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 Stone Road West
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 Courriel : appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Talbotville Municipal Drain Township of Southwold
Talbotville Municipal Drain (RE) 2009 ONAFRAAT 21
STATUTE:
Drainage Act
HEARING:
August 7, 2009
August 18, 2009
2009-21
NEUTRAL CITATION:
2009 ONAFRAAT 21
Talbotville Municipal Drain
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 Southwold under Section 76 of the Drainage Act requesting permission to procure an engineer’s report for the purpose of varying the original assessments on the Talbotville Municipal Drain.
Before:
Jack Young, Vice-Chair; Gene Trotman, Vice Chair
DECISION OF THE TRIBUNAL
The Township of Southwold 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.
This application was considered by way of a written hearing on August 7, 2009.
Statutory Context
Section 76 of the Drainage Act deals with an existing drainage project involving more than one municipality, where conditions have changed and the existing Schedule of Assessments in the drainage bylaw is now unworkable for the purpose of levying assessments for maintenance work on the drainage project. Approval of this application will provide the Township of Southwold with the authority to procure an Engineer’s Report to provide a new Schedule of Assessments for Maintenance of the Talbotville Municipal Drain.
The complete wording of Section 76 of the Drainage Act is attached to this decision as Appendix “A”.
Background
The Talbotville Municipal Drain was constructed pursuant to a report prepared by S.W. Archibald, P.Eng., OLS, dated October 24, 1955. The report and subsequent bylaw provided for construction work in the Township of Southwold only, however the watershed extended into the Township of Westminster which is now part of the City of London.
The Issue
The issue before the Tribunal is:
- Should the application for permission to procure an engineer’s report be granted?
The Evidence
An application to the Tribunal to vary the assessments on an existing drainage project, when other municipalities are involved, requires under Section 76(1) the initiating municipality (Southwold) to give notice to the other municipalities liable for contribution to the drainage work.
By letter dated May 10, 2009, the Township of Southwold provided the required notice.
Mr. Brent Clutterbuck, Drainage Superintendent for the Township of Southwold presented evidence by letter dated July 24, 2009, indicating the changes in land use, within the watershed, that have taken place since the 1955 bylaw. These changes are summarized as follows:
There have been several major developments within the area including:
The Ford Assembly Plant and the construction of the railway to service the plant. The new railway severed land and created new parcels of land.
The Ministry of Transportation of Ontario has expropriated land in order to build a proposed highway in the area.
There have been various unban developments and severances in the Talbotville area.
The Van Lanen Drain was constructed by the Township of Westminster, now in the City of London pursuant to an Engineer’s Report dated August 23, 1983. It would appear that this new drainage project now provides an outlet for the portion of the watershed in the City of London that previously had an outlet through the Talbotville Municipal Drain.
The Findings
After consideration of the submissions made, the Tribunal finds that the request by the Township of Southwold meets the requirements of Section 76 of the Drainage Act. Since the Van Lanen Drain has diverted the lands in the City of London from the watershed, the Township of Southwold will likely be the only municipality involved in the new report and bylaw.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed, the Tribunal orders that:
The Township of Southwold is hereby granted permission to appoint an engineer pursuant to Section 76 of the Drainage Act to procure an engineer’s report to vary the assessment on the Talbotville Municipal Drain.
Dated at Gravenhurst, Ontario this 18th day of August, 2009
Appendix “A” - Section 76 of Drainage Act
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).