Agriculture, Food and Rural Affairs Appeal Tribunal
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
1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Foster Municipal Drain Beckwith Township
Foster Municipal Drain (RE) [Interim Decision] 2003 ONAFRAAT 22
STATUTE:
Drainage Act
HEARING:
April 16, May 16, and June 5, 2003
DATE OF DECISION:
July 4, 2003
2003-22
NEUTRAL CITATION:
2003 ONAFRAAT 22
Foster Municipal Drain [Interim Decision] Beckwith 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 John Campbell and Karen Campbell, Carleton Place, Ontario under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and the engineer’s report on the Foster Municipal Drain in Beckwith Township.
Before:
Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair; Elwood Quaile, Member
Appearances:
Richard Knott, counsel to the appellants, John and Karen Campbell Guy Cormier, P. Eng., J. L. Richards & Associates Limited for the Municipality Jim Caldwell, J. L. Richards & Associates Limited for the Municipality John Campbell, appellant Serge Pharand, assessed landowner Frank Warland, assessed landowner Ann Warland, assessed landowner Karen Wilson, Ontario Ministry of Transportation Marjorie Campbell, assessed landowner Linda Foster, assessed landowner Jim Foster, assessed landowner Shawn Powell, assessed landowner Wes Craig, assessed landowner Andy Deverell, assessed landowner Brian Fumerton, assessed landowner Reg Cable, assessed landowner Andy Robinson.P. Eng., witness Bruce Dewer, witness
INTERIM DECISION OF THE TRIBUNAL
This appeal was heard in Carleton Place, Ontario on April 15, 2003, May 16, 2003 and June 5, 2003. John and Karen Campbell appealed under Sections 48 and 54 of the Drainage Act (the Act) from the decision of the Court of Revision and from the engineer's report dated October 2002 by J. L. Richards and Associates Ltd. (the report) on the Foster Municipal Drain in Beckwith Township (the Municipality). An appeal made by Serge Pharand under the same sections of the Act was withdrawn prior to the hearing.
Ross Trimble, Chief Administrative Officer of the Municipality, performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Foster Municipal Drain parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
The final decision of the Tribunal in this matter, with its reasons, will be issued in September 2003. The Tribunal is releasing this order, ahead of its decision, in order to minimize any further delay in the completion of this drainage works.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Council of the Township of Beckwith is directed to refer the report by J.L. Richards and Associates Limited on the Foster Municipal Drain to a new engineer, other than J.L Richards and Associates Limited and Robinson Consulting Inc., for consideration of the project and in particular the following items: i) Re-establish the boundaries of the area to be drained through the Foster Municipal Drain. This area is to include the additional lands that were temporarily connected to the Foster Municipal Drain via the ditches on the Pharand property and upstream Foster lands. ii) Provide for the abandonment of the Campbell Branch of the Foster Municipal Drain. No restoration to the land is to be considered. iii) Provide current profiles of the Foster Municipal Drain including the new additions to the drain made in the 1980s and 1990s and provide profiles of any additions or modifications proposed to be made. iv) Survey the area of the drain where it has been relocated on the Foster property identified by Roll No. 0924-000-030-07000-0000. v) Provide a design for the work required to upgrade and stabilize the Main West Drain to accommodate the volume of water expected to flow through the drain. The engineer is not constrained to the current configuration of the Main West Drain. vi) Provide a design for abandoning the Main West Drain and expanding the Main East Drain to accommodate all water collected in the drainage area. The Main East Drain may only be widened on the West side. Berms may be used if the engineer has determined that they are not likely to cause flooding to the adjacent lands. Any fencing required shall be placed on the West side of the Main East Drain. vii) Allow Mr. and Mrs. Campbell to examine the cost and assessment estimates and decide whether or not they wish the Main West Drain to be abandoned. Mr. and Mrs. Campbell are to provide their decision in writing to Council at the time it is considering the adoption of the report. Failing the filing of a written decision by Mr. and Mrs. Campbell the drain shall not be relocated. viii) Design the recommended drainage works and include schedules of allowances, construction costs, assessments and maintenance assessments in the revised report in accordance with the Drainage Act
In regard to the Municipality’s costs to date, expenses incurred by the engineer related to attendance at the Tribunal hearing which may be charged to the drainage works are limited to the cost of having one professional in attendance at the proceeding. The new engineer appointed by the Council of the Municipality is directed to assess the MTO a special benefit assessment of $5,000. The new engineer appointed by the Council of the Municipality is directed to assess the balance of the cost of the drainage works incurred by the date of this decision as follows:
One-third to the Campbell property (Roll No. 0924-000-030-06800-0000) as a special benefit assessment.
One third to the additional lands to be added to the drain, to be assessed in proportions determined by the new engineer, as a statutory benefit, in accordance with the Act
One third over the entire watershed of the Foster Municipal Drain, as defined in the new report, as outlet liability.
The municipality is to pay $1,000 to Mr. Robinson, which shall be added to the cost to the drainage works. The balance of Mr. Robinson’s account shall not form part of the costs of the drainage works.
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.
In the event of appeals to the Tribunals or further applications to clarify or modify this order, this panel remains seized of this case. In the event that an appeal is made from the revised report this panel is not seized of the case.
Dated at Shelburne, Ontario this 4th day of July, 2003.