ONTARIO DRAINAGE TRIBUNAL
APPEAL:
Point Abino Municipal Drain (RE) City of Port Colborne Ray Haggerty, C.F. Kreiner, A.L. Van Boderen and James Markland
Point Abino Municipal Drain (RE) 1981 ONAFRAAT 01
STATUTE:
Drainage Act
HEARING:
May 8, 1981
DATE OF DECISION:
June 10, 1981
NEUTRAL CITATION:
1981 ONAFRAAT 01
DECISION OF THE ONTARIO DRAINAGE TRIBUNAL RELATIVE TO THE APPEAL OF RAY HAGGERTY, C.F. KREINER, A.L. VAN BODEREN and JAMES MARKLAND WITH RESPECT TO THE POINT ABINO DRAIN, CITY OF PORT COLBORNE
All the parties assessed within the City of Port Colborne were served by prepaid mail with a copy of the Notice of Hearing and invited to make representations.
The Appeal came before the Ontario Drainage Tribunal on the 8th day of May 1981 at the hour of 10:30 o'clock in the forenoon in Council Chambers in the City Hall at Port Colborne.
At that time, there appeared before the Tribunal A. Pluhar, P. Eng., who presented and prepared the Drainage Report dated the 27th day of March 1980. T.A. Bielby, Barrister and Solicitor, appeared for the Pere Abineau Park Association. Each of the Appellants appeared on his own behalf. Mr. Lenty, P.A.G. appeared on behalf of the Niagara Peninsula Conservation Authority. Many assessed owners made representations on their own behalf to the Tribunal. Patricia Premi, Deputy Clerk of the City of Port Colborne, acted as Clerk of the Tribunal.
Upon hearing the submission of the parties herein mentioned, the evidence submitted and the material filed: -
IT IS HEREBY ORDERED THAT the Report be referred back to the Drainage Engineer to provide for the following: -
(a) the inclusion of a drain located on the properties of Ray Haggerty and Marcy Prop. Inc. as a branch of the Point Abino Municipal Drain.
(b) the extension of the works to the outlet at Lake Erie.
(c) the installation of a limited lift pumping station at the outlet with the construction of the necessary works to support the installation. The pump is to operate only during high water levels and is not to reduce the water levels in the Drain below a level established after negotiation with the Conversation Authority for the Niagara Peninsula Conversation Authority. The Drainage Engineer is to consult with Donald McGeorge, P. Eng., Drainage Engineer for the Township of Dover, County of Kent, with respect to the design of the pumping station. After completion of the revised Drainage Report, it is to be circulated by the Clerk to all parties as before, together with a notice advising that any party so notified can appeal to the Drainage Tribunal, providing the Appeal is filed within fourteen (14) days of the mailing.
(d) no costs are awarded, and accordingly, all parties are responsible for their own costs.
Attention is drawn to Section 73 of the Drainage Act (1975)
DATED at Pembroke, Ontario, this 10th day of June, A.D. 1981.
Delbert A. O'Brien
Chairman, Ontario Drainage Tribunal
REASONS FOR THE DECISION OF THE ONTARIO DRAINAGE TRIBUNAL RELATING TO THE APPEAL OF RAY HAGGERTY, C.F. KREINER, A.L. VAN BOLDEREN AND JAMES MARKLAND WITH RESPECT TO THE POINT ABINO DRAIN, CITY OF PORT COLBORNE
The Appeal was heard on the 8th day of May 1981 in Council Chambers for the City of Port Colborne. Three appeals were pursuant to Section 48, and one, that of James Markland, was with respect to assessment.
Mr. Haggerty, M.P.P. requested that a drain, which appeared to commence on his property, cross over the Marcy Properties Inc., run south on the west side of Holloway Bay Road and empty into the Point Abino Drain, be included in the project as a branch drain. The Drainage Engineer agreed that the drain referred to required work but stated he did not have the authority without a petition to include the same as a branch drain. The Tribunal visited the site and concluded that all parties would benefit from improved drainage. The Tribunal has never observed an area in greater need of proper agricultural drainage. The Tribunal recognizes there are local conditions which frustrate drainage, but every effort should be made to improve drainage commensurate with the quality of the soil. The Drainage Engineer was requested to include the Haggerty Drain as a branch drain in the Revised Report.
The Tribunal, after hearing the arguments of James Markland, concluded that in all the circumstances, his assessment was fair and equitable. He was assessed outlet assessment only, established on the same basis as his neighbours, in the total amount of $100.00 for six acres of land. He was in the centre of the watershed and, although it appeared that the Municipality had delayed a necessary cleanout of the road ditches in his area, his run-off eventually found its way to the Point Abino Drain.
Mr. Kreiner and Mr. Van Bolderen both argued strenuously that the present Report did not provide an adequate outlet. They argued that inasmuch as no work was proposed beyond Station 63, the flooding problems in Pleasant Beach were surely being transferred to Point Abino.
The evidence disclosed that the Point Abino Drain, which was constructed in 1916 and had last been cleaned in 1957, was in great need of a cleanout. The flooding of the residential area (Pleasant Beach) at the upstream end was serious and apparently growing more severe each year. At the outlet which provided for discharge into Lake Erie, a system of flap gates and sluice gates had been installed to prevent a reverse flow at times of high water in the Lake. However, it appeared that the outlet works had fallen into disrepair and were not being operated.
It was apparent that if the outlet works were not reconstructed and properly maintained, that at peak times, greater flooding would occur in the Point Abino area (a residential community) as a result of the proposed work.
A further complicating factor was presented by the existence of a valued conservation area immediately upstream of the outlet on which a Report had been completed in 1975 by Proctor and Redfern, Engineers and Planners. The latter Report indicated the ecological balance in the area was delicate. It appears that the conflicting interests of the various parties and the perceived expense of further studies have combined to effectively halt further development. The Proctor and Redfern Report suggested that nothing be done until a further Study was made costing a minimum of $50,000.00. It was anticipated that current costs would be much greater. It was evident that the residents of Point Abino had a genuine concern about the ecology of the area.
The Tribunal, after examining the site, concluded that a low lift pump operated to relieve only peak flooding and controlled so as not to reduce the water level of the Drain behind the outlet below a desired level might be an acceptable compromise. It was believed that the minimum level of water at the lower end of the Drain ought to be established through negotiations with the Conservation Authority. It was further believed that Donald McGeorge, P.Eng. (Drainage Engineer of Dover Township), who has acquired vast experience with pumping stations, ought to be consulted as to the nature of the design, etc. It is believed that such an installation can be made at a reasonable cost commensurate with the perceived benefits.
Damage is not likely to be caused to the environment or to local residences if the water level is not pumped below the level of existing culverts. The existing outlet culverts were designed to maintain a specific water level, and they have been in place for many decades without apparent adverse effects. If the outlet is reconstructed as an integral part of the Drain, its maintenance will be the responsibility of the Municipality under the Drainage Act (1975). The Tribunal is of the opinion that a clean out of the Drain will relieve the problem in Pleasant Beach and that a pumping scheme, duly restricted as to minimum water levels, will serve to improve prevailing conditions with respect to peak flooding, without adverse environment impact.
This proposal will not likely satisfy all interests, but it is intended to achieve agricultural drainage standards at an acceptable cost to assessed owners. We are hopeful that the benefits will exceed the expectations of some of the involved parties.
We believe it is more practical to attempt a trial with a pump costing possibly $20,000.00 than delay matters indefinitely because funds are not available for the much more costly study.
Dated June 10th, 1981.