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:

Allanport Road Municipal Drain City of Thorold

Allanport Road Municipal Drain (RE) 2001 ONAFRAAT 32

STATUTE:

Drainage Act

HEARING:

March 29 – 31, 2000, March 22 2001, March 23 2001, and May 16 2001

DATE OF DECISION:

June 22, 2001

2001-32

NEUTRAL CITATION:

2001 ONAFRAAT 32

Allanport Road Municipal Drain

City of Thorold

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 (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) by:

Provincial Construction (Niagara Falls) Ltd. Belfa and James Thomas

Rick Fischuk Walter and Leona Knash

The Estate of Henry Houser Vanderburgh Nexfor Inc.

John and Catherine Grimo The City of Niagara Falls

Glen Gearing, and Liisa and Leo Hurju

and under Section 48 of the Act by:

Helmut Rempel The Estate of Mary Brzeczka, and William Mostowy

from the Court of Revision and from the Final Engineer’s Report (October 1, 1999) regarding the Allanport Road Municipal Drain in the City of Thorold. (Heard on March 29-31, 2000)

AND IN THE MATTER OF: An appeal to the Tribunal under Section 54 of the Act by: Carole Robinson (918969 Ontario Incorporated) Rick Fischuk

Armando Bruni Helmut Rempel

Canadian Waste Handlers Niagara Leo and Liisa Harju

Anthony De Santis In Trust Hann Manufacturing Inc.

Provincial Construction (Niagara Falls) Ltd. Jacob and Reintje Jager

Estate of Henry Houser Vanderburgh Helen Gratto

Regional Trenching Inc. Frank Van Schie

Shelby Sheet Metal and Mechanical Nelson Des Roches

John Gratto Hydraserv Limited

Diversified Alloyweld Inc. 459770 Ontario Ltd.

646643 Ontario Ltd. 1032529 Ontario Inc.

John and Katherine Ruggi Fred Westlake

Jennifer Noss

and under Section 48 of the Act by:

Cytec Canada Inc. Welland Plant

And under both Section 48 and Section 54 of the Act by:

Belfa and James Thomas

Karl Kuane, and John and Catherine Grimo

from the Final Engineer’s Report (revised July 31, 2000) on the Allanport Road Municipal Drain in the City of Thorold. (Heard on March 22-23, 2001)

AND IN THE MATTER OF: An appeal to the Tribunal under Section 54 of the Act by William Baker (Walynn Enterprises Inc.) from the Addendum Report – Recommendations to the Drainage Tribunal regarding changes to the Allanport Road Municipal Drain Final Engineer’s Report, Revised July 31st, 2000 and pursuant to the Second Interim Order of the Tribunal related to appeals from the Engineer’s Report on the Allanport Road Municipal Drain in the City of Thorold. (Heard on May 16, 2001)

Before:

Andrew Wright, Vice Chair Jack Young, Vice Chair

Andy Koopal, Member

Appearances:

Kent Schachowskoj, P. Eng. Wiebe Engineering Group Inc. - engineer for the report

Bryon Wiebe, P. Eng. Wiebe Engineering Group Inc. - engineer for the report

Rick Volpini, Drainage Superintendent, City of Niagara Falls, appellant

John Crossingham, counsel to Nexfor Inc., appellant

Sam Kitson, representing Provincial Construction (Niagara Falls) Ltd.

Belfa Thomas, appellant

Walter Knash, appellant

Leona Knash, appellant

Malcolm Vanderburgh, for the Estate of Henry Houser Vanderburgh, appellant

John Grimo, appellant

Glen Gearing, appellant

Leo Harju, appellant

Helmut Rempel, appellant

William Mostowy, appellant

Karl Kuane, appellant

Jack Berkhout, assessed landowner, witness

Peter Lingard, counsel to appellants Leo Harju and John Grimo

Helen Gratto, appellant

Bob Robinson, representing 918969 Ontario Incorporated, appellant

Rick Fischuk, appellant

George Slaney, representing Cytec Canada Inc., appellant

Belfa Thomas, appellant

Jennifer Noss, appellant

Wanda Nicowski, agent for appellant Jennifer Noss

Tracy Baker, representing Walynn Enterprises Inc., appellant

DECISION OF THE TRIBUNAL

Hearing

The hearing of these appeals commenced in the Council Chambers, Regional Municipality of Niagara, Thorold, Ontario, March 29th, 2000. It continued in the Council Chambers of The Corporation of City of Thorold (the Municipality) on March 30th, 2000 and March 31st, 2000. The hearing was further continued on March 22nd and March 23rd, 2001 in the Council Chambers of the Municipality. The hearing was further continued on May 16th, 2001 in the Council Chambers of the Municipality.

Prior to the beginning of the hearing, the Tribunal issued an order, signed March 29th, 2000, making all landowners assessed or compensated in the October 1st, 1999 engineer’s report, signed by Kent Schachowskoj P. Eng., on the Allanport Road Municipal Drain in the Municipality parties to this hearing.

Affidavit proof was filed with the Tribunal that all parties had been served with notice of this hearing, commencing on March 29th, 2000. Affidavit proof that all parties had been served with the notice of the continuation of the hearing on March 22nd, 2001 was also filed. Affidavit proof that all affected parties were served with notice of the continuation of the hearing on May 16th, 2001 was also filed.

Mr. John Bice, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal throughout the entire proceedings.

During the first three days the Tribunal heard appeals from: Provincial Construction (Niagara Falls) Ltd., Belfa and James Thomas, Richard Fischuk, Walter and Leona Knash, the Estate of Henry Houser Vanderburgh, Nexfor Inc., John and Catherine Grimo, the City of Niagara Falls, Glen Gearing and Liisa and Leo Hurju, under Sections 48 and 54 of the Act; and from Helmut Rempel, the Estate of Mary Brzeczka and William Mostowy under Section 48 of the Act, regarding the Allanport Road Municipal Drain in the City of Thorold.

After hearing three days of testimony, the Tribunal ordered the Council of the Municipality to refer the report back to the engineer for further consideration of the project. In that order, the Tribunal provided that any assessed landowner wishing to appeal under Section 48 or Section 54 of the Act could appeal directly to the Tribunal, if the Council adopted the revised report.

After the adoption of the revised report dated July 31st, 2000, Carole Robinson (918969 Ontario Incorporated), Rick Fischuk, Armando Bruni, Helmut Rempel, Belfa and James Thomas, Leo and Liisa Harju, Canadian Waste Handlers Niagara, Anthony De Santis In Trust, Karl Kuane,

Provincial Construction (Niagara Falls) Ltd., Hann Manufacturing Inc., Jacob and Reintje Jager, Estate of Henry Houser Vanderburgh, John and Catherine Grimo, Helen Gratto, Regional Trenching Inc., Frank Van Schie, Shelby Sheet Metal and Mechanical, Nelson Des Roches, John Gratto, Hydraserv Limited, Diversified Alloyweld Inc., 459770 Ontario Limited, 646643 Ontario Limited, 1032529 Ontario Inc., John and Katherine Ruggi and Fred Westlake under Section 54 of the Act, and by CYTEC Canada Inc., Belfa and James Thomas, Karl Kuane, and John and Catherine Grimo under Section 48 of the Act from the revised engineer’s report.

Statutory Context

Section 48 of the Act states:

48(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.

48(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 states:

54(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.

54(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.

54(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.

The Background

The Municipality retained Wiebe Engineering Group Inc. on September 28th, 1995 to investigate options for improving drainage along Allanport Road (Regional Road 82) between Barron Road and Hurricane Road. The affected land was zoned as dry industrial but could not be developed until adequate drainage was provided. The Municipality asked Wiebe Engineering Group Inc. to prepare a report under the Act on April 9th, 1996, as the result of a petition filed by the Regional Municipality of Niagara Public Works Department, pursuant to Section 4(1)(c) of the Act.

A preliminary engineer’s report, dated September 12th, 1997 was discussed at a public meeting on October 14, 1997. Wiebe Engineering Group Inc. was instructed to schedule an additional on site meeting and prepare its final report. A public meeting was held on April 10th, 1999 to discuss a draft final report. The final engineer’s report was filed with the Municipality on October 1st, 1999. That report was subsequently amended and a revised final report was filed on July 31st, 2000. As will appear below in this decision, there was a subsequent recommendation from the engineer to the Tribunal dated April 16th, 2001, to incorporate additional changes to the report, made by the engineer as requested in the Tribunal’s Second Interim Decision.

The engineer’s report dated October 1st, 1999 provided for the construction of a Main Drain with an outlet into Thompson’s Creek, east of Garner Road, as well as ten branch drains. A common stormwater management pond with a maximum detention volume of 40,000 cubic metres was designed to collect all the runoff from the industrial corridor along Allanport Road. All lands to the west of the stormwater management pond were to drain through the pond. The drainage works was designed for two year peak flows downstream of the stormwater management pond, five year design flows upstream of the pond, and twenty-five year design flows for the roadside ditches along Allanport Road.

The proposed drainage works consisted of the outlet watercourse with a length of 4,550 metres, intermediate tributary branches with a total length of 4,250 metres, the Allanport Road east and west roadside ditches with a total length of 4,400 metres, interceptor branch drains totalling 2,750 metres in length and the stormwater management pond.

The work proposed consisted of:

• Channel upgrades to the Main Drain from Allanport Road to the downstream limit at

Garner Road.

• Channel upgrades along Branch Drain #1 from the intersection of Thorold Townline

Road and Turner/Brown Road to the outlet into the Main Drain.

• Construction of a new Branch Drain #2 from the intersection of Allanport Road and

Turner Road to an outlet into the Main Drain.

• Upgrading and constructing Branch Drain #3 from Allanport Road, 300 metres south of Turner Road to an outlet into the new Branch Drain #2.

• Upgrading the east roadside ditches (Branch Drains #4 and #5) and the west roadside

ditches (Branch Drains #6 and #7) of Allanport Road between Barron Road and

Hurricane Road.

• Constructing a stormwater management pond at the southerly limit of Roll Nos. 29-10

and 29-11) (Nexfor properties).

• Constructing new interceptor channels (Branch Drains #8, #9 and #10 and an upstream extension of Branch #2) to provide a drainage outlet for the backs of industrial properties abutting Allanport Road and for industrial lots not directly abutting Allanport Road.

The total watershed was approximately 864 hectares, of which 224 hectares were zoned for industrial use.

The revised engineering report dated July 31, 2000 contained the following revisions:

• Eliminate proposed Branch Drains #9 and #10 and the upstream portion of Branch

Drain #2.

• Redesign of the stormwater management pond. The maximum detention volume of the pond was reduced to 29,000 cubic metres.

• Provide for the future expansion of the pond in the event that upstream landowners

wished to develop their land and purchase access to the pond.

• Provide for the monitoring of water quantity and water quality at the entrance to the Cytec property (Roll No. 29-001-00).

• Redesign a culvert crossing Brown Road east of Thorold Townline Road on Branch #1.

• Amendment of the assessment schedules.

The engineer’s recommendations resulting from the Second Interim Decision, dated April 16th, 2001, contained the following suggested changes:

• Branch Drain #8 shortened from 1,426 metres to 797 metres.

• Decrease the watershed area serviced by proposed Branch Drain #8.

• Revision of the cost estimate to reflect the reduced construction cost and reduced

allowances resulting from the above noted deletion of the upper portion of Branch

Drain #8.

• Revision of the assessment schedules to reflect the above noted deletion of the upper

portion of Branch Drain #8.

• Revision of the text of the engineer’s report dated July 31, 2000 to reflect the above

noted changes.

The Issue - March 29th, 30th and 31st, 2000

The issues before the Tribunal were:

1. Should the proposed works be modified to eliminate proposed Branch Drains #8, #9 and #10 and the proposed extension to Branch Drain # 2 and to redesign the culvert crossing Brown Road, east of Thorold Townline Road?

2. Should landowners with no immediate plans for developing their properties be permitted to opt out of using the common stormwater management pond?

3. Should the report be modified to provide for the monitoring of water quality and water quantity?

4. Are the assessments and allowances proposed in the Final Engineer’s Report (October 1st, 1999) appropriate?

The Evidence and the Findings – March 29th, 30th and 31st, 2000

Rick Volpini, Drainage Superintendent, City of Niagara Falls

Mr. Volpini explained to the Tribunal that the City of Niagara Falls was assessed a special benefit of $88,000 related to the installation of a culvert under Brown Road. He said the City of Niagara Falls had reached an agreement with the engineer on a different design for the culvert which would substantially reduce this cost. He explained that the City of Niagara Falls had appealed the engineer’s report as it was unable to bring this information to the Council of the Municipality prior to the adoption of the October 1st, 1999 Final Engineer’s Report.

John Crossingham, counsel to Nexfor Inc.Roll Nos. 29-026-00, 29-011-00 and 29-010-00

Mr. Crossingham submitted that his client had been treated inconsistently as the allowance Nexfor Inc. was to be paid for land used to construct the stormwater management pond did not reflect the value of land zoned for heavy industrial use, yet the Nexfor properties were assessed on the basis of their being zoned for industrial use.

Mr. Crossingham indicated his client had six requests:

1. The Nexfor Inc lands be assessed as agricultural for the purpose of calculating direct benefit.

2. The abutting benefit on the properties known as Parcels 010, 011 and 026 be eliminated.

3. The 7 acres to be used for the pond not be subject to any assessment.

4. The holding pond be vested in the Municipality.

5. The outlet liability be adjusted to reflect agricultural, rather than industrial use.

6. There be no assessment to Nexfor Inc. for the culvert on the property known as

Parcel 010.

Mr. Crossingham submitted that the Nexfor Inc. lands were unlikely to be developed due to insufficient frontage. He said the land was used for agriculture but that the zoning may be switched to environmental conservation and heavy industrial holding. He also submitted that his client received very little benefit from abutting the drainage works and that the main beneficiary of the culvert on Parcel 010 would be the Municipality as the culvert would provide it with access to the pond. He also pointed out that the land to be used for the pond had not been deducted from the Nexfor Inc. lands to be assessed.

After discussion with the Municipality, Mr. Crossingham advised the Tribunal that a settlement had been reached whereby the land would be assessed as agricultural rather than industrial, and that all other requests were withdrawn.

Sam Kitson, Provincial Construction (Niagara Falls) Ltd., Roll No.26-211-10

Mr. Kitson explained that he represented Provincial Construction Ltd. He said the property was approximately 20 acres and was presently being used as agricultural land.

Mr. Kitson submitted that it was unfair that it was assessed as industrial land for the purposes of the drainage works and that it would be fairer to measure the areas of buildings and parking lots and assess the land accordingly. However, he also suggested that the entire project be assessed

to all residents of the Municipality under its Capital Works budget, and that less extreme options, such as roadside ditch maintenance, be exhausted before undertaking this drainage works.

Mr. Kitson also specifically objected to upstream landowners being assessed 50% of the cost of downstream culverts and he objected to being assessed to use the stormwater management pond. He also requested that the cost of the project and all future maintenance costs be made public.

Belfa Thomas, Roll No. 29-017-00

Mrs. Thomas told the Tribunal that the drainage problems along Allanport Road were the result of poor development decisions made since 1958. She testified that the owner of the land adjacent to hers had built it up five feet and directed his water onto her property, where it collects in a pond on her farm. She submitted that he had also filled in the natural waterway on his land and that there should have been restrictions to prevent this. She said she felt that the Municipality should pay for the drainage works as she maintained that the drainage problems were the result of its negligence. Mrs. Thomas also indicated that one of the culverts that was proposed to be upgraded was no longer used.

Richard Fischuk, Roll No. 26-212-00

Mr. Fischuk explained that part of his property drains to the north, and part to the south. He explained that he was appealing his assessment as he had no interest in developing his land. He suggested that he be assessed at the agricultural rate. He acknowledged that the land was zoned dry industrial by the Municipality, but he explained that he also had a special zoning that permitted his residential use. Mr. Fischuk also objected to having to contribute to the cost of the stormwater management pond, in the circumstances that he had no intention of using it.

Walter Knash and Leona Knash, Roll Nos. 26-210-25 and 26-209-00

Mr. and Mrs. Knash testified that their properties were on the extreme northerly edge of the drain watershed and that their land drained to the north and should not be included in the drainage works. Mr. Knash explained that, as a result of a train derailment, the Barron road ditch had

been dammed in December 1997 and that it had never been re-opened. He also said that a neighbour had a survey done in 1996 and that it also showed that the water drained to the north. Their appeal was a matter of questions as to where the water was flowing, and concerns about costs.

Malcolm Vanderburgh, for Estate of Henry Houser Vanderburgh, Roll No. 26-217

Mr. Vanderburgh told the Tribunal that his position was that all lands of the Estate should be eliminated from the drainage works. He explained that, while it was zoned for industrial uses, the land had been farmed continuously for 250 years. He said that it may be converted to a golf course in the future, in which case water will need to be retained for irrigation. As well, he pointed out that, due to topography and wooded wetlands on the property, the runoff from the

property is minimal. He said that, if the land was not removed from the watershed, then he would like the assessment reduced. He said the assessment was higher than for comparable properties in the drainage area and was not warranted given the value of the land. He said one solution would be to eliminate the upper 595 metres of Branch Drain #2. He also objected to being assessed for the stormwater management pond.

John Grimo, Roll Nos. 26-210-21, 26-210-15 and 26-210-20

Mr. Grimo submitted that the Municipality should be responsible for draining the water that accumulates in roadside ditches and that owners that build berms around their properties should be held responsible for the effects. He said the downstream culverts did not affect his property. He suggested that maintenance of existing road ditches would resolve the flooding problem. Alternatively, he suggested Branch Drain #8 be extended westerly to intersect with Branch Drains #5 and #7, or that Allanport Road be drained to the south to outlet in Chippewa Creek.

Mr. Grimo objected to paying a portion of the cost of the stormwater management pond. He said he was concerned that the pond would not be large enough to handle all the additional runoff in the Spring. He indicated he could look after the water on his own property.

Glen Gearing, Roll Nos. 26-211-03 and 26-210-12

Mr. Gearing objected to the location of Branch Drain #8 as it split his two properties, resulting in the need for him to install a culvert. He said that his allowance for the land taken for the ditch was not adequate to cover his ongoing losses. He asked that Branch Drain #8 be eliminated as he felt proper maintenance of roadside ditches would resolve the flooding problem.

Leo Harju, Roll No. 26-211

Mr. Harju explained that there were no water problems on his property and that he was opposed to the construction of Branch Drain #8. He also felt that maintenance of roadside ditches would resolve the flooding problem. He asked that his assessment be reduced as he pointed out it was higher than the assessment of a similar sized property located to the south of his property.

Helmut Rempel, Roll No. 29-027-00

Mr. Rempel asked the Tribunal to exempt his property from all assessment. He explained that the part of his property in the watershed was a woodlot and that the only permitted use was conservation. He asked that the Tribunal require the Municipality to pay the assessment on all EC zoned land. He said that, if society wanted to use this land, society should pay. He also pointed out that his property did not benefit from the pond.

William Mostowy, Roll No. 26-210-00

Mr. Mostowy submitted that the lack of maintenance of road ditches and in-filling of natural drainage areas was the cause of the drainage problems on Allanport Road. He asked that the Tribunal order that the ditches be cleaned and the natural tributaries re-opened. With regard to his assessment, Mr. Mostowy indicated he would have no problem if he was treated like everyone else. But he pointed out that his land was rural residential, not industrial and that, while he could sell it as industrial land, there were only two potential buyers.

Wanda Nicowski, agent for Jennifer Noss, Roll Nos. 29-003-00 and 29-004-00

Mrs. Nicowski indicated she was representing her sister Jennifer Noss who was unable to attend. She said that Mrs. Noss had not appealed but that she felt her assessment was too high. She said she was also concerned about potential liability from the ditch.

Mike Brzecka, Roll No. 29-011-00

Having been in attendance for two days, Mr. Brzecka was called away due to a family emergency. Therefore, Mr. Brzecka’s evidence was read into the record. Mr. Brzecka asked that assessments on his land be assessed at the agricultural rate as the land was not accessible to motorized vehicles and could not therefore not be developed. He also objected to being assessed for the stormwater management pond.

George Slaney, Cytec Canada Inc., Roll Nos. 29-001-00, 11-2-139-00 and 11-2-014-00

Mr. Slaney explained that he had not appealed as he wanted the drainage project to be constructed. He said that restrictions referred to by other landowners were concrete weirs designed to measure flow, not restrict natural run-off through the property. He said that he was concerned that the entrance berms could be damaged if the flow of water increases as a result of the drainage works. He asked that the Tribunal require the Municipality to install a water quality and quantity monitoring station at the upstream boundary of the Cytec property. He estimated that the monitoring for water quality would cost $100,000 per year. Mr. Slaney explained that Cytec was required to monitor the quality of water leaving its property by the Ministry of the Environment, but that he had petitioned that this requirement be revoked if the drainage works is constructed. He said his concern was that Cytec not be responsible for any upstream pollution.

Karl Kuane, Roll No. 26-208-00

Mr. Kuane told the Tribunal that the north third of the watershed drained to the north toward Barron Road. He asked if the watershed could be changed. He said he had not appealed.

Response of Engineers to Appeals heard March 29th, 30th and 31st, 2000

Bryon Wiebe, P. Eng.

Mr. Wiebe said that an agreement had been reached with the City of Niagara Falls with

regard to the redesign of the culvert under Brown Road. He also confirmed Mr. Crossingham’s statement that a settlement had been reached with Mr. Crossingham with regard to the Nexfor Inc. appeal.

Jack Berkhout, Landco Developments Ltd., Roll Nos.26-212-11, 26-210-14 and 26-210-09.

Mr. Berkhout was called by the engineers as a witness in support of the report.

Mr. Berkhout explained that he represented Landco Developments Ltd, a company that owned several properties in the watershed. He explained that he could not apply for any building permits until the drainage project was underway. He also stated that it was difficult to sell land without proper drainage. He explained that he had to relocate a tenant on his Allanport Road property to St. Catherines as he could not build on Allanport Road to meet the tenant’s expanding needs.

Mr. Berkhout detailed how the drainage along Allanport Road had deteriorated as various landowners had developed their land. He submitted that the poor drainage in the area was an environmental risk as severe flooding could displace contaminated soil or hazardous waste. He also pointed out that the Province was encouraging development away from tenderfruit land and said that it made sense to develop along Allanport Road.

Mr. Berkhout said that he had approached the Regional Council of Niagara to ask that it sign the petition for the drainage works as he did not have enough land on his own and as neighboring farmers would not sign it.

Kent Schachowskoj, P. Eng.

Mr. Schachowskoj explained that Wiebe Engineering had been retained to examine the flooding problem on Allanport Road and recommend solutions. He said that their analysis showed that portions of the existing drainage system were inadequate even in undeveloped conditions. He said that it was feasible to upgrade the road ditches, but that there was agricultural runoff entering these ditches and that the ditches may not be large enough to accommodate the peak flow. He proposed the construction of interceptor drains on the road allowance to direct runoff to culverts under the road, to avoid overloading the roadside ditches. He said his analysis showed that developing a storm sewer diversion was costly and that improving the natural drainage system, in combination with provision for run-off control, was more feasible.

Mr. Schachowskoj explained that the area did experience flooding and that this was affecting the road structure. He said that the Allanport Road roadside ditches had no proper outlet as

development in the area had blocked the east side ditch. He said that undertaking a small amount of work on these ditches would simply move the problem elsewhere. He explained that his firm was recommending a single, common stormwater management pond in order to handle post- development flows. He said that the Department of Fisheries and Oceans did not require the pond.

Mr. Schachowskoj explained that the drain was designed so that lands upstream of the stormwater management pond could be developed while at the same time the peak flow downstream of the pond could be reduced, as water draining from upstream properties would collect in the pond. He explained that he assumed an impervious factor of 50% on lands expected to be developed and an impervious factor of 1% on agricultural lands. He said that the 50% impervious factor for industrial land was based on his experience with other industrial areas. The expected use was based on the zoning bylaw, not the current land use of properties upstream of the pond. For lands downstream of the pond, the current use was used to assess the property, rather than the zoning by-law.

Mr. Schachowskoj told the Tribunal that, while the pond deals with quantity control, there were sediment basins in the design of the drainage works which would help control water quality. He pointed out that individual landowners would still be responsible for ensuring water quality in the drain was adequate.

In response to questions from the Tribunal, Mr. Schachowskoj explained that Branch Drains #8, #9 and #10 were interceptor channels that were not originally contemplated as part of the drainage project. He said the final design called for these branches as the regional road ditches could not carry the water away from the road. He indicated that he was relying on the petition from the Regional Road Authority for the jurisdiction to build these branch drains. He stated that the branch drains were required, as without them the drainage system would not function to meet the requirements of Allanport Road.

Mr. Schachowskoj acknowledged that Mr. and Mrs. Knash had not signed the petition but pointed out that their property was zoned for development and that it would require an outlet.

Mr. Schachowskoj explained that if Branch Drain #2, west of Allanport Road were to be eliminated, then the properties on the west side of the road would still drain to Allanport Road, but by a less direct route.

Mr. Schachowskoj acknowledged that, if Mr. Vanderburgh was successful in developing a golf course on his property, then the assessment could be changed.

After hearing the evidence presented in March 2000 the Tribunal issued an interim decision dated April 5th, 2000, a copy of which is appended to this decision.

Findings Related to Appeals Heard March 29th, 30th, and 31st, 2000

And Reasons for First Interim Decision

The Tribunal is concerned that the Regional Municipality of Niagara Public Works Department over-reached its authority in attempting to resolve drainage difficulties in the area serviced by proposed Branch Drains #2, #8, #9 and #10, and on the lands abutting the southeast corner of Barron Road and Allanport Road, which naturally drain to the north.

The Tribunal finds that a number of the issues presented by the appellants would be resolved if some of the branch drains were not constructed.

The Tribunal agrees with the appellants who submitted that it is unfair for landowners who do not wish to make use of the stormwater management pond to be assessed for its construction. The Tribunal finds that landowners upstream of the pond should have the option of participating in the stormwater pond but that they should not be required to do so. Landowners who opt out of utilising the pond will be responsible for dealing with their own storm water management issues, as their land is developed.

The Tribunal finds that the use of a 50% impervious factor to calculate run-off from land zoned as industrial is reasonable. The Tribunal is of the view that the factor selected by the engineer is consistent with industry practices.

With regard to the appeals by the City of Niagara Falls and Nexfor Inc., The Tribunal First Interim Decision is based on the submissions by the parties that they had reached agreement about the matters under appeal. As the Nexfor Inc. appeal was withdrawn, there is no need for the Tribunal to make a ruling on the appeal.

With regard to the issues raised by Mr. Slaney, the Tribunal recognizes that the water quality and quantity concerns identified needed to be addressed.

The Tribunal notes that, while the historic issues raised by some of the appellants are of interest, the mandate of Tribunal is to deal with the solution to the current matter.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeals of Provincial Construction (Niagara Falss) Ltd, William Mostowy, Helmut Rempel, Belfa and James Thomas are dismissed.

2. The appeals of Richard Fischuk, Walter and Leona Knash, The Estate of Henry Houser Vanderburgh, John and Catherine Grimo, Glen Gearing, Liisa and Leo Harju, the Estate

of Mary Brzecka, the City of Niagara Falls and Nexfor Inc. are allowed in part, as

reflected in the First Interim Decision attached hereto.

Appeals heard March 22nd and 23rd, 2001

In accordance with the First Interim Decision, the report was referred back and the revised engineer’s report dated July 31st, 2000 was presented to and adopted by the Council of the Municipality.

Appeals with respect to this revised report were heard by the Tribunal on March 22nd and 23rd, 2001.

The Issues – March 22nd and 23rd, 2001

The issues before the Tribunal were:

1. Was the First Interim Decision adhered to with respect to Branch Drain #8?

2. Was the First Interim Decision complied with as it pertains to water quality and quantity monitoring with respect to the Cytec property?

3. Are the assessments in the July 31st, 2000 revised report appropriate?

The Evidence and the Findings – March 22nd and 23rd, 2001

Preliminary Motion raised by Mr. Peter Lingard, counsel to Leo Harju, Roll No. 26-211 and John Grimo, Roll Nos. 26-210-21, 26-210-15 and 26-210-20

Mr. Lingard asked the Tribunal to order that the portion of Branch Drain #8 upstream of Roll No. 26-210-09 (Landco property) be deleted from the proposed work. He submitted that the engineer had not undertaken to ensure that the petition for this portion of the drain was valid, as ordered by the Tribunal on April 5, 2000.

Mr. Schachowskoj replied that he believed the petition to be valid on the understanding that only the property owned by W. & L. Knash (Roll No. 26-210-25) was in the area requiring drainage. He conceded that a portion of the Walynn property (Roll No. 26-210-24) could be in the area requiring drainage.

Helen Gratto, Roll No. 29-014-00

Mrs. Gratto explained that she was assessed on the Main Drain, and Branch Drains #2 and #4. She said that the Municipality should have ensured adequate drainage before zoning the land industrial. She told the Tribunal that she had lived on her property since 1960 and that there had never been a problem with drainage until the industries back-filled and diverted water onto her land. She asked that she not be required to pay for a drainage system that she really does not need.

Bob Robinson, 918969 Ontario Inc., Roll No. 29-012-01

Mr. Robinson stated that he did not object to the project but that the design was such that his property was assessed twice as much as any other property in the watershed. He asked that the assessment be reduced.

Richard Fischuk, Roll No. 26-212-00

Mr. Fischuk told the Tribunal that the Municipality was not able to assess his property at the industrial rate as it is used as residential/farmland. He said that he felt the Municipality was trying to circumvent this tax classification by having the engineer assess the property as

industrial for the purposes of the proposed drainage works.

He explained that he had opted out of using the stormwater management pond but that his property was still assessed at the industrial rate. He asked that the Tribunal order that his

property be charged the agricultural rate. He also questioned whether the engineer had taken into account that water on the back half of his property has no means of travelling to the drain. He later acknowledged that this water does enter the watershed.

George Slaney, Cytec Canada Inc., Roll Nos. 29-001-00, 11-2-139-00 and 11-2-014-00

Mr. Slaney told the Tribunal that he was not satisfied with the revised report and that he wanted a sample station built on the drain where it enters the Cytec property. He said he also wanted daily analysis of the stream for contaminants for which his company was required to test. He said that

he did not think it was fair that Cytec should have to pay for water quality monitoring at the upstream side of the property.

Helmut Rempel, Roll No. 29-027-00

Mr. Rempel reiterated his request of March 2000 that his land not be assessed as it was conservation land and was zoned as a wetland. He agreed that a small amount of water from his property would flow north to the proposed drainage works.

Belfa Thomas, Roll No. 29-017-00

Mrs. Thomas said she did not understand why her property was assessed into the drain as the Niagara Conservation Authority had removed her property from the floodplain. She also pointed out that Allanport Road had been built up and now drained onto her property. She asked if her property would be built up by the Municipality to remedy this. She also reiterated her March 2000 concern regarding an old, unused culvert.

Mrs. Thomas also explained that while she did not represent a number of landowners who had appealed by way of signing a petition, she understood that they were unhappy with the cost of the proposed drainage works and that they felt the Municipality should pay for the project. It was

also explained that the Regional Municipality of Niagara had a policy whereby it paid the cost of maintaining and replacing existing access culverts.

Malcolm Vanderburgh, Roll No. 26-217-00

Mr. Vanderburgh told the Tribunal he had opted out of the stormwater management pond. He said that his appeal was unchanged from March 2000. However, he asked that, if the Tribunal

did not agree that his property should not be assessed for the drainage works, that the Tribunal transfer his assessment to the Canadian National Railway (CNR). He said that water from his property drained onto the CNR property but that it would not flow there if CNR had not altered the natural drainage in the area. He explained that CNR had granted his great grandfather and his heirs the right to drain his property onto CNR lands in exchange for the right to build the railway.

John Grimo, Roll Nos. 26-210-15, 26-210-20 and 26-217-21

Mr. Grimo explained that he had a ten-acre parcel and two three-acre parcels of land. He said that originally there was to be a 6 metre wide ditch with a 6 metre buffer zone placed half on his property and half on his neighbours. He objected to a change that increased the buffer zone to 10 metres and located the ditch entirely on his land. However, he noted that with the upstream portion of Branch Drain #8 removed, the problem was resolved. He also had questions about how to receive an agricultural grant for a portion of the cost of the drainage works.

Jennifer Noss, Roll Nos. 29-003-00 and 29-004-00

Mrs. Noss explained that her appeal was received late as it had been mailed from the U.S.A.

She said that the drainage works would not enhance her properties, as her land had never been flooded. She explained that she could not afford the high assessment proposed in the report and asked that it be reduced.

Mr. Mostowy, Roll No. 26-210-00

Mr. Mostowy explained that he had not appealed the revised report but that he wished to add to his submission of March 2000. Mr. Mostowy said the cost of replacing the culvert on his property should be borne by the Municipality, as it was replacing culverts on Turner Road at no cost to the landowners.

Response of Engineer to Appeals Heard March 22nd and 23rd, 2001

Mr. Schachowskoj. P. Eng.

Mr. Schachowskoj explained that all lands that were zoned industrial and that were upstream of the stormwater management pond, were assessed at a rate determined by reference to the development potential of the properties because the drainage works were designed to accommodate that rate of flow. However, he said that pursuant to the First Interim Decision of

the Tribunal dated April 5th, 2000, the landowners were permitted to opt out of using the stormwater management pond. Mr. Schachowskoj explained that he had included a provision whereby landowners opting out could opt back in again in the future, at a cost. The minimum cost for opting back in was to be $1,310.00 per hectare; this cost could be higher if construction

costs increased.

He explained that, in determining relative run-off, he used a factor of 1 for wooded areas, 2 for worked land and 8 for impervious land such as roofs and tarmac. For properties zoned industrial, he treated 50% of the land area as impervious and the balance as either worked land or wooded land. He said that all properties with the same characteristics were treated the same way.

With respect to the 918969 Ontario Inc. (Robinson) appeal, Mr. Schachowskoj indicated that his calculations showed that there was an almost identical cost of culverts on the Robinson property and the property across the road, and that the total assessment on the Robinson property was not double that of the property across the road. He explained that large twin culverts were needed at this point on the drain to accommodate water flow from Branch Drains #4 and #6.

Mr. Schachowskoj explained that water from the Fischuk property flowed west and south off his property, then was blocked by the CNR railway and flowed east to Branch Drain #2. He indicated that he was satisfied with the watershed defined in his report.

Mr. Schachowskoj said that he understood that the provision he made for monitoring the quantity and quality of water entering the Cytec property was in accordance with the Tribunal’s April 5th, 2000 First Interim Decision. He explained that Cytec Canada Inc. was on the drainage works

and would be able to request that water samples be tested.

With respect to Mrs. Thomas’ appeal, Mr. Schachowskoj said that he could ask the contractor, through the Municipality, to deposit clean fill on her property. He explained that the revised report provided for one culvert to be removed and not replaced, and that the assessment to the Thomas property had been adjusted accordingly. He explained that the floodplain referred to by the Conservation Authority was related to the area of land over which it has jurisdiction.

Mr. Schachowskoj told the Tribunal he had first seen a copy of the Vanderburgh-CNR document the week before the hearing. He explained that water from the Vanderburgh property did make

its way to Branch Drain #2 and that is why it was assessed in this proposed drainage works.

With respect to grants available from the Ontario Ministry of Agriculture, Food and Rural

Affairs, Mr. Schachowskoj explained that it was ultimately up to the Ministry to decide which properties were eligible. He said that he had marked lands as agricultural in his report on the basis of a memorandum he received from the Ministry dated July 12th, 2000.

With respect to the Noss property, Mr. Schachowskoj explained that it had not been treated any differently than the other downstream properties.

After hearing the evidence presented in March 2001 the Tribunal issued a second interim decision dated April 2, 2001, a copy of which is appended to this decision.

Findings Related to Appeals Heard March 22nd and 23rd, 2001

Reasons for Second Interim Decision

The Tribunal was not satisfied that its First Interim Decision dated April 5th, 2000 as it pertained to the portion of Branch Drain #8 above the property identified by Roll No. 26-210-09 had been satisfied and therefore granted the preliminary motion.

The Tribunal understands the environmental concerns raised by Mr. Slaney with respect to the Cytec property. That property is unique in that the quality of the water flowing off the property

is the subject to regular quality tests required by the Ministry of the Environment. The Tribunal

is satisfied that the revised report makes sufficient provision for water quality monitoring upstream of the Cytec property and finds it appropriate that the cost of a reasonable amount of monitoring be assessed as a maintenance cost of the drain.

The Tribunal finds that only the landowner of the property identified by Roll No. 29-001-00 should be entitled to require water quality testing at the expense of the of the drain as contemplated by the revised report.

The Tribunal notes that the original appeals of Mr. Fischuk, the Estate of Henry Houser Vanderburgh and the Estate of Mary Brzecka have been partially addressed by its First Interim Decision in that they are able to opt out of utilizing the stormwater management pond. The properties that will not utilize the stormwater management pond are identified by Roll Nos. 29-019-00, 26-217-00 and 26-212-00. The Tribunal finds that, because the Engineer’s revised

report dated July 31st, 2000 allows for the current or future landowners of these properties to opt to use the pond in the future, it is appropriate that these properties be assessed using a 50% impervious factor for the calculation of run-off.

With regard to the appeals of landowners who objected to being assessed any portion of the cost of replacing culverts, the Tribunal finds that the allocation of 50% of costs to landowners on whose property the culvert is located is reasonable, regardless of what local road authorities may or may not do. The Tribunal notes that it is not unusual for an engineer to assess half the cost of culverts to landowners in drainage works commissioned under the Act.

As the issues raised by John Grimo were addressed by the Tribunal’s Second Interim Decision, there is no need for the Tribunal to make a ruling on the second John and Catherine Grimo

appeal made under Section 48 of the Act.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. That the preliminary motion made by Peter Lingard on behalf of Leo Harju and John Grimo is granted, as reflected in the second interim order of the Tribunal.

2. The appeals made under Section 54 of the Act of John Gratto, Helen Gratto, Carole Robinson (918969 Ontario Inc.), Richard Fischuk, Helmut Rempel, Belfa and James Thomas, the Estate of Henry Houser Vanderburgh, John and Catherine Grimo, Jennifer Noss, Leo and Liisa Harju, Canadian Waste Handlers Niagara, Armando Bruni, Anthony De Santis In Trust, Hann Manufacturing Inc., Provincial Construction (Niagara Falls) Ltd., Jacob and Reintje Jager, Regional Trenching Inc., Frank Van Schie, Shelby Sheet Metal and Mechanical, Nelson Des Roches, Hydraserv Limited, Diversified Alloyweld Inc., 459770 Ontario Limited, 646643 Ontario Limited, 1032529 Ontario Inc., Fred Westlake and William Mostowy and under Section 48 of the Act by Belfa and James Thomas and Karl Kuane are dismissed.

3. The engineer is directed to amend the Allanport Road Municpal Drain Final Engineer’s Report, dated July 31st, 2000 such that only the owner of the property identified by Roll No. 29-001-00 may request that the Municipality sample and test the water entering this property, after the second series of samples and tests is undertaken as described on page 43 of the report.

Appeal heard May 16, 2001

In accordance with the Second Interim Decision, the engineer made recommendations to the Tribunal with respect to the concerns raised in appeals related to the Revised Engineer’s Report, dated July 31st, 2001. One appeal was made to the Tribunal with respect to these recommendations and it was heard by the Tribunal on May 16th, 2001.

The Issue:

The issue before the Tribunal was: Is the recommended revision to the assessment of Walynn Enterprises Inc., Roll No.26-210-24, appropriate?

The Evidence and the Findings – May 16th, 2001

Tracy Baker, Walynn Enterprises Inc., Roll No. 26-210-24

Mrs. Baker explained she was an officer and a director of Walynn Enterprises Inc.. She told the Tribunal that she did not see the necessity of the proposed drainage works as the Walynn

property was on high ground and drained to the north, via a natural waterway located toward the

back of the property. She asked to be exempt totally from any assessment but indicated she did not want any restrictions on the development of her property.

Response of Engineer to Appeal heard May 16th, 2001

Mr. Schachowskoj

Mr. Schachowskoj presented a plan showing the area that would drain via the proposed Allanport Road Municipal Drain, including land adjacent to Allanport Road, to a depth of 300 feet back from the land fronting on the road. He explained that he determined the boundaries of the watersheds by examining topographic maps and examining the land from roadways. As well, he explained that the 300 feet standard set back was specified to the engineers by the Municipality, as the Municipality was willing to allow this amount of land to drain into the roadside ditches.

With respect to the Walynn Enterprises property, he explained that the front half will be served by Branch Drain #5, the ditch on the east side of Allanport Road. He explained that as Branch

Drain #5 drains into Branch Drain #2, there was a small assessment to the property on that branch as well. Mr. Schachowskoj told the Tribunal that because of the elimination of the upper portion of Branch Drain #8, much of the assessment related to the back section of this property had been eliminated. He explained that water from a small portion of land at the back of the property would eventually drain to Branch Drain #1. He also explained that the property was assessed for the use of the storm water management pond.

It was noted that Ms. Baker had not attended any previous meetings and had not appealed earlier reports.

Findings Related to Appeal Heard May 16th, 2001

The Tribunal is satisfied there is a benefit to the westerly 300 feet of the property identified by Roll No. 26-210-24 and that some surface water will drain to the south and enter the proposed drainage system.

The Tribunal finds that the calculations made by the engineer with respect to this property were consistent with those made throughout the report.

The Tribunal finds that the suggested changes to the Engineer’s Report, detailed in the Addendum Report – Recommendations to the Drainage Tribunal regarding changes to the Allanport Road Municipal Drain Final Engineer’s Report, Revised July 31st, 2000 are consistent with its Second Interim Decision and reflect a reasonable partition of costs between affected property owners.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeal by William Baker (Walynn Enterprises Inc.) is dismissed.

2. The engineer is directed to amend the Allanport Road Municpal Drain Final Engineer’s Report, dated July 31st, 2000 such that:

The construction of Branch Drain # 8 (previous length 1,426 metres) is shortened to 797 metres. The upstream limit of this drain is to be near the north east property boundary for the Landco Development Ltd.’s lands (Roll No. 26-210-09).

The drainage area serviced by the proposed Branch # 8 is to be decreased in size, with the north limit ending at Property Roll No. 26-210-09 (Landco Development property). The Knash property (Roll No. 26-210-25), and a portion of the Walynn Transportation property (Roll No. 26-210-24) are to be removed from the Allanport Road Municipal Drain watershed area, as they presently drain to the north towards Barron Road.

The text within the Final Engineer’s Report, Revised July 31st, 2000, is to be changed to reflect the deletion of the upper portion of Branch #8. The report is to be revised as follows:

Page v - the noted length of the interceptor branch drains is to be

revised from 1450 metres to 800 metres.

Page vi - on the 4th bullet from the top of the page, the text is to be

revised to read “constructing a new interceptor channel (Branch

Drain No. 8) to provide a drainage outlet and facilitate lot grading

for the backs of the industrial lots abutting the east side of

Allanport Road between Property Roll No. 26-210-09 (Landco

Developments Ltd.) and Turner Road.”

Page vi - changes to the estimated cost as follows: the total cost is

to be revised from $1,228,600 to $1,210,170, channel

improvements revised from $300,400 to $285,530, and allowances

revised from $84,700 to $81,140.

Page 16 - for Branch No. 8, the upstream limit chainage is to be

revised from 1+426 to 0+797.

Section 4.6, Description of Work - starting on page 37 at the

bottom with a listing for Property Roll No. 26-210-11 (Savoie

Motor Sales), to the end at the top of page 39, are to be deleted.

The last paragraph on page 40 and the first on page 41 are to be

revised to include those properties deleted from the upper portion

of Branch No. 8. The revised text is to read as follows: “This fact

also applies to all potential development properties located

downstream of the proposed stormwater management detention

facility. As well, the back halves of those properties located on

the east side of Allanport Road, north (upstream) of the upper

limit of Branch No. 8 (that is, the portion of those properties

not serviced by Branch No. 5) would also be regulated by the

Municipality’s Site Plan and control policy guidelines,

when they choose to develop their properties in the future…”.

The second paragraph on page 41 is to be revised as follows:

“Also, in accordance with the Interim and Second Interim Orders

of the Tribunal, the deletion of some of the originally proposed

interceptor drains, namely the upstream extensions of Branch No. 2

and 8, and Branches No. 9 and 10 will leave a number of future

development properties in the areas west and east of Allanport

Road without a sufficient outlet once they develop. For those

lands east of Allanport Road, and north of Turner Road,

beyond the upper limit of Branch No. 8, the east roadside

ditch for Allanport Road (Branch Drain No. 5) is only sufficient to

carry the post development flows from the western portion

(300' depth) of these properties. The remainder of these

properties would drain to the east, and some form of onsite

stormwater management would need to be implemented to

control post development peak runoff rates to a level less than

pre-development rates. As well, some method is to be provided

to convey this runoff across the abutting agricultural lands and

into the west roadside ditch on Glover Road....As with the above

noted upstream extension of Branch Drain No. 2, landowners could

petition for the reinstatement of the upper portion of Branch

Drain No. 8, and Branch Drain Nos. 9 and 10, as the municipality

would need to maintain and have jurisdiction over the provision of

a sufficient drainage outlet through private property for these

upstream lands.”.

Page 53 - Section 7.1. The Total Cost Estimate is to be revised

from $1,228,600 to $1,210,170.

Page 55 - The Allowances for Branch Drain No. 8. Those

properties below Roll No. 26-210-09 (Landco Developments Ltd.)

are to be deleted from the allowances list. The Total Allowances

of Branch No. 8 are to be revised as follows: under Section 29,

from $3,965 to $2,185, under Section 30, from $3,960 to $2,180,

and the total from $7,925 to $4,365. As well, the Total

Allowances on the Allanport Road Municipal Drain are to be

revised from $84,700 to $81,140.

Section 10.1 - Future Extensions and Improvements - Pages 60

to 62.. The following text is to be inserted as a new paragraph at

the end of Section 10.1 on page 62: “The design of the

stormwater management facility has not been revised to reflect

the deletion of the back portions of those properties formerly

within the drainage area of Branch Drain No. 8, which now

drain into Branch No. 1 or out of the watershed, and as such,

do not contribute runoff to the facility. The stormwater

management pond benefit assessments formerly assigned to

these properties have been charged to the Municipality’s Road

Allowance for Glover Road. If, in the future, a Petition by

Landowners is received for the reinstatement of the upper

portion of Branch Drain No. 8, these properties, once

developed, would contribute runoff to the stormwater

management facility, and as such, should be treated in a

similar fashion to those lands designated as “opting out” of

using the pond, and wishing to “buy back in” sometime in the

future, as noted above. These revised assessments and any

others necessitated by the reinstatement of the deleted Branch

Drains could be treated as a reapportionment of the assessment

schedules as per Section 66 (1) of the Drainage Act.”.

Cost Estimate for Branch No. 8, Page 70 - The estimated cost for

the excavated channel works, Item 1(a), is to be revised from

$28,600 to $16,000. The limits of the drain are to be revised from

Sta. 1+426 to Sta. 0+797. Subtotal cost is to be revised from

$30,200 to $17,600. The Contingency Allowance is to be revised

from $3,100 to $1,800. The Total Construction Cost for Branch

No. 8 is to be revised from $33,300 to $19,400.

Cost Estimate on Page 71 - Section ‘B’: Allowances are to be

revised from $84,700 to $81,140. Section ‘D’: GST is to be

revised from $73,200 to $72,230. Total Estimated Costs:

Allanport Road Municipal Drain, are to be revised from

$1,228,600 to $1,210,170.

The overall watershed area drawings (Nos. 1 and 1A) are to be revised to reflect the change in the drainage area caused by the deletion of the Upper Portion of Branch Drain #8. In addition, internal watersheds for all branch drains shall be shown. Similarly, the profile drawing for Branch Drain # 8 (Drawing No. 3) is to be revised to reflect the change in the scope of work to be undertaken.

The assessment schedules contained in the Final Engineer’s Report, Revised July 31st, 200, are to be such that the approximate affected areas are adjusted to reflect the changes detailed above, and the total allowances, total benefit, total outlet and total assessments for the properties listed below are to be adjusted as follows:

Property Roll Number	Branch of Drain	Approx. Affected Area (ha)	Total Allowance ($)	Total Benefit ($)	Total Outlet ($)	Total Assessment
26-211-00 L. & L.H. Harju	Main	6.12	0	160	569	729
	#1	6.12	0	0	413	413
	#2	0	0	0	0	0
	#8	0	0	0	0	0
	All	6.12	0	160	982	1,142
26-211-03 G.G. & C. Gearing	Main	7.87	0	206	732	938
	#1	5.92	0	0	400	400
	#2	1.95	0	0	265	265
	#8	1.95	790	674	1,060	1,734
	All	7.87	790	880	2,457	3,337
26-210-25 W. & L. Knash	Main	0	0	0	0	0
	#1	0	0	0	0	0
	#2	0	0	0	0	0
	#8	0	0	0	0	0
	All	0	0	0	0	0
26-210-24 Walynn Enterprises Inc.	Main	1.09	0	1,193	246	1,439
	#1	0.19	0	0	13	13
	#2	0.90	0	0	434	434
	#8	0	0	0	0	0
	All	1.09	0	1,193	693	1,886
26-210-23 Farr Drainage Ltd.	Main	1.28	0	835	289	1,124
	#1	0.68	0	0	46	46
	#2	0.60	0	0	290	290
	#8	0	0	0	0	0
	All	1.28	0	835	625	2,985*
* Area and Assessments on Branch 5 unchanged
26-210-21 J. Grimo	Main	1.28	0	835	289	1,124
	#1	0.68	0	0	46	46
	#2	0.60	0	0	290	290
	#8	0	0	0	0	0
	All	1.28	0	835	625	1,460
26-210-20 M. Grimo	Main	1.28	0	835	289	1,124
	#1	0.68	0	0	46	46
	#2	0.6	0	0	290	290
	#8	0	0	0	0	0
	All	1.28	0	835	625	1,460
26-210-15 J. Grimo	Main	3.78	0	2,500	853	3,353
	#1	1.98	0	0	134	134
	#2	1.80	0	0	869	869
	#8	0	0	0	0	0
	All	3.78	0	2,500	1,856	4,356
26-210-14 Advance Enterprises Inc.	Main	1.01	0	630	263	893
	#1	0.56	0	0	38	38
	#2	0.45	0	0	217	217
	#8	0	0	0	0	0
	All	1.01	0	630	518	1,148
26-210-13 149996 Ontario Ltd.	Main	1.01	0	630	263	893
	#1	0.56	0	0	38	38
	#2	0.45	0	0	217	217
	#8	0	0	0	0	0
	All	1.01	0	630	518	1,148
26-210-12 G.G. & C. Gearing	Main	1.01	0	630	263	893
	#1	0.56	0	0	38	38
	#2	0.45	0	0	217	217
	#8	0	0	0	0	0
	All	1.01	0	630	518	1,148
26-210-11 458770 Ontario Ltd.	Main	1.01	0	630	263	893
	#1	0.56	0	0	38	38
	#2	0.45	0	0	217	217
	#8	0	0	0	0	0
	All	1.01	0	630	518	1,148
City of Thorold Road Allowance – Glover Road	Main	4.90	0	17,517	1,926	19,443
	#1	1.26	0	0	345	345
	#2	1.26	0	0	5,412	5,412
	#8	1.26	0	2,590	17,896	20,486
	All	4.90	0	20,107	25,579	45,686

Findings Related to all Appeals Heard on the proposed Allanport Road Municipal Drain

The Tribunal has in the past expressed concerns when two engineers appear to defend a report that is under appeal. The Tribunal’s concern is for the increased cost this places on assessed landowners. Because of the complexity of this particular report, the Tribunal is less concerned that two engineers were present throughout much of the hearing. However, the Tribunal does note that the Municipality does have recourse under Section 72 of the Act.

The Tribunal notes that it was necessary to adjourn the Hearing for approximately one hour at the outset of the hearing in order that the engineers could make sufficient copies of exhibits. This wasted the time of the Tribunal and inconvenienced the members of the public who came prepared to deal with their appeals that day. The engineers should have known the number of copies required and come prepared.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The engineer is directed to consolidate into one consolidated Allanport Road Municipal

Drain Final Engineer’s Report all of the changes outlined in this decision. This

consolidated report is also to include depictions of the watersheds for the Main Drain and

each branch drain. One copy of this consolidated document is to be filed with the Municipality and is to be available to be viewed by the public on request. The

Municipality shall make copies of the consolidated document for the public upon request but the cost of copying shall be borne by the person requesting the copy and shall not charged to the drain.

2. The non-administrative costs of the Municipality in respect to these appeals 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.

Dated at London, Ontario this 22nd day of June, 2001.