Ensuring future access to municipal utilities and infrastructure

By Lorne Randa, Partner, Brownlee LLP

What a paradox it would be to have the responsibility to do a repair to some municipal infrastructure and to be refused access to the property within which the infrastructure is located. Unfortunately, this situation happens more often than it should. However, through proper planning and preparation, a municipality can avoid this result.

What is an Easement? What is a utility right of way?

An easement and utility right of way are a form of legal license or permission granted by the landowner to another party to do something on the lands that would otherwise be prohibited.

At law, an easement must meet the following four criteria:

1. There must be a separate dominant (a parcel of land that benefits from the easement) and a servient tenement (a parcel of land that is burden or impacted by the easement;

2. The right claimed in the easement must accommodate or benefit the dominant tenement.  That is, the easement is provides some enjoyment and for benefit to the dominant tenement;

3. The dominant and servient must be separate and distinct parcels of lands (that is, there must be two or more titles); and

4. The right claimed must be capable of forming the subject matter of a grant, such as a right to access or cross over the servient tenements or the right to have some structure or infrastructure on or across the lands.

For an easement to "run with the lands" and bind future landowners these legal elements that must be present (otherwise known as "privity of estate").

A utility right of way is essentially a form of easement and license. The main difference, however, is that a utility right of way is granted by legislation to the Crown, a municipality, utility company or service provider without the need for there to be a separate title for the dominant tenement.

Registration of an Easement and Utility Right of Way

Easements and utility rights of way are the mechanism through which a municipality can legally be entitled to access a portion of privately-owned lands in order to provide a municipality with access and the ability to undertake work on infrastructure that is the municipality’s responsibility to operate and maintain. Pursuant to section 2 the Public Utilities Easements Act, RSS 1978, c P-45 (PUEA). There are a number of purposes that are valid purposes to register a public utility easement on the title to lands. This includes but is not limited to the right to construct, maintain and operate public utilities such as electricity, natural, water, sanitary sewer or storm water mains and distribution lines through a property, and the right to construct and maintain drainage ditches. The Public Utilities Easements Regulations, RRS c P-45 Reg 1 further provides that an easement may be for the right to access and use land for municipal road reconstruction and repair.

Section 25 of the Land Titles Act, 2000, SS 2000, c L-5.1 (LTA) requires that all instruments or interests in land must be registered at the Land Titles Registry. Easements and utility rights of way will be drawn up as instruments, which after properly executed, may be registered against title to the lands in the Land Titles Registry. That is, easements and utility rights of way are registrable interests pursuant to the LTA and the PUEA. Once registered, the interest in land remains with the property and is unaffected by any subsequent transfer or sale. This means that the easements and utility rights of way will run with the land and be binding on subsequent landowners, giving the municipality long-term access to the lands and an ability to operate and maintain its municipal infrastructure.

In order to register, a record must show the name of the interest holders, the share of each interest holder in the interest, and the address of each interest holder. Such interests in land may be registered against more than one title or parcel, pursuant to section 49(3) of the LTA. Additionally, interests in land such as this require a dominant tenement (a land which is the beneficiary of the interest) and a servient tenement (a land which provides the interest to the beneficiary). When an application for registration is made to the Registrar in the manner established in the LTA and its regulations, the Registrar registers the interest pursuant to section 53 of the LTA.

Once registered, the interest remains on title until it expires, lapses or is exhausted, in accordance with section 54(1) of the LTA, and it will only expire where the interest itself sets out an expiration date, or if registration of an interest is pursuant to an Act, until the end of the period set out in that Act, in accordance with section 55 of the LTA. In general, utility right of ways and easements cannot be challenged and lapsed in accordance with the LTA and its regulation and will only expire if the agreement itself includes an expiration date (however, in practice it is advised that such easements and utility right of way agreements should not include expiration dates).

When and how to Get an Easement or Utility Right of Way

Municipalities should consider what access they will need to private lands when constructing and installing municipal infrastructure and plan ahead. This should be a key consideration when undertaking such projects, including setting aside the necessary amounts for compensation to landowners to either negotiate or expropriate the required easements and rights of way. 

If the municipality owns the lands in which the infrastructure is located and plans to sell those lands, such easements and utility rights of way should be registered with the Land Titles Registry before any sale or transfer of lands. 

At the time of subdivision of lands, the municipality should require as a condition of such approvals that all necessary easements and utility rights of way are granted at the time of subdivision.  This can be recommended as conditions of subdivision approval and addressed in subdivision servicing agreement, as per section 172 of The Planning and Development Act, 2007, S.S. 2007, c.P-13.2. Likewise, necessary easements or rights of way can be required at the time of development and during the processing of development permits (subject to the wording of applicable municipal zoning bylaw). 

What if a municipality has infrastructure that they do not have access rights to?

In the event that a municipality has infrastructure that they do not have access to because of the failure to obtain the necessary easement or utility right of way when the infrastructure was constructed, a municipality has two options. The first, and usually the best first step, is to attempt negotiation with the landowner to see if they are willing to provide the consents required to give access. However, it should be noted that when trying to obtain legal access to private lands after the fact, do not be surprised to have the landowner may request significant compensation for access or damages due to the existence of municipal infrastructure on private lands. If the municipality is fortunate enough to reach an agreement, the easement or utility right of way should be put into writing in the form an agreement and then registered with the Land Titles Registry against the applicable titles.

If the landowner is unwilling to enter into an agreement with the municipality, the municipality’s only option then is to expropriate an interest in the lands.  Expropriation of either the fee interest or an easement interest lands can take a significant amount of time and can be quite costly of a process.  It will require the municipality to pay compensation in accordance with The Expropriation Procedure Act, R.S.S. 1978, c.E-16. The process set out in the Act must be followed exactly and often entails litigation to settle on the total compensation to be paid.

In the end, the most cost-effective and efficient manner of ensuring a municipality has access to its municipal infrastructure that is to run across or be located on private lands is to ensure easements and utility rights of way are granted at the time of project development, or from the developer at the time of subdivision or development. It is best for the municipality to be proactive and give due consideration to what land interests in needs so that it is not in the future held ransome by a private landowner or required to expropriate an interest in lands to access its own municipal infrastructure and utilities.

The Brownlee Municipal Law Team is pleased to offer our services in a number of planning and development areas, including processing development permit applications, subdivision applications, all related appeals, and adoption of planning bylaws.  For more information, please contact a member of the Brownlee LLP Municipal Team on our Municipal Helpline at 1-800-661-9069.