ONTARIO DRAINAGE TRIBUNAL
APPEAL:
MILL CREEK MUNICIPAL DRAIN (RE) Township of Longueuil, Kenneth Howes, Lloyd Cross, Barry Cross, Klaus Mayr, Philmar Farms Inc., Hubert Sieve, Gilberte and Jacques Lalonde, James Lapensee, Eric M. Howes, Helen Kaufman, Leonard H. Howes, Sylvain Lepage, James and Maureen Lewis, Rodney Maclaren, Macson Farms Ltd., Ronald Brannen, Ian R. Wilson, Wayne and Merle Howes, Louise Mayer, Daniel White and Garfield Barton.
MILL CREEK MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 09
STATUTE:
Drainage Act
HEARING:
April 17, 1996
DATE OF DECISION:
May 3, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 09
MILL CREEK MUNICIPAL DRAIN
TOWNSHIP OF LONGUEUIL
IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal under Section 54(1) of the Drainage Act concerning the MILL CREEK MUNICIPAL DRAIN IMPROVEMENT, TOWNSHIP OF LONGUEUIL from the January 4, 1996 decision of the Court of Revision by the following appellants: Kenneth Howes, Lloyd Cross, Barry Cross, Klaus Mayr, Philmar Farms Inc., Hubert Sieve, Gilberte and Jacques Lalonde, James Lapensee, Eric M. Howes, Helen Kaufman, Leonard H. Howes, Sylvain Lepage, James and Maureen Lewis, Rodney Maclaren, Macson Farms Ltd., Ronald Brannen, Ian R. Wilson, Wayne and Merle Howes, Louise Mayer, Daniel White and Garfield Barton.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Herb Todgham, Vice-Chair; Mr. Rene Montpellier, Member.
Appearances:
Mr. Steven Renner, counsel for several appellants;
Mr. David Shelley, counsel for the Township of Caledonia;
Mr. Michael Chambers, counsel to the respondent, the Township of Longueuil.
DECISION OF THE TRIBUNAL
This appeal was heard in the Town Hall of the Township of Longueuil at L'Original, Ontario on April 17, 1996. Mrs. Jeanne Charlebois, Clerk of the Township of Longueuil, performed the duties of the Clerk of the Tribunal. Several owners appealed to the Tribunal from the January 4, 1996 decision of the Court of Revision on the Mill Creek Municipal Drain Improvement.
The Background
The Cross Creek Drain in Caledonia Township crosses the township boundary into Longueuil Township and becomes the Mill Creek Drain. There is an area of approximately 880 acres in Longueuil Township that normally floods during the spring season. The complaint is that this area is flooding during the growing season and damaging the cash crops grown there. The Council of Longueuil Township appointed McNeely Engineering Consultants “to prepare a Preliminary Report on the Mill Creek Drain under Section 78 of the Drainage Act". In this report, it was recommended that aerial mapping be carried out, followed by an engineering study to "permit better identification of the causes of the flooding". This was done, and both hydrologic and hydraulic analyses were performed. The engineer, Mr. Philip McNeely, prepared a second preliminary report, based on these studies, in which he concluded that the existing channel of the Mill Creek Drain cannot accommodate a one-in-two-year storm without flooding, and flooding will generally occur annually. He found that applying his usual design criteria of handling peak flow from a 10-year growing season storm would result in work having a total cost of $792,000 (including construction, allowances, engineering studies, etc.). At the meeting to consider that report, it was agreed that such a project was much too expensive but that some improvement should be proceeded with, and the engineer was instructed to prepare a report accordingly. The engineer then filed his final report dated September 27, 1995 providing for minor channel work and the enlargement of the capacity of five culverts, all at a total estimated cost of $172,000. This cost he assessed on the basis of 50% for outlet liability and 50% for benefit.
The Issue
The issue before the Tribunal is whether or not the assessments, shown in the engineer's report and confirmed by the Court of Revision, are appropriate.
The Findings
After hearing evidence and receiving exhibits for most of a day, the Tribunal had serious reservations about the viability of the project as proposed in the report. It appeared to the Tribunal that significant information had been brought forward since the filing of the September 27, 1995 report and additional new information was provided at this hearing. The Tribunal asked Mr. McNeely if he was prepared to support the project as proposed. Mr. McNeely said that he no longer felt that the proposal was viable and that he did not think that the proposed project should proceed.
The Tribunal concluded that the project proposal must fail. The Tribunal wishes to provide an opportunity to the parties to find an acceptable solution to the problem without the loss of the information already gathered.
It is apparent that the problem is large and complex and requires the cooperation of all of the municipalities and the landowners to come up with an imaginative solution. It may be that the parties would be well advised to obtain the services of a disinterested person to explore, with the parties, alternative solutions such as water retention, water diversion, land retirement and land management practices.
The Tribunal invites the Townships of Longueuil, Caledonia and West Hawkesbury to submit in writing by July 26, 1996 a proposal for proceeding towards a solution to this problem. The Township of Longueuil, as the initiating municipality, must take the lead in developing the proposal. If a procedure cannot be found by the municipalities by July 26, 1996, the Tribunal will receive written submissions from any of the parties to the hearing on how to assess the costs of the hearing and the cost incurred to the date of the hearing. Written submissions on costs must be filed with the Tribunal before August 23, 1996.
Decision and Reasons
After consideration of the evidence submitted, the Tribunal decided that the project proposed in the report of Mr. McNeely on the Mill Creek Municipal Drain Improvement dated September 27, 1995 is to be abandoned. The reason for this decision is the statement by Mr. McNeely that he no longer feels the project is viable.
ORDER OF THE TRIBUNAL
After consideration of the evidence submitted the Tribunal orders that:
The engineer's report on the Mill Creek Municipal Drain Improvement dated September 27, 1995 be abandoned.
The Townships of Longueuil, Caledonia, and West Hawkesbury, in partnership with the affected landowners, be provided an opportunity to develop a proposal for proceeding towards a solution to the problem, including the disposition of the costs to date. The proposal is to be filed, in writing, with the Tribunal by July 26, 1996.
If the municipalities cannot agree on a proposal for proceeding toward a solution by July 26, 1996, the Township of Longueuil will notify the Tribunal and all of the parties to the hearing forthwith.
The Tribunal will then receive written submissions from any party on the issue of costs incurred up to and including the Tribunal hearing. These submissions are to be filed with the Tribunal by August 23, 1996.
A final order disposing of the appeal and costs will be issued after August 23, 1996.
Dated at Chatsworth, Ontario, this 3rd day of May 1996.```