Courey Drain - New Access Bridge Extension

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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 a New Access Bridge Extension over The Courey Drain, in the Town of Lakeshore.

Before:

Kirk Walstedt, Chair; Jack Young, 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 74-2009 to provide for a correction to the construction work.

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

Background

The Courey Drain report (the Report) prepared by Dillon Consulting Ltd. (the Engineer), dated April 27, 2009, provides for an access bridge extension in an open channel located in Lot 19 Concession S.M.R in the Town of Lakeshore (formerly the Township of Tilbury North).

The previous report on the Courey Drain, prepared by Todgham and Case, dated September 3, 2004, provided for the construction of the culvert that is the subject of the present report.

The Report provides for a 4.0 metre extension to the 800mm corrugated steel pipe along with erosion protection. The total cost of the project was assessed to property roll number 650-05100 (Middle Road Farms Ltd).

The provisional by-law was passed by the Municipality on July 14, 2009.

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?

Submissions

In November 2009, Mr. Paul Courey, representing Middle Road Farms Ltd., made a request to the Municipality to correct the location and length of the access bridge on lot 19. The purpose of the access bridge is to service wind turbines. The location of the access road to the turbines changed during the design process for that facility and after the drainage by-law had been passed.

Mr. Courey stated that " This is a request that Council make a request to the Tribunal under section 58 (4) to make an order amending the report and adopting by-law so as to provide for the removal of the existing culvert and relocation and extension of it, some 30 m to the west. There is no adverse impact on anyone, nor are there any cost consequences to other parties."

The Municipality passed a resolution dated December15, 2009 that " Council directs Tom Marentette, Dillon Consulting to complete a submission to the Ontario Drainage Tribunal under Section 58(4) of the Drainage Act for the Gengrowth Wind Farm Access Culvert over the Courey Drain."
Dillon Consulting Ltd. made application to the Tribunal on March 8, 2010, supporting the changes and describing the extent of work including the removal of the existing culvert as part of the project. The Engineer confirmed that "the modification to this project has no technical or financial impacts on any other parties in the drainage scheme."

Analysis and Findings

The Tribunal has reviewed the written submissions supporting the application to have the access culvert constructed as modified in the new location. The Engineer supported the proposal and confirmed that Middle Road Farms Ltd. is the only owner affected by the project and is therefore liable for the assessment of the total cost of the project.
The Tribunal accepts the submissions and finds the corrections to the length and location of the access bridge fair and reasonable.

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. The new access bridge serving Lot 19, Concession S.M.R. (Roll No. 650-05100) over the Courey Drain shall include 30 metres of 800mm diameter aluminized corrugated steel pipe (CSP). The end treatments shall be completed with sloping stone end walls and the new culvert shall be installed with Granular 'B' bedding and backfill. Granular 'A'(crushed limestone) shall be used to surface the driveway and provide a minimum drivable top width of approximately 24 metres.
2. The existing culvert shall be removed.
3. The Engineer shall amend the "Driveway Detail" drawing in the Report to an "as built"drawing which shall be appended to the Report in the By-law.
4. The total cost of the project shall be assessed as a benefit assessment against property roll number 650-05100 (Middle Road Farms Ltd.) as shown in Schedule 'B' of the Report.
5. By-law 74-2009 shall be amended to reflect this Order.
   

Dated at Maidstone, Ontario this 26th day of April, 2010.