Nelles Drain

In the matter of the Drainage Act, R.S.O. 1990, Chapter D.17, as amended.

And in the matter of: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by John Coxon, in Blenheim, Ontario, under Subsection 10(6) of the Drainage Act from the "[failure] of the initiating municipality … to instruct the engineer to proceed with the preparation of a report" on the Nelles Drain in the Municipality of Chatham-Kent.

Before:
John O'Kane, Vice-Chair; Kirk Walstedt, Chair; Doug Flook, Member

Appearances:
Tim Dick, representing the respondent, Municipality of Chatham-Kent
John Coxon, appellant
Damon Srokosz, assessed landowner
Don Giffin, assessed landowner
Claire Giffin, assessed landowner
Ed Dries, P. Eng., engineer
Dana Boyter, Fish Habitat Biologist, Department of Fisheries and Oceans Canada (DFO)
Valerie Towsley, Resource Technician, Lower Thames Valley Conservation Authority (LTVCA)

Decision of the Tribunal

Overview

John Coxon and Damon Srokosz appealed to the Tribunal because the Municipality of Chatham-Kent failed to appoint a drainage engineer to prepare an Engineering Report in response to the appellants' application for repairs and improvements to the Nelles Drain in the Town of Shrewsbury.

The Municipality's primary reasons for not directing an Engineering Report were because:

1. Based on the advice and recommendations of the municipality's drainage engineer, it was not practical or feasible to repair or improve the drain; and,
2. It was not legally possible to carry out repairs or improvements because the bottom part of the drain is an environmentally sensitive area. The Lower Thames Valley Conservation Authority administers provincial regulations restricting work in that area. The federal Department of Fisheries and Oceans administers the Fisheries Act restricting work in the area of fish habitat.

In this appeal the Tribunal must consider the Municipality's failure to proceed with an Engineering Report against the scientific feasibility of drain repairs and improvements and what is legally possible where there are competing jurisdictional authorities.

Preliminary Matters

The Clerk of the Municipality filed an affidavit of service proving that all landowners on the Nelles Drain had notice of the hearing, and satisfied the Tribunal that it had jurisdiction to hear the appeal.

Three landowners asked for and were granted party status at the hearing.

At the beginning of the hearing, Tribunal member Kirk Walstedt disclosed that in the past he had done legal work for the Municipality of Chatham-Kent, but that work did not involve any drainage matters. All parties consented to Mr. Walstedt continuing as a member of the Tribunal panel.

Issues and Analysis

1. Is it scientifically practicable to improve the Nelles Drain through Shrewsbury?

Mr. Coxon and Mr. Srokosz are neighbours in Shrewsbury. Mr. Coxon's property drains into a road ditch along New Scotland Road. Most of Mr. Srokosz's property drains into the same road ditch. That road ditch drains into the Nelles Drain next to the cemetery at the intersection of New Scotland Road and Victoria Street. The Nelles Drain empties into Rondeau Bay on Lake Erie. The Nelles Drain extends north of Shrewsbury and also provides drainage outlet for agricultural properties north of Town.

As the Appellants explained, the water is not draining away, leaving their properties wet and prone to flooding. Mr. Coxon described that in wet conditions his crawl space was a swamp and his sump pump ran continuously. The Municipality did not dispute the Appellants' drainage problems.

Mr. Srokosz described that a build up of material was acting like a blockage or plug in the Nelles Drain near Rondeau Bay. The Appellants' photographic and oral evidence showed that a build up of silt and materials was congested in the Nelles Drain near to its outlet into Rondeau Bay. They suggest excavating the silt and materials from those areas to allow the water held back on their properties to drain away.

They also argued the need for a new survey of the watershed area draining into the Nelles Drain to properly include and assess those properties that drained into it. The Municipality did not dispute that part of the Appellants' argument.

The Appellants suggested a solution might be to enclose the drain into a pipe and use a pumping station to solve the drainage issues in Shrewsbury.

The only engineering evidence before the Tribunal came from Ed Dries, a professional engineer called by the Municipality and qualified by the Tribunal to give expert opinion evidence in drainage engineering.

Using a plan and profile drawing his firm previously prepared on the Nelles Drain, Mr. Dries proved to the Tribunal that excavating in the drain to what we accept as the "best possible" grade line would remove about a foot of silt and material and produce only a slight benefit that would not allow the water to drain away. The reason the water would not drain away was the influence that the lake levels have on the drain.

Using the plan and profile drawing and using the average water levels in Rondeau Bay, Mr. Dries proved that the lower part of the Nelles Drain is directly and significantly controlled by the lake levels. For example, the average lake elevation for October was 174 metres above sea level. As shown on the plan and profile drawings, the elevation of the drain bottom as far up as Peel Street is also at 174 metres above sea level. Therefore, as confirmed by Mr. Dries, digging deeper into the silty materials in the lower parts of the Nelles Drain, as proposed by the Appellants, will not solve their drainage issues.

Based on these findings, we conclude that it is not scientifically practicable to repair or improve the Nelles Drain through Shrewsbury.

2. Is it legally possible to improve the Nelles Drain through Shrewsbury?

There was environmental evidence from Ed Dries; Valerie Towsley, Resource Technician with the LTVCA; and Dana Boyter, Fish Habitat Biologist with the DFO.

The evidence about the zoning regulations proved to the Tribunal that the lower parts of the Nelles Drain are in one of two environmentally protected or "EP" zoning designations. Under the Municipality's zoning by-laws, no alteration of grades is permitted in those environmentally protected zones .

Ed Dries testified that he was the drainage engineer for this area for decades and in almost two decades there had been no approved maintenance works on any municipal drain that traversed these EP zones.

The Tribunal also learned from Ms. Towsley that provincial legislation designated those same areas as a provincially significant wetland or PSW. She described the PSW as one of few remaining coastal wetlands on Lake Erie. She made it clear that the LTVCA would not approve maintenance works within these parts of the Nelles Drain because of the environmental sensitivity of the area.

Finally, Mr. Boyter provided unequivocal evidence that DFO would not allow maintenance work on the Nelles Drain that would result in loss of fish habitat.

The DFO is a federal government department. The Tribunal operates under provincial legislation. Our authority does not extend to jurisdiction over the DFO's jurisdiction. As Mr. Boyter succinctly testified, the provincial Drainage Act and the federal Fisheries Act work at cross purposes. Where provincial legislation conflicts with federal legislation, the latter wins out.

Because of the municipal zoning restrictions in the lower parts of the Nelles Drain, the provincially designated PSW, and the DFO jurisdiction, we conclude it is not legally possible for the Appellants' proposed drain repairs and improvements in that area to be undertaken.

3. Should the Tribunal exercise its discretion to direct an Engineering Report on improvements to the Nelles Drain through Shrewsbury?

Under the Act the Tribunal has wide discretionary powers to do anything that is reasonable and allowed under the Act.

We conclude it is not reasonable to appoint an engineer to prepare an Engineering Report about repairs and improvements to a drain where they cannot be implemented for sound environmental and legal reasons.

However, Mr. Coxon and Mr. Srokosz continue to have a drainage problem on their properties. The Tribunal suggests the Appellants consider using a petition under section 4 of the Act to find a solution to their drainage problem. That solution may not be in the Nelles Drain but rather, in some alternative drainage area.

Order of the Tribunal

We confirm the Municipality of Chatham-Kent's decision not to appoint an engineer to prepare a report on the Nelles Drain.

Therefore, the appeal is denied.

Dated at Guelph, Ontario this 28th day of November, 2008.