Smith Drain (Re), 2003 ONAFRAAT 28

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:

Smith Drain Champlain Township

Smith Drain (RE) 2003 ONAFRAAT 28

STATUTE:

Drainage Act

HEARING:

May 12 and September 22, 2003

DATE OF DECISION:

September 25, 2003

2003-28

NEUTRAL CITATION:

2003 ONAFRAAT 28

Smith Drain Champlain Township

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 Council of Champlain Township under Section 58 of the Drainage Act with regard to a proposed change in the design of the Smith Drain in the Champlain Township.

Before: Jack Young, Vice Chair; Andrew Osyany, Vice Chair

DECISION OF THE TRIBUNAL

This application was heard by way of a written hearing on Monday, May 12, 2003 and Monday, September 22, 2003. The Council of Champlain Township (the Municipality) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) for approval to vary the report of the engineer on the Smith Drain, to relocate a portion of the drain.

Statutory Context

This application comes to the Tribunal by way of Section 58 of the Drainage Act which states:

By-law may be passed

58. (1) Where the council of an initiating municipality has adopted a report for the construction of a drainage works after the time for appealing has expired and there are no appeals or after all appeals have been decided, the council may pass a provisional by-law thereby authorizing the construction of the drainage works, and work may be commenced ten days after the by-law is passed if no notice of intention to make application to quash the by-law has been filed with the clerk of the council. R.S.O. 1990, c. D.17, s. 58 (1).

Quashing of by-law

(2) If no notice of intention to make application to quash a by-law is filed with the clerk of the council within ten days after the passing of the by-law or, where a notice of intention has been given, if an application to quash is not made to the referee within three months after the passing of the by-law, the by-law, or so much thereof as is not the subject of or is not quashed upon any such application, is valid and binding according to its terms, so far as it prescribes or directs anything within the proper competence of the council. R.S.O. 1990, c. D.17, s. 58 (2).

Repeal of by-law

(3) A by-law may be repealed at any time before the work is commenced and before any assessment has been levied against the land assessed, and in such case the council of the initiating municipality shall pay all expenses in connection therewith out of the general funds of the municipality. R.S.O. 1990, c. D.17, s. 58 (3).

Where error in report

(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error. R.S.O. 1990, c. D.17, s. 58 (4).

Appeal to Tribunal

(5) Where the council does not proceed with reasonable dispatch with the construction of the work after passage of the by-law, a requisitioner or a petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area to be drained, the Minister may refer the matter to the Tribunal, and the Tribunal may direct the council to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 58 (5).

The Background

The Smith Drain in Champlain Township was designed as a result of a petition filed pursuant to Section 4 of the Drainage Act. Lascelles Engineering Limited was the engineer appointed to prepare a report on the proposed drain. The Tribunal heard appeals from the engineer’s report and from a decision of the Court of Revision on the Smith Drain in Vankleek Hill, Ontario on February 18, 2002. As a result of that hearing, the Tribunal ordered a change in the design of the Smith Drain and the report was subsequently modified to encompass those changes.

The Current Issues

The issue before this panel of the Tribunal was:

1. Should the Tribunal order that the design of the Smith Drain be further modified, such that the section of the drainage works which is to run along the South side of Lecours Street is relocated to the North side of Lecours Street?

The Evidence

By way of a letter dated February 18, 2003, Mr. Robert Lefebvre, clerk of the Municipality, informed the Tribunal that after tenders for construction of the Smith Drain were requested, it was discovered that a number of service utilities on the South side of Lecours Street would interfere with the construction of the Smith Drain.

He provided the Tribunal with a letter from Mr. Gaeten Lascelles, P. Eng., (the “Engineer”) who prepared the report on the Smith Drain. Mr. Lascelles proposed relocating the section of the drain between Station 6+00 to 9+65 from the South side of Lecours Street to the North side of Lecours Street. Mr. Lascelles said this would be less expensive than relocating the utilities. He explained that one additional 42-inch diameter would have to be installed under Lecours Street at Station 9+46. However, he also recommended that an existing culvert on the South side of the street at Station 8+43 (Urfer property) not be replaced if the drain were to be relocated.

At the request of the Tribunal, Mr. Lefebvre solicited the views of Mrs. Hazel Richer, the owner of the property identified by Roll No. 03-113-61, which is the property adjacent to where the drain would be re-located. Mrs. Richer initially expressed some concerns with the proposal but in a letter dated August 25, 2003, indicated she had reached an agreement with the Municipality with respect to construction specifications and did not object to the re-location of the drain in front of her property.

The Findings

The Tribunal finds that the Smith Drain should be re-located as outlined by the engineer. The section of the drain that runs from Station 6+00 to 9+65 is to be relocated from the South side of Lecours Street to the North side of Lecours Street. A new culvert is to be installed at Station 9+40. The existing road and entrance culverts are not to be removed, but will not form part of the drainage works for future maintenance.

The Tribunal was persuaded by the evidence that relocating the drain will be less expensive than relocating the utilities.

The Tribunal will require that a supplemental report, reflecting ‘as-built’ drawings and specifications of the drain of this section of the drain, be prepared and appended to the report.

ORDER OF THE TRIBUNAL

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

1. The portion of the proposed Smith Drain that runs between Station 6+00 to 9+65, inclusive, is to be relocated to the North side of Lecours Street.

2. A 42-inch road culvert is to be installed at Station 9+40.

3. The existing road culvert and entrance culvert on the south side of Lecours Street shall remain but will not form part of the drainage works for future maintenance.

4. The engineer is to prepare a supplementary report which includes the revised specifications and drawings which reflect the ‘as-built’ condition of the drain.

5. The cover page of the report shall be amended to include the following prominent wording: "Amended in accordance with the Order of the Agriculture, Food and Rural Affairs Appeal Tribunal, dated September 22, 2003". The engineer shall provide five (5) complete amended copies of his report to the Municipality.

6. 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 Gravenhurst, Ontario this 25th day of September, 2003.