Forsyth Drainage Works-Garden Avenue Branches (RE), 2007 ONAFRAAT 19

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone 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@omaf.gov.on.ca

Guelph (Ontario) N1G 4Y2

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

Email: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Forsyth Drainage Works-Garden Avenue Branches

Township of Middlesex Centre

Forsyth Drainage Works-Garden Avenue Branches (RE) 2007 ONAFRAAT 19

STATUTE:

Drainage Act

HEARING:

June 18, 2007

DATE OF DECISION:

July 5, 2007

2007-19

NEUTRAL CITATION:

2007 ONAFRAAT 19

FORSYTH DRAINAGE WORKS – GARDEN AVENUE BRANCHES

TOWNSHIP OF MIDDLESEX CENTRE

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 Jack Ireland, London, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Forsyth Drainage Works-Garden Avenue Branches 2006 in the Township of Middlesex Centre.

Before:

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

Appearances:

Jack Ireland, appellant

Barry Card, counsel to the appellant

Andrew Wright, counsel to the Township of Middlesex Centre, respondent

Mike DeVos, P.Eng, engineer, who prepared the Report, on behalf of the Township of Middlesex Centre

No other assessed landowners gave evidence or were cross-examined.

DECISION OF THE TRIBUNAL

This appeal was heard in Coldstream, Ontario on June 18, 2007. Mr. Jack Ireland appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision and from the engineer’s report dated October 19, 2006 by Spriet Associates, Consulting Engineers & Architects (the Report) on the Forsyth Drain – Garden Avenue Branches 2006 in the Township of Middlesex Centre (the Municipality) and signed by Mr. M. DeVos P. Eng, (the Engineer).

Ms. Cathy Saunders, Clerk of the Township of Middlesex Centre, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal had issued an order making all landowners assessed or compensated in the Report parties to this hearing. An Affidavit of Service was filed with the Tribunal as proof that all parties had been served with notice of this hearing.

Statutory Context

Section 48 of the Drainage Act, R.S.O. 1990 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); 2006, c. 19, Sched. A, s. 6 (1).

Section 54(1) of the Act states:

Appeal to Tribunal

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1); 2006, c. 19, Sched. A, s. 6 (1).

Section 100 of the Act states:

Extension of Time

100. The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference. R.S.O. 1990, c. D.17, s. 100; 2006, c. 19, Sched. A, s. 6 (12).

The Background

The purpose of the Report was to incorporate the drainage system in the Garden Avenue Subdivision into the existing Forsyth Drain in the hamlet of Delaware

The Report on the Forsyth Drain was prepared pursuant to Section 4 of the Act. Instructions were received by Spriet Associates from the Municipality with respect to a motion of Council in accordance with Section 8 of the Act. The work was initiated by two petitions. The petition to incorporate the storm drainage works (hereafter called the “Subdivision Drains” in keeping with this decision) was signed by the Road Authority. The petition to incorporate the sub-drains (hereafter called the “Remedial Drains” in keeping with this decision) was signed by the majority of the owners in the area requiring drainage.

The existing Forsyth Drain is a closed drain extending from an outlet at the Thames River upstream across County Road No. 2 east of John Street, northwesterly to York Street and north along York Street. The drain was last reconstructed pursuant to a report submitted by A.J. DeVos, P.Eng. dated August 19, 1965. This report provided for the reconstruction of the upper portion of the drain from County Road No. 2 upstream and consisted of approximately 424 m of 450 mm to 750 mm storm sewer and steel pipe. The lower portion of the drain was reconstructed privately by the Ministry of Transportation some time prior to 1965.

The Report under consideration recommends that both the Subdivision Drains and Remedial Drains, including appurtenances, servicing the affected area, that are shown on the attached plans, be incorporated as municipal drains for future maintenance purposes.

The Engineer also recommended that the next time maintenance is required on the Main Drain of the Forsyth Drain, the Municipality appoint an engineer under Section 78 of the Act to provide an up-to-date report showing the physical attributes of the drain as they exist and prepare an up-to-date Assessment Schedule to fairly assess all the properties within the watershed as they now exist.

The Report was prepared as required by the Subdivision Agreement and the costs estimate within the Report included only the engineering and administrative costs of the Report preparation (see Schedule “A”). All of the design and construction costs were paid in accordance with the Subdivision Agreement.

The cost associated with the Subdivision Drains was assessed to the Developer (J. Ireland) and the cost associated with the Remedial Drains was assessed to the property owners within the subdivision (see Schedule “B”).

Schedule “C” provided for Assessment for Maintenance

Preliminary Matter

Mr. Card requested leave under Section 100 of the Act to permit a late appeal under Section 48(1) of the Act so that the report could be modified and Minutes of Settlement could be considered. The Panel of the Tribunal solicited comments from all parties and with there being no opposition, the Panel granted this request.

The Issue

The issue before the Tribunal was:

Are the Minutes of Settlement fair and equitable to all parties concerned and within the jurisdiction of the Tribunal under the Act?

The Evidence

Barry Card

Mr. Card, counsel to the appellant, stated that the two parties had agreed upon Minutes of Settlement which involved revisions to the Report.

He presented an appeal under Section 48(1)(b) of the Act to modify some of the descriptions of the work within the Report and to include a revised drawing. He stated that all of the modifications, which are detailed in the Minutes of Settlement (see Appendix A of this decision), are included in a revised report dated June 13, 2007 (the “Revised Report”) which would be presented by the Municipality.

Mike DeVos

Mr. DeVos gave a summary of his professional experience and was accepted as an expert witness. He gave an overview of the project and explained how it incorporated the drainage of the subdivision into the previous Forsyth Drain which was constructed in 1965 and prior. He explained that the purpose of the report was to provide a means to distribute the cost to maintain the system in the future. He noted that no construction costs were included in the report.

He summarized the modifications included in the Revised Report as follows:

1. The title of Schedule “B” is changed to “Assessment For Cost Of The Drainage Report” from “Assessment For Construction”.
2. The sub-headings of Schedule “B” and throughout the text of the Report, are substituted with the words “Subdivision Drains“ for the words “storm drains” and substitution of the words “Remedial Drains” for “sub-drains”.
3. The two drawings prepared by ENG/PLUS (Project No. 99007, Drawing No. 17, June 2005 and Project No. 99007, Drawing No. 17, January 2006) describe the “Subdivision Drains” part of the project.
4. The drawing prepared by CCL/IBI titled “Garden Avenue Remedial Drainage Works” describes the rear lot drainage referred to as the “Remedial Drains”. This drawing is now indicated as an “as constructed” drawing by Revision 3 dated November 16, 2006.
5. The “Storm Drain” assessment against the land owned by the appellant, who is also one of the Developers, is deleted and replaced by a “Subdivision Drain” assessment against the Municipality for the same amount (i.e. $4,050.00).
6. The appellant is to pay the Municipality’s counsel’s trust account the sum of $4,050.00;
7. The appellant is to pay the $250.00 assessment against his property as per Schedule “B” to the Revised Report;
8. The Minutes of Settlement apply only to the drainage assessment under appeal; and,
9. Payment of the above funds by the appellant to the Municipality is without prejudice to the Municipality pursuing recovery of its costs in connection with a separate matter before the Ontario Superior Court of Justice.

When questioned by Mr. Wright, Mr. DeVos indicated that he was content with the Minutes of Settlement and that the Revised Report satisfied the requirements of the Act.

Mr Wright and Mr Card both indicated their acceptance of the Revised Report and the Minutes of Settlement.

The Findings

The Tribunal found that Minutes of Settlement, signed on behalf of the appellant and the Municipality and attached hereto as SCHEDULE 1, is a satisfactory resolution of the issues raised by the parties.

ORDER OF THE TRIBUNAL

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

1. The Minutes of Settlement are hereby confirmed.

2. The Revised Engineer’s Report on the Forsyth Drain -Garden Avenue Branches 2006 dated June 13, 2007 which reflects the Minutes of Settlement shall replace the Engineer’s Report dated October 19, 2006 in the provisional by-law.

3. The non-administrative costs of the Municipality 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.