St. Michaels-Donohue Municipal Drain (Re), 1997 ONAFRAAT 6

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

APPEAL: St. Michaels-Donohue Municipal Drain Township of Bromley

St. Michaels-Donohue Municipal Drain (RE) [Interim] 1997 ONAFRAAT 6

STATUTE: Drainage Act

HEARING: March 20, 1997

DATE OF DECISION: March 26, 1997

1997-06

NEUTRAL CITATION: 1997 ONAFRAAT 6

St. Michaels-Donohue Municipal Drain [Interim] Township of Bromley

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 by Rev. K.P. Bradley, Desmond Enright, and Sylvester Power (for Roman Catholic Episcopal) and Kevin Donohue under Sections 48 (a), (b) and (c) of the Drainage Act and by the Renfrew County Roman Catholic Separate School Board under Section 54 of the Drainage Act from the decision of the Court of Revision with respect to the St. Michaels-Donohue Municipal Drain, Township of Bromley.

Before: Mr. Herb Todgham, Vice-Chair; Mr. John Taylor, Vice Chair; Mr. Ron MacDonell, member.

Appearances: Mr. Donald Good, counsel to the appellant Mr. Kevin Donohue. Mr. Don Dowdell, for the appellant the Renfrew County Roman Catholic Separate School Board. Mr. Sylvester Power representing the St. Michaels Parish Church. David A. Stewart, on behalf of the respondent the Township of Bromley.

DECISION OF THE TRIBUNAL

This appeal was heard in Douglas, Ontario on March 20, 1997. Mrs. Lauretta Rice, Clerk Treasurer of the Township of Bromley (the township) performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).

Several landowners appealed to the Tribunal under Sections 54 and 48 of the Drainage Act (the Act) from the engineer's report on the St. Michaels-Donohue Municipal Drain in the township.

Section 48 of the Act is as follows:

48 (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

Section 54 of the Act is as follows:

54 (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.

R.S.O. 1980, c. 126, s. 54.

At the outset of the hearing the Tribunal ordered that all assessed owners be made parties to the appeal and all assessed owners were invited to make representations to the Tribunal.

The Background

The drain was initiated by petition under Section 4 with Mr. Kevin Donohue as the initial petitioner. Water from the school and church properties needed an outlet and representatives with signing authority for these two properties added their names to the petition.

The water from a small section of the Dick lands to the north of the church property flows across the Church lot between the building and the cemetery. The water then flows across the school property to the lane on the Kevin Donohue land. The grade on the Donohue farm is about 2%. The water follows the lane for a short distance before the natural depression swings northerly across a field on the Donohue farm, across the barn yard, then along the property boundary between the Dick and Donohue farms before turning southerly across the Donohue farm to an outlet in the Cull Donohue Drain.

The church lot has some ponding on it but a major concern is the subsurface water that saturates part of the land used for the cemetery. The school property is extensively used by the community and includes a ball diamond and open air ice rink. The roof drain from the school is taken in a tile across the school yard to the existing ditch at the north side of the Donohue lane. The school and the Recreation Committee that operates the rink and ball field, with the cooperation of Mr. Donohue, has dug a ditch to the south along the back of the school property to the Donohue lane where the ditch turns east and follows the lane. Currently the water floods over the lane at this corner and causes some flooding on the Donohue lands.

The petitioners are asking for a drainage works to provide outlet for the surface water from the school and the church and to provide capacity at the corner at the Donohue lane, as well as for drainage of the Donohue barn yard and relief for water that flows from the Dick lands onto the Donohue field east of the barn yard.

The engineer's report proposes a combination of open ditch and tile drains that follow the existing artificial drainage pattern in the watershed. At the hearing Mr. Kevin Donohue told the Tribunal that:

1/ He is concerned that this proposal would:

(a) bring drainage water close to the shallow well near the house on the property thus posing a threat of contamination of the well if pollutants get into the water from the septic systems on the school and church properties.

(b) not have sufficient capacity to carry the water across the lower field on his land to the eventual outlet in the Cull Donohue drain. This could cause flooding and drown out alfalfa on this field which he feels is the best field on the farm.

2/ An alterative outlet could be made by digging an open ditch along the property boundary between his farm and that of Mr. Dick. This outlet would serve the dual purpose of providing an improved outlet for the water flowing from the school and church properties as well as cutting off all the water from the upper watershed so that none of this water flowed across his main hay field east of the barn yard.

3/ He has dug a test hole ten feet deep in the location of this proposed ditch along the property boundary and did not encounter bedrock and he is confident that a ditch can be dug in this location. He will accept the spoil from the ditch and dispose of it on his lands and he will construct, at his cost, a fence to keep cattle out of the ditch if he pastures this land.

4/ Mr. Donohue told the Tribunal that he has had considerable experience in construction and would be prepared to do all of the work proposed by the engineer in the upper watershed plus digging the ditch along the property boundary as he proposed for the sum of $20,000.00 for construction.

Mr. Kevin Dick told the Tribunal that he is anxious to solve the drainage problem and is willing to accept the proposal of Mr. Donohue if that will end the matter.

Mr. Jim McIntosh, the engineer who prepared the August 20, 1996 report on the St. Michaels-Donohue drain, told the Tribunal that Mr. Donohue had suggested this solution to him only three weeks prior to the hearing. He said that he had not considered this solution because he had understood that the spoil would have to be hauled and disposed of off site and a fence to prevent cattle access would have to be built as part of the project. This made the proposal more expensive than his recommended solution. He said that he was concerned about hitting bedrock when digging through the knoll and he is not convinced that one test hole is sufficient to eliminate this concern. He told the Tribunal that, while he has not taken levels along the route, he thinks it may be feasible to dig an open ditch in this location, subject to the concern about cost and bedrock.

It appears to the Tribunal that the proposal warrants further investigation. Therefore the Tribunal told the parties to the hearing that it would delay making a decision on the appeals until after April 30, 1997. In the interim, if the parties can come to an agreeable alternative to that proposed in the report by the engineer that is before the Tribunal, then the Tribunal will consider incorporating that alternative into its decision.

Therefore the Tribunal directs that:

1/ The engineer is to meet with the owners of the four properties directly affected by the work, namely, representatives from St. Michaels Parish Church; representatives from the Renfrew County Roman Catholic Separate School Board; Mr. Kevin Dick; Mr. Kevin Donohue and Mr. Patrick Donohue, as well as the Drainage Superintendent from the township. At this meeting these parties will determine what construction work should be done to address the drainage problem. They should also consider whether anything will be required on the Kevin Dick property in order for the work proposed on the Donohue property to function properly (i.e. should the pond and outlet tile on the Dick property be part of the drain or not)

2/ After this meeting the engineer is to prepare an outline (with reasonable details) of the work to be done, including the amended work at the cemetery as proposed at the hearing, and an estimate of cost showing:

(a) the cost of construction

(b) allowances for land and for land damages and any value the existing ditch has to the proposal.

(d) administration, including the cost of the Tribunal hearing.

(e) the total estimated cost of the drain.

3/ On behalf of the owners, the township Drainage Superintendent will ask each of the owners of the directly affected properties listed above to approve the proposed work. Each owner will have to indicate, in writing, that the proposed work is an acceptable solution to their drainage problems.

4/ The engineer will then prepare an assessment of the estimated cost of the proposed work.

5/ The Drainage Superintendent will ask each of the owners assessed for the work for a written agreement accepting the proposed assessments.

6/ This work of obtaining acceptance by all of the owners assessed is to be completed by April 30, 1997.

7/ The Tribunal recognizes that it may be difficult to obtain acceptance from MTO on this short notice and is prepared to accept proof of formal notification of MTO by the township of the proposal and the Tribunal's intention as outlined in this direction as being sufficient for the purposes of this direction.

When this work of obtaining acceptance is done, the Tribunal will issue an order that the Engineer prepare a report incorporating the proposed work with a detailed plan, profile and specification and the assessment of the estimated costs. This report will then be circulated by the township, and owners will be given a specified time to file any objections directly to the Tribunal. If there are no objections to the report filed within the specified time, the Tribunal will issue an order authorizing Council of the township to adopt the report without a Court of Revision or other appeals. If there are objections the Tribunal will decide how it will deal with the objections.

If the affected owners cannot agree on the work to be done or if the Drainage Superintendent cannot get written agreement from the owners for the proposed work and/or the proposed assessments, the Tribunal will consider all of the evidence presented at the March 20, 1997 hearing and make its decision based on this evidence and issue appropriate orders to deal with the appeals against the August 20, 1996 report.

Dated at Chatham, Ontario this 26th day of March, 1997.