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:
Donald Carroll Drain Municipality of Dutton/Dunwich
Donald Carroll Drain (RE) 1999 ONAFRAAT 8
STATUTE:
Drainage Act
HEARING:
March 16, 1999
DATE OF DECISION:
March 26, 1999
1999-08
NEUTRAL CITATION:
1999 ONAFRAAT 8
Donald Carroll Drain Municipality of Dutton/Dunwich
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF:
An appeal to the Ontario Drainage Tribunal by Donald and Margaret Carroll and L. George Smith under Section 48 of the Drainage Act from the August 28, 1998 engineer’s report with respect to the Donald Carroll Drain, Municipality of Dutton/Dunwich.
Before:
John Taylor, Vice- Chair; Herb Todgham, Vice-Chair; Moira Connell, Member.
Appearances:
L. George Smith, appellant, in person.
Donald Carroll, appellant, in person.
N. Little, assessed owner, in person.
David Durham, assessed owner, in person.
Brian Smith, assessed owner, in person.
R. Dodds, assessed owner, in person.
Wybe Cnossen, P. Eng., on behalf of the respondent, the Municipality of Dutton/Dunwich.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Municipality of Dutton/Dunwich in Dutton, Ontario on Tuesday, March 16, 1999. Donald and Margaret Carroll and L. George Smith appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the August 28, 1998 report of Wybe Cnossen with respect to the Donald Carroll Drain in the Municipality of Dutton/Dunwich (the Municipality).
Ken Loveland, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.
Section 48 of the Act is as follows:
- (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.
- (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).
R.S.O. 1990, chap. D.17, s. 48.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the August 28, 1998 engineer’s report on the Donald Carroll Drain, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
The Background
The Donald Carroll Drain is an existing drain under the Act. The proposed work is authorised under Section 78 of the Act pursuant to a request for improvement to the existing drain signed by one landowner. The report proposes construction of a tile drain to supplement the capacity of the existing drainage works serving parts of Lots A, B and C in Concessions 5 South of A, A and Gore North of A, in the Municipality.
The area is currently serviced by the following drainge systems as shown on the attached plan.
the Smith Drain (1930) which initially served most of the E ½ Lot A and all of Lot B in Gore N of A (South of Highway No. 401) and Concession A;
the Russell Kerr Drain (1949) consisting of mostly 8, 7, and 6 inch diameter drain originally running along the Lot A/B fence line in Concession A to its head at Shackleton Street;
the Durham Drain (1996) in the E ½ of Lot A;
the Donald Carroll Drain (1959) which originally outletted into the McGeachy Drain some 100 meters north of Highway No. 401 beside the Smith Drain. It consists of 300 mm diameter tile across Gore N of A, and in Concession A, 250 mm tile across N ½ Lot B and 200 mm tile across S ½ Lot B and a Branch No.