Klinger-Gaspard Drain and Pump (Re), 1997 ONAFRAAT 37

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Klinger-Gaspard Drain and Pump Township of Tilbury North

Klinger-Gaspard Drain and Pump (RE) 1997 ONAFRAAT 37

STATUTE:

Drainage Act

HEARING:

September 11, 1997

DATE OF DECISION:

September 12, 1997

1997-37

NEUTRAL CITATION:

1997 ONAFRAAT 37

Klinger-Gaspard Drain and Pump Township of Tilbury North

IN THE MATTER OF: THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An application to the Ontario Drainage Tribunal by the Township of Tilbury North requesting a modification to the December 6, 1996 engineer’s report on the Klinger-Gaspard Drain and Pump in the Township of Tilbury North.

Before: Mr. Vernon Spencer, Chair; Mr. Herb Todgham, Vice-Chair; Mr. Andrew Wright, Vice-Chair.

DECISION OF THE TRIBUNAL

This application was considered by the Tribunal on September 11, 1997 on the basis of the written submissions made on behalf of the Township of Tilbury North.

The Background

The Township of Tilbury North appointed Todgham and Case Associates Incorporated to prepare a report, under Section 4 of the Drainage Act, for the construction of a new drainage system in Pt. Lots 1 and 2 Broken Front Concession, Township of Tilbury North. The report, signed by Mr. E. P. Dries, was completed, dated December 6, 1996, and filed with the Township.

The report was adopted by Council by By-Law 5-97. Subsequently Mr. Robert Morais, owner of property in Pt. Lot 2, Broken Front Concession informed the Council and engineer that his entire 14.37 acre parcel was included in the watershed but in fact, it had been entirely drained by privately installed subsurface drainage systems easterly to the Chauvin Drain. After a field investigation this was confirmed by the engineer who concluded that the Morais’ lands should be removed from the watershed. This permitted a reduction in size of a portion of the tile and a modification to the assessment schedule proposed for the Klinger-Gaspard Drain & Pump. The modification to the assessment schedule was made by the Court of Revision. The Township is now applying to the Tribunal for an order to amend By-Law 5-97 as follows:

1. The tile specified for installation from Station 200 to Station 334 be reduced to 150mm diameter from 250 mm.

2. The tile specified for installation from station 1081 to Station 1260 be reduced to 400mm diameter from 450 mm diameter.

3. The total project cost be reduced from $78,300 to $75,650.

ORDER OF THE TRIBUNAL

After careful consideration the Tribunal decided to exercise its authority under Section 51 of the Drainage Act and process the requested amendments to By-Law 5-97, but to do so on terms.

Therefore the Tribunal orders that:

1. The engineer is directed to prepare the necessary drawings to replace the drawings included in the report adopted by By-Law 5-97. Copies of these drawings are to be included with the notice mentioned in Order 3 along with a request that the landowners replace the drawings in the copies of the report dated December 6, 1996 which has been previously sent to them.

2. The Clerk of Tilbury North is to modify By-Law 5-97, Klinger-Gaspard Drain & Pump, to reflect the three changes requested and mentioned above and to include the assessment schedules as amended by the Court of Revision and the drawings mentioned in Order 1.

3. After the by-law has been modified it is to be mailed to all parties entitled to be sent a copy of the provisional by-law under Section 46 along with a copy of this decision and a notice stating that any owner so notified can appeal directly to the Tribunal by filing a notice of appeal with the Clerk of Tilbury North within 14 days of the mailing of the notices.

4. If no appeals are filed within 14 days of the mailing of the notices specified in Order 3, the project is confirmed and the Council may proceed to give third reading to the by-law and proceed to construction in accordance with the provisions of the Drainage Act.

5. 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 at Chatsworth, Ontario this 12th day of September 1997