Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 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:
Walker Drain Improvement - 2001 Municipality of Thames Centre
Walker Drain Improvement – 2001 (RE) [July 25 Request for Review] 2003 ONAFRAAT 23
STATUTE:
Drainage Act
HEARING:
DATE OF DECISION:
July 25, 2003
2003-23
NEUTRAL CITATION:
2003 ONAFRAAT 23
Walker Drain Improvement – 2001 [July 25 Request for Review] 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 Mr. Terry Buys that the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) review its decision dated May 14, 2003 by which it modified an earlier decision, dated 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.
AND IN THE MATTER OF: A request that the Tribunal review is pursuant to Rule 29 of the Rules of Procedure of the Agriculture, Food and Rural Affairs Appeal Tribunal.
Before: John Taylor, Vice Chair
DECISION OF THE TRIBUNAL
At the request of the Chair of the Agriculture, Food and Rural Affairs Appeal Tribunal, I have been given the task to consider a request for a review submitted by Terry Buys of the last decision of this Tribunal affecting the Walker Drain Extension.
HISTORICAL BACKGROUND:
Mr. Paul Elston, P.Eng., of the firm of R.J. Burnside & Associates Limited submitted a drainage report dated August 17, 2001 (the report) at the request of the Municipality of Thames Centre. The Tribunal conducted a hearing on the appeal of several affected ratepayers on April 17, 2002. The principle issue that was decided was the location of the routing of the improved drain. The first decision of the Tribunal from that hearing was to relocate a substantial part of the drain to follow an alignment that was westerly of the existing drains so that the new alignment would run along Richmond Street for a distance and reconnect with the outlet on Charles Street. That routing has become commonly known as “Proposal A”. The engineer was directed on that decision to investigate the cost and determine whether this was a more feasible solution than that proposed in the original report.
There was a request for a review submitted and the Chair of this Tribunal requested the original panel of the Tribunal to review that decision.
On October 16, 2002 the reconvened panel of the Tribunal proceeded with the review. An examination of their decision would indicate that the evidence showed that Proposal A was considerably more expensive and would prove to be a difficult route to construct. The upshot of the decision made from that review which was issued on November 4, 2002 was to direct the engineer to come up with an alternative routing with more details showing the original location of the drain and details of the improvements on the properties and to recommend an alternative routing. That hearing was adjourned until the engineer filed his further report.
On February 18, 2003, the original panel of the Tribunal reconvened to continue its review of its original decision. The revised engineer’s report recommended a rerouting along a route now known as “Proposal B” which was substantially east of the alignment of the original drain. It seems that the engineer recommended that location because of the easier access to the routing site and it would result in a lesser cost than Proposal A. Also, the engineer suggested a third routing now known as “Proposal C” which was a location closer to the original alignment of the drain and somewhere in between Proposal A and B. Proposal C would route the drain along the rear or east sides of the Terry Buys property and the G. Baker property. While Proposal C might have cost less, it was not the recommendation of the engineer to follow but rather he still favoured Proposal B. It seems that there were objections to Proposal B by a neighbouring property who felt that the construction would be too close to his home and his septic system thereby causing damage to his property. The Tribunal found that Proposal C was the least expensive and the shortest route and it was closest to the original alignment and therefore it favoured this alignment.
REQUEST FOR REVIEW BY TERRY BUYS:
The material filed with the Tribunal by Terry Buys to support his request for review, showed the details of his yard, which was accompanied by pictures of his rear yard through which the alignment of the new drain known as Proposal C would pass. He alleges that the impact of this construction through his rear yard would have the following adverse affects, “Remove or disturb trees that were planted over ten years ago at a very high expense, take down two sheds, two underground electrical lines, one playhouse and a sandbox, two pool lines, two sets of fences”. He also described other disturbances that he and his family would suffer. While the engineer’s report indicated that the Buys property would benefit with approximately $5,400.00 worth of allowances, Mr. Buys believes that the allowances should be a minimum of $10,000.00.
EVALUATING A REQUEST FOR REVIEW:
Section 29.09 of the Rules of Procedure for this Tribunal sets out a number of criteria that the reviewer might consider relevant in deciding whether to order a review. These can be briefly stated as follows:
(a) Significant new evidence that was not available at the time of the original appeal;
(b) Any material error of law or fact in the Tribunal’s decision;
(c) The extent to which any party to the appeal or other person as relied on the final decision or Order;
(d) The extent to which any party to the appeal or other person will be affected by the review process; and
(e) Whether the public interest and finality of decisions is outweighed by the alleged prejudice to the requester.
The wording of paragraph 29.09 indicates that the above items are not intended to be exhaustive.
FINDINGS:
I have carefully reviewed the allegations and complaints raised by Terry Buys in his request for review. I believe that he has very aptly presented his request with detailed material and pictures that gives me an opportunity to very well understand his concerns over the likely disruption that the routing of this drain through his property will cause. Unfortunately it does not seem that Mr. Buys has previously attended any of the hearings that the Tribunal held on three previous occasions. While Mr. Buys may have had good reasons for not attending, it would seem understandable that he did not feel that his property was under any serious threat as being the recipient for the relocation of the drain since the original decision suggested it be rerouted through Proposal A and the engineer in his last report thought it should go over Proposal B. The location of Proposal C, which crossed his property was not supported by the engineer. With respect to the last revised report by the engineer, I note that the previous panel of this Tribunal commented that that report was hand delivered only a few days before the hearing on February 18, 2003. In the short time that all persons had to review that report before the date of the hearing, it could well be that Mr. Buys did not fully appreciate the extent that Proposal C would affect his property. In any event, I believe that the previous Tribunal in all of its various deliberations, has made no obvious error that would justify the conduct of a new review of that decision.
While denying this request to review, I believe Mr. Buys should be comforted by the fact that the decision of the Tribunal dated May 14, 2003 still provides for an opportunity to appeal the report of the engineer which the Tribunal has directed that the engineer should revise. Paragraph 3 of the May 14, 2003 decision provides as follows:
“3. The engineer shall file a revised report with the Council of the Municipality as soon as it is completed. The council of the municipality shall circulate the revised report. Any assessed owner can appeal directly to the Tribunal within thirty (30) days of the circulation of the revised report by filing a Notice of Appeal in writing with the clerk of the municipality. The clerk shall forthwith forward all appeals to the Tribunal after the thirty (30) day time limit for appealing has passed”.
I have directed the General Manager/Secretary of the Tribunal to inquire as to whether a revised report has been filed. I am told that it has not been because the municipality decided not to proceed with the revised report until this review of the decision was completed. I question whether the municipality should have taken that course. Be that as it may, it would seem that the engineer must file further details about location of the route along Proposal C and to provide in his report the usual information about costs, allowances, etc. I am sure that the engineer will consider Mr. Buys’ submissions that he has made in this request. It could well be that his concerns may be satisfied by the engineer and if not, Mr. Buys will have an opportunity to appeal to this Tribunal again. The above comments included in this paragraph are not intended to be taken as any formal part of this Order.
ORDER OF THE TRIBUNAL:
IT IS HEREBY ORDERED that the request filed by Terry Buys for a review of the decision of the Tribunal made on May 14, 2003 be denied.
NO ORDER is made as to costs.
DATED at Tilbury, Ontario, this 25th day of July, 2003.