Travis Drain (Re), 2000 ONAFRAAT 3

Agriculture, Food and Rural Affairs Appeal Tribunal

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Travis Drain Township of Chatham-Kent

Travis Drain (RE) 2000 ONAFRAAT 3

STATUTE: Drainage Act

HEARING: February 1, 2000

DATE OF DECISION: February 1, 2000

2000-03

NEUTRAL CITATION: 2000 ONAFRAAT 3

Travis Drain Township of Chatham-Kent

AND IN THE MATTER OF: An application to the Ontario Drainage Tribunal by the Municipality of Chatham-Kent requesting a modification to Township By Law No. 117/1999 for the repair and improvement of the Travis Drain in the Township of Chatham-Kent (formerly the Township of Romney).

Before: Vern Spencer, Chair; Andrew Osyany, Vice-Chair; Wm. Sears, Vice-Chair, Andrew Koopal, Member.

DECISION OF THE TRIBUNAL

This application was considered under Sub-Section 51(1) of the Drainage Act (the Act) by the Tribunal on February 1, 2000. 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

On November 12, 1998 the Municipality of Chatham-Kent (the Municipality) instructed the engineering firm of Todgham & Case Associates Inc. (the Engineer)to investigate and report on the proposed repair and improvement to the Travis Drain. An onsite meeting was held November 25, 1998 at which time it was determined that two new access culverts should be installed to serve the properties of J. Foster and K. Dawson.. A report under Section 78 of the Act dated February 22, 1999 was prepared, and filed with the Municipality.

The report recommended the reconstruction of the access culvert currently serving the J. Foster property, by installing a 17m long, 1000mm diameter corrugated steel pipe, the sloped ends of which, would be protected with graded stone rip rap. It was recommended that a new culvert be installed to provide access to the K. Dawson property, using a 17m long, 1600 mm diameter corrugated steel pipe.

After the report had been adopted Mr. Foster requested that the Municipality call tenders based on the proposal of rip rap protected sloped end treatment on his culvert and also based on pre-cast concrete headwalls instead of the sloped end walls. The Municipality did so and the tendered cost of the pre-cast end wall treatment was $2500 more than the rip rap protected sloped end wall. Mr. Foster agreed to accept the entire increase in the cost as a special benefit assessment. The Municipality has asked the Tribunal to modify the report to incorporate this change in construction detail and has supplied the Tribunal with an updated report titled “Travis Drain (J. Foster & K. Dawson Culvert) Municipality of Chatham-Kent (Former Township of Romney).

In general terms this proposal will have the effect of:

• providing access to the remnant agricultural lands as Mr. Dawson plans to sever the house lot from the agricultural property.
• Replacing the deteriorated culvert presently serving the J. Foster property by widening the top width and increasing the structural soundness of the culvert for use by agricultural implements.

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 117/1999 but to do so on terms. Therefore the Tribunal orders that:

1. Before the passing of by-law 117/1999 The Clerk of the Township of Chatham-Kent is to insert the following paragraph: “Whereas, after the adoption of the engineer’s report by this bylaw but prior to the passing of the by-law Mr. Foster requested that the end treatment on his culvert be changed to pre-cast concrete headwalls instead of rip-rap protected sloped end treatment and Whereas, the Agriculture Food and Rural Affairs Appeal Tribunal has ordered that the by-law be amended to permit this change, Therefore, the report of the engineer dated February 22, 1999 as previously referred to in this by-law is replaced in this by-law by a report titled “Travis Drain (J. Foster & K. Dawson Culvert) Municipality of Chatham-Kent (Former Township of Romney) prepared by Todgham and Case Associates Incorporated and signed by E. P. Dries, P. Eng., dated February 22, 1999 REVISED January 10, 2000 and the schedule of assessment in this report shall be the schedule of assessment for the work authorized by this by-law.

2. After the By-law has been modified by the Clerk it is to be mailed, including a copy of the revised report, 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 the Municipality of Chatham-Kent within 14 days of the mailing of the notices.

3. If no appeals are filed within 14 days of the mailing of the notices specified in Order 2, the project is confirmed and the Council may proceed to give third reading to the by-law and proceed to construction in accordance with the provisions of the Drainage Act.

4. 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.