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: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Clark Drain and Branches (RE) City of Sarnia
Clark Drain and Branches
STATUTE:
Drainage Act
HEARING:
July 4, 2017
July 11, 2017
006Clark17
NEUTRAL CITATION:
2017ONAFRAAT11
AMENDED CLARK DRAIN AND BRANCHES City of Sarnia
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 City of Sarnia, Sarnia, Ontario under Subsection 58(4) of the Drainage Act seeking modifications to the engineer’s report for the Clark Drain and Branches in the City of Sarnia.
Before: Kirk Walstedt, Chair; Edward Dries, Vice-Chair and Maurice Janisse, Member
DECISION OF THE TRIBUNAL
The City of Sarnia (the City) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal for an order under Section 58(4) of the Drainage Act (the Act) to amend By-Law No. 97 of 2013 for the Clark Drain and Branches report.
This application was considered by way of a written hearing in accordance with section 5.1 of the Statutory Powers and Procedure Act R.S.O. 1990 as amended (SPPA) and by Rule 13 of the Tribunal’s Rules of Procedure. Although given notice, no party, other than the City, made submissions to the Tribunal on the application.
Background
The Clark Drain and Branches Report (the Report) was prepared by Tom H. Marentette (the Engineer) of Dillon Consulting, (the consultant), dated June 20, 2013. The report was duly considered by the City and given third reading and finally passed on February 9, 2015.
The Clark Drain Pump Station was awarded to the General Contractor in May of 2015 with an approximate start date of July 6, 2015. At the preconstruction meeting held on June 26, 2015, it was noted that there may be an issue with asbestos in the existing pump house building that was not identified in the original report. A subsequent investigation confirmed the existence of asbestos in the walls and roof of the existing building and an asbestos removal process was implemented. This work, in addition to an environmental spill at the site caused significant construction delays such that the project extended into the winter months of 2015.
At some point during the winter months the subcontractor responsible for the pump station building construction withdrew from the project. Further, it was noted that the design of the new building did not accommodate for future removal of the pump which is necessary for future maintenance of the pump. Through negotiation between City staff and the consultant, it was agreed that no pump station building would be constructed while the pump and control panel would be modified as required for outdoor use and operation. The consultant prepared revised construction drawings to define and describe the alterations to the works resulting from this change.
Construction of the outdoor station was completed in June of 2016. All owners affected by these works received a notice dated February 13, 2017 that outlined the changes made during construction. All were invited to a public meeting on March 2, 2017, to be made aware of and discuss these changes. The original notice also confirmed that the City would make an application to the Agriculture, Food and Rural Affairs Appeal Tribunal seeking authority to revise the governing bylaw for this work in order to incorporate the changes made to the works. No issues were raised by property owners who attended that public meeting.
The City filed a request dated May 1, 2017 to amend Bylaw No. 97 of 2013 under Section 58(4) of the Drainage Act. On this same day, all property owners affected by these works were also notified of this application by the City.
The Notice of Written Hearing from the Agriculture, Food and Rural Affairs Appeal Tribunal was received by the City on May 24, 2017. The Notice of Written Hearing was forwarded to all affected property owners on May 31, 2017. No assessed or compensated landowner expressed any interest in participating in the hearing.
Statutory Context for the Application
Section 58(4) of the Act provides:
Where error in report
(4) If, at any time after the by-law is passed and before any assessments are levied, a gross error in the report is found, the council of the initiating municipality may on notice to all persons assessed apply to the Tribunal to correct the error. R.S.O. 1990, c. D.17, s. 58 (4); 2006, c. 19, Sched. A, s. 6 (1).
The Issue
Should the Tribunal order amendments to the report to correct the gross error in the Report?
The Evidence
The consultant provided the following modified drawings labelled ‘AS CONSTRUCTED JUNE 2016’:
Architectural – Page 10 of 20 – June 20, 2013
Architectural – Page 11 of 20 – June 30, 2013
Architectural – Page 12 of 20 – June 30, 2013
Structural – Page 13 of 20 – June 20, 2013
Structural – Page 14 of 20 – June 20, 2013
Mechanical – Page 15 of 20 – June 20, 2013
Pump Details – Page 16 of 20 – June 20, 2013
Demolition Plan – Page 17 of 20 – June 20, 2013
Power Plan – Page 18 of 20 – June 20, 2013
Control Plan – Page 19 of 20 – June 20, 2013
One Line Diagram – Page 20 of 20 – June 20, 2013
Site Layout and One Line Drawing – E1 – April 13, 2016
Lift Station Pump Control Panel Details – E2- April 13, 2016
The original report had recommended the construction of a new concrete block building to house the pump and motor controls. During construction, it was determined that this building would be deleted from the works and an outdoor station with no building would be constructed. In general terms, this decision resulted in the following modifications to the plans governing the construction:
delete all references and details on the plans related to the pump station building
include references and details of the weatherproof control panel enclosures now required
include references and details of modifications to the electrical service to the pump station
include references and details of the construction of a security fence to surround the pump station
The City reported that the alterations to the works resulted in some construction cost savings and potential savings in future maintenance operations on this pump station.
Findings and Analysis
The Tribunal has reviewed the practical, functional, and economic impacts of the changes made to the works originally recommended in this report. With the exception of replacing the originally recommended building with all-weather enclosures for the control panels and the construction of a security fence around the site, no other component of the drainage works was altered. Therefore, there will be no impact on the design capacity or the functional operation of the drainage works. In fact, this alternative allows much easier access for long term maintenance of the pump as the original building design did not include any provisions for the potential removal of the pump from the building.
The alterations to the pump station did not alter the apportionment of cost levied against the properties within the watershed as shown in the report. All assessments for the pump station may actually have been lowered as the cost of the modified works was less than the anticipated cost of the originally recommended works.
The loss of security for the pump station offered by the originally recommended building was offset by the inclusion of lockable weather proof control panel enclosures and the installation of a commercial grade chain link perimeter fence to protect the site.
The Tribunal finds that the City of Sarnia and their Consultants have appropriately managed the modifications found to be necessary at the pump station site. Further, it is clear that all property owners affected by these works were informed of the proposed modifications and invited to participate in discussions related to them.
The Tribunal finds that the request for an Order to correct the Bylaw, pursuant of section 58(4), is the most practical method to ensure that the drain is accurately identified for the purposes of future maintenance.
Order of the Tribunal
The Tribunal thereby orders
Dillon Consulting shall provide the City of Sarnia with signed, sealed and dated drawings that accurately reflect the ‘As Constructed’ details of the works as shown on Drawings No. 10 to 20 inclusive dated June 20, 2013 and labelled ‘As Constructed June 2016’ and Drawings E1 and E2 dated April 13, 2016 and labelled ‘As Constructed June 2016’.
Bylaw No. 97 of 2013 is hereby amended to incorporate the modified drawings referenced herein as provided by Dillon Consulting and labelled ‘As Constructed June 2016’.
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Maidstone, Ontario this 10^th^ day of July, 2017.
AMENDED Dated at Maidstone, Ontario this 11^th^ day of July, 2017.