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:
Allan-Connell Municipal Drain [Petition] Tay Valley Township
Allan-Connell Municipal Drain (RE) [Petition] 2002 ONAFRAAT 31
STATUTE:
Drainage Act
HEARING:
August 26, 2002
DATE OF DECISION:
August 29, 2002
2002-31
NEUTRAL CITATION:
2002 ONAFRAAT 31
Allan-Connell Municipal Drain [Petition]
Tay Valley Township
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 Dr. Kenneth G. Allan, Perth, ON, under Section 5 of the Drainage Act from a decision of the Council of the Tay Valley Township (formerly the Township of Bathurst, Burgess and Sherbrooke) to reject a petition for drainage for part of Lot 9, Concession 10 North Burgess and part of Lot 10, Concession 9 North Burgess.
Before:
Andrew Osyany, Vice Chair; Murray Cardiff, Chair; Yvon Simoneau, Vice Chair
Appearances:
Kathy Coulthart-Dewey, CEO and Clerk, and Todd Perry, P. Eng. for the respondent, Tay Valley Township,
Dr. Kenneth Allan, appellant
Neris Allan, witness for appellant
Matthew Craig, Environmental Planner, Rideau Valley Conservation Authority
Glen Dewey, interested landowner, also representing Mrs. Helen Ferrier, interested landowner
Tom Pfotenhauer, interested landowner
George Walker, interested landowner
DECISION OF THE TRIBUNAL
This appeal was heard in Stanleyville, Ontario on August 26, 2002. Dr. Kenneth Allan appealed from a decision of the Council of the Tay Valley Township (the municipality) to reject a petition for the drainage of two properties he owned in the municipality.
Ms. Marnie Turmel, Administrative Assistant, Tay Valley Township, performed the duties of the Clerk of the Tribunal. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Section 5 of the Act states:
Drainage works constructed on petition
- (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).
Appeal to Tribunal
(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 issues before the Tribunal were:
Should the Tribunal order the Council of the municipality to proceed with the drainage works for lands owned by Dr. Allan and identified as part of Lot 9, Concession 10 North Burgess and part of Lot 10, Concession 9 North Burgess?
Should the Tribunal order the Council of the municipality to instruct the engineer retained for the Allan-Ferrier drainage works to include the aforementioned properties in that drainage works?
The Evidence
Dr. Ken Allan and Mrs. Neris Allan told the Tribunal that the Council's reasons for denying the petition for drainage were not valid. Dr. Allan explained that he petitioned for drainage for the two properties on the advice of Mr. Perry, the engineer retained on the Allan-Ferrier drainage works. He testified that both properties experienced flooding and that they would benefit from drainage. Dr. Allan also raised concerns with the legality of a culvert that had been installed on the 9th Concession Road by the municipality and with the authority of the Rideau Valley Conservation Authority to prevent the removal of beaver dams in an Award Drain.
Dr. Allan said that he was concerned with proceeding by way of a petition drain as there is no way to control engineering costs, but he was reluctant to withdraw his name from the Allan-Ferrier petition as he understood he would then be responsible for all costs incurred to date. He said that if the Matheson Award Drain were brought back to its original condition, he felt his drainage problems would be largely resolved.
At the request of the municipality, the Tribunal adjourned the hearing to allow the parties to attempt to negotiate a settlement to the dispute. Minutes of Settlement reached between Dr. Allan and Mr. Perry, representing the municipality, were filed with the Tribunal and read aloud at the hearing and are reproduced below:
Aug. 26/2002
In a matter involving a petition by Dr. Ken Allan to the Drainage Tribunal hearing, date Aug. 26/2002
Tay Valley Township and Dr. Ken Allan Agree as follows:
A) That Dr. Allan will withdraw his name from the April 5, 2002 extension of petition and the October 2000 both regarding what is now known as the Allan/Ferrier Drain.
B) That K. Allan agreed to pay to the municipality the sum of $1,000.00 toward engineering fees incurred by the township, to and including Aug. 26/2002.
C) That Tribunal's costs for the hearing of Aug. 26/2002 be paid for as directed by the Tribunal.
D) That the Township agree to seriously consider a recommendation from McIntosh-Perry and the Township Drainage Superintendent regarding drainage improvements on the 9th Concession Road in Burgess Ward and the lane between Dr. Allan and Helen Ferrier's land.
On behalf of the township Dr. K. Allan Ken Perry
No participant in the hearing or observer spoke against the proposed settlement. It was clarified that Dr. Allan was the only petitioner on the Allan-Ferrier Drain.
On the question of costs, Dr. Allan submitted that his cost in participating in the hearing should be covered by the municipality. The Minutes of Settlement addressed the cost of Mr. Perry's attendance at the Hearing.
The Findings
The Tribunal accepts the Minutes of Settlement negotiated between the appellant and the municipality. As the settlement includes an agreement that Dr. Allan will withdraw his petition for drainage that is the subject of this appeal, the Tribunal will dismiss his appeal.
The Tribunal finds that there shall be no order regarding costs and all parties shall be responsible for their own costs. The Tribunal recognises that the cost of having an engineer in attendance at the hearing is addressed in the Minutes of Settlement.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The appeal by Dr. Kenneth Allan made pursuant to Section 5 of the Drainage Act is dismissed.
There shall be no order as to costs and all parties are responsible for their own costs.
Dated at Shelburne, Ontario, this the 29th day of August, 2002.