January 2005

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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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 5 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 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, I 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. I 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.