Decision No. 569-R-1991

November 19, 1991

November 19, 1991

APPLICATION by the Department of Highways and Transportation of the Province of Manitoba for authority to reconstruct the "highway", namely Provincial Trunk Highway No. 101, by widening it to include a North Service Road and a South Service Road, at grade across the track of Canadian Pacific Limited, at mileage 5.39 Arborg Subdivision, north of Section 1, Township 12, Range 2, east of the Principal Meridian, in the Rural Municipality of Rosser, in the Province of Manitoba.

File No. R 8050/008-005.39


On May 28, 1991, the Department of Highways and Transportation of the Province of Manitoba (hereinafter the applicant) applied to the National Transportation Agency (hereinafter the Agency), for authority to reconstruct the "highway" as set out in the title.

The applicant advised that it will bear all the costs of constructing the crossings and approach grades for the service roads.

POSITION OF THE APPLICANT

The applicant would like the service roads to be considered along with the centre lanes as part of one railway crossing. The applicant stated that the service roads are situated in one continuous right-of-way and with the centre lanes are, from a legal point of view, all part of Provincial Trunk Highway No. 101 (hereinafter P.T.H. 101).

The applicant suggested that the cost of maintenance of the entire crossing i.e. the existing four lane divided highway as well as the proposed service roads, should continue to be borne 30 percent by the railway company and 70 percent by the Province of Manitoba in accordance with Order No. R-6036 of the Railway Transport Committee dated June 25, 1969. The applicant further submitted that the Province of Manitoba was senior on a 99 foot allowance when the existing road was reconstructed as P.T.H. 101 and if the existing divided highway and the proposed service roads were built at this time, using present guidelines, the railway company, as junior party, would probably be required to bear a larger share of the crossing maintenance than 30 percent. The applicant has, however, advised that it will accept the decision of the Agency in this matter.

POSITION OF THE RAILWAY COMPANY

The railway company, in its submission, stated that the proposed service roads should be considered as two separate applications as the mileage for each service road changes from the mileage quoted in Order No. R-6036. The railway company noted that the mileage for the North Service Road is 5.42 Arborg Subdivision and the mileage for the South Service Road is 5.36 Arborg Subdivision. The crossing indicated in Order No. R-6036 is at mileage 5.39 Arborg Subdivision. The railway company also indicated that the railway is senior at the location of each of the proposed service roads.

The railway company, in its submission, advised that it has no objection to the construction of the proposed service roads, but does object to the 30 percent share of the crossing maintenance being imposed upon it. It considers that the 30-70 cost sharing (in accordance with Order No. R-6036, dated June 25, 1969, which authorized reconstruction and widening of P.T.H. 101 crossing at mileage 5.39 Arborg Subdivision) as proposed by the applicant should not be applicable to the construction of these additional service roads on new routes. The railway company is of the opinion that the cost of construction and future maintenance of the crossings should be borne 100 percent by the applicant.

FINDINGS

The Agency has given careful consideration to the submissions made by the parties.

The Agency has considered the evidence in this case in respect of road classification, road allowance and General Order No. E-4 entitled "Railway-Highway Crossing at Grade Regulations", SOR/85-75.

Mileage 5.39 crosses over P.T.H. 101 just north of the City of Winnipeg. P.T.H. 101 is classified as a rural arterial divided road. The Highway corridor is relatively straight or gradually curvilinear to permit constant high-speed operations. If lower design speed is required for traffic moving to and from adjacent properties, rural local roads may be constructed parallel to the rural arterial divided road to reduce the interruptions in the flow characteristics of the rural arterial divided road.

Even though their annual daily traffic and traffic characteristics may be different, the rural arterial divided road and the rural local road when constructed within the existing right-of-way are considered to be part of the same road system. Drawing No. 6490 dated May 28, 1991 supports this argument. The Agency concludes that the service roads are part of the same highway as referred to in Order No. R-6036 dated June 25, 1969.

When the railway company is the junior party, as it is in this case, it is not responsible for maintenance costs incurred beyond the width of the original highway right-of-way according to General Order No. E-4. The width of the original highway right-of-way is 99 feet and the width of the crossing surface of the divided centre lanes and service roads is approximately one hundred and fifty feet. Therefore, the railway company would be required to pay more than 30 percent of the maintenance cost of the entire crossing. Nevertheless, as the applicant is prepared to continue to bear the cost of maintenance in accordance with Order No. R-6036, the Agency concurs with the request of the applicant.

It is considered that thirty percent of the cost of maintenance of the widened crossing shall be paid by the railway company and the balance of the cost shall be paid by the applicant.

The cost of reconstructing the crossing and the highway approaches to the crossing shall be paid by the applicant in accordance with its request.

Date modified: