REASONS FOR DECISION

1.  INTRODUCTION

[1]  On November 22, 2001, in Kaslo, British Columbia, I conducted the first stage of what is contemplated to be a two-stage compensation hearing in this matter pursuant to section 27 of the Water Act, R.S.B.C. 1996, c. 483, and Part 5 of the Water Regulation, B.C. Reg. 204/88.

[2]  The claimant, Eugene Denault, owns residential property near Kaslo and also holds conditional water licences authorizing the diversion and use of water from a creek known as Curle Brook for his own domestic and irrigation purposes. He has the right as a licensee under section 27 of the Water Act to expropriate any land reasonably required for the construction, maintenance, improvement or operation of works authorized under his licences.

[3]  At this stage of proceedings, Mr. Denault seeks from the board a determination that he is entitled to expropriate an easement over a specified portion of adjacent residential property to the west owned by the respondents, Winston Churchill Barclay and Mary Dawson Barclay. The easement is reasonably required, he maintains, to facilitate access to his water pipeline which passes through their property and, more importantly, to his reservoir or "water box" situated on residential property owned by the respondent, Vincent Frank Kana, which adjoins the Barclay property to the west. The board is asked first to determine the legal nature of the interest to be taken, the precise area of the taking, the character of the works to be constructed and maintained, and the governing terms and conditions of use. Compensation payable to the Barclays in respect of the expropriation is to be determined by the board, if necessary, at a future second stage of the hearing.

[4]  The Barclays oppose Mr. Denault's application on both procedural and substantive grounds. Procedurally, they point to filing and notification defects which they say are fatal to his application. Substantively, they say that in any event none of the land sought to be expropriated is reasonably required. The other named respondent, Mr. Kana, did not appear and was not represented at the hearing of this application.

[5]  The hearing occupied one long day and included a site visit. Mr. Denault testified in his own behalf. The other witness appearing for the claimant was Bernard H. Penner, a consulting civil engineer with Pennco Engineering Ltd. of Nelson, B.C., who drew the right of way plan for the proposed easement area. He was qualified to give expert opinion evidence. The witnesses for the respondents the Barclays were Fred Rudolph, a retired businessman and neighbour who also operates his own domestic water system, John R. Legg, a local realtor familiar with rural water systems, and Mr. Barclay himself. I heard this matter alone in my capacity as chair of the board and in exercising the powers and jurisdiction of the board under section 26(5) of the Expropriation Act, R.S.B.C. 1996, c. 125 (the "Expropriation Act" or the "Act").

[6]  I pause to observe at this point that, among numerous other differences between expropriation compensation proceedings under the Water Act and the Water Regulation as compared with more conventional cases before the board under other legislation, it is the expropriating licensee who is generally styled as the "claimant" and the expropriated owner who is styled as the "respondent".

2.  BACKGROUND

2.1  Prior Proceedings

[7]  The present hearing follows upon my earlier decision on a contested motion brought by the Barclays. They sought an order quashing the claimant's application before the board on the grounds that it was barred by the doctrine of res judicata.

[8]  The background to this motion is fully examined in the decision reported as Denault v. Barclay (2000), 71 L.C.R. 185. Briefly summarized, the facts are that Mr. Denault already has a right of access to his water pipeline and water box under a pre-existing registered 10 foot wide easement over the Barclay and Kana properties. However, his manner of exercising that right has led to acrimonious disputes with the Barclays which have been the subject of numerous court applications and orders. The principal legal result has been to limit Mr. Denault's right of access to the easement area on the Barclay property for the purpose of inspecting the pipeline or the water box to one day per month. He continues to enjoy a right of access at any time to repair or replace the pipeline.

[9]  Mr. Denault launched expropriation proceedings under the Water Act and the Water Regulation in April, 2000. He filed with the comptroller of water rights in Victoria and the registrar of land titles in Kamloops a notice of intent to acquire an interest in the Barclay property in the form of an easement, a plan showing the area to be acquired, a draft of the proposed instrument, and a statement of the amount of compensation offered. These documents were also served on the Barclays, who refused the compensation offered and declined to sign the proposed instrument required to register the easement.

[10]  On July 18, 2000, Mr. Denault filed an application for determination of compensation with the board. In his statement of claim he alleged various facts in support of his contention that the existing registered easement, as modified by the courts, was insufficient for him effectively to exercise his rights under the water licences to maintain and improve the water box and the pipeline. He proposed to expropriate an expanded easement 15 feet in width crossing the Barclay property in order to build a road and a bridge, largely to accommodate vehicular access for the stated purpose of making needed repairs to the water box and regularly inspecting it.

[11]  In their motion to quash the expropriation proceeding, heard on November 8, 2000, the Barclays maintained that the fundamental issues which Mr. Denault was asking the board to decide had already been before the courts and had been finally determined by them. They identified the claimant's issues as being his need to make water box repairs, his concern about crossing the adjacent Kana property to access the water box, his need for vehicular access, his health problems, and his concern generally about the insufficiency of the terms of access under the existing easement.

[12]  In my reasons for decision rendered on November 24, 2000, I largely rejected the Barclays' contention that the matter was res judicata. Except with respect to frequency of access onto the existing easement for inspection purposes, I held that the judicial decisions pronounced were not a determination of all the fundamental issues which would be before the board in respect of the claimant's rights and obligations as an expropriating licensee under the Water Act and the Water Regulation.

[13]  While in effect upholding the claimant's right to bring an expropriation proceeding before the board, in my decision I also expressed concern that his application failed to address the central fact that part of his water system, and in particular his water box, was not located on the Barclay property but rather on the Kana property. The evidence was that Mr. Denault frequently accessed his water box by crossing the Kana property from a public roadway lying adjacent to the property and with the permission of the owner. However, Mr. Kana had not been made a party to these proceedings. I commented at para. 37 of the decision:

It is difficult to see how a proper determination of the claimant's rights and obligations as the holder of conditional water licences, entitled to expropriate land reasonably required for the works authorized under them, can be made without directly addressing that fact.

2.2  The Amended Application

[14]  On May 31, 2001, the claimant filed with the board an amended application for determination of compensation. The amended application recognizes the concern which I had earlier expressed by naming Mr. Kana as a further respondent in these proceedings and by more clearly identifying the components of the claimant's water system which lie on the Kana property. There are, so far as I can discern, two other substantive amendments made to the statement of claim. First, the claimant no longer asserts that a small bridge will have to be constructed on the easement area at a point on the Barclay property where Curle Brook intersects the easement. All references to a bridge have been deleted. Second, the claimant has modified from 15 feet to 20 feet the width of the easement on the Barclay property which he claims to require in order to construct a road for motorized vehicle access. The amended claim speaks of expropriating "an expanded easement of 20 feet in width" and offers compensation on the basis of the value of "the additional ten foot strip of land being expropriated beyond the current 10 foot wide easement."

[15]  The most significant change, however, has to do with the location of the easement which the claimant now proposes to expropriate. The claimant's initial application focused on making use of the existing registered pipeline easement where it crossed the Barclay property, expanding its width from 10 feet to 15 feet, and constructing a road and bridge. The right of way route of the registered easement is not precisely identified by a survey plan or a metes and bounds description. Probably the best available indication of its actual location is in the plan for the proposed new right of way prepared by the claimant's consulting engineer, Mr. Penner. The registered easement appears to pass from the Denault property westerly through nearly the midpoint of the Barclay property, west north westerly between their residence and some outbuildings, crossing onto the adjacent Kana property, and continuing thereafter diagonally in a north westerly direction until it reaches the point of diversion on Curle Brook near the north east corner of the Kana property.

[16]  Although the amended statement of claim appears to suggest otherwise, Mr. Denault no longer seeks to expropriate from the Barclays an interest in their property which follows the route of the existing registered easement. Instead, at the compensation hearing the claimant identified the easement he wishes to expropriate as consisting of a 6 metre wide strip of the Barclay property extending along its westernmost boundary with the Kana property. The proposed new easement runs from the south west corner of the Barclay property adjacent to a public road known as Tangye Road in a northerly direction until it intersects the registered easement. Near the point of intersection the proposed new easement is expanded to provide for a cul de sac approximately 10 metres in diameter.

2.3  The Properties Affected

[17]  Since 1967 the claimant has been the registered owner in fee simple of a parcel of land located at 8920 Tangye Road and legally described as:

PID 014-216-701
Lot 1
District Lot 819
Kootenay District
Plan 6168

(the "Denault property")

[18]  Since 1985 the respondents, Mr. and Mrs. Barclay, have been the registered owners in fee simple of a parcel of land located at 8952 Tangye Road and legally described as:

PID 009-486-887
Lot A
District Lot 819
Kootenay District
Plan 15632

(the "Barclay property")

[19]  It is my understanding from evidence received in the hearing that since approximately 1990 the respondent, Mr. Kana, has been the registered owner in fee simple of a parcel of land located at 8964 Tangye Road and legally described as:

Lot 13,
District Lot 819
Kootenay District
Plan 880, except part included in Plan 15632

(the "Kana property").

[20]  All three parcels are sizeable although it is difficult from the evidence to determine exactly how large. It appears that the Barclay property consists of some 3.4 hectares, the Denault property is roughly half that size, and the Kana property perhaps half again as large as the Barclay property. All of the properties are improved with single family dwellings and some outbuildings. Mr. Denault and the Barclays have lived on their respective properties since the time of purchase. For approximately the past seven years, the Barclays' son has lived in a mobile home situated near the north east corner of the Barclay property. Until fairly recently Mr. Kana was also resident on his property but, since the time these proceedings commenced, has listed the property for sale and has evidently relocated to Blairmore, Alberta, the address shown for him on the claimant's amended application. At the time of my site visit, it appeared that the residence on the Kana property was vacant.

[21]  The properties are situated in a semi-rural setting referred to as Shutty Bench approximately six kilometres north of the Village of Kaslo. They are all bounded on the south by Tangye Road which leads to Highway 31 nearby, connecting Kaslo with the Slocan Valley and Arrow Lakes to the west and north and with communities along Kootenay Lake to the south and west. Both Mr. Denault and the Barclays must access their properties directly off Tangye Road. Mr. Kana can also access his property from Tangye Road but has another access point from the north east portion of his property. There is an unopened road allowance dividing the Denault property from the Barclay property, and that road allowance also runs along the northern boundary of the Barclay property to where it intersects with Jacobs Subdivision Road. The subdivision road allows vehicle access out of the area to the north. At an earlier time, during which the existing pipeline easement was registered and before the present owners purchased their properties, the Barclay property and the Kana property were under a single legal title. When the larger parcel was later subdivided, provision was evidently made to allow access to the Kana property from what is now Jacobs Subdivision Road by the creation of a rectangular jog in the boundary between the Kana property and the Barclay property. A small residential subdivision has been created along the northern boundary of the Kana property and across the unopened road allowance from the Barclay property.

[22]  It is my understanding that all or most of the residential properties in the immediate area, including the Barclay property, are serviced by privately owned gravity flow water systems and have their own water box intakes. The Barclays obtain their domestic water supply from another watercourse on their property known as Athol Creek.

[23]  As I fully discovered from my site visit to these properties, the terrain in the area is steeply sloping, particularly as one approaches Mr. Denault's water box on the Kana property. Mr. Penner estimated the linear distance from the water box to Mr. Denault's residence as being nearly 2,000 feet, while the water box itself, he thought, was at an elevation perhaps 400 feet above the residence. The land around the water box is forested with both deciduous and coniferous trees and the undergrowth is quite dense.

[24]  The specific area in which Mr. Denault proposes to locate his easement is less severely sloping but much of it is also quite marshy. It contains a planted grove of substantial coniferous and fruit-bearing trees. The proposed right of way route crosses both Athol Creek and Curle Brook. Some years ago Mr. Barclay and his son erected a decorative arched foot bridge over a gulley lying between the two watercourses. Both the bridge and the Barclays' own water box are located within the proposed easement area.

3.  THE ISSUES

[25]  From the evidence adduced and submissions made at this hearing, two principal issues arise concerning the claimant's application:

Has the claimant met the procedural requirements for his intended expropriation of an easement?

Has the claimant shown that the easement sought is "reasonably required" and, if so, are the proposed terms and conditions of use also reasonable?

4.  HAVE THE PROCEDURAL REQUIREMENTS BEEN MET?

[26]  There are really two aspects to this issue. The first concerns the filing and service requirements under the Water Regulation in order to commence expropriation proceedings and to bring an application for determination of compensation before the board. The second concerns the notice or service requirements under the board's Practice and Procedure Regulation, B.C. Reg. 452/87 with respect to affected owners. I will address each of these in turn.

4.1  Requirements under the Water Regulation

[27]  The procedure to be followed by an expropriating licensee under the Water Act in expropriating land, and the method of determining compensation, are prescribed in the Water Regulation.

[28]  The relevant provisions under section 26 of the Water Regulation, headed "Commencement of expropriation proceedings", state as follows:

26 Where any licensee….has a right under section 27 of the [Water Act] to expropriate land, intends to exercise that right and is unable to reach agreement with the owners of the affected land as to

(a) what land is reasonably required,

(b) the amount of compensation, or

(c) the terms of the required conveyance or other instrument

the licensee may commence expropriation proceedings by filing with the comptroller and the registrar, and by serving on each owner of the affected land, the following documents:

(d) notice of intent to acquire the land;

(e) a plan showing the area the licensee wishes to acquire;

(f) a draft of the instrument in the form of a conveyance or other instrument considered necessary to vest in the licensee the title to or right over that land in which

(i) the land affected shall be legally described,

(ii) the land benefiting from the easement shall be legally described, and

(iii) the character of the works to be constructed and maintained within the easement shall be stated;

(g) a statement of the amount of compensation offered.

The "comptroller" referred to in section 26 means the comptroller of water rights and the "registrar" means the registrar under the Land Title Act for the land title district in which the land affected is located.

[29]  Section 29 provides that each owner of affected land may, within 30 days after receipt of service under section 26, notify the expropriating licensee and the comptroller whether or not that owner will accept the compensation offered and execute the instrument described in section 26(f).

[30]  Section 30 concerns applications to the board, and provides:

30 After expiration of the 30 day period referred to in section 29, the expropriating licensee or an owner of the affected land may apply to the board for a determination of the following matters:

(a) the amount of compensation to be paid for the affected land;

(b) the nature and terms of the conveyance or instrument required to give effect to the expropriating licensee's right under section 27 of the Act to expropriate the land reasonably required in accordance with that section.

[31]  In the present instance it is clear from copies of correspondence and acknowledgments of receipt provided to the board that Mr. Denault initially effected the necessary filings of documents with the comptroller and the registrar and service on the Barclays under cover of a letter from his solicitor at the time, E. Sigurd Ruud, dated April 19, 2000. The documents filed and served included a "plan showing the area to be acquired". However, Mr. Ruud in his letter also drew attention to the fact "that we have not, at this time, prepared an explanatory plan but intend to do so." The solicitor for the Barclays, Thomas R. Humphries, in a letter dated May 15, 2000, advised Mr. Ruud and the comptroller that his clients had refused the offer of compensation.

[32]  Since that initial filing and service of documents occurred, but also after proceedings before the board had commenced, the claimant changed both the location and width of the easement area sought to be expropriated as well as the character of the works to be constructed insofar as a bridge on the easement area was no longer contemplated. He also added Mr. Kana as a party to the proceedings.

[33]  Section 28 of the Water Regulation, headed "Amendment of documents after commencement", provides as follows:

28 (1) At any time before an application is made under section 30, the expropriating licensee may amend the documents referred to in section 26(d) to (g).

(2) Where he makes an amendment under subsection (1), the expropriating licensee shall refile and serve the amended documents in accordance with section 26.

[34]  It is far less clear whether the claimant's amendments have resulted in further filings with the comptroller and the registrar. Para. 3(m) of the amended application for determination of compensation, prepared by Mr. Ruud and filed with the board on May 31, 2001, states in part:

"(m) Pursuant to s. 27 of the Water Act and s. 26 of the Water Regulation, the Claimant has served Notice of Intent to expropriate an expanded easement of 20 feet in width across the Barclay's land ….

However, there is no actual proof in the form of covering correspondence or acknowledgments of receipt that this document, much less the proposed new right of way plan prepared by Mr. Penner and dated March 20, 2001, have been filed with the appropriate authorities. Nor does it appear that the terms of the instrument, setting out the conditions governing use of the proposed easement, have been amended to accord with the other changes and filed.

[35]  In the period between the filing of the claimant's amended application to the board and the convening of this hearing, Mr. Denault decided to change legal counsel. Mr. Ruud advised the board in a letter of October 9, 2001 that he was no longer acting and that Mr. Denault "has his file". The claimant's new legal counsel, Michael P. O'Neill, when appearing at the hearing, was unable to confirm from his review of his client's file that the amendments or the new right of way plan had been filed.

[36]  Although I did not understand Mr. Humphries to say that the Barclays had not received the amendments or a copy of the new plan, in all likelihood service under section 26 of the Water Regulation was not effected on Mr. Kana. As shortly to be discussed, service of process on Mr. Kana has proved difficult. The claimant did not suggest that substituted service had been attempted pursuant to section 27 of the Water Regulation, which provides:

27 Where the comptroller is satisfied that an expropriating licensee has been unable, after reasonable efforts, to effect service on an owner pursuant to section 26, the comptroller may direct substituted service of the documents referred to in section 26(d) to (g).

[37]  Counsel for the Barclays took the position during final submissions at the hearing that the claimant's failure or inability to prove that these procedural requirements had been met was a fatal defect which in itself should result in dismissal of the claimant's application.

[38]  The real issue, as I see it, is not that the board has a duty to enforce compliance with all procedural requirements under the relevant enactments. Rather, the board must be satisfied that it has the jurisdiction to proceed with an application when those procedural requirements have not been, or may not have been, fully met.

[39]  In this case the claimant clearly commenced expropriation proceedings in accordance with section 26 of the Water Regulation. The amendments to the intended expropriation came after the claimant had already made his application to the board in accordance with section 30. While there is no proof that these amendments resulted in any refiling of documents with the comptroller and the registrar, and in that sense it has not been shown that the procedural requirements have been perfected, I do not consider this defect to be fatal to the claimant's application, to deprive the board of jurisdiction already assumed, or to be incapable of being remedied if necessary at a later date but before an order of this board takes effect.

[40]  There are other considerations in respect of which Mr. Kana's absence poses an obstacle to these proceedings. However, when considering the effect of his probably not having been served with the documents referred to in section 26(d) to (g), I observe from the proposed new right of way plan that the claimant does not intend to expropriate any part of the Kana property, that Mr. Kana's signature is therefore not required on the registrable instrument creating the easement, and that Mr. Kana is accordingly offered no compensation with respect to the taking. From this perspective, at least, the apparent failure or inability to serve Mr. Kana is a somewhat minor or peripheral defect. However, in making this observation, I do not preclude the possibility that Mr. Kana may be in the position to make an application for compensation for injurious affection where no land has been taken from him, pursuant to section 41 of the Expropriation Act.

4.2  Requirements under the Practice and Procedure Regulation

[41]  Section 31 of the Water Regulation incorporates into proceedings before the board numerous provisions under the Expropriation Act, including section 27(1) which deals with the board's rule-making powers. The board's Practice and Procedure Regulation flows from that provision and governs such matters as the filing of applications for determination of compensation and replies to the application, the manner of setting down hearings, and service or notification requirements in respect of these steps.

[42]  The primary issue which arises out of the procedural provisions in this instance is the addition of Mr. Kana as a party to the proceedings and lack of proof that he was notified by the claimant about this hearing. Mr. Humphries on behalf of the Barclays argued during final submissions that the notification defect was also fatal to the claimant's application. Mr. Kana's presence at, or at any rate appearance to, these proceedings was vital in order for the board properly to determine whether the claimant's proposed taking of an interest in the Barclay property was reasonably necessary. Arguably, Mr. Humphries said, it is the Kana property which should be the subject of the claimant's expropriation.

[43]  The background to this issue is as follows. After Mr. Denault filed with the board his amended application for determination of compensation on May 31, 2001, which among other things added Mr. Kana as a respondent, claimant's counsel at the time effected service of the amended application on both the Barclays and Mr. Kana. Mr. Kana was served by registered mail in Kaslo on June 4, 2001, and proof of service was provided to the board shortly thereafter.

[44]  The process under the Practice and Procedure Regulation contemplates that, once a claimant has filed an application with the board and served it on a respondent, the respondent will in turn file and serve a reply to the application within a period of 21 days. The board commonly construes these filings in prescribed form as formal pleadings which essentially define the scope of the dispute. Mr. Kana has not filed a reply. Neither, I should point out, have the Barclays at any time filed a reply either to the original or the amended application. I am inclined to attribute some of these irregularities to uncertainty or confusion around the board's procedures where they must be adapted to those rare applications brought under the Water Act and the Water Regulation. It will suffice at this point to observe that in the absence of a formal reply the Barclays nevertheless have made clear their position on Mr. Denault's amended application but Mr. Kana's position, if any, is unknown.

[45]  On July 30, 2001, the claimant filed with the board an application to set a hearing date. By agreement between counsel for Mr. Denault and the Barclays, the hearing was initially scheduled to take place on October 2, 2001, but was subsequently changed to October 16, 2001, further to October 23, 2001, and lastly to November 22, 2001, when it finally proceeded. The changes in hearing date were made necessary to some extent by the board's own scheduling and booking difficulties, and were also affected by Mr. Denault's decision to change counsel and by Mr. Kana's effort to sell his property. At one point, Mr. Kana had found a potential purchaser, and I conducted a case management teleconference on September 7, 2001, to apprise the potential purchaser of the nature of the ongoing proceedings and to allow sufficient time for her to obtain legal counsel. Shortly afterward, the board was advised that the purchase would not be proceeding.

[46]  The board issued a formal notice of hearing in accordance with section 5(2) of the Practice and Procedure Regulation in respect of several of the scheduled dates noted above. Section 6 provides in effect that, on receipt of the notice of hearing, the expropriating authority (or in this case the expropriating licensee) is to serve, not less than 20 days before the hearing, a copy of the notice on all owners and also on any person who, to the knowledge of the expropriating authority, "claims to be entitled as an owner to any interest in the land expropriated or to the whole or any part of the compensation that may be awarded." Proof of service is to be filed with the board. In this instance, the claimant has provided no proof of service on Mr. Kana of any notice of hearing issued by the board.

[47]  A review of the board's own file in this matter reveals, however, that the board made its own efforts to contact Mr. Kana with respect to the hearing. The notice of hearing set for October 16, 2001, for example, was mailed out to the parties by the board's registrar on September 25, 2001. It was sent by registered mail to Mr. Kana under cover of a letter from the registrar which stated:

"I am writing in relation to a compensation hearing which has been scheduled to be heard in Kaslo on October 16, 2001 for the above-noted case. I am currently endeavouring to have the hearing held at the church hall in Kaslo and enclose a Notice of Hearing to that effect.

Although you have never filed a Form B, Reply to Determination of Compensation, it is my understanding that you are still the owner of this property and, because the rights to your property may be affected, you may be interested in attending the hearing and having your views heard.

I would appreciate hearing from you at your earliest convenience with respect to your intentions regarding the hearing."

[48]  The board received no reply from Mr. Kana to this registered letter, but neither was the letter ever returned as unclaimed, leading to the reasonable inference that it may at least have been received. The registrar's notes to file reflect that subsequent unsuccessful efforts were also made by the board to contact Mr. Kana by telephone, first in Kaslo and later in Alberta.

[49]  Section 8 of the Practice and Procedure Regulation provides:

8. No proceeding before the board shall be defeated by a failure to comply with a rule governing practice and procedure before the board where, in the opinion of the board, there has been substantial compliance and no person has been prejudiced by the failure to comply.

[50]  The circumstances just described do not lead me to conclude that the claimant's application before the board should be dismissed for lack of compliance with the notification requirements as they pertain to Mr. Kana. The claimant did serve the amended application on him. Because Mr. Kana filed no reply, technically the claimant may not have been obliged to serve the notice of hearing. In any case, although there is no evidence of any effort by the claimant to serve Mr. Kana with a copy of a formal notice of hearing, there is some reason to believe from the board's file that he did receive initial notification in any event.

[51]  In my view an appropriate result can be achieved which avoids actual or potential prejudice to Mr. Kana in his unexplained absence by limiting somewhat the scope of my determination of the claimant's application on its merits. In other words, in determining what Mr. Denault as an expropriating licensee reasonably requires for legal access to his water box and pipeline, I do not propose to make any definitive findings here regarding the alternative possibility raised by the Barclays of expropriating instead an easement over the Kana property even though Mr. Kana has been made a respondent in these proceedings.

5.  IS THE EASEMENT SOUGHT REASONABLY REQUIRED?

[52]  Having disposed of the procedural objections raised, I now turn to the central questions in this hearing, which are whether the claimant has shown that the easement sought is "reasonably required" within the meaning of section 27 of the Water Act and, if so, whether the proposed terms and conditions of use are also reasonable.

5.1  The Claimant's Position

[53]  The claimant submits that the proposed new right of way along the westernmost boundary of the Barclay property with the Kana property off Tangye Road is reasonably required in order properly to access his water system and especially to maintain and improve his water box on the Kana property. Mr. Denault's current right of access over the Barclay property under the existing registered 10 foot wide easement as modified by the courts has proven, he says, insufficient for these purposes.

[54]  The alleged difficulties are particularized as follows at paras. (i) through (l) of the amended statement of claim filed on May 31, 2001:

"(i) The water box located on the Kana property is in serious need of repair and will require machinery to be brought to the location of the water box.

(j) There are serious difficulties encountered in the Fall, Winter, and Summer months with debris such as leaves, sticks, rocks, and as well, with freezing, that require the Claimant to inspect the water box approximately every 2 to 3 days. The present easement does not allow for this.

(k) The Claimant is nearly sixty years of age and suffers health problems which make it difficult to inspect the water box and pipeline and he requires the ability to carry out inspections and maintenance with the use of a motor vehicle. This will require an easement of 20 feet width in order to construct a road.

(l) The circumstances of the Claimant have changed over the past six years to the extent that the Claimant reasonably requires an easement of 20 feet width with motor vehicle access to effectively, construct, maintain, improve and operate the works under the water licenses."

[55]  The proposed new right of way route intersecting the existing registered easement and providing for a road and cul de sac will evidently require considerable site preparation, including the relocation of some existing structures belonging to the Barclays. However, Mr. Denault maintains that the location can be readily adapted for this purpose and will provide him with the most convenient access. He also appears to suggest that it will be less invasive than other possibilities, including expansion of his existing easement on the Barclay property. That location, he now contends, is in any case an impractical route for motorized vehicle traffic. The proposed new location, he asserts, does not interfere substantially with the Barclays' use of their property and, in fact, would create a second driveway which might prove beneficial in allowing alternative access to their son's homesite at the north west corner of the property.

[56]  Mr. Denault also submits that the proposed new easement is in accord with a settlement proposal made to him by the Barclays in 1994. The claimant refers to affidavits sworn by both Mr. and Mrs. Barclay on September 12, 1994, in connection with proceedings pending before the British Columbia Court of Appeal. The affidavits were entered in evidence at the hearing at tabs 19 and 20 of an exhibit assembled by counsel for the Barclays, entitled "Chronology of Proceedings". At para. 12 of each of their affidavits, the Barclays refer to an attempted resolution of the entire issue between the parties, which included the offer of an easement to the claimant in the same location as that now proposed.. Para. 12 provides in part:

"Our offer is that we would grant the Appellant [Mr. Denault] a registered easement for foot traffic along the western boundary of our property to the pipeline easement area…."

The claimant submits that the earlier offer has never been formally withdrawn.

5.2  The Barclays' Position

[57]  The Barclays emphasize at the outset that the right to expropriate under the Water Act is not an absolute and unfettered right. An expropriating licensee has only the right to expropriate land "reasonably required" in respect to works authorized under his or her licence.

[58]  In the present instance, the Barclays say that none of the land sought to be expropriated has been shown to be reasonably required by Mr. Denault for his intended purpose. Accordingly, his application should be dismissed. They cite several reasons in support of their position.

[59]  First, they say, Mr. Denault already has an easement, the terms of which have been established by the Supreme Court of British Columbia and the British Columbia Court of Appeal, which allows him fully to attend to his water works needs. The Barclays do not by this submission purport to reopen the issue of res judicata. Rather, their argument is grounded on evidence which they say shows Mr. Denault already enjoys all the foot access he reasonably requires. They specifically reject his contentions in the amended statement of claim that his water box is in serious need of repair and, beyond that, that seasonal conditions often require its inspection every two or three days.

[60]  Second, the Barclays challenge Mr. Denault's assertions that his advancing years and health problems make reasonably necessary the construction of a road across the Barclay property to provide regular motorized vehicle access to the water box. As a matter of legal principle, the Barclays say, such considerations personal to the claimant are irrelevant and could lead to absurdity. What is reasonably required by way of an easement must be determined on an objective standard.

[61]  Third, if Mr. Denault does require vehicular access at all, it is only perhaps for the rebuilding of the water box, a project which they submit could have been undertaken at any time in the past and which may still occur without any proven objection from Mr. Kana upon whose land the water box sits. The evidence, they say, supports the conclusion that Mr. Denault has never been prevented from crossing the Kana land for such a purpose.

[62]  Fourth, the Barclays say an expropriating licensee, in deciding on what land he or she reasonably requires, has a responsibility to consider alternative options which might minimize disruption. However, in this instance the claimant has not explored other much simpler methods of dealing with access to his water box. According to the Barclays, there are two other access routes which are easier and far less intrusive than the proposed new easement. One is from the south east corner of the Kana property. A second and superior alternative is off Jacobs Subdivision Road. Even if this were to require an easement along the north west boundary of the Barclay property to where it intersected the existing registered easement, it is nevertheless the easiest, shortest and least costly route.

[63]  The Barclays say that their 1994 offer of limited foot access across that portion of their property where the claimant now proposes a new easement was, as their affidavit points out, rejected at the time by Mr. Denault, and that accordingly the offer is no longer open and is irrelevant to my determination.

5.3  Discussion and Analysis

5.3.1  Scope of the Board's Authority

[64]  Normally, in expropriation compensation proceedings before the board under the Act, the merits of an expropriation are not in issue. It is the expropriating authority, operating within its statutory mandate, which decides on the land it compulsorily requires for some public purpose and the approving authority which, in turn, approves the expropriation. In some instances the owner of the affected land is entitled under the Act to request an inquiry into the intended expropriation. Absent such an inquiry, the approving authority must approve the expropriation or, if an inquiry is held, the approving authority has discretion to modify or reject the intended expropriation. The board's role is generally limited to determining compensation to be paid in respect of an expropriation which is already an accomplished fact.

[65]  The situation is otherwise in expropriation proceedings pursuant to the Water Act and the Water Regulation. I agree with counsel for the Barclays that the right to expropriate an interest in land under those provisions is not an absolute or unfettered right. In this case the board is vested with the authority to determine what an expropriating licensee "reasonably requires" and, in my view, inherent in this authority is the board's power on proper grounds to approve, modify or reject the proposed expropriation. Section 30(b) of the Water Regulation provides that the expropriating licensee may apply to the board for a determination of the nature and terms of the conveyance or instrument required to give effect to his or her right under section 27 of the Water Act "to expropriate the land reasonably required in accordance with that section". Section 31(2) of the Water Regulation states:

31 (2) It is the duty of the board to determine the matters referred to in section 30(b) of this regulation, and the board has the powers necessary to determine those matters.

[66]  In my view the determination of what land is "reasonably required" imports, among other things, the notion of weighing the balance of convenience or inconvenience as between the expropriating licensee on the one hand and the owner whose land is intended to be the subject of the expropriation on the other.

5.3.2  The Evidence Considered

[67]  In considering whether the claimant's proposed new easement along the western boundary of the Barclay property is reasonably required within the meaning of section 27 of the Water Act, I propose to examine the evidence under each of several headings: first, the nature and condition of the claimant's water box on the Kana property; second, the nature and impact of the works proposed on the new easement area; third, the question of motorized vehicle access in relation to the claimant's personal circumstances; and fourth, the availability of alternative options.

5.3.2.1  Nature and Condition of the Claimant's Water Box

[68]  The water box is only one small component of Mr. Denault's water system. Under his conditional water licence no. 39288, Mr. Denault is entitled to draw 500 gallons of water per day for domestic purposes and 2.34 acre feet of water per annum for irrigation purposes. At the point of diversion, water is drawn from Curle Brook by means of an intake pipe 3 inches in diameter which feeds into the water box. Water is delivered from the water box to Mr. Denault's property by means of a pipeline passing beneath the Kana property and the Barclay property to his residence, a distance estimated at approximately 2,000 feet.

[69]  It seems clear that access to the water box is the real focus of the claimant's expressed concerns. Mr. Denault testified that he replaced the original pipeline and water box in 1984. The evidence was that he replaced a steel pipeline running along or just below the surface of the land with a 4 inch plastic pipeline buried to a depth of 6 feet. As I noted in my earlier decision on the dismissal application, this change in circumstance was a factor which led Cooper J. in the Supreme Court in May, 1994, to conclude that it rendered unnecessary Mr. Denault's constant entry upon his easement area on the Barclay property to inspect the pipeline, which has been essentially maintenance-free. His entry for inspection purposes was restricted to one day per month, although he continued to have access at any time for repairing or replacing the pipeline. The decision of Cooper J., upheld on appeal, was silent respecting any right of the claimant to access the Barclay property for repairing or replacing the water box.

[70]  The Denault water box is a wooden structure approximately 10 feet long by 4 feet wide by 5 feet deep. It has two chambers one of which is used as a settling chamber and the other of which acts as the clear water holding tank. There is a screen over the settling chamber and another between the settling chamber and the holding tank. There is no protective screen over the intake pipe nor is the wooden lid to the water box fastened in any way.

[71]  Mr. Penner, the claimant's consulting engineer, inspected the Denault water box as well as those of the Barclays and a next door neighbour in the course of preparing the proposed new right of way plan. Mr. Penner has some experience with water systems but generally with larger municipal systems. He testified from his observations that the timber portions of the Denault water box were showing various degrees of decay with moss forming on the exterior. The water box, he thought, required repair and ongoing maintenance. Also, he said, the 3 inch diameter intake pipe was much larger than that of the neighbouring system he had viewed. The larger intake raised the likelihood that more debris would be collected in the system, again requiring greater maintenance. Although most of the trees in the immediate vicinity of the Denault water box are coniferous, Mr. Penner said he noted large numbers of leaves from deciduous trees on the ground. From his inspection he had observed some debris inside the water box but also stated that water to and from it appeared to be flowing freely.

[72]  Mr. Denault also testified concerning repairs he said were urgently needed to the water box. These repairs required that large wooden planks be transported to the site. In his amended statement of claim, Mr. Denault had alleged as well that serious difficulties are encountered during the fall, winter and summer months as a result of debris such as leaves, sticks and rocks clogging his intake or the water box itself as well as the seasonal danger of freezing, making constant inspection of the water box a necessity. However, at the hearing itself, the claimant offered a novel explanation of the source of the problem. It was not, he said, natural conditions which imperilled the water box but rather other people "fiddling with" and perhaps deliberately plugging the intake.

[73]  The Barclays adduced evidence to suggest that the claimant's expressed needs for accessing his water box were greatly exaggerated and that any ongoing problems he identified were the result of design deficiencies that could be readily improved.

[74]  Several witnesses testified as to the frequency with which water boxes normally have to be inspected and cleaned. Mr. Legg, a local realtor who at the time of the hearing had the sales listing for the Kana property and who has a water box on his own property, was familiar with many rural properties in the area which make use of such water systems. Usually, he stated, if a water box intake is properly screened, it is only necessary to inspect the system and perhaps clear away debris two or three times in the spring and once in the fall. Mr. Barclay, whose own water box closely replicates that of Mr. Denault, testified that he checks the system in the spring and usually cleans it only once a year. His neighbour, Mr. Rudolph, has a basic system with a 1 inch diameter intake pipe protected by a screen through which the water passes into a 45 gallon plastic barrel covered by a board. I looked at both the Barclay and Rudolph water intake and collection systems in the course of my site visit. Mr. Rudolph testified that he checks his system perhaps every two months, finds it necessary to clean the screen two or three times during spring run-off, but cleans the barrel only about once a year. All of these witnesses gave evidence that they have little or no problem with winter freezing.

[75]  A central thrust of the Barclays' case seems to be that Mr. Denault's water system surpasses his real needs. To the extent repairs and replacement are necessary in the short term, a 1 inch rather than 3 inch intake pipe and a smaller and more easily maintained water box collection system would suffice. Under cross-examination, Mr. Penner agreed that a spherical screen could easily be put in place over the existing intake. He also agreed that the size of the existing water box might possibly accommodate five or six households. Mr. Penner was also asked about alternative water box construction. He estimated that a large plastic container similar to that used by Mr. Rudolph might take a week to install and would be longer lasting with little required maintenance provided it had ultra-violet protection. Longer lasting still would be a water box constructed of concrete; however, Mr. Penner pointed out that considerable material and equipment would then have to be brought to the site. Mr. Legg in his evidence stated that there were upwards of 10 contractors in the area able to build water boxes.

[76]  From my review of the foregoing evidence, supported by my site visit, I am satisfied that some near term repair or replacement will likely be required to Mr. Denault's water box which shows signs of significant deterioration. Whatever form the improvements take, they will require bringing materials and possibly equipment to the location. This is largely a one-time operation which, in the normal course, should not need to be repeated for many years. It is relevant to observe that the existing water box was replaced in 1984 and has basically withstood the test of time for nearly two decades. Despite the deterioration, it continues at this point to be fully operational.

[77]  The need for ongoing inspection and maintenance is, to some degree, dependent upon the kinds of improvements which are made. However, steps can be taken such as the installation of a screen over the intake to reduce the frequency with which access is required. I am not, in any event, convinced that the claimant reasonably requires access to his water box in the order of once or twice or three times a week in order to deal with natural conditions affecting its operation. It is relevant that similar evidence regarding Mr. Denault's alleged need for constant inspection of the water box was before Mr. Justice Cooper in the Supreme Court action, but the learned judge nevertheless concluded that inspection on a monthly basis was adequate. Mr. Denault's unsubstantiated assertion at this hearing that others were, as I understood him, intentionally tampering with his system did not lend credibility to his testimony overall.

5.3.2.2  Nature and Impact of Works Proposed on the New Easement

[78]  The proposed new right of way, as depicted on the explanatory plan prepared by Mr. Penner, encompasses an area of 990 sq. metres. It runs along the western boundary of the Barclay property for a distance of approximately 120 metres. This is roughly two-thirds of the overall northerly extension of the boundary from Tangye Road. As I previously indicated, the proposed right of way has a width of 6 metres until it approaches the point of intersection with the existing registered easement across the Barclay and Kana properties where it is expanded to provide for a cul de sac approximately 10 metres in diameter.

[79]  Mr. Penner testified that, at the time he inspected the property, assembled the necessary legal drawings and drew the easement, he was unaware that Mr. Denault intended to construct a road. Nevertheless, he indicated that the width of the right of way allowed for ditching on either side of the road and around the cul de sac. The travelled surface of the road itself would be perhaps 4 metres in width and the effective turnaround area of the cul de sac would measure 7 metres in diameter.

[80]  Mr. Penner also outlined the various steps he said would be required in order to construct a road suitable for motorized vehicle traffic on the easement. These included the following:

• Removing the substantial grove of coniferous trees and fruit trees in that location;
• Permanently draining the swampy portions of the easement area, probably by means of a cut off trench;
• Relocating the Barclays' water box down the hill to the east and sufficiently far away from the newly constructed road to avoid contamination, or alternatively, building a bridge over the water box;
• Removing the Barclays' wooden foot bridge, which is some 20 to 30 feet in length, and which crosses a gulley within the proposed easement area;
• Filling the gulley portion in order to create a level right of way, to be achieved to some extent by cutting and filling but also requiring an as yet undetermined number of loads of both coarse and finished fill; and
• Inserting culverts beneath the road at the locations of both Athol Creek and Curle Brook, which would require environmental approvals.

[81]  Mr. Denault testified that he would be capable with equipment to construct the road by himself. He stated that he had made no application as yet to the Water Management Branch to determine whether approvals could be obtained to put in the proposed culverts. Under cross-examination, he refused to accept the suggestion that the proposed works created numerous complications, including the need to move the Barclays' water box and foot bridge.

[82]  Mr. Barclay was cross-examined by claimant's counsel as to the use currently made by the Barclays of the proposed new easement area. He disagreed that the easement would not interfere with his enjoyment of the property. He testified that he often walked along the western boundary of his property in the summer months, avoiding the swampy area. Although the location of the proposed new easement is a considerable distance from the Barclays' residence, he stated that it all formed part of the visual beauty of the area, to which the foot bridge also contributed. Mr. Barclay also disagreed with the suggestion that the proposed new road would benefit his son by providing an additional access off Tangye Road to the son's mobile homesite. The Barclays' son already had easy access to Jacobs Subdivision Road, only 25 feet distant, and winter time snow conditions, he said, would severely restrict passage across the proposed new easement to Tangye Road, a far greater distance away.

[83]  There can be no doubt from the evidence, in my view, that the construction and use of a road on the proposed new easement area would constitute a substantial interference with the Barclay property. Quite apart from the removal of features such as the grove of trees and the foot bridge which add to the aesthetic enjoyment of the property, there are also engineering and environmental concerns. For one, removing the Barclays' water box to a lower elevation from where it presently sits approximately 50 feet above their residence, as Mr. Penner acknowledged, would result in reduced water pressure. For another, draining the wetlands in the proposed easement area could have adverse consequences for other portions of their property. The proposed road also crosses two creeks for which environmental approval is required. The question is whether these concerns are overborne by others which make the proposed new easement area "reasonably required" for Mr. Denault's purposes as a water licensee.

5.3.2.3  Vehicular Access and the Claimant's Personal Circumstances

[84]  It is Mr. Denault's expressed need for motorized vehicle access to his water box which underpins the proposal to construct a road across the proposed new easement area on the Barclay property. He testified that he used to make his way to the water box on foot for inspection purposes but can no longer do so without great difficulty. Furthermore, he stated, he requires a vehicle to transport materials and equipment to the site in order to undertake the necessary repairs. It is, of course, the case that the road on the proposed new easement would not lead directly to the water box. It would merely intersect the existing registered pipeline easement, at which point some means would have to be found to ascend the steep incline along the existing easement route until the water box is reached, possibly with the use of a small motorized vehicle. Mr. Denault gave evidence that he owns a four-wheel drive vehicle as well as a track machine similar to a caterpillar tractor with a snowplow attachment. He also owns a motorcycle with two-wheel drive. He thought either the motorcycle or the four-wheel drive vehicle might be suitable to ascend the remaining distance from the proposed new road to the water box.

[85]  The claimant was 62 years of age at the date of the hearing. Although he is described on title to his property as a logger, he testified that he has not been employed for many years and has been receiving a disability pension since 1965, prior to when he purchased the property. He attributed his health problems to a long-standing spinal injury and said he has lost power in his right arm, that his arm is the source of chronic pain, and that the condition makes it difficult for him to carry materials by hand. During his testimony, his arm was supported by a sling. He also stated that he now has difficulty in walking to the site of his water box. No evidence in the nature of a medical certificate or the like was offered in support of these assertions.

[86]  Mr. Barclay stated that he had many times observed Mr. Denault making his way on foot up the existing easement to the water box. The most recent instance was only a week prior to this hearing. He had also, he said, seen Mr. Denault entering or exiting the Kana property just west of the boundary with the Barclay property with or without a vehicle. Mr. Barclay said he had recorded each instance on his calendar. He testified that, prior to 2001, he had seen the claimant driving across the Kana property every week and sometimes several times per week. However, this had not occurred in the two or three months preceding the hearing.

[87]  Mr. Denault was present on the occasion of my site visit. The Barclays' counsel, in later cross-examining the claimant, observed that Mr. Denault evidenced no physical difficulty in making his way on foot up the steep slope from the proposed new easement area along the approximate route of the existing easement to his water box. His arm was not supported by a sling at that time.

[88]  Although I am prepared to accept that Mr. Denault suffers from health problems which may be worsening, I do not consider such a circumstance personal to the claimant to be a relevant consideration in determining the reasonable requirements of an expropriating licensee with respect to such matters as the width of an easement area or the provision of a road. I agree with the Barclays that an objective standard must be used. The time may come when it will be necessary for Mr. Denault to employ others to carry out the inspections, maintenance and repairs. Even if I did view Mr. Denault's health to be relevant, on the evidence I question whether it establishes a strong case for a new proposed right of way across the Barclay property providing for frequent motorized vehicle access to his water box.

5.3.2.4  Availability of Alternative Options

[89]  In determining whether the proposed new easement on the Barclay property is reasonably required for the claimant's purposes, it is also appropriate in my view to take into account the evidence concerning other options for access.

[90]  The initial consideration, of course, is the fact that Mr. Denault already has access to his water system by way of the existing 10 foot wide easement across the Barclay and Kana properties. In the Barclays' submission this is all the access he really needs, while in Mr. Denault's submission its terms as modified by the courts are too restrictive and it also fails to meet the need for vehicular access. I am persuaded from the evidence heard that, to the limited extent vehicle access is reasonably needed to effect repairs to the water box in the near future, the existing foot easement across the Barclay property is on its own insufficient. I would also observe that the claimant's original intention to expropriate an easement 15 feet in width following the route of the existing easement and to construct on it a road and bridge to accommodate motor vehicle access, if it had been proceeded with and approved, would have been more intrusive on the Barclays than what is now proposed.

[91]  In choosing the westernmost boundary of the Barclay property off Tangye Road as the location for the proposed new easement, Mr. Denault claims to have relied on the earlier offer of such access by the Barclays during settlement negotiations in 1994. The fact is that the offer was for limited foot access only and, as Mr. Denault himself testified, it was rejected by him because foot access alone was to his mind inadequate. Mr. O'Neill, the claimant's counsel at the hearing, was at pains to point out that the Barclays' offer was never formally withdrawn. He stated that there was case authority on point which he could provide. No such authority was forthcoming. In any event, I am satisfied from the oral evidence of both Mr. Barclay and Mr. Denault, as well as the affidavits put in evidence in the court proceedings at that time, that there was a clear and unequivocal rejection of the Barclays' offer, which was for far less than what the claimant now seeks, and that the rejected offer cannot now be relied upon to assert the reasonableness of the proposed new easement area.

[92]  Mr. Penner testified that, in preparing the proposed new plan, he was instructed by claimant's counsel as to the area in which to locate the easement. He did not explore alternative locations nor was he instructed to do so. As I have previously indicated, he also testified that he was not made aware at the time of the intended purpose to construct a road.

[93]  Under cross-examination Mr. Penner acknowledged that, from an engineering point of view, a better, simpler right of way route could probably have been found. He was asked in particular about constructing road access to the existing easement off Jacobs Subdivision Road. He saw no particular problem in building such a road. It would clearly be shorter than the proposed road, perhaps two-thirds the distance. The land in the area running north and south had little slope. There appeared to be no swampy area to be drained or gulley to be filled. There was only one watercourse, Curle Brook, to cross rather than two.

[94]  To access the area adjacent to Jacobs Subdivision Road from the Denault residence, it would be necessary to travel approximately one mile. Mr. Denault stated that he did not consider this route when deciding on the desired new easement area because it was too far away for convenient access, whether on foot or by vehicle, by comparison with access off Tangye Road. At the same time he adamantly declined to acknowledge the disruption and complications involved in constructing a road on the area identified for the proposed new easement. When taking into account the balance of convenience or inconvenience as between the parties, I do not find Mr. Denault's explanation at all compelling.

[95]  Mr. Denault also testified that he did not pursue the option of obtaining an easement on the Kana property which would make use of an existing entry road off Tangye Road because of Mr. Kana's expressed opposition. However, the evidence was that Mr. Denault in the past has frequently accessed his water box by crossing the Kana property, either on foot or with a vehicle, from this entry road with the owner's permission. The entry road is situated adjacent to the boundary with the Barclay property and therefore is also adjacent to the proposed new easement area where the claimant now proposes that a further road be built. This evidence, when viewed in relation to my finding that the only substantial case for motorized vehicle access to the water box is for one-time replacement or repair in the near future, leads logically to the suggestion that the claimant's reasonable requirements might well be met by way of a temporary easement for vehicular right of entry across the Kana property. This more restrictive option was not considered at the hearing and, not having had the opportunity to hear from Mr. Kana himself, I raise it here simply as a possible resolution.

[96]  My review of the evidence indicates that alternative possibilities exist for what the claimant reasonably requires to access his water system. These include continuing use of the existing easement on the Barclay property, obtaining an easement on the Kana property which makes use of the existing entry off Tangye Road, and obtaining an easement to run from Jacobs Subdivision Road to the point of intersection with the existing easement.

5.4  Conclusion

[97]  From all of the foregoing, I conclude that the claimant has not demonstrated that he reasonably requires an easement over the westernmost boundary of the Barclay property providing for a road and regular vehicular access to his water box on the Kana property. While I agree that some repairs appear to be needed to his water box in the near future, and that these repairs may require moving materials to the site by some kind of motorized vehicle, this one-time operation does not in itself justify in my view the substantial interference with the Barclay property created by the construction of a road on the proposed new easement area. Building a road in that area, as the claimant's engineering expert Mr. Penner himself testified, would involve numerous complications involving both geotechnical and environmental concerns as well as destroying or dislocating natural and constructed amenities. I am unable to agree that there is a strong case for regular vehicular access simply for the purpose of inspection and cleaning of the water box. In my opinion the alleged need for constant inspection is exaggerated and the need that does exist can also be lessened by making simple improvements. As I previously indicated, the claimant's personal health is not a determining factor in deciding on what is reasonably required for access.

[98]  With respect to alternative options, claimant's counsel relied on the board's decision in Spur Valley Improvement District v. Checkman Holdings (Calgary) Ltd. (1999), 67 L.C.R. 106. This is the only other decision of the board to date which deals substantively with an application pursuant to section 27 of the Water Act and Part 5 of the Water Regulation. Mr. O'Neill referred to the decision in support of the proposition that an expropriating licensee is not required to explore alternative routes in choosing an easement area and that the onus is on the expropriated owner to show with proper evidence the viability of any such options.

[99]  Properly understood, the Spur Valley decision does not in my view significantly assist the claimant. In that case the claimant's surveyor was engaged to identify two water pipeline routes, one of which remained unconstructed, to a pumphouse situated on the respondent's land and used by both parties. Additionally, he was instructed to locate a right of way for access to the water system along an existing road serving the respondent's campground and resort.

[100]  One issue raised by the respondent was that alternative right of way routes for the unconstructed pipeline should have been explored. At p. 120 of the decision, I held that the respondent's contention did not accord with either the evidence or the law since the respondent's proposed alternative pipeline route entirely across adjacent Crown land was completely contrary to what was authorized in the plan attached to the conditional water licence. I considered myself bound by a decision of the Supreme Court of British Columbia in Hidden Bar Ranch Ltd. v. Wilson (1986), 36 L.C.R. 318, which held that an arbitrator could not determine a different location for a water pipeline than that authorized by the licence. The present case does not involve determining a right of way route for Mr. Denault's water pipeline, already constructed pursuant to his conditional water licence and more or less identified as to location.

[101]  A second issue raised by the respondent in Spur Valley was that the surveyor had failed to explore reasonable alternatives for the location of the access road to the pumphouse, and that it would have been possible for the claimant instead to build a new and different access road on the respondent's land the effect of which would be to minimize interference with the respondent's commercial operations.

[102]  On this point I held, again at p. 120, that:

…no survey or engineering evidence was introduced by [the respondent] to support the viability of such an option nor was there any evidence to demonstrate that it would be less intrusive to create a new road on the [respondent's] property than to utilize the existing one, as the surveyor has done.

[103]  I do not consider that the foregoing observation can be taken in a general sense to mean that an expropriating licensee has no obligation to consider reasonable alternatives for access and that the onus rests on the party whose land is intended to be expropriated to prove the existence of other and better alternatives. The determination of what is reasonably required for access is to a large extent fact-driven. In the Spur Valley case, there was already a road in existence which both parties, albeit with considerable acrimony between them, were utilizing to access the pumphouse. There was therefore a prima facie case in favour of its continued use by the claimant, to be regularized through the expropriation of a statutory right of way. The respondent's bald assertion, without any evidence, that another road could and should be built for the same purpose was not sufficient to displace the argument that the existing road was reasonably required to provide the necessary access.

[104]  The current situation as to access is very different in the present case, and it seems to me that there was some onus on Mr. Denault to have considered how his reasonable requirements could be met with a minimum of disruption to the owners of affected lands. There was, in any event, a body of engineering and other evidence, in particular that of Mr. Penner largely adduced under cross-examination at the hearing, which supports the presence of at least one superior alternative, namely access off Jacobs Subdivision Road.

[105]  I have thus far in these reasons refrained from commenting on the suggestion made by Mr. Barclay and the Barclays' counsel that the real motivation behind this entire exercise is grounded in a "vendetta" by Mr. Denault toward the Barclays. There is ample evidence from past proceedings in the courts that the relations between these neighbours have been poisoned for many years, and at the hearing they both evinced suspicion and distrust of each other. I found Mr. Denault's demeanour during the hearing to be hostile, and his responses often either evasive or inconsistent. Mr. Barclay I found to be a more forthright witness. This necessarily colours my view of the proper disposition of this application in the sense that I believe that, in balancing the interests and concerns of the parties, Mr. Denault's claim to expropriate land from the Barclays he says is reasonably required for accessing his water system must be viewed with particular caution. In my view, the claim has not been substantiated.

[106]  In the result, I dismiss the claimant's application for an order determining that he is entitled to expropriate an easement over the westernmost boundary of the Barclay property as shown in the explanatory plan prepared by Mr. Penner. Since I do not consider that it has been shown that the land in question is reasonably required within the meaning of section 27 of the Water Act, it is unnecessary for me to consider the appropriate terms and conditions of use under the instrument. Those terms have not, in any case, been amended to accord with the proposal put forward at the hearing by the claimant.