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7. DOWDALL MUNICIPAL DRAIN
- REPORT ON STATUS OF WORKS TO HAVE
BEEN COMPLETED PURUSANT TO The hERON LAKE eSTATES SUBDIVISION AGREEMENT INstallations municipales
de drainage dOWDALL - RAPPORt d’étape des travaux complétés dans le cadre de
l’accord de lotissement des domaines résidentiels hERON LAKE |
Committee
Recommendation
That Council receive this report for
information.
Recommandation
du Comité
Que le Conseil municipal prenne connaissance de ce rapport.
Documentation
1. City Clerk and Solicitor’s report dated
2 February 2010 (ACS2010-CMR-LEG-0003).
Agriculture and Rural Affairs Committee
Comité de l’agriculture et des affaires rurales
and Council / et au Conseil
2 February 2010 / le 2 février 2010
Submitted by/Soumis par : M.
Rick O’Connor, City Clerk and Solicitor /
Greffier et Chef du contentieux
Contact Person/Personne ressource : Cathy Crosby
Legal
Counsel/Conseillère juridique
(613)
580-2424 x21440 Cathy.Crosby@ottawa.ca
That the Agriculture
and Rural Affairs Committee and Council receive this report for information.
Que le Comité de
l’agriculture et des affaires rurales et le Conseil municipal prennent
connaissance de ce rapport.
Further to Committee approval of the above
recommendation as pertains to the Engineer’s Report regarding proposed drainage
works for the Dowdall Municipal Drain, Legal staff are directed to review
existing Heron Lake Estates Subdivision agreements to ensure that works have
been performed according to approved plans.
A report, to include the identification of which party or parties may be
responsible for the remediation of any deficiencies, is to be provided to all
members of Council prior to Council’s consideration of this matter at its
meeting of 27 January 2010.
This report was not
provided to all members of Council prior to Council’s consideration of this
matter at its meeting of January 27, 2010 and accordingly Council carried a
motion as follows:
That
Agriculture and Rural Affairs Committee Report 49, Item 1 – Dowdall Municipal
Drain be deferred to the Council meeting of 24 February 2010 when the
information report from Legal Services is expected to rise from the Agriculture
and Rural Affairs Committee to Council for consideration.
Accordingly, this
report is being presented to Committee and Council for information. The response to this inquiry has been divided
into four parts as set out below.
RESPONSES
Within the file is the following correspondence:
1. Letter
dated June 11, 1991 from Michael C. Pinet of A.J. Robinson & Associates
Inc. stating that “We wish to confirm that all works required to be constructed
by the developer have been completed in the Heron Lake Estates subdivision.”
2. Invoice number 015107 dated March 31, 1992
from Thomas Cavanagh Construction Limited in the amount of $1,016.50 for the
improvement of the outlet of the drain from the subdivision together with proof
of payment of same.
Given this documentation, Legal staff are of the opinion
that the drainage works required by the subdivision agreement have been
completed in accordance with the terms of the agreement.
According to the terms of the Subdivision
Agreement the developer, as owner of the lands being developed, is responsible
for (i) completing all works in accordance with the terms of the subdivision
agreement, and (ii) correcting all deficiencies in the works before the works are
accepted by the Township as, at the point of acceptance of the works by the
Township, the subdivision is to be 100% complete and free of deficiencies. In the case of the Heron Lake Estates
subdivision the developer abandoned the site before completion of all of the
works.
As stated above, all works required to be
constructed by the developer, including all deficiencies in relation thereto,
were certified as complete by the consulting engineer that was hired by the
Township of Goulbourn to compete the works.
The Drainage Engineer has assessed to National
Defence Canada a Special Benefit for improvements now required on Branch No. 6
of the Dowdall Drain as a consequence of the unauthorized infilling of former
Branch No. 9 through the National Defence Canada property in Lot 6, Concession
4. The amount of the Special Benefit
assessed to National Defence Canada is $60,541.27.
4.
Report on the Special Benefit that the Drainage Engineer has assessed to
the properties in the Heron Lake Estates Subdivision in the Engineer’s December
2009 Report, “Dowdall Municipal Drain Modification and Improvements”
A Drainage Agreement is registered on title registered at the Land Registry Office No. 4
at Ottawa on August 30, 1985 as instrument number 423258. This agreement
provides that the assessment for the subdivision lands set out in the engineer’s
report for the Dowdall Drain (i.e. the original engineer’s report dated August
21, 1969 and the further engineer’s report dated August 1978 and revised
February 1979) shall be equally divided among the 41 lots which comprise the
subdivision and that any future assessment against the subdivision lands shall
be apportioned equally among the 41 lots.
Attached to the Subdivision Agreement as Schedule “G” is a Drainage
Report. The Drainage Report states that the Dowdall Drain flows through the
property, provides the outlet for the bulk of the subdivision runoff,
and that sections of the drain within the subdivision require regarding to
improve the drainage through the area.
Although improvements were made to the Dowdall Drain as part of the
required Subdivision Agreement works, the nature of a Drainage Act drain is
such that ongoing maintenance and improvements are required to ensure an
adequate flow of runoff from lands within the watershed. The effect of the Drainage Agreement is that
to the extent that such costs are attributable to Heron Lake Estates
subdivision, such costs are to be spread equally amongst the owner of the lots.
The Drainage Act provides that a specialized expert, the drainage engineer, is to allocate the benefits and burdens of the drainage works. Accordingly, it is the duty of the drainage engineer to evaluate the effects of the current subdivision runoff to the Dowdall Drain and to assess the owners within the subdivision for Benefit, as that term is defined in the Drainage Act (i.e. “the advantages to any lands, roads, building or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in … better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures”).
At the time that Agriculture and
Rural Affairs Committee sits as the Court of Revision, it will be able to consider
the assessments determined by the Drainage Engineer and, should there by
objections by owners, determine the apportionment in accordance with the
principles of the Drainage Act.
This report
is administrative in nature and therefore no consultation was required.
There are no financial implications associated
with this report.
Document 1: Drainage Agreement registered on title registered at the Land Registry Office No. 4
at Ottawa on August 30, 1985 as instrument number 423258
Document 2: Schedule “G” Drainage Report forming
part of the Subdivision Agreement registered on title registered at the Land Registry Office No. 4
at Ottawa on August 19, 1985 as instrument number 421569
The report is provided in response to the
direction made to Legal staff at the Agriculture and Rural Affairs Committee
meeting on January 14, 2010 during the Committee’s consideration of Report 49,
Item 1 Dowdall Municipal Drain.
The Dowdall Drain
Report rose to Council on January 27, 2010 and was deferred to the Council
meeting of 24 February 2010 when “this report is expected to rise from the
Agriculture and Rural Affairs Committee to Council for consideration.”
Accordingly, this
report is presented to the Agriculture and Rural Affairs Committee in order that it may rise to
Council on 24 February 2010 for consideration as part of the Dowdall Municipal
Drain Report.