Order No. 1995-R-70
February 28, 1995
IN THE MATTER OF Order No. 102983 of the Board of Transport Commissioners for Canada dated November 21, 1960, which authorized the Department of Highways of the Province of British Columbia to reconstruct and improve the existing subway carrying Helmcken Road across and under the Victoria Subdivision of Canadian Pacific Limited (formerly the Esquimalt and Nanaimo Railway Company) (hereinafter the railway company), at mileage 4.5 Victoria Subdivision, in the province of British Columbia, as shown on general layout plan B1-2653 revised April 14, 1960 and on detailed plans B1-2653-1, B1-2653-2 and B1-2653-3 revised April 14, 1960, all on file with the National Transportation Agency (hereinafter the Agency); and
IN THE MATTER OF an application by the Ministry of Transportation and Highways of the Province of British Columbia (hereinafter the applicant), pursuant to section 41 of the National Transportation Act, 1987, R.S.C., 1985, c. 28 (3rd Supp.), to amend Order No. 102983 to reflect a change in the cost apportionment responsibilities at the crossing.
File No. R 8050/264-004.50
WHEREAS the Agency has performed an environmental screening of the proposal pursuant to section 10 of the Environmental Assessment and Review Process Guidelines Order, SOR/84-467 (hereinafter the EARP Guidelines Order);
AND WHEREAS the Agency has determined, pursuant to paragraph 12(c) of the EARP Guidelines Order, that the potentially adverse environmental effects that may be caused by the proposal are insignificant;
AND WHEREAS by clause 4 of Order No. 102983, the cost of future maintenance of the substructure and superstructure of the grade separation was to be paid by the railway company and the balance of the cost of future maintenance, including the cost of future maintenance of the approach grades, was to be paid by the applicant;
AND WHEREAS the applicant submitted a copy of the letters patent proclaiming the Town of View Royal on December 5, 1988 and additional information outlining the highway maintenance responsibility of the municipality upon incorporation;
AND WHEREAS the Town of View Royal submits that as the railway company is the junior party at the said highway crossing, it should be responsible for the maintenance of the substructure and superstructure of this highway crossing, including maintenance of the approach grades;
AND WHEREAS the Agency is of the opinion that in this particular case the issue is the change in road authority from the applicant to the Town of View Royal, which includes the transfer of the responsibility for the cost of maintaining certain highways which include railway/highway crossings, and not the financial obligations of the railway company;
AND WHEREAS the Town of View Royal also submits that it is not interested in assuming responsibility for future maintenance of the approach grades and assumes that the applicant will continue to carry on with its maintenance responsibility;
AND WHEREAS the Agency notes that the Town of View Royal does not dispute being the road authority at this location;
AND WHEREAS the railway company has no objection to the change in road authority;
AND WHEREAS the Agency can see no reason to vary the apportionment of maintenance costs set out in Order No. 102983 between the road authority and the railway company;
AND WHEREAS the Agency is of the opinion that as the Town of View Royal is now the road authority it should be responsible for the cost of future maintenance of the approach grades as identified in Order No. 102983;
AND WHEREAS the Agency has reviewed the submissions filed and has found, pursuant to section 41 of the National Transportation Act, 1987, that there has been a change in the facts or circumstances pertaining to Order No. 102983 since it was issued.
NOW THEREFORE, IT IS ORDERED THAT:
Clause 4 of Order No. 102983 of the Board of Transport Commissioners for Canada dated November 21, 1960 is hereby amended by replacing "Applicant" with "Town of View Royal".
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