Point Albino Drain (Re), 1998 ONAFRAAT 16

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:

Point Albino Drain City of Port Colborne

Point Albino Drain (RE) 1998 ONAFRAAT 16

STATUTE:

Drainage Act

HEARING:

April 14, 1998

DATE OF DECISION:

April 16, 1998

1998-16

NEUTRAL CITATION:

1998 ONAFRAAT 16

Point Albino Drain City of Port Colborne

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 City of Port Colborne requesting the Tribunal issue an Order rescinding the September 15, 1987 order of the Tribunal directing the City to install a low lift pumping station on the Point Abino Drain in the City of Port Colborne

Before:

Andrew Osyany, Vice Chair; Herb Todgham Vice Chair; Russell Piper, Member

DECISION OF THE TRIBUNAL

On April 14, 1998, 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

The Point Abino drain provides outlet for an area in the City of Port Colborne and the Town of Fort Erie with its outlet into Lake Erie located at the north boundary of the Buffalo Yacht Club property in the Town of Fort Erie. In general terms, the area affected by the Point Abino drain lies West of Region Road 112 (Fort Erie), South of Sherkston Road (Fort Erie and Port Colborne) and East of Empire Road (Port Colborne). The area was affected by high lake levels in the 1980’s and three Tribunal hearings were held to resolve issues of flooding of the low lying properties along the drain. At a hearing held May 8, 1981 the Tribunal ordered the installation of a limited lift pumping station at the outlet of the Point Abino Drain along with the necessary works to support the pump installation. Port Colborne obtained an engineer’s report to implement this decision of the Tribunal and a further appeal was filed. After a hearing held on June 23^rd , 1983 (decision July 13, 1983) the Tribunal directed the City to proceed with the report but delete the low lift pump. In June and August 1987 the Tribunal held a hearing under Section 51 of the Act to consider a request by the Town of Fort Erie and assessed landowners that the pump be installed as the owners of low lying lands were still being adversely affected by excess moisture. At the conclusion of that hearing the Tribunal utilised its authority under Section 51 and issued an order, dated September 15, 1987, that the low lift pumps, as previously designed and deleted from the work by the Tribunal’s order of July 13, 1983, be installed.

This work has not been done. The City of Port Colborne obtained an engineer’s report from Planco Engineering Limited, signed by A. Pluhar and dated December 28, 1995 and amended May 8, 1996. This report was prepared pursuant to the September 15, 1987 order of the Tribunal. The report has three alternative recommendations: the installation of a 600 l/s pumping station, or the installation of a 150 l/s pumping station, or the installation of Tideflex check valves. Due to the direction required from Council, the report is not worked out in all necessary detail in order to build from it. This report was circulated to the affected landowners and the City gave two readings to provisional By-law No. 3369/99/96 and circulated a copy of the By-law to those parties entitled to receive notices of the preliminary By-law. The provisional By-law adopted the recommendation for the 600 l/s pumping station. After the By-law was sent the City received 210 appeals from the owners of the 378 parcels of land affected by the work. These appeals are against the proposed assessment of the cost of the work and the necessity of installing the pumps.

The City of Port Colborne and the Town of Fort Erie do not wish to proceed with any of the work. The City of Port Colborne, supported by the Town of Fort Erie, has asked the Tribunal to issue an order rescinding the September 15, 1987 decision of the Tribunal that the low lift pumps be installed on the Point Abino Drain. The two municipalities have asked that the Tribunal order the costs to date be assessed to the area affected by the Point Abino drainage works pro rata on the last by-laws affecting the work.

The net effect of granting the request would be:

1. The low lift pumps at the outlet of the Point Abino Drain would not be installed, nor would there be Tideflex check valves installed, leaving the low lying lands adjacent to the drain subject to excessive moisture when the lake levels are high just as they have been since 1987 and before.

2. The cost to date, amounting to $29,576.70 plus the cost of this application to the Tribunal, would be charged against the lands and road affected by the Point Abino Drainage works using a pro rated assessment in the same manner as the costs of maintenance are allocated in the report of C. J. Clarke dated October 19, 1983.

ORDER OF THE TRIBUNAL

After careful consideration the Tribunal decided that it does not have sufficient information to make a decision in this application. In particular, the Tribunal wishes to receive submissions from all landowners, and other persons entitled to notice pursuant to the Drainage Act with regard to the Engineer’s May 8, 1996 report, with regard to how the costs to date should be assessed in the event the report is abandoned.

Therefore the Tribunal orders that:

1. The Clerk of the City of Port Colborne is to circulate a notice specifying dates at which submissions must be filed, and include a copy of this order along with a copy of the Tribunal decisions of June 10, 1981, July 13, 1983 and September 15, 1987 complete with reasons for the decisions, to all parties entitled to receive notice of an engineer’s report under Section 41 of the Act.

2. All persons who receive a notice of this Order are invited to file written submissions to the Tribunal regarding

a) the adoption of one of the alternatives proposed in the Engineer’s May 8, 1996 report

b) the abandonment of the Engineer’s report, and

c) the payment of costs to date.

3. Any person wishing to file a written submission must file it with the Clerk of the City of Port Colborne within 21 days of the mailing of the notice of this Order.

4. On the 23^rd day after the mailing of the notice of this Order, the Clerk of the City of Port Colborne shall forward all written submissions received to the office of the Tribunal and the Tribunal will consider the submissions and make a decision on this application.

5. The current panel of the Tribunal is not seized with the issue and the same panel or a different panel may be convened to make the decision on the application once the submissions are received.

6. The hearing of the Tribunal scheduled for May 12, 1998 at the City of Port Colborne to hear appeals filed against the May 8, 1996 engineer’s report from Planco Engineering Limited is postponed to a dated to be determined and, depending on the disposition of this application, may be cancelled.

Dated at Shelburne, Ontario this 16^th day of April, 1998.