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:
Cartmale Drain Township of Zorra
Cartmale Drain (RE) 2000 ONAFRAAT 12
STATUTE:
Drainage Act
HEARING:
June 14, 2000
June 19, 2000
2000-12
NEUTRAL CITATION:
2000 ONAFRAAT 12
Cartmale Drain Township of Zorra
AND IN THE MATTER OF:
An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by the Township of Zorra requesting a modification to Township Bylaw No. 26-999 the Cartmale Drain in the Township of Zorra.
Before:
John Taylor, Vice-Chair; Bill Sears, Vice-Chair; Gertrude Levac, Member.
DECISION OF THE TRIBUNAL
This application was considered by the Tribunal on June 14, 2000. 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:
- (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
The Township of Zorra passed Bylaw No. 26-99 on May 4, 1999 adopting a report prepared by M. P. DeVos, P. Eng., dated February 26, 1999 on the Cartmale Drain. The report provided for the reconstruction of both the existing open (827 meters) and closed (300 meters) portions of the drain as well as the construction of a new branch drain.
During construction it was discovered that the Bell Canada fibre optics cable had been laid down the centre of the portion of the existing Cartmale drain that ran westerly along the northerly road ditch of County Road 2 approximately 400 meters west of the intersection of County Road 2 and County Road 6. This cable prevented the proposed work from being constructed in the existing location of the drain for the upper 115 meters of the Cartmale Main Drain. As a result, the Cartmale Main Drain open portion between Stations 0+480 (the point where the drain turns north from the road allowance and flows northerly through lot 1 Concession 4) and Station 0+595 (the upper end of the Cartmale Main Drain Open portion) was relocated onto private land just north of the northerly limit of the road allowance for County Road 2.
The cost of the relocation is:
Allowance (Section 29) for land used for the drain $ 600.00
Engineering (including GST) $ 824.00
Construction $1,887.00
Total $3,311.00
This increase in cost is assessed to Bell Canada under Section 26 of the Act and Bell Canada has agreed to pay this amount.
No other changes in the report, the schedule of assessment or allowances is required.
ORDER OF THE TRIBUNAL
After careful consideration, and believing the submissions of the Township to be true, the Tribunal decided to use its authority under Section 51 of the Drainage Act and approve the requested amendments to Bylaw 26-99 but to do so on terms. Therefore the Tribunal orders that:
The engineer is directed to amend Cartmale Drain 1999 drawing number 1 of 1 dated February 26, 1999 to reflect the new location of the main drain from station 0+480 to Station 0+595 and date this revised drawing as “Revised by Addendum April 10, 2000.”
The Clerk of the Township Zorra is to prepare a Bylaw to modify Bylaw 26-99 Cartmale Drain to incorporate the engineer’s revised drawing and the inclusion of the allowances under Section 29 of the Drainage Act to the appropriate landowner of $600 and an assessment under Section 26 of the Drainage Act against Bell Canada totalling $3,311.00 to cover the increase in the cost of the work required to relocate the drain to avoid the fibre optic cable.
After the Bylaw has been passed by the Council of Zorra a copy of the revised drawing Number 1 of 1 is to be sent to each party entitled to a copy of the Provisional Bylaw under Section 46 along with a letter explaining the changes made to the drain and a request to replace the drawing dated February 26, 1999 with the drawing marked revised April 10, 2000.
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 Tilbury Ontario this 19th day of June, 2000.