The Rural Voice, 2005-01, Page 43Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highlev LLP.
By Paul Vogel
Where an access road servicing
neighbouring properties interferes
with a landowner's use and
enjoyment of the balance of their
property, and the landowner is
prepared to provide the neighbours
with alternate access, can the
landowner require the closing of the
interfering access road? Does it
matter that the access rights of
neighbouring properties are the
subject of a registered right-of-way?
The Ontario Superior Court of
Justice recently considered the
application of Landowners whose
house was situated approximately
five metres from an access road
established pursuant to a registered
right-of-way. While agreeing to
provide alternate access. the
applicant landowners requested
closing of the access road because
of the potential hazard of traffic
utilizing the road in such close
proximity to their house and
interference with their privacy and
enjoyment of their property
resulting from the noise and
vehicular traffic. The application
was opposed by one of the
neighbouring landowners on the
basis that their access rights were
protected by registered right-of-way.
The application was brought
pursuant to the provisions of
Ontario's Road Access Act. This
statute permits closure of an access
road where the court is satisfied that
"closure of the road is reasonably
necessary to prevent substantial
damage or injury to the interests of
the applicant or for some other
purpose in the public interest".
However, the Act also stipulates that
the court must be satisfied that "in
the case of an access road that is not
Agrilaw
Right of wag brings rights
a common road, (neighbouring
landowners) do not have a legal
right to use the road."
The applicants argued that, in
considering their application, the
court was required to balance their
right to the use and enjoyment of
their property against the registered
interest of neighbouring landowners,
recognizing their proposal to
provide neighbouring landowners
with alternate access. In dismissing
the application, the court rejected
this approach and stated:
"I am not able to agree with this
interpretation. (The neighbouring
landowners) have a legal right to
use the road that is sought to be
closed by virtue of the right-of-
way registered on title when their
property was transferred to them
in 1988. Even if the closure of the
road is reasonably necessary to
prevent substantial damage or
injury to the interests of the
applicants. or for some other
purpose in the public interest, l
interpret ... the Act to mean that
in the case of an access road that
is not a common road, if the
parties have the legal right to use
the road. a closing order can not
be made.
"If the interpretation urged upon
the court by the applicants was
accepted, then throughout cottage
country and rural Ontario, many
parties who purchased properties
with an entitlement to a
registered right-of-way could find
themselves subject to court
applications under the Road
Access Act to change the location
of the right-of-way. The Act
could be utilized to divert a right-
of-way from (one) location to the
other. without a person's consent.
1 am not able to accept that this
was the spirit or intention of the
Act, particularly as set out in the
new amendments..."
As a result. the court concluded:
"If the order sought by the
applicants was granted. the
easement and right-of-way
enjoyed by the (neighbouring
landowners) over ... the road in
question would be extinguished
and eliminated, and full -fee
simple ownership would revert to
the applicants as a consequence
thereof. It is true that the
applicants (as well as the other
parties supporting the
application) are prepared to
substitute an alternate right-of-
way and access road. but without
the consent of all parties in
question, (the neighbour's
registered interest) is a complete
barrier to the applicant's
application.
"My conclusions on this
application may well have been
different had (the neighbouring
landowners) not been entitled to a
legal right to use the said
roadway".
The relative priority of a
landowner to use and enjoyment of
their property and the access rights
of neighbouring landowners may
well depend upon the nature of the
neighbouring landowner's access
rights. Where these access rights are
protected by registered right-of-way.
neighbouring landowners will not be
required to accept alternate access
even where existing access creates a
potential hazard and interferes with
privacy and enjoyment of property.0
Agrilaw is a syndicated column
produced by the fill service London
lair firm of Cohen Highley LLP.
Paul G. Vogel, a partner in the firm.
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance.
The opinions expressed are not
intended as legal advice. Before
acting on any information contained
in this column. readers should
obtain legal advice with respect 10
their own particular cirrumstance.t
and ,geographical area.
JANUARY 2005 39