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Loss of access
J. Bruce Melville
The following paper was written for presentation at the Annual Fall Seminar of the Alberta Expropriation Association held in Canmore, Alberta on September 20-21, 2002. This article was contributed by J. Bruce Melville, a lawyer in private practice with an office in the greater Vancouver area of British Columbia. It has been reproduced here with permission from the author.

1. BACKGROUND

Access is the ability to move people and goods by any method of locomotion between a parcel of land and a network of public highways. A public highway is any highway, road, street, pathway, trail or other land in public ownership to which the public has a right of passage.

Access is a critical feature of land. Without access, a parcel of land has little utility and often no value.

Loss of access can be caused by expropriation. It can also result from regulatory actions or actions taken on adjacent land. Loss of access can also occur as the result of trespass. Those actions might be taken by public agencies or by private parties.

Whether compensation is available when access has been taken away or interfered with is a complex area of the law. Entitlement to compensation will depend firstly, on the facts of each case. It will also depend on whether the owner has a legal right of access, any applicable legislation, the case law and perhaps other factors. The amount of compensation also depends entirely on the facts of each case. Legal advice should be obtained by anyone affected by a loss of access.

This article does not attempt to definitively set forth the law surrounding compensation for loss of access. Instead, it will focus on describing the numerous fact patterns in which loss of access can arise. There are many references to cases which will illustrate these situations.

2. ACKNOWLEDGEMENT

The author wishes to acknowledge the work of William B. Stoebuck, Professor of Law, University of Washington, published in Non-Trespassory Takings in Eminent Domain, The Michie Company, 1977. Professor Stoebuck's analysis of American law on this subject provided a useful starting point for this article.

3. THE RIGHT OF ACCESS

The right of access was established long ago in the common law. The leading case is Marshall v. Blackpool, a 1935 decision of the English House of Lords. Here is Lord Atkin's statement of the law in Marshall:

The owner of land adjoining a highway has a right of access to the highway from any part of his premises. ... The rights of the public to pass along the highway are subject to this right of access: just as the right of access is subject to the rights of the public, and must be exercised subject to the general obligations as to nuisance and the like imposed upon a person using the highway.

Marshall was quickly adopted by the Supreme Court of Canada in Toronto Transit Commission v. Swansea (Village) which was released later the same year. Here is what the court stated:

There is no difficulty upon the question of the right at common law of an owner of land adjoining a public highway. He is entitled to access to such highway at any point at which his land actually touches such highway for any kind of traffic which is necessary for the reasonable enjoyment of his premises and will not, as he proposes to conduct it, cause a substantial nuisance.

A related common law principle is the right of the public to use a public highway. However, the right of access pertains to movements to and from a highway by an adjacent land owner whereas the right to use a public highway pertains to movement along a highway by the public. Once access to a highway has been obtained, an adjacent land owner has the same rights to use of the highway as any other member of the public. It is important to remember this distinction when reviewing the case law.

4. ISSUES

The first issue is the extent of the loss or interference with access. Although there is a subtle distinction between loss and interference, the term loss will be used in this article to describe both situations.

There are two general fact patterns in which loss of access cases tend to fall. The first is where access is completely extinguished. The second is where access is only partially removed or restricted.

The second issue is the duration of the loss. In some cases, the loss is permanent and in others it is only temporary.

The final issue is the availability of legal remedies. This depends upon the circumstances in which loss of access occurs and the applicable legislation.

5. EXTENT

5.1 Total loss

Total loss of access occurs where a right of access is completely extinguished either legally or physically or both. Extinguishment of access can occur either directly at the highway frontage or at some point remote from the subject property.

5.1.1 Direct

5.1.1.1 Legal highway closure

The legal closure of a public highway at the boundary of the subject property will effectively landlock the subject property in the absence of any other highway frontage or a private agreement for access over other parcels. Public highways may be legally closed under a variety of statutes. Many of them anticipate the potential for landlocking and provide an administrative mechanism to ensure that alternate access is provided to each affected parcel before the closure takes effect.

See Credit Foncier, Pensa and Pratt

5.1.1.2 Denial of highway access permit

In some cases, access to an adjacent public highway may be denied pursuant to a legal permitting process. In this situation, the public highway is not closed but access from the property to the highway is taken away through denial of a required permit. For example, driveway or highway access permits are common on arterial roads that carry large volumes of traffic where unrestricted driveway access can present a safety hazard to motorists.

See Marshall and Ducharme

5.1.1.3 Denial of surface access permit

There are a number of mining cases which provide strong parallels to the denial of highway access permit situation. Typically, the subject property consists of undersurface mineral rights rather than a fee simple title. These mineral rights cannot be effectively accessed for exploration or production purposes without gaining access first to the surface of the claims. In most of these cases, a provincial park was established on the surface after the mineral rights had been Crown granted. Surface access was available at the time the mineral claims were first established but an access permit process became applicable after the park was established. Access permits were subsequently denied in order to preserve park values. This action effectively extinguished all access to the mineral claims and left them landlocked.

See Tener

5.1.1.4 Physical obstruction of access

Physical blockage of access to a public highway at the property boundary can occur in a number of ways. In some cases, the blockage occurs through placement of a barrier. In others, it is caused by excavation of a ditch or a change in the elevation of the highway. In all of these situations, the legal right of access remains in place but physical access cannot be achieved.

Ducharme is a good illustration of this situation. The subject property had public highway frontage on all four sides. However, a drainage ditch constructed within the highway right of way separated the subject property from the travelled portion of the highway. The ditch rendered access impossible. However, as is often the case, the access problem could be resolved by the construction of a bridge or culvert.

See also Covucci and Stoneman

5.1.1.5 Limited access highways

Limited access highways present an obvious access issue. The purpose of this type of highway design, is to increase the capacity of the highway by restricting the number of access points. Such highways are generally designed to physically restrict access except at designated interchanges. The restricted access is often enforced by legal means as well.

If a limited access highway is constructed at the boundary of a property where no access previously existed, the denial of access to this new highway may not produce any losses although it could nevertheless interfere with the owner's common law right of access. However, if the limited access highway is constructed on the same alignment as a previously existing highway, access previously enjoyed may be taken away and losses are almost certain. For examples of both situations, see Bethell Concrete and Empringham.

5.1.1.6 Failure to maintain an existing constructed highway

Failure to maintain an existing constructed highway could lead to loss of access. Examples might include a rockslide or collapse of a bridge where the highway authority elects not to restore the highway. However, there are few examples of this situation in the case law.

5.1.2 Remote

Legal or physical blockage of access can occur at some point remote from the subject property but nevertheless create significant access problems. For examples, see Byng Hotel, Caledonian Railway, Gerry's Food Mart, Jesperson, Newfoundland and Loiselle

5.2 Partial loss

Partial losses could occur in many of the situations described above.

Median barrier cases provide a good illustration. Installation of a median barrier in the adjacent highway involves placement of a physical obstruction that will restrict left turn access. This does not eliminate access but it makes it more difficult. An example of this is found in Windsor.

Another illustration is found in Harvey. This case involved the erection of a fuel storage tank and other shipyard works within a street right of way which occupied about two thirds of the available width. This reduced but did not eliminate the ability of an adjacent land owner to ship materials to and from his factory.

6. DURATION

Whether loss of access in any specific case should be classified as temporary or permanent depends largely upon the intentions of the authority determined at the time when loss of access first takes place. However, few situations are truly permanent and almost any lost access can be restored if it becomes desirable to do so in the future.

The distinction is important however because it usually affects the remedies available.

6.1 Permanent

This situation is straight forward. A permanent loss occurs when the elimination of access is intended by the authority to last indefinitely. Permanent loss of access often occurs during highway upgrading projects. In fact, elimination of direct access to the highway is often an important objective in these projects. For examples, see Captain's Square and Hewitt

6.2 Temporary

Temporary loss of access situations are more varied. Often it arises from construction activity whether on land expropriated or on land adjacent to the claimant's property. In these situations, the loss of access lasts only for the duration of the construction requirements. Other situations have involved winter street maintenance and queues of theatre patrons. For examples, see Byng Hotel, Kuzyk, Neff, Prentice, Strand Theatre and Trappa Holdings

7. LEGAL REMEDIES

The possibility of physical remedies should not be overlooked. This would include removal of physical obstructions, the rebuilding of existing access routes and the construction of new access routes. However, this discussion will be confined to legal remedies.

The availability of legal remedies depends upon the facts. Several categories must be considered: expropriation, injurious affection without taking, nuisance and trespass.

7.1 Expropriation

Expropriation occurs when an interest in land is taken pursuant to statutory authority without the consent of the owner. The owner is normally entitled to compensation determined in accordance with the statute authorizing the expropriation.

Where an owner's entire interest in a parcel of land is taken loss of access issues do not arise. This remedy would only apply to loss of access cases where part only of a parcel of land is expropriated (a partial taking).

The concept of injurious affection arises in the context of partial takings. Injurious affection is a category of compensation. It does not have a universal meaning throughout Canada. Under some statutes it refers only to market value impacts. In others it includes personal or business losses or damages to land not reflected in market value impacts. However, for the purpose of this article it refers to a reduction in market value of the remaining land after a partial taking.

Compensation for permanent loss of access is usually treated as injurious affection and measured by the loss in market value of the remaining land. Temporary loss is usually treated as disturbance and measured either by business losses or the cost to cure or some combination of the two. For examples, see Captain's Square, Hewitt, Kuzyk and Neff

Constructive expropriation describes a situation where there is no formal expropriation but actions by an expropriating authority have produced a similar result. Compensation is available in these cases as well. See Tener.

7.2 Injurious affection without taking

This category describes situations where there is no expropriation whether formal or constructive. Nevertheless, activities of expropriating authorities can sometimes cause injury to land. Interference with access is perhaps the best example of this.

This legal remedy is entirely statutory. Where the remedy exists, it is normally found in the statute that authorizes the activity that caused the injury to adjacent or nearby land. The remedy is intended to replace the common law remedy of nuisance that would otherwise be available had the activity not been authorized by statute. The conditions necessary to provide compensation are complex and not surprisingly there are relatively few cases where compensation awards have been made. Some examples include Byng Hotel, Empringham and Gerry's Food Mart.

A common example is found in road closure legislation. Many statutes contain procedures for the formal legal closing of a public highway. Typically these statutes provide for the interests of adjacent land owners and some of them require that compensation be paid to a land owner facing a loss of access by reason of a road closure. For road closure examples, see Credit Foncier, Pensa and Pratt.

7.3 Nuisance

Nuisance is a common law remedy. It applies to the same type of injury described in para. 7.2. The difference is that nuisance applies to situations where the injury is not authorized by statute. Where nuisance exists, a court could grant a declaration, order an injunction or award damages.

See Falkoski, Mitchell and Prentice

7.4 Trespass

Trespass occurs when there is an entry upon land without the consent of the owner. Under some legislation, entry upon land by an expropriating authority constitutes an act of expropriation. In that case, expropriation remedies would be available and trespass is not applicable. However, in other loss of access cases a trespass may exist and remedies including declarations, injunctions and damages would be available.

See Stoneman

8. CASE LAW

The following cases illustrate many of the "loss of access" situations described above:

Bethell Concrete Products Ltd. v. Ontario
(1977), 14 L.C.R. 1 (Ont. H.C.)

No taking - permanent loss of access - application for a declaration - controlled access highway designation pursuant to the Public Transportation and Highway Improvement Act, R.S.O. 1970, c. 201 - statute did not provide for compensation - application dismissed

British Columbia v. Tener
(1985), 32 L.C.R. 340 (S.C.C.)

No taking - permanent loss of access - claim for compensation based on constructive expropriation - Crown granted mineral claims lying within an area later established as a provincial park - park legislation imposed a permit requirement for surface access to the mineral claims - permit denied - claimant entitled to compensation

Byng Hotel (1976) Ltd. v. Cranbrook (City)
(1980), 21 L.C.R. 153 (B.C. Arbitration)

No taking - temporary and permanent loss of access - claim for compensation pursuant to the Municipal Act, R.S.B.C. 1979, c. 290 - a road closure permanently diverted traffic away from the claimant's hotel and access was blocked altogether during construction - compensation awarded for loss in market value but not for business losses

Caledonian Railway Co. v. Walker's Trustees
(1882), 7 A.C. 259 (Eng. H.L.)

No taking - permanent loss of access - claim for compensation pursuant to the 1845 English Lands Clauses Consolidation Act - street patterns changed due to construction of an elevated railway crossing which made access to a cotton mill on the subject property from the main thoroughfare more indirect - access to the claimant's property could only be obtained by travelling 1,485 feet in one direction or 265 feet in the other - compensation awarded

Captain's Square Holdings Ltd. v. British Columbia
[1997] BCEA 222, 61 L.C.R. 68 (B.C.E.C.B.)

Partial taking - permanent loss of access - claim for compensation pursuant to Expropriation Act, S.B.C. 1987, c. 23 - authority taking adjacent property which was encumbered by an easement that provided access to the claimant's property - the taking included the claimant's interest in the easement - authority liable to compensate

Covucci v. Trail (City)
[1996] B.C.J. No. 3129 (B.C.S.C.)

No taking - permanent loss of access - application for a declaration - highway obstruction approved by municipality by way of a licence agreement - licence permitted unconstructed road allowance to be landscaped by adjacent land owner - municipality not permitted to authorize such use - declaration granted

Credit Foncier Franco-Canadien v. Swansea
[1940] 1 D.L.R. 446 (Ont. C.A.)

No taking - permanent loss of access - application to quash a bylaw - road closure bylaw enacted by municipality pursuant to the Municipal Act, R.S.O. 1937, c. 266 - property adjacent to highway deprived of one means of access although a second remained available - application dismissed but the court observed that the statute provided for compensation for injurious affection caused by the road closure

Ducharme v. Tache (Rural Municipality)
[1978] 5 W.W.R. 591 (Man. C.A.)

No taking - permanent loss of access - application to compel issue of an access permit - subject property surrounded by public highways - drainage ditches were also constructed within the highway right of way adjacent to the boundaries of the subject property - the court held that the municipality had a statutory right to regulate access to public highways but that did not allow it to deny access altogether - municipality ordered to reconsider access permit application

Empringham Catering Services Ltd. v. Regina (City)
[2002] 3 W.W.R. 286 (Sask. C.A.)

No taking - permanent loss of access - claim for compensation pursuant to the Urban Municipality Act, S.S. 1983-84, c. U-11 - claimant denied access to a controlled access expressway that abutted the claimant's property - alternate but inferior access was still available - compensation awarded

Falkoski v. Osoyoos (Town)
[1998] BCEA 261, 46 M.P.L.R. (2d) 215 (B.C.S.C.)

No taking - permanent loss of access - claim for damages in nuisance - municipality approved a residential development on the surface of the claimant's mineral claims - development interfered with access to the claims - damages awarded

Gerry's Food Mart Ltd. v. St. John's (City)
(1992), 49 L.C.R. 180 (Nfld. C.A.)

No taking - permanent loss of access - claim for compensation pursuant to Urban and Rural Planning Act, R.S.N. 1970, c. 387 - construction of highway bypass and closure of former highway route on which claimant's gas bar and convenience store was located - claimant's property left on a little used cul-de-sac - compensation awarded

Harvey v. British Columbia Boat & Engine Co.
(1908), 14 B.C.R. 121 (B.C.S.C.)

No taking - permanent loss of access - application for an injunction to remove a permanent obstruction from the street adjacent to the applicant's property - obstruction caused by a fuel storage tank and shipyard works occupying approximately two thirds of the width of the highway right of way - injunction granted - contains a very useful statement of the distinction in law between the rights of ordinary users of public highways and the rights of adjacent land owners

Hewitt v. Ontario (Minister of Transportation and Highways)
(1984), 31 L.C.R. 227 (Ont. M.B.)

Partial taking - permanent loss of access - claim for compensation pursuant to the Expropriations Act, R.S.O. 1980, c. 148 - property severed leaving a portion of the remainder landlocked - compensation awarded for injurious affection

Jesperson's Brake & Muffler Ltd. v. Chilliwack (District)
[1994] BCEA 120, 52 L.C.R. 95 (B.C.C.A.)

No taking - permanent loss of access - claim for compensation pursuant to Municipal Act, R.S.B.C. 1979, c. 290 - re-construction of adjacent highway made access to claimant's property more difficult - compensation awarded for reduction in market value

Kuzyk v. Windsor (City)
(1984), 30 L.C.R. 223 (Ont. M.B.)

Partial taking - temporary loss of access - claim for compensation pursuant to the Expropriations Act, R.S.O. 1980, c. 148 - nursery business on remainder was affected during construction - damages awarded for business loss

Marshall v. Blackpool
[1935] A.C. 16 (Eng. H.L.)

No taking - permanent loss of access - application to compel issue of a municipal access permit - applicant owned land adjacent to the highway and wished to construct a driveway across the sidewalk to reach the street - municipality rejected the claimant's permit application - municipality order to issue the permit - leading English case on law of access

Mitchell v. Sandwich, Windsor & Amherstburg Railway Co.
(1914), 22 D.L.R. 531 (Ont. C.A.)

No taking - permanent loss of access - claim for damages in nuisance - access to plaintiff's property obstructed by street railway construction in the adjacent street - statutory authorization not obtained by the railway prior to construction - damages awarded

Neff v. Durham (Town)
(1986), 37 L.C.R. 281 (Ont. M.B.)

Partial taking - temporary loss of access - claim for compensation pursuant to the Expropriations Act, R.S.O. 1980, c. 148 - gas station business on remainder affected during construction - damages awarded for business loss

Newfoundland (Minister of Workers, Services and Transportation) v. Airport Realty Ltd.
(2001), 76 L.C.R. 1 (Nfld. C.A.)

No taking - permanent loss of access - claim for compensation pursuant to the Expropriation Act, R.S.N. 1990, c. E-19 - relocation of main airport access road away from subject property which contained a hotel - subject property no longer visible from the main access road and access to the hotel was now provided by a separate hotel access road - compensation awarded

Norway Pines Cabins Ltd. v. Ontario (Minister of Highways)
[1967] 1 O.R. 12 (Ont. C.A.)

No taking - permanent loss of access - claim for compensation pursuant to the Expropriation Procedures Act, S.O. 1962-63, c. 43 - parcel of land fronting on a public highway - subject property developed with a restaurant, gas station, store and motel - the highway was widened and curbing installed entirely within an existing right of way - highway not designated as controlled access - claimant entitled to compensation

Pensa v. Canadian National Railway
[1939] 1 D.L.R. 183 (Ont. C.A.)

No taking - permanent loss of access - claim for damages - railway obstructing street adjacent to plaintiff's property and interfering with access - railway works constructed before street was legally closed - railway liable for damages during the period before the road was closed - court observed that compensation for the road closure might be available under the Municipal Act, R.S.O. 1937, c. 266.

Pratt v. Camrose (City)
(2000), 69 L.C.R. 149 (Alta. L.C.B.)

No taking - permanent loss of access - claim for compensation pursuant to Municipal Government Act, R.S.A. 2000, c. M-26 - municipal road closure - compensation awarded for increased transportation costs

Prentice v. Sault Ste. Marie (City)
[1928] 3 D.L.R. 564 (S.C.C.)

No taking - temporary loss of access - claim for damages in nuisance - municipal workers created a hazard by leaving a patch of ice on a driveway leading to the plaintiffs' property - the hazard was located within the highway right of way adjacent to the plaintiff's land - personal injury resulting from a slip and fall on the ice - damages awarded

R. v. Loiselle
[1962] S.C.R. 624 (S.C.C.)

No taking - permanent loss of access - claim for compensation pursuant to the St. Lawrence Seaway Authority Act, R.S.C. 1952, c. 242 - claimant's gas station located on a busy highway - highway diversion constructed 1500 feet from the subject property - after construction the subject property was left near the end of a dead end street - compensation awarded.

Stoneman v. Halifax (City)
[1936] 2 D.L.R. 504 (N.S.C.A.)

No taking - permanent loss of access - claim for damages in trespass - municipality constructed retaining wall partly on claimant's property - the retaining wall cut off access to the land - damages awarded for trespass but not specifically for loss of access because the municipal charter expressly provided immunity from this type of action

Strand Theatre Co. v. Cahill
(1920), 61 S.C.R. 100 (S.C.C.)

No taking - temporary loss of access - application for injunction - customer access to a shop restricted by lengthy queues of patrons which formed regularly at a nearby theatre in Halifax - injunction granted to prohibit theatre owner from permitting the queues to form

Thomson Lumber & Building Materials Ltd. v. Ontario (Minister of Highways)
(1964), 44 D.L.R. (2d) 639 (Ont. C.A.)

No taking - permanent loss of access - claim for compensation pursuant to the Highway Improvement Act, R.S.O. 1960, c. 171 - subject property surrounded by public highways on four sides - the elevation of the highway was lowered within the existing right of way on one frontage - access from that frontage was eliminated - the legislation did not expressly provide compensation for injurious affection without taking - however the owner's right of access to the highway was construed to be part of its interest in the land and this right had been taken by the Minister's entry and use - compensation awarded as if there had been a taking

Toronto Transit Commission v. Swansea (Village)
[1935] S.C.R. 455 (S.C.C.)

No taking - permanent loss of access - application for a declaration that a municipality could be compelled to change the level of the sidewalk and curb adjacent to the applicant's property - the curb and sidewalk interfered with access - however the works were constructed before the applicant acquired the property and compensation would have been payable to the owner at the time they were constructed - application dismissed - this is the leading Canadian case on the law of access and it expressly adopts the law set out in Marshall

Trappa Holdings Ltd. v. Surrey (District)
[1978] 6 W.W.R. 545 (B.C.S.C.)

No taking - temporary loss of access - claim for damages in nuisance - municipality reconstructing street adjacent to claimant's property - construction activity and signage discouraged customer traffic - damages for business loss awarded - defence of statutory authorization rejected

Walter Woods Ltd. v. Edmonton (City)
(1964), 42 D.L.R. (2d) 689 (S.C.C.)

No taking - permanent loss of access - claim for compensation pursuant to the City Act, R.S.A. 1955, c. 42 - overpass constructed on the street in front of the claimant's property - compensation awarded

Windsor (City) v. Larson
(1980), 20 L.C.R. 344 (Ont. H.C.)

No taking - permanent loss of access - claim for compensation pursuant to the Expropriations Act, R.S.O. 1970. c. 154 - median barrier constructed on adjacent street - barrier prevented left turn access into subject property - compensation awarded

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