HomeMy WebLinkAboutWD-23-88 TOWN OF NEWCASTLE
REPORT File #77� . 117
Res. #
By-Law #
MEETING: GENERAL PURPOSE AND ADMINISTRATION MEETING
(ATE: APRIL 5, 1988
REPORT #: WD-23-88 FILE #:
SUBJECT: DESIGNATION OF STEPHENSON ROAD BETWEEN
CONCESSION ROAD 1 AND KING'S HIGHWAY 401
AS AN "IMPROVED ROAD"
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. That this report be received; and
2) By-Law 86-112 be amended to designate Stephenson Road from
Concession Road 1 to King's Highway 401, as an "improved" road.
3) A copy of this report be forwarded to Mr. Bob Stephenson,
R.R. #3, Newcastle, Ontario, LOA 1HO.
REPORT:
1.0 BACKGROUND
1.1 On Tuesday, March 16, 1988, a meeting was held with
Mr. Bob Stephenson to discuss the status of Stephenson Road
from Concession Road I to King's Highway 401. (Attachment 1)
1.2 At the present time, this road is not shown as an "opened road"
on the Town of Newcastle road map. This map was adopted by
By-law 86-112.
. . .2
w
PAGE 2
REPORT NO. WD-20-88
2.0 THE PROBLEM
2.1 Mr. Stephenson owns land adjacent to this road and he has
plans to build a house on the property.
2.2 Since the Town's Road Map, adopted by By-law 86-112, does not
show the road as an opened road, Mr. Stephenson would be
required, by Town policy (Attachment 2) , to upgrade the
road to the Town's standards, at his expense, before
he would be able to obtain a building permit.
3.0 COMMENT
3.1 Prior to 1959, Stephenson Road between Concession Road 1
and King's Highway 2, was a travelled road maintained
the year round.
3.2 When Highway 401 was constructed, Stephenson Road was
"dead ended" on the south and north sides of Highway 401.
3.3 Since 1959, the former Township of Clarke and since 1974,
the Town of Newcastle provided little or no maintenance
on the road because of the virtual lack of traffic on
the road.
4.0 CONDITION OF THE ROAD
4.1 An inspection was carried out on the road on Tuesday, March 15, 1988.
Although the snow has not been plowed during the winter, the
road was quite passable from Concession Road I to its northern
limit on the south side of Highway 401.
. . .3
PAGE 3
REPORT NO. WD-20-88
4.2 If the road is to become a travelled road again, some brushing
will be required, the ditches will have to be cleaned out,
the road would require grading and some gravel should be added
to the existing service.
5.0 CONCLUSION
5.1 The status of this road is similar to that of Providence Road
(which was dealt with by Council on Monday, March 14, 1988) ) and
of Allin Road, which was dealt with by Council on January 13, 1986.
A copy of report WD-18-88 dealing with Providence Road
(Attachment 3) and a copy of Report WD-1-86 dealing with
Allin Road (Attachment 4) are attached to this report.
5.2 It is,therefore, my conclusion that the Town is obligated to
designate this road as an "improved road" thereby re-establishing
Mr. Stephenson's right to an entrance permit, if he so desires.
It is, therefore, recommended that By-law 86-112 be amended to
designate Stephenson Road from Concession Road 1 to Highway 401
as an improved road.
Respectfully submitted, Recommended for presentation
to the Committee,
Walter A. Evans, P. Eng., Lawrence . Kotseff,
Director of Public Works. Chief Admi strative Officer.
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March 16, 1988
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RE RD. L ES
oRE ATTACHMENT I
TO REPORT WD-23-88,
THE CORPORATION OF THE TOWN OF NEWCASTLE '
.gY-Lam..-�-•-
being a by-law to
establish a policy'for
astle.
unimproved roads in the.Town of Newc
ncil of the Corporation of the Town of Newcastle deems
WHEREAS the Cou policy with respect to unimproved roads within
it expedient to enact a p
the Town of Newcastle;
AND WHREAS such policy includes a quality standard for maintenance of
unimproved roads;
NOW THEREFORE BE 1T ENACTED AS A BY-LAW OF THE CORPORATION OF THE TOW
OF NEWCASTLE AS FOLLOWS: "
1. The policy of the Corporation of the Town of
Newcastle for unimproved.roads shall be as set
out in Schedule "A", attached hereto.
2. The quality standard for maintenance e ntenance in
in
roads shall be a
Schedule "8", attached hereto.
3y-law read a first and second time this'13 day
of February 1984.
,
By-law read a third time and finally passed °this 13 day of February, 1984.
CERTIFIED UNDER THE NANO of TIM..-..--ra.-�-"""' Mayor
CLERK AND THE SEAL Of THE
CORPORA,�ON OF. ,At 1,wx of KwWT X7
of THE CORPORATION Of THE TOYIN OF XVWCASTLE
WILD TIE K (.
1988
- 1Ht 1 Y W MtNGt�LL Clerk April 5,
ATTACHMENT 2
To Report WD-23-f
SCHEDULE
POLICY FOR UNIMPROVED ROADS
v
1.0 GENERAL
em of the Corporation of the Town improved Public
shall
1.1 The road syst
be divided into red Roadseg and eUnopened Roads.
Streets, �lnimpro
1.2
IMPROVED PUBLIC STREETS are streets rio oads under the
jurisdiction of the Province of of the Town of
Municipality c Durham,
Newcastle which are maintained so s allow
seasons •of th vehicular
access to adjacent properties throughout
year, Maintenance of such roads• w re in accordance with
accepted standards for year round roads.
Roads where there is evidence that Public- funds have at some time
1.3 said roads will be designated as
been expended to create, of cuts and
"UNIMPROVED ROADS". Evidence shall include grading of gravel
fills, grading of ditches, culverts, bridges, placement
gth of the road and extended.period of
over a substantial len
time,
,4 UNIMPROVED ROADS are located on municipally owned road,allowances
1 passable sand or
where there exists during the summer season, the Town
gravel roadways that are not fully maintained by rbvided
ut the entire year. The standard of mainte
throughonance p
shall be consistent with the 1 needs
e
er llyber asf normally
specified in
expected to use them and shall g
Attachment # 2.
all owned road allowances, laid out as
1.5 UNOPENED ROADS are muniCip y where there is no evidence
part of the original municipal fundsv to open same, although a
of the expenditure of public exist. No maintenance will be provided
� passable earth trail may
by the Town on such roads.
privately owned
• 1.6 PRIVATE ROADS are travelled roads located vate roads have received
property. In cases where certain private
July 1, 1985, any
some form-Of maintenance by the Town, al and
and all such maintenance shall c nabe and
roduced whereins the Council
binding documentary evidence ca
of the Town of Newcastle or wn i h
ofNe castle has legally r
agreed to
municipalities within the To
perform such maintenance.
2.0 UNIMPROVED ROADS - GENERAL
2.1 The Town will take steps to have all unimproved roads within the
Corporation recognized as "Summer Maintenance Only" roads in the
Road Needs Study to ensure that appropriate subsidies are
realized from the Ministry of Transportation and Communications.
2.2 As part of the process in Section 2.1, the Town will. identi,fy a
category of "Unimproved Roads to be Closed" and inventory the
components of same, such roads not being integral to the Town's
existing or anticipated road system.
2.3 The Town shall , by by-law, close when considered.in the interest
of the Municipality as many as possible of the roads identified
in Section 2.2. The Municipally-owned lands so created will be
disposed of to adjacent land owners at fair market value plus
costs, unless they are considered necessary to the Town.
I,
2.4 Where requested by owners of land abutting an unimproved road,
the Town may, at. the expense of said owners, close by by-law,
fence, .or fence with a gate, and grant road occupancy rights to
said land owners.
3.0 MAINTENANCE OF UNIMPROVED ROADS
3.1 Unimproved roads which have been recently maintained by the Town
will continue to be so maintained in accordance with the
standards specified in Attachment # 2.
3.2 Unimproved roads, which have not recently been maintained by the
Town, shall not have maintenance performed unless such
maintenance is requested by abutting property owners,
Maintenance on.,such roads will be on a demand basis only.
3.3. Maintenance of unimproved roads forming the boundary. between the
Town and an adjacent Municipality will be provided only if agreed
to by that abutting Municipality.
4.0 RECONSTRUCTION OF UNIMPROVED ROADS
4.1 The Town shall not perform construction on .private or unopened
roads.
4.2 The Town shall not reconstruct an unimproved road unless it is
proven that said road is necessary as an integral transportation
link in the Town's improved road system and is recognized by the
Ministry of Transportation and Communications as being eligible
for reconstruction subsidy.
4.3 Where it is proven that the construction of an unopened or
unimproved road is necessary, such construction will be performed
only 'at the expense of others either under a Subdivision
Agreement, the Local Improvement Act or through private.
enterprise, provided that the road .so constructed has said
construction approved by the Council of the Town of Newcastle,
meets the Design Criteria and Standards' of the Town and is in
accordance with the provisions of the appropriate Zoning By-law
and Official Plan.
5.0 CONSTRUCTION OF BUILDINGS ON UNIMPROVED ROADS
5.1 Building permits for buildings to be used on'a year round basis
shall be issued in accordance with the Zoning By-laws of the Town
of Newcastle.
5.2 Where an applicant wishes to construct a building to be used on a
year round basis on an unimproved road, the applicant must
_Y arrange for construction of said road in accordance with the
requirements of Section 4.3 of this policy such that it can be
redesignated as an improved public street..
.r : : •• Cdr. .(�
SCHEDULE "B"
QUALITY STANDARD FOR MAINTENANCE OF UNIMPROVED ROADS
The major objectives are:
- To prevent the spread of noxious weeds to adjacent properties;
- To provide an adequate road driving surface for farm equipment,
The level of service shall not exceed the following:
1. Noxious weeds shall be sprayed if necessary; - ••
2. Roadside grass shall be cut one swath wide, once per year.
3. Roadside debris and litter 'pickup shall be carried out once per year
immediately prior to mowing;
4. Road surfaces shall be graded twice per year, generally once in the
spring and once in the fall;
5. Ditching improvements and gravel spot resurfacing shall be carried
out only if absolutely required as directed by ,the Director of
Public Works;
6. Emergency operations such as removal of fallen trees, replacement of
culverts or washout repairs shall be performed.when practically
possible after the occurrence.
7. Winter control operations shall not be carried out on unimproved
roads.
TOWN OF' NEWCASTLE . ,
. .,
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REPORT File #
Res. #
1,
By-Law #
,
rIN(i: COUNCIL
DATE: MARCH 14, 1988
REPORT #: wD-18-88 FILE #:
SUBJECT: REQUEST BY GORDON BARRIE TO CHAFE THE DESIGNATION OF A
PORTION OF PROVIDENCE ROAD FROM "UNIMPROVED" TO IMPROVED"
RECOMMENDATIONS:
It is respectfully recommended to Council:
A. That By-law 86412, being a by-law to establish a street
name map and a street name inventory for roads in the
Town of Newcastle be amended to change the designation of
Providence Road in Concession II, former Township of
Darlington from "summer road" to "improved road" from
the north limit of the C.P.R. right-of-way to the south
i
limit of the existing improved road.
B• AND THAT a copy of this report be forwarded to
Mr. Gordon Barrie.
. . .2
April 5 , 1988
ATTACHMENT 3
TO Report WD-23-
PAGE 2
REPORT N0. WD--18-88
1.0 BACKGROUND
1.1 In late 1987, Mr. Keith Barrie applied for a permit to
construct a single family dwelling on a parcel of land
located in Lot 4, Concession II, former Township of
Darlington. (See Attachment 2) .
1.2 The building permit application was denied because the
property in question fronts onto that section of Providence
Road which is designated on the Town of Newcastle "Street Name"
map as a "summer road" .
1.3 Section 3.7 of the Town of Newcastle Zoning By-Law prohibits
( the issuance of a building permit unless the lot upon which
the building is to be erected fronts on an improved public
street maintained year round.
1.4 On February 12, 1988 a meeting was held in Mayor Winters office
with Gordon and Keith Barrie to discuss the matter.
Attached is a copy of a letter, dated February 16, 1988,
from Mr. David Sims to Mr. Keith Barrrie confirming the
conversation which took place at the meeting.(Attachment 1)
2.0 DELEGATION By MR. BARRIE
2.1 Mr. Barrie, represented by Mr. Grant, appeared as a
delegation at the meeting of the General Purpose and
Administration Committee held on Monday, March 7, 1988.
2.2 Mr. Grant gave verbal testimony that for many years
Providence Road in Concession II was maintained all year.
His submission was basically that because of this, the
designation of the road should be changed to "improved"
status thereby removing the status of Providence Road
as an impediment to obtaining a building permit.
. . .3
PAGE 3
REPORT NO. WD-18-88
2.3 Mr. Glenn Smith, Foreman at the Hampton Depot has confirmed
that prior to about three years ago, Providence Road
in Concession II was maintained all year. Apparently,
about three years ago the C.P.R. placed an 8 tonne load
limit on the bridge over the C.P.R. tracks. For this
reason, the Public Works Department discontinued snow
plowing of the southerly two thirds of Providence Road
in Concession II.
2.4 At about the same time as the above events occurred,
the Town was in the process of completing the preparation
of a street name and inventory map. It is probable that
it was at this time that the designation of Providence Road
was changed from "improved status" to "summer road" status.
3.0 CONDITION OF THE ROAD
3.1 The section of Providence Road from Concession Street
which is now designated as "summer road" is a relatively
narrow gravel road with poor drainage and without ditches.
3.2 An inspection of this section of road was made on Monday,
March 7, 1988. Although the "summer road" section has
not been plowed this winter, the road was passable.
4.0 CONCLUSION
4.1 The evidence given by Mr. Grant and the fact that
Providence Road was maintained year round until about
three years ago is not disputed. Therefore, it is my
conclusion that the Town has an obligation to continue to
maintain the road year round.
. . .4
PAGE 4
REPORT NO. WD-18-88
4.2 Since there is an 8 tonne load limit on the bridge over
the C.P.R. , it is not prudent to re-designate all of
Providence Road in Concession II as an improved road.
This matter will be investigated further with the goal
of taking the necessay steps to restore all of Providence
road to its previous status of "improved road".
5.0 RECOMMENDATION
5.1 Based on the above, it is recommended that By-law 86-112
be ammended such that Providence Road from the north
limit of the C.P.R. right-of-way to Concession Road 3
is classed as an "improved" road.
Respectfully submitted, Recommended for presentation
to the Committee,
Walter A. Evans, P. Eng., Lawrence E '.\`Kotseff,
Director of Public Works. Chief Admi trative Officer.
:llv
March 9, 1988
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SIMS BRADY & MCMACKIN
,briA OF NEWCASTLE
BARRISTERS SOLICITORS } WORKS DEPT.
February 16, 1988
Mr. Ke Barrie,
R. R . 4 ,
Bo ville, Ontario .
Ll�KS
Dear Mr. Berry:
RE: Town of Newcastle application
for building permit, Part Lot 4 ,
Conc . 2 , former Township of Darlington
The purpose of this letter is to confirm the
conversation which took place at the meeting in the Mayor' s
office on February 12th, 1988 , at which time you, your
father, the Mayor, Mr. Evans , Mr . Edwards and I were in
attendance to discuss the above noted matter .
Your lot fronts on Providence Road in the former
Township of Darlington which has been designated as an
unimproved road for summer maintenance only. Under the
provisions of the Town of Newcastle By-law 84-27 being a
by-law to establish a policy for unimproved roads in the
Town of Newcastle, it is provided that where the
construction of an unimproved road is necessary it shall be
done at the expense of the person wishing the upgrading of
the road. In this regard, Mr. Evans advised you that the
preliminary estimate of the cost of the upgrading of that
portion of Providence Road to obtain access to your property
would cost approximately $66, 000 . 00 .
Ssection 3 .7 of the Town of Newcastle Zoning
By-law prohibits the issuance of a building permit unless
the lot upon which the building is to be erected fronts on
an improved public street maintained year round . An
exception is provided where a lot has been created prior to
the date of the passage of the by-law (which we understand
to be your case) , a building permit can be issued provided a
private right-of-way registered on title provides legal
ingress and egress to an improved public street. At this
time your lot does not front on an improved public street
nor does it have access by way of easement to such a street .
Accordingly, the Town of Newcastle is not permitted to issue
a building permit at this time .
During the course of our meeting a number of
alternative solutions were discussed, such as the granting
117 King Street,Box 358,Whitby,Ontario,UN 5S4 Telephone 668-7704 ATTACHMENT
• Sims BizADY&MCMACKIN
of an easement over abutting property owned by members of
your family or, alternatively, merging the property with
abutting properties and applying for a building permit as a
second dwelling on a farm property . If the latter course of
action is pursued an access permit may be required. In any
event, these alternatives were left with you and the members
of your family to discuss .
Should you wish to pursue this matter further I
suggest that you make your first contact Mr . Edwards and
members of his staff in the Planning Department.
You s ruly,
I }
SDa i J. Sims
p .c . Mr. Gord Barrie
Mayor Winters
( Mr. Walter Evans
Mr . T. Edwards
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REBEL 10 it O
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12 1 9 8 6 5 d 3 2 1
NC. RD. 3
w SECTION OF ROAD
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01 AS "IMPROVED" ROAD
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_ MARCH 14, 1988 D.L.
;• WILM ATTACHMENT 2
�yJ .. RREE
TO REPORT WD- 18- 88
TOWN OF NEWCASTLE
REPOR T
file a
Res. H
By-Law N
CONFIDENTIAL
METING: THE GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
DATE: JANUARY 6, 1986.
RMCRT #: - -1-86 FILE #: C-26-8
SU3.ECT:
REPORT ON CORRESPONDENCE FROM SCOTT E GEMMILL,
MR. WILLIAM ALLIN IN LOT 26, CONCESSION 8, SOLICITORS ON BEHALF OF
OF T
CLARKE REQUESTING THE TOWN TO UPGRADE HE FORMER TOWNSHIP Of
TO A STANDARD WHICH WILL ALLOW YEAR ROUND ACCCESSETwEEN LOTS 26 & 27
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 northerl
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
f
in this matter.
f
April 5 , 1988
ATTACHMENT 4
To Report WD-23-8
Page 2 _
Report No. WO- 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 g g
due to the rough topography of the land and the existence g quarter r of the road
subject to heavy driftin a steep hill
9• 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,
upon Needs Study benchmark costs y 9 $204,000 based
$50,000 - $100,000 based upon maintenance
reconstruction.
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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 fonn 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 ultimate?ly 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.
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November 6th, 198;
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I. Sirs
Re = Part Lot 26, concession 8 , property of
t\'illiam Clarence Allin , road allowance
between lot 26and lot 27 , Geograahic
Township of Clarke; Town of Newcastle
Please be advised that we are the solicitors f
Clarence Allin who resides at the
was or Killiam
issued a bu-ildinc Property above for
He
J permit with respect to these premises
in August e J'L 1984 . Mr, Allin gains
over a deeded right-of-wa access to his property
lots 26 and 27 . Y onto the road allowance between
In the Past, this road allowance was maintained on
Year round basis
concession , consistent with the maintenance Of other
ceased roads in the Township, until such time as there
to be year round residents livin
is roadnallowa�ce wllowance .
At that time , the maintenance of th
to summer maintenance onl
current use Y. which was consistent with the reduced Of the :land abutti
situation n,,has now 9 the road allowance. 1
Pursuant been altered to the extent that Mr. Allin,
to his building permit issued
completed construction of a single issued in August of 1984 , has
Property known as g Y dwelling
Of Clarke Part lot 26, concession °n his
round •' ,Town of Newcastle, Accordingl 8 , Geographic Township
t: access to his premises over the y' he requires year
26 and 27 , to
of Clarke.
concession between lots
Durin
allowance g the past number of
received summer Years during which this road
a state-of..some . maintenance only -it has fallen into
suer disrepair, I am advised by grading has resulted in the concrete ' Allin .that the
smashed.
culverts pon ptheed out of position, culverts# thr being
road allowance require c�edingly• three of the pair or replacement.
• - fl - f
tI or, , f 1," , ,•
( ! . nt ., t wh . �:il rIn• , t , . , . . .. :,t thy
.:; 1 , f: r:,,u�;,' the r .Iri - . .. ,.,r,t Rr,•,c' ,
cautirny w ,shrng (JUL o' tll• ; c I1u ,,t,ce ,
t :
th."t to fac ' � ac'dl .,:; , t1 Al l
t 11.11 advises
r 1 i fate .,dr•,; ;,, :
road ,� low,-,flee , sUli;t ,f:t 1.� ; r: r r't,rt-,,: ! t !; t1:;p •ct, to th(
Further, It is Cusul 11:1` LJfit >; ! t :. „!, „lc; i:• cluired .
allowance 1 li�!'arcrnt that �•. ,: , r.l„ ar: t1
has been in � fis road
to be placed on it , whicr;t tr, not ari,ount of gravel
now greater given its re,4lui -ednuse 'onrl ;dc>nvY and which need is
Mr . Allin , yea. round basis by
These 011CCL-l1S of
t•:ork s Depa r then ' i .,ced be fore
t i:, t its• I the
Director of Public R . Dupuis ,
;� c• ,t
0.'l e . ^tr . DUpuis
it l; nO lI1tL'il.. i.,rl r� ( L1:c, :i•. ,:'l,��;S e artfTll::it
i wi , road allowance
h hi_ s
through . S ;:hcci t ,ut :... . -hc: r;,,, ;_ , : tl,- shOuld do so
olicitor . _
reflect the attitude o: `1i'' t �'` ' Du,>u1S ' comments do not
Town of Newcastle . `ll ' -� i for the Corporation for the
As I am sure you arm ,w _re the Corporation in the Town
Of Newcastle has a legal 01;1igation to keep every Highway
within its jurisdiction in a state of repair , and in the case
of default in so
by any doing it is liable for all damages sustained
person by reason of such default pursuant to section 284
Of the Municipal Act, R. S .O. 1980, C. 302 , as amended.
Mr . Allin -is not an unreasonable man . He does not expect
this road allowance to be put in perfect condition. However,
it is quite apparent that it is in a
simply requests that it be placed in atstatefof repairrsufficient
to permit him adequate ingress and egress from his premises and
thereafter to be maintained in such condition .
It is Mr. Allin ' s desire that this matter be resolved
without recourse to the Courts, but as I am sure you can
appreciate this matter is of
concerning access fundamental importance to Mr. Allin
to his home and , accordingly, in the event
that this matter is ignored we will have no hesitation in seeking
redress in the appropriate judicial form.
I trust that
attention and you will give this matter your immediate
we look forward to hearing from you , i
s Yours very truly,
SCOTT AND GEMMILL
TWJtdb Ti-mob y W. Johnston
ccc Mr. Allin
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M)I.I C) I (1:.1
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G . Dupuis , P• Eny .
Director of Public works,
Corporation of the Town of Newcastle,
' MunIc'i1)aI BuiIdIngs,
i NamPt Of' , On .arto .
i LCIp ljo
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l Re W1 11 Ism Clarence Al l in F ar G
t Lot 2 , �
I Concession. 8, former Township of
Clarke, Town of Newcastle
Thank you for your letter of Dece,-,ber 18th , 1985 .
In my opinion the municipality ' s dut
an open road is established in the ycaoeropair and maintain
and the Town of Kapuskasin Re Guillemette
where the court stated as follows ,9 G R. ( 2 d) 735 @ 739
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
means . It cannot relieve itself of this
duty by electing not to do any work on it
and accept the risk of an
may arise by reason of its default•' It is not free to decide not to carry out its
statutory duty and let this opened and
travelled highway fall into a state of dis-
repair and thereby interfere with the only
access of the applicant to his property and
to deprive him of the right to build a
home on it. . . . It cannot deprive the applic-
ant of his right to the permit which heseeks
by deciding to ignore its obligation to keep
the highway in repair. The question of
whether a defendant municipality
reasonably in all of the circumstances cinda
negligence action invol
a highway, With the Possible answer pair !
the facts of a given case it may be found not
liable . . . because it has not
ably in having failed to remove snow,, should
not be confused with the issue snow' Should
general stntuto duty o keep as to its
y p roads under
117 ZCing Smcet,'$px 3'S8,Whttbp,`Oncul0.Y.IN 5S4 'T
its Jurisd, ctlon rn rr•(,<� 7 : ,nc1 t�:, , able _ ,.
The court
now s . 284 ( 1 ) of The t h:. ,:, , ] r c,,t ,on of what is
follows : Murrrcr (,,,, Act. ,r ,,t-ed at page 738 as
This section imposes a duty on- the
respondent to keep in repair this highway
leading to the Property of the applicant .
This obligation exists during the whole
year.
The standard of m<„ nt < n<,r,c been the courts to be a been determined by
a high relative c>ne . Thu:;, a road accommodating must standard vthaneatruralcinfre infrequently maintained to a far higher
q ntly travelled road.
While I am completely sympathetic to man
arguments which you have advanced,
final analysis I believe that of the
repair theyroadtallo�ancewoulmakeldt that here is a in the
duty to
le year round.
You have
I trust that this answers your inquiry .any further questions plea do q y ' Should
Please in touch with me , not hesitate to get
Y u truly,
l
Dave J. D. Sims
DJDS :mrs
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