Exeter Municipal Diversion Drainage Report set aside by Appeal Tribunal

On appeal by agricultural landowners R. & D. Hamather and G. & J. McBride, the Ontario Agriculture, Food and Rural Affairs Tribunal has set aside an engineering report prepared for the Municipality of South Huron.  The Municipality had petitioned a drain to divert water runoff from the appellants' farms which has flowing into the Town of Exeter.  The estimated cost of the drain was nearly $1.5 million, much of which would be assessed as a benefit to the landowners. 

Three issues were raised on the appeal: 1) did the administrative process carried on by South Huron comply with the Drainage Act?; 2) was the proposed design and location of the drain appropriate and was the cost of the drain commensurate with the benefit to be derived; and, 3) do the Planning Act and the Provincial Policy Statement (PPS) trump the Drainage Act in this situation?

The Tribunal allowed the landowners' appeal on the basis that the administrative process was severely deficient and that the cost of the drain was not commensurate with the benefit.  Firstly, the Municipality simply did not follow the process required under the Drainage Act.  Secondly, although the Tribunal found that the proposed design and location of the drain were appropriate, it could not find that the cost was appropriate in light of the benefit to be derived because no Cost Benefit Statement had been prepared by the engineer (who happened also to be the Municipality's Drainage Superintendent). 

The Tribunal did not agree with the appellants that the Planning Act and PPS were relevant in this case and trumped the Drainage Act.  Tribunal stated the following with respect to drainage in rural Ontario:

Findings and Analysis - Planning Act versus Drainage Act

Drainage is an integral and necessary part of successful agriculture.

The Appellants have enjoyed good drainage of their lands for many years by allowing the surface water to flow downstream lands within Exeter.

The Tribunal is satisfied on all the evidence that the source of the runoff is predominantly from agricultural lands, including those of the Appellants. Therefore, we find the proposed Works will benefit the Appellants' lands for their continued use growing crops and livestock. We also find the proposed Works are not storm water management facilities for the sole benefit of the urban lands within Exeter.

Under Common Law, the Appellants have no assurance they can continue to discharge runoff onto downstream lands and roads.

The Tribunal is satisfied that an appropriately designed drainage works is necessary for the Appellants' agricultural land use to collect and direct runoff from the agricultural properties to a good and sufficient outlet in the Ausable River.

Accordingly, the Tribunal finds that an appropriately designed drainage works is not a land use planning matter that engages the Planning Act and the PPS.

Read the decision at: Exeter Municipal Diversion Drain 2009