Can a judge refuse to close an access road even if one of the conditions is satisfied?

I am not able, however, to accept the respondents’ position that this court has no residual discretion but to order the closing of the road having concluded that the applicants to do not have a legal right to use it. In the decision which I released on July 11th, 2008, Whitmell v. Ritchie, I concluded for two distinct and somewhat connected reasons that the applicants application to close an access road should be dismissed. And in paragraph 7 of my reasons, I concluded: “Firstly, I am of the view that a judge hearing a road closing application retains a residual discretion to refuse to close a road even where one of the conditions for closing an access road in s. 3(1) is satisfied.”