Farmer in dispute with county over fencing along K&P Trail

Jeff Green | Jun 22, 2017

Daryl Kennedy said that he has nothing against the K&P Trail, but as a cattle farmer working land that the trail bisects, he wants a fence put up to block access to some of his pasture land. And since the trail is located on former railway lands and is a continuous stretch, he feels that the Ontario Line Fences Act, as amended in 2006, stipulates that the current owner of the trail must put up a fence if he asks them to.

“What I am asking for is a fence along 1750 feet of pasture land, only on one side since that is all I need. I requested on April 6/2016 to Anne Marie Young, who was dealing with the trail for Frontenac County at the time, that the work be done. I was expecting it would be done last summer.”

Kennedy also asked that a gate on his property that had been severely damaged while the trail was being constructed, be repaired by the contractor working on the trail. He also wants the county to pay for some of the work involved in lining up crossing gates on the trail near the north end of his property, for him to use as a cattle crossing. But none of that happened last summer, although Young remained in contact.

On July 19th, Young sent him and email, saying “Thanks Daryl … the act [Ontario Line Fences Act] also says the farmer must be the one to request and provide a Farm Registration Number …  This can happen...we just need to have the information as requested.” The next morning, Kenedy emailed back, providing his farm registration number.

On October 11th, Kennedy received another email from Young with an attached drawing marking off the section of land that required fencing.

“Please take a look at the attached and verify that what I have marked is what you want fenced. I have estimated the length to be approximately 1750 feet. I want to make sure before I send it to the contractor,” said Young in the email.

Nothing happened last fall, and after Anne Marie Young retired in December, Kennedy has been corresponding with Frontenac County though Chief Administrative Officer Kelly Pender.

On March 15th Frontenac County Council met and discussed the matter. According to a letter to Kennedy from Pender after that meeting, the council, based on a legal opinion, now feels it is only responsible for half the cost of the fence.
They took this position because even though the Line Fences Act says that the owner of an uninterrupted section of former rail line that is purchased from a railway company is subject to pay 100% of fencing costs for farmland that abuts the fence, the county did not purchase the former rail line from a railway company. CP rail sold the line to Bell Canada, and the county purchased it from Bell Canada, which is not a railway.  This new position is being taken by the county on the basis of a legal opinion from the county solicitor, Pender said, in a letter to Daryl Kennedy on March 16/2017.

The key item in the letter is item 2, which reads, “where a land owner provides proof of farming activities and where trail lands were purchased from a person or entity other than a railway company, that the county will be 50% responsible for the construction and maintenance of fencing along the property line, with the property owner having the choice of sharing equally in the construction and installation or the fence or having the county supply the fence.”

The letter concludes: We have confirmed with our solicitor that the trail lands adjacent to your property were purchased from Bell Canada, not a rail company and as such option #2 above is applicable ... I trust this clarifies the county’s position.”
Kennedy does not accept this. In his view, the obligation does not end with the first purchaser of a former rail line. His position is supported by the Christian Farmers Organization, with which his farm is registered. Kennedy has also been in touch with the Ontario Ministry of Municipal Affairs and Housing, the body which over-sees municipal governments.

In a recent email, (June 15) Carol Church, Municipal Advisor MMAH, said she “would encourage the owner of the farming business to continue to bring his request for a fence to the County of Frontenac” and she attached the decision from a landmark court ruling in southwestern Ontario which ordered the municipality of Tilsonburgh to pay the full cost of a fence for a farm located on either side of a former rail-line which had been converted into a recreational trail.

“I talked just last night to Peter Sizov from the ministry, who said he has never heard of a case where the fact that a rail line had been sold twice was used as a reason not to pay for a fence,”  Daryl Kennedy told the News on Tuesday, June 20.

The News called Mr. Sizov’s office on Tuesday afternoon, but got his voice mail and did not hear back in time to confirm he had made the statement that Mr. Kennedy attributed to him.

In fact, however there is a precedence for Frontenac County to pay the full cost of a fence along the K&P trail, a recent one.

On July 20/2016, Council passed a motion authorising the construction of 850 feet of fence to separate the trail from farm property owned by Frank Goodfellow, at a cost of up to $10,000.

The motion came about as the result of a staff recommendation by Anne Marie Young that was submitted to council by CAO Pender himself.

It included the following explanation: “Fencing is a concern of some landowners. The costs involved in the installation or repair of fences along a right-of-way can be significant and fencing can be required for pasture and farmland registered with the Ontario Farm Business Registration. In the development of the Cataraqui Trail, the Cataraqui Regional Conservation Authority split the cost of fencing 50/50 with the landowner, supplying the materials while the landowner installed the fencing where required.”

But in the Goodfellow case, the cost was not split. The County paid for it.

When contacted on Tuesday evening (June 20) Frank Goodfellow said it took him three years to get the county to construct the fence, and “they did offer to pay half, but I held my ground since I had the Line Fences Act supporting my claim. Eventually they came through.” When asked, Goodfellow said that not once in the three years was the fact that the former rail line was purchased from Bell Canada raised as a reason for not doing the fencing.

“I own or rent quite a bit of farmland along the trail, near Godfrey and up by Tichborne as well, but I only asked for fencing where I pasture cattle, not along hay fields, even though I could according to the Act,” said Goodfellow

“I don’t want to go to court, but I think it is very clear the county, by the terms of the line fenced act, and their own actions in the past, need to pay for this fence,” said Darryl Kennedy, “I don’t want to add legal fees to all of this, but if I go to court I will certainly do that.”

The estimated cost of the Kennedy fence is about $19,000. A further three landowners, who are registered farmers, are located within the vicinity of the Kennedy farm.

Kennedy’s property is located about 5km north east from the point where the K&P crosses Road 38 at Cole Lake, 10 km from Tichborne. The section between Tichborne and Sharbot Lake is not county owned, and has required individual arrangements with numerous landowners.

Looking further north, the trail from Sharbot Lake to the township border is owned by Central Frontenac Township. The township purchased the former K&P lands directly from CP, and  has paid the full cost of fencing on several stretches of the trail, at significant cost.

The build out of the trail continues to be a complicated, and expensive process, and one way or another all the fencing issues between the county and farmers with land abutting the trail will need to be sorted out, at further expense, both Goodfellow and Kennedy said that the section of trail between Godfrey and Tichborne has turned out to be very popular among cyclists, hikers, and ATV’s since it was built.