Richmond Outlet Drain

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of:

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by The Corporation of the County of Elgin, in St. Thomas, Ontario, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Richmond Outlet Drain, in the Municipality of Bayham, Ontario.

Before:

Kirk Walstedt, Chair; Sharon Weitzel, Member

Appearances:

Decision of the Tribunal

Overview

The report on the Richmond Outlet Drain (the "Drain") in the Municipality of Bayham (the "Municipality") was initiated by a petition signed by the engineer for the County of Elgin (the "County"), in accordance with Section 4 of the Drainage Act, R.S.O. 1990, CHAPTER D.17 (the "Act"), for the incorporation of an existing outlet drain, to achieve the status of a municipal drain.

The Municipality appointed Spriet Associates, Engineers & Architects, in accordance with Section 8 of the Act to examine the area requiring drainage and prepare a report.

The report entitled "Richmond Outlet Drain", dated December 31, 2007 (the "Report") was signed by J. R. Spriet, P.Eng. of Spriet Associates London Limited (the "Engineer").

The County appealed to the Tribunal under Subsection 54(1) of the Act, from a decision of the Court of Revision. The reason for the County's appeal was that it was in disagreement with a decision from the Court of Revision, dated April 17, 2008, to reallocate $2,000 of benefit assessment from an assessed land owner, to the County.

The County's appeal was heard on Wednesday, June 11, 2008, in Straffordville, Ontario. Ms. Lynda Millard, Clerk for the County performed the duties of the Clerk of the Tribunal.

Prior to the Hearing, the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to the appeal. Ms. Millard filed an Affidavit of Service at the start of the Hearing, as evidence that the Notice of the Hearing was served on all parties. The Affidavit of Service was received by the Tribunal as Exhibit 1.

The work outlined in the Report ("Exhibit 2") include: 1) the incorporation of a section of steel outlet pipe as a municipal drain; 2) the disconnection of an existing steel pipe; 3) the installation of 51.2 lineal metres of new outlet pipe; as well as other items. The estimated cost of the project is $54,800.00. The Engineer produced schedules for: a) allowances, accounting for right-of-way to lands; b) cost estimates, outlining the distribution of costs for the Drain; c) assessments for construction, that divided the estimated costs of the Drain among the properties in the watershed; and d) assessments for maintenance, outlining the distribution of costs for future repair and/or maintenance.

The Issues

The issues before the Tribunal were:

1. Should the Tribunal repeal the decision from the Court of Revision for the Richmond Outlet Drain, dated April 17, 2008, and order assessments to follow the original Engineer's Report?

The Evidence

Mr. Peter Dutchak requested the Tribunal receive all documents submitted to the Tribunal, as exhibits. The submission from the County of Elgin, with noted attachments, dated May 26, 2008, was received as Exhibit 3. The appellant's statement form of Mr. Lew Acre, dated May 28, 2008, was received as Exhibit 4. The Notice of the Court of Revision, dated February 27, 2008, and the minutes from the Court of Revision, dated February 7, 2008, March 20, 2008, and April 17, 2008, were received as Exhibits 4 and 5, respectively. The appellant's statement form of the County, dated May 23, 2008, was received as Exhibit 7.

Mr. Dutchak told the Tribunal that, for many years, a drain has belonged to the County, and that on January 5, 1979, the County entered an agreement with Mr. Acre for access to his land for the purpose of this drain. He added that the drain installed in 1979 is still in good condition, and that the previous engineer for the County has driven every road in the area throughout the years to inspect their condition. Mr. Dutchak further added that the County has maintained compliance with the agreement.

Mr. Dutchak continued in stating that new development has occurred in Richmond, for which a legal outlet was needed to service the residential lots. He added that the County's private drainage works were used as an outlet for these properties, leading to the County's request for the incorporation of the drainage works into a municipal drain. Mr. Dutchak further added that at the onsite meeting for the incorporation of the drainage works, Mr. Acre requested an additional outlet to reclaim some of his property, for which his property was assessed benefit. Mr. Dutchak stated that County was satisfied with the schedule of assessments in the Report, until the Court of Revision shifted the benefit assessment to Mr. Acre's property, in the amount of $2,000, to the County. He told the Tribunal that a benefit assessment, as defined in the Act, applies to Mr. Acre's property.

In response to questions from the Tribunal, Mr. Dutchak stated that since the release of the Court of Revision's decision, he understands that Mr. Acre has reconsidered his position with respect to the original assessments in the Report, and is now comfortable with the $2,000 benefit assessment to his property.

In response to questions from the Tribunal, Mr. Bill Knifton stated that he is satisfied with what has taken place, and would like to see the Report passed as a final bylaw.

In response to a question from the Tribunal, Mr. Lew Acre stated that he is in agreement with the information provided in Exhibit 4, where he states as follows:

"I, the appellant Lew Acre am with drawing my appeal made to the Court of Revision and accept the original Engineer's assessment report as presented and I agree to pay the Benefit amount calculated as my portion."

Mr. Dutchak, Mr. Knifton and Mr. Acre all stated that they are in agreement with the requests outlined in Exhibits 4 and 7.
The Findings

The Tribunal has reviewed and considered the evidence presented by Mr. Dutchak, on behalf of the County, and Mr. Acre, and finds that all assessed parties involved are in agreement with the assessments as outlined in the original Engineer's Report.

Order of the Tribunal

After consideration of the evidence filed and the submission made the Tribunal orders:

1. The appeal by the Corporation of the County of Elgin is hereby granted. Item 2008-214 in the decision from the Court of Revision on the Richmond Outlet Drain, dated April 17, 2008, with respect to the reallocation of the benefit assessments to Lew and Lynn Acre to the County of Elgin, is hereby repealed.
2. The schedule of assessments, "Schedule 'C' - Assessment for Construction", shall be restored to that outlined in the original Engineer's Report, dated December 31, 2007.
3. The non-administrative costs of the Town for these appeals shall form part of the drainage works and it is ordered there be no other order of costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Drainage Act.

Dated at Maidstone, Ontario, this 16th day of June, 2008.