Decision No. 481-R-2006
September 8, 2006
APPLICATION by the Township of Seguin pursuant to subsection 101(4) of the Canada Transportation Act, S.C., 1996, c. 10, for a determination on the apportionment of costs for the reconstruction and maintenance of the road crossing (grade separation) at Rankin Lake Road and mileage 142.82 of the Canadian National Railway Company's Bala Subdivision, near the town of Parry Sound, in the province of Ontario.
File No. R8050/326-142.80
APPLICATION
[1] On April 11, 2006, the Township of Seguin (hereinafter the applicant) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.
[2] On May 24, 2006, the Canadian National Railway Company (hereinafter CN) filed its answer to the application.
[3] In its Decision Nos. LET-R-150-2006 and LET-R-190-2006, the Agency granted the applicant until July 21, 2006 to file its reply to CN's answer, which it did on that date.
[4] Pursuant to subsection 29(1) of the Canada Transportation Act (hereinafter the CTA), the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until September 8, 2006.
BACKGROUND
[5] Information on file, in particular, a letter dated July 27, 1928 from the Township of Foley (now the Township of Seguin), as well as CN plans, indicate that the existing structure was built in 1906 to carry Parry Sound Road (now Rankin Lake Road) over CN's Bala Subdivision. The bridge was built with the east approach span having a grade of 10 percent ending with an abrupt change to a level grade on the centre portion of the bridge.
[6] After much discussion between the applicant and CN concerning the safety of the travelling public and the steep gradient on the east end of the bridge, work to correct the grade was approved by Board of Transport Commissioners for Canada Order No. 119992 dated February 18, 1966. It was ordered that 50 percent of the cost of reconstruction of and improvements to the overhead bridge be paid out of the Railway Grade Crossing Fund, the sum of $450 was to be paid by CN and the balance of the cost was to be paid by the applicant. CN, the junior party at the location and the party that had maintained the bridge previously, is responsible for the future cost of maintenance. In 1996, CN rebuilt the bridge to original standards at its own cost.
[7] The structure proposed to replace the existing structure will consist of a 3-span precast voided slab bridge with a 150 mm thick concrete slab and an asphalt wearing surface. The east northbound and the west southbound lanes will be 3.25 m in width and have a 1.0 m side clearance as well as a 300 mm parapet wall and coping. The horizontal alignment will not be changed significantly and the vertical alignment on Rankin Lake Road over the bridge will be raised by approximately 0.8 m. The new structure will provide railway clearances for the existing railway track and one future track.
ISSUE
[8] The issue to be addressed is what proportion of reconstruction and maintenance costs shall be borne by each party with respect to the proposed construction of the road crossing (grade separation).
POSITIONS OF THE PARTIES
[9] The applicant states that its request to reconstruct the existing bridge stems from the weight restrictions on the structure rather than the increase in traffic counts. Today's larger maintenance and safety vehicles cannot safely cross the bridge which creates dangerous conditions and potential emergency response time delays.
[10] The applicant submits that it and CN are not in disagreement with respect to the project or the proposed material to be used in this reconstruction. The disagreement lies with the apportionment of the costs for the project.
[11] The applicant argues that CN is responsible for all upgrading costs. According to the applicant, records indicate that Rankin Lake Road, previously Parry Sound Road, predates the construction of the bridge and that as the bridge is owned by CN, it is the latter's responsibility to update the bridge to conform to the current load standards.
[12] The applicant states that as CN is responsible for the maintenance of the structure, it should also be responsible for 100 percent of the proposed project costs. If not, the applicant submits that the apportionment of costs should be no less than that set out in subparagraph 3a)iii) of the Agency's Guidelines on Apportionment of Costs of Grade Separations (hereinafter the Guidelines) which would apportion 85 percent to CN.
[13] The applicant argues that the need to improve the bridge does not stem from road development as there have been no improvements to Rankin Lake Road. The need for the bridge with higher weight allowances is solely the result of railway development as there would be no need for the bridge without the railway.
[14] CN submits that the structure has been well maintained and is currently in good and safe condition. CN also states that the existing load restriction is not a result of deteriorating bridge components; according to CN, the original design of the bridge was sufficient for the road traffic at the time it was built. As the bridge is to be built in accordance with the standards that meet present-day road traffic needs, the proposed work constitutes an improvement to the original design. CN argues that the proposed work should be determined to be reconstruction of a bridge that does not meet present-day needs rather than maintenance.
[15] CN also argues that the need for the project is due to road development as the structure cannot accommodate the heavier vehicles and volumes of road traffic.
[16] CN further submits that the applicant will be the major beneficiary while CN will receive no benefit. As both parties have an established responsibility in the structure, CN argues that subparagraph 3a)i) of the Guidelines applies and, therefore, the costs should be apportioned 85 percent to the applicant and 15 percent to CN as the project is due primarily to road development. CN further proposes that all future maintenance costs for the proposed structure should be apportioned to the applicant.
ANALYSIS AND FINDINGS
[17] In making its findings, the Agency has considered all of the evidence submitted by the parties.
[18] Pursuant to subsection 101(4) of the CTA, section 16 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) [hereinafter the RSA] applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining a road crossing or utility crossing. In cases where the parties involved cannot agree on the apportionment of liability for the construction, alteration, operational or maintenance costs for a road crossing, the provisions of section 16 of the RSA enable a person who stands to benefit from the completion of the work to refer the matter to the Agency for a determination.
[19] In this particular case, the Agency notes that the parties are not in agreement with the apportionment of the costs of construction and maintenance of the bridge. Accordingly, the Agency is of the opinion that section 16 of the RSA applies in this case.
[20] Having determined that section 16 of the RSA applies, the Agency must consider the merits of the case pursuant to the requirements of subsection 16(4) of the RSA. The Agency must determine the proportion of the liability for construction, alteration, operational or maintenance costs to be borne by each party, having regard to the relative benefits that each party stands to gain and any other factor that the Agency considers relevant.
[21] Where a crossing involves the construction or reconstruction of a grade separation, the Agency uses the Guidelines in its deliberations for cost apportionment decisions where the parties involved in a project are unable to reach an agreement. Therefore, in cases such as the present one, the Agency may determine, among other things, whether, and to what extent, the Guidelines apply.
[22] Firstly, the Agency notes the argument raised by CN as to whether the proposed work should be considered maintenance or reconstruction. CN argued that the need for this project was created as a result of the evolving road development, that the structure is to be built in accordance with standards that meet present-day road traffic needs and that such work constitutes an improvement to the original design. Therefore, the proposed work should not be considered maintenance but rather a reconstruction of a bridge that no longer meets present-day needs.
[23] The Agency has already interpreted maintenance as meaning those ongoing works necessary to keep a facility in good repair and in its as-constructed condition, while reconstruction means building again to a higher standard, qualitative change, modification, improvements and/or alterations that add to the value or improve the original design of the structure.
[24] It is noted that at present, the Rankin Lake Bridge has posted loading restrictions of a maximum of 24 tonnes and has an outdated wooden railing system. Older bridges such as this were designed for the vehicular traffic needs at the time of construction and their carrying capacities are often inadequate for present-day traffic needs, thus necessitating the imposition of loading restrictions. The applicant has indicated that the bridge is no longer adequate to support the load of today's emergency vehicles.
[25] The size of modern vehicles such as fire trucks has greatly increased the vertical loading placed on bridges, thereby requiring structures with greater capacity. A new structure designed in accordance with today's loading standards would permit the removal of the loading restrictions presently in place. In light of the foregoing, it is clear that the proposed overhead bridge, which is to be built in accordance with roadway standards that meet present-day needs, constitutes an improvement to the original design. The replacement of the bridge, therefore, should not be considered maintenance to keep the facility in good repair and in its "as-constructed" condition but rather as a reconstruction of a bridge that does not meet today's needs.
[26] Secondly, the Agency notes that although CN originally had exclusive responsibility for the structure, Order No. 119992 dated February 18, 1966 apportioned costs of reconstruction of the structure to both parties. Therefore, the Agency finds that both parties have an established responsibility in the overhead bridge.
[27] For a reconstruction of a grade separation where both parties have an established responsibility, paragraph 3a) of the Guidelines reads, in part, as follows:
3. For a basic grade separation that is required:
to reconstruct an existing grade separation in situations where both parties have responsibility or where the reconstruction is for the purposes of the party having no responsibility.
a) If a grade separation is to be constructed or an existing grade separation is to be reconstructed, the construction costs are normally apportioned as follows:
- On projects due primarily to road development –
- 85% road authority
15% railway company- On projects where both road and railway development have contributed largely to the need for the project –
- 50% road authority
50% railway company- On projects due primarily to railway development –
- 15% road authority 85% railway company
[28] In this case, the applicant argued that the work is not required as a result of evolving road development or traffic increases but rather because of the weight restrictions in place and the outdated bridge design. The applicant stated that the timber bridge built by CN in 1906 no longer meets present-day needs in terms of bridge construction standards. The applicant further argued that it is not improving the road alignment, other than a minor vertical adjustment on the bridge itself. The applicant does argue that it is railway development that necessitated the need for the project as without the existence of the railway there would be no need for the structure.
[29] CN argued that the need for this project was created as a result of the evolving road development and that the structure is to be built in accordance with standards that meet present-day road traffic needs so that the weight restrictions can be removed.
[30] The Agency has examined the arguments and is of the opinion that the reconstruction was initiated by the applicant in order to remove loading restrictions presently in place for vehicular traffic and to meet current highway bridge design standards. Therefore, the Agency concludes that this project is due primarily to road development.
[31] Finally, the Agency notes that there was no disagreement with respect to the basic grade separation or that portion of the work that is required to provide adequate facilities for present-day needs at the time of construction or reconstruction of the grade separation.
[32] In light of the above, the Agency determines that the Guidelines do apply and that this case is a reconstruction of a grade separation where both parties have responsibility and where the project is due primarily to road development. Therefore, in the event that the parties decide to proceed with the reconstruction of the overhead bridge as shown on the plans, the Agency orders that the project costs for the overhead bridge, as shown on the plan, be apportioned 85 percent to the applicant and 15 percent to CN.
[33] As for maintenance costs, Order No. 119992 dated February 18, 1966, which authorized the reconstruction of the bridge, apportioned the maintenance responsibility and costs to CN. As no information or special circumstances have been provided by either party that would warrant a deviation from the aforementioned Order, CN remains responsible for the maintenance of the reconstructed overhead bridge, as set out in that Order.
Members
- Guy Delisle
- Baljinder Gill
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