Sambrosky Drain (Re), 1997 ONAFRAAT 53

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:

Sambrosky Drain Township of Proton

Sambrosky Drain (RE) 1997 ONAFRAAT 53

STATUTE:

Drainage Act

HEARING:

December 2, 1997

DATE OF DECISION:

December 2, 1997

1997-53

NEUTRAL CITATION:

1997 ONAFRAAT 53

Sambrosky Drain Township of Proton

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 Proton requesting a modification to Township By Law No. 12-96 the Sambrosky Drain in the Township of Proton.

Before:

Vernon Spencer, Chair; Andrew Osyany, Vice Chair; Russell Piper, Member.

DECISION OF THE TRIBUNAL

On December 2, 1997, this application was considered by the Tribunal under Sub-Section 51(1) of the Drainage Act (the Act). Sub-Section 51(1) 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 Background

Pursuant to Section 4 of the Drainage Act the Township of Proton constructed the Samborsky Drainage works in accordance with an engineer’s report dated May 8, 1996 prepared by R. J. Burnside & Associates. The work involved improvements to an existing private drain and the relocation of the upstream end off the Egremont-Proton Townline road. The majority of the work was in the Township of Proton. The length of work was roughly 1,820 metres and involved the excavation of approximately 7,600 cubic meters of material. The estimated cost of the work was $37,500.00.

There are two springs in the north part of Lot 2, Con. 15, Township of Proton (M. Mosko et al). The south spring appeared to outlet out of the bush and go to the south into a private drain. The northerly spring appeared to outlet into the proposed Samborsky Drainage Works. At various meetings, including the consideration of the report, the owner of Lot 27, Con. 17, Township of Egremont expressed concern with respect to potential interference with the flows going to the south in the private drain in Lot 2, Con. 15, Township of Proton. These flows ultimately passed across the Townline road and through a trout pond that he owned. He was concerned that if flows were cut off from going south his water supply for the pond would be adversely affected.

By Law 12-1996 was enacted on July 29, 1996 to provide for the work and construction took place. In August, 1997 the Township of Proton received a complaint from the owner of Lot 27, Con. 17, Township of Egremont that his water supply to his trout pond had been cut off. In early September, 1997 the supply problem was discussed with the owner and investigated. Flows were found in the new municipal drain, however, none were going to the south. Both springs were still active. It appeared that after opening up of the beaver dams and construction of the drain flows from both springs migrated through the bush area into the Samborsky Drainage Works. It became apparent that flows from the south spring had broken westerly to enter at the Samborsky Drainage Works at roughly the 90^o bend in the Samborsky property. Flows from the south spring were entering the new drain through two substantial inlets that had been washed out in the east bank of the new drain. To restore flows to the south the existing private drain going south in Lot 2, Con. 15, Township of Proton needed to be deepened and the two inlets going west into the new drain diverted back to the south. Therefore the existing private drain was deepened from the lot line between Lots 1 and 2, Con. 15, Township of Proton upstream to the bush. The two inlets in the bush were diverted south such that flows from the south spring were again going south. The net cost for the work was $1,037.73.

The Council of the Township of Proton has requested that the Ontario Drainage Tribunal issue an order to:

1. Include this additional expenditure of $1,037.73 in the final levy for the Samborsky Drainage Works

2. Clarify that any future maintenance of the deepened private drain is not the responsibility of the Municipality.

ORDER OF THE TRIBUNAL

After careful consideration the Tribunal decided to use its authority under Section 51 of the Drainage Act and approve the requested amendments to By law 12-1996 but to do so on terms. Therefore the Tribunal orders that:

1. The cost of restoring the flow of water to the south through Lot 2, Concession 15, Township of Proton amounting to $1.037.73 may be added to the cost of the work incurred as authorised in By law 12-1996 and pro rated over the entire assessment schedule.

2. The private drain in Lot 2, Concession 15, Township of Proton that was deepened in order to restore the southerly flow of water shall remain as a private drain and the Township of Proton shall have no obligation under By law 12-1996 for future maintenance or improvement to this private drain.

3. The Clerk of the Township of Proton is to prepare a schedule showing the amount each assessed owner will be paying to cover this additional cost.

4. After the schedule has been prepared it is to be mailed to all parties entitled to be sent a copy of the provisional by law under Section 46 of the Act 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 the Township of Proton within 14 days of the mailing of the notices.

5. If no appeals are filed within 14 days of the mailing of the notices specified in Order 4, the Council of the Township of Proton may proceed to pass a levying by law to levy the cost of construction of the Samborsky Drainage Works, including this $1,037.73, in accordance with the provisions of the Drainage Act.

6. The engineer’s report dated May 1996, together with the Plan and Profile designated D-PRO-130 dated 1996-05-08 signed by Mr. Tom Pridham, P. Eng. will henceforth define the Samborsky Drainage Works for purposes of repair and maintenance under the Act.

7. 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 2^nd day of December 1997.