Q: A road in our neighbourhood has recently been closed. This road has
provided access to a parcel of land for more than 50 years. What powers
do municipalities have to close roads? What if the road is over private
land?
A: The powers of municipalities are set out in the respective
provincial municipal legislation. In Alberta, a rural municipality must
take several steps before it can close a road. First, the intention to
close a road must be advertised, and people who might be affected must
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be given the opportunity to be heard. The provincial minister of
infrastructure must approve the closing before the second reading of
the bylaw. Any person who suffers damage from the road closing must be
compensated. If the parties can’t agree on compensation, the amount
will be determined by the Land Compensation Board. If the road is no
longer required because an alternate route is available, the
municipality can close the road by simple resolution, subject to the
approval of the infrastructure minister.
In Manitoba, ministerial permission is required. Notice of closure must
be given and a hearing held. The procedure is similar in Saskatchewan,
although in that province a strict reading of the legislation appears
to say the road can only be closed “for the purpose of leasing the part
for cultivation or grazing or both.”
In Saskatchewan, a municipality can also open a temporary road across
private land “where in the opinion of council, the condition of public
roads in the neighbourhood makes such action necessary or expedient.”
Such a road can only exist for two years.
What if there is a road across private land and it has not been
established by a municipality? In law, two landowners can agree that
one can have access to his land across the other’s land. Thus K can
agree that D can cross her land to get to his land. The agreement can
provide that anyone coming to see D can also use this route. This
agreement can be by a contract that applies only between K and D. The
contract can apply for a certain number of years or for as long as both
are owners of the land.
Alternatively, they can enter into an agreement to give all future
owners of D’s land the right to cross K’s land and bind future owners
of K’s land to provide such access. This is known as an easement. To be
binding, it must be registered in the land titles office.
In some provinces such as Manitoba and Ontario, an easement can arise
by the passage of time. If D has been crossing the land for 40 years,
an easement arises even though there is no formal agreement. This is
known as easement by prescription. Because of specific legislative
provisions, such easements by prescription cannot occur in
Alberta and Saskatchewan.
Don Purich is a former practising lawyer who is now involved in
publishing, teaching and writing about legal issues. His columns are
intended as general advice only. Individuals are encouraged to seek
other opinions and/or personal counsel when dealing with legal matters.
