Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph ON N1G 4Y2 Tel: 519 826-3433, Fax: 519 826-4232 Email: appeals.tribunal.omafra@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Courriel : appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Dowdall Municipal Drain Goulbourn Ward and Township of Beckwith
Dowdall Municipal Drain (RE) 2010 ONAFRAAT 27
STATUTE: Drainage Act
HEARING: August 24, 2010
DATE OF DECISION: August 31, 2010
2010-27
NEUTRAL CITATION: 2010 ONAFRAAT 27
DOWDALL MUNICIPAL DRAIN
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Bruce Chrustie, Ashton, Ontario; and Robert Anderson, Ashton, Ontario under Section 54(1) of the Drainage Act from a decision of the Court of Revision on the Dowdall Municipal Drain in Goulbourn Ward and Township of Beckwith.
Before: Gene Trotman, Vice-Chair; Jack Young, Vice-Chair; Denis Perrault, Member
Appearances: Robert and Annette Anderson - Appellants and landowners Bruce Chrustie - Appellant and landowner Andy Robinson - Engineer, Robinson Consultants Inc. Lorne Franklin - Robinson Consultants Inc. Marc Gagne - Drainage Superintendent, City of Ottawa Erin Moore - Drainage Clerk, City of Ottawa Dave Ryan - Drainage Manager, City of Ottawa Cathy Crosby - Counsel for the City of Ottawa Diane Blais - Clerk of the City of Ottawa Interested Landowners - Dale and Catherine Thompson (Vice President of Heron Lakes Community Assoc.), Dan Fleming, Catherine Dickerson, Robert Newell (landowners in Beckwith Township)
DECISION OF THE TRIBUNAL
This hearing was held in the City Hall for the City of Ottawa (the Municipality), in Ottawa, Ontario, on August 24, 2010. Robert and Annette Anderson, and Bruce Chrustie, appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under section 54(1) of the Drainage Act (the Act) from the Engineer’s Report titled “Dowdall Municipal Drain” (the Report), dated December, 2009, prepared by Robinson Consultants Inc. Andy Robinson, (the Engineer), a professional engineer with that firm, was designated under section 8(2) of the Act for overall responsibility for the Report.
Diane Blais, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the report parties to this hearing. The Clerk of the Municipality filed two affidavits of service with the Tribunal as proof that all parties in the City of Ottawa and Beckwith Township had been served with the notice of this hearing.
BACKGROUND
The Dowdall Municipal Drain was first constructed pursuant to a report dated August 21, 1969. Robinson Consultants Inc. was appointed in March 2005 on this project and much of the intervening time was taken up obtaining fisheries and environmental approvals and satisfying the concerns of the conservation authority.
The meeting to consider the Report before the North Gower Agriculture and Rural Affairs Committee was held on January 14, 2010. The provisional by-law was given first and second readings by the Council of the City of Ottawa on February 24, 2010.
Court of Revision meetings were held on March 25 and April 22, 2010.
The assessment appeals under s 54(1) of the Act involved only two sections of the main drain which are described as follows:
Section No. 1
Section No. 1 consists of the lower portion of the drain from the Heron Lakes subdivision pond downstream to the outlet into the Jock River. This section will provide an improved outlet for a new culvert on Lakewood Drive. The culvert will be constructed separate from this project by the City of Ottawa.
The estimated cost in the Report of Section No.1 is $361,347.35. The upstream landowners are assessed $7,995.68 which is about 2.2% of the cost of this section.
Section No. 2
Section No. 2 involves construction of a section of drain on the National Defence property (W1/2 of Lot 6, Con 4) downstream of Station 1+200. This work is required to accommodate required flows, to repair previously completed works, and to allow for the incorporation of previous modifications.
The estimated cost in the Report of Section No.2 is $61,818.33. The upstream landowners are assessed $28,098.30 which is about 45.5% of the cost of this section.
The total assessments in the Report for Sections No. 1 and 2 for each of the appellants is as follows:
B. Chrustie (Roll # 271-815-17205) - $34.88 A & R Anderson (Roll # 271-815-12700 & 12710) - $3,084.45
ISSUE
Are the assessments of Bruce Chrustie, and Robert and Annette Anderson in the Report fair and reasonable?
EVIDENCE
Bruce Chrustie presented evidence on his own behalf as well as representing Robert and Annette Anderson
Section No.1
Mr. Chrustie stated that the 1985 drainage report for the Heron Lake Estates subdivision showed a watershed area of 369 hectares where the current Report shows a watershed area of 700 hectares or approximately double the area.
Mr. Chrustie stated that 100% of the costs relating to Section No.1 should be assessed to the Municipality. He stated that 90% of the work in Section No.1 relates to the lowering of the rock level in the channel to provide an outlet for the new road culvert under Lakewood Drive which is being constructed by the Municipality.
Mr. Chrustie stated that the total cost of this section should be assessed as a Special Benefit to the Municipality under section 26 of the Act, which provides that the increased cost caused by the existence of works of a road authority be assessed as a special assessment to the road authority.
Mr. Robinson provided an allocation of costs for this section and stated that approximately 2% of the costs of the section were assessed to the upstream landowners. He said that the channel improvement would provide more than just an outlet for the road culvert and showed photos of spring flooding in the Heron Lakes Estates subdivision. He stated that the new construction in this section would eliminate the need for maintenance of this section of the drain over the next several years, and that spending this amount of money now would reduce the maintenance costs.
Section No. 2
Construction work involved in Section No. 2 of the project involves reconstruction of the section of drain which was relocated by the municipality several years ago. Mr. Chrustie stated that this section of the drain was reconstructed illegally by the previous municipality without the benefit of modifying the 1969 engineer’s report. As such, Mr. Chrustie stated that the Municipality should be 100% responsible for the costs in Section No. 2. Mr. Chrustie stated that because this work was done without amendment to the 1969 report, the municipality should be assessed under section 80 of the Act.
Mr. Robinson testified that the reconstruction was done by the former Township of Goulbourn to rectify a problem that existed after the 1969 construction. He stated that the Township should have requested an amendment to the 1969 report to do that reconstruction and distribute the cost of that work. He stated that if the relocation had been done under an engineering report, the cost of the work would have been assessed to the upstream landowners at that time.
Mr. Robinson said that to rectify this situation the costs of preparing the Report, which are associated with Section No. 2 of the project, are assessed as a Special Assessment to the Municipality (now the City of Ottawa) and the cost of the construction improvements on this section are assessed to the landowners in Section No. 2 and upstream.
FINDINGS
Section No.1
The Tribunal finds that it is not reasonable to assess 100% of the cost of Section No.1 to the Municipality.
The Tribunal finds that the costs associated with Section No.1 are mainly attributable to the construction of the Lakewood Drive culvert outlet. However, the Tribunal finds that since the improvements to Section No.1 will also relieve flooding and the requirement for maintenance in this section for a number of years, the assessments against the landowners are fair and equitable.
As no evidence was introduced to the contrary, the Tribunal accepts the watershed area as shown in the Report.
Section No. 2
The Tribunal finds that section 80 of the Act applies to the maintenance of a drainage project by a drainage superintendent and does not give the Engineer the authority to levy assessments as requested by the appellants.
The Tribunal accepts the evidence of the Engineer that if the past relocation of this section had been done under an engineer’s report, the cost of the work would have been assessed to the upstream landowners at that time. The Tribunal finds that it is fair to assess the construction portion of this section to the landowners in Section No. 2 and upstream.
TRIBUNAL ORDER
The Tribunal orders as follows:
That the appeals by Bruce Chrustie (Roll # 271-815-17205) and; Robert & Annette Anderson (Roll # 271-815-12700 & 12710) be denied.
That the non-administrative costs of the Municipality in with 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 that all parties are responsible for their own costs.
Dated at Ottawa, Ontario this 31st day of August, 2010
All landowners present at the hearing on August 24, 2010