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:
Parkway Drain (RE) Town of Niagara-on-the-Lake
Parkway Drain (RE) Town of Niagara-on-the-Lake 2017ONAFRAAT08
STATUTE:
Drainage Act
HEARING:
N/A
DATE OF DECISION:
May 19, 2017
002Parkway17
NEUTRAL CITATION:
2017ONAFRAAT08
PARKWAY DRAIN Town of Niagara-on-the-Lake
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 Town of Niagara-on-the-Lake, Niagara-on-the-lake, Ontario under Subsection 58(4) of the Drainage Act seeking modifications to the engineer’s report for the Parkway Drain in the Town of Niagara-on-the-Lake.
Before: Jeffrey J. Hewitt, Vice-Chair and Edward Dries, Vice-Chair
DECISION OF THE TRIBUNAL
The Town of Niagara-on-the-Lake (the Town) 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. 4714-14 to provide for a correction to the construction work for the Parkway Drain.
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 Town, made submissions to the Tribunal on the application.
Background
The Parkway Drain Report (the Report) was prepared by N. Morris (the Engineer) of K. Smart Associates Limited, dated January 17, 2014. The report was duly considered by the Town and given third reading and finally passed on July 21, 2014.
The original report had identified a number of locations for existing utilities. The drain was designed to avoid these existing utilities. At the time of construction, the utilities were found to be in locations different from those shown on the plans for their construction. As a result, changes had to be made to the design of the drain in the field at the time of construction to avoid conflict with the existing utilities.
Consequently, the Town filed a request to amend By-law 4715-14 for the Parkway Drain dated February 23, 2017. All assessed landowners or those receiving compensation were notified of this action in correspondence dated March 27, 2017. None of the assessed or compensated owners expressed an interest in participating in a 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
Parkway Drain ‘As Built’ drawings for the altered works were provided by N. Morris, P. Eng. as follows:
Details Sta. 0+000 to 0+084, Dwg. 2 of 8, Dec. 7, 2015
Outlet Profiles, Dwg. 3 of 8, Dec. 7, 2014
Road Crossing, Dwg. 4 of 8, Dec. 7, 2014
It must be noted that the dates on Dwg. No. 3 & 4 are shown as Dec. 7, 2014 when it would appear they should be Dec. 7, 2015. These drawings are sealed but not signed.
The changes to the works as identified on these revised plans are as follows:
The location and size of the catch basin installed on the east side of the Niagara Parkway was changed.
The design gradient of the 750 mm dia. and 900 mm dia. pipe installed from Sta. 0+000 to Sta. 0+067 was adjusted.
The locations of the watermain, sanitary sewer, gas line and hydro lines were adjusted as required.
The grades and cross-sections of the cable concrete spillway structure at Sta. 0+000 was adjusted to suit the revised outlet pipe elevation.
The Town requests that amended Drawings No. 2, 3 and 4 be incorporated as part of the original bylaw or, in the alternative, form part of a new or amended bylaw for these works.
Findings and Analysis
The Tribunal has reviewed the impacts of the changes made to the design of the drain on its functionality and level of service. It does not appear that the adjustments made to the design of the enclosed drainage system have, in any way, decreased or negatively impacted its level of service to the lands within the watershed or its design capacity. Further, the adjustments made to the outlet structure will not materially impact the function of the drain or its components’ purpose of erosion control. It was also noted that the necessary modifications did not appear to have any material impact on the total cost of the works nor have any ramifications related to the assessment of the cost of these adjusted works.
The Tribunal finds that the Town of Niagara-on-the-Lake and their consultants have effectively managed these modifications to the original works as efficiently as practical and with the full knowledge of the parties assessed to these works.
The Tribunal finds that the request for an Order to correct the Bylaw, pursuant to section 58(4), is the most practical and cost effective method to ensure that the drain is accurately identified for the purposes of future maintenance.
Order of the Tribunal
The Tribunal thereby orders
K. Smart Associates Limited shall provide the Town of Niagara-on-the-Lake with properly sealed, signed and dated drawings that accurately reflect the ‘As Built’ details of the works as shown on Parkway Drain As-Built Drawings No. 2, 3 and 4 filed with this appeal.
Bylaw No. 4714-14 is hereby amended to incorporate the Parkway Drain As-Built Drawings No. 2, 3 and 4 as provided by K. Smart Associates Limited.
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Chatham, Ontario this 19th day of May, 2017.