Can I Build a Driveway or Cut Trees on an Unopened Road Allowance?

If your only practical way into your land is across a strip that has never been built as a road, or if trees on that strip block your view or your access, it can seem sensible to just get on with it. Many owners have done so for years.

This article explains why permission matters and what the risks can be. What a municipality allows for driveways and tree cutting depends on your situation, so confirm the specifics with your municipal office and a lawyer.

Start with who controls the strip

Road allowances are strips originally laid out for roads by a Crown surveyor, generally 66 feet wide. A highway is owned by the municipality with jurisdiction over it, subject to any rights reserved by the person who dedicated it.

So the first step is to find out whose land you would be working on. Knowing who has jurisdiction is the starting point, and what approvals apply to your plans depends on your situation, so it is worth confirming with a lawyer.

What permission is needed

What approvals apply to driveway entrances, culverts, clearing and tree cutting on a road allowance depends on the strip and the municipality, so it is worth confirming with the municipal office and a lawyer. Do not assume that because a neighbour did it, it was allowed. Ask the municipal office in writing and keep the reply.

If the strip is a Crown shoreline reserve or sits in unorganized territory, the Minister has jurisdiction, so the municipality may not be the right office to ask.

Does long use give me ownership?

Owners often wonder whether years of using a strip means they now own it. Adverse possession in Ontario requires open, notorious, constant, continuous and peaceful possession, an intention to exclude the true owner, and effective exclusion of the true owner for the entire ten-year period under section 4 of the Real Property Limitations Act.

There are two big hurdles. First, section 51(1) of the Land Titles Act bars acquiring title to registered land by length of possession; a claim is possible only if the ten-year period ran before the land was registered, because section 51(2) preserves such matured claims. Second, permissive occupation defeats adverse possession: where the owners permitted the occupation, the adversity element cannot be met.

If you used the strip because the municipality allowed it, that permission can work against a later ownership claim. Whether any claim could succeed for your strip is a legal question that depends on its registration history, so get advice before relying on it.

The risks of building or clearing without approval

• You could be working on land you do not own, which is a risk worth discussing with a lawyer before you start.
• Money spent on a driveway or clearing may be lost if you have no right to keep it.
• Ontario notes that structures built on road allowances have caused problems with land transfers, mortgages, insurance claims and estates.
• A buyer's lawyer or a lender may question access that depends on a strip you do not own.
• If the municipality later assumes the road, your work may be affected by what it builds.

Even where a municipality has not assumed the road, an unassumed, unopened allowance generally carries no municipal maintenance duty. That means a driveway you build there may be yours to maintain, with no promise of winter service or repair.

If you want a lasting right to use it

Some owners ask the municipality to close and sell the allowance. A municipality must give public notice of its intention before passing a by-law to permanently close a highway. It can convey a road allowance only after it has been stopped up. If any part is submerged, the municipality needs the Ministry's consent under section 43 of the Municipal Act before conveying that portion. Procedures vary because each municipality has its own notice by-law.

For Crown shoreline reserves, the Ministry generally approves a sale to adjacent owners of developed lots unless there is a compelling reason, such as loss of access or conflict with public use like water access.

What to do next

• Confirm from your survey and title records whether the strip is a road allowance and whose jurisdiction it falls under.
• Write to the municipal office (or the Ministry for shoreline or unorganized territory land) asking what approval is needed for a driveway or clearing.
• Do not start work, or cut trees, until you have a written answer.
• Keep copies of every permission, permit and email.
• Speak to a lawyer if you want to buy the strip, if a building already sits on it, or before you sell or refinance.

Frequently asked questions