Blandford-Blenheim Applications (Re), 2012 ONAFRAAT 20

Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

APPEAL: Blandford-Blenheim Applications Township of Blandford-Blenheim

Blandford-Blenheim Applications (RE) 2012 ONAFRAAT 20

STATUTE: Drainage Act

HEARING: July 25, 2012

DATE OF DECISION: August 3, 2012

2012-20

NEUTRAL CITATION: 2012 ONAFRAAT 20

Blandford-Blenheim Applications Township of Blandford-Blenheim

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 Blandford-Blenheim 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 following drains:

• Danbrook Drain 1988 – By-law 766-88
• Townsend Drain Improvement (including branches) – By-law 2-1964
• Roberts Drain (including branches) – By-law 10-1971
• Scott Creek Drainage Works – Laister Drain – By-law 221-78
• Scott Creek Drainage Works – Roberts Drain – By-law 221-78
• Anderson Drain 1975 – By-law 33-1975
• Balls Branch of the Anderson Drain – Part 3 – By-law 8b-1972
• Balls Drain – By-law 5-1812
• Balls Drain Extension – By-law 31-1968
• Balls Drain 2000 – By-law 1333-2001

Before: Jack Young, Vice-Chair; Paula Lombardi, Vice-Chair

DECISION OF THE TRIBUNAL

The Township of Blandford-Blenheim (“Municipality” or “Blandford-Blenheim”) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) pursuant to Section 76 of the Drainage Act for permission to procure a report by an engineer pursuant to Section 76 of the Drainage Act (“Act”).

This application was considered by way of a written hearing on July 25, 2012.

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 Municipality with the authority to procure an Engineer’s Report to provide a new Schedule of Assessments for Maintenance of the drains listed above.

The complete wording of Section 76 of the Drainage Act is attached to this decision as Appendix “A”.

Background

Numerous drainage reports under the Act were completed in the Municipality permitting the construction and maintenance of these drains. The reports and subsequent by-laws provided for work that is now situated in the City of Woodstock due to the annexation of lands and roads in September, 2005.

The Issue

The issue before the Tribunal is:

1. Should the application for permission to procure an engineering report(s) 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), that the municipality initiating the project (Blandford-Blenheim) give notice to the other municipalities liable for contribution to the drainage work – in this case the City of Woodstock.

Blandford-Blenheim contacted the City of Woodstock to update the assessment schedules for these projects which are now situated partly within the municipal limits of the City of Woodstock.

On February 16, 2012, Council of the City of Woodstock considered Blandford-Blenheim’s request to update the drainage projects and passed a resolution supporting Blandford-Blenheim’s application to the Tribunal for the appointment of an Engineer to update the drainage reports located in the area annexed by the City of Woodstock in 2005.

On March 7, 2012 Council for Blandford-Blenheim passed a motion authorizing the Drainage Superintendent to seek approval of the Tribunal to permit the preparation of new assessment schedules for existing municipal drains impacted by lands and roads that are now located with the City of Woodstock.

The Township of Norwich by letter dated April 23, 2012 to Blandford-Blenheim supported the appointment of an engineer to prepare new assessment schedules for future maintenance purposes for the Anderson Drain-1975 & Balls Drain, including the branches of these drains. The Township of Norwich recognized that new assessment schedules are required due to the annexation of land and roads by the City of Woodstock.

On June 18, 2012 the Municipality provided the Tribunal with a copy of the “Township of Blandford-Blenheim drainage Map” (revised May 2012 to show the location of the Woodstock boundary). The drainage map was highlighted to identify the drainage projects now partially located within the City of Woodstock as a result of the 2005 annexation. The engineering reports and the corresponding municipal by-law(s) for each of the following drainage projects were provided to the Tribunal.

1. Danbrook Drain 1988 – By-law 766-88
2. Townsend Drain Repair 1980 – By-law 353-80
3. Roberts Branches – Scott Creek – By-law 10-1971
4. Scott Creek Drainage Works – By-law 221-78
5. Scott Creek Drains – By-law 29-1968
6. Anderson Drain 1975 – By-law 33-75
7. Balls Branch 1912 - By-law 5-1912
8. Balls Drain Extension – By-law 31-1968
9. Balls Branch of the Anderson Drain – Part 3 – By-law 8-1972(b)
10. Balls Drain - 2000 – By-law 1333-2001

The Tribunal notes that there have been several major developments within the drainage area, primarily the annexation of lands by the City of Woodstock along with numerous land severances in the Blandford-Blenheim area.

Blandford-Blenheim’s request to secure the report of an engineer to vary the assessments in order to carry out maintenance of the drains is supported by the City of Woodstock and the Township of Norwich.

The Findings

After consideration of the evidence submitted by Blandford-Blenheim, the Tribunal finds that the request of the Township of Blandford-Blenheim meets the requirements of section 76 of the Drainage Act.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed, the Tribunal orders that:

The Township of Blandford-Blenheim is hereby granted permission to appoint an engineer pursuant to section 76 of the Drainage Act to procure an engineer's report(s) for the ten (10) drainage projects described above.

It is up to the discretion of the Municipality whether it chooses to proceed with the project by having an engineer prepare one report for all of the drains or alternatively prepare a report for each of the drains or drainage systems.

Dated at Gravenhurst, Ontario this 3rd day of August, 2012.

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).