Agriculture, Food and Rural Affairs Appeal Tribunal
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:
Brissette Drain and Pump Township of Tilbury North
Brissette Drain and Pump (RE) 1999 ONAFRAAT 1
STATUTE:
Drainage Act
HEARING:
January 19, 1999
January 19, 1999
1999-01
NEUTRAL CITATION:
1999 ONAFRAAT 1
Brissette Drain and Pump Township of Tilbury North
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 Tilbury North requesting a modification to Township By Law No. 36-97, the Brissette Drain and Pump, in the Township of Tilbury North.
Before:
Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Anna Andres, Member; Andrew Koopal, Member.
DECISION OF THE TRIBUNAL
This application was considered by the Ontario Drainage Tribunal (the Tribunal) on Tuesday, January 19, 1999, under Sub-Sections 51(1) and 58(4) of the Drainage Act (the Act). They read as follows:
(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.
(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
Todgham & Case Associates Inc. was instructed by the Township of Tilbury North (the Township) to prepare a report under Section 4 of the Act, for the construction of a new drainage system in Part of Lot 5, Broken Front Concession and Part of Lot 11, WPt. Block A, Plan 1404, in the Township. The engineer’s report, dated September 19, 1997 was filed with the Township.
During construction of the said works, the following changes were made:
The contractor constructed the open portion of the drain. from Station 126 to Station 174, along a centreline alignment which encroached upon the neighbouring property producing side slopes near vertical in nature. In order to resolve the situation, the contractor agreed to enclose the portion of open drain extending from Station 126 to Station 174. The cost of enclosing this portion of drain was borne entirely by the contractor as a result of his actions.
Due to over-excavation, the contractor encountered difficulties in constructing the open portion of the drain extending from Station 175 to Station 581. The average finished grade was found to be 0.11% as compared to the original design grade of 0.08%. As a result of partially exposed tile drains which were found to be evident along the northerly drain back between Station 179 and Station 335, the finished bank slope varies from 1.5m to 2m horizontal to 1m vertical. As well, the offset distance from the rear lot line to the top edge of the northerly drain bank ranges from 0.7 m to 1.0 m, instead of a consistent offset of 1.0 m.
In order to better suit field conditions, the forcemain and discharge pipe extending from the pump station to its point of discharge into Lake St. Clair were modified to include two 15 degree bends.
The original alignment of the proposed covered drain was selected on the basis of historical information provided by the Municipality and field locates which were undertaken in conjunction with the Municipality. The locates proved erroneous and in order to complete the construction of the proposed storm sewer, the relocation of the clarifier effluent sewer was required. 50% of the cost ($14,600.00) is assessed to the Municipality and the balance is assessed against the Brissette Drain and Pump project.
The total cost of the project, including allowances, engineering, incidentals and contingencies is $131,694.46. This exceeds the original estimate by approximately 32%.
ORDER OF THE TRIBUNAL
After careful consideration the Tribunal decided to use its authority under Sections 51 and 58 of the Drainage Act and approve the requested amendments to By-law 36-97 but to do so on terms.
Therefore the Tribunal orders that:
The Clerk of the Township of Tilbury North is to prepare a notice to landowners advising them of the request to the Tribunal to order a modification to By-law No. 36-97 concerning the Brissette Drain and Pump. The notice to include a copy of this decision of the Tribunal and a copy of the engineer’s report of the Brissette Drain and Pump, dated September 19, 1997 (Revised December 3, 1998) and signed by E. P. Dries, B.A. Sc., P. Eng.
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 Township of Tilbury North within 14 days of the mailing of the notice.
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 Brissette Drain and Pump, dated September 19, 1997, in By-law No. 36-97 with a copy of the report with the same name dated September 19, 1997 (Revised December 3, 1998). The assessment schedule in By-law No. 36-97 is to be modified to reflect the assessments in the engineer’s report dated September 19, 1997 (Revised December 3, 1998).
The report dated September 19, 1997 (Revised December 3, 1998) will henceforth define the Brissette Drain and Pump 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 Dunnville, Ontario this 19th day of January, 1999.