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HomeMy WebLinkAboutWD-38-86TOWN OF NEWCASTLE REPORT File # e /oq_ Res..: By -Law # e ~,a hEEfING: THE GENERAL PURPOSE AND ADMINISTRATION COMMITTEE DATE: MAY 5, 1986 REPORT #: WD -38 -86 FILE #: SUBJECT: C -27 -8 UPGRADING THE ROAD BETWEEN LOTS 26 & 27, CONCESSION 8, FORMER TOWNSHIP OF CLARKE, TO A STANDARD WHICH WOULD ALLOW YEAR ROUND ACCESS - MR. WILLIAM ALLIN RECOMMENDATIONS: It is respectfully recommended: 1. That this report be received; and, 2. That preliminary improvements be carried out on the road in 1986; and, that funding be proposed in the 1987 Budget to complete the necessary works; and, 3. That the law firm of Scott & Gemmill be advised of Council's decision, ....2 Page 2 Report No. WD -38 -86 REPORT: After considering Report WD -1 -86 regarding the request of the Town to upgrade the road between Lots 26 & 27, Concession 8, Clarke, at the General Purpose and Administration Committee Meeting of January 6, 1986, Council requested staff to obtain a second legal opinion regarding the Town's obligations in this matter. Attached, is a response from the law firm of Irwin Boland Associates on the matter which confirms to the position held by Sims Brady & McInerney in their letter of December 20, 1985 (also attached). Briefly, the legal opinion of the matter would suggest that the Town has a "duty" to maintain their public highways in a condition suitable for the ordinary traffic. For the past twenty -five to thirty years summer maintenance of this road was appropriate, however, now that there is a year round residence located on this road, the appropriate level of maintenance has changed from summer maintenance to year round maintenance. As was noted in Report WD -1 -86 (attached), the Town could maintain that it i is unreasonable for the municipality to be expected to provide such a high level of service to a road which has received only minimal summer maintenance for some twenty -five to thirty years, however, two legal opinions suggest that if we were taken to court over the issue, we would lose the argument. ....3 Page 3 Report No. WD -38 -86 It is, therefore, respectfully recommended that we proceed with the requested upgrading. Respectfully submitted, Gordon J. Ough, P. Eng., Director of Public Works. GJO: jco April 25, 1986. Attachment ` V 6--C ) k WILLIAM G. IRWIN, B.A.Sc., LL.B. BARRISTER, SOLICITOR, NOTARY PUBLIC March 12, 1986 Cul'porafiol-1 of the I•myll ()f 'Newe'ls-t1c, J'ii1Ai,,: Works Dep';,trtint2jit Hampton, Ontario 110E l -ro ,iAR 1 4 1986 TOWN OF NEWCASTI-i PUBLIC WORKS DEP" Attention: R. G. Dupuis, P. Eng., Director of Public Works 1) -,.I '*S I !.: : WHITBY (416) 668-3433 TORONTO (416) 686-0306 CUDDY PLACE 201 BYRON STREET SOUTH WHITBY, ONTARIO Ll N 4P7 Re: Town of Newcastle Obligation To Upgrade the Road Allowance Between Lots 26 and 27 in Concession 8 of the Former Township of Clarke to a Standard Which Will Permit Year Round Access W j I I to your I e t t (2 1 F e b I'Ll- a I- V opinion roust o 11 u r tv I I )I t 11 e Not only is the K a p u s, k ;3 s k I I a s , - ]-i• (II-1. " t " 6 v:J 11 t- hut_ rl I >; c: r Cr "I I ( I I i 1; e t 0 rI IA o I- r O I ,, (-) I'l - I- t_'- I, il- I, 4, C-) " " , ) ", i App-1-il 1919 whit -h I f' (-,I i -1. t )I,. x p I I s r o.x i In o 's I r U u g 11 o u t 1 ate In LIII I i <J r i ti " i4 >n mid thy, 1 f i;:0 of the In 1 1 t t s to 1-) (1, 4) 1 t .11if, Court ,)F Appuzil goef:, uii i.c) .3;Av* y ;---lII [11(;v 1 1 t it d i f" f i c wlii (:-!I b( In. As t 1 1, d i I I try t I "a I' f I C, eXIDctrds t fit Ui t L 1-1 c- ri a t- Ij I f ma i z-] t (' [I 3 It 4. e a I-1 ( I r o t]rt> 11ig1i aII-or t(:> s (I -i t Hie it may %N, C*1 11 b c-- that t It Q n z--i t u r e of the t r a f f i c will so change t It .-1 1.- ordinary t )--,I f f i DI 1V in (:, a n S o In C, I-, h I I S s (-. 11 t Tally d i 1* f (- r (-- n I from Ic r; if f i 1-1 ow I-I I' I contemplated at the time of construction." The Court of At>j;>oNI goes on to say that a municipality must -face the changed conditions and a time may well anise when it is obligatory to .:alter the highway to meet the changed conditions. As was Mr. Sims, I am sympathetic to the arguments which have been raised to the municipality's favour; IlotdF',Vt'r, I 1:00 agree that the municipality has little alternative in light of the changing circumsLances which have developed. In conclusion, I would like to apologize for tine delay in my ? e<: ponse to your inquiry; un f"H unatol y, it was received at t he- commencemout of my two week vacation and hpncp I have not Innen ablo to rr_ ply as promptly as r would hove wi shod, in any erase, I would welcome the opport uH i ! y n7 discussing any of the issuos with you should yUU so dusiro. in th" ;1fpnN im", i have eencl osud my ,account for wery i C t: s to dat n. Yours vul y t rul y, William G. Irwin W G .I . s }, � Encl. . ..•N� `rr11� W��• MEETING: DATE: REPORT #: SUB.ECT REPORT ON CORRESPONDENCE FROM SCOTT & GEMMILL, SOLICITORS ON BEHALF OF MR. WILLIAM ALLIN IN LOT 26, CONCESSION 8, OF THE FORMER TOWNSHIP OF CLARKE REQUESTING THE TOWN TO UPGRADE THE ROAD BETWEEN LOTS 26 & 27 TO A STANDARD WHICH WILL ALLOW YEAR ROUND ACCESS. TOWN OF NEWCASTLE REPORT File # Res. # By -Law # CONFIDENTIAL THE GENERAL PURPOSE AND ADMINISTRATION COMMITTEE JANUARY 6, 1986. WD -1 -86 FILE #: C -26 -8 RECOMMENDATIONS: It is respectfully recommended: 1. That this report be received; and, 2. That the Works Department be directed to allocate funds in the 1986 Budget to upgrade and maintain the road between Lots 26 & 27 in Concession 8, from Concession Road 8 approximately 1.2 km northerly, with upgrading to be to a standard sufficient to provide year -round access. 3. That the law firm of Scott & Gemmill be advised of Council's actions in this matter. ....2 _ .,Page Report No. WD -1 -86 REPORT: On November 8, 1985, the attached letter was received from the law firm of Scott & Gemmill and was directed to the Works Department for a report on November 25, 1985. Files were reviewed and a legal opinion with respect to the Town's obligations was secured. Notwithstanding what would seem to be the position the Town should take, it appears that the legal interpretation is more onerous. Staff's assessment of the situation is as follows: The present owner, Mr. William Allin, recently constructed a residence on lands formerly owned by his father. Many years ago, at a time when both winter and summer maintenance were virtually non - existent on roads where only one home existed, Mr. Allin's family did reside on the property. The house has since been destroyed and for at least the last 25 to 30 years, only minimal summer maintenance has been provided. The standard of maintenance has been consistent with the needs for the use of the road, that being, access to agricultural lands. Furthermore, from discussions with the area foreman it has been determined that even at the best of times, snow ploughing operations could only be carried out on the southerly quarter of the road due to the rough topography of the land and the existence of a steep hill subject to heavy drifting. The length of the road which would require upgrading and maintenance to satisfy Mr. Allin is in the order of 1.2 km or about 3/4 mile. Associated costs would be extremely high, $204,000 based upon Needs Study benchmark costs, $50,000 - $100,000 based upon maintenance reconstruction. ....3 Page 3 Report No. WD -1 -86 In the attached letter from the Town's solicitor reference is made to a similar case which occurred about ten years ago and which has since served as precedent in similar situations. Basically, that case found that once a municipality had opened a road, regardless of any interim period where the standard of maintenance could be reduced, there was a continued obligation to maintain to a standard dictated by the needs of the traffic using it. In our case, there is evidence that that Town opened the road and did provide some form of maintenance. This suggests an obligation to maintain and, owing to the fact that a building permit was issued under the old Clarke Zoning By -law, that obligation is even more pronounced. While it seems unreasonable to expect a municipality to provide a high standard of maintenance over a number of years where that standard was not required, the law as established through precedent, would seem to suggest otherwise. The Town could contest this position through the courts, however, that could result in considerable legal costs and ultimately-no change in the precedent. It is, therefore, recommended that the road be upgraded to a standard sufficient to allow access year round. Respectfully submitted, R.G. Dupuis, ng•, Director of public Works. RGD:jco December 30, 1985. :. _ ,r Communications Direction i R CL1tt (1�cIII lilt ll liarristct::, Sulicitut�, Nut;trics Wallace A. W. Scott, Q.C., B.A., LL.B. David R. Gemmill, B.Sc., LL.B. Timothy W. Johnston, B.A., LL.B. Box 644, SUite 219, Kent Place 189 Kent Street West Lindsay, Ontario K9V 4S5 Area Code 705 324 -1860 324-5181 November 6th, 1985 Town Council, Corporation of the Town of Newcastle, Clerk's Office, 40 Temperance Street, Bowmanville, Ontario, L1C 3A6 L '> NOV 8 t a Y Dear Sirs: Re: Part lot 26, concession 8, property of William Clarence Allin, road allowance between lot 26 and lot 27, Geographic Township of Clarke; Town of Newcastle Please be advised that we are the solicitors for tvilHeam Clarence Allin who resides at the property above -- noted. was issued a building permit with respect to these premises in August Allin access to his over a de 9 lots 26 and 27. In the past, this road allowance was maintained on a e of other year round basis, consistent with the mainten nce as there concession roads in the Township, until such ceased to be year round residents living on the road allowance. At that time, the maintenance of this road allowance was reduced to summer maintenance only, which was consistent with the then current use of the land abutting the road allowance. That situation has now been altered to the extent that Mr. Allin, pursuant to his building permit issued in August of 1984, has completed construction of a single family dwelling on his property known as part lot 26, concession 8, Geographic Township of Clarke, Town of Newcastle. Accordingly, he requires year er the concession between lots round access to his premises ov 26 and 27, Township of Clarke. During the past number of years during which this road allowance received summer maintenance only it has fallen into a state of some disrepair. I am advised by resulted in the concrete culverts being summer grading has lo smashed or pushed utallowancerequirecrepairlor replacement. on the ME 2 _ Tri � 614) In addition, there is apparently no culvert in place at the point at which the road allowance joins onto the County Road, which causes the run-off wn the n iddleho���t'�etroadaallowance, divert itself and rurr Mr. Allin advises causing washing out of the road. in addition, the that to facilitate adequate a water of o ditchingrisp ° requi red. road allowance a substantial anent that over the years this road Further, it is quite app ravel allowance has been lwhich dire hasneed notfbeen substantial and whochtneedgis to be placed on it, year round basis by now greater given its required use on a y Mr. Allin. These concerns of Mr. Allin have been placed before the Works Department in orksfwi'thoa negative response. DMrulDupuis Director of Public W has, in effect, suggested to Mr. Allin that the Works Departmen had no intention of performing any repairs to this road allowance and that if he wished to pursue the matter huisl' °comme�tsodo not through his solicitor. Z trust that Mr. oration for the reflect the attitude of the Council for the he Corp Town of Newcastle. As I am sure you are aware, the Corporation in the Town of Newcastle has a legal obligation to keep Y within its jurisdiction in a state of repair, and in the case of default in so doing it is such default pursaantgto section 284 by any person by reason 302 su amended. of the Municipal Act, R.S.O. 1980, c. Mr. Allin is not an unreasonable man. conHe does not Howeverxpect this road allowance to be put in perfect it is quite apparent that it is in a state of disrepair. He simply requests that it be placed in a state of repairemisescandt to permit him adequate ingress and egress from his p thereafter to be maintained in such condition. Allin's desire that this matter be resolved It is Mr. without recourse to the Courts, but as I am sure to Mr. Allin appreciate this matter is of fundamental imp in the event concerning access to his home and, accordingly, that this matter is ignored we will have no hesitation in seeking redress in the appropriate judicial form. I trust that you will give this matter your immediate attention and we look forward to hearing from you. Yours very truly, SCOTT AND GEMMILL Timoti y W. Johnston �. TWJ;db ccc Mr. Allin Si 1S Brady & McInerney A1titIS,,.LjtS 9. SOLIGITORS I Mr. R. G. Dupuis, P. Eng•, Director of public Works, Corporation of the Municipal Buildings, Hampton, Ontario. LOB 1J0 December 20, 1985 Newcastle, 1). Sins, c, c:. Brmly }, Cornwall - Taylor Robin 1). Sc ►s►► Dear Mr. Dupuis Re: William Clarence Al1in, Part Lot 26, Concession 8, former Township of Clarke, Town of Newcastle of December 18th, 1985 - Thank you for your letter ality's duty to repair and maintain In my opinion the municip the case of Re Guillemet39 Open road is established i1975) 9 0,R. (2d) 735 @ an op uskasing and the Town of Kap rt stated as follows: where the cou ti The obligation on the respondent is to maintain this public highway in a state reasonably sufficient for the requirements of traffic over it, having regard to its lieve itself means. It cannot re aknelw o work on duty by electing not to do liability that and accept the risk of Y It is may arise by reason of its arry out its not free to decide not to crrened and statutory duty and let this op travelled highway fall into a state of dis- repair and thereby interfere with the only access of the applicant to his property rive him of the right to build a lic- to dep It cannot deprive the apP home on it. permit which he seeks ant of his right to the P obligation to keep by deciding to ignore its the highway hwa in repair. The question of whether a defendant municipality has acted reasonably in all of the circumstances of a negligence action involving a highway, with the possible answer that on given case it may be found not the facts of. a . liable . because it has not acted unshould ably in having failed to remove snow,- not be confused,.witutthtolkeep as oads under general statutory d Y 4 i s i .;iw•- X4:1 t;, { : "'" on d,'VN i i� ' streei, air and passable• jurisdiction in rep ' its j what is discussing the application of 738 as The court in al Act stated at page now S. 284 ( 1 ) of The mun is ip follows: duty on the it This section imposes a r this highway respondent to keep in repai to the property of the applicant* leading the whole This obligation exists during year. has been determined Y of maintenance accommodating The standard one Thus, a road a higher to be a relative to a the courts traffic must be maintained road. h volume infrequently a high rural infreq of the standard than a to many y s m athetic that in the While I am compladvanced,p I believe a duty to which you have that there is arguments would hold Year round. final analysis the court to make it passable y repair the road allowance answer Should I trust s your inquiry- that this hesitate to get you have any further questions p lease do not in touch with me. truly, Y u Davi J D. Sims i DJDS:mrs ,1 K _.