Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal.omafra@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
McKay-Clover Hill Dairy Drain
Township of Gordon
McKay-Clover Hill Dairy Drain (RE) 2007 ONAFRAAT 14
STATUTE:
Drainage Act
HEARING:
May 2, 2007
DATE OF DECISION:
May 9, 2007
2007-14
NEUTRAL CITATION:
2007 ONAFRAAT 14
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 Township of Gordon under Section 76 of the Drainage Act requesting permission to procure an engineer’s report for the purpose of varying the assessments on the McKay-Clover Hill Dairy Drain.
Before:
Rod Stork, Chair; Gene Trotman, Vice Chair
DECISION OF THE TRIBUNAL
This application was considered by way of a written hearing on Wednesday, May 2, 2007. The Township of Gordon applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) for permission to procure a report by an engineer pursuant to Section 76 of the Drainage Act.
Statutory Context
Section 76 of the Drainage Act states:
Varying original assessments for maintenance
76 (1) The council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance and repair of the drainage works may make an application to the Tribunal, of which notice has been given to the head of every other municipality affected by the drainage works, for permission to procure a report of an engineer to vary the assessment, and, in the event of such permission being given, such council may appoint an engineer for such purpose and may adopt the report but, if all the lands and roads assessed or intended to be assessed lie within the limits of one local municipality, the council of that municipality may procure and adopt such report without such permission. R.S.O. 1990, c. D.17, s. 76 (1).
Proceedings on report of engineer
(2)The proceedings upon such report, excepting appeals, shall be the same, as nearly as may be, as upon the report for the construction of the drainage works. R.S.O. 1990, c. D.17, s. 76 (2).
Appeal from report of engineer
(3) Any council served with a copy of such report may, within forty days of such service, appeal to the Tribunal from the finding of the engineer as to the portion of the cost of the drainage works for which the municipality is liable. R.S.O. 1990, c. D.17, s. 76 (3).
Appeal from assessment
(4) Any owner of land assessed for maintenance or repair may appeal from the assessment in the report on the grounds and in the manner provided by section 52 in the case of the construction of the drainage works. R.S.O. 1990, c. D.17, s. 76 (4).
Basis of future assessments
(5) An assessment determined under this section shall thereafter, until it is further varied, form the basis of any assessment for maintenance or repair of the drainage works affected thereby. R.S.O. 1990, c. D.17, s. 76 (5).
The Background
The McKay-Clover Hill Dairy Drain was constructed pursuant to engineer’s reports by J.K. Young, P. Eng., OLS dated June 19, 1970 and August 28, 1970. The second report provided for an extension to the original drain.
The Issue
The issue before the Tribunal was:
- Should the application for permission to procure an engineer’s report be granted or denied?
The Evidence
In a letter dated April 23, 2007 Ms. Carrie Lewis, CAO, Clerk/Treasurer of the Township of Gordon informed the Tribunal that:
- At the time of the original engineer’s report on the McKay-Clover Hill Dairy Drain all lands and roads assessed in the report were in the Township of Gordon, then known as Gordon and Allen West;
- Four of the lots assessed into the Drain were subsequently annexed to the Town of Gore Bay;
- The original assessment schedules assessed costs by blocks of lots with the same owners, and these aliquot lots were subsequently transferred to separate owners;
- In 2006 one of the landowners on the drain requested that maintenance be carried out.
Ms. Lewis indicated that the Council of the Township of Gordon wished to procure an engineer to develop a new maintenance schedule before maintenance work is undertaken on the Drain.
The Tribunal was also provided with a copy of a Resolution No. 11053 (carried) of the Corporation of the Town of Gore Bay. That resolution states: WHEREAS the Township of Gordon is seeking support of an application under Section 76(1) of the Drainage Act, for the purpose of providing an up to date and fair method for assessing out the cost of the maintenance of a municipal drain between the Township of Gordon and the Town of Gore Bay; THEREFORE BE IT RESOLVED THAT Gore Bay Council grants support to the Township of Gordon for their application under Section 76(1) of the Drainage Act and they be so advised.
The Findings
After consideration of the submissions made, the Tribunal finds that the request by the Township of Gordon meets the criteria under Section 76. Given that the only other municipality affected by the request is the Town of Gore Bay and it in turn agrees with the request as per its Resolution 11053 dated March 28, 2007 the Tribunal sees no reason not to approve the request by the Township of Gordon.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
- The Township of Gordon is granted permission to appoint an engineer pursuant to Section 76 of the Drainage Act to procure a report to vary the assessment on the McKay-Clover Hill Dairy Drain.
Dated at Guelph, Ontario this 9th day of May, 2007.