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 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Niece Municipal Drain Petition (RE) City of Port Colborne
STATUTE:
Drainage Act
HEARING:
October 25, 2017
November 14, 2017
005Niece17
NEUTRAL CITATION:
2017ONAFRAAT16
Niece Municipal DRAIN PETITION
City of Port Colborne
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 Maaike Langenberg, Linda and Dustin Niece and Sylvia Smith in Port Colborne, Ontario under Section 5(2) of the Drainage Act on the Niece Municipal Drain Petition in City of Port Colborne.
Before: John O’Kane, Vice-Chair, Tim Mousseau, Member and Sarah Judd, Member
Appearances: Maaike Langenberg, Appellant Marrianne Langenberg, Representing Maaike Langenberg and Witness Linda Niece, Appellant Sylvia Smith, Appellant Cheryl Naughton, Representing Sylvia Smith and Witness Henry Bennemeer, Drainage Superintendent, Respondent
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the City of Port Colborne on October 25, 2017 to hear appeals by Maaike Langenberg, Linda and Dustin Niece and Sylvia Smith in Port Colborne, Ontario under Section 5(2) of the Drainage Act (“Act”) regarding the Niece Municipal Drain Petition in City of Port Colborne.
A report prepared by Henry Bennemeer dated January 12, 2017 concerning Niece Municipal Drain Petition was presented to Municipal council on January 23, 2017 with a recommendation that the petition not be accepted.
Ashley Grigg, City Clerk of the Town of Port Colborne performed the duties of Clerk of the Tribunal.
Preliminary Matters
Prior to the hearing, the Tribunal issued an order making all landowners affected by the petition, parties to the hearing.
Kathy Kairies, Rob Salewytsch and Mike Klemm, landowners in the neighbourhood attended the hearing and were granted participant status in the appeals.
The City of Port Colborne filed an Affidavit of Service, dated October 24, 2017 as proof that all parties to the appeal had been served with the Notice of Hearing.
Overview
The four appellants are neighbours in the City of Port Colborne and live in three adjacent homes in a residential neighbourhood at 327, 333 and 337 Barrick Road.
The appellants’ properties are aligned in a north-south orientation. The appellants’ homes all front onto Barrick Road and the rear yards of those homes face north. Immediately behind the appellants’ rear yards are the rear yards of similar residential homes that front on Hillcrest Drive. Hillcrest Drive and the properties to the north of the appellants’ properties are considerably higher in elevation.
Aligned in an east-west orientation on the rear yards of the Hillcrest Drive properties near the property line are a drainage swale and a series of catch basins that collect water draining from north to south across the Hillcrest Drive properties. That swale and the catchbasins convey that water into the municipal storm drain system.
For several years the appellants began experiencing drainage issues on their lots. Those drainage issues escalated until around 2016 when the appellants signed a petition for drainage under the Drainage Act, (the “Act”).
The appellants believe that their drainage issues are caused by or contributed to by the drainage swale on their rear-neighbours’ properties or caused by or contributed to by actions taken by their neighbours on Hillcrest Drive that include fencing and planting.
On April 24, 2017, City Council of the City of Port Colborne considered the petition and, on the recommendation of the Drainage Superintendent, refused (the “Refusal Decision”) to accept the petition pursuant to subsection 5(1) of the Act.
The appellants appealed to the Tribunal seeking a reversal of that Refusal Decision.
For the reasons as explained in this decision, the Tribunal confirms the City Council decision and denies the appellants’ appeals.
Issues:
The issue in these appeals is whether the Tribunal should confirm the Refusal Decision or direct the City Council to accept the drainage petition and appoint an engineer under the Act.
Rejecting a petition for drainage under subsection 5(1) of the Act is relatively rare but that subsection creates one of several points in the processes established under the Act where a petition for drainage could be stopped. For example, even if a municipality accepts a petition and appoints an engineer, the engineer might determine that the costs of the proposed drainage works outweighed the benefits to be achieved and recommend the drainage works not proceed1. In addition, even if appointed, an engineer might determine that the petition does not meet the numerical threshold requirements of subsection 4(1)(a) or (b) and in which case the proposed drainage works might not proceed2. In the circumstances of this case, we do not know if the Appellants’ petition would achieve the numerical thresholds of subsection 4(1)(a) or (b) or if the costs of any proposed drainage works would be commensurate with the benefits of any proposed drainage works.
The specific sections of the Act engaged by the Refusal Decision are reproduced as follows:
- (1) Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition,
(a) if it decides not to proceed with the drainage works, send notice of its decision to each petitioner; or
(b) if it decides to proceed with the drainage works, send notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources.
(2) Where a petitioner,
(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or
(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council, the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper.
Evidence
Linda Niece, Appellant
The appellants Linda Niece and Dustin Niece have lived at 333 Barrick Road since July 2002. At that time their rear yard backed onto a vacant lot as that part of Hillcrest Drive had not yet been developed. The Nieces assert that the drainage issues on their property began around 2014. Linda Niece described water along the fence with their neighbour, the appellant Maaike Langenberg, that ponded and did not drain away and saturated grass near their swimming pool. She also described how, in 2014, they had a contractor re-route the outflow from their eaves trough away from their side yard with the Langenberg’s but that did not alleviate the drainage issues.
In 2016, their rear-yard neighbour installed a fence. Linda Niece testified how this fence obstructed the flow of water draining off her property to the drainage swale on the rear-yard neighbour’s property.
The Niece’s pursued their drainage issues with the City of Port Colborne. Linda Niece testified that the City explained to them that they could drain the water from their rear and side yards to a drainage connection at the front of their house at their own expense.
Dissatisfied with the City’s response, the Niece’s hired drainage engineer John Kuntze, who did some investigatory work into the Niece’s drainage issues.
Because they were not satisfied with the City’s response to their drainage issues, the Niece’s decided to petition for drainage under the Act.
The Niece’s produced in evidence photographs of their yard and their neighbours’ yards showing their drainage issues. The Niece’s did not call evidence from a drainage engineer or a drainage contractor at the hearing. The Niece’s did request that the Tribunal appoint a professional Drainage Engineer to resolve their problems.
Marrianne Langenberg for Maaike Langenberg, Appellant
Marrianne Langenberg and her mother Maaike Langenberg have lived at 327 Barrick Road for 35 years.
Beginning around 2011, the Langenbergs approached the City of Port Colborne about drainage issues on their property.
Marrianne Langenberg testified that the City had investigated their drainage concerns but not provided any solution. She testified that there was a blockage somewhere on the drainage swale located on their rear-yard neighbour’s property that was preventing the water from draining away from their side-yard and rear-yard.
The Langenberg’s produced in evidence photographs of their yard and their neighbours’ yards showing their drainage issues.
The Langenberg’s did not call evidence from a drainage engineer or a drainage contractor at the hearing.
Cheryl Naughton for Sylvia Smith, Appellant
Sylvia Smith was assisted at the hearing by her daughter Cheryl Naughton. Sylvia Smith has lived at 337 Barrick Road for 29 years. At the time she bought her property the rear-yard abutted vacant and undeveloped land. She testified that her property drained to the swale on the property adjacent to her rear-yard and that she had no drainage issues until her rear-yard neighbour began filling in the swale with grass clippings.
In 2016, the rear-yard neighbour built a fence that Sylvia Smith asserted was a deliberate obstruction and that since the fence was built her property has drainage issues and the water on her property cannot drain to the swale on the adjacent rear-yard property. She described how her grass was saturated and how she was unable to use her property.
Sylvia Smith produced in evidence photographs of her yard and her neighbours’ yards showing their drainage issues.
Sylvia Smith did not call evidence from a drainage engineer or a drainage contractor at the hearing.
Sue Plouffe, Witness for the Appellants
Susan Plouffe and Daniel Plouffe have lived at 22 Hillcrest Road since 1999.
She testified that when they purchased their property there was a subdivision agreement registered against the title that addressed obligations not to impede drainage. She also testified that as part of their property purchase, they had to sign an undertaking that they would not do anything to interfere with grading or obstruct drainage. The subdivision agreement and the undertaking were both produced in evidence.
Susan Plouffe explained how she and her husband took their obligations seriously and how, when they constructed their fence, they left space for water to drain and built their fence with a gate so that they could maintain the drainage swale on their property.
She also testified that their neighbour on Hillcrest Road had directed their eaves trough downspouts into the ground and onto the Plouffe’s property.
Susan Plouffe produced in evidence photographs of her yard and her neighbours’ yards showing their drainage issues.
Henry Bennemeer, Drainage Superintendent for City of Port Colborne, Respondent
Henry Bennemeer has been a drainage superintendent for over 37 years and has been employed by the City of Port Colborne for the past eight years.
Henry Bennemeer testified that the City of Port Colborne has two municipal drains that are outlet drains and that he is an advocate for the Drainage Act but in this case, using the Act was not warranted. He characterized the appellants’ drainage issues as backyard drainage disputes among neighbours and explained that the City does not usually involve itself in such disputes.
He testified that the City uses subdivision agreements with developers containing grading and drainage commitments as a control at the time of development but not for disputes among neighbours twenty years after the subdivision agreement is made.
Henry Bennemeer explained that he had been unable to find a watershed plan for storm water in this subdivision.
He testified that he did have the drainage swale that is located along the rear yards of the Hillcrest Drive properties surveyed and he confirmed with a plan profile that the swale had been constructed very close to the grades set by the original design engineer. He testified that the drainage swale was working correctly. Mr. Bennemeer further testified that the rear yard runoff from the properties along Barrick Road that abut the Hillcrest properties was considered in the design of the swale at the rear of the Hillcrest properties. He testified that some of the properties on Barrick Road, including the properties of the three appellants were very flat and he acknowledged that some of those Barrick Road properties struggled to drain, but that struggle was not due to the swale, but rather than flat grading of the appellants’ properties. He explained that he had been unable to locate any as built rear-yard grade plans for the appellants’ properties.
For example, he testified how he had tried to show the Langenbergs that their drainage issue was due to the landscaping in their rear yard that had created berms that dammed the water. As another example he demonstrated how the pool in the Niece’s rear-yard was set flat and there was no way for water to run off the rear-yard to the swale.
He also testified that with increased lot coverage such as the pools and patios and decks that does create an impact on drainage.
The City produced in evidence several plans related to the subdivision on Barrick Road that included all three of the appellants’ properties. One of those plans was a “Drainage Plan” dated December 1977. That Drainage Plan reveals that the original drainage pattern for all the Barrick Road homes was to drain from the rear-yards toward the front yards and Barrick Road.
The City also produced the engineering drawings and plans for the Barrick Road storm sewer. Henry Bennemeer testified that the City storm sewer lines run along Barrick Road and there is a drain connection at the front of each of the appellants’ properties to connect into the City storm sewer. He explained that his view of the solution to the appellants’ drainage issues was to install a private catch basin in their rear-yards and use underground pipes to convey the water out to their existing private drain connection at the front of their property.
Findings of Fact and Discussion
The Tribunal finds as a fact that the appellants are experiencing drainage issues in their side-yards and rear-yards, however, as this discussion will demonstrate, the appellants have not proved on a balance of probabilities that the solution to their issues is resorting to the Drainage Act processes.
The appellants did not call any evidence from a drainage engineer or drainage contractor about the watershed or the area requiring drainage.
The only evidence the Tribunal had about the watershed area was the original 1977 Drainage Plan for the Barrick Road homes. That plan showed that the intended rear-yard elevations of the appellants’ properties was considerably higher than the front yards along Barrick Road which would have produced a drainage pattern flowing from the rear-yards to the front yards.
The Tribunal did not receive any “as built” drainage plans. Based on this evidence, the Tribunal finds as a fact that the City approved a Drainage Plan for the appellant’s properties to drain into the City storm sewer along Barrick Road. This finding of fact is also supported by Henry Bennemeer’s evidence about the storm sewer connection at the front of each of the appellants’ properties. It is also supported by the plans of the City storm sewer along Barrick Road.
Without “as built” drainage plans for the appellants’ properties the Tribunal cannot make any findings of fact about the actual drainage pattern, however based on the evidence of the appellants it appears that the lot grading of their properties was either not done in accordance with the 1977 Drainage Plan or it was and has since been altered. However, the Tribunal has no authority to enforce the 1977 Drainage Plan or to enforce subdivision agreements regarding drainage or to enforce purchaser’s undertakings regarding drainage. The appellants’ evidence about the water in their side-yards and rear-yards not draining away was supported by the evidence of Henry Bennemeer that their yards are flat. The photographic evidence supplied by the appellants reinforced that their yards are essentially flat and in some places, their landscaping has created berms that prevent water draining away.
The appellants did not call any evidence about how the Drainage Act processes would or could address their drainage issues. The appellants did not call any evidence about a proposed drain design or the proposed cost of such a drain and how such cost would be apportioned among the benefitting properties. That sort of evidence would typically come from a drainage engineer or a drainage contractor.
The appellants did not call any evidence to demonstrate that they could achieve the statutory thresholds for a drainage petition under Section 4 of the Act, including:
- The area requiring drainage;
- That the petition was signed by a “majority” in number of property owners in the area requiring drainage; or
- That the petition was signed by owners, representing at least 60 percent of the hectarage in the area requiring drainage.
These statutory thresholds are required for a legally valid petition under the Act. In these circumstances where the City of Port Colborne did not accept the drainage petition, and did not appoint an engineer under the Act, it is incumbent on the appellants to develop and present satisfactory evidence to the Tribunal of a valid petition. These appellants have failed to present such evidence.
However, it is also worth noting that even if the statutory thresholds for a valid drainage petition have been met, that is no guarantee that a drainage project will proceed under the Act. For example, a valid petition may never proceed to construction of a drainage works if the costs of proceeding outweigh the benefits to be achieved.
The appellants relied on a previous Tribunal decision in support of their appeals. The Balsam Street Drain3 decision related to drainage works in the City of Welland. It is clear from previous Tribunal decisions that the Drainage Act can be utilized in an urban setting. However, as demonstrated in the Balsam Street Drain decision, the legal requirements of the Act must be met. Unlike the facts in the present case, in that case the City of Welland accepted the drainage petition and appointed an engineer who determined that the legal requirements of Section 4 of the Act had been met and that engineer designed a drain solution for the area requiring drainage.
Order of the Tribunal
The Tribunal thereby orders
The appeal of Linda and Dustin Niece, Maaike Langenberg and Sylvia Smith are hereby dismissed.
There shall be no Order as to costs and all parties shall be responsible for their own costs.
Dated at Port Colborne, Ontario this 14th day of November, 2017.
Footnotes
- Subsection 10(1) - (4)
- Subsection 9(1) - (4)
- 2010 ONAFRAAT 21