Municipality of Thames Centre v. Loucks, 2002 ONAFRAAT 38

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:

Walker Drain Improvement – 2001 Municipality of Thames Centre

Walker Drain Improvement – 2001 (RE) [Interlocutory Order] 2002 ONAFRAAT 38

STATUTE:

Drainage Act

HEARING:

October 16, 2002

DATE OF DECISION:

November 4, 2002

2002-38

NEUTRAL CITATION:

2002 ONAFRAAT 38

Walker Drain Improvement – 2001 [Interlocutory Order]

Municipality of Thames Centre

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

AND IN THE MATTER OF: A request by the Municipality of Thames Centre, pursuant to Rule 29 of the Rules of Procedure of the Agriculture, Food and Rural Affairs Appeal Tribunal, that the Tribunal review its decision of May 29, 2002 with respect to the appeal to the Tribunal by:

K. Loucks K. Dimtrick Barbara Reid V. Chanyi

G. Dewit Paul Sinclair Jerry Baker T. Buys

Jacalin Ramsay R. Zweers W. Zweers S. & C. Fiedler

Mike Leal R. & L. Vanbesien P. Reid Richard Tipping

Shelley Wouters Tony Moonen Margaret Mitchell Frances M. Strothard

under Section 48 of the Drainage Act from the engineer’s report on the Walker Drain Improvement –2001 in the Municipality of Thames Centre.

Before: Andrew Osyany, Vice Chair Paul Gillen, Vice Chair

Jack Young, Vice Chair Bill Olson, Member

Appearances:

D. Broad, counsel to the Municipality of Thames Centre

Paul Elston, P.Eng.

Daryl Loucks, assessed landowner

G. DeWit, assessed landowner

Jerry Baker, assessed landowner

Margaret Mitchell, assessed landowner

INTERLOCUTORY DECISION OF THE TRIBUNAL

This request for a review of the Tribunal decision dated May 29, 2002 on the Walker Drain Extension - 2001 was heard in Dorchester, Ontario on October 16, 2002. The Tribunal adjourned the proceeding to allow for the provision of additional evidence.

Michelle Casaveccia, Clerk of the Municipality of Thames Centre (the municipality) 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.

The Issues

The issues before the Tribunal were:

1. Should the Tribunal amend Point 1 (i )of its decision on the Walker Drain Extension - 2001 to alter the route of the proposed drain?

2. Should the Tribunal amend Point 1 (iv) of its decision to incorporate the portion of the Walker Drain located on the property identified by Roll No. 031-134 (the Baker property) into the proposed drainage works, rather than provide for an easement across the Baker property?

3. Should the Tribunal amend Point 1 (v) of its decision to refer to a special assessment, rather than a special benefit?

4. Should the Tribunal order the circulation of the revised engineer's report to affected landowners and provide for direct appeals to the Tribunal, rather than through the Court of Revision?

The Background

The Tribunal held a hearing on April 17, 2002 to hear appeals by several assessed landowners who were dissatisfied with the design of a proposed drainage works - the Walker Drain Improvement - 2001 in the Municipality of Thames Centre. After considering the evidence presented, the Tribunal ordered that the municipality send the report back to the engineer, Mr. Paul Elston, P.Eng, to have the project redesigned. The Tribunal ordered that the drain be constructed along a route recommended by Mr. John Kuntze, P.Eng, an engineer retained by some of the appellants. Subsequently, the municipality requested the Tribunal review its decision, as new evidence, which was not available at the time of the hearing, had come to light. The Tribunal agreed to convene a hearing for the purpose of reviewing its decision.

The Evidence

The Tribunal heard from Mr. Paul Elston P. Eng. and from Mr. Daryl Loucks, a landowner assessed in the report. Written submissions were received from Mr. John Kuntze, P. Eng. and several assessed landowners.

Mr. Elston indicated he had some concerns with the Tribunal order of May 31, 2002. He said the cost of constructing the drain in the location ordered by the Tribunal would be $10,000 - $15,000 higher than an alternate route favoured by the municipality, due in part to the existence of hydro, water, telephone and gas lines that had not been identified at the Tribunal's hearing as well as the proximity of the Ramsay septic bed and house foundation. No engineering sketches, profiles or cross-sections were presented to support these potential problems. He indicated that he had not considered placing the drain on the Hill property. He did not favour placing the drain on, or close to, the property line but did not give supporting reasons.

Mr Elston pointed out that Mr. Kuntze, had indicated that he would not recommend the alternative ordered by the Tribunal if it cost more than putting the drain in the location originally chosen by Mr. Elston.

Mr. Loucks (Roll 031-129) said that he, as well as some of his neighbours, wanted the drainage works to be constructed as cheaply as possible.

Mr. Dewitt (Roll 031-132) questioned Mr. Elston on the potential for damage to his residence if the drain were constructed on the Neilson/Sinclair property immediately adjacent to his property. Mr. Elston indicated that that section of drain could be moved further from the property line. He also stated that he had not spoken with Neilson/Sinclair about placing a new drain on their property and the proposed removal of a portion of their cedar hedge.

Mr. Elston also suggested incorporating a section of the existing Walker Drain on the Baker property (Roll 031-134) into the drainage works as an alternative to providing an easement. This prompted discussion regarding the possibility of constructing the drain following an alignment close to the location of the existing Walker Drain.

Requests were also made to change "special benefit" to a "special assessment" and provide for an expedited appeal process so that the project could be completed in a more timely manner.

Analysis

After hearing all the evidence presented, the Tribunal is not confident that the option of locating the drain in the location ordered by the Tribunal has been thoroughly investigated. The Tribunal is also concerned with the lack of evidence on the presence or absence of utilities in the location desired by Mr. Elston, and the lack of consultation with the landowners as to the best location of the drain if it is to be situated in that location. The Tribunal is also concerned that sufficient attention was not given to locating the drain close to its present location rather than disrupting properties that previously did not have drains crossing them.

The Tribunal adjourned its hearing in this matter to allow the municipality to provide additional evidence.

ORDER OF THE TRIBUNAL

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

1. The hearing into this matter is adjourned. The hearing is to be continued at some time after January 1, 2003.

2. The engineer is directed to provide to the Tribunal and the other parties to the appeal:
   a) (i) A detailed plan of the land between the residences on the Hill property (Roll No. 031- 136) and the Ramsey property (Roll No. 031-135) showing all objects affecting the proposed drain including utilities.
   (ii) A profile along the drain between the properties.
   (iii) Cross-sections of any problem area.
   b) a detailed sketch of the Neilson/Sinclair property showing hedges, utilities, fences and septic beds.
   c) a detailed sketch of the lands where the existing Walker Drain crosses the Ramsey, Buys and Baker properties (Roll Nos. 031-135, 031-134-05 and 031-134 respectively) showing all topographic features and the present route of the drain.
   d)The estimated cost of these three alternatives including the cost of restoring the affected properties to their original condition, or the cost of compensation if the landowners would prefer to undertake the restoration themselves.
   e) A recommended alternative, with reasons, based on cost as well as other considerations.

Note: sketches or plans shall be prepared using existing topographic maps or aerial photography and shall be working drawings only, to keep costs to a minimum.

3. The engineer is directed to consult with the owners of the Nielsen/Sinclair property (Roll No. 031-133) as to the optimum location of the drain on their property, should the alternative route be chosen. The consultation shall also include the proposed restoration of their property. The Tribunal directs that all reasonable efforts be taken to make personal contact with these landowners.

4. The engineer is directed to determine the location of the existing Walker Drain on the Baker property, if it is functional and how can be connected to the proposed drain.

5. The costs of this application shall be dealt with at the time of the final disposition of this matter.

Dated at Shelburne, Ontario this 4th day of November, 2002.