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:
Central Pittsburgh Drain City of Kingston
Central Pittsburgh Drain (RE) 2003 ONAFRAAT 16
STATUTE:
Drainage Act
HEARING:
May 12, 2003
DATE OF DECISION:
May 23, 2003
2003-16
NEUTRAL CITATION:
2003 ONAFRAAT 16
Central Pittsburgh Drain
City of Kingston
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 City of Kingston under Section 76 of the Drainage Act requesting permission to procure an engineer’s report for the purpose of varying the assessments on the Central Pittsburgh Drain.
Before:
Andrew Osyany, Vice Chair; Jack Young, Vice Chair
DECISION OF THE TRIBUNAL
This application was considered by way of a written hearing on Monday, May 12, 2003. The City of Kingston 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 Central Pittsburgh Drain was constructed in 1974 as the result of a petition under the Drainage Act. The watershed of the drain, which is approximately 8,183 acres, lies in the City of Kingston (approximately 7,683 acres) and the Township of Leeds and Thousand Islands (approximately 500 acres). The Main Branch of the Central Pittsburgh Drain is approximately 30,670 feet long but it also contains 15 branch drains. As well, the Central Pittsburgh Drain is the outlet for the Pierce Blasko Drain.
The Issue
The issue before the Tribunal was:
- Should the application by the City of Kingston for permission to procure an engineer’s report be granted?
The Evidence
In a letter dated February 18, 2003, Mr. Jim English, P. Ag., Pollution Prevention Specialist, City of Kingston indicated that the City of Kingston and the Central Pittsburgh Drain Committee, made up of local landowners, had received a request from a landowner assessed on the drain, that a reassessment of the Central Pittsburgh Drain be conducted. Mr. English also stated that in 2001, some landowners on the upper end of the Central Pittsburgh Drain had expressed concerns about the cost of maintenance, annual cleanouts, changing agricultural practices, land use zoning and unfair method of assessment of costs related to the drain.
In an electronic mail transmission dated May 9, 2003, Mr. John A. Trudgen, Clerk-Administrator, Township of Leeds and Thousand Islands, informed the Tribunal that the Council of that municipality had passed a resolution to the effect:
“That the Township of Leeds and Thousand Islands has no objection to the proposed Section 76 Reassessment of the Central Pittsburgh Drain on the condition that the Township landowners’ burden of responsibility and therefore their assessments to the Pierce-Blasko Drain remain unaffected.”
Mr. Trudgen explained that Mr. English had indicated that Township landowners do not currently pay benefit charges and that this status quo should remain with the reassessed report.
The Findings
After careful consideration of the submissions made, the Tribunal decided to grant the City of Kingston 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 Central Pittsburgh Drain.
The Tribunal wants to make it clear that the municipalities cannot impose conditions on the engineer. Section 11 of the Drainage Act requires that:
“The engineer shall, to the best of the engineer’s skill, knowledge, judgement and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.” R.S.O. 1990, c. D. 17. S. 11.
The Tribunal notes that assessed landowners will have the right to appeal the assessments contained in the new engineer’s report.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders: 1. The City of Kingston 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 Central Pittsburgh Drain.
- The non-administrative costs of the City 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 Shelburne, Ontario this 23rd day of May, 2003.