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:
Oldfield Drain Petition City of Stoney Creek
Oldfield Drain Petition (RE) 1997 ONAFRAAT 7
STATUTE:
Drainage Act
HEARING:
March 12, 1997
DATE OF DECISION:
March 31, 1997
1997-07
NEUTRAL CITATION:
1997 ONAFRAAT 7
Oldfield Drain Petition City of Stoney Creek
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 Mr. William Oldfield under Section 5(2) of the Drainage Act, from Council’s decision not to appoint an engineer to prepare a report in response to the Oldfield Drain Petition, City of Stoney Creek.
Before: Mr. Andrew Wright, Vice-Chair; Mr. John Bacher, Member; Mrs. Betty Lambert, Member
Appearances: William Oldfield, appellant Bryon Wiebe, P.Eng., on behalf of the respondent, The City of Stoney Creek Leo Gagnon, property owner Gordon Hildreth, property owner Steve Shibish, property owner
DECISION OF THE TRIBUNAL
This appeal was heard in Stoney Creek, Ontario on March 12, 1997. Mrs. Rose Caterini, Clerk of the City of Stoney Creek (the City), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal). Mr. William Oldfield appealed to the Tribunal under Section 5(2) of the Drainage Act (the Act), from a decision of the Council of the City not to appoint an engineer to prepare a report in response to a petition filed under the Act.
The Background
Mr. William Oldfield, Myra Oldfield and Wm. G. Oldfield are the owners of the S.E. part of Lot 6, Concession 6, City of Stoney Creek. A water run, flowing in a generally northwest direction, diagonally crosses the southern end of the Oldfield property, then across the 10th Line Road, through the property of S. & A. Shibish and T. Pasqualotto to an outlet on the lands of H. Ferrier thence to outlet into the Forty Mile Creek. This watercourse is the subject of the petitions filed by the Oldfields.
On February 2, 1993, Mr. Oldfield filed a requisition for drainage works under Section 3 of the Act with the City. In response to the requisition, the City appointed Mr. Bryon Wiebe, P.Eng., of the Wiebe Engineering Group, to investigate and prepare a report. Mr. Wiebe concluded that the work could not be constructed as a requisition drain due to the estimated cost of the work and filed his report with the Council. In his report he set out the requirements for a valid petition under Section 4 of the Act. On March 25, 1994 Mr. Oldfield filed with the City a petition for drainage under Section 4 of the Act. Again the City appointed Mr. Bryon Wiebe to prepare a report in response to this petition.
An engineer’s report dated May 31, 1995 in respect to the Oldfield Drain was filed with the
City Council. On October 25, 1995 a meeting to consider this engineer’s report was held by the City and at the end of the meeting, an opportunity to add or withdraw from the petition was provided. No changes were made to the petition. Subsequently, the Council of the City decided not to adopt the engineer’s report and proceedings stopped. Council advised Mr. Oldfield of his opportunity to appeal to the Tribunal under Section 45(2) of the Act. The direct cost to this stage of the proceedings is approximately $14,200.00.
On May 9, 1996, Mr. Oldfield filed a new petition with the City asking that a drainage works be provided for his lots. In a written statement accompanying the petition, Mr. Oldfield requested the City to appoint a different engineer to respond to this petition. By resolution 15-2, dated June 11, 1996, the City decided not to accept this petition and consequently Mr. Oldfield appealed to the Tribunal.
The Issue
The issue before the Tribunal is whether or not the Tribunal should direct the City to accept the May 9, 1996 petition for drainage submitted by the Oldfields.
The Evidence and the Findings
Mr. William Oldfield told the Tribunal that he was appealing under Section 5(2) of the Act from Council’s decision not to accept his petition for a drainage works. He said that he knew he could appeal the May 31, 1995 Wiebe Report but chose not to because he felt there were too many problems with that report. He said that, in his opinion, the report has the following problems:
the water was not taken to a sufficient outlet;
the water would accumulate on his property; and
the assessment against his lands was inappropriate.
He said to the Tribunal that he was not prepared to debate the May 1995 report but he was prepared to show the need for drainage on his lands.
Mr. Oldfield told the Tribunal that he has one to two acres of grapes that suffer damage from excess water. He said that when water lies on these grapes and freezes, the vines are choked by the ice and eventually die. He has about 100 vines that have died from this cause.
Mr. Oldfield filed letters from the Niagara Peninsula Conservation Authority and the City roads department wherein these two authorities acknowledge a drainage problem on his property and express the opinion that he should file a petition under the Act in order to gain drainage relief. Mr. Oldfield pointed out that the upstream culverts under Mud Street (twin 5 foot x 3.5 foot flat bottom culvert) discharge water onto his land. This water fans out over the land and flows about half way across his lot before entering a small poorly defined ditch and flowing to a four-foot diameter round culvert under the Tenth Road. The top of the four-foot culvert is about 30 inches above the ground level in his fields. This four-foot culvert has a two-foot diameter overflow culvert also set above the field level. In times of heavy flow, the water floods his fields before it can flow through the four-