Staff Report – Encroachment Agreement: Private Sidewalk at 694 Hoylake Ave (Engineering)

Staff Report to Council

Date: August 20, 2018
Department: Engineering
Subject: Encroachment Agreement – Private Sidewalk at 694 Hoylake Avenue

Background

Coastal Signature Homes is constructing a set of three townhouse blocks for a Strata development at 694 Hoylake Avenue. The approved frontage permit drawings have been modified and now show a 1.5 m wide private sidewalk accessing the street-facing townhouse block. This proposed sidewalk would partially encroach on City road Right-of-Way.

The purpose of this report is to inform Council of a proposed encroachment agreement for the construction of this sidewalk.

Commentary

Coastal Signature Homes has retained Westbrook Consulting Ltd. to provide engineered design drawings for on and off-site works. In the most recent drawing revision a short concrete sidewalk is proposed with three stairs to access the front of the street-facing townhouse block.

As shown in Figure 1 below, the majority of the proposed sidewalk encroaches on City right-of-way (yellow highlighting shows the portion on City lands). Due to elevation changes between the street and the building, a wall and railing is also proposed to separate the sidewalk from the adjacent driveway.

The sidewalk is meant for private building access and does not serve the general public.

An encroachment agreement is required to allow for the sidewalk and stairs to extend into City owned road right-of-way and to ensure any maintenance costs are not passed on to the City.

Figure 1. Frontage drawing fragment showing proposed sidewalk, yellow to indicate portion of sidewalk encroaching on City right of way.

Financial Implications

In some instances the City takes a financial bond to protect the City against costs in the future, for example to alter or remove the concrete sidewalk. Since frontage works associated with this development have been approved according to the ultimate road cross section of Hoylake Avenue and maintenance costs for upkeep of the sidewalk will be covered by a covenant on the property, staff are suggesting that no bond is necessary in this case.

Legal Implications

In the past the City has entered into an encroachment agreement for these instances on a case by case basis. However, an easement over City highway permitted by section 35(11) of the Community Charter may be a better approach from the City’s perspective.

Municipalities have the right to grant easements over road rights of way to address encroachments by registering formal easements over the road area for the benefit of adjoining lands. From a land owner’s perspective, these are excellent, as their interest will now run with the land to benefit future owners of the property. They are also beneficial to the municipality in that the terms of the encroachment arrangement are clear (for example the municipality’s right to cancel the easement and so forth for the grantee’s failure to comply with its obligations). That said, even with an easement, ‘positive covenants’ (such as indemnities and insurance provisions) likely will not run with the land to bind a future owner. The easement may include terms permitting the municipality to cancel the easement if a new owner does not sign an agreement to be bound by indemnity, insurance and other provisions that may not run with the land. This does leave the municipality with the administrative burden of following up with new owners, however staff feel it is still the better arrangement than the former encroachment agreements that do not run with the owner’s land when land ownership changes.