Discoverer Outlet Drain (Re), 1999 ONAFRAAT 2

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:

Discoverer Outlet Drain Town of Lakeshore

Discoverer Outlet Drain (RE) 1999 ONAFRAAT 2

STATUTE:

Drainage Act

HEARING:

January 26, 1999

DATE OF DECISION:

January 29, 1999

1999-02

NEUTRAL CITATION:

1999 ONAFRAAT 2

Discoverer Outlet Drain Town of Lakeshore

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 Lakeshore (formerly known as the Township of Tilbury North) requesting a modification to Township By Law No. 16-94 concerning the Discoverer Outlet Drain in the Town of Lakeshore (formerly Township of Tilbury North).

Before:

Andrew Wright, Vice-Chair; Herbert Todgham, Vice-Chair; Bob McKim, Member.

DECISION OF THE TRIBUNAL

This application was considered by the Tribunal on Tuesday, January 26, 1999. 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

Bruce D. Crozier Engineering Inc. was instructed by the Township of Tilbury North, now the Town of Lakeshore, to prepare a report under Section 4 of the Act for the establishment of a drainage system to service an area requiring drainage, situated within Part Lot 6, Concession Broken Front in the Township of Tilbury North. The engineer’s report, dated April 28, 1994 was filed with the Township of Tilbury North.

On May 17, 1994 the above noted drainage report was considered and adopted by the Council for the former Township of Tilbury North. Subsequently By-law No. 16-94 was established to provide for the specified drainage works. The April 28, 1994 drainage report provided for the construction of a storm outlet drain that would accommodate the storm drainage requirements for a new large residential subdivision. As the entire cost of the development was substantial it was decided to first establish the external outlet drain. The internal components of the subdivision were to be completed at a later date.

For a number of reasons the Developer and the Township did not immediately proceed to construct the drainage works provided for by the April 28, 1994 drainage report. In April, 1998 the Developer decided to proceed with construction of the outlet works and subsequently the Township requested that the engineer prepare tenders for the required drainage works. Prior to the tenders being distributed to Contractors the Stoney Point Sportsmen's Club was notified of the proposed works through their properties. Since 1994 the Clubs executive members had changed and the new executives were unaware of the particulars of the project and were not agreeable to the total value of $22,500 for land used as being sufficient for this purpose.

The Township notified the clubs new executive of the background events and the fact that the Township had authority to proceed under virtue of By-law No. 16-94 passed for this project. The Township, however, was of the opinion that while the municipality had the authority to proceed they would rather do so with the agreement of all parties. The Stoney Point Sportsmen's Club also indicated their intent to possibly expand their facilities and to demolish the existing winterized cabin situated on the west lot. Negotiations then ensued between the solicitors for the Club and the Developer and an agreement was reached whereby the Stoney Point Sportsmen's Club would receive a total of $45,000.00 for allowances and the Developer would also demolish the existing cabin and backfill the excavation. Also the alignment of the proposed drain would be changed on the Clubs properties so that the drain would be situated totally on the west lot and would be further situated approximately 2.5 metres east of the west limit of said lot. The new alignment would provide the Club greater flexibility for future development of their lots and would further eliminate some piping and manholes thus reducing construction costs.

On November 10, 1998 the former Township of Tilbury North directed the engineer to prepare an amendment to the report accommodating the above noted changes and to further request approval from the Ontario Drainage Tribunal for said amendment. On January 1, 1999 the former Township of Tilbury North amalgamated with several other municipalities to form the Town of Lakeshore.

The specific changes in the amended drainage report requiring approval are as follows:

1. The alignment of the drainage works proposed to be situated on both residential lots owned by the Stoney Point Sportsmen's Club be changed so that the drain is situated only on the westerly lot (Roll No. 12-02500). Said realigned centreline of the drain would be situated 2.5 metres east of the west limit of the westerly lot (Roll No. 12-02500).

2. Said realignment would result in the reduction of the length of 1050 mm diameter concrete pipe by 6.0 metres, and the reduction of the length of the 1200 mm diameter concrete pipe by 4.0 metres and the elimination of manhole chambers No. 29 and 30 and elimination of armour rock placed along the west side of the steel sheet pile outlet structure. These changes resulting in a reduction of the cost of construction from $242,900.00 to $216,070.00 (including G.S.T.).

3. Increasing the total value of allowances for land used and damages paid to the Stoney Point Sportsmen's Club from $22,800.00 to $45,000.00. The allowances to the two lots owned by the Stoney Point Sportsmen's would be changed as follows. The allowance for land taken would decrease to Lot 12-02300 from $10,000.00 to $0.00 and the allowance for land taken to Lot 12-02500 would increase from $12,500.00 to $44,700.00. Also the allowance for damages would decrease for Lot 12-02300 from $130.00 to $0.00 and the allowance for damages would increase for Lot 12-02500 from $170.00 to 300.00.

4. Increasing the estimated value of GST from $3,425 to $4,975.

5. The total estimate of the project be reduced from $295,250.00 to $292,170.00 to reflect the reduced cost of construction and the increased cost of allowances.

6. The Schedule of Assessment be amended to reflect the above noted reduction in the total project cost. The Developer (Siljon Investments Inc.) is paying the full cost of this project. The lands proposed to be developed were at one time owned by Willut Developments Ltd. Said lands were then purchased by Siljon Investments Inc. with exception of 10 lots (No. 46 to 55 inclusive) that remained under ownership of Willut Developments Ltd. A condition of the land sale was that Siljon Investments Inc. would pay the total cost of construction. Accordingly lots (No. 46 to 55) are shown as being owned by Willut Developments, however, the assessments shown for these 10 lots is being paid by Siljon Investments Inc.

7. The demolition of the existing cabin on Lot 12-02500 be undertaken as part of the drainage works and that said demolition be included as part of the cost of constructing the storm drain.

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. 16-94 but to do so on terms. Therefore the Tribunal orders that:

1. The Clerk of the Town of Lakeshore is to prepare a notice to landowners advising them of the request to the Tribunal to order a modification to By-law No. 16-94 concerning the Discoverer Outlet Drain. The notice to include a copy of this decision of the Tribunal and a copy of the amended engineer’s report of the Discoverer Outlet Drain, dated April 28, 1994 (amended January 18, 1999) and signed by Lou Zarlenga, P. Eng.

2. The Clerk of the Town of Lakeshore is to prepare a By-law to modify By law 16-94 Discoverer Outlet Drain to incorporate the engineer’s report titled Amended Drainage Report, dated April 28, 1994 (amended January 18, 1999) and signed by Lou Zarlenga, P. Eng.

3. After the By-law has been prepared and given two readings by the Council of the Town of Lakeshore, 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 copy of this decision and a notice stating that any owner so notified can appeal directly to the Tribunal by filing a notice of appeal with the Clerk of Town of Lakeshore within 14 days of the mailing of the notices.

4. If no appeals are filed within 14 days of the mailing of the notices specified in Order 3, the Clerk is directed to replace the copy of the engineer’s report on the Discoverer Outlet Drain, dated April 28, 1994, in By-law No. 16-94 with a copy of the amended drainage report, dated April 29, 1994 (amended January 18, 1999). The assessment schedule in By-Law No. 16-94 is to be modified to reflect the assessments in the amended engineer’s report dated April 29, 1994 (amended January 18, 1999).

5. The report dated April 28, 1994 (amended January 18, 1999), will henceforth define the Discoverer Outlet Drain for purposes of repair and maintenance under the Act.

6. 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 London, Ontario this 29th day of January, 1999.