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: Municipal Drain No. 21 Township of West Grey

Municipal Drain No. 21 (RE) [July 4] 2001 ONAFRAAT 34

STATUTE: Drainage Act

HEARING: June 7 and 25, 2001

DATE OF DECISION: July 4, 2001

2001-34

NEUTRAL CITATION: 2001 ONAFRAAT 34

Municipal Drain No. 21 [July 4]

Township of West Grey

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: A reference to the Agriculture, Food and Rural Affairs Appeal Tribunal by the Municipality of West Grey under Section 51 of the Drainage Act regarding a requirement by the Department of Fisheries and Oceans Canada that modifications be made to the drainage works proposed in the Engineer’s Report dated March 16, 2000 on the Dippel Drainage Works in the Township of West Grey, for the purpose of including measures to compensate for damage to fish habitat expected to be caused by the construction of the drain. The name of the Dippel Drainage Works was changed to Municipal Drain No. 21 on April 16, 2001.

Before: John Taylor, Vice Chair Jack Young, Vice Chair

DECISION OF THE TRIBUNAL

This matter was considered by way of a written hearing on June 7, 2001 and June 25, 2001.

Section 51 of the Act states:

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.

51(2) The parties to an appeal or reference to the Tribunal under this Act shall be the person making the appeal or reference and such other persons as the Tribunal may specify. R.S.O. 1980, c. 126, s. 51.

The Background

A March 16, 2000 Engineer’s Report by Gamsby and Mannerow Limited proposed the incorporation of existing private open ditch drain into a municipal drain. It was proposed that the existing drain be deepened and extended to provide adequate drainage for farmland.

The Tribunal heard an appeal made under Section 54 of the Act in January 2001 and issued a decision on that matter on February 19, 2001. Assessments were the only issue in that appeal.

Subsequent to the Tribunal decision, on April 16, 2001 the Township of West Grey passed By-law Number 64-2000 which provided for the construction of the drainage works and the borrowing of funds required for this construction.

The drainage works were not constructed as proposed in the Engineer’s Report dated March 16, 2000 as a representative of the Department of Fisheries and Oceans Canada (DFO) raised concerns with regard to fish habitat. The DFO required modifications to the drainage works which increased the projected cost of the project.

The Issue

The questions put before the Tribunal in this matter were:

1. Is simply pro-rating the outlet and benefit assessments to reflect the higher costs acceptable?

2. Is another meeting required to consider a revised report or could the report simply be sent to the assessed parties?

3. Do assessed parties have another opportunity to appeal their assessments?

4. Which section of the Act applies to this situation?

The Evidence and the Findings

Mr. Wm. J. Mannerow, P.Eng, provided documentation to the Tribunal which indicated that the DFO had concluded that the proposed drainage works would result in the harmful alteration, disruption or destruction of fish habitat. Consequently, Mr. Lonnie King, Fish Habitat Biologist, DFO required a modification to the proposed drainage works to compensate for this disruption and the loss of channel diversity. Mr. Mannerow determined that the cost of the project would increase by approximately $15,000 or 47%, due to the modifications required by the DFO.

The Tribunal finds that this matter would be most appropriately dealt with by the Council of the Township of West Grey referring the report back to the engineer for reconsideration and revision, and then dealing with the revised report in the same manner as the original report.

Section 57 of the Act provides a municipality with the authority to refer a report back to an engineer at any time before passing the by-law authorizing the drainage works. The Tribunal finds that it is appropriate in this instance for it to use its authority under Section 51 of the Act to allow for the municipality to refer the report back to the engineer, even though the by-law has already been passed.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed the Tribunal orders:

1. The Council of the Township of West Grey may, pursuant to Section 57 of the Act, refer the March 16, 2000 report by Gamsby and Mannerow Ltd., back to the engineer for modification to include the work required by DFO and to revise the assessment schedules to include the distribution of the cost of this work. A further report of the engineer shall be dealt with in the same manner and the proceedings thereon shall be the same as upon the original report.

Dated at Tilbury, Ontario this 4th day of July 2001.