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:
Finch Drain Branch A Township of North Dorchester
Finch Drain Branch A (RE) 1998 ONAFRAAT 7
STATUTE:
Drainage Act
HEARING:
January 26, 1998
January 30, 1998
1998-07
NEUTRAL CITATION:
1998 ONAFRAAT 7
Finch Drain Branch A Township of North Dorchester
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 Township of North Dorchester requesting a modification to Township By Law No. 10-97 passed on May 12, 1997 on the Finch Drain Branch A in the Township of North Dorchester
Before:
Vernon Spencer, Chair; Andrew Wright, Vice-Chair; Russell Piper, Member.
DECISION OF THE TRIBUNAL
This application was considered by the Ontario Drainage Tribunal (the Tribunal) on Monday January 26, 1998. The Township of North Dorchester (the Township) filed an application with the Tribunal under Sub-Section 58(4) of the Drainage Act (the Act) requesting an order amending By-law Number 10-97 Finch Drain Branch A to reflect the as constructed drain. Sub-Section 58(4) is as follows:
(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error.
The Background
The Township obtained an engineering report dated March 4, 1997 on the Finch Drain Branch ‘A’ from MIG Engineering Ltd. This report calls for the construction of a tile drain flowing from Lot 1 Concession 5 southerly into Lot 1 Concession 6 to an outlet in the Finch Drain. The new drain runs parallel to an existing tile drain. In the report the engineer estimated the length of tile needed at 394 meters of 600 mm tile but the actual construction was 504 meters of 600 mm tile. The discrepancy in the length of the tile was found during construction when the contractor located the existing tile drain and discovered that the new 600 mm tile had to be 504 meters long in order to parallel the existing tile.
As a result of this extra length of tile drain it was necessary to adjust the grade of the tile, the amount of allowances provided for right of way and crop damage and the total estimated cost of construction of the drain. The cost of the work increased from an estimated of $35,000.00 to $40,138.77.
MIG Engineering Ltd. prepared an Addendum report entitled Engineering Report of the Finch Drain Addendum # 1 dated November 24, 1997. The report details a new cost estimate, a schedule of allowances and a revised schedule of assessment. The addendum report was circulated to the assessed landowners under a covering letter from the drainage superintendent dated November 28, 1997. No one objected to the addendum report and the Township accepted it at a meeting held December 15, 1997. By letter dated January 15, 1998, the Township applied to the Tribunal for an order to amend By-law 10-97 to incorporate the addendum report into the report which governs the Finch Drain Branch ‘A’ in the Township.
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 10-97 under Sub-Section 58(4) but to do so on terms. Therefore the Tribunal orders that:
The engineer is to modify the November 12, 1997 addendum report on the Finch Drain to clearly show that this addendum applies to the Finch Drain Branch ‘A’ and is written to reflect changes in the March 4, 1997 report that occurred after the adoption of the report and during construction of the project. The engineer is to date, sign and stamp the addendum report.
The engineer is directed to amend the Plan and Profile to show the “As Constructed” details of the project including but not limited to the alignment, grade, materials used and anything added or deleted. The revised drawings are to be dated and clearly marked as being “Amended by Order of the Tribunal dated January 29th, 1998 ”.
The Clerk of the Township of North Dorchester is to modify By law 10-97 to incorporate the amended Addendum No. 1 report mentioned in Order 1 above, together with the amended Plan and Profile mentioned in Order 2 above.
After the By law has been modified it is to be mailed to all parties entitled to be sent a copy of the provisional by law under Section 46 of the Act along with a copy of this decision and a copy of the amended addendum report together with instructions that Addendum No. 1 (as amended) is to be attached to the report dated March 4, 1997 that was previously circulated and that the drawings in the March 4, 1997 report are to be discarded and replaced with the amended Plan and Profile.
If any landowner receiving the notice specified in Order 4 objects to the amendment to the bylaw that landowner may appeal to the Drainage Tribunal by filing a notice of appeal with the Clerk of the Township of North Dorchester within 14 days of the mailing of the notice and the Tribunal will conduct a hearing into the matter before finalising this Order. If no appeal is filed within the time specified, this Order becomes final and the report dated March 4, 1997, together with the Addendum No. 1 (as amended) and the amended Plan and Profile will henceforth define the Finch Drain Branch ‘A’ for purposes of repair and maintenance under the Act.
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 30th day of January, 1998.