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:
Harper Municipal Drain Municipality of Southwest Middlesex
Harper Municipal Drain (RE) 2002 ONAFRAAT 16
STATUTE:
Drainage Act
HEARING:
April 29, 2002
May 1, 2002
2002-16
NEUTRAL CITATION:
2002 ONAFRAAT 16
Harper Municipal Drain Municipality of Southwest Middlesex
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 the Municipality of Southwest Middlesex under Section 76 of the Drainage Act requesting permission to procure an engineer’s report for the purpose of varying the assessments on the Harper Municipal Drain.
Before:
Murray Cardiff, Chair; Andrew Osyany, Vice Chair
DECISION OF THE TRIBUNAL
This application was considered by way of a written hearing on Monday, April 29, 2002. The Council of the Municipality of Southwest Middlesex applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) for permission to procure a report by an engineer pursuant to Section 76 of the Drainage Act.
Section 76 of the Drainage Act states:
Varying original assessments for maintenance
76 (1) The council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance and repair of the drainage works may make an application to the Tribunal, of which notice has been given to the head of every other municipality affected by the drainage works, for permission to procure a report of an engineer to vary the assessment, and, in the event of such permission being given, such council may appoint an engineer for such purpose and may adopt the report but, if all the lands and roads assessed or intended to be assessed lie within the limits of one local municipality, the council of that municipality may procure and adopt such report without such permission. R.S.O. 1990, c. D.17, s. 76 (1).
Proceedings on report of engineer
(2)The proceedings upon such report, excepting appeals, shall be the same, as nearly as may be, as upon the report for the construction of the drainage works. R.S.O. 1990, c. D.17, s. 76 (2).
Appeal from report of engineer
(3) Any council served with a copy of such report may, within forty days of such service, appeal to the Tribunal from the finding of the engineer as to the portion of the cost of the drainage works for which the municipality is liable. R.S.O. 1990, c. D.17, s. 76 (3).
Appeal from assessment
(4) Any owner of land assessed for maintenance or repair may appeal from the assessment in the report on the grounds and in the manner provided by section 52 in the case of the construction of the drainage works. R.S.O. 1990, c. D.17, s. 76 (4).
Basis of future assessments
(5) An assessment determined under this section shall thereafter, until it is further varied, form the basis of any assessment for maintenance or repair of the drainage works affected thereby. R.S.O. 1990, c. D.17, s. 76 (5).
The Background
The Harper Drain was constructed pursuant to a by-law passed by the Council of the Township of Mosa on March 2, 1968. The Township of Mosa was later amalgamated into the Municipality of Southwest Middlesex. The drainage works commences in the former Township of Mosa and outlets in the former Township of Zone, which has been amalgamated into the Municipality of Chatham-Kent.
The Harper Drain consists of a main drain with approximately 1,900 feet of 16-inch and 14-inch farm tile and approximately 1,250 feet of open ditch, as well as two open ditch branch drains, 340 feet and 200 feet in length.
The Issue
The issue before the Tribunal was:
- Should the application by the Municipality of Southwest Middlesex for permission to procure an engineer’s report be granted?
The Evidence
In a letter dated February 1, 2002, Mrs. B.A. MacKinnon, Clerk, Municipality of Southwest Middlesex indicated the municipality had received a request from a ratepayer on Harper Drain and that conditions had changed such that a variation of the assessments for maintenance and repair of the drainage works was justified.
In a letter dated March 18, 2002, Mr. Tim Dick, Manager, Drainage Services, Municipality of Chatham-Kent indicated that the affected landowner, Mr. Van Brackel (Lot 28, Conc. 1, Mosa) had a valid concern, and that the Municipality of Chatham-Kent concurred with the Municipality of Southwest Middlesex on the need for a new schedule of assessments.
The Findings
After consideration of the submissions made, the Tribunal decided to grant the Municipality of Southwest Middlesex permission of the Tribunal to appoint an engineer under Section 76 of the Drainage Act to procure a report to vary the assessment on the Harper Drain.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Municipality of Southwest Middlesex is granted permission to appoint an engineer pursuant to Section 76 of the Drainage Act to procure a report to vary the assessment on the Harper Drain.
The non-administrative costs of the Township in respect to this appeal 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 Guelph, Ontario this 1st day of May, 2002.