Winger Road Drain (RE), 2006 ONAFRAAT 39

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal@omafra.gov.on.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: appeals.tribunal@omafra.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Winger Road Drain Town of Fort Erie Winger Road Drain (RE) 2006 ONAFRAAT 39

STATUTE: Drainage Act

HEARING: October 4, 2006

DATE OF DECISION: October 18, 2006

2006-39

NEUTRAL CITATION: 2006 ONAFRAAT 39

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 William Young and Sharon Young, Fort Erie, Ontario under Section 45 of the Drainage Act from a decision of the Council of the Corporation of the Town of Fort Erie not to adopt the Engineer’s Report on the Winger Road Drain in the Town of Fort Erie.

Before: Gene Trotman, Vice Chair; Cor Kapteyn, Vice Chair; Ron Gelderland, Member

Appearances:

Bill Young, appellant Anne-Marie Noyes, councillor, representing the Town of Fort Erie John Kuntze, P. Eng., engineer who prepared the report Robert Cote, affected landowner Jay Maxner, affected landowner Terry Eckert, affected landowner Brett Ruck, Drainage Superintendent, Town of Fort Erie

HEARING OF THE APPEAL BY THE TRIBUNAL

This appeal was heard in Fort Erie, Ontario on Wednesday, October 4, 2006. Mr. and Mrs. Young appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 45 of the Drainage Act (the Act).

Ms. Carrie Honey, Deputy Clerk of the Town of Fort Erie (the Municipality) performed the duties of the Clerk of the Tribunal. An Affidavit of Service was filed with the Tribunal as proof that all parties have been served with notice of this hearing.

PRELIMINARY MATTER

Mr. Robert Cote, Mr. Jay Maxner and Ms. Terry Eckert sought standing at the hearing. There were no objections and the Tribunal allowed them to participate. All three owned properties in the watershed of the proposed Winger Road Drain.

STATUTE INVOKED AND CONSIDERED

Section 45 of the Drainage Act, R.S.O. 1990, under the headings “Adoption of report” and “Appeal or referral to Tribunal”:

Adoption of report

45. (1) A report may be adopted by by-law in the form prescribed by the regulations and, when such by-law is given two readings by council, the report shall be deemed to be adopted and the by-law shall be known as a provisional by-law. R.S.O. 1990, c. D.17, s. 45 (1).

Appeal or referral to Tribunal

(2) Where a report is not adopted by council, any 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. R.S.O. 1990, c. D.17, s. 45 (2); 2006, c. 19, Sched. A, s. 6 (1).

THE ISSUE BEFORE THE TRIBUNAL

1. Should the Tribunal order the Municipality to adopt the engineer’s report on the Winger Road Drain, dated March 1, 2006, prepared by K. Smart Associates Limited?

THE BACKGROUND

1. In June 2004 the appellants, Mr. and Mrs. Young, pursuant to Section 4 of the Drainage Act, R.S.O. 1990, filed a petition for improved drainage on their property with the Corporation of the Town of Fort Erie (the Town of Fort Erie). The relevant portion of this Section of the Drainage Act states as follows:

“4.(1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the municipality in which the area is situated by,…

(b) the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area.”

2. The Town of Fort Erie, in response to the petition, appointed K. Smart Associates limited, a consulting engineering firm, under By Law 166.04 to prepare a report under the Drainage Act to address the aforesaid petition. Mr. John Kuntze, P.Eng. of that firm was assigned the tasks of preparing the required report.

3. On September 2004, Mr. Kuntze in the performance of his assigned task conducted an on-site meeting, the First, which was attended by the appellants and several other landowners from the area involved. Apart from this on-site meeting discussions were held with Paul Baiano (Roll #-256-02) and Robert Cote (Roll # - 072), and site examination and survey were conducted. As a result of these exercises Mr. Kuntze concluded as follows: “…The area requiring drainage was determined to be watershed area that drains into the swale that drains north near the centre of the north boundary of the Young property. The signature of William and Sharon Young on the petition represents greater than 60% of the area requiring drainage thus the petition is valid in accordance with Section 4(1) (b) of the Drainage Act.”

4. A Second site meeting was held on March 31, 2005. Again all the landowners within the watershed area involved were notified of the same, as well as the Region of Niagara, the Niagara Peninsular Conservatory Authority and the Town of Fort Erie. At this meeting the results of the examination and survey were presented as well as two options “to achieve an improved outlet for the area requiring drainage.”

OPTION #1 called for, among other things, the cleaning of the existing watercourse from the Winger Road culvert to the Young (appellant) property and new access culverts.

OPTION #2, in part, called for the improvement of the west Winger Road ditch south between the Young property and Cote property; the construction of a new ditch from that point to the “existing watercourse on the Young property.”

5. A Third site meeting was held on November 1, 2005. Once again all land owners within the watershed of the contemplated Winger Road Drain were notified of the meeting, as well as the Region of Niagara, the Conservation Authority and the Town of Fort Erie. “the Conservation Authority was notified of the site meetings conducted on the drain and voiced no objection to the work proposed.” The final recommendation for the Winger Road Drain was concluded at this meeting. In summary, it included the following at an estimated cost of $53,000.

a) FOR THE WINGER ROAD-REGION OF NIAGARA- Carefully removing the existing culvert and replacing it with corrugated steel pipe.

b) FOR THE WINGER ROAD-TOWN OF ERIE- Cleaning out west road ditch for 353m south from new culvert.

d) WEST OF WINGER ROAD- 476m of new ditch to be excavated on the north side of the property line and new drain with a 6m buffer wide strip measured from the north top bank.

e) FOR ECKERT AND YOUNG ROLLS #072-04 and #070-01 respectively- Continue excavating south into Young property and backfill existing swale for 5m north into Eckert property.

6. Mr. Kuntze concluded that the recommended work on the Winger Road Drain should have no negative environmental impact as he observed no significant wildlife, wetland environmentally sensitive areas along the route of the Winger Drain.

7. Mr. Kuntze’s full report “providing for an improved outlet for drainage of the agricultural property owned by William and Sharon Stone” was considered by the Town of Fort Erie on April 18, 2006 and was not approved and hence this appeal.

THE EVIDENCE

John Kuntze

Mr. John Kuntze, P. Eng., told the Tribunal he was the author of the report on the Winger Road Drain and that it was a proposed new drain, designed as a result of a petition signed by the appellants, owners of Lot 15 and part of Lot 16 on Concession 11 in Fort Erie (Young property). The petition was valid because Mr. and Mrs. Young own more than 60% of the area requiring drainage.

Mr. Kuntze testified that:

• Except for a small portion on the east side, the Young property drained to the middle of the property, then north from the middle through a swale that continued north and east of the Young property, followed along Winger Road to its intersection with Netherby Road, then followed Netherby Road.
• The swale was maintained on the Young property but not maintained further downstream. Elevations were provided in the report (Exhibit 2).
• The depth and grade of the swale was consistent on the Young property but varied downstream.
• The Young property had no buildings and was used to grow crops. The other properties where the watercourse runs are 10-acre parcels that are primarily residential but some are classified as agricultural.
• At an on site meeting, the owners of the primarily residential properties objected strongly to having any work done on the watercourse on their properties. Instead they suggested that water be routed along the north side of the Young property to a ditch adjacent to Winger Road.
• He investigated both routes and determined that they had almost identical costs – routing the water along the north of the Young property required more excavation but using the existing swale required culverts.
• He recommended the route that took the water through a new channel to the north, and recommended that the ditch be on the residential properties’ side of the property line. His reasons were that the watercourse that required improvement was on the residential properties and this would move the watercourse to the back of those properties and that the Young property was productive land.
• The estimated total cost of the work was approximately $53,000.
• The report was considered on April 18, 2006, no names were added or removed from the petition and it was still valid.
• Council of the Municipality did not adopt the report as a provisional by-law and Mr. and Mrs. Young subsequently appealed that decision to the Tribunal.

No parties had questions for Mr. Kuntze.

Bill Young

Mr. Bill Young told the Tribunal he was a third generation farmer and his family had always solved drainage issues on a farmer to farmer basis and this was the first time he had been before the Tribunal. He said that non-farmers do not understand the importance of drainage to farmers.

Mr. Young testified that:

• In 2003 he approached Mrs. Eckert, an adjacent property owner, about a problem with drainage across her property but reached no resolution.
• He then spoke to Mr. Brett Ruck, Drainage Superintendent, who told him he had a legitimate concern. He understood that Mr. Ruck spoke to Mrs. Eckert and gave her a copy of the Drainage Act.
• Mrs. Eckert would not cooperate so he petitioned for drainage to the Council of the Municipality and it appointed Mr. Kuntze.
• Mr. Kuntze prepared the engineer’s report.
• Photographs he submitted (Exhibit 4) showed that water accumulated at his property line. He said there were two problems – the ditch on the neighbours’ properties needed to be cleaned out and maintained and the natural ditch ended when it reached the Maxner property where there appeared to be a raised septic bed and recently planted trees blocking the ditch.
• Photographs he submitted (Exhibit 5) showed grass and brush growing up in the ditch and preventing drainage on two Eckert properties and the Waeger property.
• He agreed with Mr. Kuntze that if the raised area on the Maxner property was a septic bed it would be impossible to continue the drainage ditch on the route it once existed.
• It seemed odd to him that the Council of the Municipality would pass a by-law to hire Mr. Kuntze then at the last minute refuse to adopt his report. He asked that the Tribunal assign the costs of preparing the report and the costs of having the engineer appear at the hearing to the Municipality.
• He was offended that one councillor had said so what if he had to take a 20 bu/acre loss in his soybean yield.
• He also wanted his share of the assessed costs to be reduced.

No parties had questions for Mr. Young. In response to questions by the Tribunal, he indicated:

• His outlet was very poor. The natural ditch drains well on his property but when it reaches the boundary between his property and the adjacent Eckert property the water can no longer flow north due to obstructions in the ditch on that property.
• The downstream channel continues directly off his ditch, it was simply a matter of lack of maintenance on the Eckert and Waeger properties.
• Water flows in the ditch whenever it rains.
• His field was not tiled.
• He had owned his property for six years and the only change in that time was that the drainage was getting worse each year.
• He lived directly across the road from the property in question and had done custom work on it for several years before he owned it and had seen no change in the lay of the land in that time.
• Before he bought the Young property topsoil had been removed from three acres on the southeast corner, but he was able to level that portion out when he bought it and it was now good land. There was no drainage problem on that part of his property.

Robert Cote

Mr. Robert Cote indicated that his property was at the southeast corner of Netherby Road and Winger Road, near the bottom of the watershed. He said he bought it in 2004 and built a home on it. He submitted photographs taken six days before during a rainfall event (Exhibit 6). Mr. Cote said these showed water pooling on his land, after entering from the Young property after it could not drain quickly enough through the overgrown swale. He said two pictures showed water that was collecting on the Young property at the Young-Cote boundary line, covering his crop. He said a lot of water flowed past his house and a small lake formed in his backyard, blocking access to his equipment. He said his house was approximately 250-275 feet north of the existing swale.

Mr. Cote said he supported the appeal because he appreciated that Mr. Young needed drainage for agriculture and as he felt his property would benefit as well. He said he was not an expert on drainage but recognized a problem when he saw one. Mr. Cote said he respected the views of his other neighbours and had hoped they could reach a resolution on the drainage issue between neighbours. He said since they could not, he supported Mr. Kuntze’s report.

In response to questions from Ms. Noyes, Mr. Cote indicated:

• Water does not just flow in one line; he understood it ran to the centre of the Young property, then north and east through the five residential properties, including his property.
• The proposed drainage works would directly affect his property as it would remove water from the cultivated field, rather than allow it to pool up and cross onto his property.
• However the project is constructed he thought it was necessary; he would prefer to have a ditch constructed on the Young property but understands the rationale that his own land was not being cultivated for agriculture.
• The existing swale crossed his property and when water overflows it goes everywhere.

In response to questions by Mr. Kuntze, Mr. Cote indicated:

• He thought the majority of water shown in his photographs (Exhibit 6) originated on the Young property.
• He supported the route of the drain in the report even though he would have preferred it to be on the other side of the property line.
• He agreed that water in the southeast corner of his property would be carried to Winger Road; the water flow through the existing watercourse would also be reduced.

No other parties had questions of Mr. Cote. In response to questions from the Tribunal, he clarified that:

• He originally planned to have a driveway off Winger road but opted to route it to Netherby Road to avoid the need for a culvert.
• He understood what a cut-off assessment meant.
• He knew he would not get an allowance if the drain were built on the Young property but still preferred that location.

Mr. Brett Ruck

Mr. Brett Ruck, Drainage Superintendent for the Municipality, read a letter from landowner Alison Hogan in which she indicated Mr. Young needed drainage and she was supportive of the engineer’s report prepared by Mr. Kuntze.

Mr. Ruck said his colleague had checked rainfall records and determined that 25.6 mm of rain fell on September 28, 2006 – the day Mr. Cote took his photographs – as measured at the Rosehill Treatment Plant in Fort Erie. He said the rain fell within a short period of time.

Ms. Anne Marie Noyes

Ms. Anne Marie Noyes, Councillor for the Municipality told the Tribunal that:

• Council knew that the neighbours had tried to resolve this issue and had thought to build a private drain on the Young property.
• There was no existing municipal drain on the Young property.
• As a farmer’s daughter she is familiar with drainage problems on farms; there are always low areas in fields that cannot be cultivated and it is rare to be able to crop 100% of land without enhanced drainage.
• The concern is that if the Municipality started draining farmers’ fields there would be a considerable hardship to neighbours and ratepayers. There was a clay base in Fort Erie with standing water in many fields and if all the swales and ditches were made into municipal drains it would soon be very expensive.
• Photographs taken by Mr. Maxner (Exhibit 8) from early Spring to October 3, 2006 showed the crop growing on the Young property. The photographs also showed the existing ditch at various times of the year.
• Council understood that if a new ditch was constructed the existing ditch would still need to be maintained as properties to the south would still need an outlet for their water.
• She did not think it was fair that the owners of residential lots would have to give up their property to create a drainage outlet, as was proposed in the report.
• She knew the existing ditch had no status under the Drainage Act but did not believe it could be filled in. She was not aware of any ongoing maintenance of the swale.
• She thought that drainage on the Young property may be toward the existing swale because he had routed it that way.
• She thought that a cost of $53,000 to improve land that is already cultivated was a heavy price to pay for perhaps an additional 20 bu/acre of soybeans. No one had explained exactly how much yield gain was anticipated as a result of the proposed drainage works.
• Mr. Young would benefit from the proposed drainage works more than anyone else.
• Mr. Kuntze had indicated that the existing ditch does drain the Young property but that it drains slowly. Environmentalists recommend that flora and fauna be kept in ditches to filter out fertilizer and other additives applied on farmers’ fields.
• She understood that if the Winger Road ditch and culvert were improved, much of the drainage problems experienced by Mr. Cote would be resolved.

Ms. Noyes sought to introduce a copy of an electronic mail transmission from a landowner west of the properties in question, but within the watershed. Mr. Cote objected on the grounds it contained opinion evidence and there was no opportunity to cross-examine the author. The Tribunal did not accept the document.

In response to questions from Mr. Kuntze, Ms. Noyes indicated:

• She did not think Mr. Young’s drainage problem was serious enough to warrant a drain as the land was still able to be cultivated.
• Council was aware of the appeal process and aware that landowners had the right to appeal to the Tribunal if they were dissatisfied with the location of the drain. The only thing that could be discussed by a court of revision was the assessments.
• If a landowner comes to Council with a proposal that requires the expenditure of tax dollars then it can dictate how the land is to be used.
• The Council felt the drain – if the project were to proceed – should be constructed on the Young property.

In response to questions from Mr. Cote and Mr. Young, Ms. Noyes indicated:

• She had seen the photographs taken of the area during a rainfall event.
• She was aware that a private quote of $5,000 only covered the cost of putting a ditch on the Young property and that the Winger road ditch and culvert would also need to be reconfigured for that proposed ditch to work. She thought those structures and ditches on Netherby Road were due for repair in any event.
• She thought the plow lines directed water to the centre of the Young property.
• She did not know the yield damage caused by the drainage problems on the Young property.

In response to questions from the Tribunal, Ms. Noyes confirmed that:

• Council of the Municipality did not ask the engineer to prepare a preliminary report.
• She did not recall asking for a cost/benefit study.
• She did not attend the first on site meeting but attended the second meeting which was held in Council Chambers.
• Council of the Municipality was aware it could have sent the report back to be revised.

Jay Maxner

Mr. Jay Maxner entered additional photographs that he had taken (Exhibit 9) and said they showed that water from the Young property was forced onto his property. He said he had owned his property for five years but did not know if the ditch had always been there.

Mr. Maxner said he had been approached by Mr. Cote on or about May 4, 2006 about a possible private settlement of the drainage dispute. He said he would have pitched in $1,000 for a private ditch on the Young property but objected to the proposed location of the drain on his land. Mr. Maxner submitted that the existing ditch was not a watercourse as it did not run year round and did not have defined bed and banks. He said water only flowed in the ditch when it rains or when snow is melting.

Mr. Maxner said he questioned Mr.Young’s integrity as he initially said there had been no changes to his property and later said that topsoil had been removed.

In response to questions from Mr. Cote, Mr. Maxner said he was aware the estimate for a ditch on the Young property did not include engineering fees or permits and that it was only one part of the proposed private solution.

Mr. Cote clarified, on a question from Mr. Kuntze, that the estimate was given by a contractor who knew all the parties and who walked across the lands but did not look at detailed grades or volumes prepared by Mr. Kuntze.

In response to a question by Mr. Kuntze, Mr. Maxner indicated he characterized the existing drainage structure as a ditch or channel. He also said he did not need additional drainage.

In response to questions by the Tribunal, Mr. Maxner said:

• When it rains heavily water flow is visible in the ditch, but nothing was seen after a light rain.
• Water was running in the ditch on September 28, 2006. There had been a lot of rain and the ground was saturated.
• He had hardly seen any flow in the ditch from May through September.
• He thought Mr. Young had an outlet without going through his property if the Municipality would fix its culverts.

Terry Eckert

Ms. Terry Eckert told the Tribunal she had lived on her property for 15 years, had seen the Young property farmed in that time and had never seen a problem. She said in addition to the topsoil that a previous owner had removed, a hedgerow had been removed by Mr. Young and he had taken a bulldozer onto her property at that time to dig out the ditch on her property without permission. She testified that Mr. Young had later telephoned her with a proposal to dig a new ditch straight down her property line to the road. She said he had not suggested cleaning out the existing swale. She said she understood that if land had been altered then it could not be drained under the Act.

She also provided photographs to the Tribunal (Exhibit 12)

Ms. Eckert pointed out that Mr. Kuntze had said that water does flow through the existing swale and said that she did not see a problem. She submitted it was unfair to involve other landowners in order to give Mr. Young a greater flow. Ms. Eckert said that Fort Erie land is quite flat everywhere and water runs after every major rain. Ms. Eckert said she disagreed with Mr. Kuntze with regard to the area requiring drainage and said he should have included the entire watershed in his definition. She suggested that Mr. Young be required to solve his drainage problems himself, without involving other landowners.

In response to questions from another party, Ms. Eckert indicated that the existing ditch is carrying water when it rains so she hoped it would not be filled in if the proposed new drain were to be constructed.

In response to questions from the Tribunal, Ms. Eckert indicated:

• There had never been any maintenance on the ditch on her property; there was no reason to undertake maintenance.
• She thought the natural slope of the land would result in water collecting in the existing ditch, after the new ditch is constructed.
• She did not understand how the new ditch would cut-off water from the Young property and prevent it from entering her property.

Bill Young Reply

Mr. Young said he had hired a bulldozer to clean up fence rows and because some branches fell on Ms. Eckert’s property, he picked up those branches to be neighbourly. He said one of the Eckert photographs (Exhibit 12) showed a bulldozer mark along his property, not a ditch.

SUMMATIONS

Mr. Young told the Tribunal he believed the proposed new drain would best serve the watershed if it were located at the south boundaries of the properties to the north of his, as it would collect water from his property and Mr. Cote’s property. He said he understood this would stop water from entering into the existing ditch and it could then be filled. He also asked that the cost of having the engineer attend the hearing be charged to the Municipality, as Council first agreed he had a problem then abruptly changed its mind. Mr. Young said he had tried to resolve his drainage problem on a friendly basis. He asked the Tribunal to proceed in his favour and grant his requests.

Mr. Kuntze stated that he understood he was only to deal with the Section 45 issue, the action taken by the Council of the Municipality. He said that drainage problems were never easy to resolve and the Act set out a process which allowed for their resolution. Mr. Kuntze said the Municipality had appointed him under the Act and he had proceeded to design a drainage project which was requested by a valid petition. He said that the validity of the petition was not an issue for the Tribunal to determine, but that regardless, only Ms. Eckert had questioned its validity and he submitted that her photographs (Exhibit 12) showed where the water is pooling and supported his definition of the area requiring drainage.

Mr. Kuntze argued that while there is nothing in the Act that requires the Municipality to adopt the engineer’s report, its decision is not final, and the matter may be appealed. He suggested it would be more proper for the Municipality to either accept the report or send it back to fix deficiencies. He pointed out that the Municipality was not allowed to influence the report if it were to send it back. Mr. Kuntze said that he understood that some people were not happy with the process set out in the Act.

Mr. Cote said that where water fell and ended up was no ones fault. He said he agreed with Mr. Young that the Municipality was premature in rejecting the engineer’s report and that it was unfortunate that it took that action.

Ms. Noyes pointed out that the Council of the Municipality did not have to automatically agree with a report just because it commissioned it and argued that if it had sent it back for revision, Mr. Kuntze had indicated he would return the same report to it. She said having asked for the report, it then had to decide what to do and that the Council of the Municipality was concerned about setting a precedent in draining farmers’ fields. She said the Municipality had engineers on staff and preferred to look at resolving drainage problems through private ditching, rather than a $53,000 project. She argued that a private solution could have been reached in this situation. Ms. Noyes said it was still unclear to her as to whether the existing swale would need to be retained to drain lands to the north and west of the proposed new drain.

THE FINDINGS BY THE TRIBUNAL

The Tribunal found for a fact that there was a definite need for drainage of the lands in question from the photographs taken showing excessive ponding of water after only 25.6mm of rainfall. The photographs support Mr. Kuntze’s professional view that the Young property was definitely in need of drainage.

The Municipality, supported by some of the affected landowners who objected to the proposed drain advanced the following arguments:

a) “There are always low areas in fields that cannot be cultivated and it is rare to be able to crop 100% of land without enhanced drainage.”

b) “…If the Municipality started draining farmers’ fields there would be considerable hardship to neighbours and ratepayers.”

c) “…if all the swells and ditches were made into municipal drains it would soon be very expensive.”

e) “…it was not fair that owners of residential lots would have to give up their property to create outlet, as was proposed in the report.”

f) “…a cost of $53,000 to improve land that is already cultivated was a heavy price to pay for perhaps an additional 20 bu/acre of soybeans.”

g) “Mr. Young’s drainage problem was not serious enough to warrant a drain as the land was still able to be cultivated.”

h)”…having asked for the report it (the Council) had to decide what to do and the Council of the Municipality was concerned about setting a precedent in draining farmers’ fields.”

The Tribunal finds that the rationale outlined in (a) to (g) above to be without legal foundation. Had the architect of the Drainage Act thought that such requirements or conditions for the adoption of a drainage report should be applicable thereto, they would have been part and parcel of the legislation. As for the concern for setting a precedent in draining farmers’ fields, decision makers make these decisions every day based on sound professional advice, such as the one provided by Mr. Kuntze.

Parties to the hearing raised concerns about the location of the proposed drainage works, the cost/benefit of the works and the assessment schedule. This panel of the Tribunal was charged with the task of only determining whether or not the Municipality should adopt the engineer’s report and may not rule on those matters at this time

DECISION OF THE TRIBUNAL

Based on the preponderance and weight of the evidence provided to the Tribunal substantiating the need for drainage in the area in question and considering the meticulous manner in which Mr. Kuntze met and consulted with all concerned and the deftness with which he crafted the drainage for the area, it is the decision of the Tribunal that the Town of Fort Erie take immediate steps to adopt the Kuntze report dated March 1, 2006 in its entirety in the form prescribed by the regulations therefore. With respect to the request by Mr. Young for the cost of the engineer’s attendance at the hearing, the Tribunal agrees that it is only fair, in the circumstance, that such cost be charged and be to the account of the Municipality

ORDER OF THE TRIBUNAL

1. For the reasons mentioned heretofore, the appeal by William Young and Sharon Young under Section 45 of the Drainage Act, R.S.O 1990 is upheld. The Corporation of the Town of Fort Erie is hereby ordered to proceed forthwith with the adoption of the engineer’s report on the Winger Road Drain, dated March 1, 2006, prepared by K. Smart Associates Limited pursuant to By Law 166-04.

2. The Corporation of The Town of Fort Erie is also hereby ordered to pay to the engineer, Mr. John Kuntze, his cost for having to appear at the hearing of this appeal. Such cost shall be paid out of General Funds. There is no other order as to cost and all other parties shall be responsible for their own cost.

Dated at Ottawa, Ontario this 18th day of October, 2006.