February 21st, 2020
Draining excess water from lands, especially farmland, is important to safeguard the use and integrity of the lands. Municipal drains are community drains which remove excess water across property lines and into natural drainage features. Municipal drains can be a combination of open ditches, natural features such as creeks, and underground tile.
The Drainage Act provides the authority for municipalities to establish municipal drains. Under the Drainage Act, the process to establish a municipal drain is as follows:
- A landowner wishing to solve a drainage issue can petition the local municipality to establish a drain.
- The municipality will then appoint an engineer to prepare a report proposing a solution to the drainage problem.
- Public meetings with landowners within the watershed that may be affected by the proposed drain are held to provide an opportunity for community concerns to be heard.
- Any person disputing the proposed municipal drain can appeal to one of several appeal bodies. The Court of Revision hears appeals related to the apportionment of costs amongst affected landowners. The Drainage Tribunal hears appeals on the technical aspects of the drainage works. The Drainage Referee hears appeals relating to the legal aspects of the drainage works as well as appeals from the Drainage Tribunal.
- After all appeals are heard, the municipality can pass a by-law adopting the engineer’s report, thereby legally establishing a municipal drain. The municipality then has the authority and responsibility to construct the drainage works.
- The costs of constructing the municipal drain are apportioned amongst the landowners who receive the benefit of the municipal drain according to the engineer’s report. The drainage assessment apportioned to each landowner is typically shown on a landowner’s property tax bill.
Once a municipal drain is constructed, it is considered municipal infrastructure and the municipality is responsible for repairing and maintaining the municipal drain. Municipalities have certain rights to enter lands to carry out their obligations in respect of municipal drains. In some circumstances, the municipality can be liable for damages for not maintaining municipal drains.
If you own land with a municipal drain located on it, you should not undertake any work that may interfere with the municipal drain without the approval of your municipal drainage superintendent.
Municipal drains are common in rural areas. To confirm the location of existing municipal drains, you should contact the drainage superintendent for your local municipality. You can also review the drainage map available on the Ontario Ministry of Agriculture, Food and Rural Affairs website.
If you have any questions regarding municipal drains located on or near your lands, please contact a Lerners lawyer to discuss.