Blue Mountain Outlet & Diversion Drain (Re), 1994 ONAFRAAT 2

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

BLUE MOUNTAIN OUTLET & DIVERSION DRAIN (RE) Township of Collingwood Blue Mountain Ski Club 1940 Inc.

BLUE MOUNTAIN OUTLET & DIVERSION DRAIN (RE) 1994 ONAFRAAT 02

STATUTE:

Drainage Act

HEARING:

September 29 and November 17, 1994

DATE OF DECISION:

February 16, 1994 for Order April 4, 1995 for Reasons

NEUTRAL CITATION:

1994 ONAFRAAT 02

TOWNSHIP OF COLLINGWOOD BLUE MOUNTAIN OUTLET & DIVERSION DRAIN

IN THE MATTER OF:

An Appeal of Blue Mountain Ski Club 1940 Inc., from the Report of E.P. Dries, P. Eng., dated February 15, 1994, on the Blue Mountain Outlet & Diversion Drain, in the Township of Collingwood, in the County of Grey

DECISION

This Appeal came before the Ontario Drainage Tribunal on September 29 and November 17, 1994 at the Township of Collingwood Municipal Council Chambers, 40 Hillcrest Drive, Clarksburg, Ontario. All assessed owners were served with a Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations. At that time there appeared before the Tribunal, E.P. Dries, P. Eng., who prepared and presented the Report dated February 15, 1994; John West, C.E.T., as agent for the Appellant Blue Mountain Ski Club 1940 Inc. and other assessed owners. The Deputy-Clerk of the Township of Collingwood, Stephen Keast, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed:

1. IT IS ORDERED THAT:

The Outlet Assessment levied against the lands of the Appellant Blue Mountain Ski Club 1940 Inc. comprising Pt. Lot 19, Concession 3, Roll #6-011, in the Township of Collingwood, be reduced to the sum of $6,000.00.

2. IT IS ORDERED THAT:

The reduction in the Outlet Assessment of the Appellant Blue Mountain Ski Club 1940 Inc. shall be levied as a Special Benefit Assessment against Highway No. 26 - Ministry of Transportation of Ontario.

3. IT IS ORDERED THAT:

There be no Order as to costs and all parties are responsible for their own costs.

Attention is drawn to s. 73 of the Drainage Act, R.S.O. 1990, c. D.17.

Dated: February 16, 1994.

Bernard J. Goodal, Chairperson

REASONS FOR DECISION

IN THE MATTER OF:

An Appeal of Blue Mountain Ski Club 1940 Inc., from the Report of E.P. Dries, P. Eng., dated February 15, 1994, on the Blue Mountain Outlet & Diversion Drain, in the Township of Collingwood, in the County of Grey

This Appeal was launched by the Appellant, Blue Mountain Ski Club 1940 Inc., pursuant to s. 54 (1) and purportedly s. 65(5) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on September 29 and November 17, 1994.

Section 65 (5) of the Act, provides for an Appeal from the apportionment of assessment when lands are divided and come into different ownership. The section has no application to this Appeal.

The proceeding was initiated by the Council of the Township of Collingwood in response to a Petition (one of four) of an Engineer of the Ministry of Transportation of Ontario (MTO), pursuant to s. 4(1)(c) of the Act. The area requiring drainage is a stretch of Highway No. 26 in Lot 21, Concession 2, in the Township of Collingwood.

The watershed is characteristic of the topography. It is narrow. Its outer reaches are perched on the table lands of the Niagara Escarpment 300 m above Georgian Bay. It descends down the face of the Escarpment to the upper terrace, along the upper terrace to the lower terrace to Georgian Bay. Primary drainage for the watershed is by way of a natural watercourse which originates on the table lands and courses over the face of the Escarpment. The course of the channel is not as well defined over the face of the Escarpment. When the waters reach the upper terrace, they flow in a well-defined natural water course in a northeasterly direction to outlet into Nottawasaga Bay.

Residential development has occurred on the tablelands at the top of the Escarpment. The drainage for these lands is by means of shallow open ditches into the natural water course, which discharges over the face of the Escarpment.

The lands on the northeast face of the Escarpment, in Pt. Lots 18 and 19, Concession 3, are developed for skiing. Trails have been cleared and shaped. Artificial snow making augments natural snowfall on the trails. Runoff from the Escarpment is directed to holding ponds at the base of the Escarpment. The water in the ponds is used for snow-making during the ski season.

More development exists in the upper terrace zone just beyond the base of the Escarpment to County Road No. 19. Through the development, the natural water course has been significantly improved and lined with erosion control materials as part of the development scheme. The flows are carried across County Road No. 19 and continue in the natural watercourse to the northeast providing outlet for the road ditches in the development on the east side of County Road No. 19.

Generally, the lands in Pt. Lot 20, Concession 2, are undeveloped. Some of the lands are presently or have been under agricultural production.

More development has taken place in the lower terrace zone adjacent to Lakeshore Road and Highway No. 26. The natural watercourse crosses Lakeshore Road.

Immediately north of Lakeshore Road, the watercourse crosses the old C & 0 Railway embankment (Georgian Trail) through two 1200 mm diameter corrugated steel pipe culverts. There is a second crossing of the railway embankment approximately 120 m to the west through 2 - 900 mm diameter corrugated steel pipes. It does not appear that significant flows from the watershed cross the railway embankment at this point.

On the alignment of the natural watercourse, immediately northeast of the railway embankment, the flows are carried across Highway No. 26 through a 1.8 m x 1.1 m corrugated steel pipe arch. In his Report the Engineer states, that the capacity of this culvert is inadequate and from time to time, flows spill out of the channel on the southerly side of Highway No. 26 and flow westerly, along the southerly road ditch, to a secondary crossing of Highway No. 26, approximately 120 m to the west of the easterly crossing. The flows cross the Highway through a 1.9 x 1.0 m corrugated steel pipe arch culvert, across Part of Lot 28, R.P. 529 to Nottawasaga Bay. This property is presently undeveloped, and the existing open channel has sufficient capacity to convey whatever flows can be discharged through the culvert under Highway No. 26.

North of Highway No. 26, the natural watercourse flows across the easterly side of Lot 31 near the limit between Lots 31 and 32, R.P. 529. This reach of the watercourse has been significantly modified as a result of residential development on these lots. The channel banks are defined by near-vertical walls constructed of stone, poured concrete, concrete block or sandbags. The abutting landowners have expressed concern over the capability of this channel to effectively convey the peak flows in the channel.

Originally, the entire area within the watershed was bush or open scrub land. Early settlers cleared some of the land for pasture, cash crops, and orchards, although a significant portion remained in bush due to topographical and soil type limitations. It is not likely that these early agricultural-based land uses had any significant impact on the hydrological conditions.

The rearrangement of the topography through residential development has altered the natural conditions on the terraces considerably. Generally, development increases the impermeable area, decreases infiltration, and provides artificial drainage systems which collect and convey surface runoff from the lands and roads in developed areas as efficiently as possible. The residential developments have increased the rate of runoff into the primary natural watercourse in this watershed.

Along with the development, the physical state of the natural watercourse has been altered. This is particularly evident in the new development west of County Road No. 19 in Lot 19, Concession 3. The original channel in this area has been enlarged, improved, and lined with erosion protection materials.

The development of Lot 31, R.P. 529, north of Highway No. 26, has physically impacted the characteristics of the channel. The capacity of the channel has been restricted by the construction of vertical walls along the channel banks. It is not certain when this channel modification took place. However, the channel must have had sufficient capacity through this reach to effectively convey the peak flow generated from the watershed prior to its reconstruction. The hydraulic analysis confirms that it does not now have the capacity to adequately convey the flows generated from the watershed in its current state.

In the opinion of the Engineer, the snow-making operation in the ski area, within the watershed, also has an impact of peak flows. Currently, surface runoff is collected in stormwater management ponds at the base of the slopes. The collected runoff is used for snow-making in winter and irrigation in the summer. A sub-watershed study of this area, recently prepared by Gore and Storrie Limited for the Grey Sauble Conservation Authority, concluded as follows:

"The impact on peak flow rate in the receiver is complex. The presence of snow pack would tend to increase the likelihood that flood peaks would be higher than otherwise expected during the Spring snow-melt period. However, the ponds contribute to the attenuation of peak flow rates through excess storage capacity and routing effects. The ponds also detain surface flows which offset the timing of peak flows from the east and west tributaries of watershed 6."

Based on a survey of the existing field conditions and a subsequent hydraulic analysis of the channel and the structures within the area requiring drainage, the Engineer has identified the problems as follows:

1. The existing corrugated steel pipe arch across Highway No. 26 in Lot 21, Concession 2, does not have sufficient capacity to effectively convey the runoff across Highway No. 26.

2. The modified channel in Lot 31, R.P. 529, does not have sufficient capacity to effectively convey the runoff from Highway No. 26 to Nottawasaga Bay.

3. The residential development on Lot 31 and 32, R. P. 529, precludes extensive physical modifications to the channel in Lot 31.

4. Development within the watershed has had an impact on the hydrologic characteristics of the watershed to the detriment of the downstream structures and lands.

5. Effective use of the available capacity in the culvert which crosses Highway No. 26, 120 m west of the site, is not being made.

To provide adequate outlet for the existing natural watercourse which flows across Highway No. 26 in Lot 31. R.P. 529 to Nottawasaga Bay, the Report recommends the following:

1. Remove the existing 1800 mm x 1100 mm corrugated steel pipe arch which crosses Highway No. 26 and replace it with a 22 m length of 1390 mm x 970 mm aluminized corrugated steel pipe arch.

2. Incorporate the altered natural watercourse downstream of Highway No. 26 as part of the drainage works (no further modification of this reach of the watercourse be permitted).

3. Construct a concrete weir wall parallel to the alignment of the open drain along the west bank of the drain immediately upstream of the upstream end of the culvert under Highway No. 26. This weir wall will control the flows to the north along the original alignment and westerly along a proposed diversion.

4. Construct an enclosed relief drain consisting of 113 m of 1535 mm x 975 mm horizontal elliptical concrete pipe along the southerly limit of the road allowance. This diversion will carry excess flows from the original channel alignment to the west.

5. Incorporate, as part of the drainage works, the existing 1900 mm x 1000 mm corrugated steel pipe arch across Highway No. 26 approximately 122 m west as part of the drainage works.

6. Incorporate, as part of the drainage works, the open channel coursing northerly to Nottawasaga Bay from the westerly road crossing as part of the drainage works.

7. All of this work is to be done under the Act and the proposed drainage works are to be known as the "Blue Mountain Outlet and Diversion Drain".

The estimated cost of the work is $126,900.00.

The Appellant, Blue Mountain Ski Club 1940 Inc. is the owner of a large tract of land, in excess of 450 ac., comprising Pt. Lots 17, 18 and 19, Concession 3, in the Township of Collingwood. It operates a Ski Resort Business. Most of the Appellant's holdings are on the face of the Escarpment and at the toe of the Escarpment fronting on Grey County Road No. 19.

In the Georgian-Bay Blue Mountain Area of southern Ontario, natural snow is a very uncertain element influenced by all of the vagaries and whims of nature. The climate in the Blue Mountain area is such that the certainty of cold temperatures is very much higher than the probability of natural snowfall. Therefore, to augment the natural snowfall, reducing the Resort’s dependence on uncertain natural Conditions, it is necessary to make snow. This is particularly so since 30% of the guests are served before the conclusion of the Christmas holidays. To meet the demand, much of the resort ski area must be open for business; therefore, snow-making is an indispensable manufacturing process for the success of the Resort.

At the present time, water for snow-making is stored on-Site in three reservoirs that have a combined capacity of 42 million gallons. This supply can adequately cover about a 130 ac. of the 236 ac. of trails with 2 ft. of snow. To cover the 236 ac. with 2 ft. of snow requires 78 million gallons of water. This would only be the primary coverage over the trials. A secondary coverage of 1 ft. of machine-made snow is required to ensure adequate coverage continuing into the Spring season.

The water being delivered to the storage ponds is diverted from the natural watercourse under a license granted to the Appellant by the Provincial Government. The ponds are filled during the Spring thaw and the Spring rains. Since the capacity is not sufficient for all the snow that the Appellant wants to make, they are emptied before Christmas.

To augment the water in the storage ponds and ensure an adequate water supply, the Appellant has constructed a pumping works to pump water from Georgian Bay for the snow-making process.

The Appellant has been assessed the sum of $23,040.00 for an affected area of 53.82 ha (133 ac.).

The Appellant had appealed to the Court of Revision. The Court of Revision dismissed the Appeal. The Appellant now appeals to the Tribunal.

There are no drains in the watershed constructed under the Act or a predecessor of the Act. The area is drained by surface water runs, roadside drainage ditches and storm sewers outletting into several well-defined natural watercourses. Before levying assessments against the individual lands, the Engineer turned his attention to the principles and rights of riparian ownership. He placed each of the properties in the watershed into one of four categories. Into the first category, he placed all of the properties that do not have riparian rights and from which water is artificially caused to flow; these he assessed in the normal manner. Into the second category, he placed all of the properties that do not have riparian rights and from which no water is artificially caused to flow; these he did not assess. In the third category, he placed all of the properties that do have riparian rights these he exempted from outlet liability assessment. Into the fourth category he placed all of the properties which do have riparian rights, but, which, according to him, are not exempt from outlet liability assessment. The lands of the Appellant he placed in the fourth category.

Unfortunately, nowhere in the Report does the Engineer set out the reason why he levied outlet liability assessments against properties with riparian rights. In this respect he did not comply with the direction of the Referee in the case of E. Belzner et. al. (Appellants) and the Corporation of the Town of Dunnville (Respondent) where the Referee directed that, if an Engineer assesses lands with riparian rights for outlet liability, he should give the reason why the lands are being assessed.

The Engineer's evidence at the hearing, as to the reasons why he levied an outlet liability assessment against the Appellant's lands, even though they are riparian, is somewhat obscure. After sifting through the evidence and reviewing it very carefully, we have concluded that the Engineer assessed the lands of the Appellant, even though they are riparian, for two reasons. First, the Appellant is making an unreasonable use of the natural watercourse by discharging the snow melt from the snow-making operations into the natural watercourse. Second, the Appellant is bringing waters from another watershed and discharging them into the natural watercourse. This arises because the water storage ponds for the snow-making process are in a different watershed. The snow-making takes place in this watershed. He levied outlet liability assessment against the Appellant's lands in the normal manner as though the lands were not riparian.

The evidence at the hearing, on behalf of the Appellant, was tendered by John West, C.E.T., both by way of oral evidence and a written brief filed as Exhibit #8. Before continuing, we wish to compliment Mr. West on the quality of his presentation. Mr. West, although not a Drainage Engineer, has over 17 years of Consulting experience in stormwater management, hydrology and hydraulics, and other related areas.

In its brief and its Notice of Appeal, the Appellant has listed seven specific heads as grounds for the appeal. The primary grounds, and the only one that we really need to consider because of the facts as we find them, is the first; wherein the Appellant contends that as owner of property abutting both sides of a natural watercourse in Lot 19, Concession 3 (watercourse under consideration), has riparian rights and should not be assessed for outlet liability. The Appellant also contends that it has not been provided with the method used by the Engineer in developing the equivalent area coefficient for the Appellant's lands for the purpose of assessment and five other grounds of appeal basically relating to the physical elements and the design criteria for the proposed drainage works.

The Appellant's first complaint is that the Engineer in his Report had not followed the directions of Referee Johnston and set out reasons for assessing lands that have riparian rights.

Whether or not the Engineer fully followed the directions of Referee Johnston is something that can properly be raised; however, the answer does not really add to the determination that must be made here. Clearly, on the basis of the evidence before us, and the finding is really not in contention between the parties, we find that the Appellant is a riparian owner. Therefore, prima facie, the lands of the Appellant are not liable to outlet liability assessment.

The next question to consider is: Is there any reason why the lands of the Appellant should be liable for outlet liability assessment? As we have already stated, the Engineer gave two reasons. First, the Appellant is making unreasonable use of the natural watercourse. Second, the Appellant is bringing water into this watershed from another watershed and discharging it into the natural watercourse. Therefore, according to the Engineer, the Appellant's lands, even though riparian, are liable to outlet liability assessment.

If we understand the position of the Engineer correctly, he has concluded that, because of the unreasonable use of the natural watercourse by the Appellant and because the Appellant is bringing water into this watershed from another watershed and discharging it into the natural watercourse, the Appellant has lost his riparian rights and the lands of the Appellant are liable to outlet liability assessment.

In support of this proposition, Mr. Dries has referred us to the case of Scarborough Golf & Country Club v. City of Scarborough, 1986 CanLII 2492 (ON HCJ), 55 O.R. (2d) 193. This case went on to the Ontario Court of Appeal and is reported in 1988 CanLII 4829 (ON CA), 66 O.R. (2d) 257.

In that case, the Plaintiff (the Club) brought an action against the Defendant (the City) for damages for interfering with the Club's riparian rights because of the City's unreasonable use of the natural watercourse (Highland Creek).

Both the City and the Club are riparian owners on Highland Creek. The club is downstream of the City. In the two decades preceding the commencement of the action, there had been rapid and extensive development in the City. The City constructed storm sewers outletting into Highland Creek to service the development. This greatly increased the flow of the waters in Highland Creek. The increased flow caused damage to the golf course fairways and greens. The Court at first instance, and the Court of Appeal on the appeal, found that the use of the natural watercourse by the City was unreasonable and interfered with the riparian rights of the Club. The acts of the City exposed it to liability for the damages to the Club. The Court awarded the Club damages.

The City was found liable to the Club on the principle that, even though it was a riparian owner to the natural watercourse and had a right to a reasonable use of the natural watercourse, its use of the natural watercourse was unreasonable, because of the increase in the water it was outletting into the watercourse and therefore liable for damages, caused by the unreasonable use of the watercourse, suffered by a downstream riparian owner. That is, once the use is found to be unreasonable and a downstream riparian owner's rights have been impaired or he has suffered damages as a result, the upstream riparian owner is liable to the downstream riparian owner.

Assuming, for the sake of argument, that the snow-making process and the consequent snow melt outletting into the natural watercourse is an unreasonable use of the natural watercourse by the Appellant. On the authority of the Scarborough case, if, as a result, a downstream riparian owner's rights are interfered with or he suffers damages, the Appellant would be liable. However, it does not follow that the Appellant has lost his riparian rights, and therefore that the lands of the Appellant are liable for an outlet liability assessment. The liability for damages, arising out of the common law, attaches only to those damages arising out of the unreasonable use of the watercourse by the riparian owner. That is, the riparian owner's riparian rights remain intact. They cannot be lost as long as the riparian owner owns the riparian lands, nor can they be assigned by him to a non-riparian owner. These rights are said to be incident to the right to the soil itself. They cannot be separated from the soil. Whoever owns the soil is also entitled to the riparian rights. It therefore follows that the extent of the damages for which the riparian owner, making an unreasonable use of the natural watercourse, is liable is that portion of the damages caused by the unreasonable use.

If the downstream riparian owner was suffering damages or his riparian rights were being interfered with while an upstream owner is making a reasonable use of the natural watercourse, there is no liability on the upstream owner. However, if additional damages are suffered by the downstream riparian owners as a result of the unreasonable use of the natural watercourse by the upstream riparian owner, the upstream riparian owner is liable for the additional damages only caused by the unreasonable use. In other words, the upstream riparian owner does not have the right to use the natural watercourse to the extent that any of the use is unreasonable, no more than the downstream owner is under a legal obligation to receive those waters which constitute unreasonable use. These waters not falling within the riparian rights therefore are like any other waters falling on land in the watershed that does not have riparian rights. It then follows, that those waters, even though they are being discharged from riparian lands do not fall within the riparian rights of the riparian owner and consequently are like any other waters falling on non-riparian lands in the watershed and liable to an outlet liability assessment.

On the basis of the evidence before us, we cannot find that the use being made by the Appellant of the natural watercourse is unreasonable. The conclusion is supported by the findings of Gore and Storrie that, in fact, the ponds of the Appellant contribute to the attenuation of peak flow rates due to the excess storage capacity and the routing effects. Further, they detain surface flows, which offsets the timing of the peak flows.

The analysis of the second reason, that the Appellant is importing water from one watershed and discharging it through the natural watercourse in this watershed, is based on a different principle. In the case of John Young & Co. v. Bankier Distillery Co. [1893] A.C. 691, the Court of Appeal affirmed that,

"The lower riparian owner is under no legal obligation to receive foreign water (foreign water meaning water from outside the watershed) brought into the natural watercourse".

That is, since the lower riparian owner is under no legal obligation to receive waters brought in from outside the watershed, the upper riparian owner does not have a right to discharge those waters into the natural watercourse. The argument then continues as above in case of unreasonable use. Since the upper riparian owner does not have a right to discharge those waters into the natural watercourse, they are like any other waters falling on non-riparian lands in the watershed outletting into the natural watercourse and consequently liable to an outlet liability assessment.

The evidence before us indicates that in the course of the snow-making process, the waters imported into the watershed by the Appellant amount to in excess of 71/2" of rain per year. Other evidence indicates that the average rainfall within this watershed is in excess of 30" per year. This means that the Appellant has caused additional waters to be discharged into the natural watercourse of approximately 25%.

In addition to providing a sufficient outlet for the snow melt waters when the drainage works are completed, the Appellant will be saved harmless from all potential liability with respect to the snow melt waters over the course of the proposed drainage works.

The Appellant also took issue with the factor of 1.5 used by the Engineer to convert the Appellant's lands to an equivalent area. The situation with which the Engineer is faced here is a novel one. Neither the Engineer, nor have we, come across the conditions as they exist here. The Engineer is a Drainage Engineer of long experience and highly recognized in the profession. The Appellant has offered no other approach to the determination of the factor other than attacking it as being too high. The Engineer used the factor of 1 for residential lands, 1.5 for the Appellant's lands and 4 for the roads. Even though perhaps we might not have developed the same factor as the Engineer, we can find no fault, in these circumstances, with the factor that he has selected. We will therefore not disturb the factor as determined by the Engineer for calculating the equivalent area of the Appellant's lands.

Therefore, accepting the Engineer's method of calculating an equivalent area of the appellant's lands, in our view, the lands of the Appellant are only liable for outlet liability assessment for the foreign waters used in making artificial snow and discharged into the natural watercourse. In addition, when the works are constructed, the Appellant will be saved harmless from liability to owners along the course of the proposed drainage works. The outlet liability assessment levied against the lands of the Appellant shall therefore be reduced to the sum of $6,000.00.

An Order will therefore go reducing the outlet liability assessment levied against the Appellant's lands being Pt. Lot 19, Con. 3, Roll #6-011, with an affected area of 53.82 ha to the sum of $6,000.00.

Although it has not been argued before us, it could be quite cogently put that the difference in costs of constructing the enclosed elliptical Diversion Drain and an open drain along this reach should be assessed against the MTO pursuant to s. 26 of the Act. The Engineer testified that MTO does not want an open drain within its right-of-way. This is good public policy, directed towards the safety of the travelling public. Therefore, it is necessary to enclose the diversion. The depth of the diversion is controlled by the invert elevation of the westerly Highway No. 26 culvert. In order to provide sufficient cover for the covered drain, it must be constructed by using a more expensive elliptical concrete pipe.

From these facts, it may be concluded that the increase in costs of the Diversion Drain is "caused by the existence" of the highway. Therefore, the increase in costs would be assessed against MTO.

It is ordered that the reduction in the outlet liability assessment levied against the lands of the Appellant be levied as a special benefit assessment against Highway No. 26 - the Ministry of Transportation of Ontario.

Mr. Keith Waddell, the owner of Lot 31, R.P. 529, is concerned about potential future harm to his property. It is his lands over which the natural watercourse courses to Nottawasaga Bay, downstream of Highway No. 26 culvert. In a memorandum filed as Exhibit #9, he put forward some statements to be confirmed, acknowledged or undertaken by the Tribunal, the Appellant or the Township. We informed him that we were unable to make any such confirmation or impose acknowledgments or undertakings on either the Appellant or the Township.

He says, that prior to the snow-making by the Appellant, there was no problem and the channel through his lands could convey the waters to the Bay. Since the Appellant started snow-making in 1987, the peak flows have increased. He added that if the process continues or is expanded as proposed by bringing water from Georgian Bay, his property will suffer serious damage.

The evidence is quite clear that Mr. Waddell or his predecessor in title, are the authors of any potential harm to his property. In the Report, at page 4, Exhibit #2, the Engineer states that:

"This reach (the reach over the Waddell lands) of the natural watercourse has been significantly modified as a result of residential development on these lots. The channel banks are defined by near-vertical walls constructed of stone, poured concrete, concrete blocks or sandbags. The capacity of the channel has been restricted by the construction of the vertical walls along the channel banks.... it does not now have the capacity to adequately convey the flows generated from the watershed in its current state".

In their Report, Gore and Storrie say that the presence of snow-pack could tend to increase the likelihood that peak flows would be higher than otherwise expected during the Spring snow melt. However, the ponds contribute to the attenuation of peak flow rates through excess storage capacity and routing effects. The ponds also detain surface flows which offset the timing of peak flows.

Add to this the fact that it is the encroachment of the residential development by the owner or owners of Lot 31, Plan 529 into the natural watercourse that now necessitates the added expense of constructing the Diversion Drain; there is no substance to the complaint raised by Mr. Wadell.

Furthermore, once the drainage works are constructed, the control structure at the upstream end of the Highway No. 26 culvert will control the quantity of water discharging over the Waddell lands to keep them within the channel banks without damaging the abutting property.

There will be no Order as to costs and all parties are responsible for their own costs.

Dated: April 4, 1995.

Theresa Whalen-Ruiter, panel member

Maurice Armstrong, P. Eng., Vice-Chairperson

Bernard J. Goodal, Chairperson