed with the golf club’s submissions that the covenant created a positive, not negative, obligation, that it did not touch and concern lands of the town and the Riverview residents, and that it was not imposed for the protection of their lands.”
Upon analysis, the court concluded that Justice Johnston’s decision was accurate.
“Review of the chambers judge’s decision shows no errors of law, nor do her determinations of fact, inferences or weighing of expert evidence demonstrate palpable and overriding error.” It read.
It further explained that the restrictive covenant is lawful, not contrary to public policy, and not void. Through the covenant, the Appeal Court justices agreed that it creates rights enforceable by the town and Riverview residents.
“The golf course should not be allowed to take the full benefit of the 2006 agreement for which it bargained, build and sell the multi-family units for an income of at least $3.6 million, and later attempt to escape its corresponding obligations. That would not be a fair or reasonable outcome,” the decision reads.
The analysis outlines that the covenant also runs with the land, and the justices added that even if it didn’t, it would still create contractual rights and obligations between the two parties.
“The covenant is not “spent, unworkable, or obsolete”, and the financial interests of the golf club do not make it so,” it stated. “The covenant continues to do what it was intended to do, which is to generally prohibit further commercial intrusions into the golf course after construction of the multi-family units in 2006, without a significant change in the needs of the town and the support of the residents."
