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:
Malott Diversion Drain
Municipality of Chatham-Kent
Malott Diversion Drain (RE) 2001 ONAFRAAT2 6
STATUTE:
Drainage Act
HEARING:
January 16 and April 23, 2001
DATE OF DECISION:
May 9, 2001
2001-26
NEUTRAL CITATION:
2001 ONAFRAAT2 6
Malott Diversion Drain
Municipality of Chatham-Kent
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 Agriculture, Food and Rural Affairs Appeal Tribunal by Todgham and Case Associates Incorporated requesting a modification to by-law number 220-2000 of the Municipality of Chatham-Kent concerning the Malott Diversion Drain – East Branch, and the Main Branch of the Brulé Drain.
Before:
Jim Rickard, Chair
Andrew Osyany, Vice Chair
Jack Young, Vice Chair
DECISION OF THE TRIBUNAL
This application was considered by the Tribunal on January 16, 2001 and on April 23, 2001. This application was considered under Sub-Section 51(1) of the Drainage Act. Subsection 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 Actor as it considers proper
to carry out the purposes of this Act.
The Background
By a report dated May 11, 2000, Todgham and Case Associates Incorporated, Consulting Engineers, recommended repair and maintenance work on the Malott Diversion Drain (Station 000A to Station 550A), the Main Branch of the Brulé Drain (Station 000 to Station 1082) and the East Branch of the Brulé Drain (Station 1082 to Station 1450). The East Branch of the Brulé Drain was formerly known as the Westerly Branch of the No. 2-3 Government Drain. The municipality adopted the report through by-law 220-2000, recognizing that there was an outstanding issue with regard to the land allowances to be paid to Roll No. 1-248, and that the Department of Fisheries and Oceans (DFO) had not yet responded to inquiries made with regard to the proposed works.
Subsequently, the report was amended on January 2, 2001 to provide for:
A reduction in the land allowances paid to the owner of Roll No. 1-248 of $1,435.00. The May 11, 2000 report provided an allowance of $5,290.00. The revised report provided an allowance of $3,855.00.
The incorporation of four deep pools and four areas of improved aquatic habitat into the drainage works, as required by DFO. The revised report provided that the cost of this additional work be assessed against Chatham-Kent Road 1, as a special benefit, and that any future maintenance of these features be at the expense of the Municipality.
The Tribunal was provided with the information that the proposed amendments to the report would not have any financial impact on any properties assessed in the report, except for the property identified by Roll No. 1-248 and property owned by the municipality. The Tribunal was also provided with the information that the proposed enhancements will have no impact on the operation of the drain, and therefore no functional impact on any of the assessed owners.
Mr. George Bence, owner of the property identified by Roll No. 1-248, provided written consent to the variation in his land allowance.
The municipality supported the proposed amendments to the report.
Under other circumstances the Tribunal is inclined to direct circulation of the proposed amendments. In this application, both the reduction in the land allowance and the possibility that aquatic habitat enhancements would be required were discussed at a meeting to consider the report. The landowner affected by the reduced assessment has consented to the reduction. The municipality supports the proposed changes. The Tribunal is satisfied that adequate notice to the affected parties has been given and that none of the affected parties have objected to the amendments.
In general terms the amendments will have the effect of:
Reducing the assessment to Roll No. 1-248 by $1,435.00.
Providing for four pools to be excavated below the design grade of the drain at various locations to provide an improved habitat for fish.
Providing for pea stone or cobblestone to be installed in coarser stone rip-rap in order to provide a more diverse habitat at four locations on the drainage works.
Adding a special assessment to Chatham-Kent Road 1.
Providing that the cost of any maintenance undertaken to maintain the improved fish habitat will be borne by the municipality.
ORDER OF THE TRIBUNAL
After careful consideration the Tribunal decided to use its authority under Section 51(1) of the Drainage Act and approve the requested amendments to By-law 220-2000. Therefore the Tribunal orders that:
The engineer is directed to amend the July 18, 2000 report by Todgham and Case Associates Incorporated, on the Mallott Diversion Drain/East Branch and Main Branch of the Brulé Drain in the Municipality of Chatham-Kent, to reflect the changes denoted by bold, italic font in the January 02, 2001 version of the report.
The Clerk of the Municipality of Chatham-Kent is directed to amend By-law 220-2000 to substitute references to the July 18, 2000 report, with references to the amended report.
After the By-law has been modified it is to be mailed to all parties entitled to be sent a copy of the provisional by-law under Section 46 of the Drainage Act, along with with a copy of this decision.
The amended report will define the drainage works for purposes of repair and maintenance under the Drainage Act.
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.
Dated at Bowmanville, Ontario this 9th day of May▬ ⌙↨↨⌐‼