ONTARIO DRAINAGE TRIBUNAL
APPEAL:
ELGIN ROAD 6 DRAIN (RE) Township of Aldborough
ELGIN ROAD 6 DRAIN (RE), 1996 ONAFRAAT 05
STATUTE:
Drainage Act
HEARING:
No Hearing was Held
March 28, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 05
ELGIN ROAD 6 DRAIN TOWNSHIP OF ALDBOROUGH
IN THE MATTER OF:
An application by the Township of Aldborough, under Section 58(4) of the Drainage Act, for an amendment to By-Law 95-16, ELGIN ROAD 6 DRAIN, so that it reflects the drainage works as built rather than as planned.
Before:
Mr. Herbert H. Todgham, Vice Chair; Mr. Andrew Osyany, Vice Chair; Mr. Russell Piper, Member.
DECISION OF THE TRIBUNAL
This application was considered by the Ontario Drainage Tribunal (the Tribunal) on March 19, 1996.
The Background
On May 12, 1995, the Council of the Township of Aldborough (Aldborough) passed By-Law 95- 16 adopting an engineer's report, dated February 13, 1995, on the Elgin Road 6 Drain. The report provided for the construction of two catch basins, one on each side of Elgin Road No. 6 opposite Lot 1, Concession 3, Aldborough. Each catch basin consists of a concrete catch basin and 50 meters of 150 mm diameter corrugated plastic tubing surrounded by a clear stone soak-away trench. The catch basins and soak-away trenches were to be constructed on the road property.
During construction, the plastic tubing and soak-away trench on the south side of the road were installed on private lands south of the south limit of the road property. This was done to avoid the roots of a tree, which the local residents wanted to preserve. The cause of the problem was a difference between the road chainages used in the drainage report and those used to lay out the work on the site.
By Resolution #9, July 22, 1995, the Council of Aldborough authorized an application to the Tribunal under Section 58(4) to obtain an amendment to By-Law 95-16 to reflect the as-built location of the south soak-away trench. This amendment will clarify the location of the drainage works for future maintenance.
The owner of Pt. N½ Lot 1 Concession 3, Aldborough, on whose property the drainage works has been constructed, has consented to the location of the drain as built and to the Aldborough Council making this application. The County of Elgin has agreed to pay the cost of the drainage works as built, including an allowance of $50.00 to the owner of Pt. N½ Lot 1, Concession 3, Aldborough.
Section 58(4) of the Drainage Act is as follows:
58(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error.
Section 51(1) of the Drainage Act is as follows:
51(1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.
The Findings
In the opinion of the Tribunal this situation is not a gross error in the report; rather, it is a construction error. However, now that the error has been recognized, the issue is how to best deal with the situation.
The Tribunal recognizes that:
the work has been done and the costs incurred,
the affected parties have consented to the work remaining in its present location
the by law requires amendment to allow future maintenance on the drain as constructed and to clearly establish the location of the drainage works.
Decision and Reasons
Considering the circumstances, the Tribunal has identified two courses of action. Firstly, the Tribunal could reject the request and thereby require the drainage works to be rebuilt, as planned, at an additional cost. Secondly, the Tribunal could utilize its authority under Section 51(1) and direct an amendment to the by-law. In the opinion of the Tribunal, the responsible alternative for it to take is to order an amendment to the report and by-law.
ORDER OF THE TRIBUNAL
Having considered the submissions made the Tribunal has decided to order the following amendments to By-Law 95-16:
The By-Law is amended by inserting a schedule of allowances in the report showing an allowance of $50.00 to the owner of Pt. N½ Lot 1 Concession 3, Aldborough under Section 29 of the Drainage Act.
The Report dated February 13, 1995 is amended by removing drawing 94005 Plan, Profile and Details of the Elgin Road 6 drain dated February 13, 1995 and inserting drawing number 94005R dated February 13, 1995.
It is ordered that there be no order as to costs, and all parties are responsible for their own costs.
Attention is drawn to Section 73 of the Act.
Dated this 28th day of March 1996.