DEPARTMENT: Public Works &
Environmental Services
DATE PREPARED: September 5th, 2012
REPORT NO. P.W. 12-93
"COUNCIL-IN-COMMITTEE"
MEETING DATE: October 2“, 2012
SUBJECT: GATING OF 4TH CONCESSION OF
SOUTH WALSINGHAM
INTRODUCTION / BACKGROUND:
In the early spring of 2012 staff from
the Nature Conservancy of Canada contacted the Roads
Division and questioned whether the
County would consider gating the non maintained road section of
the 4th Concession of South Walsingham.
This road section is located between the E 1/4 line and
County Road No. 59 (Attachment No.1).
The rationale behind the request was that the Nature
Conservancy now owns all the properties
on both the north and south side of this non maintained
road allowance except for 2 small
parcels. This non maintained dirt road section is traveled on by off
road vehicles which can rut up the road
surface at certain times of the year making it impassable. '
This road section is often used as an
illegal dumping ground for garbage and also used as an area for
illegal outdoor parties. These
activities have been issues for years and the Nature Conservancy felt
the gating would eliminate these
activities. When reviewing this request the other property owner
along this road section was also
consulted with and was agreeable to the gating. The following report
is submitted to Norfolk County Council
for their consideration.
DISCUSSION / ANALYSIS
It needs to be noted that Norfolk
County Council has passed by-laws to gate a section of Plowman’s
Line located in the Courtland area in
2010 and also Bilgars Side Road in the Delhi area in the spring
of 2012. The original requests to gate
these 2 road sections were also received from local land owners
who complained of the issues such as
trespassing and illegal garbage dumping on their privately
owned lands abutting the road allowance
much like the Nature Conservancy concerns.
Respectfully submitted by: Eric
D’Hondt
Prepared by: Bill Cridland
Public Works & Environmentat
Services Page 2 of 4 Report PW 12-93
DISCUSSION I ANALYSIS [Continued]
With this third request to gate another
section of County owned roadway to control the access, the
Roads Division again referred to the
County’s solicitor’s legal opinion on gating Plowmans Line in
2010. From the letter of response
received from the County solicitor in 2010 the “common law right of
access and passage” states that
municipalities hold public roadways in trust for the general public
for
the purpose of travel and accessing
lands which abut such roadways. With this information it first
appears that public roadways cannot be
legally gated as the general public has a right to use these
roadways.
However, with the noted recent changes
to the Municipal Act a municipality may pass by-laws
removing or restricting the “common
iaw right access and passage” by the public over a roadway
and the common law right of access to a
roadway by an owner of land abutting a roadway. The
solicitor also notes that no reported
case law exists addressing the provision of gating a public
roadway. As such the gating of a public
roadway could possibly generate litigation for a municipality
in the future as parties try to
challenge the gating of a public roadway. In summary the advice from
the solicitor is that recent changes to
the Municipal Act do allow for a municipality to restrict access to
a public roadway, however, in the event
of a challenge the solicitor is uncertain of the success of a
defence. in the case of Plowman’s
Line and Bilgers Side Road the abutting owners were given keys
for the gate to use when they needed to
access their properties. In both cases this system has
worked well and the abutting property
owners no longer have trespassing and garbage issues to deal
with. There has also been no legal
challenge or questions from the public.
As with each request to gate a County
owned road allowance each situation must be reviewed
separately. in reviewing the request to
gate the 4th concession of South Waisingham it needs to be
noted this road section has a long
history of being a troubled area and there would be many positive
aspects of gating this section. The
road surface is a clay based material with poor drainage which
turns slippery very quickly. The road
is posted as non maintained, however, in discussions with the
OPP and local residents numerous
vehicles do become stuck on this section each year especially on
the east end. OPP records also show
besides numerous calls for stuck vehicles, this road section
has been used as an area to abandon
stolen cars and hold illegal bush parties. The OPP are in
support of gating this section as it is
seen as a way eliminating these activities.
The Roads Division supports the gating
as the gating would lower the maintenance cost of garbage
pickup and road grading costs. Off road
vehicles using this road section especially during the wet
seasons severely rut the road surface
increasing grading time and cost. There is also a road culvert
located on the east end which has a
very narrow platform. (Attachment No.2) By restricting vehicle
access to this section liability is
also reduced from vehicles crossing the single lane platform
(Attachment No. 3). The Roads Division
also feels that with Hwy 24 being located to the immediate
north of this road section and with the
poor road surface of the 4th Concession no one has a need to
use this section on a daily bases and
there would be little impact to the local traveling public.
Liability
concerns would also be reduced by
limiting vehicle usage on this road section.
If Council supports the installing of
the gates it needs to be noted that the gates will be constructed as
to allow for pedestrian traffic onto
the road allowance the same as on P1owman’s Line and Bilger Side
Road. There is sufficient room at both
ends of the roads to allow for cars to park when walking onto
the road allowance. The cost of
purchasing and installing both gates and fencing will be also be
covered by the Nature Conservancy.
Finance Comments :
There are no direct financial
implications as the cost of purchasing and installing both gates and
fencing will be borne by the Nature Conservancy
Staffing / Legal Implications :
The only legal implication would be in
the event of a challenge from a member of the public. It needs to be
noted in the previous 2 gatings by-laws no challenges have occurred.
Conclusion :
In conclusion the Roads Division
supports the request to gate the unmaintained section of the 4th
Concession. Recent changes to the Municipal Act allow for a
Municipality to restrict access to a Public Roadway, however, the
ground for a legal defense is unclear. The gating would reduce the
Roads Division maintenance cost for this section and also eliminate
the dumping of garbage as well as discourage illegal parties. The
OPP also support the gating as they receive many calls each year from
stranded people stuck on this road section. The Roads Division feels
any future requests to gate unmaintained roadways lends itself well
to gating as it is not a year round thoroughfare so the general
public would not be impacted by restringing access and the abutting
property owners all agree to the gating and will be given a key for
entry to their private property.
Recommendations :
THAT Staff Report PW 12-93, Gating of
4th Concession of South Walsingham, be received as
information;
AND THAT Norfolk County Council direct
staff to prepare the appropriate by-law allowing for the gating of
the 4th Concession of South Walsingham.
AND FURTHER THAT the Roads Division
work with the Nature Conservancy of Canada in order to arrange for
the installation of the gates;
AND FURTHER THAT all abutting
landowners and selected County Departments be given a key to the
gates.
http://www.simcoereformer.ca/2013/06/23/road-near-port-rowan-will-be-gated
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