Agency Rulings

Decision No. 688-R-2004

December 15, 2004

APPLICATION by Lebovic Enterprises Limited pursuant to section 101 of the Canada Transportation Act, S.C., 1996, c. 10, and section 16 of the Railway Safety Act, R.S.C., 1985, c. 32 (4th Supp.) for the construction of road crossings over the Uxbridge Subdivision operated by the Canadian National Railway Company, at Hoover Park Drive (mileage 41.31) and Park Drive (mileage 41.83), in the town of Whitchurch-Stouffville, in the regional municipality of York, in the province of Ontario.

File Nos. R8050/699-041.31
R8050/699-041.83

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APPLICATION

[1] On June 29, 2004, Lebovic Enterprises Limited (hereinafter the applicant) filed with the Canadian Transportation Agency (hereinafter the Agency) the application set out in the title.

[2] On July 6, 2004, Agency staff solicited comments from the Canadian National Railway Company (hereinafter CN) and the Greater Toronto Transit Authority (hereinafter GO Transit). In its response dated August 4, 2004, GO Transit filed a Notice of Motion requesting that the Agency suspend and defer the portion of the application relating to the proposed road crossing at Park Drive, and dismiss the portion of the application relating to the road crossing at the proposed Hoover Park Drive. In its motion, GO Transit submitted that it would be premature for the Agency to consider this application while GO Transit's appeal relating to the nature of the road crossings is still pending before the Ontario Municipal Board (hereinafter the OMB).

[3] By letter dated August 6, 2004, CN endorsed and adopted GO Transit's arguments in support of the motion. On August 13, 2004, the applicant filed its comments respecting GO Transit's motion. CN and GO Transit submitted replies on August 20, 2004 and August 23, 2004, respectively. In its Decision No. LET-R-259-2004 dated September 9, 2004, the Agency dismissed GO Transit's motion and ruled that the Agency would proceed with the application, pursuant to section 101 of the Canada Transportation Act (hereinafter the CTA).

[4] On September 20, 2004, CN and GO Transit filed their answers to the application and on September 27, 2004 the applicant filed its reply to the answers.

[5] In its September 20, 2004 answer, GO Transit served a Notice to Produce Documents on the applicant and the Town of Whitchurch-Stouffville (hereinafter the Town), pursuant to sections 24 and 25 of the National Transportation Agency General Rules, SOR/88-23 (hereinafter the General Rules). Documents were provided by the applicant on October 4, 2004 and October 7, 2004 and by the Town, on October 6, 2004.

[6] The Town requested intervener status on September 27, 2004, pursuant to section 47 of the General Rules. The Agency granted that status, and on October 6, 2004 the Town submitted its intervention.

[7] On October 13, 2004, GO Transit filed comments on the documents produced by the applicant and the Town. On October 15, 2004, GO Transit filed its response to the Town's intervention. On October 18, 2004, CN also filed comments on the Town's intervention and submitted documents. The applicant filed a reply on October 25, 2004.

[8] Further correspondence was received by the Agency on October 26, 2004 from CN and from the Town on November 9, 2004.

[9] By Decision No. LET-R-307-2004 dated November 3, 2004, the Agency requested the comments of Transport Canada on any railway safety related issues with respect to the two road crossings. Transport Canada's response was received on November 18, 2004. On November 19, 2004, the Agency provided an opportunity to the parties to provide their comments. Comments were received from the parties on November 26, 2004.

[10] Pursuant to subsection 29(1) of the CTA, the Agency is required to make its decision no later than 120 days after the application is received unless the parties agree to an extension. In this case, the parties have agreed to an extension of the deadline until December 15, 2004.

PRELIMINARY MATTER

[11] The Agency notes that the submissions filed by CN on October 26, 2004 and by the Town on November 9, 2004 were filed after the close of pleadings. The Agency has considered this matter and, pursuant to section 6 of the General Rules, hereby accepts these submissions as necessary and relevant to its consideration of this matter.

ENVIRONMENTAL ISSUES

[12] Pursuant to subsection 18(1) of the Canadian Environmental Assessment Act, S.C., 1992, c. 37 (hereinafter the CEAA), the project has been screened and a screening report has been prepared.

[13] Pursuant to section 20 of the CEAA, the Agency has determined that the project will not cause any significant adverse environmental effects with the implementation of the mitigation proposed by the proponent in its environmental assessment, and additional environmental assessment filings.

FACTS

[14] In 1997, the Town adopted its Official Plan Amendment No. 101 (hereinafter the OPA 101) in order to expand the boundaries of the existing urban community of Stouffville, to designate new land uses, and to provide policies to direct its expansion.

[15] In 2000, a Functional Servicing Study (hereinafter the FSS), undertaken by eight consulting firms, was submitted to the Town for the development of the area known as the south-east quadrant, as identified in the OPA 101. The FSS included future planning, environmental and servicing considerations, including transportation strategies to aid in the review and approval of individual plans of subdivision. A horizon year of 2021 was utilized to coincide with the ultimate development of all land uses within the Southeast Planning Area (hereinafter the SPA).

[16] The SPA is a rectangular-shaped area bounded to the north by the existing Stouffville urban area, to the east by Regional Road 30, to the south by the Town's boundary with the city of Markham, and to the west by Ninth Line. It is currently a greenfields area that is intersected by Tenth Line, which runs on a north/south orientation. Hoover Park Drive, a two-lane east-west local road, connects to Tenth Line in the middle of the SPA, to serve 335 townhouses and retirement homes. Park Drive, a two-lane local road, currently connects to Stouffville's Main Street and serves the existing residential area.

[17] According to the submitted FSS dated December 2003, the future development for the SPA will be primarily residential, comprising 5,200 to 5,474 units, housing approximately 15,000 persons in ten subdivisions. Consultants for the Town and the applicant both concluded that the key collector roads to assist in traffic movement in the new development will be the extensions of Hoover Park Drive and Park Drive. Hoover Park Drive would join the York-Durham line to the east and extend westerly across the rail corridor and join Ninth Line and eventually Highway No. 48. Park Drive would extend southerly and then west, across the railway corridor to Ninth Line.

[18] The SPA is also crossed in a north-east/south-west direction by the Uxbridge Subdivision, over which GO Transit runs a commuter train service. Currently six commuter trains per day operate along this corridor, between Toronto and Stouffville, during peak hours. The service terminates at Stouffville station, where bus service is provided for northern communities.

[19] The applicant submitted applications to the Town for approval of the plan of subdivision and the required zoning amendments, as it owns 230 acres in the SPA for development. In its subdivision agreement with the Town, the applicant is required to build the roads and all municipal infrastructure, including the proposed road/rail crossings, according to the standards of the Town and other approval agencies. After construction and inspection, ownership of the two roads will be assumed by the Town to become part of the municipal road system.

[20] On June 23, 2003, the Town granted approval, with conditions, for the plan of subdivision and zoning by-law amendments. In response, by letters dated July 25, 2003, GO Transit filed appeals of the Town's decisions to the OMB, referencing the at-grade crossings, and noting that GO Transit opposes any new residential subdivision that incorporates at-grade crossings.

[21] Following the pre-hearing conference held by the OMB on January 29, 2004, the OMB issued Decision No. 0651, dated March 26, 2004, which noted that the parties agreed that the hearing will determine the following two planning questions: 1) Is a grade separation necessary or desirable at the two proposed crossings (Park Drive and Hoover Park Drive)?; and, 2) If a grade separation (or two) is found to be necessary or desirable, should it be an overpass or an underpass?

[22] GO Transit also indicated to the Town, by letter dated February 18, 2004, that GO Transit is not prepared to agree to the proposed new crossings unless they are grade separated.

ISSUE

[23] The issue to be addressed is whether the Agency should authorize the construction of the proposed road crossings, pursuant to section 101 of the CTA, by determining whether the proposed road crossings are suitable, and, if authorized, the Agency shall make a determination of the apportionment of the construction and maintenance costs pursuant to section 16 of the Railway Safety Act (hereinafter the RSA).

POSITIONS OF THE PARTIES

Transport Canada

[24] In its letter of November 18, 2004, Transport Canada notes that the two proposed at-grade road crossings will be constructed pursuant to Transport Canada's safety requirements and it indicates that, as such, Transport Canada has no objection. However, the construction of new at-grade crossings is discouraged. With respect to Hoover Park Drive, Transport Canada is of the opinion that it will become an arterial road in the future and that provision should be given to protect adequate land for the construction of a grade separation. Transport Canada states that commuter lines are somewhat different than other railway lines as the train movements occur at the same time as highway rush hour, and that, therefore, the usual cross-product calculation, based on a 24 hour basis, cannot be used for the evaluation of risk and convenience.

Applicant

[25] In its application, the applicant requests that the Agency grant leave to construct the road crossings of Hoover Park Drive and Park Drive (as shown on the OPA 101) across the Stouffville rail corridor; that the crossings be at-grade and in the proposed form/design; and that the Agency apportion the costs of the crossings as the parties have been unable to reach an agreement.

[26] The applicant states that the forecasted traffic cross product at these road crossings (the average daily vehicular traffic over a crossing in both directions multiplied by the number of daily trains over a crossing) does not warrant the construction of grade separations at these two locations. Studies undertaken for GO Transit in the Stouffville area project 12 trains per day, and the forecasted 2021 road traffic volumes from the FSS result in cross products for the Hoover Park Drive and Park Drive road crossings of 100,800 and 57,600 respectively. Further, the applicant submits that Transport Canada's Draft Road/Railway Grade Crossings: Technical Standards and Inspections, Testing and Maintenance Requirements (hereinafter RTD 10) indicate that an at-grade crossing with reflectorized crossing signs, gates, flashing lights and a bell is suitable for crossings with cross products between 50,000 and 199,999, and that the proposed crossings and improvements have been designed to that level.

[27] The applicant submits that level crossings are sufficient based on a five-year horizon and agrees to bear the costs of the at-grade crossings, in accordance with section 11 of the Railway-Highway Crossing at Grade Regulations, SOR/85-75.

[28] However, the applicant adds that should one or two grade separations be ordered by the Agency, any costs greater than those for at-grade crossings should be borne by GO Transit, as GO Transit will be the party that benefits from any new grade separations.

[29] The applicant notes that the design of the roadways, including the two road crossings, was developed after substantial study by the Town. The applicant maintains that the two level crossings are supported by the transportation and planning studies and that the construction of a second crossing was considered over an extensive period and included all of the planning and transportation aspects. The applicant points out that the decision for two crossings is supported by a number of access and circulation principles used to reduce loading and congestion on certain streets and to reduce the need for use of the arterial roads. The applicant adds that the Town is in full compliance with regional and provincial planning policies and has followed the procedures in obtaining the required approvals.

[30] The applicant submits that CN and the public were given notice of the official plan process and that there was ample opportunity to provide input to that process. With respect to GO Transit's argument that Park Drive is either not necessary or a temporary or short-term requirement, the applicant notes that the background study to the official plan and the conceptual plan showed both roads as early as 1997. The applicant further notes that the appropriate urban designation for Stouffville is the responsibility of Town Council, and submits that if the Town determines it requires two at-grade crossings, the Agency should accept that the Town has reached a reasonable decision.

[31] In its response to Transport Canada's letter, the applicant notes that it supports the Town's comments of November 26, 2004. On the use of the cross-product calculation for commuter lines, the applicant notes that, according to traffic patterns, there will be minimal rush hour traffic. In addition, the applicant notes that GO Transit's forecasts are based on all-day train service and that the convenience factor during rush hour which, based on the current service of six trains per day, would only be equivalent to 3 traffic signal cycle changes in an hour. This factor should not be given significant weight in the Agency's decision.

The Town

[32] The Town submits that it supports the applicant and concurs with its submissions. The Town notes that it approved the Plan of Subdivision based on staff's review which indicated that the two road crossings represent good planning, conform to the Town's Secondary plan, the Official Plan of the Region of York and the Provincial Policy Statement and are consistent with the Transportation Analysis in the FSS.

[33] The Town states that during the pre-hearing meeting with the OMB, GO Transit did not raise any planning or procedural concerns about the two crossings, or the possible elimination of the road crossing at Park Drive.

[34] In response to Transport Canada's premise that Hoover Park Drive will function as an arterial road in the future, the Town submits that Hoover Park Drive will function as a collector road as the capacity of Main Street will double between 2006-2008, reducing the traffic volumes on Hoover Park Drive. The Town also notes that there are only three trains during each two-hour rush hour period, which does not justify the construction of a grade separation.

Mattamy (Ninth Line) Limited

[35] In a letter to the Agency dated August 23, 2004, Mattamy (Ninth Line) Limited, the owner and developer of the lands west of the proposed Hoover Park Drive crossing, confirmed its support for the application and noted the importance of obtaining approval to cross the GO Transit line as soon as possible.

CN

[36] CN submits that as it is the federal railway company operating the Uxbridge Line and the holder of the certificate of fitness in respect of the line, it is the respondent in this matter.

[37] CN agrees that there is a requirement to minimize the number of new crossings for safety reasons, a position supported by Transport Canada in Direction 2006 and in section 12.1 of the RSA. CN submits that although the applicant and the Town have indicated that the two crossings are necessary, the applicant must demonstrate that all alternatives have been explored to validate the requirement for one or both crossings. CN submits that the Agency must ensure that the applicant has evaluated that there is no other alternative that would allow for the deviation of the road or to consolidate the two road crossings. CN notes that this type of evaluation for new crossings is included in Transport Canada's RTD 10.

[38] With respect to the applicant's request that the proposed crossings be at-grade and in the form/design proposed, CN states that it sees no reason to depart from the well established standards governing level versus grade separated crossings that have evolved over time based on historical studies and statistics.

[39] CN states that although GO Transit, as a user of the line, has requested a ruling that any approved road crossings be grade separated, GO Transit has not demonstrated reasons for which the Agency should depart from established standards, and, consequently, CN submits that this file does not warrant exceptions.

[40] CN submits that the applicant, and thereafter the road authority, should be solely responsible for the costs of construction and maintenance of the crossings, whether they are at-grade or grade separated, as they are the result of a new road route and it is the applicant, as junior party, who has created the need and will benefit from the crossings.

[41] In response to Transport Canada's comments concerning the protection of adequate land for the construction of a future grade separation, CN submits that if traffic projections indicate that a grade separation will be required in the foreseeable future, it should be authorized to be constructed now, at the expense of the applicant. In addition, CN indicates that should level crossings be authorized by the Agency, the decision should specify that costs of any future upgrades or replacements will be the responsibility of the developer and/or road authority, as they are the proponents of this new route.

GO Transit

[42] GO Transit submits that it filed its appeal to the OMB in good faith, in order to provide constructive input into the planning decision to minimize the creation of new road/railway level crossings.

[43] GO Transit notes that it is the "suitability" of the proposed crossings that is subject to the scrutiny of the CTA, as opposed to the "desirability", which will be assessed by the OMB.

[44] GO Transit submits that before a new crossing is established, all alternatives should be considered. GO Transit notes that clause 3.1 of RDT 10 requires the consideration of alternatives and an evaluation of all factors that may impact on the safety of the crossing. Also, Transport Canada's Direction 2006 policy to reduce at-grade crossing collisions and trespassing incidents states that there should first be a review of all possible alternatives when a new crossing is considered.

[45] Further, GO Transit states that the addition of new level crossings in a new residential subdivision increases access to the rail corridor, creating more opportunities for trespassing.

[46] GO Transit suggests that one alternative that should be considered is the construction of only one road, namely Hoover Park Drive. GO Transit notes that the forecast traffic volumes for Park Drive in the FSS are minor and that the future traffic could easily be served by Hoover Park Drive. GO Transit adds that two level crossings would create an unnecessary number of crossings over a short distance of track and does not constitute good planning.

[47] GO Transit maintains that there were deficiencies in the planning process for these crossings as there are steps that should be followed to determine whether the proposed crossing or crossings are needed and to determine their design. To support this argument, GO Transit obtained expert opinions. A traffic safety consultant retained by GO Transit maintains that it is preferable to design new communities from a safety point of view to avoid road crossings, and that the proposed at-grade crossings will create more opportunities for conflict between trains, vehicles and pedestrians than would grade separated crossings. GO Transit also submits that according to an independent land use planner retained by GO Transit, the subdivision design incorporating two at-grade crossings does not represent good planning, is not in the public interest, and is not consistent with the municipal, regional or provincial policies.

[48] GO Transit submits that any crossing approved at Hoover Park Drive should be grade separated, considering the future road and rail traffic projections, the principles of safe community planning, and the existing municipal and provincial policies.

[49] GO Transit further argues that the rail traffic forecast that was used to determine whether a grade separation is required has been understated in the application. GO Transit references "The GO Transit Stouffville Planning Study" of March 2002, which notes that GO Transit intends to introduce full service to this corridor on an incremental basis by operating an additional three trains during each peak period and two trains every two hours during off-peak hours, in addition to the projected additional six trains. GO Transit submits that it is planning all day, two-way service, that is supported by the Region, which would entail the operation of 40 trains per day and double tracking of the entire corridor. Therefore, based on the 2021 traffic projections, GO Transit calculates the future cross product to be 336,000 for Hoover Park Drive and 192,000 for Park Drive. At 24 trains per day (an interim service level that requires no double tracking) the cross product at Hoover Park Drive would be more than 200,000.

[50] In addition, GO Transit notes that as Hoover Park Drive will be an important east-west arterial road, peak road travel hours will coincide with the highest volume of commuter rail service, a factor not considered in any analysis.

[51] GO Transit states that cost apportionment should follow the Agency's Guidelines on Apportionment of Costs of Grade Separations, in that the cost for new grade separations is the responsibility of the project initiator. GO Transit adds that the construction costs for any new crossings should be borne by the party creating the need and that the Hoover Park Road crossing is a new extension necessitated by the Town's growth.

[52] GO Transit concurs with Transport Canada that the usual cross-product calculation that assesses the risk and convenience factors at a crossing is different for commuter lines. Although the cross product is based on a 24-hour period, in this case, train movements occur at the same time as highway rush hours and the pedestrian and cyclist count is not included. This difference between freight and commuter lines is reflected by the Greater Toronto Area's acoustical consultants, who utilize GO Transit's ultimate projected service to ensure sufficient noise mitigation.

ANALYSIS AND FINDINGS

[53] In making its findings, the Agency has considered all of the evidence and arguments submitted by the parties.

[54] Section 101 of the CTA states:

(1) An agreement, or an amendment to an agreement, relating to the construction, maintenance or apportionment of the costs of a road crossing or a utility crossing may be filed with the Agency.

(2) When the agreement or amendment is filed, it becomes an order of the Agency authorizing the parties to construct or maintain the crossing, or apportioning the costs, as provided in the agreement.

(3) If a person is unsuccessful in negotiating an agreement or amendment mentioned in subsection (1), the Agency may, on application, authorize the construction of a suitable road crossing, utility crossing or related work, or specifying who shall maintain the crossing.

(4) Section 16 of the Railway Safety Act applies if a person is unsuccessful in negotiating an agreement relating to the apportionment of the costs of constructing or maintaining the road crossing or utility crossing.

(5) This section does not apply in any circumstances where section 102 or 103 applies.

[55] The Agency noted in its Decision No. LET-R-259-2004 dated September 9, 2004 that it is clear from the reading of section 101 of the CTA that the Agency is the body designated by the Parliament of Canada to resolve issues relating to the construction, maintenance or apportionment of costs for the crossing of a federal railway by any road. Where the parties to a road crossing are unsuccessful in negotiating an agreement, the Agency has the specific authority, inter alia, to authorize the construction of a suitable road crossing. In the absence of permission or authorization from a railway company, it is the authorization by order or decision of the Agency that is required to allow non-railway parties to access or cross the right of way of a federal railway.

[56] Furthermore, the Agency noted that it has specific authority to determine what constitutes a suitable crossing, including, among other things, whether a crossing needs to be grade separated. The Agency does not have jurisdiction over railway safety, but in making such a determination on suitability, it must consider safety, as the Federal Court of Appeal has determined that the concept of a "suitable crossing" shall include an element of safety, be adequate and appropriate in light of its intended purpose and take into account the intended use of the crossing.

[57] The Agency also previously noted in Decision No. LET-R-259-2004 that final approval of a proposed road by a municipal or provincial body is not a prerequisite for an application to the Agency pursuant to section 101 of the CTA, nor is certainty in design, location or other matters respecting a road in order for the Agency to determine what is a suitable road crossing and authorize its construction. In fact, the final design and location of a road crossing may be affected by the Agency's determination of a suitable road crossing.

[58] Both CN and GO Transit stated that it is the Agency's responsibility to ensure that all alternatives to the proposed road crossings have been considered before it can authorize the construction of either one. However, in this case, the Agency accepts that the location of the roads, which in turn defines the location of the road crossings, has been subject to an extensive planning and approval process that has been followed by the applicant and the Town, the municipal authority. The Agency recognizes that an appeal has been launched by GO Transit so that the final approval of the road locations and alignments will be that of the OMB, which has the expertise in matters related to land planning and road establishment for a proposed new development.

[59] Although GO Transit submitted that it would consent to the crossing of the Uxbridge Subdivision if those crossings were grade separated, the Agency notes that no agreement as to the type of crossing has been reached and the applicant, therefore, applied to the Agency pursuant to section 101 of the CTA. Accordingly, the Agency's authority in this matter is, among other things, to authorize the construction of suitable road crossings as no agreement could be reached with respect to the design of the proposed crossings. The Agency will therefore proceed with the determination of suitable crossings.

[60] The Agency notes that one of the generally accepted "exposure factors" utilized in determining whether an at-grade crossing is adequate or whether a grade separation is warranted is the highway-railway traffic cross product. When the resulting product (the average daily vehicular traffic multiplied by the daily number of trains) is under 200,000, a level crossing is considered to be sufficient, provided that it is properly protected.

[61] The forecasted daily vehicular traffic in the FSS for the year 2021, as submitted by the applicant, is 8,400 for the Hoover Park Drive crossing and 4,800 for the Park Drive road crossing. The train count, currently at six trains per day, could increase to 24 trains daily in 5 to 10 years and GO Transit is planning for all day service in the future which could lead up to 40 trains per day.

[62] Using the current volume of 6 trains per day and the 2021 forecast for daily vehicular traffic from the FSS, a cross product of 50,400 is obtained for Hoover Park Drive and 28,800 for Park Drive. With the doubling of the number of trains from its present-day volume, the cross product would become 100,800 for Hoover Park Drive and 57,600 for Park Drive. If the number of trains quadruples to 24 per day, the cross product then becomes 201,600 for Hoover Park Drive and 115,200 for Park Drive.

[63] Based on the above projected vehicle and train counts, the Agency notes that it is only if the rail traffic were to increase to 24 trains per day and the road traffic were to reach its forecasted level in 2021, the year utilized to coincide with the ultimate development within the SPA, that the cross product would reach the minimum warrant of a possible grade separation, and only at the Hoover Park Drive crossing location.

[64] As the determination of a suitable crossing also includes safety, and given the concerns expressed by the parties about safety at the crossings, the Agency sought the comments of Transport Canada, as the Agency recognizes that Transport Canada is the authority on railway safety matters in Canada. The Agency references Transport Canada's letter of November 18, 2004, wherein Transport Canada noted that the two proposed at-grade crossings will be constructed pursuant to Transport Canada's safety requirements.

[65] The Agency notes Transport Canada's stated position that after a review of plans and analysis of the existing traffic patterns, Hoover Park Drive could become an arterial road in the near future if Hoover Park Drive is extended northeast to connect with Main Street, and that sufficient land should be protected for the construction of a grade separation at this location in the future. The Town disputed this position and maintained that the capacity on Main Street will be doubled to four lanes and, therefore, Hoover Park Drive will only function as a collector road. The Agency notes that the daily vehicular traffic forecast of 8,400 for the Hoover Park Drive crossing, which is used in the cross-product calculation, comes from the Transportation Management System Report for the FSS. It is apparent from this report that the extension of Park Drive to Main Street has been considered in the estimation of the traffic forecast.

[66] The Agency further notes Transport Canada's comments that commuter lines are somewhat different than other railway lines as the train movements occur at the same time as highway rush hours. The risk and convenience factors are somewhat different as the usual cross-product calculation, based on the number of trains times the number of vehicles, on a 24 hour basis, cannot be used for the evaluation of these factors.

[67] With respect to the convenience factors, the applicant has submitted that the rush hour disruption would be minimal at the proposed Hoover Park Drive crossing and that based on the current service of six trains per day during the two-hour rush hour period, the convenience factor would be equivalent to three traffic signal cycles in an hour. The Agency notes that there are no freight trains operating at this time on this railway line and that the inconvenience caused by the passage of commuter trains made of ten cars at the proposed crossings would not be significant, considering their short length. The Agency also notes that this will be further mitigated by the installation of warning devices, including constant warning time devices. The Agency has also reviewed the submissions of GO Transit and is not convinced that the construction of the proposed crossings will hamper rail operations.

[68] With respect to the risk factor for crossings on commuter lines, the Agency notes that Transport Canada has no objection to the construction of the two at-grade crossings, as proposed.

[69] The Agency further notes that CN, as the railway company operating the Uxbridge Subdivision, has no objection to the proposed crossings being constructed at grade. CN added, however, that should level crossings be granted by the Agency, the decision should specify that costs of any future upgrades or replacements will be the responsibility of the developer and/or road authority, as they are the proponents of this new route.

[70] In its review of the application, the Agency has considered the interests of the applicant and the Town, as well as the requirements of the railway company. The Agency is of the opinion that the proposed level crossings are required and suitable as they will provide adequate facilities for present-day needs and will not significantly interfere with rail operations.

[71] Based on the foregoing, the Agency authorizes the construction of these crossing as submitted, in light of the present-day needs. However, the Agency emphasizes that should there be any change in traffic patterns, design, location or other matters respecting the roads that affect the proposed crossings, and that the parties cannot come to an agreement, a further application may be made to the Agency.

[72] With respect to the apportionment of the costs, the Agency notes that the applicant has agreed that, should at-grade crossings be authorized, it would assume responsibility for the costs of construction and maintenance of the crossings, and indicated that after the road authority is transferred to the Town, the Town would be responsible for the cost of future maintenance of the road crossings. The Agency also notes that the Town, in its intervention, advised that it concurs with the submissions made by the applicant. Accordingly, the Agency finds that 100 percent of the construction and maintenance costs of the road crossings, including the required crossing warning systems at Hoover Park Drive and Park Drive, shall be borne by the applicant.

CONCLUSION

[73] The Agency hereby authorizes the construction of the at-grade road crossings over the Uxbridge Subdivision, at Hoover Park Drive (mileage 41.31) and Park Drive (mileage 41.83), in the town of Whitchurch-Stouffville, subject to the following environmental conditions:

The applicant shall

1. implement the mitigative measures, practices and procedures for the protection of the environment, as set out in its environmental assessment and related filings, and cause no variation in those mitigative measures, practices and procedures without the prior approval of the Agency.

2. monitor the effects of constructing and operating its crossings on the environment in accordance with the follow-up program referenced below.

3. file the following documents, to the satisfaction of the Agency

(a) prior to commencement of construction,
- erosion and sediment control plan;
- standard site control plan including standard site control measures;
- results of a vibration monitoring study for the rail line;
- ground water recharge program including a monitoring program;
- site specific tree protection plan;
- plan to retain deciduous and/or mixed woodlands retention; and
- a follow-up program, developed in consultation with the Agency

- to ensure that the proponent's environmental undertakings are successfully implemented;
- to monitor the adverse effects of constructing and operating the rail line on the environment; and
- to valuate the success of the proponent's mitigative measures to protect the environment.

(b) during construction of the crossings, semi-annual progress reports summarizing to-date construction progress; and implementation and success of the proponent's mitigative measures.

(c) within three months of completing construction, an as-built report, satisfactory to the Agency, indicating the success of the implementation of the mitigative measures.

[74] The applicant will be responsible for the costs of construction and maintenance of the at-grade road crossings, including the required crossing warning systems.

[75] The Agency notes, however, that, following construction and inspection, the ownership of the two roads will be assumed by the Town.

[76] Paragraph 28(1)(b) of the CTA states that the Agency may in any order direct that the order or a portion or provision of it shall come into force on the happening of any contingency, event or condition specified in the order.

[77] In light of the fact that the ownership of the roads will be assumed by the Town at a future date, the Agency, pursuant to paragraph 28(1)(b) of the CTA, hereby orders that the Town shall be responsible for the costs of maintenance of the at-grade road crossings, including the crossing warning systems, effective on the date on which the ownership of the roads is assumed by the Town.

[78] The authority granted herein does not relieve the parties from their obligations under the RSA.