Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Hillebrecht Drain Township of West Perth
Hillebrecht Drain (RE) 2001 ONAFRAAT 33
STATUTE:
Drainage Act
HEARING:
June 7, 2001
July 3, 2001
2001-33
NEUTRAL CITATION:
2001 ONAFRAAT 33
Hillebrecht Drain Township of West Perth
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 Carl Hillebrecht under Section 5(2) of the Drainage Act from the decision of the Council of the Corporation of the Township of West Perth not to proceed with drainage works as requested in his petition.
Before:
John Taylor, Vice Chair; Jack Young, Vice Chair; Ralph Huckle, Member.
Appearances:
Carl Hillebrecht, appellant John Langlois, Counsel to Mr. Hillebrecht David Johnston, P.Eng, for the appellant Patricia Taylor, Clerk-Administrator, The Municipality of West Perth Jim Demerling, Deputy Clerk-Treasurer The Municipality of West Perth Ken Clarke, Manager Of Works, The Municipality of West Perth
DECISION OF THE TRIBUNAL
This appeal was heard in the town of Mitchell, Ontario on June 7, 2001. Mr. Carl Hillebrecht appealed the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 5(2) of the Drainage Act (the Act) from the decision of the Council of the Corporation of the Township of West Perth not to proceed with drainage works as requested in his petition.
Section 5 of the Act states:
(1) Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition,
(a) if it decides not to proceed with the drainage works, give written notice of its decision to each petitioner; or
(b) if it decides to proceed with the drainage works, give written notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources. R.S.O. 1990, c. D.17,s. 5(1).
(2) Where a petitioner,
(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or
(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council, the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 5 (2).
The Issue
The issue before the Tribunal is:
Did the Municipality of West Perth act improperly in not proceeding with the drainage works based on the petition filed by Carl Hillebrecht in accordance with Section 4 of the Act.
The Evidence and the Findings
A number of persons gave evidence with respect to the existing tile drain across the appellant’s property. While a lot of the evidence could not be substantiated and is not relevant to the Section 5 appeal, there are a number of points which provide background information with respect to the drainage problem.
- In about 1920, a 6” tile drain was constructed across the appellant property to carry water from the cemetery and other lands on the east side of Highway 23 to outlet west of the appellant’s property.
- A house was constructed on the property in about 1977 and a portion of the tile drain was diverted around the new foundation.
- Mr Hillebrecht purchased the property in 1985.
- In late 1997, Mr. Hillebrecht had water problems in his basement.
- A number of changes and improvements have been made to the tile drain since 1977 with the municipality paying for a substantial portion of the cost for work on private property.
Mr. Hillebrecht, in addition to giving evidence with respect to the existing tile drain, responded to questions from the Tribunal, he said that:
- The existing tile drain is working satisfactorily at present.
- He is concerned that he may be liable for damage should future problems occur.
- He did not know which properties were receiving benefit from the drain.
- He did not know the extent of the drainage pipe and tile currently on his property.
- He wanted a new drain constructed.
- He did not think it was a private drain.
- The drain was removing no water from his property.
- He has been trying to resolve the problem with the township from the time he first noticed a problem. It has not been resolved to his satisfaction.
- He acknowledged that, as the petitioner, he may be responsible for all of the engineering and administrative costs if a preliminary report were prepared and the project did not proceed.
- He acknowledged that, as the major landowner in the drainage project, he would be charged a major portion of the project costs either as direct benefit or benefit by cutoff.
- He indicated he was willing to accept these major costs to be able to have a resolution to his drainage problem.
Mr. Langlois told the Tribunal that Mr. Hillebrecht had made every effort to come to an agreement about cost sharing with the Cemetery Board. He said that, Mr. Hillebrecht exhausted all avenues of resolution until he felt he had no option but to petition for a municipal drain.
Pat Taylor testified on behalf of the Municipality of West Perth. She explained that the municipality reviewed Mr. Hillebrechts’ petition and found that it did not satisfy any of the criteria as outlined in Section 4 of the Drainage Act.
In response to questions from Mr. Langlois, Ms. Taylor said that: the petition need only meet one of the four criteria to be granted. She explained that the municipality considered the drain to be in good working condition, due to significant expenditure by the municipality. She said that the municipality did not consider the area as being in need of further drainage.
Mr. Langlois said in summation that the petition is justified. He said that there was an area that needed drainage, though it remained to be determined by an engineer, where the water came from and which property owners may be assessed for any possible construction. Mr. Langlois asked that the appeal be granted and that his clients legal costs be awarded.
Findings
The Tribunal finds that there is a water course flowing across the property of Mr. Hillebrecht. The water is artificially collected at some point, therefore, he has a right to expect an outlet be provided and the owners of the properties that the drain benefits should be assessed, as provided for in the Drainage Act.
The Tribunal reviewed the petition signed by Mr. Hillebrecht. The area described in the petition is the property that he owns. Reference is made to Section 9(2) of the Act, which requires the engineer, not municipal council, to determine the area requiring drainage and to determine if the petition is valid.
The fact that the municipality did not proceed with his petition has caused the appellant to seek costs, as it became necessary for him to hire legal representation. However, as Mr. Hillebrecht admits, the municipality, at its expense, has done considerable work on his property to improve the drainage situation.
The municipality acted improperly in refusing to act upon the petition. A reasonable effort to describe the area that needed drainage improvement was outlined in the petition.
ORDER OF THE TRIBUNAL
Having considered the evidence and representations made by the parties, the Tribunal orders:
The appeal of Carl Hillebrecht under Section 5(2) of the Drainage Act is granted. The municipality is to proceed to take action and appoint an engineer as outlined in Section 8(1) of the Drainage Act. The Tribunal recommends that the municipal council may wish to commission a preliminary report as outlined in Section 10 of the Act.
The Tribunal makes no order as to costs.
Vice Chair, Dated at Tilbury, Ontario this 3rd day of July, 2001.