Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone 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:
Cooks Drain
City of Port Colborne
Cooks Drain (RE) 2000 ONAFRAAT 26
STATUTE:
Drainage Act
HEARING:
July 27, 2000
DATE OF DECISION:
October 12, 2000
2000-26
NEUTRAL CITATION:
2000 ONAFRAAT 26
Cooks 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 appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Julie and Steve Gauthier and Fernand Gauthier under Section 54 of the Drainage Act from the decision of the Court of Revision and by Julie Gauthier under Section 48(1)(c) - allowances – from the engineer’s report on the Cook’s Drain, City of Port Colborne.
Before:
Andrew Osyany, Vice-Chair; Jack Young Vice-Chair; Anna Andres, Member; Russell Piper, Member.
Appearances:
Fernand Gauthier, appellant.
Garnet McDiarmid, appellant.
Bryon Wiebe, P. Eng., on behalf of the City of Port Colborne.
Cam Milne, C.E.T., on behalf of the City of Port Colborne.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the City of Port Colborne (the City), in Port Colborne Ontario on Thursday July 27, 2000. Julie and Steve Gauthier and Fernand Gauthier appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on the Cook’s Drain. Julie Gauthier also appealed under Section 48(1)(c) – allowances – from the engineer’s report on the Cook’s Drain, City of Port Colborne.
Janet Beckett, Clerk of the City 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.
Section 54 of the Act is as follows:
- (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.
(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.
. (3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.
R.S.O. 1990, chap. D17, s. 54.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the February 18, 2000 engineer’s report signed by Bryon Wiebe on the Cook’s Municipal Drain, City of Port Colborne, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.
The Background
According to Mr. Wiebe’s report, the Cook’s Award Ditch was established as an award drain in 1889. It provided outlet for part of Concession 4 in the geographic township of Humberstone. The land in the area is flat and over time the Award Drains were modified and redirected so that the portion of the Cook’s Award Drain still in use provides outlet for lots 28, 29 and 30, Concession 4, in the geographic township of Humberstone. The Cook’s Award Ditch was cleaned from the “Government Back Ditch” to the present Port Colborne Harbour Line Railway right-of-way in 1985, without an engineer’s report. The proposed Cook’s Municipal Drain is located in Lots 28 and 29, Concession 4 in the geographic township of Humberstone and includes the part of the drain is the Cook’s Award Ditch that was cleaned in 1985.
The Cook’s Municipal Drain is located in the north west area of the City of Port Colborne; west of the abandoned Welland Ship Canal, south of Forkes Road, and east of Highway 58. The upstream limit of the drain is located adjacent to the north limit of Property Roll No. 39-160-35 (Pitt), on the Port Colborne Harbour Line Railway. The drain then flows southerly along the east railway ditch to the property line between Property Roll Nos. 39-153 (Lewis, L ) and 39-154 (Marchand), then turns easterly along the line between those properties, crossing Regional Road 80 (Elm Street), continuing along the property line between Property Roll Nos. 39-148 (McDiarmid) and 39-150 (Denbesten), crossing the abandoned canal’s west service road, and outletting into the abandoned Welland Canal.
This drainage project was initiated as a result of two petitions signed by owners of lands located in Parts of Lot 29, Concession 4. The first Petition was from the lands known as Part 1 of Reference Plan 59R-9922 (roll numbers 39-160 – now 7 lots, and roll 39-165) owned by Black Creek Retirement Parks Ltd. at the time of the petition, and the second was from the owners of Property Roll Nos. 39-161 (Dowe ), 39-153 (Lewis, L.), and 39-162 (Olynick ). The area requiring drainage, as determined by the engineer, is the northerly two-thirds of Lot 29, Concession 4 (in the City of Port Colborne) located between Elm Street (Regional Road 80) and the Port Colborne Harbour Line Railway. (see attached plan)
The majority of the land area within this drainage basin is used for agricultural purposes, however, there are a number of residential properties within the watershed, mainly located along the west side of Elm Street. There is no municipal sewage collection system in the area, and according to the evidence presented at the hearing, the residential lots utilize septic beds for sewage disposal.
The work described in the engineer’s report is a clean out of the existing Cook’s Award Drain channel and the east railroad ditch. The total drainage area of the Cook’s Municipal Drain is approximately 128 hectares (316 acres) in size. The total cost of the project is estimated at $35,600. Of this total cost the engineer assessed $29,832 as benefit and $5,769 as outlet liability.
The Issue
The issues before the Tribunal are:
Are the assessments for the Cook’s Municipal Drain as modified by the Court of Revision appropriate?
Are the allowances provided by the engineer in his report adequate?
The Evidence and the Findings
Bryon Wiebe, P. Eng., of Wiebe Engineering Limited, the engineer who prepared the February 18, 2000 report on the Cook’s Municipal Drain, described the extent of the work and told the Tribunal that he viewed this project as a statutory benefit drain. He said that the work is a clean out of the existing Cook’s Award drain from the outlet into the Welland Canal, westerly to Elm Street, across Elm, then the length of a residential lot to the Port Colborne Harbor Line Railway, the along the east railroad ditch. The existing award drain from the railroad east to the outlet in the canal has sufficient depth but the east railroad ditch requires deepening . The railway ditch has no standing under the Act. The work is required because of the creation of eight residential lots fronting on the west side of Elm Street. A condition of subdivision was that the owner (Black Creek Retirement Parks Ltd.) had to secure an outlet under the Act for those lots. That is what is driving this process.
He said that the lands assessed for statutory benefit in the report include the eight new lots, the railway, Elm Street North, and a slight amount of abutting benefit to the lands that abut the drain.
He assessed each of the new lots $2000 for statutory benefit. This covered all of the overhead cost and about half of the cost of the construction work that needs to be done from the point where the drain turns north along the railroad to the head of the drain.
Mr. Wiebe explained that the Court of Revision decided that the existing lots abutting the Port Colborne Harbour Line Railway ditch should also be assessed statutory benefit. The Court of Revision directed that the large remnant lot owned by Black Creek Retirement Parks Ltd. Be assessed $2,000 for statutory benefit. The remaining residential lots along Elm Street were directed to be assessed statutory benefit based on the area of the lot. The result is that the seven new lots had the statutory benefit assessment reduced by $700 to $800 and the existing residential lots were assessed an amount equivalent to the reduction on the new lots.
The outlet liability cost of $5,769 was assessed using equivalent acres in the normal manner. He provided that the future maintenance of the drain should be charged on the basis of outlet liability assessment only.
Garnet McDiarmid, an assessed owner, spoke on behalf of Fernand Gauthier, the appellant. Mr. McDiarmid told the Tribunal that he owns the land abutting the drain on the east side of Elm Street between the street and the canal. He said there is a berm running north and south between the railway ditch and the properties being developed. It is difficult to understand how the ditch benefits these property as the berm prevents the runoff from getting to the ditch.
Mr. McDiarmid told the Tribunal that:
The drain is always dry in the summer and this is an indication that the drain is working.
There is to be no alteration in the level of the drain under Elm Street. If the drain west of Elm is deepened the water will not get through the road culvert.
Mr. Gauthier’s property fronts on Elm Street and ends at the railway. The land has not been flooded so no benefit is afforded to him. This project is an imposition to him not a benefit.
Mr. Gauthier told the Tribunal that he does not need the ditch. He said that the water from the new lots cannot cross the berm and therefore the drain will not help those lots either. He suggested that the water from the new lots should be brought to Elm Street, then down the road ditch to the Cook’s Award Drain
In response to questions Mr. Gauthier said:
He owns the property identified as roll number 39-155.
None of his land drains to the railway ditch. He takes the water from his land to the Elm Street road ditch. The dirt from the railway ditch was piled on the fence line so the land there is higher than the rest of his lot.
The berm between the new lots and the railroad was put there when the developer sold the lots, perhaps three or four years ago.
The general drainage on the lots is from the railroad to Elm Street.
He has lived on this lot for more than thirteen years.
The railroad ditch has always been there, maybe for a hundred years,
The lots have no municipal water or sewers. Water supply is from cisterns. Sewage disposal is in septic tanks.
The Cook’s Award Drain was cleaned 15 or 16 years ago and that was the first time it has been touched in years.
Lena Lewis told the Tribunal that she has lived at this location since 1950 and she is one of the people who signed the petition. She signed not because she needed the drain improved but because it was a community effort to improve the situation on Elm Street for all home owners. She said she did not realize the full implications of the matter and did not realize how extensive the project would be. She said she is concerned about deepening the ditch on her property. The last time the ditch was deepened the ditch bank slid into the ditch. She said she now has trees leaning into the ditch that she used to mow around. She told the Tribunal that she does not understand the assessment but her assessment is not too high so she is not concerned about it.
Mr. Cam Milne, from Wiebe Engineering, told the Tribunal that Mrs. Lewis’s concern over bank erosion relates to the work last done on the drain. The current work is a bottom clean out only the banks are not to be touched so should remain stable. Mr. Milne said that the Section 29 allowances paid for a working space along the side of the drain. Since the channel already exists there was no allowance for the width of the drain. Allowances were based on $500 per acre for a 10 m right of way. The erosion control buffer strip along the drain is included in this width so one allowance covered both of these items. His view was that this land is not taken from the owners, the use is merely restricted to permanent vegetation therefore it is not necessary to provide the full land value of $2,000 to $3,000 per acre.
Mr. Milne said that for damages to lands and crops from disposal of materials ( Section 30 allowances) he used a figure of $250 per acre on the area that the materials would be spread over.
He said that for calculating the equivalent acres he used the following runoff factors:
Bush land 1
Farm and residential land 2
Roads and railroad land 8
In response to questions Mr. Milne said that the drainage from the Nugent property flows south to the Cook’s Drain at the point where the Cook’s Drain intersects the railway ditch. There is a twin culvert under the railroad at that point. Also some of this water and water to the north flows through the railway in a culvert upstream of station 1+400 then down the unimproved railroad ditch to empty into the Cook’s Drain.
Mr. René Landry, drainage superintendent for the City, told the Tribunal that the City now owns the railroad property. The railroad had stopped being used for a period of time and was reestablished in the 1980’s. At that time the railroad brought water into a ditch running east through lot roll number 39-165 (Black Creek Retirement Parks Ltd.) to Elm Street. He said there is a high point in the railroad ditch south of this outlet that has to be removed to assist in the drainage of the new lots. Once the drain in the report is constructed the City, as owner of the railroad will extend the drain north on its property to collect the water crossing under the culvert at about station 1+430 and bring it to the head of the drain at station 1+260. This extension of the drain will pick up the water from the northern section of the Nugent property as well at the water that was running through the ditch across roll number 39-165 (Black Creek Retirement Parks Ltd.) to Elm Street and bring all of this water to the Cook’s Drain. He said that, in his opinion, this would reduce the flooding in the residential lots roll number 39-161 (Dowe) through 39-164 (Marchand). When questioned on why the Cook’s Drain was not extended to Station 1+430 Mr. Landry told the Tribunal he thought that the project was limited to the downstream property limit of property roll number 39-165 (Black Creek Retirement Parks Ltd.).
In his reply evidence Mr. Wiebe told the Tribunal that there are three locations where the water from the new lots can cross the berm – at both ends and the middle. The lot grading plans for these properties have the back part of the lots draining west to the Cook’s Drain and the front draining to the Elm Street road ditch then down the west side of Elm Street to the Cook’ Drain crossing then into the drain and to the Canal. All of the water from these lots eventually gets to the Cook’s Drain.
He said the only deepening on the drain is in the railroad ditch which must be deepened to provide outlet for the new lots.
He told the Tribunal that he was in a difficult position with respect to the assessment on Mr. Gauthier. In his report Mr. Gauthier was assessed for $12 for outlet liability and he feels this is a fair assessment. The Court of Revision increased this assessment to $791. He does not support the decision of the Court of Revision. His original statutory benefit assessments to the lots totaled $16,000. The Court directed that the remnant parcel, 39-165, (Black Creek Retirement Parks Ltd.) was to be assessed at $2000, the remaining $14,000 was distributed over the seven new lots plus the lots to the south of the new subdivision prorated on the area of the lots. Mr. Wiebe said that distributing benefit of the basis of area is not equitable.
In response to questions Mr. Wiebe told the Tribunal:
He did not assess statutory benefit to the existing lots because he felt no benefit was provided. These lots had their drainage looked after in the award drain.
He estimated that ¼ of the area of the existing lots would flow to the newly deepened drain and this might provide a minor benefit.
He estimated that from one third to 40% of the new lots drains to the deepened railroad drain.
No one questioned the design of the project at the meeting to consider the report or at the Court of Revision.
In his opinion the petition did not give him authority to extend the drain upstream of property roll number 39-165 (Black Creek Retirement Parks Ltd.).
When questioned on the details of the outlet liability calculations Mr. Wiebe told the Tribunal that neither he nor Mr. Milne had brought the detailed calculation sheets with them so they could not answer the Tribunal’s questions. The Tribunal was disturbed by this response since the Tribunal expects the engineer to be prepared to respond to detailed questions on assessment when an assessment appeal is the subject of the hearing. When the Tribunal pointed out that the Nugent property with 38% of the drainage area is assessed 30% of the outlet liability assessment for the project and thus 30% of the total cost of any maintenance yet this property still does not have a legal outlet for its drainage water Mr. Wiebe was unable to respond to why this was the case.
The Tribunal examined the evidence filed and the submissions made. The Tribunal agrees with the engineer that the purpose of this drain is mainly to benefit the development of lots 39-160-05 (Black Creek Retirement Parks Ltd.) through 39-165 (Black Creek Retirement Parks Ltd.). However the Tribunal recognizes two distinct statutory benefits in this project – the benefit provided to the newly developed lots that increases the value of these properties and the statutory benefit that provision of a legal outlet brings to each property that abuts the drain. The Tribunal agrees with the division of cost as provided by the engineer and that cost for this project ought to be approximately 80% statutory benefit and 20% outlet liability.
The engineer determined that the area requiring drainage was the northern portion of lot 29 Concession 4 in the geographic township of Humberstone but he did not provide a solution for all of this area. The petitioners owning the lots identified as roll numbers 39-165 (Black Creek Retirement Parks Ltd.), 39-161 (Dowe ) and 39-162 (Olynick) are upstream from the termination of the proposed work and receive no relief from the flooding they are experiencing. In the opinion of the Tribunal the project should extend to approximately Station 1+430 – the northerly cross culvert under the railway – thus intercepting the water flowing south from the City of Welland and east from the northerly portion of the Nugent land. Once this water is cut off from flowing east the owners of Lot 39-161 (Dowe ) and 39-162 (Olynick) should experience a reduction in flooding from the old ditch on lot 39-165 (Black Creek Retirement Parks Ltd.) that the railroad uses to bring its water to the Elm Street road ditch. The Tribunal will order this extension with the associated increase in the cost of the work. The cost of the extension is to be assessed in the normal way.
Having settled the work to be done the Tribunal then turned to the mater of assessment. The Tribunal is disturbed by the fact that the engineer could not answer questions on how the outlet liability assessments were calculated and did not bring to the hearing his files so he could look up this information. Mr. Wiebe has been before the Tribunal on many occasions in the past and therefore should expect these questions. As a result the Tribunal decided not to allow the engineering cost for preparation and attendance at the hearing to be charged to the drain.
The Tribunal was not satisfied that the outlet liability calculations were appropriate. For example the individual lots are assessed outlet liability at $50 to $55 per hectare while the Nugent land is assessed outlet liability at $41.63 per hectare. The individual lots use most of the drain, but the Nugent lands use a small part of the drain. This does not appear to be a sufficient difference, however there is insufficient information for the Tribunal to make adjustments. Since the future maintenance of the drain is proposed to be assessed on the basis of the outlet liability assessments these assessments ought to be reviewed by the engineer.
The benefit assessments should be reviewed, retaining approximately the same statutory benefit/outlet liability ratio. The seven development properties should be assessed approximately 30% of the statutory benefit assessments as a benefit for increased value of these lots in the development process. The remaining statutory benefit assessment should be distributed in the normal manner over all of the abutting properties (including the seven development properties and the properties along the top extension of the project) as a benefit for increased direct drainage, and over those properties that receive benefit by cutoff.
In all cases the Tribunal must consider the cost that is added to the work by a Tribunal hearing and balance the right for all parties assessed as part of a proposed work to a fair and unbiased hearing against the additional charges that a hearing places on the neighbours of those that appeal. The appellants Julie and Steve Gauthier did not appear at the hearing, did not send a representative to speak on their behalf, did not contact the municipality prior to or during the hearing with an explanation of their absence and did not withdraw their appeal. There is a cost for the municipality, the engineer and the Tribunal to prepare to hear this appeal. Appellants are informed, through the “Guidelines for Preparation for a Tribunal Hearing” that were sent to them by the Clerk of the Tribunal along with their appellant statement, that the Tribunal may award costs of a hearing. The Tribunal is reluctant to award costs in cases where an appellant has a genuinely held grievance on the technicalities of the report or the assessment of the cost of the work in the report. However when an appeal is filed there is a responsibility on the appellant to either carry through with the appeal or to advise the municipality that the appeal is being abandoned. Appellants who fail to do so will find themselves held responsible for at least part of the cost of the hearing. In this case, Mr. Fernand Gauthier appeared and argued his appeal so the entire day was not thrown away. In the circumstances, the Tribunal will order costs of $250 against the appellants Julie and Steve Gauthier to be paid to the municipality and credited to the account of the drainage project.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders that:
The engineer’s report dated February 18, 2000, creating the Cook’s Municipal Drain, City of Port Colborne, be referred back to the engineer for further consideration of the assessments to take into account the Tribunal comments concerning the extent of the work and the division of assessment.
The engineer shall file the reconsidered report with the Council of the City of Port Colborne as soon as it is completed and by October 31st, 2000 at the latest.
The Council of the City of Port Colborne shall circulate the report and conduct a meeting to consider the report within 30 days of the date of filing of the report.
If the Council fails to meet and to consider the report within the 30 days, or having considered the report, fails to adopt it by provisional bylaw, then any petitioner can appeal to the Tribunal within 50 days of the date the report is filed.
If Council adopts the report, any assessed landowner, wishing to appeal as contemplated under Section 48 or 54 of the Drainage Act, can appeal directly to the Tribunal within 30 days of the Council’s adoption of the report by filing a Notice of Appeal in writing with the Clerk of the City of Port Colborne. The Clerk shall forthwith forward all appeals to the Tribunal after the 30 day time limit for appealing has passed.
If there are no appeals, the Council of the City of Port Colborne may pass the bylaw and proceed, in accordance with the provisions of the Drainage Act, to construct the work as described in the revised report.
This panel of the Tribunal remains seized of these appeals and the issues raised by these appeals, and will also hear any appeals arising out of the revised report.
The engineering cost chargeable to the drain, for the revisions to the report including attendance at Council and meetings required by the Act (exclusive of Tribunal hearings), shall not exceed the sum of $1,000.
The Tribunal assesses the appellants Julie and Steve Gauthier $250.00 in costs to partially offset the costs of this hearing. This $250.00 to be paid to the City within 45 days of receipt of this decision and is to be credited to the account of the drain. If unpaid within the 45 day period, the council is directed to add $250.00 to the taxes in arrears on property identified as Roll Number 040 039016030 (S. and J. Gauthier). This $250.00 is not to be considered eligible for grants.
The fees of the engineer for preparation and attendance at this hearing shall not form part of the cost of the drainage works.
The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
The reason for this decision is that the Tribunal was convinced by the appellant that his assessment as adjusted by the Court of Revision was too high and ought to be reconsidered.
Dated at Shelburne, Ontario this 31st day of August, 2000
Cook’s 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 appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Julie and Steve Gauthier and Fernand Gauthier under Section 54 of the Drainage Act from the decision of the Court of Revision and by Julie Gauthier under Section 48(1)(c) - allowances – from the engineer’s report on the Cook’s Drain, City of Port Colborne.
Before:
Andrew Osyany, Vice-Chair; Jack Young Vice-Chair; Anna Andres, Member; Russell Piper, Member.
RECONSIDERATION OF THE DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the City of Port Colborne (the City), in Port Colborne Ontario on Thursday July 27, 2000. Julie and Steve Gauthier and Fernand Gauthier appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on the Cook’s Drain. Julie Gauthier also appealed under Section 48(1)(c) – allowances – from the engineer’s report on the Cook’s Drain, City of Port Colborne.
The Tribunal released a decision on this appeal on August 31, 2000. In its decision, the Tribunal ordered that:
The engineer’s report dated February 18, 2000, creating the Cook’s Municipal Drain, City of Port Colborne, be referred back to the engineer for further consideration of the assessments to take into account the Tribunal comments concerning the extent of the work and the division of assessment.
The engineer shall file the reconsidered report with the Council of the City of Port Colborne as soon as it is completed and by October 31st, 2000 at the latest.
The Council of the City of Port Colborne shall circulate the report and conduct a meeting to consider the report within 30 days of the date of filing of the report.
If the Council fails to meet and to consider the report within the 30 days, or having considered the report, fails to adopt it by provisional bylaw, then any petitioner can appeal to the Tribunal within 50 days of the date the report is filed.
If Council adopts the report, any assessed landowner, wishing to appeal as contemplated under Section 48 or 54 of the Drainage Act, can appeal directly to the Tribunal within 30 days of the Council’s adoption of the report by filing a Notice of Appeal in writing with the Clerk of the City of Port Colborne. The Clerk shall forthwith forward all appeals to the Tribunal after the 30 day time limit for appealing has passed.
If there are no appeals, the Council of the City of Port Colborne may pass the bylaw and proceed, in accordance with the provisions of the Drainage Act, to construct the work as described in the revised report.
This panel of the Tribunal remains seized of these appeals and the issues raised by these appeals, and will also hear any appeals arising out of the revised report.
The engineering cost chargeable to the drain, for the revisions to the report including attendance at Council and meetings required by the Act (exclusive of Tribunal hearings), shall not exceed the sum of $1,000.
The Tribunal assesses the appellants Julie and Steve Gauthier $250.00 in costs to partially offset the costs of this hearing. This $250.00 to be paid to the City within 45 days of receipt of this decision and is to be credited to the account of the drain. If unpaid within the 45 day period, the council is directed to add $250.00 to the taxes in arrears on property identified as Roll Number 040 039016030 (S. and J. Gauthier). This $250.00 is not to be considered eligible for grants.
The fees of the engineer for preparation and attendance at this hearing shall not form part of the cost of the drainage works.
The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
(Emphasis added.)
Subsequent to the release of this decision the Tribunal received a request from the Council of the City of Port Colborne that it review Clause 3 of this decision. The Council was concerned with the timing of the meeting to consider the revised engineer’s report, in light of Municipal Elections scheduled for November 13, 2000. The Council asked that it be given more time to schedule the meeting.
ORDER OF THE TRIBUNAL
After careful consideration of the request the Tribunal has decided to amend its order dated August 31, 2000. Clause 3 and clause 4 of that order are amended to read as follows:
The engineer shall file the reconsidered report with the Council of the City of Port Colborne as soon as it is completed and by November 30th, 2000 at the latest.
The Council of the City of Port Colborne shall circulate the report and conduct a meeting to consider the report by February 28, 2001.
If the Council fails to meet and to consider the report by February 28, 2001, or having considered the report, fails to adopt it by provisional bylaw, then any petitioner can appeal to the Tribunal provided such an appeal is initiated by March 20, 2001.
The balance of the order is unchanged.
The reason for this decision is that the Tribunal was convinced that the meeting could be delayed until such time as the Municipal Elections were completed and the new Council was sworn in.
Dated at Shelburne, Ontario this 12th day of October, 2000