Point Albino Drain (Re), 1998 ONAFRAAT 28

Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: Point Albino Drain, City of Port Colborne Point Albino Drain (RE) 1998 ONAFRAAT 28

STATUTE: Drainage Act HEARING: July 22, 1998 DATE OF DECISION: July 28, 1998 1998-28 NEUTRAL CITATION: 1998 ONAFRAAT 28

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 of Port Colborne to install a low lift pumping station in the Town of Fort Erie on the Point Abino Drain.

Before: Herb Todgham Vice Chair; Andrew Osyany, 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.

On April 17th, 1998 the Tribunal decided that it did not have sufficient information to make a decision on the application and ordered 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 the April 17th, 1998 decision of the Tribunal 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 the notice were 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.

The City complied with the Tribunal’s directions and has forwarded to the Tribunal copies of the responses to the April 17th, 1998 Tribunal order from the ratepayers. The Tribunal met on July 22, 1998 to consider the responses from the ratepayers and to make a decision on the application.

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 23rd , 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.

This information was circulated to all the landowners assessed for the Point Abino Drain and these owners were invited to tell the municipalities and the Tribunal what they felt should be done. The City received 161 responses from the ratepayers. Of these seven (7) were in favour of installing either a Tideflex valve or a low lift pump. These seven landowners are scattered throughout the watershed and none of the owners adjacent to the drain near the outlet, which is the area that would be most affected by a pump, if one was installed, are in favour. Having considered all of the above the Tribunal decided to grant the motion.

ORDER OF THE TRIBUNAL

After careful consideration of the motion and the attached materials the Tribunal decided to grant the motion and make the following orders:

The Tribunal orders that:

1. The September 15, 1987 order of the Ontario Drainage Tribunal to construct a low lift pump at the outlet of the Point Abino drain be and the same is hereby revoked.

2. All costs incurred by either the City of Port Colborne or the Town of Fort Erie in proceeding under the said order of July 15, 1987, (such costs being the amount of $29,576.80 to date), and all other costs incurred by either municipality in brining this motion and in all proceedings resulting therefrom shall be divided between the Town of Fort Erie and the City of Port Colborne, in the same manner as the cost of repairs and improvements are allocated in the report of C. J. Clarke, Niagara Limited, dated October 19, 1983, which report was adopted by the Council of Fort Erie and the Council of the City of Port Colborne in accordance with By-law 64-84 of the Town of Fort Erie and By-law 1420/83 of the City of Port Colborne, and shall be assessed against the landowners of the drainage area of the Point Abino Drain in the same manner as the cost of any maintenance work on the drain would be assessed pursuant to the aforesaid by-laws.

3. It is ordered that a grant be made by the Ministry of Agriculture Food and Rural Affairs for the expenses incurred in the preparation of the May 1996 Planco Engineering report as if this report were a preliminary report within the meaning of section 85{c} of the Drainage Act.

4. 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.

The reasons for this decision are:

1. The Tribunal was convinced by:

• the documentation filed indicating substantial opposition to the proposed project from the landowners in the area that would be assessed for this work and
• the passage of substantial time, without significant problems for the area, since the original order of the Tribunal to install the pump that a pump on the outlet of the Point Abino Drain is not required at this time.

2. If a pump proves to be necessary in the future, the current report can be updated and used so the work to date has provided some value to the landowners in the drainage area.

Dated at Chatham, Ontario this 28th day of July, 1998.