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
2024ONAFRAAT14
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF an application submitted by the Municipality of Morris-Turnberry under Section 76 of the Drainage Act with respect to the Nichol Municipal Drain in the Municipality of Morris-Turnberry and the Municipality of Huron East.
AND IN THE MATTER OF a written hearing held pursuant to Rule 17 of the Tribunal’s Rules of Procedure.
BETWEEN:
Municipality of Morris-Turnberry
Applicant
– and –
Municipality of Huron East
Respondent
Self-Represented
Self-Represented
Before: Robert Fuller, Vice-Chair; Andy McBride, Vice-Chair; David Stevens, Member
DECISION OF THE TRIBUNAL
BACKGROUND
1By Notice dated January 3, 2024, the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) received an Application pursuant S.76(1) of the Drainage Act, RSO 1990, c D.17 (the “Drainage Act”) from the Municipality of Morris-Turnberry (the “Municipality”) for permission to procure a report of an engineer to vary the assessment for the Nichol Municipal Drain originally constructed in 1910 with the closed portion originally constructed under the authority of a report dated June 22, 1956 and later reconstructed under a report dated September 1994.
2The Pre-Hearing Conference set out the following procedure for the hearing:
By March 15, 2024 any person assessed on the Schedule of Assessment who wished to participate was to notify the Clerk of the Applicant;
By March 22, 2024 the Clerk of the Applicant was to provide the Tribunal and all participating parties a list of all persons assessed who intend to participate;
By April 5, 2024 all parties were required to submit to the Tribunal and all participating parties one copy of all documents and submissions;
By April 12, 2024 Clerk of the Applicant was to make one copy of all filed documents and submissions available for review in the office of the Board.
3The Respondent Municipality of Huron East has consented in writing to the application on March 12, 2024.
Decision and Reasons
4Pursuant S.76(1) of the Drainage Act the Council of any local municipality liable for contribution to a drainage works in connection with which conditions have changed or circumstances have arisen such as to justify a variation of the assessment for maintenance and repair of the drainage works may make an application to the Tribunal for permission to procure a report of an engineering to vary the assessment.
5The Tribunal’s evidence outlines that since the report, a storm drainage infrastructure has begun to use a portion of the drain as outlet. This infrastructure has brought new lands into the watershed that were not previously assessed. Additionally, there have been extensive cleanout and brushing activities on the open portion with more such activities scheduled in 2024. Furthermore there have been numerous consolidations, plans of subdivision and land use changes and severances occurring since that time, such that there has been a change in conditions that justify a variation of the Schedule of Assessment.
6None of the assessed persons notified of the Application submitted evidence disagreeing with the request in the Application or indicating that a variation of the assessment is not justified.
7The Tribunal is satisfied that a new assessment schedule should be prepared.
ORDER OF THE TRIBUNAL
8The Tribunal grants permission for the Municipality of Morris-Turnberry to procure a report of an engineer to vary the Schedule of Assessment for the Nichol Municipal Drain.
Dated at Simcoe this 21st day of May, 2024.