ONTARIO DRAINAGE TRIBUNAL
APPEAL:
Point Abino Municipal Drain (RE) City of Port Colborne P.J. MARTIN and DR. E. LESLIE
Point Abino Municipal Drain (RE) 1987 ONAFRAAT 01
STATUTE:
Drainage Act
HEARING:
June 18, 1987 and August 28, 1987
September 15, 1987
NEUTRAL CITATION:
1987 ONAFRAAT 01
DECISION OF THE ONTARIO DRAINAGE TRIBUNAL RELATING TO THE APPEALS OF P.J. MARTIN and DR. E. LESLIE WITH RESPECT TO THE POINT ABINO DRAIN IN THE CITY OF PORT COLBORNE
All the assessed parties within the City of Port Colborne were served with a copy of the Notice of Hearing by prepaid mail and invited to make representations.
The Hearing first convened on June 18, 1987, at the hour of 10:30 o'clock in the forenoon and continued on August 28, 1987, at the hour of l:00 o'clock in the afternoon. On each occasion, A. Pluher, P.Eng. appeared as the appointed Drainage Engineer on the project and presented the Drainage Report dated May 6, 1982.
Peter J. Martin and Dr. Eugene Leslie, the Appellants, appeared personally. Many assessed owners made representations.
Mr. Mel Lloyd, Director of Engineering for the Town of Fort Erie, made representations. Mr. Ellerbusch, City Engineer for the City of Port Colborne, addressed the Tribunal. The Clerk of the City of Port Colborne acted as Clerk of the Drainage Tribunal,
Upon hearing the submissions of the above-mentioned parties, the evidence submitted, and the material filed, IT IS HEREBY ORDERED THAT the City of Port Colborne proceed with the installation of the low-lift pump (previously designed) at the outlet of the Drain. Water levels upstream of the outlet are to be established only after consultation with the Conservation Authority. IT IS FURTHER ORDERED that a revised assessment schedule be prepared in the discretion of the Drainage Engineer to provide for a one-time special assessment to be levied on the downstream owners, which assessment will reflect the cost of· the engineering fees only incurred at the two Tribunal Hearings, namely June 23, 1983, June 18, 1987 but not to include the August 28, 1987 hearing. IT IS FURTHER ORDERED that the City of Port Colborne have a Preliminary Report prepared to investigate the advisability of an outlet incorporating a pump at either Pleasant Beach Road or Holloway Bay Road. IT IS FINALLY ORDERED that the Drainage Engineer be empowered to extend the pump discharge pipe of the Abino Drain offshore into the Bay at his discretion.
No costs are awarded and therefore, all parties are responsible for their own costs.
Attention is drawn to Section 73 of The Drainage Act, R.S.O. 1980, Chapter 126 and amendments thereto.
DATED September 15, 1987.
D.A. O'Brien, Q.C.
Chairman, Ontario Drainage Tribunal
REASONS FOR THE DECISION OF THE ONTARIO DRAINAGE TRIBUNAL RELATING TO THE APPEALS OF P.J. MARTIN AND DR. E. LESLIE WITH RESPECT TO THE POINT ABINO DRAIN IN THE CITY OF PORT COLBORNE
The Appeals were heard on the 18th day of June 1987 and on the 28th day of August 1987. The appeals were pursuant to Section 51 of the Drainage Act requesting that action be taken to install a pump previously recommended by the Tribunal in a previous Decision dated June 10, 1981.
Details of the project were provided in previous Decisions made by the Tribunal on the 10th of June 1981 and July 13, 1983. The Point Abino Drain cleanout and repair had been completed pursuant to the modified Report on August 20, 1985. In accordance with the modifications requested, no work had been done at the downstream end, and the pump at the outlet into Lake Erie had not been installed.
The Appellants gave evidence and filed photos in support, which clearly demonstrated that extensive flooding was occurring in times of heavy rainfall in the downstream areas. Some of the evidence indicated that because of high lake levels, there was at times a reverse flow into the Drain from the Lake. With several exceptions, there appeared to be almost unanimous support for the installations of the pump amongst the downstream owners.
The City of Port Colborne, through its City Engineer, argued that a low lift pump was required, but because the problems created were outside its jurisdiction, the City advised that it refused to take the initiative. The Town of Fort Erie, through its representative, filed a resolution requesting that the pump be installed.
The only opposition to the pump installation appeared to come from the owners of property, who were high and dry and therefore unaffected by the flooding.
A number of owners upstream, particularly in the Pleasant Beach area, advised that they were still suffering from excessive moisture. It appeared that water was ponding on the road ditches and becoming stagnant in the area of Pleasant Beach and immediately downstream. A number of owners requested that a second outlet to Lake Erie be explored in the Holloway Road area or even in the Pleasant Beach Road area.
Several owners also requested that the outlet pipe for the Point Abino Drain pump be extended into the Bay to discharge any pollution further away from the shoreline.
The Tribunal considered the evidence and had no difficulty in concluding that the installation of the pump at the outlet should go forward. It further ordered that a special one-time assessment be made against the downstream owners to defray the engineering administrative cost for the two additional hearings required to settle the issue of the pump. This minor sum will not result in a significant increase when distributed amongst the many downstream owners, but it will help ensure equity by relieving upstream owners from the expense of two unnecessary Hearings.
The Tribunal agreed that a second outlet into the Lake should be explored both to provide a better and more immediate outlet from Pleasant Beach residences and to relieve the Point Abino Drain by cutoff. The Tribunal, therefore, ordered a Preliminary Report be prepared for that purpose.
The Tribunal further agreed that an extension of the outlet pipe from the pump to be installed in the Point Abino Drain appeared justifiable. Therefore, the Drainage Engineer was empowered to explore that possibility and to proceed with the installation if he deemed it reasonable.
Further, it is hoped that the respective municipal authorities will maintain proper grade levels in the road ditches and ensure continuous flow in times of runoff. If the ditches have been excavated below grade level, stagnant roadside ponds will be inevitable.
Finally, the Tribunal would like to thank the assessed owners who appeared, and the municipal authorities involved for the courtesy and understanding displayed at the recent hearing. It contrasted favourably with the unneighbourly attitudes evident at previous hearings. The Tribunal is now confident that legitimate concerns of both upstream and downstream owners will be speedily rectified.
DATED: September 15, 1987
Philip Payne, Member; E.C. Brisco, Vice-Chairman; D.A. O'Brien, Chairman