John Pirie v. Town of Pelham, 1998 ONAFRAAT 36

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: Keenan Municipal Drain Town of Pelham

Keenan Municipal Drain (RE) 1998 ONAFRAAT 36

STATUTE: Drainage Act

HEARING: August 25, 1998

DATE OF DECISION: September 3, 1998

1998-36

NEUTRAL CITATION: 1998 ONAFRAAT 36

Keenan Municipal Drain Town of Pelham

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 John Pirie, Fenwick, Ontario, under Section 54 of the Drainage Act from the decision of the Court of Revision and under Section 48, from the April 30, 1998 engineer’s report for the Keenan Municipal Drain, Town of Pelham.

Before: Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Anna Andres, Member.

Appearances: John Pirie appellant. John Spriet, P. Eng., on behalf of the respondent the Town of Pelham.

DECISION OF THE TRIBUNAL

This appeal was heard on August 25^th, 1998 in the Council Chambers of the Town of Pelham located in Fonthill, Ontario. John Pirie, appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act from the decision of the Court of Revision and under Section 48, from the April 30, 1998 engineer’s report for the Keenan Municipal Drain, Town of Pelham (the Town).

Murray Hackett, Clerk of the Town of Pelham, performed the duties of the Clerk of the Tribunal.

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;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(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.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1990, chap. D.17, s. 48.

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. 1990, chap. D17, s. 54.

At the beginning of the hearing the Tribunal issued an order that all landowners assessed or compensated in the April 30^th , 1998 engineer’s report on the Keenan Drain 1998, Town of Pelham, having been served notice of this hearing, are made parties to this hearing.

The Background

The Keenan Municipal Drain is an existing drain that serves parts of Lots 12 to 20, Concession 7 to 9 in the Town. It was originally constructed under an engineer’s report dated June 12, 1947. It consisted of 2550 feet of open ditch and 4413 feet of eight to fourteen inch tile. The current work on the existing tile portion of the Kennan drain was initiated by a request of the Town. An extension of the open portion downstream of the present end point was initiated by a petition