The Road Access Act dramatically affects private rights of land ownership and has been around since 1978. It is about road disputes and about avoiding risks of violence to persons and property generated by the dispute. Here is how it happens in the County of Haliburton: Owner A drives over Owner B’s lands to reach Owner A’s lands. This has been going on for a period of time with the permission of Owner B, or by acquiescence. This is the only car route to get to Owner A’s lands. Otherwise, the lands are landlocked. Owner B sells to Owner C. Owner C does not like what is going on, takes a chainsaw and fells a tree over the road. Owner A gets angry because he cannot get to his lands. Trouble follows. Shotguns are raised.
The Road Access Act comes to the rescue. The purpose of the Act is to prevent the arbitrary, self-help way of closing the road by Owner C when to do so results in preventing access to Owner A’s lands for which Owner C’s road serves as a motor vehicle access route. Owner C must go to court to obtain a court order to close the road, or Owner A can take him there to argue, without chainsaws and shotguns, whether the road should be closed.
To receive the protection of the Act, the access road must be the only vehicular route to Owner A’s lands. Owner C will try to argue that there is an alternative access route available to Owner A, and therefore, the Act does not apply. In one recent case, a landowner maintained that water access is an alternative access because access is available by motor boat but failed because the alternative access must be road access.
Almost everywhere in the County, there are unopened road allowances which may lead to an access user’s property, and therefore, could be developed as an alternative access road. In another recent case, the landowner made such an argument. The court dismissed the argument after a careful analysis. It held that the mere existence of an unopened road allowance which cannot be used for vehicular traffic without municipal approval and without road construction and maintenance to municipal standards does not constitute an alternative access. The alternative access must be an existing alternative access, not a potential one.