1. MANAGEMENT OF DRAINAGE ON PRIVATE PROPERTY

GESTION DU DRAINAGE SUR LES PROPRIÉTÉS PRIVÉES

recommendationS OF THE PLANNING AND ENVIRONMENT COMMITTEE AND THE AGRICULTURE AND RURAL AFFAIRS COMMITTEE

That Council approve:

1. The adoption of a Drainage By-law; and

2. The staff recommendation of Option B which authorizes the Director to undertake drainage corrections on private property if necessary.

Recommandations du comitÉ de L‘URBANISME ET DE L’ENVIRONNEMENT ET du Comité DE L’AGRICULTURE ET DES QUESTIONS RURALES

Que le Conseil approuve :

1. l’adoption d’un règlement sur le drainage;

2. l’option B recommandée par le personnel, qui autorise le directeur à rectifier, au besoin, le drainage sur des propriétés privées.

Documentation

1. Deputy City Manager's report Public Works and Services dated 27 July 2007 (ACS2007-PWS-UTL-0009).

2. Extract of Draft Minutes, 23 August 2007 (Agriculture and Rural Affairs Committee) follows the French version of the report.

3. Extract of Draft Minutes, 28 August 2007 (Planning and Environment Committee).

Report to/Rapport au:

Agriculture and Rural Affairs Committee

Comité de l’agriculture et des questions rurales

and/et

Planning and Environment Committee

Comité de l'urbanisme et de l'environnement

and Council / et au Conseil

27 July 2007 / le 27 juillet 2007

Submitted by/Soumis par :

R.G. Hewitt, Deputy City Manager/Directeur municipal adjoint,

Public Works and Services/Services et Travaux publics

Contact Person/Personne ressource: Ken Brothers, Director/Directeur,

Utility Services/Services publics

613-580-2424 x 22609, Ken.Brothers@ottawa.ca

City-Wide / À l'échelle de la Ville

Ref N°: ACS2007-PWS-UTL-0009

SUBJECT:	MANAGEMENT OF DRAINAGE ON PRIVATE PROPERTY

OBJET :	GESTION DU DRAINAGE SUR LES PROPRIÉTÉS PRIVÉES

REPORT RECOMMENDATIONS

That the Agriculture and Rural Affairs and Planning and Environment Committee recommend Council approve:

1. The adoption of a Drainage By-law; and

2. The staff recommendation of Option B which authorizes the Director to undertake drainage corrections on private property if necessary.

RECOMMANDATIONS DU RAPPORT

Que le Comité de l’agriculture et des affaires rurales ainsi que le Comité de l’urbanisme et de l’environnement recommandent au Conseil d’approuver :

1. l’adoption d’un règlement sur le drainage;

2. l’option B recommandée par le personnel, qui autorise le directeur à rectifier, au besoin, le drainage sur des propriétés privées.

BACKGROUND

In 2004, Stantec Consultants were retained to conduct a comprehensive review of all aspects of how the City manages issues associated with drainage on private property. The review included the site plan approval process, construction and post-construction inspections, in-fill developments and pool installations. The Study also considered ditched stormwater collection systems in rural subdivisions and outlet ditches for City roads. Service levels in other municipalities were also reviewed.

The City’s current approach to dealing with complaints about poor drainage on private property was also assessed. The great majority of complaints are the result of residents changing the grades on their property through landscaping or the installation of decks, sheds and swimming pools. These alterations disrupt the original drainage pattern and cause rain water or snow melt to accumulate or be redirected towards adjacent properties. To date the City has managed and resolved some of these drainage complaints through investigation of the problem and the offer of constructive solutions. However, residents do not always cooperate and many problems remain unresolved.

The Public Works and Services Department recommends that the City adopt an approach that includes a public education program for homeowners, and the enactment of a grading and drainage by-law.

DISCUSSION

The Stantec study began with a document and literature review of the by-laws and practices of the former municipalities, the policies of other Cities, and the City's current practice. Interviews were conducted with representatives of all of the internal stakeholders who have some involvement with drainage and property grading - Building Services, By-law Services, Infrastructure Services, Legal, Municipal Drainage, Planning and Infrastructure Approvals, Surface Operations, Customer Services, the Call Centre, Wastewater and Drainage Services and the Rideau Valley Conservation Authority. A preliminary report was completed and used as the basis for two workshops involving all of the internal stakeholders.

Legal Findings

A number of conclusions were reached about the legal aspects of managing drainage issues on private property, as well as the varying levels of involvement by other municipalities in this service area.

1. The City has no legal obligation to resolve drainage problems on private property. The City could take the position that a drainage problem caused by the actions of another landowner is a civil matter and the residents must resort to the Courts for resolution. In taking this position, the City would only get involved if there were a threat to public safety or the City’s infrastructure.

2. The City has the authority under the Municipal Act, as amended, to pass a by-law that would empower staff to impose corrections on landowners who disrupt drainage systems by issuing an order to discontinue an activity or to do work to correct the contravention, and to enter onto private property to make those corrections at the landowner’s expense. The relevant sections of the Municipal Act, 2001, as amended, are as follows:

- section 97, Entry of land to inspect discharge of any matter into a land drainage system of

any person

- section 142 (2)(c), Prohibit or regulate the alteration of the grade of land

- sections 435 to 439, Powers of Entry

- sections 444 to 446, Orders and Remedial Actions

Comparative Analysis

The level of service in other cities ranges widely from the minimalist approach described above, to a fairly high level of involvement in drainage problem resolution. The City of Toronto views drainage problems on private property as an issue between the landowners, and the City does not take an active part in resolution of their problem. At the other end of the spectrum, the City of Burlington has a comprehensive program and a by-law in place that allows City staff to order the correction of grade changes or other actions that have caused a drainage problem.

Drainage by-laws currently exist in the former municipalities of Gloucester and Cumberland only. The Gloucester by-law allows the City to order corrections, but to do so requires that Council pass a specific by-law for each case. In staff’s view, this is a cumbersome approach that is not recommended. The Cumberland by-law prohibits grading changes and provides staff with the ability to order corrections, however it only provides for limited fines and is not actively applied.

Approximately 4,000 complaints and inquiries are received each year, and at the time the study was commissioned, there was only one full-time equivalent dedicated to this type of work. Finally, the study found that the Wastewater and Drainage Services Division, which provides only an ad hoc assessment to address drainage complaints, is too under resourced to be effective. In the absence of an effective by-law, staff can only assist with the resolution of drainage problems if there is cooperation between the residents.

Recommendations

The study offers a number of recommendations to assist with the better management of drainage on private property during the pre-construction through the post-construction period:

1. Provide a Public Education Program:

The public education of homeowners about responsibility for drainage management on their property would be beneficial. This would involve the production and distribution of a brochure that could be provided to new homebuyers, real estate agents and lawyers, landscape architects and contractors, swimming pool permit applicants, etc.

It would also be a useful tool in addressing inquiries and complaints. In addition to posting the information to the City’s website, the Call Centre would be trained in simple protocols and provided with the tools to respond to basic inquiries about drainage issues.

2. Enact a Drainage By-law:

The study recommends, at page 11, that "the policies and level of service the City chooses to apply to private property drainage should be supported with a By-law." The study further recommends, at page 11, that "The By-law would indicate that the City would have the option of choosing enforcement, or it could decide to let property owners work out problems among themselves. By having a By-law in place, the City would have the authority to intervene to solve problems as circumstances warrant, should it so choose, and recover all costs in a manner like property taxes."

With respect to off-road open ditches the study recommends, at page 19, that "a criteria-based budget-driven system that places primary responsibility for maintenance on property owners" should be established. The study also recommends that "The By-law on grading should provide clarity over property owner responsibilities for off-road ditches as well as provide access for City staff to undertake maintenance where required."

The study lists six criteria for City involvement in the maintenance of open ditches as follows:

· Involves communities (rather than a small number of properties);

· Accepts water from City property or roads;

· Problem is causing damage to City property;

· Problems are significant and not of an aesthetic or nuisance nature;

· Property owner cannot reasonably solve the problem; and

· Can be addressed within budget allotment (i.e. ranked as a priority)

There appears to be a common misconception on the part of residents as to the City's legal obligation to maintain a drainage work (i.e. a catch basin) that is located on private property and was installed pursuant to a subdivision agreement between the City and the developer of the subdivision. Pursuant to the usual form of subdivision agreement, the City only assumes responsibility to repair drainage works completed by the developer up to "to the property line" of each lot within the subdivision. The typical wording in many 1980/1990 subdivision agreements is as follows:

"The Owner hereby acknowledges and agrees that the City has no obligation to provide storm drainage for off-street (private) lands and neither the consent of the City to installation of off-street works (catch basins and leads) nor the acceptance of any storm water discharge therefrom shall create any obligation or liability whatsoever upon the City to maintain or service such off-street works to continue to accept storm water from private lands into the storm sewer system of the City. The Owner of the land upon which a catch basin is located shall continuously take every reasonable precaution to ensure that the catch basin is kept clear and unobstructed and to prevent the entry of dirt and debris of any nature into the catch basin."

It should be noted that the restrictive covenant, prohibiting the alteration of slope or the obstruction of a drain, that is registered on title for most subdivision lands is for the benefit of each and every owner of a lot that is located within that registered plan of subdivision. Accordingly, if a lot owner alters the slope of his/her land or obstructs/fails to maintain a drain, then that owner is potentially liable to each and every owner in the subdivision for any adverse result that follows from the alteration of the slope of the lot or the obstruction of any drain (i.e. a catch basin) located on the lot.

The draft by-law is attached as Document 1. Legal Services advises that the following options are available and it is within Council's purview to determine the level of service the City is to apply to private property drainage complaints:

Option A:

Offences: As described in Section 2 of the draft by-law, it is an offence to alter or obstruct a drain (including a ditch) or lot grade.

Intervention: The Director may, pursuant to Section 5, make an Order to discontinue the contravening activity or an Order to do work to correct the contravention. If the activity is not discontinued or the work is not completed by the required date then the Offence provisions apply with minimum daily fines of $500.00 per day and no limit on the total of all of the daily fines for the offence. Further, the Director may, pursuant to Section 8, issue a Notice requiring the removal of an obstruction, the maintenance or repair of a Drain or Private Drain, or the restoration of the lot grade. The City would have the authority to take remedial action (i.e. the City would become directly involved in effecting repairs) only if City infrastructure is affected. Otherwise, the penalty for contravention of a provision of the by-law is a fine. The wording in subsection 9(1) would be as per the draft by-law.

Option B:

Offences: As described in Section 2 of the draft by-law, it is an offence to alter or obstruct a drain (including a ditch) or lot grade.

Intervention: The Director may issue an Order pursuant to Section 5 or issue a Notice pursuant to Section 8, as described under Option A above. However, the City's authority to take remedial action is expanded to include the situation where the alteration or the obstruction affects private property i.e., land with respect to which the City does not have a legal obligation to ensure adequate drainage. The wording in subsection 9(1) would be amended as follows:

9. (1) Where a notice has been sent by the Director pursuant to Section 8 and the requirements of the notice have not been complied with, the Director may cause the work to be done and the total cost of the work shall be at the expense of the Owner or Occupant. The total cost of such work shall include an administration fee in the amount of 15% of the cost of the work.

Option B is recommended as this would allow the City to make corrections quickly in cases where there is imminent and significant risk to public health, public safety or private property.

The general approach would be to first use persuasion and education and only apply the provisions of the By-law if this fails to have the required effect. The use of uniformed By-law Enforcement Officers is known to be an effective means of conveying the seriousness of an offence and they would be used in those cases, where required.

3. Complaint Response:

Post-construction complaints arising from residents altering grades or otherwise interfering with drainage would be referred to staff in the Wastewater and Drainage Services Division for investigation. The 24/7 First Response staff in the Customer Services Division would respond to after hours emergency complaints where there is an immediate threat to public safety, private property or City infrastructure.

4. Establish a Drainage Coordinating Committee:

It is recommended that the City establish a coordinating committee on private property drainage consisting of all internal stakeholders who would meet at least annually to review recent experience and seek to formulate an integrated, coordinated and efficient approach to all aspects of managing drainage on both private and City property.

5. Minor Complaints:

The study suggests that the City should not respond to or attempt to address complaints where the resident is expecting an unreasonable level of service. Examples are where the residents are in dispute and drainage is being used by one as an excuse to harass the other, the water disappears soon after the rain event ends, small amounts of standing water in a ditch or swale during the spring melt because of snow and ice blockages, etc.

CONSULTATION

Normal public notification was provided through the publishing of the Agriculture and Rural Affairs and the Planning and Environment Agendas. Informal discussions with residents experiencing drainage problems have shown that there is considerable support for the provision of a higher level of service that would force corrections. Staff will establish a coordinating committee consisting of all internal stakeholders.

FINANCIAL IMPLICATIONS

Council approved funding for the administration of the draft by-law and the program in the 2007 Wastewater and Drainage Services Operating Budget. No additional funding is required.

SUPPORTING DOCUMENTATION

Document 1 – Drainage By-law

Document 2 – A copy of the Report on Private Property Drainage prepared by Stantec Consulting Limited dated 21 September 2005 is on file with the City Clerk and can be viewed at www.ottawa.ca.

DISPOSITION

The Public Works and Services Department will implement Council's recommendations.

DOCUMENT 1

BY-LAW NO. 2007 -

A by-law of the City of Ottawa prohibiting the obstruction or alteration of drains, private drains and the grade of land, and regulating the maintenance and repair of drains, private drains, and the grade of land.

WHEREAS subsection 10(2) the Municipal Act, 2001, as amended, provides that a municipality may pass by-laws respecting economic, social and environmental well-being of the municipality and respecting the health, safety and well-being of persons;

AND WHEREAS subsection 142(2) the Municipal Act, 2001, as amended, provides that a municipality may prohibit or regulate the alteration of the grade of land;

THEREFORE Council of the City of Ottawa enacts as follows:

DEFINITIONS

1. In this by-law:

“Alter” means any act that has the effect of changing the grade of the land including, but not limited to the placement or removal of fill, topsoil, gravel, crushed stone, pavement, interlock, fencing, a swimming pool, a deck, a shed or a retaining wall;

“City” means the City of Ottawa;

“Drain” means a culvert, drain, open ditch, rain water leader, watercourse, sewer, swale or storm sewer to carry and/or accept rain, ground, surface water or any of them, or parts thereof, and includes appurtenances such as manholes and catch basins;

“Private Drain” means a “Drain” located on private Property;

“Director” means the Director of the Water and Wastewater Branch of the Public Works and Services Department of the City of Ottawa or authorized subordinates or assistants.

“Good Repair” includes the provision of facilities, the making of additions or alterations or the taking of any other action that may be required to ensure that a Drain or Private Drain remains clear of any Obstruction;

“Last Known Address” means the address that appears on the last revised assessment roll of the City;

“Obstruct” means any act or inaction that has the effect of preventing or hindering the proper functioning of a Drain or a Private Drain including, but not limited to the placement, dumping or removal of fill or topsoil, or altering the grade of the land by any means including, but not limited to, landscaping, pavement, interlock, fencing, a swimming pool, deck, shed or retaining wall.

“Obstruction” means any object which prevents or hinders proper functioning of a Drain or a Private Drain including, but not limited to fill, topsoil, rocks, gravel, landscaping, pavement, interlock, fencing, a swimming pool, deck, shed or retaining wall.

“Occupant” means any person or persons over the age of 18 years in possession of Property;

“Owner” includes,

(a) the person for the time being managing or receiving the rent of the land or premises in connection with which the word is used, whether on the person’s own account or as agent or trustee of any other person, or who would receive the rent if the land and premises were let, and

(b) a lessee or occupant of Property who, under the terms of a lease, is required to repair and maintain the Property in accordance with the standards for the maintenance and occupancy of Property;

“Property” includes a building or structure or part of a building or structure, and includes the lands and premises appurtenant thereto and all mobile homes, mobile buildings, mobile structures, outbuildings, fences and erections thereon whether heretofore or hereafter erected, and includes vacant property.

DRAINAGE

2. No Owner or Occupant shall, or shall permit any person to, Alter, fill, block, interfere, Obstruct, or cause or contribute to the Obstruction of a Drain, Private Drain or lot grade such that the flow of storm, rain, ground, surface or subsurface water is increased, impaired or deviates from the existing drainage pattern or approved grading and drainage pattern.

REPAIR

3. No Owner or Occupant shall fail to keep in Good Repair a Private Drain.

MAINTENANCE

4. No Owner or Occupant shall allow a Drain or a Private Drain to fall into disrepair such that the flow of storm, rain, ground, surface or subsurface water is increased, impaired or deviates from the existing drainage pattern or approved grading and drainage pattern.

ORDER TO DISCONTINUE ACTIVITY AND WORK ORDER

5. (1) If the Director is satisfied that a contravention of this by-law has occurred, the Director may make an order requiring the person who contravened this by-law, or who caused or permitted the contravention, or the owner or occupier of the land on which the contravention occurred, to discontinue the contravening activity. The order shall set out reasonable particulars of the contravention adequate to identify the contravention and the location of the land on which the contravention occurred and the date by which there must be compliance with the order.

(2) If the Director is satisfied that a contravention of this by-law has occurred, the Director may make an order requiring the person who contravened this by-law, or who caused or permitted the contravention, or the owner or occupier of the land on which the contravention occurred, to do work to correct the contravention. The order shall set out reasonable particulars of the contravention adequate to identify the contravention and the location of the land on which the contravention occurred and the date by which the work must be done.

(3) Pursuant to subsection 445 (3) of the Municipal Act, 2001, as amended, an order under subsection (2) may require the work to be done even though the facts which constitute the contravention of the by-law were present before this by-law making them a contravention came into force.

POWERS OF ENTRY FOR INSPECTION

6. The Director may enter upon Property at any reasonable time for the purpose of carrying out an inspection to ascertain whether the provisions of this by-law are complied with and to enforce and carry into effect the provisions of this by-law.

7. (1) For the purposes of an inspection under section 6 the Director may,

(a) require the production for inspection of documents or things that may be relevant to the inspection;

(b) inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts;

(d) alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests or photographs necessary for the purposes of the inspection

(2) A receipt shall be provided for any document or thing removed under subsection (1) and the document or thing shall be promptly returned after the copies or extracts are made.

(3) Copies of or extracts from documents and things removed under subsection (1) and certified as being true copies of or extracts from the originals by the person who made them are admissible in evidence to the same extent as, and have the same evidentiary value as, the originals.

NOTICE

8. (1) If the Director ascertains that there is any Obstruction or alteration as described in section 2 of this by-law, the Director shall send a notice, by registered mail or direct delivery by hand to the Owner or Occupant’s Last Known Address, requiring the Owner or Occupant to remove the Obstruction, to maintain or repair the Drain or Private Drain, or to restore the lot grade to the same condition it was prior to the alteration, and the notice shall specify the time allowed for compliance.

(2) No person shall fail to comply with a notice sent pursuant to subsection (1).

DEFAULT AND REMEDIAL ACTION

9. (1) Where a notice has been sent by the Director pursuant to section 8, the requirements of the notice have not been complied with, and a highway or City property is interfered with to the extent that there is, or may be, an impact on public infrastructure, including highways, roads and parks, the Director may cause the work to be done and the total cost of the work shall be at the expense of the Owner or Occupant. The total cost of such work shall include an administration fee in the amount of 15% of the cost of the work.

(2) For the purposes of subsection (1), the Director may enter upon Property at any reasonable time.

(3) The costs of the work to be done pursuant to subsection (1) and all costs related to the administration, enforcement and the establishment, acquisition and replacement of capital assets related to this by-law, may be recovered from the Owner or Occupant by action or by adding the costs to the tax roll and collecting them in the same manner as property taxes. The costs include interest calculated at a rate of 15%, calculated for the period commencing on the day the City incurs the costs and ending on the day the costs, including the interest, are paid in full.

(4) The amount of the costs, including interest, constitutes a lien on the land upon registration in the proper Land Registry Office of a notice of lien. The lien is in respect of all costs that are payable at the time the notice is registered plus interest accrued at the rate established under subsection (3) to the date the payment is made.

(5) Upon receiving payment of all costs payable plus interest accrued to the date of payment, the City shall register a discharge of the lien in the proper Land Registry Office at the expense of the Owner or Occupant.

OFFENCES AND PENALITIES

10. (1) Every person who contravenes an order that is issued pursuant to subsection 5(1) of this by-law is guilty of an offence and the offence is hereby designated as a continuing offence as provided for in subsection 429 (2) (a) of the Municipal Act, 2001, S.O 2001, c.25, as amended.

(2) Every person who contravenes an order that is issued pursuant to subsection 5(2) of this by-law is guilty of an offence and the offence is hereby designated as a continuing offence as provided for in subsection 429 (2) (a) of the Municipal Act, 2001, S.O 2001, c.25, as amended.

(3) Every person who contravenes any of the provisions of this by-law is guilty of an offence and the offence is hereby designated as a continuing offence as provided for in subsection 429 (2) (a) of the Municipal Act, 2001, S.O 2001, c.25, as amended.

11. A person who is convicted of an offence under this by-law is liable, for each day or part of a day that the offence continues, to a minimum fine of $500.00 and a maximum fine of $10,000.00 and the total of all of the daily fines for the offence is not limited to $100,000.00 as provided for in clause 429 (3) 2 of the Municipal Act, 2001, S.O 2001, c.25, as amended.

12. When a person has been convicted of an offence under this by-law the Superior Court of Justice or any court of competent jurisdiction thereafter, may, in addition to any other penalty imposed on the person convicted, issue an order prohibiting the continuation or repetition of the offence or the doing of any act or thing by the person convicted directed toward the continuation or repetition of the offence.

SHORT TITLE

13. This by-law may be referred to as the “Drainage By-law”.

REPEALS

14. The following by-laws or portions of by-laws of City of Ottawa and the old municipalities are repealed:

(a) By-law Number 75 of 1992 of the old Corporation of the Township of Cumberland entitled “Being a By-law of the Corporation of the Township of Cumberland prohibiting the obstruction and altering of any drain”; and

(b) By-law Number 90 of 1990 of the old Corporation of the City of Gloucester entitled “A By-law to repeal By-law 5 of 1973, being a by-law to provide for the regulation of the alteration of drainage courses and of existing surface and subsurface drainage patterns within the City of Gloucester”.

ENACTED AND PASSED this day of , 2007

CITY CLERK MAYOR