Peter James et al. v. Municipality of Chatham-Kent, 2019 ONAFRAAT 4

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2e étage NW

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:

Rose Beach Line Municipal Drain – Outlet Structure (RE) Municipality of Chatham-Kent

Rose Beach Line Municipal Drain – Outlet Structure (RE)

STATUTE:

Drainage Act

HEARING:

February 13 & 14, 2017 and September 7, 2017

DATE OF DECISION:

March 5, 2019 Interim Decision - January 23, 2018

018RoseBeachLine16

NEUTRAL CITATION:

2019 ONAFRAAT 04

ROSE BEACH LINE MUNICIPAL DRAIN Municipality of Chatham-Kent

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:

1. Peter James and Anje Rose – s.48 and s.54
2. Peter James Rose – s. 48 and s. 54
3. Peter James Rose, Anje Rose and Shea-Lynn Vandergriendt – s. 48 and s. 54
4. Donald Neil Rose and 2152269 Ontario Limited – s. 48 and s. 54
5. Donald Neil Rose, Barbara Jean Rose and 2152269 Ontario Limited – s. 48 and s. 54
6. Donald Neil Rose – s. 48 and s. 54
7. Donald Neil Rose and Barbara Jean Rose – s. 48 and s. 54
8. Mark Grimsteed and Peggy Grimsteed – s. 48
9. Terry Bachus and Pamela Bachus – s. 48 and s. 54
10. Teresa Wood and Edward Wood – s. 48 and s. 54
11. Jennifer E. Eskritt-Verwegen – s. 48 and s. 54

under sections of the Drainage Act with respect to the Rose Beach Line Municipal Drain – Outlet Structure in the Municipality of Chatham-Kent.

Before: Jeffrey J. Hewitt, Vice-Chair; Andrew McBride, Vice-Chair; Tim Mousseau, Member

FINAL DECISION

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) released an interim decision in this matter dated January 23, 2018 (“Interim Decision #1”).

In Interim Decision #1, the Tribunal ordered that:

1. The Municipality shall provide all interested parties and the Tribunal with any and all approvals and permits, or in the alternative a letter stating that a permit or approval is not required, from Fisheries and Oceans Canada, the Lower Thames Valley Conservation Authority and the Ontario Ministry of Natural Resources and Forestry stating or otherwise indicating that the proposed outlet structure may proceed as designed in the Spriet Report.

2. The Municipality shall retain an independent, third-party professional engineer qualified in the design and construction of structures located in coastal situations, such as Rose Beach, and obtain from that third-party professional engineer a stamped report confirming that:

(i) the proposed structure is adequate for its intended purposes;

(ii) the proposed structure will withstand the year-round natural forces of the lake within the structure’s natural life; and,

(iii) the proposed structure will not damage or contribute to damage to adjacent properties once constructed as proposed.

Copies of the said stamped report shall be provided to the Tribunal and all interested parties. In its final order, the Tribunal will advise as to how the cost of this third-party report is to be charged.

3. Construction of the proposed outlet structure shall not commence until the issuance of a final order by this Tribunal.

4. The watershed boundary for the Rose Beach Line Drain is to be amended as per Spriet Associates Drawing No. 2A, dated January 31, 2017 (as contained in Exhibit 5A).

5. Schedule “C” – “Assessment for Construction” and Schedule “D” – “Assessment for Maintenance” as contained in Exhibit 5A for the purpose of revising assessments due to changes in the watershed boundary, is to be substituted for the corresponding schedules in the Spriet Report of July 12, 2016.

6. Should the project proceed to construction as currently proposed in the Spriet Report, all new construction work and future maintenance work shall be confined to a new permanent right of way, wider than that defined in the 1999 Sullo Report, as follows:

a) A right of way 7.8 meters in width, centred over the centre-line of the existing outlet pipe and the new outlet structure, extending downstream from the edge of the road allowance to the downstream end of the proposed outlet structure, narrowing as necessary to avoid existing buildings and hard landscape features, such as driveways and walkways; and

b) As may be necessary for construction and maintenance, this right of way shall be cleared of and kept clear of any and all trees, shrubs, structures and/or obstructions that would prevent access to the outlet of the drain; and

c) Should the enlargement of this right of way require additional allowances for the purposes described, said allowances shall be calculated and paid to the affected landowners, and added to the cost of the project. In addition, should the enlargement of this right of way result in additional construction costs, the additional costs shall be levied against all assessed landowners.

7. The cost estimate in the Report is to be revised to reflect current known costs.

Upon the provision of all reports, permits, approvals and revisions necessitated by the Interim Order as stated above, the Tribunal will issue a separate and final order to conclude this matter.

On or about January 23, 2019, the Municipality, through its legal counsel, provided the Tribunal with its response to the Interim Order. As attachments to that letter, the Municipality provided materials in response to the first paragraph of that Order. It also provided a report from Daniel M. Krutsch, P. Eng., of Landmark Engineers Inc., in response to the second paragraph of that Order (the “Landmark Report”).

Dealing with the Landmark Report, the Tribunal notes that it was deficient in that it omitted the curriculum vitae of Mr. Krutsch, which prevented the Tribunal from considering the Landmark Report until it was satisfied that Mr. Krutsch was “qualified in the design and construction of structures located in coastal situations, such as Rose Beach”. As a result, the Tribunal requested further information regarding Mr. Krutsch’s qualifications from the Municipality.

On or about February 11, 2019, the Municipality provided the Tribunal with Mr. Krutsch’s CV. Upon a review of that CV, the Tribunal is satisfied that Mr. Krutsch is qualified to comment on the structure proposed for Rose Beach. With that qualification, the Tribunal is now able to consider the Landmark Report.

The Landmark Report reviews the design of the structure proposed in the Spriet Report referenced in Interim Decision #1. The Landmark Report raises concerns about, and suggests improvements to, the structure. The highlights of the Landmark Report are as follows:

• The proposed baffle location and alignment relative to incident waves puts the baffle at a high risk of damage from wave and ice forces; the removal of the baffle wall feature from the design may be warranted.

• Although the side walls that comprise the main outlet structure will remain stable for the full-service life of the structure, the durability of the structure could be enhanced, and economies could be realized by employing a braced sheet pile design in lieu of the proposed cantilever design.

• The proposed structure as presently configured has the real potential to impact longshore sediment transport during periods of high-water level and influence the patterns of temporal accretion and erosion in proximity to the structure. Altering the top profile of the side walls to more closely match the average beach profile would substantially mitigate the potential impacts. Such modifications would also enhance the overall stability of the structure and potentially achieve some cost savings associated with the resulting reduced steel quantity.

• The potential for overtopping could be mitigated by gradually widening the structure as the profile is reduced. There would be a benefit in sloping the invert of the channel so that it achieves an elevation below 173.5m (the Lake Erie chart datum elevation) at the south end of the structure. This would mitigate the potential for development of a scour hole at the end of the outlet structure, at times when lake levels are at their extreme minimums.

The Landmark Report states that the proposed changes will “better integrate [the structure] with the coastal environment” and will result in “improving the robustness of the design and realizing potential cost savings”. These changes are a “design enhancement” that add secondary benefits including limiting beach erosion and eliminating the potential for any backwater effect on the upstream culvert should the outlet structure ever become fouled by ice or woody debris. To achieve these desired outcomes, the Landmark Report provides design specifications.

The Tribunal finds the Landmark Report to be a thorough review of the proposed structure as designed by Spriet. The changes proposed in the Landmark Report appear to address many of the concerns raised by the Appellants, including beach erosion and scour holes.

However, the Landmark Report demonstrates the shortcomings of the Spriet Report. As stated in the Landmark Report, the structure as designed by Spriet can be significantly improved with potential cost savings. However, redesigning the structure as recommended by Landmark would require the following:

a) The design drawings would have to be changed;

b) The specifications would have to be changed;

c) The cost estimate would have to be revised;

d) The assessment schedule for construction would have to be revised;

e) The assessment schedule for maintenance would have to be revised;

f) The temporary right-of-way for access for construction may have to be revised;

g) The permanent right-of-way for access for maintenance would have to be revised;

h) New approvals (or waivers) from the Conservation Authority, Fisheries and Oceans Canada, and the MNRF under the Lakes and Rivers Improvement Act would have to be obtained for the new design

Many of these items required changing, in any event, because of the Tribunal’s Interim Decision #1:

a) The watershed boundary needs to be amended to comply with exhibit 5A and Spriet’s drawing #2A;

b) The cost estimate requires revision;

c) The assessment schedule for construction is to be revised;

d) The assessment schedule for maintenance is to be revised;

e) The permanent right-of-way for access for construction and maintenance is to be revised;

f) A new approval (or waiver) from the Conservation Authority is required as the previous one expired prior to the issuance of Interim Decision #1; and,

g) An approval (or waiver) from the MNRF under the Lakes and Rivers Improvement Act needs be obtained.

Therefore, given the substantial work that is required to revise and update the Spriet Report as it currently stands, the Section 48 appeals are allowed, and the current Spriet Report shall be set aside. Further, the Municipality’s engineering and legal costs to date are to be paid by the Municipality out of general funds and shall not be charged to the Rose Beach Drain in any way.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The appeals under Section 48(1) of the Act are hereby granted;

2. The Spriet Report is hereby set aside;

3. The appeals under Section 54(1) of the Act are set aside as a result of the above mentioned Order 2;

4. The Municipality is to distribute the Landmark Report to all Appellants within 15 business days of this decision.

5. The costs of the Municipality in respect of this appeal which, for greater certainty, shall include the Engineer’s fees and expenses for preparing the Drainage Report, the Engineer’s fees and expenses for preparing for and attending this hearing and the Engineer’s fees for preparing the Landmark Report shall be paid for entirely by the Municipality out of general funds; otherwise, it is ordered that all parties are responsible for their own costs of these appeals.

Dated at Tecumseh, Ontario this 5th day of March 2019.