Drainage Issues: Whose Problem Is It?

Latornell Conference

November 23,

2017

The Common Law as it Relates to Drainage: Introduction to common law Natural Watercourses Surface Water

The Drainage Act: The Process Management of Drains Creative Uses

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Common Law Relating to Drainage Natural Watercourses

Surface Water

Natural Watercourses under Common Law

Riparian owners (owners abutting a natural watercourse): • Have the right of drainage • Have the right to use water for domestic

purposes • If they dam a natural watercourse, they can

be held liable for the impacts. • Must accept the water • If they modify/interfere with a channel, they

can be held liable for the impacts

Surface Water under Common Law: • Has no right of drainage • Flow of surface water is not grounds for a lawsuit • Lower owner does not have to accept the water; can protect their property (e.g. berms or dykes)

Surface Water under Common Law: • Lower owner does not have to accept the water; can protect their property (e.g. berms or dykes)

Surface Water under Common Law: • If collected/discharged, then grounds for lawsuit • Courts can order damages to be paid.

2. Prescriptive Right of Drainage: • If surface water is collected and deposited

on lower land uncontested for 20 years, it may acquire a “Prescriptive Right”

• Only a judge can grant a prescriptive right of drainage.

Prescriptive Right of Drainage: • Can be lost if there are changes in the flow of

water (additional drainage)

Examples: • Land is cleared on opposite side of road, increasing runoff.

• Increased runoff from road improvements (e.g. paved lanes added or new ditching)

• McPhee property was prone to flooding but residence never flooded

• County rebuilt road – road was raised 3 ft. and existing crossing was replaced with a smaller 24” culvert

• Over 5” of rain fell in a short period of time; McPhee residence was flooded.

• McPhee sued for damages

~ McPhee v Plympton & Lambton ~ 1987 Surface Water under Common Law

Court decision: • “The owner of higher lands has no natural right to

drain his surface water onto the lands of his neighbour, so that the owner of the lower land owes no servitude to the owner of upper lands in this respect. Further, the owner of lower lands may erect barriers to prevent the water from flowing onto his land.”

• “The action of the county was not negligent. It did not have a duty to provide drainage facilities for surface water to the plaintiffs at common law.”

~ McPhee v Plympton & Lambton ~ 1987 Surface Water under Common Law

• DiGregorio & Osborne live in subdivision built before planning control

• No formal backyard swale, but water flowed from several properties on collected on Osborne’s lot.

• After complaining for years, problem was solved with a catchbasin; costs shared by City & Osborne

• Fence built by DiGregorio on his property; 6” from boundary

• Osborne built berm on his property holding back water onto DiGregorio’s lot

• DiGregorio initiated a lawsuit

~ DiGregorio v. Osborne ~ 2003 Surface Water under Common Law

Court decision: • No natural watercourse • No prescriptive right of drainage • Osborne had the right to protect his property by

building berms or dykes • But Osborne had already protected his property

with the catchbasin; In building the berm, Osborne was being vindictive.

• Damages and costs ordered to be paid • DiGregorio was ordered to pay a share of the

catchbasin.

~ DiGregorio v. Osborne ~ 2003 Surface Water under Common Law

Resources: • Drainage e-Reference Tool www.omafra.gov.on.ca/english/landuse/drain-eref/index.htm

• Case law: Canadian Legal Information Institute www.canlii.org/en/on/

• Top 10 Common Law Drainage Problems Between Rural Neighbours

www.omafra.gov.on.ca/english/engineer/facts/98-015.htm

What are the Issues with Common Law? • No agency assigned responsibility to resolve

drainage issues • No authority or ability to:

• Enter onto private land • To share costs between owners • Recover costs from owners

Drainage Act was passed to provide property owners with a process to solve drainage problems.

Overriding the Limitations of Common Law

Drainage Act – An Overview

• Enabling legislation (not enforcement) • New drain projects can only be initiated by

property owners and road authorities. • Process is administered by the lower-tier

municipality • Cost of drainage system is paid by the

property owners in the watershed • Most drainage systems are predominantly

located on private land.

Validity of Petition

• Inside the watershed is an internal “area requiring drainage” (ARD)

• To be a valid petition, it must meet one of the following criteria: Signed by: – The majority of owners in the ARD – The owners that represent at least 60% of the ARD – The road authority, where the road needs drainage – The Director, where agricultural land is involved.

Petition Submission To Council

• Council considers petition – • Appeal rights if petition is rejected

• Independent engineer appointed • On-site meeting (project scoping meetings

are not required by the Act but can be useful) • Preliminary report (optional step)

•

Final Report

• Final Report must include: plans, profiles, specifications description of the area requiring drainage total cost estimate assessment schedule allowances other matters

• Must consider individual property owner needs • Along with report, a key component of the

engineer’s responsibilities is to obtain necessary permits/approvals

Final Report

In the final report, the engineer must: • Establish benchmarks (S.13) • Continue the drain to a sufficient outlet (S.15) • Provide for disposal of material (S.16) • Provide for road crossings (S.17) • Provide for private crossings (S.18) • Establish a working space (S.63)

Drainage Assessments Review

• Benefit Assessment • Outlet & Injurying Liability Assessment • Special Benefit Assessment • Special Assessment (Sec. 26)

“…the public utility or road authority shall be assessed for and shall pay all the increase of cost of such drainage works caused by the existence of the works of the public utility or road authority.”

ASSESSMENT SCHEDULE

The Final Report • Report submitted to council • Council conducts a “Meeting to Consider

Report” with property owners, agencies and other interested parties – Petitioners can add or withdraw names – Council can decide to proceed or not to

proceed

Appeals: Agriculture, Food & Rural Affairs Appeal Tribunal

Appeals: Drainage Referee

Appeals: Court of Revision

Final Authorization

• After all appeals have been dealt with and a by-law adopting the engineer’s report is passed … – Construction of the project is authorized,

even across properties opposed to the drain – Costs can be assessed to the lands – Drain now has legal existence and becomes

part of the municipality’s infrastructure

Drainage Superintendent (S.93)

• Appointed by by-law – With this appointment, the Act provides power of entry onto land

• Drainage superintendent duties: • Inspect drains periodically • Maintain and repair drains • Assist engineer in construction and improvement

projects • Report to council

• Superintendent costs charged to the general funds, NOT to the drain

Maintenance & Repair (S. 74)

Any drainage works constructed under a by-law passed under this Act …

…shall be maintained and repaired by each local municipality through which it passes…

…at the expense of all the upstream lands and roads …in the proportion determined by the then current by-law pertaining thereto…

• Repair = restore to its original condition • Maintenance = preservation of the drain

Improvement (S.78)

• Improvement is defined as “any modification of or addition to a drainage works intended to increase the effectiveness of the system

• Need community acceptance to change the “communally accepted” standards.

Prohibitions:

• Against blocking a municipal drain (S.80) • Against damaging a municipal drain (S.82)

Drainage Act Summary:

• Municipally administered process. • Provides a process to solve private drainage

issues, with: – Professional design by drainage engineer – Cost-sharing recommended by independent

engineer – Compliance with other legislation – Legal means of recovering costs – Right of access onto private land – Independent appeal bodies – Authority for future maintenance/repair – “A drain by any means…”

Drainage Act defines “drainage works” as: a drain constructed by any means, including:

– the improving of a natural watercourse – works necessary to regulate the water table or water

level within or on any lands – to regulate the level of the waters of a drain,

reservoir, lake or pond – includes a dam, embankment, wall, protective works

or any combination thereof. The Act can be a problem solver.

Natural Channel Design

Wetland Drain Restoration Projects

Riffle – Stabilizes Wetland Pond, Aerates Pool

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Common Law Relating to Drainage Natural Watercourses

Surface Water

Summary: When dealing with drainage issues, find out which form of law/statute applies:

If you want to go fast Go Alone

If you want to go far Go Together

African Proverb

For More Information:

Website: www.ontario.ca/drainage Contact:

Sid Vander Veen Drainage Coordinator Ministry of Agriculture, Food & Rural Affairs Email: sid.vanderveen@ontario.ca Phone: 519-826-3552