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:
Small Drain, Norman Drain West, Norman Mills Drain Municipality of Central Elgin
Small Drain, Norman Drain West, Norman Mills Drain (RE) 2002 ONAFRAAT 43
STATUTE:
Drainage Act
HEARING:
November 20, 2002
DATE OF DECISION:
December 3, 2002
2002-43
NEUTRAL CITATION:
2002 ONAFRAAT 43
Small Drain, Norman Drain West, Norman Mills Drain
Municipality of Central Elgin
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 Corporation of the Municipality of Central Elgin under Section 76 of the Drainage Act requesting permission to procure an engineer’s report for the purpose of varying the assessments for maintenance on the Small Drain, Norman Drain West, Norman Drain and Mills Drain in the Municipality of Central Elgin (formerly Yarmouth Township).
Before:
John Taylor, Vice Chair; Jack Young, Vice Chair
DECISION OF THE TRIBUNAL
This application was considered by way of a written hearing on Wednesday, November 20, 2002. The Council of the Municipality of Central Elgin applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) for permission to procure reports by an engineer on the Small Drain, the Norman Drain West, the Norman Drain and the Mills Drain, 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 Norman Drain (West Portion) was constructed pursuant to a by-law passed on February 17, 1981 by the Council of the Township of Yarmouth. Lands in the Township of Yarmouth and the City of St. Thomas were assessed for the drainage works. The Norman Drain, which also included lands in both these municipalities, was constructed after a by-law was passed on June 1, 1982.
The Mills Drain and the Small Drain were originally constructed pursuant to an engineer's report dated August 28, 1905. Both drains were re-constructed as a result of a report that was adopted in a by-law passed on June 4, 1962 by the Council of the Township of Yarmouth. The Small Drain was reconstructed again after an engineer's report was adopted in a by-law passed August 4, 1972 by the Council of the Township of Yarmouth. The City of St. Thomas is not referenced in the by-laws allowing for the Mills Drain and the Small Drain.
The Norman Drain (West Portion), the Norman Drain, the Small Drain and the Mills Drain service a mix of agricultural lands, residential and/or institutional lands and roadways.
The Township of Yarmouth was amalgamated into the Municipality of Central Elgin on January 1, 1998.
The Issue
The issue before the Tribunal was:
- Should the application by the Municipality of Central Elgin for permission to procure an engineer’s report on these drains be granted?
The Evidence
In a letter dated September 24, 2002, Mr. Donald Lietch, Clerk, Municipality of Central Elgin indicated that there had been changes in the watersheds of the Small Drain, Mills Drain, Norman Drain and Norman Drain West. These changes included boundary changes between the Municipality of Central Elgin and the City of St. Thomas, land severences and changes in land use within the watershed. He submitted that the assessment schedules contained in the current by-laws for these drains were out of date. Mr. Lietch indicated that the Council of the Municipality of Central Elgin had directed him to apply to the Tribunal for permission to procure a report to vary the maintenance assessment schedules on these drains.
In an electronic mail transmission dated November 5, 2002, Mr. Burt Long, Manager of Operations, Environmental Services, City of St. Thomas indicated that the City of St. Thomas had no objection to an engineer being appointed to prepare a report on these four drains to update the assessment schedules. Mr. Long confirmed, in a facsimile transmission dated November 19, 2002 that the City of St. Thomas had received a copy of the relevant drainage plans, engineers' reports and assessment schedules and that the City of St. Thomas did not object to the appointment of an engineer.
The Findings
After consideration of the submissions made, the Tribunal decided to grant the Municipality of Central Elgin permission of the Tribunal to appoint an engineer under Section 76 of the Drainage Act to procure a report to vary the assessments on the Small Drain, the Norman Drain, the Norman Drain West and the Mills Drain.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Municipality of Central Elgin is granted permission to appoint an engineer pursuant to Section 76 of the Drainage Act to procure a report(s) to vary the assessments on the Small Drain, the Norman Drain, the Norman Drain West and the Mills 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 3rd day of December, 2002.