Garry Steele and Marjorie Steele v. City of Kawartha Lakes, 2005 ONAFRAAT 12

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West Guelph, Ontario

Tribunal d’appel de l’agriculture,

de l’alimentation

et des affaires rurales

N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email:Tribunal@OMAF.gov.on.ca

1, chemin Stone Ouest

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email:Tribunal@OMAF.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Paradise Road Drain

City of Kawartha Lakes

Paradise Road Drain (RE) [Request for Review] 2005 ONAFRAAT 12

STATUTE:

Drainage Act

HEARING:

DATE OF DECISION:

May 13, 2005

2005-12

NEUTRAL CITATION:

2005 ONAFRAAT 12

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: a limited review of the Tribunal decision dated Feb 28, 2002 in the matter of appeals by Garry Steele and Marjorie Steele under Sections 48 and 54 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Paradise Road Drain in the City of Kawartha Lakes. The Tribunal confined its consideration to the following issues:

1. Should Point 1 of the Tribunal order be amended in light of an apparent breakdown of a settlement agreement entered into by Garry Steele and Marjorie Steele and the City of Kawartha Lakes, and adopted as part of the Tribunal decision?

2. Does the proposed Addendum No. 1 (dated May 10, 2004) to the engineer's report on the Paradise Road Drain by K. Smart Associates Limited (dated May 31, 2001) accurately reflect Points 2-7 in the decision of the Tribunal?

3. How should the appeals under Section 48 of the Act be disposed of?

4. Should the Tribunal amend its decision to provide for the removal of two spruce trees and the replacement of a hedge on the property identified by Roll No. 160-5-468 (Walker property)

Before: Jack Young, Vice Chair; Kirk Walstedt, Vice Chair; Jane Sadler Richards, Member

Appearances:

John Kuntze, P. Eng., representing the City of Kawartha Lakes

Marjorie Steele, assessed landowner

Garry Steele, assessed landowner

Hugh Walker, assessed landowner

Jim Steele, assessed landowner

Jack Steele, representing Percy Steele, assessed landowner

Cliff Ivens, assessed landowner

Tony Ritola, assessed landowner

Earl Harding, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Lindsay, Ontario on April 13, 2005. Mr. and Mrs. Steele had appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act). Their appeals were heard on February 11, 2002 and the Tribunal’s decision was released on February 28, 2002. That decision incorporated a settlement agreement that had been reached between the appellants and the City of Kawartha Lakes, and which was not opposed by any other party in attendance at that hearing. This proceeding was called in order to review the decision dated February 28, 2002, in light of an apparent breakdown of the settlement agreement.

Ms, Sandra Lloyd, Executive Assistant to Councilors, City of Kawartha Lakes (the Municipality) performed the duties of the Clerk of the Tribunal.

Statutory Context

Section 48 of the Act states:

Appeal to Tribunal

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1).

Appeal by Director

(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, c. D.17, s. 48 (2).

The Background

The Tribunal decision dated February 28, 2002 contained the following order:

1. The Engineer is to revise the Engineer’s Report dated May 31, 2002 to reflect the change in the location of the drain and the work to be undertaken at the outlet that is described in the attached Settlement Notes. In particular, the drawings and specifications are to be revised to show the relocation of the drainage pipe. The Engineer shall receive direction from the Road Superintendent for the Municipality with respect to the location of the drain on the municipal road allowance, including the area identified by Roll No. 160-5-469 (between the G. and M. Steele lakeside lot and the traveled road). The revised drawings shall include the location of the open channel on the Paradise Road right of way, and the setback from the edge of the roadway. The Engineer shall file a signed document indicating the Road Superintendent’s approval with the Tribunal, prior to returning his report to the municipality. The Engineer shall complete the design and receive any necessary approvals from the Trent-Severn Waterway Authority (Parks Canada) and the Department of Fisheries and Oceans, prior to returning his report to the municipality. In the event that such approvals are not required, the engineer shall provide written confirmation of the same to the municipality. The Engineer is to consult with Garry and Marjorie Steele and Mr. and Mrs. Steele are to indicate their concurrence that the revised drawings reflect the Settlement Notes. The engineer is to file a copy of the revised drawings, together with a document signed by the appellants indicating their concurrence, with the Tribunal, prior to returning his report to the municipality.

2. The Engineer is to revise Schedule A – Schedule of Assessments Paradise Road Drain, City of Kawartha Lakes in the Engineer’s Report dated May 31, 2002 to remove the assessment from the property identified as Roll No. 160-5-469-01.

3. The Engineer is to revise the table on page 8 of the Engineer’s Report dated May 31, 2002 to increase the allowance for the property identified as Roll No. 160-5-469-01 to $600.

4. The Tribunal orders that any additional costs to the project resulting from points 1, 2 and 3 of its order shall be assessed to landowners pro rata on the assessments in the revised Schedule A – Schedule of Assessments Paradise Road Drain, City of Kawartha Lakes in the Engineer’s Report dated May 31, 2001.

5. The Tribunal orders the Engineer to revise the Engineer’s Report dated May 31, 2002 to exempt the properties identified by Roll Nos. 160-5-435-02, 160-5-435 and 160-5-435-01 from maintenance costs on the open channel portion of the drainage project.

6. The amount of the engineering costs associated with this hearing and the revisions to the Report shall not be charged to the drain in excess of $1,000.

7. The other 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.

The Settlement Notes were appended to the decision and are reproduced below:

Settlement Notes

The drainage pipe will be located on the lot owned by the Steeles, identified as # 469-01 on Drawing 1 of 4 in Mr. Kuntze’s report, within a land parcel no wider than four feet from the boundary line of the Steele property and the Walker property. (This would continue in that line onto the property owned by the City of Kawartha Lakes and identified as #469 on Drawing 1 of 4 in Mr. Kuntze’s report.)

Every effort will be made to retain the existing timber head wall at the outlet of the drain to Canal Lake. If it proves impossible to retain the existing construction, every effort will be made to replace the timber with timber. If that is not permitted by the regulating authorities involved (i.e. the Trent-Severn Waterway), then gabion baskets will be used in place of the existing timber head wall. In any case, every effort will be made to disturb the existing head wall to the least possible extent.

The assessment on the lot owned by the Steeles, identified as # 469-01 on Drawing 1 of 4 in Mr. Kuntze’s report, will be reduced to zero.

The assessment on the property owned by the Steeles, identified as #435-02 on Drawing 1 of 4 in Mr. Kuntze’s report, shall remain as set out in the report.

The compensation payable to the Steeles for the right of way on the property identified as # 469-01 on Drawing 1 of 4 in Mr. Kuntze’s report, will be increased from the $50 set out in the report, by an amount of $550.00, for a total of $600.00.

With respect to future maintenance, the Steele property identified as #435-02 on Drawing 1 of 4 in Mr. Kuntze’s report, will share in the cost of future maintenance of the pipe portion of the drainage system only, on a pro-rata basis on the basis of the assessment set out in the Report. The Tribunal is requested to set out in its order that the Steeles will not share in any future maintenance costs for any other portion of the drain system (i.e. the ditch). The Steeles’ property is considered to be downstream of the ditch for future maintenance purposes.

The Evidence

John Kuntze, P.Eng.

Mr. John Kuntze told the Tribunal that he was the engineer who prepared the report on the Paradise Road Drain dated May 31, 2001, and had prepared an addendum report, dated May 10, 2004, in response to the Tribunal order of February 28, 2002.

Mr. Kuntze explained the proposed drain would serve a residential area which was developed as seasonal cottages in the 1950s or earlier, but which had grown and now contained some year round residences. He said an access road, on land owned by the Municipality but maintained by a Beach Association, provided access to the homes and cottages. He explained that some of the lots fronted Canal Lake, part of the Trent-Severn Canal System, while others were ‘back lots’ on the other side of the road with no lake access.

Mr. Kuntze told the Tribunal the residential area had at one time been drained through a private culvert, but that it had been removed several years before and the landowners had been unable to resolve a flooding problem. He said a petition was filed under Section 4 of the Act and he was appointed to design a municipal drain. Mr. Kuntze said he had considered two options, and, after surveying the road, designed the drain to route through vacant land, part of which was owned by the Municipality, Roll No. 160-5-469, and part of which was owned by Marjorie and Garry Steele, Roll No. 160-5-469-01(the Steele property). He explained the road was at its lowest point in this location and the entire road would be drained. Mr. Kuntze said he originally routed the drain through the middle of the vacant lots, but that the Tribunal had ordered it to be routed along the southwest side of the lot in accordance with the settlement agreement.

Mr. Kuntze explained that after the Tribunal hearing, Mr. Elwood Walker, the owner of the lot adjacent to the Steele property expressed concerns with the location ordered by the Tribunal. He said Mr. Walker was concerned that the drain would be located near his well, his asphalt driveway and electrical conduit would be disturbed and a large spruce tree could be damaged. Mr. Kuntze explained the well would not be affected as the proposed drain was sealed and was only 1 metre deep. He explained he could route the drain around the driveway and electrical conduit, which were actually on land owned by the Municipality. Mr. Kuntze said he consulted an arborist who told him the tree would likely survive if care was taken to cut roots by hand when the drain was installed. Mr. Kuntze said that Mr. Walker was concerned about the stability of the tree and wanted it, as well as a tree on the Steele property removed.

Mr. Kuntze said there were delays in proceeding with the final design because of negotiations over potential land purchases and a request by the Municipality’s Land Drainage Committee that the drain be routed along the right side of the Steele lot. He said at a meeting held in December 2003 Mrs. Steele indicated she wanted the drain located on the southwest side (left side) of the Steele property, as per the Tribunal order.

Mr. Kuntze said he had located the drain on the southwest side of the Steele property in his Addendum No. 1 Paradise Road Drain report dated May 10, 2004. He said he also incorporated changes to allowances and assessments ordered by the Tribunal. Mr. Kuntze said that he also provided for the removal of two spruce trees and the inclusion of a new cedar hedge to address Mr. Walker’s concerns, and adjusted the allowances accordingly. Mr. Kuntze said the Department of Fisheries and Oceans (DFO) had approved his revised design but that the Trent-Severn Waterway had not yet responded.

Marjorie Steele and Garry Steele

Mr. and Mrs. Steele presented their evidence as a panel. Mrs. Steele told the Tribunal she and her husband were the only landowners affected by the proposed drain and the only ones who had not been consulted. She said the drainage problems could have been resolved years before had the Municipality agreed to sell them the lot it owned, but that it now wanted to purchase the Steele property, which was not for sale. Mrs. Steele said Mr. Kuntze had not met with her husband or her before drafting his Addendum No. 1 report and that money had been wasted in looking at alternative options when the Tribunal had directed the location of the drain.

Mrs Steele said she and her husband were also concerned about the design of the drain given that a septic line which crossed Paradise Road had been installed since the Tribunal issued it order. She was concerned that it would leak into the proposed drainage ditch. She also said the location of the ditch was a problem as it would have to be relocated if the Municipality ever wanted to bring the road up to municipal standards.

Mrs. Steele also indicated she and her husband were concerned that:

• They did not receive official notice of the public meeting held in December 2003 as it had been sent by registered mail.

• All landowners did not receive a copy of the Addendum No.1 report until she asked the Municipality to distribute it.

• Fences were not built on property lines and the assessments may be incorrect as a result. Assessments were not fair.

• Wells on property owned by the Municipality, if there were any, could be contaminated by the drain.

• There was no assessment made as to the impact of the proposed drain on wildlife.

• There was no authority to remove trees or replace a hedge.

• The proposed hedge to be replaced was not worth $1,100. A photograph was entered into evidence.

• The cost of the drainage project had risen considerably due to extra meetings and the hiring of an arborist.

• Additional engineering costs had exceeded the $1,000 limit imposed by the Tribunal.

• Mrs. Steele had to provide a copy of her deed to the Trent-Severn Waterway as it was under the impression the drain would be located on land owned by the Municipality.

Mrs. Steele suggested that the process established under the Act be abandoned, the Municipality sell its lot to her and her husband and private swales or culverts be built across the Steele property, the Ritola property, the Ivens property and the Harding property, and possibly one other property. She said the petitioners and the Municipality could pay the costs incurred to date through the process established under the Act. She said the sewage line should be removed and the Municipality should stop allowing unauthorized ditching on Municipal property. Mrs. Steele submitted a negotiated settlement would be preferable to an imposed resolution.

In response to questions, Mr. and Mrs. Steele indicated:

• They had not authorized the removal of a spruce tree from the Steele property.

• Trees would fall down on their lot whether there was a drain installed or not. The land was sandy and four trees fell down in their yard after a high wind.

• They would not accept the drain proposed in Addendum No. 1.

• The Health Inspector was not aware of the proposed drainage ditch when the septic line was approved.

• It was common sense that the septic line would fail due to stone and frost.

• The septic line was at least 100 feet long with a four foot rise.

• Daily testing would be required to mitigate the danger of the septic line leaking into the drain.

• Other landowners had agreed to their proposal in 1999.

• They agreed with the settlement reached in 2002 at the time, but were no longer in agreement with it. They were led to believe they could purchase the lot owned by the Municipality but that was no longer the case.

• They received their tax notices but did not receive the drainage notices.

• They assumed the cost of the drainage project would be the same, other than an additional $1,000 in engineering fees to redesign the location of the drain across the Steele property.

• They understood the drain would go down the property line of the lot owned by the Municipality but it was angled across it in Addendum No. 1. This could interfere with a laneway should the lot be sold in the future.

Hugh Walker

Mr. Hugh Walker told the Tribunal he represented a numbered company which owned property in the watershed. He said he was concerned that the project cost had increased to $40,800 and there were potential future maintenance costs. He suggested the Engineer was biased and showed little knowledge of the site. Mr. Walker acknowledged that his property caused some of the water problems but testified that much of the water flows to the north, not toward the proposed drain. He said he was concerned with the number of culverts to be installed on the proposed drain as he said flooding would still occur until the culverts are open each spring.

Jim Steele

Mr. Jim Steele said he thought the matter was resolved after attending the hearing and receiving the Tribunal decision in 2002 and someone had to be accountable for delays in completing the project and the funds spent since the decision was released. Mr. Jim Steele said the first thing that was needed was a permit from the Trent-Severn Waterway.

Jack Steele

Mr. Jack Steele said he was representing his father Mr. Percy Steele, an assessed landowner. Mr. Percy Steele verbally confirmed this.

Mr. Jack Steele said agricultural land owned by his parents did not require drainage and that drainage was never an issue in the residential area until people started building up lots. He said if there was to be a ditch it should be on the south side of the road allowance, not in the middle. He said there would be freezing and thawing problems in the fall. He said if the settlement conditions proposed by Marjorie and Garry Steele were accepted, his parents would accept a swale across their residential lot, but not a ditch or culvert, and they would not agree to an easement. Mr. Jack Steele suggested the Municipality should be assessed additional costs incurred on the project since 2002.

Cliff Ivens

Mr. Cliff Ivens said he was concerned that having a swale across his property, as proposed by Mrs. Marjorie Steele and Mr. Garry Steele, would have an impact on his well. He told the Tribunal that all of his neighbours had built up their properties and he received water in summer, spring and fall. He said he could not speak to a proposal to put a swale across a property owned by Rose Ivens.

Reply by John Kuntze

Mr. Kuntze said houses had been constructed without consideration to drainage and none of the landowners wanted a municipal drain across their properties. He said it did not make sense to have several outlets to Canal Lake, rather than just one. He said his Addendum No. 1 would provide a sufficient outlet but the question of the trees and hedge needed to be resolved. He said if the trees in the area will topple at any time it would be better to remove them now and prevent liability on the drain.

Mr. Kuntze said local politics as to access to the lake and potential sales of properties should never have been a consideration with regard to designing the municipal drain.

With regard to the septic line, Mr. Kuntze said it was not his role to approve it but that he had been aware it was being installed and had provided the landowner elevations of the proposed drain on the road allowance across the front of his property. He said the landowner told him the septic line would not affect the drainage ditch.

In response to questions from assessed landowners, Mr. Kuntze told the Tribunal:

• A representative of DFO was aware of the septic line as Mr. Kuntze had informed him about it when they walked the length of the proposed ditch.

• If the Tribunal were to order the drain to be re-located off the road allowance, the septic line may have to be moved. If the septic line was not installed deep enough, the landowner who installed it would be responsible for the cost of moving it.

• The Municipality owned trees located on the road allowance. The Report called for trees in danger of toppling to be removed.

• There was a jog in the design of the ditch to minimize tree clearing.

• A copy of the first draft of Addendum No. 1 which he sent to Marjorie and Garry Steele was returned by the Post Office. He tried to phone them once but there was no answer. He talked to the father of one of them and he did not know why they did not receive the addendum report.

• Notwithstanding the return of the Notice of the December 2003 meeting, Mrs. Marjorie Steele learned of the meeting and was in attendance.

• He was not denying that from day one Mr. and Mrs. Steele wanted the drain on the westerly side of the Steele property.

• The only trees to be removed were on lands owned by the Municipality, Marjorie and Garry Steele and Elwood Walker.

• The portion of hedge he proposed replacing was on land owned by Mr. Walker.

• The maintenance schedule showed the proportion of maintenance costs assessed to each property; it is not the actual cost of maintenance.

• The arborist could not guarantee the trees would remain standing but felt they could be kept alive if the roots were cut by hand. Mr. Walker was concerned about their stability if some of the roots were to be cut.

• If the Municipality were to re-build the road to current standards the cost of re-locating the drainage ditch would be a small part of the cost of building the road.

In response to questions from the Tribunal, Mr. Kuntze indicated:

• When the settlement agreement was reached there was no guarantee that the cost of the project would not increase.

• The spruce tree on the Steele property was approximately 1.2 metre from the proposed drain. No real concern had been expressed about removing the tree.

• He recommended replacing the hedge on the Walker property to restore privacy once the trees were removed.

• There was no working area on the Walker property.

• If the septic line were to be punctured, the landowner who installed it would be responsible for the resulting pollution.

• The Act required that the Municipality pay the cost of relocating the drainage ditch in the event that its road were to be upgraded to current standards in the future.

• He assessed the cost of additional work requested by the Municipality to the drain as he felt they were legitimate costs associated with the drainage project.

Ms. Sandra Lloyd indicated the Addendum No. 1 report was mailed on February 27, 2005 to everyone who was mailed the Notice of Hearing. She said there had been a problem with the mail when the Post Office changed some addresses but that she believed the Municipality had the current addresses of all affected landowners.

Summations

Mrs. Marjorie Steele told the Tribunal the Act has been flawed since day one; there was confusion about trees, the location of the drain and the cost of the drain. She asked the Tribunal to read the Marjorie and Garry Steele proposal thoroughly and asked that the Tribunal allow it. She submitted that common sense was needed and their solution would save money. She said Mr. Harding was willing to take a swale, there was already a swale on the property owned by Mr. Ritola and she was certain they could find someone to accept a fourth swale. She said that failing that solution, she and her husband wanted compensation for lost wages and legal fees. She reiterated that they would not accept the proposed drain across the Steele property unless forced to do so. She also submitted that lots that do not have access to the drain should not be assessed.

Mr. Kuntze said the design in either his original report or Addendum No. 1. Paradise Road Drain would resolve the drainage problem. He said designing the drain to put open swales across four properties would increase the resistance to the drainage project. He said it was his experience that landowners become dissatisfied with swales over time. He said his design put a pipe drain in place where it crosses private property so that it would not interfere with anyone’s use of their property once installed.

Mr. Kuntze submitted that some of the things that Marjorie Steele and Garry Steele had requested were beyond the Tribunal’s control. He said the Tribunal could not deal with the land dispute between the Municipality and Mr. and Mrs. Steele and could not order the removal of a septic line that was legally installed. He urged the Tribunal not to base its decision on what may happen in the road allowance in the future.

Mr. Kuntze asked the Tribunal to order that the work proceed according to his report and addendum. He said he had been concerned about what to do with the tree on the Steele property but had heard no objection to its removal. He said if a driveway was required in the future on the lot owned by the Municipality, it should be possible to install it over the drain. He reminded the Tribunal that the DFO had no objection to the drainage project and he said he did not anticipate the Trent-Severn Waterway would have any concerns.

The Findings

Steele Proposal

The Tribunal considered the request by Mr. and Mrs. Steele to abandon the drainage project and construct alternate outlet swales across several properties. The Tribunal finds that this is not a long term solution to the Paradise Road drainage problem. Such a solution will not provide a legal outlet for the drainage water. Each owner would have to maintain their swale and the outlet could be blocked in the future without any recourse by other owners that need drainage.

The Tribunal does not have the authority to stop a drainage project on appeal unless it is convinced that “the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof” (Subsection 48(1) (a) of the Act). The Tribunal was not convinced that this was the case. The evidence was that there is a longstanding flooding problem affecting several lots on Paradise Road, and that nine landowners petitioned for relief under the Act, after a private drainage arrangement was dissolved.

Location of the drain on the Steele property

The uncontradicted evidence of the Engineer, Mr. Kuntze, supported by his Addendum No. 1, Paradise Road Drain, was that his current design of the drain located the drain on the Steele property within four feet of the boundary line of the Steele property and the property owned by Mr. Elwood Walker. This is the side of the property on which Mr. and Mrs. Steele favoured the drain, if it had to be placed on their property at all.

The Tribunal heard no compelling arguments to move the drain to the centre of the property or the right side of the Steele property or to move it onto a different property. The Tribunal will order that the drain be situated according to the plan contained in the addendum report.

The Tribunal concurs with the proposed location of the closed drain between Stations 000 and 023 which angles across the Municipal property adjacent to Paradise Road. This location will avoid conflict with utilities and hedges. The Engineer indicated that the new drainage pipe would support a future entrance.

With regard to the location of the ditch on the road allowance, a letter from Pat Russell, Manager, Area 4, Public Works Department, City of Kawarha Lakes was filed with the Tribunal. Mr. Russell indicated his support for locating the ditch as per the recommendation of the engineer in the Report.

Hedge

The Tribunal finds, based on photographic evidence, that the ‘hedge’ on the property owned by Mr. Elwood Walker is not a true hedge, but a sparse grouping of small trees. These trees are not in the working area of the drain. The Tribunal will provide Mr. Walker an allowance of $400 for potential damage to these small trees, but will not provide for a new hedge.

Spruce Trees

The Engineer testified that the arborist stated that these trees would probably survive after the installation of the drain if, during its construction, care is taken to minimize damage to the trees. However the Addendum Report provides for the removal of the trees. The Tribunal is of the opinion that each landowner should have the right to determine the fate of their spruce tree. Mr. Walker (Roll No. 5-468) and Mr. and Mrs. Steele (Roll No. 5-469-01) shall each have the opportunity to retain the spruce tree on their property. Should either of the owners decide to retain their spruce tree, the Engineer shall revise the specifications to provide for hand excavation of the trench in the area of the tree roots and delete the cost of the tree(s) removal from the construction cost estimate.

The Tribunal finds that the allowances for damages to the spruce trees is excessive and will order that the allowance for each tree be reduced from $1,200 to $600.

Compliance with Tribunal Order

The Tribunal finds that the Addendum Report complies with points 2 to 5 and point 7 of its order dated February 26, 2002. The matter of engineering costs, point 6, is set out in the Act. Section 70 provides for engineering costs to form part of the cost of the project. Section 72 gives the Municipality the right to have the costs reviewed by the Tribunal. The Municipality may request such a review.

Other Issues

Parties to this matter asked the Tribunal to consider changes to assessments in the original report, which were upheld by the Court of Revision. This hearing was to conduct a limited review of the Tribunal’s decision of February 28, 2002. Assessments were not the subject of this hearing and this panel of the Tribunal had no authority to vary the assessment schedule.

The construction of the private sewage system and the effluent pipe constructed under the proposed open channel is governed by other legislation and is therefore outside the scope of this hearing.

The Act does not provide for the review of a drainage project by the “Land Drainage Board”. The engineering cost of preparing and attending the meeting requested by the board puts extra costs on the project. The Municipality may opt to pay these added costs as a municipal administrative expense.

The matter of the purchase of adjoining land by either the Municipality or the Steeles does not directly affect the functioning of the drainage project and is therefore not an issue to be considered here.

ORDER OF THE TRIBUNAL

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

1. Addendum No. 1, Paradise Road Drain, City of Kawartha Lakes, dated May 10, 2004 is to be amended by the engineer as follows:

   a) Allowance to Roll No. 5-468 (W.E. Walker property) is to be reduced from $1,200 to $1,000 (tree allowance reduced from $1,200 to $600; $400 allowance provided for hedge).

   b) Allowance to Roll No. 5-469-01 (Steele property) is to be reduced from $1,800 to $1,200 (tree allowance reduced from $1,200 to $600).

   c) The owners of Roll No. 5-468 (W.E. Walker property) and Roll No. 5-469-01 (Steele property) shall each have the opportunity to retain their spruce tree. Their written request to retain their spruce tree on their property must be received by the Municipality by noon on May 31, 2005. Should either of the owners decide to retain their spruce tree, the Engineer shall revise the specifications to provide for hand excavation of the trench in the area of the tree roots and delete the cost of the tree(s) removal from the construction cost estimate.

   d) All references to installing a new hedge at the Walker-City of Kawartha Lakes property line are to be removed. This hedge is not to be installed as part of this drainage project.

2. The Municipality shall proceed with the bylaw. Prior to passing the final reading of the by-law on this drain, the Municipality is to amend the engineer’s report on the Paradise Road Drain in the City of Kawartha Lakes dated May 31, 2001 by attaching Addendum No. 1, Paradise Road Drain, City of Kawartha Lakes, dated May 10, 2004, as revised by point 1 of this order.