Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: November 01, 2021
CASE NO(S).: MM210012
PROCEEDING COMMENCED UNDER subsection 37(2) of the Public Transportation and Highway Improvement Act, R.S.O. 1990, c. P.50, as amended
Applicant: Ministry of Transportation
Subject: Approval of Road Closing
Description: Road closing of portions of six municipal roads that intersect or run into a new right-of-way alignment of King’s Highway 401 and King’s Highway 4.
Municipality: City of London
Ministry File No.: 0240-000010534
OLT Case No.: MM210012
OLT File No.: MM210012
OLT Case Name: Ontario (Transportation) (Re)
Heard: October 18, 2021 by Video Hearing ("VH")
APPEARANCES:
| Parties | Counsel |
|---|---|
| Ministry of Transportation ("Ministry") | H. Wilenmann/J. Tatar |
| City of London ("City") | V. R. |
| Stoneridge Travel Centre Inc. | G. Lavictoire |
| The Hasting Mill Inc. | G. Lavictoire |
| The Rose Chapel Inc. | G. Lavictoire |
DECISION DELIVERED BY BLAIR S. TAYLOR AND ORDER OF THE TRIBUNAL
INTRODUCTION
1Pursuant to subsection 37(2) of the Public Transportation and Highway Improvement Act ("Act"), the Ministry made an application to the Tribunal to close portions of six municipal roads that intersect or run into a proposed new right-of-way alignment of the King’s Highway 401 ("Highway 401") and the King’s Highway 4 ("Highway 4"), which highways are designated as "controlled-access highways".
STATUTORY REGIME
2Subsection 37(2) of the Act provides the following:
Subject to the approval of the Tribunal, the Minister may close any road, other than a highway that is under the jurisdiction and control of the Ministry, that intersects or runs into a controlled-access highway.
3The powers of the Tribunal are set out in subsection. 37(4):
Upon the hearing of the application, the Tribunal may make an order refusing its approval or granting its approval upon such terms and conditions as it considers proper.
DECISION
4For the reasons set out below, the Tribunal grants its approval for the closing of portions of the six municipal roads shown on Exhibit 15 (being the Road Closing Plan P-3053-232) and named in the Schedule also shown on Exhibit 15 and appended hereto as Attachment 1.
BACKGROUND
5The intersection of Highway 401 and Highway 4 currently utilizes one of the last remaining "cloverleaf" intersection designs in Ontario, which the Ministry seeks to eliminate and replace with a new "Parclo A-4" design.
6Both Highway 401 and Highway 4 are designated as controlled-access highways.
7In 2004 the Ministry completed and made available for public review the Transportation Environmental Study Report ("TESR 2004") for this intersection which recommended the replacement of the existing cloverleaf interchange with Highways 401 and 4, with a Parclo-A interchange configuration. The TESR 2004 received environmental clearance in February 2004, and would have among other things, maintained the Tempo Road connections at both Highway 4 at Burtwistle Lane and Glanworth Drive.
8In 2018 the Ministry conducted an update of the TESR 2004 which update ("TESR 2018") recommended a Parclo A-4 design but with a revised technically preferred alternative which among other things, would realign Burtwistle Lane to about 100 metres south of its existing location, and also realign Tempo Road to about 100 metres south.
9A "bump up" request of TESR 2018 was made to the Minister of Environment, which was unsuccessful.
THE HEARING
10At the hearing, the Tribunal heard the expert opinion evidence of Natalia Bartos, P. Eng., who was qualified as an expert in highway design, and John Johnson and Hope Johnson, the beneficial owners of Stoneridge Travel Centre Inc., the Hasting Mill Inc. and the Rose Chapel Inc., and whose objections focused solely on the proposed realignment of Burtwistle Lane.
11The Tribunal also granted participant status to: Valerio and Maria Catulli (Exhibit 3), Donald and Jeanne Coleman (Exhibit 4A and 4B), and Robert and Donna Backes (Exhibit 5A and 5 B).
MINISTRY CONTEXT EVIDENCE
12The evidence of Ms. Bartos was that the current cloverleaf intersection of Highways 401 and 4 was recommended for replacement in the TESR 2004. She testified that the existing cloverleaf interchange is one of the last few in Ontario and that it is challenging for drivers because it has more "conflict points" than a typical interchange.
13She noted that the existing cloverleaf interchange has short acceleration and deceleration lanes (the entrance and exit lanes to and from Highway 401) that create a challenge for large commercial vehicles to accelerate and merge ("weave" onto) Highway 401 and 4. Additionally with the short deceleration lanes, and the tight curvature of the ramps, this design increases the potential for rollover collisions.
14When the original environmental assessment was completed in 2004, the then preferred alternative did not require the relocation of Burtwistle Lane. However, as the TESR 2004 was over five years old, the Ministry in 2013 commenced a review. The Ministry held two public information sessions in 2013 and a third in 2018 at the Stoneridge Travel Centre, all of which were attended by the Johnsons.
15The Burtwistle Lane and Highway 4 intersection in the TESR 2004 would have been on a curve near the West-South ramp channelization, with limited visibility and in an area where drivers would need to make quick decisions, quick lane changes, and quick turning movements.
16The preferred alternative from the TESR 2018 was relatively the same as the TESR 2004 but with a technical adjustment to move the Burtwistle Lane and Highway 4 intersection 100 metres south which would:
Provide sufficient sight lines and visibility for drivers;
Align with the new Tempo Road intersection; and
Provide an adequate separation from the addition of a left hand turn lane onto Tempo Road.
JOHNSON EVIDENCE
17The objections of the Johnsons were based on the following themes:
preference for the TESR 2004 preferred alternative;
the loss of the stormwater pond, and impacts on storm drainage that will arise from the TESR 2018 design;
the location of the private wells;
closure of Burtwistle Lane will landlock two other owned parcels on Burtwistle Lane including the location of the Rose Chapel; and
"very little effort has been carried out by the Ministry to consult directly with the owners regarding the road closure".
18The Tribunal was advised that the Johnsons in or about 1996 bought a bankrupt truck stop in the south west quadrant of the intersection of Highway 401 and Highway 4. At that time the truck stop had a 7 bay diesel refueling station, a 5-6 bay car gas station, a main building with 72 rooms, a restaurant, laundry facilities, a hairdresser and a donut shop. Access to the truck stop was directly off Highway 4 via Burtwistle Lane. The truck stop was serviced by private wells, and had a large storm water pond that served both a drainage purpose and for fire protection. Thereafter it appears that they also purchased a former church (which is now used for weddings and retreats), and a house, both also on Burtwistle Lane.
19The Johnsons testified that their business is no longer a "truck stop" but rather a conference centre with a Best Western Plus hotel on a parcel of land that is about 23 acres. Across Burtwistle Lane is the Rose Chapel which is used for wedding and meetings.
20Of note with regard to the conference centre property, is the fact that there is a large stormwater pond at the south end of property that drains off-site via a 250 mm concrete drain.
21The Johnsons informed the Tribunal that if the Ministry were to close this portion of Burtwistle Lane, a new entrance would need to be constructed 100 metres south with the result that the new Burtwistle Lane would bisect the stormwater pond and the stormwater pond would need to be relocated on site. The Johnsons told the Tribunal that with the existing private wells, and the other improvements to the property, there is no land available for that purpose. Moreover, they fear that the closure will result in the Rose Chapel lands, and the house becoming land locked.
22The Johnsons submit that the Ministry should proceed with the TESR 2004 which would not result in the closure of Burtwistle Lane, and are firmly of the view that the Ministry has been lacking in its consultation process with them, and that the road closure should be denied.
MINISTRY RESPONSE
23Ms. Bartos advised the Tribunal that the Johnsons had made a "bump up" request for the TESR 2018, which had been unsuccessful, and that the TESR 2018 remained the preferred alternative. She noted that the 2018 TESR preferred alternative was the result of a thorough public process that addressed the concerns of many stakeholders and was supported by the City.
24She highlighted that the existing interchange was geometrically and operationally deficient, and that the relocation of Burtwistle Lane 100 metres south would increase the distance between the intersections, reduce the potential for collisions, and thereby improve traffic operations, with increased driver safety.
25Turning to the issue of consultation, Ms. Bartos testified that there had been approximately 14 consultations with the Johnsons, the most recent of which was on October 1, 2021, and an on-site meeting in August of 2021, and these were in addition to the various email and telephone contacts.
26She informed the Tribunal that the Ministry was certainly aware of the concerns of the Johnsons, but that the proposed road closure at Burtwistle Lane would not land lock the other two properties owned by the Johnsons. Burtwistle Lane would remain a public highway owned by the City.
27With regard to the stormwater pond, Ms. Bartos noted that in the ordinary case, the Ministry anticipated that the property owners would retain their own experts to review this matter, but that the Johnsons had not done so. In light of that the Ministry had offered funding to the Johnsons to have that review done, but the Johnsons had refused that.
28Under cross examination by counsel for the Johnsons, Ms. Bartos was asked if the Ministry had considered different options for Burtwistle Lane. She replied that the Ministry had considered different options and in fact the Ministry and the City had jointly approached the Johnsons to take ownership of Burtwistle Lane as, with private ownership of Burtwistle Lane, the entrance would be a "private" entrance (subject to less onerous requirements) and the result of which would be only minor impacts on the stormwater pond. This option was rejected by the Johnsons.
COMMENTARY AND ANALYSIS
29The hearing was conducted as a virtual hearing due to the on-going Covid 19 pandemic.
30The Tribunal takes notice that generally the pandemic has had a dramatic impact on the travel and hospitality industry, and the Tribunal appreciates the concerns of the Johnsons with this Ministry application coming forward at this time.
31The Tribunal recognizes that at this time, the Ministry is engaged in the preliminary design stage for the interchange and it has not yet gone to the final design stage.
32With regard to the overall technical aspects of the proposed interchange layout and road closures, the Tribunal has the uncontroverted expert opinion evidence of Ms. Bartos that the proposed new interchange has been derived from the TESR 2004 process and the TESR 2018 update, that it is supported by the City and a number of other stakeholders as being the appropriate plan to replace what the Tribunal would characterize as a deficient interchange, the result of which would be a safer environment for the travelling public.
33The Tribunal finds that the Johnsons have been consulted on numerous occasions and finds that the source of their complaint is not actually with the alleged lack of consultation, but rather with the fact that the Ministry has not acquiesced and retreated to the TESR 2004 preferred alternative which, while beneficial to the Johnsons, Ms. Bartos testified would be less safe for the travelling public.
34In such applications as this, the Tribunal’s jurisprudence highlights that safety must come before convenience (Re King’s Highway No. 11, 2 O.M.B.R 269), and the proper, safe operation of a designed interchange that results in necessary road closings represents the common good of the public which should prevail over the interests of a small number of affected private citizens (Re Gormley Road Closing, Whitchurch-Stouffville 8 O.M.B.R. 350).
35The Tribunal finds that the public interest is best served through careful and thorough attention to good highway interchange design, that results in a safer public road system.
36The Tribunal notes that while it heard the concerns of the Johnsons, no expert highway design evidence to the contrary was called on behalf of the Johnsons.
37Finally, the Tribunal would note that this hearing is not about damages or injurious affection. Those matters, if they arise, are dealt with in a separate process.
CONCLUSION
38In conclusion, the Tribunal prefers the evidence of Ms. Bartos and finds that the proposed road closings advanced by the Ministry after two environmental assessment processes and supported by the City, will result in a new interchange design that offers a greater degree of safety and that is in the public interest.
39The Tribunal having heard the evidence of the all the parties and having considered the written submissions of the participants, grants approval of the Ministry’s road closing application as embodied in Exhibit 15, which is appended hereto as Attachment 1.
40This is the Order of the Tribunal.
"Blair S. Taylor"
BLAIR S. TAYLOR
MEMBER
Ontario Land Tribunal
Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248
The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal ("Tribunal"). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.