ONTARIO DRAINAGE TRIBUNAL
APPEAL:
BAILEY'S BEACH DRAIN AND PUMPING SYSTEM (RE) Township of Malden Christian Van Bekkum
BAILEY'S BEACH DRAIN AND PUMPING SYSTEM (RE) 1995 ONAFRAAT 05
STATUTE:
HEARING:
March 1, 1995
March 30, 1995 for Order June 6, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 05
TOWNSHIP OF MALDEN BAILEY'S BEACH DRAIN
IN THE MATTER OF:
An Appeal of Christian Van Bekkum from the Report of L. Zarlenga, P. Eng., dated November 11, 1994, on the Bailey's Beach Drain and Pumping System, in the Township of Malden, in the County of Essex.
DECISION
This Appeal came before the Ontario Drainage Tribunal on March 1, 1995, at the Township of Malden Council Chambers, 6744 Concession 6, Malden Center, Ontario.
All assessed owners were served with the Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.
At that time, there appeared before the Tribunal, L. Zarlenga P. Eng., who prepared and presented the Report, dated November 11, 1994; the Appellant Christian Van Bekkum and other assessed owners.
The Clerk of the Township of Malden, Garth Poulain, A.M.C.T. acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
1. IT IS ORDERED THAT:
The Appeal of the Appellant Chris Van Bekkum be dismissed.
2. 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: March 30, 1995.
Bernard J. Goodal, Chairperson
REASONS FOR DECISION
This Appeal, launched by the Appellant Christian Van Bekkum, pursuant to s. 48 (l)(a) and (b) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act) was heard on March 1, 1995.
The proceeding was initiated by the Council of the Township of Malden in response to a Petition of the Township of Malden Road Superintendent, pursuant to s. 4 (l)(c) of the Act. The area requiring drainage is Erie Avenue.
The drainage problem here is typical of many in the Province. The frontage of the original farm lot, fronting on Lake Erie, has been subdivided for residential development by registered plan and consents granted by the Land Division Committee. Access to the residential lots is by means of a road (Erie Avenue) at the rear of the lots fronting on the Lake. There are in excess of 40 lots along the lakeside of Erie Avenue.
Generally, the front third of the residential lots drains toward the Lake. The rear two-thirds drains to Erie Avenue and the rear of the lots. Septic tank systems have been constructed in the rear yards. The water table is high. No provision had been made to effectively drain Erie Avenue or the rear of the residential lots.
On the other side of Erie Avenue, there is a marsh. As a short-term solution to the water problem, a number of culverts have been installed across Erie Avenue to outlet into the marsh. The owner of the marsh had agreed with the culvert installation. However, as the area becomes fully developed, the problem is compounded, the road deteriorates and the demands of the residents for proper drainage and a reasonable all-season access to their property increase.
The ponding waters create a consequent problem with the septic tank systems. The systems fail to function properly and polluted waters are discharged into the marsh and eventually into the Lake.
The Report provides for the construction of a standard type of storm sewer system within the travelled portion of Erie Avenue. It is housed in a 300 mm to 600 mm diameter storm sewer tile. Appropriate manholes have been provided to inspect and maintain the system.
Catchbasins are to be constructed at the road limit at every other property line. They will serve not only as inlets for the surface waters but as a point of private connection to the storm sewer system. The catchbasins are provided with a knockout, so that individual owners can connect their private connection to the system through the catchbasins. The Engineer has selected this type of private connection, so that the Municipality will be able to more easily monitor the discharge from the residential lots into the drainage works to ensure that sanitary discharge or septic tanks are not connected to the drainage works.
Due to the depth of the storm sewer, it is necessary to provide a pump to pump the storm waters from the storm drain into an outlet channel (a natural watercourse which courses to the Lake at the southerly end of Erie Avenue). The channel is owned by the owners of the Marsh who have two pumps installed on a dam at its upstream end; one for pumping out of the marsh when the waters get too high and another pumping waters back into the marsh when the waters get too low. This channel to the Lake has been incorporated as part of the drainage works. The proposed works are to be called the "Bailey's Beach Drain and Pumping System". They will serve a watershed of 6.101 ha (15.075 ac.) comprising residential lands and the road at an estimated cost of $209,850.00.
There is an incentive to do the work now. The Township has allocated part of its grants from the Canada-Ontario Infrastructure Works Program towards the cost of this work. The grants, when they are applied to the costs, will reduce the assessments by approximately 18%.
The Appellant, Christian Van Bekkum, is the owner of two residential lots. In his evidence, he stated that this is not an urgent problem and the only reason that it is being done now, is because of the grant that is available. He says, that it should be postponed until sanitary sewers have been installed to eliminate any potential pollution of the storm sewer system by discharging septic tank effluent into it. He is concerned that the waters from the closed system will be impounded in the open channel outletting into the Lake and cause not only an unpleasant odour, but a health hazard to the residents. He adds that even if the waters pass through the channel into the Lake, the pollutants will be deposited along the shoreline in front of the residential properties. In addition to that, he says, the work is too costly.
His second concern is that the open channel outletting into the Lake is often blocked by a sandbar. When the wind is in a certain direction, the sand builds up at the outlet and impounds the water in the open channel. In his view, the maintenance cost of that outlet will be high, and there is no guarantee that the Municipality will act promptly to ensure that waters flow out of the channel and not be impounded in it. He termed the project as ill-conceived, highly likely to result in a health hazard to the area, too costly and premature. He expressed the view that the majority of owners are opposed to the project. Further, if both the sanitary and storm sewer systems are constructed at the same time, there is a possible cost saving and there won't be a mess along the road two times.
Other assessed owners gave evidence at the hearing. Some have installed their own catchbasin to outlet surface waters into the Lake. Others maintain that their lots are higher and they do not have a drainage problem. Others, like Mr. Van Bekkum, are concerned about the sandbar that forms at the outlet of the open channel to impound the waters. The stagnant waters, perhaps polluted waters, would not add to the amenities of Bailey Beach.
One assessed owner complained about the minimal assessment that the Engineer has levied against the lands of the owners of the marsh. The Engineer carefully reviewed that matter again, showing that the owners get no benefit or outlet from the proposed work, and consequently, only a minimal assessment has been levied against their lands.
Robert Crawford, the Road Superintendent, described the flooding that occurs, from time to time, along Erie Avenue. On occasions, the road has been washed out. Due to the lack of proper drainage, it cannot be maintained. Further, MTO will not contribute to the cost of improvements as it is, until proper storm drainage system is put in.
In his view, adequate precautions have been taken by having private connections outlet into the catch basins for relative ease of monitoring. In his experience, he is sure that the residents of the beach would be quick to point out any violations by anyone connecting their septic field system to the storm sewer.
He has been called upon to open the channel into the Lake two times in the last two years. The last time he went in with a shovel, made a trench and the flowing waters eroded the trench and the channel emptied into the Lake. In his opinion, the sandbar can be opened for as little as $45.00. As evidence that the channel flows quite regularly, he pointed out that he has seen carp in the channel. To him, this is an indication that the channel is open quite regularly, so the fish can get from the Lake into the channel and out into the Lake. The local Board of Health is quite cooperative in investigating pollution cases. Any violations of the provisions of the Act would be pursued.
He would also like to see the sanitary sewers go in at the same time as the storm sewer. However, there is no money available to do both at the same time.
In his reply, the Engineer reiterated the answers that he had given to the issues raised by the assessed owners. He has carefully considered the design of this system, and it is his opinion that it will function properly after it is constructed.
Carl Gibb, the Mayor of the Township, pointed out that very few people attended the meetings throughout the proceedings. He stated that there are three other similar drains in the Township, and there are no problems. The health unit has responded promptly to complaints of polluting. The system has been designed to the standards imposed by the Conservation Authority and will be of great benefit to the beach area.
We can see no merit in the submissions made by the Appellant and the other assessed owners in opposition to the proposed drainage works. The problems have been thoroughly researched, and the proposed drainage system carefully designed to provide an efficient and functional system to solve the drainage problems.
There is no other expert evidence on which any modification of the proposed system can be ordered by us. It is quite clear that something has to be done, if not immediately, certainly in the very near future. It would certainly be ideal to construct both the sanitary and storm sewer systems simultaneously; however, economics preclude doing that. To us, there appears to be nothing wrong in doing the work when the grant is available. It is not entirely true to say that it is being done because of the Grant; primarily, it is being done because it is required, and there is the incentive of the grant to do it now rather than postpone it for a year or two.
For these reasons, the Appeal of the Appellant is dismissed.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: June 6, 1995.
Maurice Armstrong, P. Eng., Vice-Chairperson
H.H. Todgham, P. Eng., Vice-Chairperson
John Bacher, panel member
Warren Jenner, panel member
Bernard J. Goodal, Chairperson