Decision No. 726-R-1992

December 2, 1992

File No. R 8050/564-S78.06

BACKGROUND

On April 1, 1991, following unsuccessful negotiations with the Canadian National Railway Company (hereinafter the railway company), Reid and Associates Limited applied to the National Transportation Agency (hereinafter the Agency) on behalf of its client, Trillium Homes Limited (hereinafter the applicant), for authority to construct a level crossing.

POSITION OF THE RAILWAY COMPANY

The railway company opposed the construction of a new crossing stating that the area is accessible from the existing 8-9 Concession Road located on the east side of the track at mileage 78.30 of the Beeton Spur. The railway company stated that the proposed crossing is not required for reason of public necessity but merely to provide a more convenient access to the Trillium Industrial Subdivision. It added that the creation of any new crossing jeopardizes the safety of the travelling public and, therefore, the creation of an unnecessary crossing should not be tolerated. It is the opinion of the railway company that the proposal of the applicant is based on an effort to maximize the return on investment of the developer and not out of concern for, or in the interest of, public safety, convenience or necessity.

With respect to the drainage at the crossing, the railway company requested that drainage of the railway right-of-way at the proposed crossing be shown on the plans and that culverts be indicated and supplied on both highway approaches to the crossing in line with the railway ditches. The railway company added that although the drainage along the railway is not dependent upon the drainage pattern of the adjoining lots, it has requested that culverts be installed on both the east and west highway approaches to the crossing, in line with the railway ditches. It was further stated that the correct method in constructing a new road and a new crossing at grade is to install culverts in line with the railway ditches.

POSITION OF APPLICANT

The applicant advised that this crossing is only required to gain access to lots located on the east side of the railway and is by no means a major crossing on an arterial or collector road system nor is it crossing a main line track where there is a constant or high volume of trains. The applicant stated that it will bear the total cost of construction complete with approvals and advised that the future maintenance costs of the crossing will be the responsibility of the Town of Innisfil. The Town of Innisfil confirmed that it will accept the future maintenance costs of the crossing and of the highway approaches to the crossing.

With respect to the question of alternate accessibility to the property, the applicant stated that providing an access from the 9th Line would require approximately 400 m of road in a 26 m right-of-way through one of the lots, thus eliminating its potential for building purposes, or the acquisition of additional land beyond the limits of the development. The four lots would also require a redistribution of lot sizes. From a marketing perspective, it may be quite difficult to sell the land as it does seriously restrict the type of industry and size of building which can be constructed. The additional construction, engineering, legal and administrative costs associated to comply with the request of the railway company would be exorbitant with a potential minimum expenditure of $500,000.00, a cost which just cannot be justified in today's economic climate.

Included with its application, the applicant filed plans of the crossing which did not show culverts for the drainage. The applicant advised that the location of the proposed level crossing appears to be at a high point with drainage split in two directions along the railway property. Drainage along railway property does not depend on the drainage pattern of the lots and what minimal drainage there would be draining from the railway property would be diverted through the roadside ditch to the retention pond, thereby eliminating any need for a road culvert at the crossing.

FINDINGS

The Agency has considered the material on file and has determined that the construction of the new crossing is warranted by the new development and that providing this new access is in the public interest.

Concerning the drainage at the crossing, the topography of the land in the area of the crossing as well as the existing and proposed drainage indicate that most of the surface runoff would be drained away from the crossing. In view of this, the Agency is of the opinion that the installation of culverts along the railway ditches on both sides of the crossing is not necessary.

The Agency notes that safety concerns have been raised. However, as safety is no longer under the jurisdiction of the Agency, these arguments have not been addressed.

An order to this effect will issue.