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HomeMy WebLinkAbout2021-PPW-064 Encroachment onto Roads & Road Allowances COUNTY OF NEWELL - POLICY HANDBOOK POLICY NO: 2021-PPW-064 TITLE: ENCROACHMENT ONTO ROADS/ROAD ALLOWANCES ADOPTED: August 5, 2021 (C-258/21) SUPERCEDES NO: n/a TO BE REVIEWED: PAGE NO: 1 of 6 POLICY PURPOSE: 1. The purpose of this Policy is to establish guidelines and procedures regarding requests to authorize/license encroachments onto roads/road allowances under the direction, control, and management of the County of Newell. For clarity, authorizations for Encroachments are always at the County of Newell’s sole discretion. 2. Under the Municipal Government Act, RSA 2000, c M-26 (the “MGA”), the title to all roads in a municipality is vested in the Crown in the right of Alberta. 3. Under Section 18 of the MGA, a municipality has the direction, control and management of all roads within the municipality. 4. Section 61 of the MGA authorizes a municipality to grant rights over its property as follows: 61(1) A municipality may grant rights, exclusive or otherwise, with respect to its property, including property under the direction, control and management of the municipality. (2) A municipality may charge fees, tolls and charges for the use of its property, including property under the direction, control and management of the municipality. 5. Section 651.2 of the MGA authorizes a municipality to register a caveat with respect to permitted encroachments over roads as follows: 651.2 (2) Despite the Land Titles Act or any other enactment, a municipality may register a caveat under the Land Titles Act in respect of any encroachment agreement entered into by the municipality with the registered owner of a parcel of land that adjoins a road that is under the direction, control and management of the municipality. COUNTY OF NEWELL - POLICY HANDBOOK POLICY NO: 2021-PPW-064 TITLE: ENCROACHMENT ONTO ROADS/ROAD ALLOWANCES ADOPTED: August 5, 2021 (C-258/21) SUPERCEDES NO: n/a TO BE REVIEWED: PAGE NO: 2 of 6 6. The Council of the County of Newell hereby delegates the authority to implement this Policy to its Chief Administrative Officer (“CAO”) or his designate. 7. The CAO or his designate is hereby authorized to revise the standard form of Agreements referred to in this Policy as may be required or desirable from time to time. DEFINITIONS: 8. “Applicant” – Any party who has encroached onto lands in which the County of Newell holds an interest or is subject to the direction, control and management of the County of Newell. 9. “Encroachment” – An illegal intrusion onto lands (including a structure, improvement or use) in which the County of Newell holds an interest or is subject to the direction, control and management of the County of Newell. 10.“Plan of Survey” – such plan, survey, diagram or document as may be acceptable to the CAO or his designate including, but not limited to, a Real Property Report prepared by a registered Alberta Land Surveyor. 11.“Road Encroachment Agreement” – The County of Newell’s standard form of Agreement, as amended from time to time in accordance with this Policy, for situations in which a structure is to be permitted onto a road/road allowance under the direction, control and management of the County of Newell. 12.“Road License Agreement” – The County’s standard form of Agreement, as amended from time to time in accordance with this Policy, for situations where a particular use is to be permitted over a road/road allowance under the direction, control and management of the County of Newell. COUNTY OF NEWELL - POLICY HANDBOOK POLICY NO: 2021-PPW-064 TITLE: ENCROACHMENT ONTO ROADS/ROAD ALLOWANCES ADOPTED: August 5, 2021 (C-258/21) SUPERCEDES NO: n/a TO BE REVIEWED: PAGE NO: 3 of 6 GUIDELINES/PROCEDURES – ENCROACHMENT (STRUCTURE) ONTO A ROAD/ROAD ALLOWANCE 13.For Encroachments of a structure onto a road/road allowance under the direction, control and management of the County of Newell, the Applicant will submit to the CAO or his designate, particulars of the Encroachment (Structure) including the legal description of the lands upon and from which the Encroachment (Structure) exists or is proposed, a Plan of Survey detailing the Encroachment (Structure) and any other information the CAO or his designate requires (the “Application”). 14.Upon full payment of the application fee pursuant to the current Schedule of Fees Bylaw 1999-20, as amended or repealed and replaced from time to time, and a completed Application, the Application will be reviewed by the CAO or his designate as to whether the County of Newell is willing to consent to the Encroachment (Structure). 15.If the CAO or his designate accepts the Application, notices will be sent out to landowners adjacent to the road/road allowance, as well as to relevant utility companies, to ensure they have no objection to the Encroachment (Structure). 16.Any person can provide a written reason for or against the Encroachment (Structure) within fourteen (14) days of the date the notification was sent. 17.Upon consideration of any written responses, the CAO or his designate will make a determination on whether to grant the County of Newell’s consent to the Encroachment (Structure) at his or her own discretion. 18.If the County of Newell is willing to grant its consent to the Encroachment (Structure), then the CAO or his designate will prepare a Road Encroachment Agreement to be forwarded to the Applicant for review, execution and returned to the County of Newell for execution by the County of Newell’s authorized signing officers. COUNTY OF NEWELL - POLICY HANDBOOK POLICY NO: 2021-PPW-064 TITLE: ENCROACHMENT ONTO ROADS/ROAD ALLOWANCES ADOPTED: August 5, 2021 (C-258/21) SUPERCEDES NO: n/a TO BE REVIEWED: PAGE NO: 4 of 6 19.In issuing a Road Encroachment Agreement, the CAO or his designate may impose such terms and conditions determined to be necessary or beneficial in his or her sole discretion, including but not limited to: insurance requirements, termination terms, County of Newell indemnification, and limitations on the Applicant’s access or use. 20.Any Road Encroachment Agreement granted will be for non-exclusive access and the Applicant may not prevent the public from accessing or travelling along the road/road allowance. An Applicant does not have the right to bar entry to anyone wishing to travel the road/road allowance or use the road/road allowance as access. 21.Upon full execution of the Road Encroachment Agreement, the CAO or his designate will take the necessary steps to register the Road Encroachment Agreement by way of caveat at the Alberta Land Titles Office. 22.For clarity, the County of Newell’s consent to an Encroachment (Structure) is always subject to and conditional upon full execution of a Road Encroachment Agreement. GUIDELINES/PROCEDURES – ENCROACHMENT (USE) OVER A ROAD/ROAD ALLOWANCE 23.For situations involving a particular use to be permitted over a road/road allowance under the direction, control and management of the County of Newell, the Applicant will submit to the CAO or his designate, particulars of the Encroachment (Use) including the legal description of the lands upon and from which the Encroachment (Use) exists or is proposed, a Plan of Survey detailing the Encroachment (Use) and any other information the CAO or his designate requires (the “Application”). 24.Upon full payment of the application fee pursuant to the current Schedule of Fees Bylaw 1999-20, as amended or repealed and replaced from time to time, COUNTY OF NEWELL - POLICY HANDBOOK POLICY NO: 2021-PPW-064 TITLE: ENCROACHMENT ONTO ROADS/ROAD ALLOWANCES ADOPTED: August 5, 2021 (C-258/21) SUPERCEDES NO: n/a TO BE REVIEWED: PAGE NO: 5 of 6 and a completed Application, the Application will be reviewed by the CAO or his designate as to whether the County of Newell is willing to consent to the Encroachment (Use). 25.If the CAO or his designate accepts the Application, notices will be sent out to landowners adjacent to the road/road allowance, as well as to relevant utility companies, to ensure they have no objection to the Encroachment (Use). 26.Any person can provide a written reason for or against the Encroachment (Use) within fourteen (14) days of the date the notification was sent. 27.Upon consideration of any written responses, the CAO or his designate will make a determination on whether to grant the County of Newell’s consent to the Encroachment (Use) at his or her own discretion. 28.If the County of Newell is willing to grant its consent to the Encroachment (Use), then the CAO or his designate will prepare a Road License Agreement to be forwarded to the Applicant for review, execution and returned to the County of Newell for execution by the County of Newell’s authorized signing officers. 29.In issuing a Road License Agreement, the CAO or his designate may impose such terms and conditions determined to be necessary or beneficial in his or her sole discretion, including but not limited to: insurance requirements, termination terms, County of Newell indemnification, and limitations on the Applicant’s access or use. 30.Any Road License Agreement granted will be for non-exclusive access and the Applicant may not prevent the public from accessing or travelling along the road/road allowance. An Applicant does not have the right to bar entry to anyone wishing to travel the road/road allowance or use the road/road allowance as access. COUNTY OF NEWELL - POLICY HANDBOOK POLICY NO: 2021-PPW-064 TITLE: ENCROACHMENT ONTO ROADS/ROAD ALLOWANCES ADOPTED: August 5, 2021 (C-258/21) SUPERCEDES NO: n/a TO BE REVIEWED: PAGE NO: 6 of 6 31.Upon full execution of the Road License Agreement, the CAO or his designate will take the necessary steps to register the Road License Agreement by way of caveat at the Alberta Land Titles Office. 32.For clarity, the County of Newell’s consent to an Encroachment (Use) is always subject to and conditional upon full execution of a Road Encroachment Agreement. ROLES AND RESPONSIBILITIES 33.The CAO or his designate are responsible for: a. Revising the standard form of agreements referred to in this Policy as may be required from time to time; b. Receiving and responding to all requests for Encroachments onto roads/road allowances under the direction, control and management of the County of Newell. c. Advising any Applicants of the County of Newell's process regarding the evaluation of Encroachments; d. Preparing, executing and registering at the Alberta Land Titles Office all necessary documentation for authorized Encroachments; and e. Maintaining an inventory of all documentation relating to Encroachments evaluated by the County of Newell.