Nelson Street Outlet Municipal Drain (Re), 1996 ONAFRAAT 20

APPEAL:

Town of Hawkesbury

Germain Tessier, on behalf of the appellant, Capri Realties Ltd.

NELSON STREET OUTLET MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 20

STATUTE:

Drainage Act

HEARING:

October 21, 1996

DATE OF DECISION:

October 25, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 20

IN THE MATTER OF:

An appeal to the Ontario Drainage Tribunal by Capri Realties Ltd. under Section 64 of the Drainage Act concerning the relocation of the NELSON STREET OUTLET MUNICIPAL DRAIN, TOWN OF HAWKESBURY.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice Chair; Mr. Herbert Todgham, Vice-Chair.

Appearances:

Mr. Germain Tessier, on behalf of the appellant, Capri Realties Ltd.

Mr. J. J. Edmond Woods, solicitor for the respondent, the Town of Hawkesbury.

DECISION OF THE TRIBUNAL

This appeal was heard in Hawkesbury, Ontario on October 21, 1996. Grace Repaci, Acting Clerk of the Town of Hawkesbury (the Town), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal). The appellant, Capri Realities Ltd. (Capri), appealed to the Tribunal under section 64 of the Drainage Act (the Act). Section 64 of the Act is as follows:

"Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1980, c. 126, s. 64."

Specifically, Capri claimed that the Nelson Street Outlet Municipal Drain was constructed in the wrong place.

The Background

The Nelson Street Outlet Municipal Drain was constructed under a report dated August 1994 signed by Mr. Leo Tremblay of McNeely Engineering Consultants Ltd. The drain serves as an outlet for an existing storm sewer on Nelson Street and runs from the outlet of the storm sewer, across developable lands to outlet in the Ottawa River. The report requires the construction of 140 meters of open drain outletting at a concrete culvert under County Road No. 4 (old Highway 17) in the Town and running southerly to connect to the existing outfall of the Nelson Street storm sewer. The channel is to have a one-meter bottom and side slopes of two feet horizontal to one foot vertical, and is to be lined with filter cloth and stone rip rap for a height of 2.1 meters above the invert of the new proposed culvert under County Road No. 4.

On page 6 of the report it states:

"From Sta 0+243 located at the concrete culvert under County Road No. 4 upstream to Sta O+101 located at the outlet to the Nelson Street Sewer Outlet the drain bottom shall be constructed to a 0.375% gradeline. The drain in this area is to be relocated easterly to the Capri Realities Ltd. and the Town of Hawkesbury's Public Utilities property lines. Sideslopes shall be of minimum of 2 to 1 with a ditch bottom width of 1.0 metre minimum. Excavated material from the new location shall be levelled in the old course to provide uniform drainage and flatten sideslopes. No provisions have been made for importing additional material from off site."

The lands owned by Capri are undeveloped at the time of the report and the hearing. The. lands owned by the Town's Public Utilities (PUC) is the location of the water treatment plant for the Town.

The Issue

The issue before the Tribunal is whether or not the Nelson Street Outlet Municipal Drain is constructed in the location and to the specification set out in the engineer's report dated August 1994.

The Evidence and the Findings

Mr. Germain Tessier, President of Capri, told the Tribunal that he is a land developer of thirty years' experience. He said that in his experience, when a service is located at the property boundary, the centre line of the service is the property boundary. Mr. Tessier told the Tribunal that he understood the drain was to be relocated so the centreline would be on the property boundary, and, in fact, the drain is all on lands owned by Capri and is basically in the same location as the old channel that was supposed to have been filled in. Mr. Tessier asked the Tribunal to eliminate the assessment on the Capri lands as the work, as constructed, provided no benefits to Capri. Mr. Tessier said that, even if the drain were to be constructed close to the boundary line but all on the land of Capri, then Capri would still receive no benefits from the work. He said that the advantage that he saw by moving the drain to the property boundary was the ability to reclaim land.

Mr. Philip McNeely spoke on behalf of McNeely Engineering Consultants Limited. Mr. McNeely told the Tribunal that before the drain was constructed, the existing creek was in a wide, marshy area. Beaver dams north of County Road No. 4 were causing significant problems backing water up on the south side of County Road No. 4. The area abutting the watercourse was low and marshy and rises toward the west into good developable land and to the east to the Town's water treatment plant. The watercourse was adjacent to the location of the proposed ditch which is shown approximately on the plan.

Mr. McNeely said that his interpretation of the report was that the drain was to be moved easterly to the lot line, but remain entirely on the property of Capri. Mr. McNeely said that he based this interpretation on the following facts:

That there was no allowance for land taken for construction of the ditch in the report. He said there would have to be an allowance for land if the drain was to be moved onto the PUC property, where it was not located before.
At the south end of the proposed. drainage works, the land of the PUC is about 3 meters higher than the land of Capri and it never was the intent to move the drain from the low land into the high lands.

Mr. McNeely said that at the time of construction, it was found that the equipment could not work from the top of the bank on the PUC property because it was too far to reach to the bottom of the drain. He said that the land to the east was too wet and soft to carry the machine. As a result, the drain was not dug in the location specified in the plan but was westerly from the Capri/PUC property boundary, a distance from zero to five meters in width over a length of 45 meters. Mr. McNeely said that these construction difficulties were not anticipated by his firm when the drain was at the design stage.

Mr. McNeely testified that the drain appeared to be stable in its present location and, from an engineering view, there was no reason to move the drain at this time. However, he admitted that the drain was not constructed to the specifications of the by-law.

Mr. McNeely said that he and representatives of the Town had met with Mr. Tessier in an effort to settle this dispute. He said that the contractor and McNeely Engineering Consultants Limited had offered to construct the drain in the location specified in the by-law at no additional cost to the drainage works. He also said that the Town had offered to provide fill to Capri as compensation for leaving the drain in its present location. According to Mr. McNeely, neither offer was accepted by Mr. Tessier.

In response to questions, Mr. McNeely said that he estimated the construction cost of relocating the drain so that the top of the easterly bank approximated the boundary line between the Capri/PUC properties would be $3,000.⁰⁰. At the hearing, Mr. McNeely offered to pay this amount as settlement of the dispute in lieu of reconstruction of the drain, or to reconstruct the drain.

In the opinion of the Tribunal, the location of the drain is not clearly specified in the report. The Tribunal understands how Mr. Tessier could arrive at the interpretation that the centre line of the drain would be the property boundary. However, the Tribunal accepts the position of Mr. McNeely on this issue.

The Tribunal finds that the intent of the report was to move the drain so that the entire cross section of the drain is on the Capri property with the top of the easterly bank one metre west of the lot line between Capri and the PUC property.

Mr. Tessier told the Tribunal that he could not identify any advantages to Capri from the construction of this drain. In the opinion of the Tribunal, Capri has several advantages now that the drain has been constructed. There is now a legal outlet for drainage from the Capri lands. There is a cross-section specified in the by-law, and Capri can fill and grade its property up to the cross-section specified. The drain is now responsible for maintaining the channel and keeping beaver dams from preventing the free flow of water. There is better drainage of the Capri lands. In the opinion of the Tribunal, all of these advantages are a result of the construction of the drain.

Mr. McNeely admitted that the drain was not constructed as close to the property boundary as possible. He admitted there is a 45-meter-long section of the drain that is as much as 5 meters off the design line. In the opinion of the Tribunal, to rectify the situation, the drain should be moved to the position that is specified in the by-law. The evidence before the Tribunal is that there will be little benefit of moving the drain at this time. Consequently, the Tribunal decided to provide an allowance to Capri of $4,000.00 as payment for construction of the drain in the location specified in the report at a time in the future when the property owner wishes to use the strip of land between the present location of the drain and the location specified in the by-law. This amount of money is to be paid to Capri by the Town of Hawkesbury and is not to be considered as part of the cost of the drainage works. Capri (or a subsequent owner of the property) is authorized to locate the drain in the position specified in the by-law at its convenience and at its cost. The figure of $4,000.00 is based on the $3000.00 estimate of the engineer to complete the work at the present time plus an allowance for contingencies and for damages that will be done during construction. The Tribunal is concerned that the $3000.00 estimate by the engineer is just an estimate and that Capri should not suffer cost as a result of the failure of the Town to ensure the drain was constructed in strict compliance with the specifications in the authorizing by-law.

Having made payment, the Town has no further obligation to move the drain to the location specified in the report and is authorized to maintain the drain in its present location until such time as Capri (or a subsequent owner) decides to relocate the drain to the location specified in the by-law.

Decision and Reasons

After careful consideration of the evidence submitted and submissions made, the Tribunal decided to issue the following order:

The Town of Hawkesbury is to issue payment to Capri Realties Ltd. in the amount of $4,000.⁰⁰ within 45 days of the date of this decision.
Capri Realities Ltd. (or a subsequent owner of the property) is authorized, when it elects to do so at its own cost, to reconstruct the Nelson Street Outlet Municipal Drain to the grade line and bottom width specified in the by-law so that the easterly top of the bank is no less than one meter from the property boundary between Capri Realties Ltd. and the Town of Hawkesbury Public Utilities property.
There will be no order as to costs other than each party is responsible for their own costs and none of the costs of this appeal are chargeable to the drainage works.

The reasons for this decision are:

Mr. McNeely admitted that the drain was not constructed in the location specified in the by-law.
The evidence showed that there was little advantage to reconstruct the drain in strict compliance with the by-law at this time and the Tribunal wishes to preserve the right of Capri to have a drain constructed to the specifications in the report when the time is appropriate to have the reconstruction work done.·

Dated at Chatsworth, Ontario, this 25^th day of October 1996.