Wignell W2 Municipal Drain (Re), 1999 ONAFRAAT 32

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:

Wignell W2 Municipal Drain City of Port Colborne

Wignell W2 Municipal Drain (RE) 1999 ONAFRAAT 32

STATUTE:

Drainage Act

HEARING:

December 14, 1999

DATE OF DECISION:

December 15, 1999

1999-32

NEUTRAL CITATION:

1999 ONAFRAAT 32

Wignell W2 Municipal Drain City of Port Colborne

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 City of Port Colborne requesting a modification to City By Law No. 3741/27/99 concerning the Wignell W2 Municipal Drain in the City of Port Colborne.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Gertrude Levac, Member.

DECISION OF THE TRIBUNAL

This application was considered by the Tribunal on December 14, 1999 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

By report dated February 19, 1999, Wiebe Engineering recommended to the City of Port Colborne the relocation of a portion of the Wignell W2 Drain and the abandonment of a portion of the drain that is being supplanted by the proposed new work. All of the proposed work is being undertaken on lands owned by Port Colborne Quarries Ltd. and entirely at the cost of Port Colborne Quarries Ltd.

In general terms, the proposed work will allow the existing drain to be relocated within the lands operated as a quarry so the drainage will fit into the final quarry configuration and subsequent rehabilitation plan. After the By-law was passed, but prior to the construction, Port Colborne asked that the work be relocated on their property to reduce the amount of earth that had to be moved. The original proposal had a berm constructed along the quarry property line and the drain constructed on the quarry side of the berm. When the owners were investigating the work necessary to construct the drain, they determined that a large amount of fill material would have to be moved and asked that the drain be relocated to the boundary line with the berm material on the quarry side of the berm. This proposal has been discussed with the adjacent owners and none have objected to the work. The City of Port Colborne circulated a notice to all personas assessed on this portion of the Wignell W2 Drain informing them of the proposal and requesting any concerns or appeals to be filed with the City Clerk by November 26, 1999. No concerns were filed with the Clerk.

In general terms this will have the effect of:

1. The three meter high berm will be relocated north and west of the new channel, as opposed to east or south as originally proposed.

2. The new channel will be located immediately inside the property line of Port Colborne Quarries Ltd., as opposed to inside the berm as originally proposed.

3. The channel in the south east corner of the property of Port Colborne Quarries Ltd. (Roll Number 4-4-115) is relocated closer to the boundary line of property Roll Number 4-4-112-05 than originally proposed.

4. None of the verbiage of the report needs to be changed to accomplish these changes, it is only necessary to amend the plan and profile to show the revised location and cross section of the work.

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. 3741/27/99 but to do so on terms. Therefore the Tribunal orders that:

1. The engineer is directed to amend the report, dated February 19, 1999, by replacing Drawing No. 1 with revised drawing Number 1, dated February 19, 1999, Revision Number 3, finally revised November 19, 1999.

2. The revised drawing is to show the original recommended alignment “x” out with the revised alignment clearly marked.

3. The Clerk of the City of Port Colborne is to replace Drawing Number 1 with the revised drawing Number 1, dated February 19, 1999, Revision Number 3, finally revised November 19, 1999, in By Law No. 3741/27/99, and place a copy of this decision in the file with the By Law.

4. To avoid confusion in the future, the Clerk is to send a copy of revised Drawing Number 1 to all persons who received a copy of the original engineer’s report along with a notice to remove the drawing originally sent with the report, discard it and replace it with drawing Number 1, dated February 19, 1999, Revision Number 3, finally revised November 19, 1999.

5. The report, dated February 19, 1999, together with the revised drawing Number 1, dated February 19, 1999, Revision Number 3, finally revised November 19, 1999, will henceforth define this portion of the Wignell W2 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 Hawkesbury, Ontario this 15^th day of December, 1999.