Ontario Land Tribunal
Tribunal ontarien de l’aménagement du territoire
ISSUE DATE: July 27, 2022
CASE NO(S).: OLT-22-003573
PROCEEDING COMMENCED UNDER subsection 6(2) of the Expropriations Act, R.S.O. 1990, c. E.26, as amended
Owner: Edwin and Sofija Allenspach
Expropriating Authority: Regional Municipality of Durham
Property Address/Description: Part of Lot 22, Concession 7,
Municipality: Durham
OLT Case No.: OLT-22-003573
OLT Case Name: Allenspach v. Durham (Region)
Heard: July 15, 2022 by video hearing
APPEARANCES:
Parties
Counsel
Region of Durham
A. McPherson
Edwin and Sofija Allenspach
In absentia
DECISION DELIVERED BY G. BURTON AND ORDER OF THE TRIBUNAL
1This is the Report of a Hearing of Necessity held under section 7 of the Expropriations Act, R.S.O. 1990, Chapter E.26 as amended (the “Act”). Informal inquiries are held in order to determine whether the proposed taking by the expropriating authority of an owner’s land is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority” as the Act states. The courts have interpreted this test to be whether the proposed taking is “reasonably defensible”.
2The parcel in question is located at 7398 Langmaid Road in Hampton, Ontario, in the municipality of Clarington, Regional Municipality of Durham (“Region”). The Region proposes to acquire Part of Lots 33 and 34, Concession 7, designated as Part 3 and 5, 6 subject to DN19324, and 7, on Plan 40R-31092, and all related construction activities ancillary to the construction, for a road upgrade.
3It appeared from their correspondence that the property owners had requested a Hearing under section 7 of the Act, following a notice of expropriation served on them, although the request was not clearly set out. The owners, Mr. and Mrs. Edwin and Sofija Allenspach (“Requestors”), did not appear at the Hearing. The Tribunal’s Case Coordinator had connected with them, or at least with Mrs. Allenspach, throughout the prior week. Mrs. Allenspach informed him that she would not be joining the Hearing because of communication difficulties. She was told again of the possibility of a telephone connection rather than by internet, but she did not react positively in any respect. Counsel for the expropriating authority the Region of Durham advised that they had not heard from the Requestors recently about the Hearing.
4The Tribunal considers that the owners have constructively abandoned their request for a Hearing, and provides its finding on the proposed expropriation only for the record.
5Alexander McPherson appeared for the Region, and the owners were not represented. The Region presented the engineering rationale by the evidence of Nga Nguyen, a Project Manager in the Transportation Design Division of the Region’s Works Department. She is a professional engineer.
6The Region plans to upgrade Regional Road 3 in the Municipality of Clarington, from 75 metres (“m”) east of Townline Road to 150 m east of Enfield Road. The general area can be seen in Exhibit 1, the Region’s Document Book, Map 2, and Plan 40R-31092 is there as well. Upgrades will reduce future maintenance and expense.
7The existing right-of-way is about 20 m, the pavement in poor condition. Regional standards are for a 30- to 36 m right of way. The road floods repeatedly. The current road was built with non-traversable slopes next to the road. If vehicles access these they are less likely to recover and are much more likely to overturn. There are also collision hazards such as trees, berms and utility poles close to the road. The upgrade would allow the Region to improve the safety and long-term durability of Regional Road 3.
8The Region's Official Plan and Transportation Master Plan, as well as national, provincial and regional road design standards all require widening of the existing 20-m road allowance to 30 m. The Region must widen the road to improve road safety, cycling and large farm vehicle accessibility, access in and out of properties, and stormwater management.
9The Region requires the proposed portions of the owners’ land for the widening: first, to put in clear zones for improved safety, especially for the design speed of 90 km/hr; and second, to build ditches for stormwater management and flood control. Clear zones are unobstructed, travelable areas beside the road, available for errant vehicles. They are one of the most effective crash-reduction designs available. Clear zone width depends on traffic volumes, design speed and roadside geometry. Here, the required clear zone is 9 m on each side.
10For stormwater management and flood control, the Region requires space beside the road to carry overland flow to a suitable outlet. To minimize land needs, the Region has designed the steepest slopes possible outside the clear zone for the ditch backslope, and a flat bottom. This requires an added 2 to 3 m width on each side.
11Thus the 30-metre road will have a 2-3 m ditch on each side, then a 9-m clear zone, and two 3.5-m lanes.
12The proposed taking was identified through the detailed design of Regional Road 3 (Exhibit 1, Document 1). The proposed works meet the criteria of a Municipal Class Environmental Assessment, Schedule A+. The rebuilt road will be in the same place, for the same purpose and capacity. Thus the risk of adverse environmental impacts is low. The Region has not needed a full environmental assessment nor environmental study reports.
13Negotiations for a purchase of the required portions of the parcel failed, so the Region served a Notice of Expropriation for portions of the Allenspach lands required for the project as shown on Exhibit 1, Map 2 and Reference Plan 40R-31092.
14Ms. Nguyen testified that a move of the roadway further north as some had suggested would be unfair, and adversely impact those on the north side.
Findings and Opinion
15A review of the document book and Ms. Nguyen’s testimony makes it clear there is no other choice for the road location and design. The Region requires these portions of the owners’ land to construct the proposed upgrades. To prevent problems in the future in the maintenance of the culvert and the road, it is requiring a minor taking. There is no doubt in the Tribunal’s view there is a need, and the owners have not advised of their objection to this proposal. They merely complained about non-payment in a previous private sales transaction.
16After considering all of the evidence and arguments, the Tribunal concludes that the proposal meets the test in the Act and the summation of it as set out by the courts. The test in s. 7(5) of the Act is whether the proposed taking is “fair, sound and reasonably necessary in the achievement of the objectives of the expropriating authority”. Court decisions such as Parkin v. The Queen in right of Ontario et al, 1978 CanLII 1254 (ON CA), 19 O.R. (2d) 473 determined that the test that the inquiry officer must apply can be expressed as to whether the proposal is “reasonably defensible in the achievement of the City’s objectives”.
17For the reasons given above, the Tribunal finds that the taking of Part of Lots 33 and 34, Concession 7, designated as Part 3 and 5, 6 subject to DN19324, and 7 on Plan 40R-31092, the municipality of Clarington, Regional Municipality of Durham is reasonably defensible in the achievement of the Region’s objectives of a road upgrade and all related construction activities ancillary to the construction.
“G. Burton”
G. burton
VICE-CHAIR
Ontario Land Tribunal
Website: www.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.