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:
Bruce Drain
Municipality of Kincardine
Bruce Drain (RE) 2008 ONAFRAAT 06
STATUTE:
Drainage Act
HEARING:
June 12, 2007
DATE OF DECISION:
February 14, 2008
2008-06
NEUTRAL CITATION:
2008 ONAFRAAT 06
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 Dennis Munro, Tiverton, Ontario and by Kathleen Freer and Gary Freer, Tiverton, Ontario under Section 48 of the Drainage Act from the engineer’s report and under Section 54 of the Drainage Act from the decision of the Court of Revision on the Bruce Municipal Drain No. 19 in the Municipality of Kincardine.
Before:
John O’Kane, Chair; Rod Stork, Member; Euclid Mailloux, Member
ADDENDUM TO THE DECISION OF THE TRIBUNAL
Background
The Tribunal met on June 12 and 13, 2007, and July 12, 2007, to hear the appeals of Dennis Munro (“Munro”), and Kathleen Freer and Gary Freer (“Freers”). The appeals were about the Bruce Municipal Drain No. 19, in the Municipality of Kincardine.
The Tribunal released its Decision on the appeals on October 10, 2007 (“Decision”). After it released its Decision, the Tribunal received letters from the engineer, J. Andrew McBride, dated November 30, 2007, and from Munro, dated December 21, 2007, both seeking clarification of the Decision.
Munro sought clarification about his farm lane crossings. He asked if the Decision meant he could have two 11 metre wide farm lane crossings on Lots 8 and 12 at his cost, as requested by Munro at the Hearing, and two 6 metre wide farm lane crossings on Lot 9 and west ½ of Lot 13 (“Lot 13”), as proposed in the engineer’s report, respectively.
The engineer sought clarification on the following three items from the “ORDER OF THE TRIBUNAL” on page 22 of the Decision:
Order number 3 about dealing with the excavated spoil on the buffer strips;
Order number 4 about the assessments to roll numbers 1-148, and 1-149;
Order number 5 about the land value of the licensed landfill site.
In addition, the engineer pointed out that the Tribunal Order ought to have included a further direction about the proper factor to use for the land values. This issue arises from page 19 of the Decision under the heading “3. Compensation for Insufficient Outlet”. The Tribunal had directed the engineer to use a factor of 1.0 uniformly across the drain; however, that direction did not appear under the Order section.
Following the receipt of the engineer’s and Munro’s letters, the Tribunal issued a letter to all parties. The Tribunal letter attached the engineer’s and Munro’s letters and told all parties of their opportunity to present submissions on those matters. In response, the Tribunal received submissions from the engineer, Munro, and the Saugeen Valley Conservation Authority (SVCA), dated January 7, 17 and 22, 2008, respectively. In their respective letters: the engineer accepted Munro’s preferences, and stated “[these] changes can be made in the amended Report”; Mr. Munro stated that he accepts the suggestions made by the engineer. The SVCA stated they had no comments. The Freers did not make submissions.
Addenda to the Decision
Based on further submissions received, dated November 28, and December 21, of 2007; and January 7, 17 and 22, of 2008, respectively; the Tribunal issues the following addenda to the Decision.
Order number 3 of the Decision is replaced by the following:
- All buffer strips in the Report will be revised to a width of 6 metres, with:
a) The excavated spoil will be placed on the topsoil, over the 6 metre wide buffer strips;
b) The costs for dealing with the excavated spoil will be assessed to each of the affected lands, and to the upstream lands;
c) The costs for moving any excavated spoil to fill old waterholes on the Munro property will be charged to the property owner requesting that work.
Order number 4 of the Decision is replaced with the following:
- The engineer will amend the Report to assess 1.3 fewer equivalent hectares for Part Lot 13 (roll no. 1-148), and 1.4 fewer equivalent hectares for Lot 14 (roll no. 1-149) for both Branch A, and the Main Drain-Open Portion.
Order number 5 of the Decision is replaced with the following. To remove any doubt it is the Tribunal’s intention to increase the assessment on the licensed portion of the landfill site.
- The engineer will amend the assessment on the licensed landfill area by using the factor necessary to achieve a land use factor four times greater than that used in the Report, and re-apportion the assessments against the landfill site and the lands upstream from the landfill site, and amend the Report accordingly.
With respect to the calculation of land values, in subheading number 3 of the Decision “Findings”, the Tribunal issues the following addendum that will be referred to as Order number 9 of the Decision:
- The engineer will amend the Report to use a factor of 1.0 instead of 0.7 in all Section 29 allowance calculations.
Given the consensus achieved between the engineer and Munro concerning the farm lane crossings the following addendum will be referred to as Order number 10 of the Decision:
- The engineer will amend the Report to provide for two 11 metre top width farm lane crossings on Lots 8 and 12 of Munro’s property. The cost of those wider farm lane crossings will be borne by Munro. The remaining two Munro farm lane crossings on Lots 9 and 13 will be constructed at 6 metres top width.
Dated at Brampton, Ontario this 14th day of February, 2008.