An ad hoc group of a dozen property owners has won an argument that the Township of East Luther Grand Valley acted to avoid the Line Fences Act when it designated an abandoned rail line as a "highway."

The ruling by Superior Court Justice Hugh O'Connell, in favour of the group's application to quash the designating bylaw, could mean that the Township would have to erect a fence on both sides of the right-of-way if it is to be used, as planned, as a trailway.

In a 31-page judgment, Justice O'Connell rejected the township's argument that it had enacted the bylaw to reserve the rightof way "for future use as a highway and/or a utility/ services corridor," and ruled that the bylaw had been passed "in bad faith."

"I am satisfied on the facts ... that the (group has) satisfied the onus cast upon them, that is, that the bylaw was passed in bad faith.

The motive for passing the bylaw was clearly established by the evidence that it was to avoid responsibility that council knew it had under the Line Fences Act, and the law to fence and pay the cost.

"The motive was established by reason of the following: Timing; The comments of the Reeve and of Council; That there was no due diligence undertaken; The budgetary considerations; and, the bringing in of bylaw 2003-05 to delay the attendance of the fence viewers to April 1, 2003."

Justice O'Connell goes on to say that the bylaw to reserve the right-of-way as a highway was unneeded.

"The Township could meet all of its requirements present and future without the necessity of the bylaw. The failure of the Township to treat (the right of way) as a highway after the passing of the bylaw by allowing for a continuing use as a trailway, and supporting the committee's activities, supports my conclusion that the bylaw must be quashed."

In his reasons, Justice O'Connell traces the history of the right-of-way from its abandonment as a rail line in the mid-1980s by the Toronto Grey and Bruce County Railway company, its purchase by the township from TGBC's successor, CP Rail, in 1997.

Part of the evidence in support of the group's application was former councillor Bob Hammond's testimony to the effect that "the property being owned by the Township meant that the Township didn't have to designate it as a road in order to have easement agreements for (any utility agreements). It was his understanding that bylaw 2003-07 was passed as a result of complaints for a fence."

The group was represented by lawyer Donald Good, who had successfully argued "the Tillsonburg case" in which a court there ordered the municipality to erect fencing on a rail right-of-way it owned, and was being used as a trailway.

Justice O'Connell details the involvement of the council with the Upper Grand Trailway, and outlines its relationship with members of the ad hoc group with respect to fencing.

As well, he notes that the council postponed fence viewing over the winter of 2002-03, and passed the highway bylaw prior to the viewers' attendance in April 2003.

Lawyer Christopher Cooper represented the township. On Wednesday, township lawyer William Stutz said he has been given instructions to appeal the decision. "There's a broader issue involved here."

He said the court's decision in this instance gets to the issue of whether or not the Township is empowered to enact bylaws.