Kelowna cyclists 'disappointed' with Curtis Road access ruling

The president of Kelowna and Area Cycling Coalition says his group is disappointed with a B.C. Supreme Court ruling that bars cyclists from using a privately owned extension off Curtis Road to access the UBCO campus.

Landon Bradshaw said he had hoped something could have been worked out between the cyclists and area residents who went to court claiming years of use by cyclists and walkers, who they feel have made the private easement a public road to UBCO, was an intrusion and an invasion of their privacy.

“We’re quite disappointed in several different ways,” said Bradshaw. “Not the least of which is that there will not be a safe route to the university.”

He said there are safety concerns with using the one remaining route, Highway 97, because of traffic and the condition of the shoulder on the traffic flyover that now crosses the highway.

Last Friday, the Kelowna lawyer for the residents, Tom Smithwick, announced the ruling by the B.C. Supreme Court, saying the court action was launched because residents were upset that their private “driveway” was being used by students, staff and others at the university as a public road.

“The easement grants only a private right of way, and the respondent (UBCO) has no right thereunder to hold out to any person that the right of way is other than a private right of way on private land nor to allow any person to use the right of way in a manner inconsistent with the private right of way,” said the court ruling.

And it added: “For greater clarity, the use of the easement as a private right of way does not include use of it for field trips to Robert Lake, nor does it include use of it as part of a running race course. Further, it does not include using it for exercise by walking or cycling.”

The court said it will be up to the university to take “reasonable steps” to ensure, the any extent possible, that the easement is not used in such a manner.

The university had contended the easement could be used by students who walked or cycled on the route.

A few years ago a gate was installed by the residents but the courts had ruled it must be left open.

Smithwick said he hoped all the parties involved will respect the rights of the others and, in future, continue in a good neighbourly fashion.

“Curtis Road residents are delighted to have this behind them and request that all parties stop the trespass upon their private lands,” Smithwick said.

Meanwhile, the city said some relief may be coming for cyclists trying to get to the UBCO campus from the east side of Highway 97, in the Rutland area.

But, at best, it will be the fall before work starts on a new $3.5-million path and railway overpass to get them safely to the university.

And, it will also depend on the city gaining the approval of CP Rail for the project because the overpass would be built over the existing railroad tracks.

Kelowna regional transportation manager Ron Westlake said plans for the project have been drawn up, money set aside and the province and university are on board.

The overpass approval is being sought through the province, said Westlake.

Victoria has said it feels there would should be no problem getting the railroad company to approve the overpass because it would be the same height as the existing Ellison road overpass that takes Highway 97 over the railroad tracks. The bike overpass would be built three metres from the highway overpass.

But while it will help Rutland area cyclists, Westlake said riders from the Glenmore area would still have to cross Highway 97 at Adam’s Court to connect to the bike path to UBCO.

Bradshaw said his group worked with the city on the planning of the new pathway and overpass last year and said he was disappointed work on construction has yet to start.

The city does plan to start building the first phase of John Hindle Drive, from Glenmore Road to the Kelowna landfill, this year, with the aim of having it open to traffic by the summer of 2013.

But the city has said it does not have the money to build any additional phases to take the road to UBCO in the immediate future.

Doug Gilchrest, acting city general manager of corporate sustainability, said the city has not taken a position on the court ruling because it considered it a matter between to outside parties.

He said the ruling does not change the city’s position that the multi-modal transportation needs in the area around UBCO need to be addressed.

He said that is especially true for cycling routes as cycling is no longer simply recreational. It is now a legitimate form of transportation for many people.



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