Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd^ Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e^ 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:
Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains (RE) Town of Fort Erie
Zavitz Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains
STATUTE:
Drainage Act
HEARING:
March 4, 2019
April 17, 2019
007Zavitz18
NEUTRAL CITATION:
2019 ONAFRAAT 07
ZAVITZ Municipal Drain, Sherkston North Branch Drain, East & West Trail Branch Drains Town of Fort Erie
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 Fort Erie, Ontario under Subsection 58(4) of the Drainage Act seeking modifications to the engineer’s report for the Zavitz Municipal Drain Sherkston North Branch East & West Trail Branch Drains in the Town of Fort Erie.
Before: Jeffrey Hewitt, Vice-Chair; James McIntosh, Vice-Chair
DECISION OF THE TRIBUNAL
Background
The Town of Fort Erie (“Town”) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) for an order under Section 58(4) of the Drainage Act (“Act”) to correct the Engineer’s 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. Mr. Gary Clee provided notice and made written submissions to the Tribunal on the Application.
Some changes to the drain as designed and approved by bylaw have been made during construction and other changes have been proposed to be made prior to construction being completed.
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
In the circumstances, is there a gross error in the Report and, if yes, is it appropriate for the Tribunal to order amendments to the Report to correct any such gross error?
In considering this issue, the Tribunal needs to be assured that the revisions will not adversely affect the capacity of the drain to accommodate the rate and volume of water that the drain was designed to accommodate. The Tribunal must also consider other factors including impacts to land owners as a result of the proposed modifications to the approved design.
The Evidence
Written submissions were made by Gary Ross Clee in objection to part of the proposed changes to the report and to express his concerns about damages he has suffered because of the construction methods prescribed by the Report. Mr Clee also included a report from Mr. John Kuntze P. Eng., a drainage engineer with the firm of K. Smart Associates Limited.
The Town of Fort Erie submitted correspondence from their Legislative Services department, as well as a report from Paul C. Marsh P. Eng., of EWA Engineering Inc. Mr Marsh indicated that he signed the report originally approved as the Zavitz Drain Report.
The Parties do not contest the requirements for increased capacity of two culverts to a minimum size of a CSPA 910 by 660. One of these culverts is on the Damude Property and the other is on Clee Property. The assessment for these culverts would be based on the same method as set out in the original approved Report.
The Parties also do not have any concerns about the revision to the West Trail grade line.
Engineering analysis for both of these changes was submitted and supports the changes requested.
The third change requested involves a change in the working platform for the construction of the Drain and has no impact on the ability of the Drain to function as designed but does have an impact on the assessed owners of the Drain. The Town has requested that the 10-meter working platform that has been designed for construction and future maintenance of the Drain be moved from the south side of the Drain to its north side.
The opinion of Mr. Kuntze is that, “The error being addressed by the Zavitz Drain Amendment Report is the error made at the time of construction by the Port Colborne Drainage Superintendent when the contractor was directed to clear the north bank of the Zavitz drain between Station 2+685.2 and 2+878.5 which was opposite to what was required in the Engineer’s report that had been adopted by bylaw.” The Town has explained why the Drainage Superintendent ignored the report and acknowledges the fact that it happened.
Findings and Analysis
The Tribunal finds that an Application under Section 58(4) is appropriate and required in this case.
The Tribunal agrees that the two culverts should be upgraded as outlined in the revised report prepared by Paul Marsh P. Eng., dated January 9, 2019. One culvert shall be on the Damude Property and the other on the Clee Property. The increased size is required to accommodate the rate of flow used in the design of the Drain. The costs of the culverts are to be assessed in the same manner as in the original Report.
The West Trail grade line adjustments are requested in order to make the use of the adjacent trail safe for intended users. Alternatives such as guard rail or relocating the Drain are not practical solutions to the issue. The proposed changes do not adversely affect the capacity of the drain and therefore are approved.
The third issue is the location of the working platform for the drain clean out in the area abutting the Clee Property. The Town has argued that the work on the Drain when it was originally built occurred on the Clee Property on the north side of the drain. It is the Town’s position that a clean out of the Drain could have resulted in the loss of the buffer which Mr. Clee enjoyed along the boundary of his lands. Once a new report is adopted, the Town is expected to follow that report for the construction of the works. Clearing an area that was not included to be cleared in the drainage report is damage to private property. It is difficult to understand how or why this would happen without discussions with the land owner first. Standard practice in all drain construction or maintenance is to notify adjacent owners when work is proposed. To clear a buffer strip along Mr Clee’s boundary without notification and without authorization under the Report is a significant error on the part of the Drainage Superintendent.
The contractor, as directed by the Drainage Superintendent, has already cleared most of the buffer strip along the north side of the Drain. The total length of the buffer strip is 193.3 meters and, to date, approximately 140 meters has been cleared. The remaining 53.3 meters have encumbrances along the south side of the Drain, which include a house and its sewage disposal tile field. The clearing has already been done for the most part and it is believed that both current construction and future maintenance can best be performed from the north side of the Drain.
Mr Clee has lost his buffer and has had numerous trees removed. It would be preferred if the two parties had come to an agreement on establishing a new buffer on Mr. Clee’s land. In the absence of such an agreement, the Tribunal has determined that the Town must compensate Mr Clee for his loss by way of a reasonable payment. However, neither party has provided a cost estimate to create a new buffer outside of the working platform on Mr Clee’s land. Mr. Clee has indicated he would like two rows of 12’ to 15’ high trees to replace his buffer. The Town has indicated that just to purchase a tree 16’ high would be $700, that a 6’ to 7’ high tree would be $200 and a 1’ high sapling would be $20.
There is no doubt that in hindsight Mr Clee should not have planted trees in a location that would hinder maintenance of the Drain. However, the Town had no right to remove them once the Report was adopted by bylaw. The Tribunal notes that, as general practice, evergreen trees are usually planted at a spacing of 6 meters. It would therefore require 33 trees to provide one row of trees. The Tribunal believes that an allowance paid by the Town to Mr. Clee is appropriate and that, in absence of any actual estimates being submitted, the amount provided should allow for the planting of one row of trees. The Tribunal is of the opinion that $8,000.00, to be used at Mr Clee’s discretion, is sufficient compensation for lost trees and to assist with the start of a new buffer, which should be outside of the working platform of the Drain.
Order of the Tribunal
The Tribunal hereby orders:
The appeal is hereby granted, and the Zavitz Drain Report shall be amended generally as outlined in the EWA Engineering Inc. Report prepared by Paul Marsh P.Eng., dated January 9, 2019. The amendment will include increasing the culvert size on the Damude and Clee portions of the drain, revising the grade line of the West Trail Branch, and changing the working easements to be on the Clee side of the Drain from Station 2+685.2 to Station 2+878.5.
The Town shall pay Mr. Clee an allowance of $8,000 in compensation for the loss of his tree screen. This allowance shall not be included in the cost of the Drain.
The disposition of costs of this appeal shall be reserved. Mr Clee shall deliver to both the Tribunal Coordinator and the Municipality written costs submissions not exceeding five pages within ten days of the release of these reasons. The Town of Fort Erie shall deliver to both the Tribunal Coordinator and Mr Clee written costs submissions not exceeding five pages within ten days of the receipt of Mr Clee’s written costs submissions.
Dated at Tecumseh, Ontario this 17^th^ day of April, 2019.