Hutchison Drain-DeBrouwer Culvert (Re), 1998 ONAFRAAT 54

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:

Hutchison Drain-DeBrouwer Culvert Municipality of Chatham-Kent

Hutchison Drain-DeBrouwer Culvert (RE) 1998 ONAFRAAT 54

STATUTE:

Drainage Act

HEARING:

December 7, 1998

DATE OF DECISION:

December 17, 1998

1998-54

NEUTRAL CITATION:

1998 ONAFRAAT 54

Hutchison Drain-DeBrouwer Culvert Municipality of Chatham-Kent

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 Municipality of Chatham-Kent requesting a modification to By-law No. 110-1998 concerning the Hutchison Drain-DeBrouwer Culvert, in the Municipality of Chatham-Kent.

Before:

Vernon Spencer, Chair; Andrew Wright, Vice-Chair; Karen Ratcliffe, Member.

DECISION OF THE TRIBUNAL

This application was considered by the Ontario Drainage Tribunal (the Tribunal) on Monday, December 7, 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

Todgham and Case Associates Inc. was instructed by the former Township of Harwich (now called the Municipality of Chatham-Kent) to prepare a report under Section 78 of the Drainage Act for the repair and improvement of the Hutchison Drain-DeBrouwer Culvert. The improvements requested involved the reconstruction of the access culvert which served the NW ½ and Pt. SE ½ Lot 21, Concession 5, R.T.S.

Although the existing concrete structure was sound and stable, the top width was inadequate for safe access of agricultural equipment. The report recommended the removal of the existing concrete bridge and the installation of the new corrugated steel pipe culvert at the same location.

The report was completed, dated May 19, 1998, and filed with the Municipality of Chatham-Kent. The report was adopted in accordance with the Act by By-law No. 110-1998. Construction equipment and materials were brought to the site to undertake the work on November 23, 1998. On that date, the engineer was informed that the house and barns on this farm property had been severed from the remnant agricultural lands and sold. If the provisions of the current bylaw were followed and the new corrugated steel pipe access culvert was installed at the same location as the existing concrete bridge, this structure would have been wholly within the frontage of the newly severed lot. No provision for access would have been provided to the remnant agricultural lands. As this construction was being undertaken to facilitate safe access of agricultural equipment for the agricultural lands, the applciation of the current by-law did not suit this need.

The owner of the severed residential lot requested that the existing concrete bridge be left in place. The owner of the remnant agricultural lands requested that the new corrugated steel pipe recommended in the report be installed in a location other than that recommended in the report in order that the remnant agricultural properties are provided suitable access.

The existing concrete structure was left in the drain undisturbed. The new corrugated steel pipe culvert, which was recommended in the report, was installed in the Hutchison Drain at a point which is approximately 125 m east of the line between Lots 20 and 21, Concession 5, R.T.S. The adjustment in the location of this corrugated steel pipe will have virtually no additional hydraulic impacts on the operation of the Hutchison Drain. However, it will be necessary to alter the original bylaw in order to:

1. remove the references relating to the removal of the existing concrete bridge.

2. identify the existence of the newly severed lot in Lot 21, Concession 5, R.T.S.

3. specify the location of the new corrugated steel pipe culvert, and

4. revise the distribution of costs as shown in the governing bylaw.

In general terms the requested modifications will have the following results:

1. the existing concrete culvert will remain as an access point for the residential lot.

2. a new corrugated steel pipe is constructed for access to the remaining agricultural portion of the lot.

3. the cost of construction of the new corrugated steel pipe is assessed 90% to the adjacent landowner and 10% to the upstream landowners as outlet.

4. the future maintenance costs of both the corrugated steel pipe and concrete culvert are to be assessed 50% to adjacent landowner and 50% to upstream landowners.

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 No. 110-1998 but to do so on terms.

Therefore the Tribunal orders that:

1. The Clerk of the Municipality of Chatham-Kent is to prepare a notice to landowners advising them of the request to the Tribunal to order a modification to By-law No. 110-1998 concerning the Hutchison Drain. The notice to include a copy of this decision of the Tribunal and a copy of the engineer’s report of the Hutchison Drain-DeBrouwer Culvert, dated May 19, 1998 (Revised November 27, 1998) and signed by E. P. Dries, B.A. Sc., P. Eng.

2. After the notice has been prepared, it is to be mailed to all parties entitled to be sent a copy of the provisional by-law under Section 46 along with a notification stating that any owner so notified can appeal directly to the Tribunal by filing a notice of appeal with the Clerk of the Municipality of Chatham-Kent within 14 days of the mailing of the notice.

3. If no appeals are filed within 14 days of the mailing of the notice specified in Order 2, the Clerk is directed to replace the copy of the engineer’s report on the Hutchinson Drain-DeBrouwer Culvert, dated May 19, 1998, in By-law No. 110-1998 with a copy of the report with the same name dated May 19, 1998 (Revised November 27, 1998). The assessment schedule in By-law No. 110-1998 is to be modified to reflect the assessments in the engineer’s report dated May 19, 1998 (Revised November 27, 1998).

4. The report dated May 19, 1998 (Revised November 27, 1998) will henceforth define the Hutchinson Drain-DeBrouwer Culvert for purposes of repair and maintenance under the Act.

5. 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 Chatsworth, Ontario this 17^th day of December, 1998.