Edgefield Sideroad Branch of the Smyth Drain West

In the matter of the Drainage Act R.S.0. 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 Lakeshore under Section 58(4) of the Drainage Act to correct an error in the engineer's report for improvements and extension of the Smyth Drain West, Edgefield Sideroad Branch in the Town of Lakeshore.

Before: Jack Young, Vice-Chair; Gene Trotman, Vice-Chair

Decision of the Tribunal

The Town of Lakeshore (the Municipality) applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) for an order under Section 58(4) of the Drainage Act (the Act) to amend By-Law 64-2011 to provide for a correction to the reconsidered drainage report for improvements and extension of the Smyth Drain West, Edgefield Sideroad Branch.

This application was considered by way of a written hearing, based on written submissions by the applicant and the Engineer.

Background

The Edgefield Sideroad Branch of the Smyth Drain West report (the Report) was prepared by Dillon Consulting Ltd. (the Engineer), dated May 20, 2011, and signed by Thomas H. Marentette, P. Eng.

The project was initiated by a request from the Public Works Department of the Town of Lakeshore for the purpose of moving the drain off the road allowance under section 78 of the Act. A further request was made to extend the drain southerly to County Rd., No.42.

The Public Works Department proposed to widen and improve the existing road platform in conjunction with the improvements to the municipal drain.

The provisional by-law was passed by the Municipality on July 12, 2011.

Statutory Context

Section 58(4) of the Drainage Act states as follows:
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

The issue before the Tribunal is:

1. Should the application for a correction to the engineer's report be granted?
2. Should be allowances under section 29 of the Act be reduced?
3. Should the specification for the granular shoulder and grass buffer strip at the top of the drainage channel bank and the road be revised?

Submissions

The Town of Lakeshore made application to the Tribunal on September 30, 2011. The application consisted of two parts. Firstly, the modification of the Section 29 allowances, and secondly, the revision to the specification of the road shoulder.

With respect to the Section 29 allowance, for land taken for construction of the drainage channel, the submissions stated that a discrepancy had occurred in the referencing of the topographical survey prepared by the Engineer and the legal survey for the road allowance prepared by an Ontario Land Surveyor. This discrepancy was discovered during the field layout for construction of the open channel. The correction of this discrepancy eliminated the need for taking any land from the adjacent private properties for construction of the open channel. No evidence was submitted as to how this discrepancy occurred. The submission included a revised Schedule of Allowances prepared by the Engineer which included allowances for only roll number 660-036.

In response to requests for clarification from the Tribunal dated November 11 and November 14, 2011, the Engineer agreed that the Section 29 allowance should be distributed between roll number 660-036 and roll number 660-037. The Engineer provided a revised Schedule of Allowances which is included in the Order below. The Engineer also confirmed that the drainage channel, with the exception of the one meter wide buffer strip on the east side of the channel, will be located entirely on the municipal road allowance.

With respect to the revision of the specification of the east shoulder of the road, the submission requested that "the improvements to the east road edge and drain bank include constructing a 1.0 m wide granular shoulder and 1.0 m wide grass buffer strip at the top of the new East drain bank". This is the revision from the 1.5 m wide granular shoulder and 0.5 m wide grass buffer strip as shown in the Report.

Mr. Paul Courey, representing the owners of roll numbers 660-036 and 660-037, provided a submission dated October 25, 2011 stating that his clients were content to allow the Tribunal to order the requested amendments, and in a further submission dated November 14, 2011, indicated his agreement in distributing the Section 29 allowance between roll numbers 660-036 and 660-037.

Analysis and Findings

The Tribunal has reviewed the written submissions supporting this application to have the Section 29 allowances revised and also to change the specification for the east shoulder of the new road. The Tribunal also accepts the revised "Schedule B", "Schedule of Allowances" as proposed by the Engineer. The application is supported by the landowners.

The Tribunal also finds that the written submissions and the procedures meet the requirements of Section 58(4) of the Act.

Order of the Tribunal

After careful consideration of the evidence filed, the Tribunal orders that:

1. Schedule B, Schedule of Allowances, shown on page 6 of the Report be amended by deleting it in its entirety, and by substituting the following.

Schedule 'B'
Schedule of Allowances

Roll No.	Owner	Section 30	Section 29	Totals
		Damage Allowances	Land Allowances
660-036	Lanoue	$2,000	$ 812	$2,812
660-037	Lanoue	-	$ 730	$ 730
	Total	$2,000	$1,542	$3,542

2. Item 25, "Allowances (Section 29 & 30)" on page 9 of the Report be revised from $7660.00 to $3542.00.
3. The "Total Cost Estimate" on page 9 of the Report be revised from $148,560.00 to $144,442.00.
4. The dimensions for the "grass buffer" and the "shoulder" shown on the "Typical Road Cross Section" on page 5 of the Report drawings be revised to provide a 1.0 m wide grass buffer and 1.0 m wide shoulder.
5. Paragraph 3 on page 6 of the Report be amended by deleting the first sentence and by substituting the following. "We recommend that the improvements to the east road edge and drain bank include constructing a 1.0 m wide granular shoulder and a 1.0 m wide grass buffer strip at the top of the bank between the road and the drainage channel as shown on the Typical Cross Section on page 5 of the Report drawings".
6. The Engineer shall make the above corrections to the Report and drawings.
7. Item 2(1) of By-law 64-2011 be amended to reflect the total cost of the project to be $144,442.00.
8. The By-law and the Report, as amended by items 4 & 5 above, be marked "As amended by the Tribunal decision dated November 17, 2011".

Dated at Gravenhurst, Ontario this 17th day of November, 2011.