HomeMy WebLinkAboutWD-66-90 UNFINISHED BUSINESS
TOWN OF NEWCASTLE
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REPORT Fi le #It
Res. #
By-Law #
SING: GENERAL PURPOSE AND ADMINISTRATION COMMITTEE
DATE: JUNE 17, 1991
REPORT #: WD-66-90 ADDENDU TILE #:
SECT: REQUEST FROM BEGAS DEVELOPMENTS LIMITED TO OPEN THE ROAD
ALLOWANCE BETWEEN LOTS 18 AND 19, SOUTH OF CONCESSION ROAD 6,
FORMER CLARKE TOWNSHIP (PATTERSON ROAD)
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-66-90 and WD-66-90 ADDENDUM be received;
2 . THAT the request by Becas Developments Limited to open the road
allowance and construct a road to Town of Newcastle standards
between Lots 18 and 19, south of Concession Road 6 , former
Township of Clarke, be approved, in accordance with Town Policy and
subject to the applicant satisfying all conditions of the Town,
financial and otherwise;
3 . THAT the Mayor and Clerk be authorized to execute an agreement
between Becas Developments Limited and the Town of Newcastle to
permit Becas Developments to construct a road on the unopened road
allowance for approximately 484 . 63 m ( 1,590 feet) in accordance
with Town Standards (Attachment No. 7) ;
4 . THAT the Town Solicitor be instructed to prepare the agreement and
that the agreement include, but not be restricted to, .the items set
out in Schedule 'A' (Attachment No. 6) ;
. . .2
L� "7
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REPORT NO. : WD-66-90 ADDENDUM PAGE 2
5 . THAT the Clerk be directed to take all actions necessary to
publicize and give notice of the proposed by-law to establish and
layout the road allowance between Lots 18 and 19, Concession 5,
former Township of Clarke, south of Concession Road 6 for
approximately 485 m ( 1,590 feet) ; and
6 . THAT the applicant, Mr. Peter Caspari, the applicant's consultant,
G. M. Sernas & Associates Limited, Mr. and Mrs . S. Heggie, Mr. and
Mrs . G. Lengyel and Mr. and Mrs. A. Van Belle be advised of
Council's decision.
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REPORT
1.0 ATTACHMENTS
No. l: Report WD-66-90 dated July 9, 1990
No.2: Resolutions made at the General Purpose and
Administration Committee at a Regular Meeting held
on July 9, 1990
No. 3: Correspondence dated January 25, 1991, from Dennis
Hefferon
No.4 : Correspondence dated May 7, 1991, from Dennis
Hefferon
No.S: Minutes of a Meeting Held on April 3, 1991
No. 6 : Schedule 'A'
No. 7 : Cross-section to be Used for the Design of the Road
2.0 BACKGROUND
2 . 1 At a regular meeting held on July 16, 1990, Council passed
Resolution #C-496-90:
"THAT Report WD-66-90 be referred back to staff for
receipt of a legal opinion pertaining to the
financial ramifications to the Town should these
lands change ownership. "
. . .3
REPORT NO. : WD-66-90 ADDENDUM PAGE 3
3.0 REVIEW AND COMMENT
3 . 1 The reply from the solicitor to Resolution #C-496-90 was received
on January 25, 1991 (Attachment No. 3) . Following receipt of the
letter from Mr. Hefferon, a meeting was held on April 3, 1991, with
the owners of property abutting the project and with Mr. B. Kawun,
G. M. Sernas & Associates (See minutes, Attachment No.4) .
3 .2 Discussions held at the meeting on April 3, 1991, indicated that
the following problems still needed resolution:
i
*
TREES: Clause 4
In his letter dated May 7, 1991, Mr. Hefferon advised that the
Town does not have the legal authority to act as the "banker"
for the payment of trees .
Clause 4 of Schedule 'A' has been amended to provide that the
monies be paid directly by Becas Developments to Mr. and Mrs.
S. Heggie & to Mr. & Mrs. A. Lengyel.
Also the amount has been revised from $14,000 to $15,729 to
allow for inflation and the G.S.T.
* Installation of an Entrance and Gate Into the Heggie Property
It was agreed that an entrance and a gate shall be constructed
at the Heggie property at a location to be determined by Mr.
Heggie.
* Location of the Centreline of the Road
It was agreed that the centreline of the road will be
constructed on the centreline at the road allowance.
Schedule 'A' has been amended accordingly.
* Alignment of the Fences
It was agreed that the fences shall be constructed on the
property line/limit of the road allowance and shall not
deviate from the property line to go around trees, boulders,
etc .
. . .4
II
REPORT NO. : WD-66-90 ADDENDUM PAGE 4
* Placement of the Wood, Stone and Topsoil
The locations for the placement of the wood from the trees,
the stone from the fence lines and the topsoil was discussed.
Schedule 'A' has been amended to reflect the agreement reached
on the above items .
* Resolution of Council
The concern raised by Council in Resolution #C-496-90 has been
reviewed and reported on by our solicitor (Attachment No. 3 and
No.5) .
My understanding of the concern of the owners of the abutting
properties is that they believe that the applicant intends to
sell the property which he owns and/or develop a business of
selling water from a spring located on his property.
The owners of property abutting the project have suggested
that a clause be included in the agreement that if the
property owned by Mr. Caspari is sold prior to the completion
of the road construction the agreement be considered null and
void.
They have also suggested that a clause be included in the
agreement to prohibit the applicant from developing a business
of selling spring water from a spring located on his property.
I have carefully considered both these issues and based on Mr.
Hefferon's advice, I am not prepared to recommend that a
clause be included in the agreement to deal with the issues
in the manner requested by the owners of the abutting
properties .
* Advance Copy of Report to the General Purpose and
Administration Committee
It was agreed that all interested parties would be provided
with a copy of this report in advance of the meeting of the
Committee.
. . .5
REPORT NO. : WD-66-90 ADDENDUM PAGE 5
All interested parties have been provided with a copy of the
draft of this report to give them an opportunity to provide
input, have been provided with a copy of the final report and
have been advised that if they wish to appear as a delegation
before the General Purpose and Administration Committee they
must advise the Clerk, Patti Barrie, prior to noon, Wednesday,
June 12 .
Respectfully submitted, Recommended for presentation
to the Committee,
---------------------- -- ---- - -----------------
Walter A. Evans, P.Eng. , Lawrence E Kotseff,
Director of Public Works Chief Admi strative Officer
WAE*llv
May 30, 1991
Attachments
pc: G. M. Sernas & Associates Ltd. Mr. & Mrs . G. Lengyel
110 Scotia Court R.R. #1
Unit 41 Kendal, Ontario
Whitby, Ontario LOE lE0
L1N 8Y7
Attention: B. Kawun Mr. & Mrs . S. Heggie
R. R. #1
Mr. & Mrs . A. Van Belle Kendal, Ontario
R. R. #1 LOE 1E0
Kendal, Ontario
LOE 1E0
Becas Developments Limited
2900 Yonge Street
Suite 902
Toronto, Ontario
M4N 3N8
Attention: P. Caspari
President
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TOWN OF NEWCASTLE
REPORT
Res. #
By-Law #
hEFTING:
GENERAL PURPOSE AND ADMINISTRATION COMMITTEE V
i
DATE: JULY 9, 1990
REPORT #: WD-66-90 FILE #:
SU&JEC'. REQUEST FROM BECAS DEVELOPMENTS LIMITED TO OPEN THE ROAD
ALLOWANCE BETWEEN LOTS 18 AND 19, SOUTH OF CONCESSION ROAD 6,
FORMER CLARKE TOWNSHIP (PATTERSON ROAD)
RECOMMENDATIONS:
It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
1. THAT Report WD-66-90 be received;
2. THAT the request by Becas Developments Limited to open the road
allowance and construct a road to Town of Newcastle standards
s
between Lots 18 and 19, south of Concession Road 6, former Township
of Clarke, be approved, in accordance with Town Policy and subject
to the applicant satisfying all conditions of the Town, financial
and otherwise;
�-. 3. THAT the Mayor and Clerk be authorized to execute an agreement
s between Becas Developments Limited and the Town of Newcastle to
allow Becas Developments to construct a road on the unopened road
allowance for approximately 484 . 63 m ( 1,590 feet) in accordance
:. with Town Standard (Attachment No.5) and the conditions set out in
Schedule 'A' (Attachment No. 3) ; and
-- ATTACHMENT N19 , 1
WD-66-90 ADDENDUM
'LL -
Ili
REPORT NO. : WD-66-90 PAGE 3
2 . 3 The applicant has agreed to enter into an agreement with the Town
to build the road to the Town's standards, satisfy all financial
requirements and comply with all legal requirements . The applicant
has further agreed to perform certain works requested by abutting
property owners as part of the contract.
I
2 .4 There are three abutting property owners on Patterson Road; Mr. &
Mrs. Lengyel, Mr. & Mrs . Van Belle and Mr. & Mrs . Heggie
(Attachment No. 1) . All property owners were contacted to determine
their interest or concerns with respect to opening the road
allowance abutting their properties . All abutting owners
originally objected to the opening of the road and expressed
concerns about the effects the opened road would have on their
properties, both financial and otherwise.
2 .5 Meetings were arranged to discuss those concerns with the applicant
at which time the owners submitted certain requests .
Times and Dates of Meetings :
October 20, 1989 - 11: 00 a.m. Meeting with Mr. Heggie
November 27, 1989 - 2 : 30 p.m. All attended
March 7, 1990 - 2 :00 p.m. Mr. & Mrs . Van Belle (not
available)
Mr. & Mrs . Lengyel
Mr. & Mrs . Heggie
, . June 14, 1990 - 2 :00 p.m. Mr. & Mrs. Lengyel
7 :00 p.m. Mr. & Mrs . Heggie
Mr. & Mrs . Van Belle
4 2 . 6 Public Works is not able to recommend that all requests of the
4 abutting owners be satisfied. However, we have recommended that
} the developer, Mr. Caspari, be responsible to build the road to
the standard set out by the Town and restoration be completed to
a standard the same as if the construction project was being
completed by a contract awarded by the Town. Mr. Caspari has
agreed to supply and perform certain other works requested by the
Y
abutting property owners .
. . .4
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REPORT NO. : WD-66-90 PAGE 5
5) Topsoil
Topsoil not used for ditches will be distributed to adjacent
property owners. The contractor will deposit excess topsoil
on adjacent property owners' land on a location designated by
the owners.
3 .2 The abutting property owners submitted the following requests and
the Director agreed the requests would be dealt with as part of
this report:
1) Replacement of Existing Farm Fence
The existing farm fence is 2-3 metres inside the proposed road
allowance in most areas.
Recommendation:
: It is recommended that Becas Developments Limited replace the
existing fence on both sides of the road allowance with a farm
type fence for the distance of the construction at his
expense. This recommendation is- based on the Town's position
with respect to restoration. If the Town were constructing
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the road and there was evidence a fence existed, the fence
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would be replaced, on the property line, in accordance with
Ontario Provincial Standard 901.01.
2) Fencinct
Y.y That Becas Developments construct a fence along the southern
border of Mr. Heggie's property adjoining the Becas property.
Recommendation:
The Public Works Department does not support this request
because it is external to the construction of the road. It
is therefore, recommended that this be dealt with between the
property owners and not included in the agreement with the
Town. At a previous meeting Mr. Caspari agreed to share the
cost of a mutually agreeable farm fence to be established by
legal survey between the properties.
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. . .6
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REPORT NO. : WD-66-90 PAGE 7
I
It was also agreed that Mr. Lengyel and Mr. Heggie would make
their own arrangements to have the trees supplied and planted
on their property and submit an invoice to the Town. A copy
of the invoice from.the nursery which supplied and planted the
trees will be provided to the Town and that the Town will pay
the nursery.
The $14,000 is to be proportioned as follows:
Frontage of the Lengyel property 990 feet
Frontage of the Heggie property 499 feet
TOTAL 1,489 feet
i .
(- Money available for the supply and planting of trees on
s the Lengyel property is:
� . 990 x $14,000 = $9,308
1,489
} Money available for the supply and planting of trees on
} the Heggie property is:
t' 499 x $14,000 = $4,692
1,489
TOTAL $14,000
:s
Recommendation:
That the agreement with Becas Developments provide for
$14,000, to be paid out by the Town, to Mr. Lengyel and Mr.
Heggie upon receiving a copy of the invoice from the nursery
for the supply and planting of the trees.
3 . 3 The matters of building permits, zoning and future use of Caspari
lands were discussed. Mr. Heggie requested assurance that the
zoning on the Becas property would remain unchanged. The property
owners were advised that all applications for rezoning must be
considered and that no assurance can be given that the use of the
land will not change.
e Q . . .8
REPORT NO. : WD-66-90 9
PAGE 9
6.0 RECOMMENDATIONS
6 . 1 THAT the request by Becas Developments Limited to open the road
allowance and construct a road to Town of Newcastle standards
between Lots 18 and 19 , south of Concession Road 6, former Township
of Clarke, be approved, in accordance with Town Policy and subject
to the applicant satisfying all conditions of the Town, financial
and otherwise;
6 .2 THAT the Mayor and Clerk be authorized to execute an agreement
between Becas Developments Limited and the Town of Newcastle to
allow Becas Developments to construct a road on the unopened road
allowance for approximately 484 .63 m (1,590 feet) in accordance
with Town Standard (Attachment No.S) and the conditions set out in
Schedule 'A' (Attachment No.3) ; and
6 .3 THAT Mr. Kelvin Whalen, G. M. Sernas & Associates, Engineering
Consultants for the applicant, Mr. P. Caspari, Mr. & Mrs. Heggie,
Mr. & Mrs . Lengyel and Mr. & Mrs . Van Belle be advised of Council's
decision.
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CONC. RD. 6
GENE 8 STEVEN RUDOLF St
MARIA HEGGIE HARIETTA
LENGYEL BOT
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REQUESTED
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OPENING BETTY HEGGIE
3-5-079-01
ALBERT VANBELLE
3-5-081 BECAS DEVELOPMENTS
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page 2
WD-22-89
2.0 BACKGROUND
2.1 On September 8, 1988 a letter from Mr. R.D. Webster was received requesting,
on behalf of Becas Development Limited, approval to open the road allowance
between lots 18 and 19 south of the road allowance between Concessions
5 and 6, former Township of Clarke. (See Attachment No.l)
2.2 The request was discussed with Mr. Webster and it was agreed to defer
dealing with the request until early in 1989.
3.0 REVIEW AND COMMENT
3.1 At the present time, the property owned by Becas Developments Limited
(Refer to sketch attached to letter from Mr. Webster) is land locked and
, a building permit cannot be obtained until the road is constructed,
to the Town's standards, from the road allowance between
Concession 5 and 6, southerly to his property.
3.2 In his letter, Mr. Webster states that his client is prepared to complete
3-}r� n�^i-ssary engineering, complete construction to the standards of the
'~ -•!- , w-7bioiny applicable drainage works, to allow for the insuance of a
buildi.ng permit for the construction of a summer residence on the
above-noted property.
' 3.3 The Planning Department has advised that once the road has been constructed
to the Town's standards, a building permit would be available for a
summer residence.
4.0 RECOMMENDATIONS
4.1 It is, therefore, recommended that the request made by Mr. R.D. Webster
on behalf of Becas Developments Limited, to open the road allowance between
lots 18 and 19, south of the road allowance between Concessions 5 and 6,
former Township of Clarke be approved subject to Becas Developments Limited
satisfying all the requirements of the Town, financial and otherwise.
"- Respectfully submitted, Recom �e,,d. -i •.-)r pr e sen tation
_ to t9' Com ,ttee,
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__ J _t
Walter A. Evans, P. Eng. , Lawrence 1E. 0tseff,
Director of Public Works. Chief Administrative Officer.
i
TOWN OF NEWCASTLE
REPORT File #
Res. #
By-Law #
EKING: GENERAL PURPOSE AND ADMINISTRATION MEETING
i
DATE: FEBRUARY 6, 1989
EPORT #: WD-22-89 ADDENDUM FILE #:
� �• REQUEST FROM BECAS DEVELOPMENTS LIMITED
TO OPEN THE ROAD ALLOWACCE BETWEEN LOT 18 AND 191 SOUTH OF THE
ROAD ALLOWANCE BETWEEN CONCESSION 5 AND 6, FORMER TOWNSHIP OF CLARKE
I 'ECOMMENDATIONS:
t , It is respectfully recommended that the General Purpose and
Administration Committee recommend to Council the following:
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1. THAT Report WD-22-89 ADDENDUM be received; and
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2. THAT Report WD-22-89 be lifted from the table and approved.
REPORT
1.0 BACKGROUND
1.1 At a meeting of the General Purpose and Administration Committee held
L on January 23, 1989, Report WD-22-89 was tabled to permit the addition
of a plan showing the location of the proposed road opening.
2.0 REVIEW AND COMMENT
LF"
2.1 Attached to this report is Attachment No.l which shows the location of
s the proposed road opening and Attachment No.2 which shows the property
ownerships adjacent to the proposed road opening.
- ' 2 5 6 ATTACHPUT NO, 2B . . .2
V IJ-66-90
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� , 25 24 23 22 21 20 9 18 17 16 WD-22-89 ADDENDUM
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SCHEDULE 'A'
1. COSTS
The applicant agrees to pay all costs associated with the
construction of the road.
2. PORTABLE WASHROOMS
The applicant will make provision in the contract for the
contractor to provide portable washrooms for construction
personnel.
3. WOOD FROM TREES
The applicant will make provision in the contract that the
contractor will supply wood cut from the road allowance to the
abutting property owners. The wood is to be cut in four foot (4
feet) lengths and delivered to a specified location satisfactory
to the property owners. The wood is to be divided in equal
portions. to those property owners who request it.
4. PLANTING OF TREES
That Becas Developments provide $14,000 for the planting of trees
on the Lengyel and on the Heggie properties. These funds will be
held by the Town and will be paid to Mr. Lengyel and Mr. Heggie
upon receipt of an invoice from a nursery or other supplier for the
supply and planting of the trees on the property.
These funds are to be distributed in the amount of a maximum of
$9,308 to Mr. and Mrs. Lengyel and a maximum of $4,692 to Mr. and
Mrs. Heggie.
5. TOPSOIL
Topsoil not used for ditches will be distributed to adjacent
property owners. The contractor will deposit excess topsoil on
adjacent property owners' land on a location designated by the
€ owners.
6. STABILIZATION OF LAND
Agreement specifies seed where possible. Sod will be used if
erosion is considered a problem.
t 7. FENCING
�. The applicant will make provision to have a farm type fence erected
in accordance with the Ontario Provincial Standard 901.01 on both
i sides of the road for the distance of the construction.
8. STONE
4,
The applicant will make provision in the contract to have f ield
stone delivered to a specified location satisfactory to Mr. Heggie.
ATTAN E-9 NO. 3
M-66-90
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ALL DIMENSIONS IN MILLIMETRES EXCEPT WHERE NOTED
Town of Newcastle Public Works 0eprtment
CHECKED. CRO S SECTION REVISION Na. 1
GRADING , GRANULAR BASE AND SURFACE D^TE APR. 1988
t:`y AI'Pf20VED TREATMENT
JULY 25, 1988 FOR" RURAL ROADS
G.P.A. Minutes -
__ July 9, 1990
Request from Becas Resolution #GPA 54490
Developments Limited to
Open the Road Allowance Moved by Councillor Stapleton, seconded by Councillor Hamre
y between lots 18 and 19,
South of Concession:;:- !-,THAT Report WD-66-90 be received;
Road 6, former Clarke
Township. THAT the request by Becas Developments Limited to open the road allowance
(Patterson Road) and construct a road to Town of Newcastle standards between Lots 18 and 19,
77.2.150 south of Concession Road 6, former Township of Clarke, be approved, in
accordance with Town Policy and subject to the applicant satisfying all conditions
of the Town, financial and otherwise;
THAT the Mayor and Clerk be authorized to execute an agreement between
Becas Developments Limited and the Town of Newcastle to allow Becas
Developments to construct a road on the unopened road allowance for
approximately 484.63 m (1,590 feet) in accordance with Town Standard
(Attachment NO-5 to Report WD-66-90) and the conditions set out in Schedule 'A'
(Attachment N0.3 to Report WD-66-90); and
THAT Mr. Kelvin Whalen, G. M. Sernas & Associates, Engineering Consultants
for the applicant, Mr. P. Caspari, Mr. & Mrs. H e Mr.
Mr. & Mrs. Van Belle be & Ml's. Lenyel and
advised of Council's decision.
"CARRIED AS AMENDED
LATER IN THE MEETING"
(SEE FOLLOWING AMENDING MOTIONS)
Resolution #GPA-545-90
Moved by Councillor Hamre, seconded by Councillor Wotten
THAT the foregoing Resolution #GPA-54490 be amended by adding thereto:
"THAT Becas Developments construct an entrance to the Heggie property as part
of the road construction contract".
"CARRIED AS AMENDED
LATER IN THE MEETING"
(SEE FOLLOWING AMENDING MOTION)
Resolution #GPA-546-90
Moved by Councillor Hamm seconded by Councillor Stapleton
THAT Resolution #GPA-544-90 be amended by adding thereto:
"THAT the concerns of Mr. J. Lengyel be addressed and trees be protected
whenever possible."
"CARMD"
The foregoing Resolution #GPA-544-90 was then put to a vote and CARRIED AS
AMENDED.
ATTACHMENT NO. 2
WD-66-00 ADDENDUM
i
S hibley Righton
Barristers & Solicitors
RICHARD E.SHIBLEY,Q.C. RUPERT F.RIGHTON,Q.C. HAROLD H.ELLIOTT Q.C. Tel.:(416)363-9381
DENNIS C.HEFFERON JOHN D.BOGART,Q.C. DONALD K.ROBINSON:Q.C.
RICHARD E.ANKA,Q.C. BARRY S.WORTZMAN,Q.C. LESLIE S.MASON Fax.:(416)365-1717
MICHAEL GORDON DEZ WINDISCHMANN JOHN P.BELL
MICHAEL FITZPATRICK,Q.C. GEORGE CORN PETER H.SMITH
BRIAN M.CAMPBELL V'ROSS MORRISON P.JOHN PITCHER
GEORGE A.ROBERTSON ALAN L.BROMSTEIN JOHN C.SPEARN
MICHAEL C.BIRLEY PETER C.WILLIAMS RICHARD A.B.DEVENNEY
MICHAEL L.PATERSON J.PAUL WEARING PAUL E.McINN1S
BERNARD McGARVA PETER G.NEILSON CLIFFORD I.COLE BOX 32—401 Bay.Street
JONATHAN H.FLANDERS CHARLES SIMCO THOMAS A.STEFANIK
BARBARA R.C.DOHERTY WILLIAM L.NORTHCOTE JAMES ROSSITER Toronto,Canada
CAROL A.STREET HELDER M.TRAVASSOS PETER M.WHALEN
PETER V.RAYTEK J.JAY RUDOLPH BRIAN W.CHU
CYNTHIA J.GUNN MARTIN J.HENDERSON ANITA T.KAIN M5H 2Z1
NICHOLAS T.MACOS WARREN S.RAPOPORT RICHARD E.COLES
CHRISTOPHER B.LOBB MERLE M.NUDELMAN MARTIN PETERS
ALEXANDER P.TORGOV SEAN M.FORAN CHARLES M.GASTLE
PHILIP P.HEALEY R,PETER A.MACDONALD DONALD A.McNEILL
SHEILA M.QUIGLEY TIMOTHY J.HILL J.PAUL R.HOWARD
WADE D.JAMIESON LEONARD D.RODNESS NETANUS T.RUTHERFORD Suite 1800
THOMAS R.WHITBY SANDRA E.DAWE LINDA J.GODEL
JANIS E.INGRAM CHRISTINE M.SILVERSIDES JEFF G.A.BURTT
SALVATORE J.P.FRISINA JOHN D.HISCOCK OSCAR J.SALA The Simpson Tower
COUNSEL
MARTIN L.OBRIEN,Q.C. BARRY D.LIPSON,Q.C.
January 25, 1991
VIA FAX NO. 1(416) 623-5717
Mr. Walter Evans r. `
Director of Public Works
Town of Newcastle
40 Temperance Street
Bowmanville, Ontario
.�A
L1C 3A6 ;
Dear Mr. Evans:
Re: Becas Developments Limited's ("Becas")
Application to Open as a Public Highway
the Allowance between Lots 18 & 19, South
of Concession Road 6, Former Clarke Township,
(Patterson Road)
I am writing to you regarding the above matter which was dealt with in Report
WD#66-90. In the course of the preparation of this report, you asked Mr. N. Macos of
our firm to provide you with legal advice concerning certain issues. Subsequently, you
asked for confirmation of that advice in writing. I am responding to the latter request.
ATTACHMENT NO, 3
WD-66-90 ADDENDUM
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ENCLOSURES AND REMOVAL OF TREES
There are several facts set out in Report #66-90 which need to be noted at the
outset. First, the above allowance is an original road allowance. Second, there are certain
encroachment areas on the allowance which have been enclosed with abutting properties.
Third, there are a large number of trees growing on the allowance in question which will
have to be cut and removed if the proposed road is to be constructed. Fourth, it is
proposed that when these trees are cut down, the timber would be disposed of by gift to
certain of the abutting property owners and not sold to anyone.
Since the allowance is an original allowance and private persons are in possession
of and have enclosed portions of it by installing fences that apart from the fact that the
title to the allowance is vested in the Town, would be lawful, and since the allowance in
has not been opened as a public highway apparently because parallel roads to it have been
established, in my opinion, Subsection 300(1), of the Municipal Act R.S.O. 1980, c.302 will
apply. Under that Subsection, until a by-law has been passed by the Town Council for
"opening" the allowance under Subsection 300(1), the abutting owners who have enclosed
parts of the allowance are deemed to be legally possessed of the part of which they are in
possession against all persons except the Town.
In my opinion, in application to the present circumstances, the term "opening" as
used in Subsection 300(1) of the Act means opening up the total area of the allowance in
question, that is by removing any fence erected by abutting owners. In short, the limited
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right of the abutting owners to possess the enclosed arts of the allowance in question
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will terminate on the enactment of a by-law pursuant to Subsection 300(1).
However, as a result of Subsection 300(2) of the Municipal Act, a by-law cannot be
passed to 'open" an allowance in the sense just mentioned "until notice in writing of the
intention to pass it has been given to the person in possession at least eight days before the
meeting of the Council at which the by-law is to be taken into consideration." Although
more than eight days notice of the G.P.A. Committee meeting at which Report WD#66-
90 was considered, was given to the persons in possession of parts of the allowance in
question, in my opinion, Subsection 300(2) requires that eight day's notice must also be
given of the meeting of Council itself at which the by-law to implement Report WD#66-
90 could be considered in order for the by-law to be effective in law.
With regard to the trees now growing on the allowance in question, under Subsection
313(3) of the Municipal Act, trees "upon a highway, are deemed to be appurtenant to the
land adjacent to the highway and nearest thereto. Prior to removing such a tree, a by-law
would have to be passed pursuant to Subsection 313(4)(e).
Although it may argued that Section 313 of the Municipal Act does not apply to the
present situation since the trees are growing on an unopened road allowance, that is on
land which does not yet comprise a public highway, and since implementation of Report
#G.P.A. 66-90 will necessitate the passing of a by-law to establish and lay out a public
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highway and that by-law may be passed prior to the removal of the trees in question, it
would be prudent to pass a by-law under Subsection 313(4)(a) of the Municipal Act to
authorize the removal of the trees from the allowance.
A by-law cannot be passed under Subsection 312(4)(e) unless it is in the public
interest to remove the trees and then only after ten days notice of the Town's intention is
given to the owner of any abutting land to which the tree is appurtenant. In the
circumstances it would be prudent to give this notice to all owners of lands which abut the
allowance in question.
Since the allowance in question is an original allowance, Paragraph 309 6 of the
Municipal Act would be applicable if it was proposed to sell the timber or trees now
growing on it. This Paragraph authorizes a municipal council to pass by-laws:
"for preserving or selling the timber or trees on any original allowance road, subject
however ... in the case of an unopened original allowance for road, ... the approval
of the Minister of Natural Resources".
Since Report WD#66-90 proposes that the Town give the timber to certain of the
abutting owners, (that is make a grant of the timber to them), in my opinion, a "sale" of the
timber would not be involved. Therefore, in my opinion, the prior approval of the Minister
of Natural Resources to a by-law passed to approve Report WD#66-90 would not be
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required under Paragraph 309(6) of the Municipal Act.
PROCEDURE UNDER SECTION 298 OF THE MUNICIPAL
ACT TO ESTABLISH AND LAY OUT A HIGHWAY
As I noted above, a by-law passed pursuant to Section 300 of the Municipal Act to
"open" the road allowance will only have the effect of authorizing the Town to remove the
fences enclosing areas of the road allowance in question with abutting lands. In order to
establish a public highway in the present circumstances, a by-law must be passed under
Subsection 298(1)(a) of the Municipal Act. Before passing such a by-law, the Town must
comply with the advertising and process requirements of Section 301 of the Municipal Act,
as well as the requirements of the Act and the Regional Municipality of Durham Act.
Subsection 298(1)(a) of the Municipal Act provides:
"The council of every municipality may pass by-laws,
(a) for establishing an laying out highways."
In the common situation where a new plan of subdivision is approved and registered,
draft approval usually will have been given conditional on the making of an agreement with
the Town. Typically, that agreement will require the subdivider to construct to the
municipality's specifications and satisfaction, the services and pavement necessary to actually
create a road on the allowances shown on the plan of subdivision in question. When the
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road has been constructed to the Town's specifications and satisfaction, and the warranty
period has expired, the Town Council may assume the road as a public highway. This
assumption usually is effected by by-law.
Once the road has been assumed as a public highway, the Town is required to keep
the highway in repair. Also, from the time of the assumption of the road, members of the
public have the right to use it as a public highway. Of course, the status of the road as a
public highway and the right of the public to use it can only be changed by by-law passed
under Subsection 298(1) of the Municipal Act to close the highway after full compliance
with the process requirements of Section 301 of the Municipal Act.
The road allowances shown on a registered plan of subdivision are owned in fee
simple by the Town from the date of registration of the plan of subdivision on title.
Construction of a road pursuant to the requirements of a subdivision agreement will take
place on the Town-owned allowance. Prior to the approval and registration of the plan of
subdivision in question, title to the proposed roadways will have been the subdivider
concerned.
Construction of the roads on a registered plan of subdivision will proceed in
accordance with the requirements of the particular subdivision agreement after title to the
allowances has been vested in the Town. Following completion of the roads and the expiry
of the warranty period, the assumption by-law either explicitly or implicitly will provide for
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the dedication of the road for the use by the public as a public highway. The Town's
liability to repair dates from the assumption of the roads in question.
Report WD#66-90 presents a situation that is somewhat unusual today. The original
road allowance is owned in fee simple by Town by force of the Municipal Act and not as
a result of registration on title of a plan of subdivision. The proposed road is constructed
by Becas on the Town-owned unopened allowance.
In the case of the unopened allowance in question, the appropriate way to proceed
would be for Council to pass a by-law under Subsection 298(1)(a) of the Municipal Act
following compliance with the process requirements of Section 301 of the Act and, of
course, following adoption by Council of your recommendations contained in Report
WD#66-90. Although the point is not free from legal dispute, and despite the fact that
frequently municipalities will pass by-laws ostensibly under the authority of Subsection
298(1)(a) after a road has been constructed, in my opinion, the term "laying out" as used
in Subsection 298(1)(a) is correctly interpreted in law to mean laying out the proposed road
on the ground by survey and declaring that as so laid out the road is a public highway. (See
Schrader v. Gratten [1945] O.R. 657; Re Ostrom and Sidney [1887] 15 O.R. 43, appeal
allowed on different grounds 15 O.A.R. 372, and Reeve v. Fort William [1955] O.W.N.
207.)
Therefore, in my opinion, in the present circumstances, it is open to the Town
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Council to pass a by-law under Subsection 298(1)(a) of the Municipal Act in partial
implementation of Report WD#66-90 prior to the construction of the road in question as
a public highway in order to establish and lay out a public highway, assuming of course, that
the requirements of Section 301 of the Act will be satisfied.
Prior to the enactment of such a by-law, an agreement should be executed by Becas
with the Town dealing with the construction of the road in question, including matters of
insurance, indemnity, and security. I would contemplate that the agreement would contain
the relevant provisions of the standard subdivision agreement used by the Town. Any
security that is required by the agreement including insurance should be deposited with the
Treasurer prior to the passing of a by-law under Subsection 298(1)(a) of the Municipal Act.
BY-LAWS REQUIRED TO BE PASSED TO IMPLEMENT REPORT WD#6-90
In summary, and subject to what will be said below concerning the recommendations
contained in Report WD#66-90 respecting the supply and planting of trees on privately-
owned land, if Council approves the Report, the following by-laws should be passed after
complying the process requirements noted above:
1. A by-law to authorize the execution of an agreement to implement the
construction, security, insurance and indemnity requirements proposed in the
Report;
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2. A by-law under Section 313 of the Municipal Act to authorize the removal
of trees now growing in the allowance;
3. A by-law under Section 300 of the Municipal Act "to open" the allowance in
question; and
4. A by-law under Subsection 298(1)(a) of the Municipal Act "to establish and
lay out a public highway in the allowance in question.
NEW TREES PROPOSED TO BE PLANTED ON ABUTTING PROPERTIES
As you note in your letter to Mr. Macos of June 28, 1990 paragraph 3.2 of Report
WD#66-90 provides for the Town to act "the banker" for the payment of the cost of the
supply and planting of trees of the Langyel and Heggie properties. The proposal is that
Becas would provide the Town with a letter of credit in the amount of$14,000.00 to provide
for the cost of the trees. The Town would make payments in response to invoices
submitted from time to time by Mr. Langyel and Mr. Heggie.
Apart from the legality of the proposed arrangement, I would note that its
implementation would require either that the Town establish a fund of $14,000.00 from its
own monies and call on the letter of credit after all disbursements have been made, or that
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the Town call on the letter of credit prior to making any disbursements for the purposes
set out in paragraph 3.2 of the Report. I assume that what is intended is the latter.
However, it is not clear to me why a letter of credit would be proposed rather than a cash
deposit from which disbursements would be made with any remaining balance being repaid
to Becas.
With regard to the legality of the proposed arrangement, I note that the
disbursement of monies for trees to be planted on private property is permitted only with
the consent of the owner where "shade or ornamental trees" are being planted adjacent to
any highway. In such a case, municipal funds may be used to pay the cost of supplying and
planting such trees.
If the trees in question could be so described, the Town would have power to pass
a by-law under Subsection 313(4)(b) of the Municipal Act to authorize the planting of such
trees at the expense of the Town. The Town has authority to accept gifts from individuals.
Therefore, it would be lawful for the Town, in my opinion, to accept a gift of $14,000.00
(or whatever the appropriate figure is) from Becas which would be paid into a reserve
account. The monies could then be disbursed to pay for the cost of planting the "shade or
ornamental trees" in question.
If it is the case that paragraph 3.2 of Report WD#66-90 contemplates that any of
the new trees proposed to be planted either would not qualify as "shade or ornamental
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