Dungannon Drainage Works (RE), 1997 ONAFRAAT 4

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

Dungannon Drainage Works Township of West Wawanosh

Dungannon Drainage Works (RE) 1997 ONAFRAAT 4

Drainage Act

January 29, 1997

DATE OF DECISION:

February 6, 1997

1997-04

1997 ONAFRAAT 4

Dungannon Drainage Works Township of West Wawanosh

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

AND IN THE MATTER OF: An Appeal to the Ontario Drainage Tribunal under Section 64 of the Drainage Act, by Mr. Robert McCormick, concerning the quality of construction on the Dungannon Drainage Works, 1995 in the Township of West Wawanosh.

Before: Mr. Vernon Spencer, Chair; Mr. Andrew Wright, Vice-Chair; Mr. Doug Flook, Member.

Appearances: Mr. Robert McCormick, appellant. Ms. Noreen Park, assessed ratepayer. Mr. T. M. Pridham, P. Eng., on behalf of the respondent, The Township of West Wawanosh.

DECISION OF THE TRIBUNAL

This appeal was heard in council chambers of the Township of West Wawanosh, (the township) on January 29, 1997. Liliane Nolan, Clerk Treasurer of the township performed the duties of the clerk of the Ontario Drainage Tribunal (the Tribunal).

Mr. Robert McCormick appealed to the Tribunal under Section 64 of the Drainage Act concerning the quality of construction on the Dungannon Drainage Works.

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. 1990.

The Background

Mr. Robert McCormick owns land, in the Village of Dungannon, designated Roll No. 4-004-45 and Roll No. 4-004-48 in the township. This land fronts on Albert Street, to the north, and runs all the way through to Joseph Street, to the south. Roll No. 4-004-45 (the northerly parcel) is the McCormick residence and Roll No. 4-004-48 (the southerly parcel) is a vacant lot.

On April 22, 1994, the township received a petition for drainage signed by a substantial number of owners in the Village of Dungannon, as well as the Township Road Superintendent. R. J. Burnside & Associates Limited (Burnside) was appointed to prepare a report in response to the petition. Mr. T. M. Pridham, P. Eng., was designated by Burnside as engineer in charge of this project.

Problems in Dungannon included flooded basements, sump pumps discharging to the surface of the ground and recycling back into the basements only to be pumped again, large areas of ponded water in the Village and at the exterior limits, saturated septic beds, overtopped roads during high runoff conditions.

The report was completed and dated March 1995. The design was based on providing an urban storm drain sufficient to accommodate a five year return period design storm serving a total watershed of roughly 79 ha. (195 Ac.) The storm drain ranged in size from 1350 mm (54 in.) to 300 mm (12 in.). Also provided were service drains to the lot lines and spur drains to service lots without direct access to the main storm sewer.

The total length of storm pipe, including catchbasin leads, storm services, spur drains, etc., was 3,872 metres (12,703 ft.). Other appurtenances included roughly 285 metres of open drain cleanout, the installation of a new farm culvert, concrete headwall, and a total of 66 manholes, manhole catchbasins and offset catchbasins, related grates, and flow control devices.

All lots which had existing dwellings or vacant lots where a house could be constructed were provided with a gravity service drain either off the main storm drain or via a spur drain. The service drain inverts were set roughly 600 mm below basement elevations or future basement elevations. Owners were directed to install backup valves as part of any foundation drain connection to the main drain providing an extra level of protection during major storm events.

D'amore Construction (Windsor) Limited was awarded the contract and construction began in late July 1995, and was completed for all practical purposes in late October 1995. On November 13, 1995, the engineer issued a Completion Certificate for the project.

On November 23, 1995, the levying by-law was passed by the township with the provision that invoices were due on January 31, 1996.

On November 27, 1995, Mr. McCormick called the engineer to report water boiling up along the edge of his garden in the vacant lot. On November 28, 1995, agents of the contractor attended Mr. McCormick's and found four inch tiles that were cut during construction and not connected into the new spur drain. These tiles were connected on November 28, 1995, to the stub left for the vacant lot as it was in very close proximity to the existing tiles.

An appeal pursuant to Section 64 was received from Mr. McCormick on September 30, 1996. Mr. McCormick, among other things, complained that his cedar trees along the north side of Joseph Street (south side of the vacant lot) had died due to poor grading of the road ditch. This issue has been resolved by the parties prior to this hearing.

The grading problem in the road ditch which appears to have negatively impacted the cedar trees has been corrected and some additional perforated tile and clear stone have been added by the Road Superintendent to provide even better drainage. This work was completed in July or August 1996.

Mr. McCormick is dissatisfied with the connection of the four inch tile drains to the stub drain provided for the land designated as Roll No. 4-004-48.

The Issue

The issue before the Tribunal is whether or not the Dungannon Drainage Works 1995 was constructed in compliance with the specifications in the March 1995 report of the engineer as adopted by By-Law Number 13-1995, passed July 19, 1995, by the Council of the Township.

The Evidence and the Findings

Mr. McCormick told the Tribunal that he has maintained from the start of the project that he has only one property and therefore he should pay for only one connection to the main drain. He said he has been charged for a spur drain and a stub drain on this property. The problem he has is with the stub on the bottom end of the property. He said the contractor has connected the four inch tile drains into the stub drain and he does not want to pay for this drain. He said it has no value to him now that the tiles have been connected and he would incur additional expense to deal with these tiles if he could build a house on this lot that is currently vacant. Mr. McCormick said that the tiles should have been hooked into the main drain so he did not have to make any changes if a house was being built.

Mr. McCormick told the Tribunal that he has been paying two tax bills for this land but he has gone to the assessment office and this has been corrected for 1997.

Mr. McCormick also complained that last week water was running from the road onto his land. He said that the road is higher than his lot and before the drain was constructed, the water ran down the road ditch. He said this water is now running across his lot.

Noreen Park, an assessed owner, told the Tribunal that the catchbasin in front of her property was full of gravel. She said that the top of the basin is much lower than the road and when it rains the gravel washes into the catchbasin. She said that she brought this to the attention of the township last summer but nothing has been done.

Mr. Pridham told the Tribunal that he was not aware of the problem with the Park catchbasin. He said this was a maintenance issue and that he would bring it to the attention of the road superintendent for action.

Mr. Pridham also told the Tribunal that the road superintendent had already installed additional tile drains with stone backfill on Joseph Street and this should assist the problem of water coming onto the McCormick vacant lot. He said that this drain may have been blocked with ice and snow last week when the water was running onto Mr. McCormick's garden. Mr. Pridham told the Tribunal that, although he is certain it has already been done, he will ask the Road Superintendent to check the grading on the road ditches and ensure that the ditch is graded to the catch basins.

Mr. Pridham told the Tribunal that the spur drain has adequate capacity to handle the drainage from the tile drains as well as the foundation drain for a house. He said that, in his opinion, drainage capacity was not an issue.

In response to questions from the Tribunal, Mr. McCormick admitted that the tiles that were not connected during construction had been connected. The only construction issue that he brought up at the hearing was whether or not the road ditch was graded properly to the catchbasins. It appeared to the Tribunal that this was an issue that had not been discussed with the township prior to the hearing.

In the opinion of the Tribunal, when an owner files an appeal about quality of construction, there is an onus upon the appellant to focus on issues that relate to construction and how the construction varies from the requirements of the report. In the opinion of the Tribunal, Mr. McCormick took no real issue with the quality of the construction after warranty work was completed in mid-1996. The only thing that Mr. McCormick asked the Tribunal to do was to remove the assessment for the stub drain. Clearly this is an assessment issue that, under the scheme of the Act, is to be dealt with prior to the passing of the By-law. Under the Act, decisions about what is to be done and who is to pay for it are matters to be settled before the work is authorized. Once the work is completed and benefits are in place, in this panel’s view, it is inappropriate for an assessed owner to seek to avoid payment under the guise of a "quality of construction" appeal.

The direct costs to the people of Ontario for this hearing are in the order of $2,500.00. The costs incurred by the township for the hearing are of a similar magnitude. The Tribunal considered awarding these costs to the township but was convinced that Mr. McCormick, however misguided, was sincere and was seeking relief through the only possible appeal left open under the Act. That said, in the opinion of the Tribunal, this appeal bordered on the frivolous and the ratepayers of the township should not have to bear all of the costs either. In the circumstances, the Tribunal decided to award $500.00 in costs to the township to be applied to the cost of this hearing.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal issued the following orders:

The appeal of Robert McCormick under Section 64 of the Act is dismissed.
The township is reminded of its responsibilities under Section 74 of the Act to maintain this drainage works. Particular attention should be given to the catchbasin by the property owned by Noreen Park and to the grading of the road side ditches on Joseph Street.
Mr. McCormick is ordered to pay the sum of $500.00 in costs of this hearing to the township. The township is to apply this sum to reduce the cost of this hearing. The balance of the cost of the hearing may, at the discretion of the Council of the Township, be charged to the maintenance account for the Dungannon Drain 1995 and charged to the works when maintenance costs are levied.
If the sum of $500.00 has not been paid to the township within 90 days of the date of this decision, the township shall place this sum on the taxes in arrears on the parcel of land, Roll No. 4-004-45, owned by Mr. McCormick.
It is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

The reasons for this decision are:

In the opinion of the Tribunal, Mr. McCormick presented no evidence or valid argument that the Dungannon Drainage Works 1995 has construction deficiencies.

Dated at Chatsworth, Ontario this 6th day of February, 1997.