Routh Municipal Drain (Re), 1998 ONAFRAAT 6

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: Routh Municipal Drain Town of Niagara on the Lake

Routh Municipal Drain (RE) 1998 ONAFRAAT 6

STATUTE: Drainage Act

HEARING: January 26, 1998

DATE OF DECISION: January 26, 1998

1998-06

NEUTRAL CITATION: 1998 ONAFRAAT 6

Routh Municipal Drain Town of Niagara on the Lake

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 Town of Niagara on the Lake requesting a modification to Township By Law No. 2648-93 the Routh Municipal Drain in the Town of Niagara on the Lake.

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

DECISION OF THE TRIBUNAL

This application was considered by the Tribunal on January 26, 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

M. and H. Ostromecki own the property identified as Roll No. 21-120 in the Town of Niagara on the Lake (the Town). D. O’Connor owns the property identified as Roll No. 21-121 in the Town. The Town obtained a report under the Act signed by Brian Wiebe dated February 26th, 1993 to repair and improve the Routh drain, including the Mazur Branch. This report was adopted by By-law 2648-93 which was given third reading on September 12, 1994. The work was undertaken and certified complete June 20, 1995. On February 20, 1996 Mr. and Mrs. Ostromecki, through their solicitor Mr. Ungaro, filed an appeal with the Town complaining about the construction of the Mazur Branch. As a result of this appeal the Town, Mr. and Mrs. Ostromecki and Mr. O’Connor entered into an agreement detailing how the portion of the Mazur Branch of the Routh Drain adjacent to the lands of Ostromecki and O’Connor will be maintained in the future. A copy of the August 1996 agreement has been filed with the Tribunal. The Town is requesting the Tribunal order an amendment to By-law 2648 incorporating the terms of the agreement into the maintenance provisions of the By-law.

In general terms this will have the effect of:

1. Determining that the drain bed and banks are located on the lands of O’Connor.

2. Placing responsibility on each of the landowners to maintain the drain at their own cost if the free flow of water is impeded by materials that enter the drain from their respective properties.

3. In the event that work is required as a result of general wear and tear on the channel the Town Works Superintendent shall be the arbiter to determine how much of this work has to be completed by each of the 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 1110-96 but to do so on terms. Therefore the Tribunal orders that:

1. The Clerk of the Town of Niagara on the Lake is to prepare a By-law amending By-law . 2648-93 to include the August 1996 agreement signed by the Town, Mr. Donald O’Connor, Mr. Mieczysalw Ostromecki and Ms, Halina Ostromecki. The amending by-law is to state that where the maintenance provisions of By-law 2648-93 conflict with the terms of the agreement then the agreement supersedes.

2. After the amending by law has been given third reading and enacted by the Town of Niagara on the Lake it is to be mailed to all the parties that signed the August 1996 agreement along with a copy of this decision.

3. The report dated February 26th, 1993 together with the amending by-law will henceforth define the Mazur Branch of the Routh Drain for purposes of repair and maintenance under the 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.

Dated at Chatsworth, Ontario this 26th day of January, 1998.