Sutherland Drain (Re), 1998 ONAFRAAT 14

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Sutherland Drain Township of Adelaide

Sutherland Drain (RE) 1998 ONAFRAAT 14

STATUTE: Drainage Act

HEARING: March 25, 1998

DATE OF DECISION: April 2, 1998

1998-14

NEUTRAL CITATION: 1998 ONAFRAAT 14

Sutherland Drain Township of Adelaide

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 Adelaide requesting a modification to Township By Law No. 18-97 the Sutherland Drain in the Township of Adelaide.

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

DECISION OF THE TRIBUNAL

This application was considered by the Ontario Drainage Tribunal (the Tribunal) on March 25^th, 1998, 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

The Township of Adelaide obtained and adopted, in accordance with the procedures in the Act, an engineer’s report on the Mud Creek and Sutherland Drain dated July 4, 1997. This report was the subject of a Tribunal hearing and is reported in the 1997 volume of decisions of the Tribunal at page 4909. After By-law 18-97 was passed by the Council of Adelaide, Mr. M. VanGeffen requested that the Sutherland Drain portion of the Mud Creek and Sutherland Drain report be modified to change the proposed work on his property. The original report proposed 156 meters of ditch bank resloping and seeding of the banks and buffer strips. At locations near and around bends, the washouts were to be backfilled, regraded and quarry stone rip-rap protection placed on the slope which was moved back near to its original location.

The revised proposal includes 208 meters of ditch bank resloping and seeding of the bank and buffer strips. At the location of the large bend, the outside bank is to be resloped in its present location and quarry stone rip-rap protection placed on the new slope.

In general terms this will have the effect of repairing the drain and stabilising the banks in their present location rather than moving the drain bank to the approximate location of the last report.

The estimated cost of construction decreases from $13,220 to $10,680. However, there is no overall savings in the cost of the work as the portion of the cost of the November 1977 Tribunal hearing on the Mud Creek and Sutherland Drain and the administration cost of preparing the Addendum report must be added. The engineer has assessed the administration cost for preparing the Addendum report to Mr. VanGeffen as a special benefit.

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 18-97 but to do so on terms.

Therefore the Tribunal orders that:

1. The engineer is directed to amend the Plan and Profile dated July 4, 1997 included in the Mud Creek and Sutherland Drain report to show the details of the revised Sutherland Drain project including but not limited to the alignment, grade, materials used and anything added or deleted, clearly marking the drawings as being “Amended by Order of the Tribunal April 2, 1998”.

2. The Clerk of the Township of Adelaide is to prepare a By-law to modify By law 18-97 Mud Creek and Sutherland Drain to incorporate the engineer’s report titled Sutherland Drain, Township of Adelaide Addendum , dated February 28, 1998 and signed by Mr. M. P. DeVos, together with the amended Plan and Profile mentioned in Order 1 above.

3. After the By-law has been prepared and given two readings by the Council of Adelaide, it is to be mailed, (including a copy of the Addendum report) 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 Adelaide 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. To avoid confusion in the future it is requested of the ratepayers that the Addendum report along with the modified plan and profile be attached to the report on the Mud Creek and Sutherland Drain dated July 4, 1997 and that the drawings in that report be replaced with the amended Plan and Profile.

6. The report on the Mud Creek and Sutherland Drain dated July 4, 1997, together with the Addendum report and the amended Plan and Profile will henceforth define the Sutherland 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 Shelburne, Ontario this 2^nd day of April, 1998.