A Pipe Runs Through It: Legal Rights when Municipal Public Utilities are Installed on Private Property
By Peter Buza - 2017/24/03
The infrastructure for many public utilities must run through or on private land. Buried cables and pipes are typical examples of public utilities that might cross private land. The installation of public utilities on private land can create problems by limiting property owners’ freedoms to use and enjoy their properties and by affecting municipalities’ or other authorities’ abilities to provide and maintain infrastructure-based services at reasonable cost. This article briefly introduces some of the issues that arise when municipal public utilities cross private land and some of the remedies and rights available to property owners and municipalities.
Public utilities often run through private land in an area defined by an easement. A public utility easement gives a municipality the right to continue to keep, maintain and upgrade a utility in a defined part of private property. For example, a sewer and water supply easement may be several metres wide and run along the length of one or more edges of a property.
Where there is a valid easement, the private property owner may typically use the land, but may not unreasonably interfere with the rights that an easement provides to the municipality. As a result, an owner often may not build on or develop the area of land affected by the easement in a way that substantially interferes with the municipality’s ability to maintain or replace the utility infrastructure.
There are also situations in which a public utility easement is not registered. These situations may arise where a past owner consented to the installation of a utility and no easement was registered, or where the municipality failed to register a notice maintaining the validity of a registered easement according to Registry Act requirements. The rights and obligations in these situations tend to be highly fact dependent and, as a result, assessing background information is an important first step.
Fortunately for those depending on the supply of the utility, there are clear protections to be found in the Municipal Act, 2001. This Act protects existing municipal public utilities that do not run in easements from interference by any person unless the person obtains a Court Order or the municipality consents to the interference. A landowner who has such a utility in or on his or her land may not, therefore, interfere with the ability to maintain supply of the utility through or across the land unless he or she obtains consent or a Court Order.
Under the Municipal Act, 2001, it is also clear that a municipality may enter upon any land to repair and maintain its utilities, whether the utilities are located in an easement or not.
Lastly, it is worth considering whether the law provides any remedies to a landowner who has a public utility running on or through his or her property without an easement. These remedies typically depend on the circumstances of each case. While an owner is well-advised to obtain legal advice to determine his or her rights, some specific examples can be highlighted here.
If a person’s use of land in which he or she has an interest is substantially affected by a utility that has no easement, the person may apply for a Court Order authorizing the person to interfere with the utility. In response, the Court can make any order that it considers necessary, including staying the application to give the municipality time to acquire an interest in the land or forcing the person to provide an easement in a different location while ordering compensation for the new easement.
Special situation-specific rules also exist where a municipal public utility was installed before June 21, 1990. For example, due to a provision in the Municipal Act, 2001, the potential for claims to easements to expire and the applicability of 40-year registry search rules are affected by whether or not the utility was built with the consent of the owner. If there is proof that the owner consented to the installation of the utility, then the municipality may still have valid easement rights, notwithstanding that the municipality had not registered timely notice of the claimed easement.
As another example of the situation-specific nature of dealing with the legal status of municipal public utilities, where a utility was installed before June 21, 1990 and the municipality mistakenly believed it was installing a public utility on part of a public road allowance, the municipality is deemed to have an easement and the owner of the land is entitled to compensation for the easement as if there had been an expropriation.
These examples illustrate two of many situations where specific facts related to the history of the installation of the utility and any registration or non-registration of easements might determine whether a valid easement exists and whether an owner might receive compensation for the existence of a municipal public utility on his or her lands. Of course, there will be other situations with different outcomes and this article cannot introduce them all.
Given the impact of the facts in each case, landowners are well-advised to seek legal advice when faced with a municipal public utility that may affect the owner’s planned property use. Similarly, municipalities should, where necessary, ensure they have legal advice covering not only specific situations, but also broader issues such as their rights to maintain utilities and the steps they must take to maintain claims to easements.
* * This article is intended only to inform and educate. It is not legal advice. Be sure to contact a lawyer to obtain legal advice on any specific matter.
Peter Buza is a lawyer in SorbaraLaw’s municipal, land use and development law group.