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Report on Private Property Drainage

City of Ottawa Wastewater and Drainage Services 404-91875-SO01

Stantec Consulting Limited 1505 Laperriere Avenue, Ottawa ON K1Z 7T1 September 21, 2005 1634-00537

It has often been said that good drainage makes for good neighbours. Unfortunately, drainage of water is one the most common areas of dispute.

(“Top 10 Common Law Drainage Problems Between Rural Neighbours”,

published by the Government of Ontario, Ministry of Agriculture and Food).

CITY OF OTTAWA 404-91875-SO01 PRIVATE PROPERTY DRAINAGE

Table of Contents 1 SUMMARY AND RECOMMENDATIONS...................................................... 1

2 INTRODUCTION .......................................................................................... 23

3 METHODOLOGY ......................................................................................... 27

4 LEGAL AND STATUTORY ISSUES............................................................ 29

5 CURRENT SYSTEM..................................................................................... 36

6 DRAINAGE COMPLAINTS.......................................................................... 44

7 CASE STUDIES ........................................................................................... 50

8 ANALYSIS OF OTTAWA’S POLICIES AND PRACTICES......................... 57

9 RECOMMENDATIONS ................................................................................ 67

APPENDIX A: ONTARIO MUNICIPAL ACT (EXTRACTS) ................................................... 68

APPENDIX B: SUMMARY OF REPORT ON HALIFAX PRIVATE PROPERTY DRAINAGE72

APPENDIX C: LEGAL AUTHORITIES AND ISSUES ........................................................... 75

APPENDIX D: OPTIONS REVIEWED AT ROUNDTABLE................................................... 84


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1 SUMMARY AND RECOMMENDATIONS Introduction Ottawa’s stormwater management and drainage system is designed to protect watercourses and reduce the risk to human health and property associated with flooding and standing water. A fundamental element of the system is the flow of water from private properties to the City’s stormwater management system. For the very large majority of homeowners, the flow of water from their property occurs without interruption or problem. However, each year the City receives complaints or requests for information about flooding and standing water from as many as 4,000 Ottawa homeowners. Wastewater and Drainage Services, the group within the City currently responsible for managing resident complaints, commissioned this study with the following objectives:

• Review the City’s system of prevention and management of private property drainage problems; and

• Make recommendations on how the system could be improved. The primary methodology for the study was personal interviews with City staff and two roundtables that included all branches in the City involved with drainage issues. In addition, telephone interviews were conducted with municipal staff from other cities on drainage issues and a review was undertaken of relevant publications available over the Internet.

Standing water on private property occurs because: • Grading conditions do not conform with design • Homeowners change the grade of a property • Improper maintenance, especially on open ditches • The system is designed to allow some temporary retention of water • Precipitation beyond what the system is designed to accommodate


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Why residents are concerned about standing water: • Inability to use property • Damage to landscaping • Aesthetic issues • Potential health or safety hazard

Evolution of Stormwater Management and Private Property Drainage The nature and extent of drainage problems reported by homeowners is far different today than it was 20 years ago. For reasons outlined below, the frequency and concern for standing water on private property has increased significantly.

• As an economy measure, today’s systems are designed to allow standing water in roadside ditches and in backyards for brief periods following a heavy storm;

• Residential landscaping has become far more popular and dramatic, resulting in grading changes that frequently cause drainage problems;

• There is a trend towards larger houses on smaller lots, which places a strain on the stormwater management system; and,

• Awareness of the West Nile virus has substantially raised the level of anxiety associated with standing water.

The volume of complaints is a clear indication that residents are becoming increasingly concerned about drainage issues.

Relevant Authorities The legal and regulatory structure gives the City full authority to regulate and control the grading of private property. The City can pass a By-Law or otherwise rely on easements and subdivision agreements to manage grading issues. Of note, the City’s legal department is of the opinion that none of these measures impose an obligation on the City to respond to drainage complaints raised by residents. That means the City can choose, as a matter of public policy, if and when it wants to intervene on private property drainage complaints.


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Observations about Current Practices Drainage Design, Review and Inspection The following observations relate to Ottawa’s current practices for drainage design and development review for subdivisions, site plan, infills and home renovations.

• Ottawa follows many of the policies used by other cities in development review and control to prevent drainage problems;

• Ottawa’s systems are effective at reviewing design submissions to ensure appropriate design standards are met for drainage;

• Other cities tend to rely more on the developer/builder’s consultants to certify appropriate lot grading and drainage practices; and,

• There has been some inconsistency in the application of development control across the City. This is a legacy of past practices of former municipalities, which is currently being addressed.

The system works well during the construction phase of new subdivisions. There is the occasional problem reported when homeowners move into partially completed subdivisions, however, these incidents are usually resolved with limited intervention by Construction Services staff. Building Services, which ensures that performance and safety standards are met, inspects new construction to ensure compliance to the minimum standard requiring positive drainage away from the new building’s foundation. Because Building Services has limited resources to review permit applications and inspect construction, their strategy is to focus on areas with the highest degree of risk to health and safety (i.e. structural sufficiency, fire suppression and life safety systems). Consequently, Building Services does not routinely investigate the drainage impact on neighbouring properties and does not undertake an inspection of lot grading and drainage for the entire property, which is not a mandated inspection. Also of note, lot grading is usually undertaken after the building is occupied and after the permit file is closed. Therefore, Building Services is not normally involved on drainage issues post occupancy.


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Observations about Current Practices Drainage Complaints Currently, Ottawa has no specific by-law to deal with lot grading and private property drainage. Systems and protocol for managing complaints are virtually non-existent and the single person assigned to deal with post-construction resident drainage complaints is often overwhelmed. Investigations are frequently limited to complaints that are most serious or vociferous. The following observations relate to the approximately 4,000 inquiries and complaints received by the City each year from residents about private property drainage.1

• As intended, the entry point for the very large majority of complaints is the Call Centre;

• About 75% of these calls are from residents seeking basic information. Homeowners are generally unaware of their responsibilities and obligations for drainage management;

• The remaining 25% of calls can be segmented as follows: o Complaints based on unreasonable expectation of service or where the

City can provide no useful assistance; o Complaints about private property drainage where the source of the

problem is readily determinable; o Complaints where the source of a problem is unknown and requires

investigation; and, o Complaints about drainage problems during the construction phase of

development. It is clear that the City requires a complete policy and program overhaul over how it responds to drainage complaints.

1 Data about the nature and extent of drainage complaints was generated from discussions with City staff.


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Observations about Current Practices Open Ditches In most urban and suburban areas, stormwater is conveyed through a system of covered drains. In some areas of the city, particularly in suburban and rural areas, open ditches are used as part of the stormwater management system. There is no inventory of open ditches in the city, but it is easily in the hundreds of kilometers. While these open ditch systems are much less expensive to construct than a covered drain system, regular maintenance is required. Most often open ditches can be found within road allowances, which are maintained through the City’s Surface Operations Branch. The nature and extent of maintenance on these ditches is entirely budget driven. Drainage Act ditches are also well defined with access, procedures and cost recovery mechanisms in place to protect the city’s interests through the offices of the Municipal Drainage Engineer, a Branch of Wastewater and Drainage Services. Other off-road open ditches are more problematic for both the City and the property owner. Issues around maintenance include who pays the cost, who does the work and how can private property be accessed. Currently, the City reacts to complaints about open ditches, and has no budget or system established for maintenance.


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Objectives • Help to protect the overall integrity of the stormwater management

system • Ensure emergency calls receive instant and direct attention • Provide information to residents about their responsibilities for

drainage management • Reduce cost to the City by minimizing City involvement when

disputes are between private citizens • Help residents resolve drainage problems at levels of service and in

circumstances approved by Council • Monitor complaint management practices and costs and make

recommendations for changes where warranted

Recommendations: The recommendations that follow are based on a review of Ottawa’s current systems, review of the practices in other municipalities and our experience working with municipalities and private developer/builders.2 They are designed to address the following objectives:

2 Some of the recommendations require action, and potentially cost, to the development community. It would be appropriate to consult the City’s “Engineering Liaison Subcommittee” to ensure its input is considered before any changes are implemented.


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1. ESTABLISH COORDINATING COMMITTEE ON PRIVATE PROPERTY DRAINAGE

Because there are ten branches in the City of Ottawa involved with drainage issues, coordination of City resources is of critical importance. Today, there is often confusion about which branch of the City is responsible for responding to a particular drainage issue, which is frustrating for residents and costly and inefficient for the City. We recommend that the City establish a Coordinating Committee on Private Property Drainage. The individual responsible for the unit that manages drainage complaints should chair the Committee. The Committee, which would meet at least once per year, would review recent experience and seek to formulate an integrated, coordinated and efficient approach to private property drainage management.


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2. PERIODIC MEETINGS WITH THE DEVELOPMENT COMMUNITY TO ENSURE

EFFICIENT AND EFFECTIVE DRAINAGE MANAGEMENT PRACTICES AND PROCEDURES

While there are no indications of any fundamental problems in stormwater management design and construction review for subdivisions and site plans, there will always be questions or opportunities for improvement. A key issue in drainage design and review is the nature and extent of the City’s reliance on the developer/builder, and their engineer, for proper design and construction. We recommend that the City’s Engineering Liaison Subcommittee review annually any issues or possible improvements that can be made to the design submission and review process for lot grading and drainage. Some specific issues the Subcommittee could examine include:

• City inspection of subdivisions at the rough grading stage; • Design guidelines for lot grading and drainage; • Policy and procedure manual for the approval of lot grading submissions for

subdivision, site plan, infill and renovation; • Turnaround time for approvals related to permit applications that would enable

timely Building Services inspections; • Consistent review procedures for all parts of the City; • Issues related to security deposits; • Information packages for new home buyers; and, • Grading controls for residents that move into partially completed subdivisions.

The objectives should be to ensure that 100% of designs meet established standards, and that the review and approval process is efficient and timely.


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3. BUILDERS TO PROVIDE ADDITIONAL DATA RELATED TO LOT GRADING

The City is often encumbered when it attempts to respond to drainage complaints because of a lack of documented information about conditions that existed at the point of final approval. Infrastructure Approvals Division would also like additional verification to ensure construction is consistent with the approved design submissions. Accordingly, it is recommended that builders of new homes, infills and significant additions provide to the City:

• Individual detailed lot grading plans; • As-built individual lot-grading plans based on actual building footprint; and, • As-built elevations for underside of footing and top of foundation.

Submissions would need to be certified by an Ontario Land Surveyor or professional engineer. The City would need to establish acceptable tolerances for variances from approved plans. Whenever the tolerances are exceeded, the builder should be required to resubmit an individual detailed lot-grading plan for review and approval by Infrastructure Approvals Division. The provision of information would be a condition for the release of any security deposits for lot grading.


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4. EDUCATE HOMEOWNERS ABOUT THEIR RESPONSIBILITY FOR DRAINAGE

MANAGEMENT

The ultimate responsibility for property drainage rests with the homeowner. Yet, this is an issue and responsibility that homeowners know little about. While the City reviews designs and inspects construction, the City involvement does not offer guarantees to homeowners that a drainage problem will not arise post construction. Homeowners should be advised of the limitations of the City’s review and inspection for lot grading and drainage, and that the City’s involvement does not relieve the homeowner of basic responsibilities. Most drainage problems result from a homeowner altering property grades without knowledge or concern for their responsibilities or the possible impact on drainage. Problems can also arise when open ditches in the front or side-yards of a property are not maintained. To inform residents of the City’s role in private property drainage, as well as outline homeowner responsibility, it is recommended that the City produce a pamphlet on private property drainage. The pamphlet would cover issues relevant to new homes, renovations and ongoing property maintenance. The pamphlet could follow a ”frequently asked questions” format and be made available in hard copy and over the City’s web site. The City could also pro-actively distribute the pamphlet through homebuilders, real estate lawyers, real estate agents, with Building Permit applications, Swimming Pool Permit applications, and City Libraries and information centers. It is estimated that a pamphlet could be designed and printed in English and French for $10,000.


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5. ENACT BY-LAW ON GRADING

The policies and level of service the City chooses to apply to private property drainage should be supported with a By-Law. This is the method chosen by most municipalities to deal with drainage complaints. The responsibility of residents and the City should be made clear, as well as the City’s authority to act to resolve problems. 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. The clear recommendation of By-Law Services, with which we are in agreement, is for a simple all encompassing By-Law that applies to every property in Ottawa. While the existence of a subdivision agreement and easement is additional weight that can be brought to bear in the event of a dispute, the absence of such an agreement should not encumber the City from dealing with drainage problems. Special consideration should be given to the applicability of the By-Law to the installation of swimming pools. By their very nature the installation of an aboveground and in-ground swimming pool alters the grade or the flow of surface water from a property. Currently permits are required for only the enclosures around a swimming pool. The existing permit process does not formally consider grade changes resulting from the installation of a pool or any impact this might have on drainage on neighboring properties.3 It is advised that industry and community consultations be undertaken before implementing the application of a By-Law to swimming pools.

6. DEALING WITH EMERGENCY COMPLAINTS

The current system of dealing with emergency complaints through “Utility Services: Customer Services and Operational Support 24/7 First Response Team” appears to be functioning well and should be retained.

3 The existing swimming pool permit process does include a review of the changes to the grading as a result of the proposed installation. However without a by-law regarding grading, there is no authority to ensure the actual installation complies with the proposed grading plan.


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Call Centre • Respond to 3,000 simple

questions about drainage • Provide information over the

phone or use an information pamphlet

• Estimate of 200 hours per year at a cost of $8,000

7. RESPONSDING TO SIMPLE INQUIRIES FOR INFORMATION

The City receives almost 3,000 calls each year seeking basic information about private property drainage. Almost all of these calls go to the Call Centre. It would be nonsensical and uneconomic to re-route the calls that come into the Call Centre seeking basic information to an office with expertise on drainage issues when it is simply not required. The time spent to transfer and reconnect with the caller, then have them repeat the reason for their call to another party, would simply be a waste of time. It would be an even greater waste of time to initiate a site visit for complainants when their questions can be easily answered through a phone call. While the City has the option of telling callers that it does not intervene on private property drainage, the sheer volume of calls, expectation of service, practices in other municipalities, and the opportunity to efficiently remedy problems for homeowners at an early stage before they become more complex and costly, provide strong reasons to offer such a service. It is estimated that each call would take on average about four minutes. That means 3,000 calls would require 200 hours on the telephone with a total costs to the City of approximately $8,000. 4 There would be some additional costs related to training and the provision of material (i.e. pamphlets). The Call Centre should be equipped with protocol and information about how to respond to drainage complaints. In the first instance they must be able to identify and properly route emergency complaints. Second, they should direct residents to available information and encourage them to try and solve problems on their own. Third, they should be able to direct residents to the appropriate office to deal with more complex problems. The pamphlet and web site would also provide information to residents about if, and when, the City might intervene in a problem. Fourth, the Call Centre should be used to keep track of the nature and extent of a call and complaints that are received.

4 Staff time is costed throughout this study at an all-inclusive rate of $40.00 per hour. This is the approximate cost for a By-Law enforcement officer.


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Criteria for Investigating Drainage Complaints • Standing water is readily observable

during “non-storm” periods • Resident has been informed about

“homeowner responsibilities” • Problem relates to a specific property • Complainant is identified (i.e. not

anonymous) • Problem appears to be “significant” • There is no indication of an ongoing

and pervasive conflict between neighbours and the safety of the investigating officer is not in doubt

• Impacts on public property and infrastructure

• The City might be at fault in causing the problem

8. RESPONDING TO COMPLAINTS BASED ON UNREASONABLE EXPECTATION OF

SERVICE OR WHERE THE CITY CAN PROVIDE NO USEFUL ASSISTANCE

It is estimated that there are about 1,000 complaints each year where a resident has a clear expectation of service or direct action from the City. Experience shows that about 600 of these complaints are from residents that have an expectation of service that is completely unreasonable; akin to a homeowners asking the city to clear their driveway or cut their grass. The City should not divert resources into investigating complaints where it can provide no useful assistance. The issue with “unreasonable expectations” may result from amalgamation whereby residents have resurrected long-standing disputes with a neighbour hoping a new administrative regime will respond more vociferously. Expectations may also have been established by the services offered by some of the former municipalities that occasionally intervened in minor drainage problems Where it is clear that a service demanded by a resident is not offered, largely because it would not be effective, City staff should politely respond that it is not within their mandate. The Call Centre is the first line of defense in clarifying what the City does and does not do. Thereafter, staff that deal with drainage problems must be able to readily decline service when a complaint does not meet the criteria that warrants intervention. It is vital that senior management and Council support staff in this regard.


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Responding to Simple Complaints • 200 simple complaints per

year would meet criteria • Takes about 4 hours per

complaint to investigate

9. COMPLAINTS WHERE THE SOURCE OF THE PROBLEM IS CLEARLY ESTABLISHED OR READILY DETERMINABLE

It does not take much expertise to determine that a blocked swale is the cause of a drainage problem or when a downspout is pointed at a neighbouring property. While a resident might know the cause of the problem, most would prefer that the City intervene with their neighbour to avoid direct personal conflict. The City might also be seen to be a more persuasive and powerful agent in directing a resident to fix a problem. These complaints are not particularly complex and might require a half-day of staff time to investigate, gather evidence and respond to the complainant and other affected parties. Before an investigation or site visit is launched, a complaint would have to meet certain tests (as noted in the box on the previous page). Otherwise, the City may easily get involved in purely neighbour-to-neighbour disputes or complaints that are innocuous. It is estimated that there are about 200 such qualifying complaints lodged with the City each year. An estimate of 4 hours to respond to each complaint yields a total cost $32,000. How this function might be staffed is addressed in another recommendation. The alternative of not responding would require residents to either accept and do nothing about the problem of standing water, or directly confront a neighbour with a legal action or by some other means. Based on the objectives established, we believe the City should intervene in helping to resolve most simple and clear drainage problems. If a resident is not satisfied with the City’s effort, they can always launch a civil action to seek appropriate remedies.


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Responding to Complex Complaints • 200 complaints per year • Takes an officer two days to

investigate and respond to complaint

10. COMPLAINTS WHERE THE SOURCE OF A PROBLEM IS UNKNOWN AND

REQUIRES INVESTIGATION

Many drainage problems are complex and multi-faceted. In the past, the City has offered advice to homeowners on how best to remedy a complex drainage problem. It is extremely rare, perhaps occurring two or three times per year, when circumstances are such that the City believes it is in its best interests to become directly involved in effecting repairs, often because the City had some minor role in causing the problem, or because it affects roads or health and safety. The City may also initiate repairs where a problem impacts many residents and the ability for the neighborhood to jointly solve a problem is an issue. It is estimated that there are 200 such complex cases each year. The estimated cost of responding to these complaints is about $160,000 (two person-years). This budget would provide an officer with two days to resolve each complex complaint. Should the City determine that assigning field officers to investigate complex complaints, it would be helpful to provide an additional budget of say $50,000 to help initiate repairs and solve the occasional complex problem. The alternative open to a homeowner is to hire a consultant to determine a problem or to otherwise lay the facts before the courts and have them make a determination. Based on the objectives established, we believe the City should attempt to provide advice to homeowners and/or otherwise assess responsibility for uncertain and complex drainage problems.


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11. COMPLAINTS WHILE SUBDIVISIONS ARE UNDER CONSTRUCTION

The City receives about 200 drainage complaints each year from homeowners that have moved into a partially completed subdivision. These complaints often stem from incomplete grading during construction or from residents that violate the approved detailed lot-grading plan with landscaping or by installing a pool before the final grading is complete. What makes the complaints unique is that a developer/builder is still on site and is still ultimately responsible to ensure the final grading is consistent with approved plans and that the City still holds security deposits for lot grading. The developer/builder does not want to get drawn into a complaint and believes the City should deal with the homeowner. The homeowner, who is often the source of the problem, wants the City to accept their changes or get the owner/developer/builder to remedy the problem. The City has no specific inspection fee to investigate or find solutions. When the City gets involved, it usually educates the homeowner while encouraging the developer/builder to initiate repairs. It takes at least two hours to respond to each problem, which means this “advisory” service costs the City about $20,000 per year. It would be very straightforward for the City to place the onus on the builders to protect approved lot grades until such time as the development is complete and security deposits returned. Developer/builders would in turn ensure that homeowners were aware of their responsibility for drainage management and would find some other ways to protect themselves in the event that a homeowner altered the grade of a property. Achieving homeowner awareness is considered desirable in any event. Therefore it is recommended that the City provide only a minimal response to complaints about drainage when a subdivision is under during construction (i.e. where security deposits are in place) unless a situation is an emergency or a threat to human health and safety.


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Possible Criteria for Imposing Enforcement Measures • Integrity of the City’s drainage system is

impacted • Integrity of a neighborhood drainage

system is impacted • Health and safety is at risk • Homeowner refuses to cooperate

12. DEALING WITH NON-COMPLIANT RESIDENTS

There are likely to be occasions when homeowners do not follow the advice given by the City on lot grading and drainage, and even circumstances where a homeowner does not follow an official City order to make repairs. When a homeowner is given advice about how to best fix a drainage problem, and fails to follow that advice, the City has a number of options.

• By-Law Services officers to issue advice and a verbal direction to comply;

• By-Law Services officers to issue an Order to Comply; and,

• City repairs the lot grade and assesses costs against the homeowner in a manner like taxes.

The City should establish criteria to determine which of these responses would be most appropriate for particular circumstances. In the overwhelming majority of cases, a warning from a uniformed By-Law enforcement officer is considered an effective first step in resolving complaints.


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13. ORGANIZATION

While many branches and divisions in the City are involved in responding to drainage complaints, it is essential that a “quarterback” be designated to field and manage the complaint resolution process. The criteria for allocating responsibility for drainage management was based on:

• Technical knowledge of grading issues; • Synergies with other responsibilities; • Access to records and drawings relevant to drainage complaints; • Ability to coordinate and lead activities across City Departments and Branches; • Ability to assemble the resources and equipment to resolve problems; • Ability to conduct a field review, including relations with the public; • Providing service at the lowest possible cost; and, • Intent on cost recovery (i.e. from utility rates or property taxes).

While there is no “ideal” fit for where to locate drainage complaint management within the City, we recommend the responsibility be assigned to “Utility Services: Customer Services & Operational Support”. This recommendation is based on the branch’s following attributes:

• Oriented towards customer service and are accessible to the field 24/7; • Engaged in drainage management when responding to emergency calls; • Capable of directing City or contractor resources to fix problems; • Equipped with systems to monitor and determine the cost of complaints; and, • Permits cost recovery through the utility rate.

After the Call Centre provides basic information, residents that want to pursue complaints would be directed to “Customer Services”. This office would assess and triage complaints as noted in the flowchart on page 18. The general resource requirement is set out on page 19. We also recommend the following changes:

• “Customer Services” would Chair of the “Coordinating Committee of Private Property Drainage” and would meet regularly with By-Law Services, Call Centre, Infrastructure Approvals Division, Building Services Branch, Construction Service Division and the Rideau Valley Conservation Authority.

• “Customer Services” would lead all technical investigations and be responsible for the information pamphlet and the content on the City’s web site.

• “Customer Services” would establish a distinct unit with systems and supports to manage private property drainage complaints. The unit would likely require 3-4 full-time staff plus seasonal support for peak periods. An evaluation of the number of complaints and level of service (and staff) should be conducted on an annual basis. By-law Services should also monitor the number of complaints it investigates each year to determine the impact on its resources.


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Criteria for City Involvement in the Maintenance of Open Ditches • 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

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

14. Off-Road Open Ditches The City needs a clear policy over the maintenance of off-road open ditches. The benefit to property owners of open ditches is the low initial construction cost. This benefit implies property owners should have primary responsibility for maintenance. This includes removal of any items that obstructs the flow of water, including plant material. It is obvious, but still worth noting, that property owners should not be allowed to alter an engineered open ditch (i.e. with landscaping, pool installation, garden shed etc.). There are some open ditches within the City where maintenance by a property owner may not be feasible or appropriate. This could include, for example, ditches that serve large communities or impact on public infrastructure, including roads and parks. Where possible, a Municipal Drain should be registered to recover costs on open ditches. However, there are ditches on private property where this may not be feasible. While complaints by property owners about open ditches are typically brought to Surface Operations, they have no budget for maintenance. While Surface Operations has the equipment and contacts to fix problems, they need a policy, budget and system to manage this work. They estimate that a budget of $120,000 would allow them to address what they consider to be high priority problems. It is clear that a regular system of maintenance costing millions of dollars could easily be justified and developed. However, it is more realistic to establish a criteria-based budget-driven system that places primary responsibility for maintenance on property owners. While it makes sense for Surface Operations to be responsible for undertaking maintenance operations, the private property drainage coordinator should take the lead in responding to complaints, establishing priorities, and directing the application of resources. 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.


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15. SYSTEMS AND QUALITY CONTROL PROCEDURES

Beyond a program of preventative measures and education, the City needs to have a reliable system to identify, classify and monitor the status of drainage complaints. Regular reports (monthly or quarterly) should be prepared on the nature and extent of drainage complaints. The report should be based on the timesheets of staff and a tracking of costs by function. Data for the reports should include:

o Total new complaints o Complaints referred to By Law Services o Complaints resolved during the month o Unresolved complaints at month end o Identify address for nuisance complaints o Hours and costs by complaint (minor complaints could be shown in

aggregate) o Problem cases

All efforts should be made to ensure that complaints are registered in the City’s “MAP” system by address to minimize the duplication of effort and provide historical data on affected properties. “By-Law Services” should also prepare a report noting the nature and extent of drainage complaints they addressed in the month. “Customer Services” should also prepare an annual report to inform the periodic meetings of the Coordinating Committee on Private Property Drainage.


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Simple Flowchart on the Management of Drainage Complaints

Resident Complaint:• Received by Call

Centre

Emergency • Route to Utility

Services – Customer Services - First Response Team

Non Emergency • Call Centre to provide basic

information with content from:i. FAQ, ii. Web site iii. Pamphlet with basic

information

Resident Seeks City Involvement • Complaint directed to Utility Services: Customer Services and

Operational Support

City Response • Do nothing • Forward to By-Law services • Forward to Construction Services for new construction • Launch an investigation then offer advice or direct By-Law

enforcement to initiate action (compliance orders) • Remedy the problem by other means

o Council to set policies and establish budget o Senior management to provide organization framework including the Coordinating Committee

on Private Property Drainage

Customer Services to produce periodic management and performance reports that identify, classify and monitor the status of drainage complaints. Monthly reports should review the nature and extent of drainage complaints with fully costing data. An annual report would inform the periodic meetings of the Coordinating Committee on Private Property Drainage, which could also be used by the Environment Committee and Council.


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Estimate of Likely Resource Commitment

Current Proposed Task Estimated

Cost Task Estimated

Cost Call Centre (Generally refers callers to Wastewater and Drainage Services)

$8,000 Call Centre (responds to residents with basic information, web site and pamphlet)

$8,000

Wastewater and Drainage Supervisor $80,000

Customer Services and Operational support (Supervisor, Inspector, 4 seasonal inspectors, clerk) Vehicle and other operating costs

$400,000

$50,000

By-Law services 1,000 complaints = 1,000 hours

$40,000By-Law services – estimate of 1,500 complaints = 1,500 hours

$60,000

Maintenance of open ditches

$0 Maintenance of open ditches $120,000

TOTAL $128,000 TOTAL $638,000 Notes:

• Currently, there is no specific budget for the “Wastewater and Drainage Supervisor”. The individual currently discharging this responsibility is “on loan” from his regular duties as a “Sewer Inspector”.

• Does not include one time costs associated with the pamphlet and web site • Does not include capital costs related to the establishment of the drainage

office in Customer Services and Operational Support, estimated at $200,000 for vehicles, equipment and office set up.


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2 INTRODUCTION

2.1. PROJECT DEFINITION

Ottawa’s stormwater management and drainage is designed to protect watercourses and to reduce the risk to human health and property associated with flooding. A fundamental and integral element of the system is the flow of water from private properties to the City’s stormwater management system. In fact, many private yards are subject to grading restrictions through Subdivision Agreements, Site Plan Control, Agreements and Certificates of Approval. For the very large majority of homeowners the flow of water from their property occurs without interruption or problem. However, each year there are reports of standing water from as many as 4,000 Ottawa homeowners. City staff want to determine how to best minimize problems with standing water on private property and the most appropriate way to respond to complaints. To help the City answer these questions, Stantec Consulting Ltd. was engaged by Wastewater and Drainage Services to make detailed recommendations on a Citywide approach to dealing with future drainage issues on private property.


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Gloucester By-Law: Any change in grade or slope is subject to approval of an application to the Commissioner of Works. Where the Commissioner becomes aware of dangerous conditions, he may issue an order compelling the property owner to undertake remedial works, failing which the municipality may perform the work and collect costs in a manner similar to municipal taxes. Fines are specified for failure to comply.

Cumberland By-Law: No interference with existing drain, watercourse or lot grade without written permission from the Commissioner of Works. In the event changes are made without permission the Commissioner may direct corrective work to be undertaken and the costs collected in a manner similar to municipal taxes. Fines are specified for failure to comply

2.2. PRE AMALGAMATION SITUATION

Prior to amalgamation, the 11 former municipalities and the Regional Municipality of Ottawa-Carleton followed different procedures and methods when dealing with drainage issues and in responding to drainage complaints:

• Some had rigorous inspections of grading and drainage for new homes and additions for drainage issues, while others provided a minimal review;

• Some had By-Laws and enforcement mechanisms to deal with alterations to drainage pattern and grading, while others had no governing By-Law;

• Prior to amalgamation, drainage systems design varied from municipality to municipality, and over time within individual municipalities;

• Some considered the impact a new swimming pool might have on drainage, while others offered no such review; and,

• Some municipalities intervened in drainage disputes among neighbors on private property, while other left it up to homeowners to resolve problems by themselves, in the latter case by civil means if necessary.

Specific by-Laws were in force in Gloucester and Cumberland, which are summarized below.5

5 These By-Laws remain in force, however there are no specific resources assigned for enforcement.


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2.3. AMALGAMATION

Under the new City, development controls and approvals followed a wide range of pre-amalgamation practices. This included various measures to prevent drainage problems from occurring in the first place. In regards to post construction complaints, a structured, systematic and coordinated response was not established when the new City was formed. There are likely three reasons for this. First, in many of the smaller municipalities drainage complaints did not specifically show up on organization charts and was often a subset of a larger area of responsibility. Second, most municipalities did not compile data on the nature and extent of drainage problems. Third, at the old City of Ottawa, drainage management was not a significant issue. It seems that drainage problems were of greater significance in suburban and rural areas rather than urban settings. Consequently, at the time of amalgamation, the level of resources required to respond to drainage issues was not specified or assigned. There was no “natural” fit within the newly amalgamated City branches for drainage management. Ultimately the Wastewater and Drainage Services branch assumed responsibility for responding to complaints. There was no particular logic to this assignment as this branch had limited or no history with private property drainage, no specific resources for this task, no training, and no tailored expertise. Without knowing the nature and extent of the problems they would face, Wastewater and Drainage Services assigned one full-time staff to respond to complaints. However, it was evident, almost immediately; that the volume of calls, particularly during seasonal peaks, was well beyond what one person could manage and that any and all expectation about level of service from residents and Councillors was not being met. At best, the City’s initial and temporary strategy was to respond to the most vociferous complaints while determining how to best approach the issue. To date, Wastewater and Drainage Services has not established formal procedures, systems and standards for addressing drainage complaints. In fact, they are uncertain if it is even appropriate for the City to even be responding to complaints from homeowners about drainage problems that affect exclusively private property. The need for a clear and coordinated strategic plan for the management of drainage issues is particularly important given the involvement of many departments and branches in the City. There is no single point of authority that oversees drainage issues over the three stages of development: pre-construction; construction; and post-construction. Consequently, a systematic and coordinated approach to drainage issues on private property across City services has yet to be established.


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2.4. CHANGES IN THE ENVIRONMENT FOR STORMWATER MANAGEMENT

It is worth noting how the issues around stormwater management and its impact of drainage on private property have evolved over the years:

• The cost of stormwater management systems is such that from the 1970’s forward there has been a much higher tolerance for the temporary retention of water on private property. In other words, some of the systems of today are designed to allow standing water on roads, in ditches and in backyards for brief periods following a heavy storm. Following an increase in the number of drainage complaints, some are starting to question this practice.

• The concept of major-minor system design gained acceptance and widespread

use in the Ottawa area in the 1970’s.

• There has been a significant increase in grade alterations over the past 20 years caused by the popularity of landscaping, gardening and swimming pools. This includes the installation of small ponds, sheds and large flowerbeds. The resulting alteration in lot grading has led to an increase in the number of drainage problems.

• Larger houses on smaller lots place a strain on the stormwater management

system. Homeowners are also more inclined to maximize the utility of reduced lot sizes and less tolerant of grading and drainage features such as swales and sloped yards.

• Stormwater management is an integrated system that flows water to natural

watercourses. A disruption in the flow of water from even one property can impact the integrity of the system for many others. This makes it difficult for the City to completely avoid problems that happen on private property.

• Homeowners are generally unaware of their responsibilities towards drainage

management. Consequently, many are surprised to learn that they cannot alter the grade of their properties in a way that might have an adverse impact on their neighbours. Some may willfully change the grade of their property without regard to how it might impact their neighbour.

• Awareness of the West Nile virus has substantially raised the level of anxiety

associated with standing water. Since the presence of the West Nile virus, residents are much more likely to register a complaint for standing water.

• Despite the large number of complaints and the difficulty in obtaining resolution,

the City is involved in few, if any, legal disputes.


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3 METHODOLOGY The following methodology was employed to meet project objectives:

3.1. DOCUMENT AND LITERATURE REVIEW

a. Reviewed By-Laws of former municipalities on drainage issues

b. Reviewed procedures and methods used by former municipalities

c. Reviewed current procedures

d. Literature review for relevant material

3.2. PERSONAL INTERVIEWS

Personal interviews were conducted with approximately 40 City staff representing the following program areas:

a. Building Services

b. By-Law Services

c. Infrastructure Services

d. Legal

e. Municipal Drainage

f. Planning and Infrastructure Approvals

g. Rideau Valley Conservation Authority

h. Surface Operations

i. Utilities

j. Wastewater and Drainage

k. Call Centre


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3.3. COMPARISON WITH OTHER MUNCIPALITIES

Five municipalities with drainage issues similar to Ottawa were selected and studied to determine the methods used to deal with private property drainage issues. Telephone interviews and Internet searches were used to gather information.

3.4. ROUNDTABLE AND REVIEW

On January 21, 2005, a Roundtable that included all City branches involved in private property drainage issues was held at the Training Facility of Wastewater and Drainage Services. The agenda for the daylong session included the following:

a. Validation of current practices (as described in a draft report on private property drainage);

b. Review of practices in other cities;

c. Discussion of current design and review practices and options for improvement;

and,

d. Discussion of current practices for managing complaints and options for improvement.

A second roundtable was held on March 30, 2005. At this half-day session participants commented on the draft report, in particular the recommendations. The goal for both sessions was to “achieve consensus on a systematic, coordinated and efficient system to manage private property drainage issues for the City of Ottawa.”


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4 LEGAL AND STATUTORY ISSUES

4.1. RELEVANT LEGAL AUTHORITIES6

A full description with notations for the various legal authorities is provided in Appendix C to this report. The various legal issues are examined in four segments:

i) Common Law ii) Statutory Authority iii) Current By-laws dealing with Drainage and Grading iv) Liability Issues

i) Common Law

o No right to drainage of surface water exists o If water not flowing in defined channels containing the water, a “lower

proprietor” owes no service to upper to receive the drainage unless an easement has been acquired. Easements can be obtained through either through a grant or prescription (past open, continuous and notorious practice)

o Owner of lower land may erect obstacles necessary to keep surface water draining off higher land onto their land

o Riparian Rights – no resident may interfere with flow of water through natural watercourse. Can use natural watercourses to absorb artificial drainage. But there are limits to this type of practice.

o Resolution of common law disputes through civil courts ii) Statutory Authority

Municipal Act, 2001 The authority for the City of Ottawa to regulate lot grading and drainage is provided for in the Municipal Act under a number of different spheres including: Public Utilities (collection of stormwater and other drainage of land); and, Drainage and Flood Control, except storm sewers. Authority is given for the Municipality to do work at owners expense and enter onto land for purpose of doing so. Adequate service and notice needs to be provided (registered mail and/or placard). The municipality can recover costs of work as lien registered on the land in same manner as taxes or issue fines. The City of Ottawa Act, 2001 also enables the City to pass By-Laws for the

6 This section of the report was adapted from material prepared by the City of Ottawa Legal Services


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maintenance and management of its sewers, sewer system, sewage works, treatment works and watercourses

Planning Act There are three relevant sections of the Planning Act. The first requires applicants to provide draft plan of subdivision showing watercourses, drainage ditches and wetlands including the nature and porosity of soil and existing contours or elevations as may be required to determine grade. The second section grants authority to a municipality to approve a subdivision, by giving regard to health, safety, convenience and welfare of present and future municipal inhabitants, including suitability of the land for the purposes for which it is to be subdivided, and the conservation of natural resources and flood control The third section provides for the conditions to approve Site Plans, which enables a municipality to require owner to convey easements for the construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities of the municipality or local board

Building Code Act Ontario Building Code (OBC) is the authorizing regulation under the Building Code Act:

o Building shall be located and building site graded so that water will not accumulate at or near building and will not adversely affect adjacent properties

o Exterior foundation walls shall be extended not less than six inches above finished ground level

Conservation Authorities Act Regulations may be passed to deal with flood control situations. If in effect, will trump municipal by-laws


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Drainage Act

o Applies to works that are artificial or natural watercourses which have been artificially improved

o Municipal Drains typically found in rural area. Established through different methods.

o Not road ditches. o Do have duty of maintenance for these types of drains

iii) Current By-laws dealing with Drainage and Grading By-Laws

At present the By-Laws in Cumberland and Gloucester are not being actively enforced. Ottawa is aware of at least one case that went forward as a prosecution in Provincial Offences Act. Though not successful for municipality, there was no commentary as to whether the success hinged on the language of by-law Property Standards By-laws • 11 different by-laws passed by former area municipalities. • All still in effect. Consolidation has recently taken effect. • Former Ottawa Property Standards By-law divided into property standards for

residential dwellings, non-residential and vacant land 6(2) Untreated or inadequately treated sewage shall not be discharged onto surface of

ground whether into a natural or artificial drainage system or otherwise 6(3)/42(3) Roof drainage or surface water shall

(a) be drained from the lands so as to prevent recurrent ponding or entrance of water into a basement or cellar

(b) not be discharged on sidewalks, stairs, or neighbouring property 6(4)/42(4) Sub-surface drainage shall be installed where there is recurring excessing property

caused by surface water 6(5) Where eavestrough and downspouts are installed, the roof drainage shall be discharged

onto the ground at least four feet (1.2 m) from the building when physically possible 6(6) Subsection (5) does not apply where the downspouts discharge the roof drainage onto

paved area provided that water does not drain onto adjoining properties 6(7) Where eavestroughs, roof gutters and downspouts are installed, they shall be kept in

good repair, free from leaks and securely fastened to the building 6(8)/42(5) Catch basins shall be kept in good repair and free of debris and obstructions which

would prevent them from functioning properly


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• By-Law 2005-208 was recently enacted under which Section 4 stipulates ‘All lands shall be graded, filled up or otherwise drained so as to prevent the recurrent ponding of storm water”.

• Administration and Enforcement of Property Standards By-laws shall be pursuant

to the Building Code. Sewer Connection and Sewage Works By-law (2003-513) - Harmonized and Sewer-Use By-law (2003-514) – Harmonized

• By-law sets out a system to obtain a Sewer Connection Permit which allows for

approval for the connection to a public sewer. • Governs usage of City sewage works. Sewage works includes storm sewers • Not strictly stormwater – but erosion issues are encountered with improper disposal

of wastewater from swimming pool or wading pools. Section 18 of the by-law prohibits discharge of flows onto adjoining properties, into storm sewers, over a valley or ravine wall or such that is may cause erosion or instability of valley or ravine slope. Should contain discharge on own land through evaporation or use licensed hauler to remove wastewater.

iv) Liability Issues • Municipality can not be compelled to provide drainage for ratepayers land • Whether Ottawa chooses to pass a by-law is an exercise and a matter of municipal

discretion • There is no obligation of a municipality to enforce discretionary by-laws. Therefore

Ottawa is not automatically liable for an injury caused by the violation. • Once a decision is made to enforce a by-law, a municipality can make further

decisions as to the extent of the enforcement. Ottawa can consider practical issues such as economics and financial concerns as to the extent of enforcement so long as these decisions do not harm or do not contemplate real risk or harm to public health and safety. If a person would only suffer purely economic losses these decisions will not be struck down by the courts.

• Always exposed to possibility of liability. If we express an opinion on civil liability in neighbourly disputes, there is the risk of getting pulled into a tort claim for damages, though the instances where neighbours actually go to court in such situations are low.

4.2. PROVINCIAL GUIDELINES


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The Ontario Government, through the Ministry of Agriculture and Food, provides guidance on drainage issues through its web publication “Top 10 Common Law Drainage Problems Between Rural Neighbours”.7 In the publication it states:

“It has often been said that good drainage makes for good neighbours. Unfortunately, drainage of water is one the most common areas of dispute. Drainage disputes generally fall into the realm of Common Law (that means)… final solutions can be determined through the courts. Only the courts can make the final decision in the dispute. To obtain a ruling by a court, a civil action must be initiated by the damaged party. Even though the courts have the ultimate decision on drainage disputes, neighbours should try to reach some common ground, and solve the problem in a neighbourly fashion without going to court. “

The publication offers guidance on common law precedents. For example, no resident may interfere with the flow of water through a “natural watercourse”. Natural watercourses includes rivers and streams,

“However, private ditches and channels across low areas on one’s own property are not usually considered to be natural watercourses.”

Surface water, which is more relevant to this study, is stated to have,

“...no defined course. It is the water that falls as precipitation, but which finds its way to a natural watercourse by percolation or flow. Common Law can be confusing when it comes to surface water because, under most circumstances, it has no right of drainage and the law appears to deny the right of water to flow downhill.”

7 See URL http://www.gov.on.ca/OMAFRA/english/engineer/facts/98-015.htm


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My neighbour’s land is higher than mine, but can he simply dump his water on my land? If "his water" is surface water, then it has no right of drainage. Neighbours can either choose to keep their water on their property, or allow it to pass along onto property at a lower elevation. Similarly, property owners at a lower elevation can either accept the water from neighbours above them or reject it. However, once the water reaches a natural watercourse it must be allowed to continue to flow through all properties.

Can my neighbour dump the eavestroughs from his greenhouses onto my land? Again, the water collected off a roof in an eavestrough is considered to be surface water, and it has no right of drainage. It must be taken to a sufficient outlet. Since this water has been collected, the greenhouse owner could be liable for the damage that this water causes on the downstream land. Other examples of collecting water include: private ditches that are not natural watercourses, swimming pool water, road ditches, irrigation water, water collected in catch basins, or runoff from parking lots and yard areas. The same answer applies as previously indicated.

Can my neighbour force me to take down my trees on my side of our property line because he says their roots are plugging his tile drains? No, a neighbour cannot force anyone to take down the trees. However, if the trees are not removed and the situation is ignored, the neighbour may do some serious root pruning on their side of the property line that may affect the health of the trees. Some tree roots are known to travel more than 30 metres (100 feet). Unless absolutely necessary, trees should not be planted too close to property lines, especially water loving varieties such as willows and poplars. Conversely, tile drains and especially main collector tiles should not be installed too close to property lines that are already treed, or are likely to be treed in the future.

The publication then provides some illustrations to indicate how common law might be applied to a few specified situations:


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4.3. PROFESSIONAL GUIDELINES ON LOT GRADING AND DRAINAGE CONTROL

The Municipal Engineers Association and the Consulting Engineers of Ontario have published guidelines on recommended practices for lot grading and drainage control that dates back to 1981. The key recommendations from this report are as follows:

1. A grade control plan should be prepared for all subdivisions. The plan should be kept in municipal records as a measuring stick for changes in grading proposed by property owners (i.e. installation of a swimming pool, additions to buildings, sheds and garages).

2. A grade control plan should be prepared for as few as one lot or small infill

development. It is considered to be considerably more costly to correct a drainage problem than it is to design grading at the outset and implement proper control.

3. The grade control plan must embody the principles of the storm drainage plan.

Lack of good grading design will result in drainage problems that may lead to damages due to flooding, drainage complaints, insurance claims, neighbor conflict, odour areas due to the presence of stagnant water perhaps resulting in vermin and insect nuisance and health hazards.

4. In all but a very few cases, a detailed site plan based on the grade control plan

should be prepared by the person undertaking to site a building. Such an exercise forces the person to comply with the grade control plan.


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5 CURRENT SYSTEM Based on interviews with City staff, it was evident that drainage issues should be examined by looking at three stages in the life cycle of a property:

1. Pre Construction

• In the approvals/permitting stage the City requires that the design of subdivisions, site plans and infills follow sound municipal design practices to prevent drainage problems from occurring in the first instance. The Infrastructure Approvals Division generally manages the design review process, which includes stormwater management.

2. Construction

• In the construction stage the City’s focus is ensuring that what is built conforms with design and to identify any other issues that could pose drainage problems. The Construction Services Division enforces the conditions set out in the subdivision and site plan agreements and is also involved in periodic inspections thereto. The Building Services Branch enforces the minimum standards set out in the Ontario Building Code and is involved through inspections of buildings at key stages of construction.


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3. Post Construction

• In the post construction stage, problems generally arise because of

something that one or more homeowners have done to alter the grading and consequently the flow of stormwater.

• Drainage problems could involve any number of branches within the City including:

o Call Centre (fields call from residents); o Surface Operations (water on roads and ditches within

the road allowance); o Utility Services – Customer Services and Operational

Support (responsible for sewer backup and water main breaks);

o Legal Services (dealing with interpretations, disputes and claims for damages);

o By-Law Services (receives complaints); o Building Services (inspection of buildings for

conformance to the Ontario Building Code); o Construction Services Development Division (responds

to residents in new “uncompleted “ subdivisions); o Municipal Drainage Management (responsible for 700

municipal drains in rural Ottawa); and o Utility Services - Wastewater and Drainage Services

(responds to complaints from homeowners, Councilors and City Management).


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5.1. PRE CONSTRUCTION

Subdivision and Site Plans For new subdivisions the pre construction stage generally involves the submission of plans by developer/builders to the City’s Infrastructure Approvals Division (IAD) for approval. On grading issues, this process begins with the submission of an Overall Grade Control plan. Homes are generally situated on plans as square boxes, not the actual size and footprint of the home that will ultimately be constructed. At this stage of review, the City collects a security deposit related to overall lot grading. The conditions of approval, which include grade control considerations, are ultimately included in subdivision agreements. While these agreements are useful in specifying intent, until recently there was no consistent agreement across the City and enforcement provisions are difficult to apply after security deposits have been returned. Going forward, a consistent subdivision agreement is being used in all parts of the City. Site plans generally follow a process that is similar to subdivisions except that grade control plan is for a specific site and not a general area. Once IAD gives its approval for a subdivision or site plan, the developer/builder submits an application for a building permit to the City’s Building Services Branch. Building Services is primarily concerned with the proposed building construction meeting the Building Code and applicable laws, which may include municipal By-Laws. The Building Code generally requires positive drainage from the structure and no adverse consequences to adjacent properties. In regards to overall grading concerns, Building Services sends the permit application, along with a detailed lot-grading plan, to IAD for review and approval. Once IAD gives its approval— and Building Services is satisfied that all other aspects of the Building Code and applicable laws are respected—a Building permit is issued. No security is supplied with the building permit application for drainage, nor is there presently any authority to do so.


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Infill and Home Renovations When an application for a building permit is made to Building Services for an infill home or for major renovation, the plans are sent to IAD to review the drainage and stormwater management issues. Building Services will only issue a permit once IAD is satisfied that proper drainage design practices have been followed. No specific fees are collected for the inspection of drainage issues (as they are part of the building permit fee) and no security deposits are collected to ensure lot grading conforms to the design for infill lots. Building Services has limited resources to enforce the Building Code Act and the Ontario Building Code. In the first instance they want to ensure that a developer/builder has the intent to follow the Building Code. Thereafter, their inspection strategy is to focus on areas with the highest degree of risk to the public, which would not normally include lot-grading beyond ensuring positive drainage from the foundation of the building. Building Services enforces the Ontario Building Code with the resources and expertise available. For infill, renovations and additions, verification of compliance with approved grading is undertaken visually to ensure positive drainage from the building foundation. More often than not, the final inspection is undertaken and the occupancy permit issues at a time when the final lot grading and landscaping is incomplete. Where Building Services observes a deviation from the permit application, a survey is requested. Building Services staff are not specifically trained to review lot grading. The drawing and design submissions that come to Building Services for grading plans for an infill must be prepared by a professional (engineer, architect, Ontario Land Surveyor, Certified Engineering Technologist). There is more flexibility in design submissions for a renovation with no specific requirement for professional involvement. In this regard, non-professional submissions do not always provide adequate detail in regards to drainage and are considered to present a greater risk for post construction problems. The flexibility is due to allow some smaller ‘price sensitive” projects to proceed without the burden of costs that might reasonably be avoided. It is worth noting that due to limited resources and tight timelines, Building Services does not visit the site to confirm the completeness and accuracy of data provided by the homeowner prior to issuing a building permit. This is and remains the legal responsibility of the homeowner. For this reason, and because records are not always


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accessible, it is possible, although rare, for Building Services to issue a permit for a home or addition that falls on an easement or a catch basin. All background research on the property is a homeowner responsibility. Requiring a legal survey with a permit application for renovations is a costly imposition for homeowners of older properties. The requirement, which would disclose any easements, would necessitate the homeowner to spend approximately $2,000 to obtain an up-to-date survey. This would be an obvious hardship, particularly for renovations costing less than $10,000 (i.e. decks, porches etc.). At present, surveys are not required, but homeowners take responsibility for the accuracy of the data provided. There are other inherent problems related to the inspection of infills and home renovations:

• The lack of security deposits for grading pursuant to a By-Law makes enforcement difficult to achieve;

• There is no legislative notification when grading and landscaping works are being performed and when inspection might be desirable;

• The Ontario Building Code dictates issuance of the final occupancy permit. Final landscaping of the property is not a legislated pre-requisite.

• For infill construction, due to smaller side yards and existing grading and abutting properties, drainage may be problematic despite good intentions and professional involvement. In some instances there is simply not enough room to ensure both positive drainage from a building and achieve no impact on neighboring properties; and,

• Grading is often delayed because homeowners often “run out of money” near the end of a project, or weather conditions delay final landscaping.

It is clear that the permit process for infills and additions is meant to provide a rapid and non-onerous review for minor construction activity. If a site plan process was followed for every new infill home or major addition, each project could take up to one year or more to get the necessary planning and building permits, depending on whether appeals are filed with the Ontario Municipal Board.


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5.2. CONSTRUCTION

During the construction stage there is generally minimal supervision and review of the grading by the City. For the most part, the onus is on the developer/builder to ensure positive drainage for the subject and adjacent properties. For new homes, there is generally no inspection of the elevations for the underside of footings or top of foundations. Meeting these elevations, particularly for the footing, is essential to ensuring that basements do not flood in case of sewer back-up. Staff estimates that the elevations for the underside of footings or top of foundations may be outside of acceptable tolerances for approximately 1% to 5% of new homes. For subdivisions, there is a requirement for the developer/builder to provide an as-built overall grade control plan to the City for review. Once the City is satisfied with the plan, the security deposit submitted per the subdivision agreement is returned to the developer/builder. There is no requirement for the developer/builder to provide as-built detailed lot grading plans. Homeowners, who move into “half-built” subdivisions when grades are not finalized, frequently report drainage complaints. Often problems are caused when a homeowner changes the grade from what the builder had established to install a pool or for landscaping purposes. City staff report the need for education for both builders and homeowners about “on construction” responsibilities and expectations. For infill properties and additions not subject to site plan control, there is no security deposit and no requirement to provide any sort of as-built plan as there is no legal requirement or authority to require this. Only limited reliance can be placed on the building permit process to ensure no adverse drainage affects for infills and additions. The focus of the building permit is the construction of the building. More often than not, the final impact on drainage is only ascertained well after the building is complete, which is too late to rectify certain problems, such as the height of the foundation. One problem is that there is no by-law in place regulating changes in grade and no security deposits to promote compliance.


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5.3. POST CONSTRUCTION

After the City’s design and construction review process is complete, and security deposits returned, the homeowner takes over. Most homeowners expect to have the full use and enjoyment of his or her property and are unaware of drainage management responsibilities and issues. These responsibilities may be specified in subdivision agreements, or in some of the former municipalities through By-Laws on lot grading and drainage. Homeowners are also subject to Common Law precedent that gives water no right of drainage from one property to another. Drainage problems can occur in new subdivisions or older established neighborhoods. The activities of homeowners that affect drainage are pervasive. They generally do not have knowledge of drainage and their activities are largely unsupervised. There are no deposits on hand with the City to fix problems should the need arise. And, given the volume of minor and major changes in lot grading from landscaping, a blanket system of review, approval and permitting would be both resource intensive, intrusive and politically unacceptable. One of the reasons why homeowners are unaware of their obligations and commitments regarding grading is because no one tells them or new homeowners do not review the covenants attached to their deed of transfer. Builders and real estate agents are reluctant to highlight anything that might negatively impact on a potential purchase. In addition, real estate lawyers may not explain the significance of easements and catch basins on private property to their clients, or if they do, homeowners do not remember these later on when they commence landscaping activities. To date, the City has done little to educate residents of their obligations and only deal with problems as they arise. Many homeowners have expectations that the City will remedy all problems of standing water, including those on private property. One example is ditches. While the City takes responsibility for the maintenance and operation of ditches inside the road allowance, it does not do so when a ditch is on private property. This leads to complaints by homeowners.


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5.4. SPECIAL ISSUES FOR THE RIDEAU VALLEY CONSERVATION AUTHORITY

The City of Ottawa is one of a number of municipalities that are members of the Rideau Valley Conservation Authority (RVCA). The authority works to protect the natural resources in the Rideau Valley watershed through a number of programs, some of which relate to drainage systems and septic system approvals and inspections. Ottawa has delegated to the RVCA the authority under the Ontario Building Code to review, approve and inspect septic systems within the City. This work is closely linked with lot grading and drainage, as the system design needs to address certain grading tolerances to ensure the proper functioning of the septic system in rural areas. The RVCA also investigates about 50 complaints each year about standing water, particularly as it might relate to malfunctioning septic systems. RVCA staff report that they often encounter drainage problems in estate lot subdivisions and infills because of the disruption in established drainage patterns. Staff reports that problems often arise when a new home is built in a rural setting where grades need to be altered to meet current septic regulations. In altering the grade, surface water runs onto a neighbour’s property, often an older country home that may have sat problem free for a great many years. There is not total agreement on the nature and extent of drainage problems on lots with private services. IAD believes that problems may stem with construction practices rather than design considerations. RVCA believes that the City needs to increase the review of all rural building permit applications to determine if an adverse impact on drainage to a neighboring property might result. For post construction, they similarly believe that site alteration should not be permitted that would adversely affect a neighboring property, although they note that special rules would need to be developed to address the unique needs in the farming community. Staff at the RVCA believes that the review and approval of septic systems should be more integrated with the review and approval of lot grading plans. For post construction, RVCA sees themselves as a resource to help the City deal with technical issues. They believe By-Law services would be an appropriate initial point of contact for complaints by homeowners.


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Pool Enclosure Permits Pool enclosure permits only deal with regulations related to the fence around the pool. Because of a by-law in former Gloucester, pools constructed in the east end of the City are subject to conditions, which include a review of lot grading.

6 DRAINAGE COMPLAINTS

6.1. NATURE OF COMPLAINTS8

Generally standing water on private property occurs:

• After major precipitation, particularly where appropriate drainage conditions are not respected;

• Where actual grading conditions do not conform with design; • With improper maintenance, especially on open ditches • Where the homeowner changes the grade of a property; and, • When established drainage flows are altered (i.e. change in direction of

eaves-through, sump pump alteration, drain obstructions, etc.)

Residents may be concerned about grading and/or drainage because of:

• Inability to use property or residence; • Damage to landscaping; • Aesthetic issues (i.e. maintenance of roadside ditches) • Potential health or safety hazard.

The majority of private property drainage complaints arise when homeowners make alterations to their property by changing established or approved grading, usually because of landscaping or other cosmetic reasons. Another source of problem are obstructions such as swimming pools or sheds. When the City issues a pool enclosure permit, and may offer advice to the homeowner on lot grading, there is no authority to enforce finished grades. As well, some homeowners erect pools and fail to apply for the required pool enclosure permit. Some people change property grades by filling in swales and ditches specifically designed to facilitate drainage. Many homeowners believe they are entitled to make whatever changes they want on their own property and may not be aware of the consequence of altering an established drainage system.

8 In this section, complaints refer to requests for information as well as specific problems related to standing water on private property.


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Sometimes a complaint arises because of an on-going dispute among neighbors. In this circumstance the City gets “used” by one neighbor to annoy another. In responding to these complaints City staff are unfortunately exposed to extreme behaviour by some residents. Another area where homeowners make complaints is the periodic maintenance of roadside and off-road ditches in which standing water is often the motivation for the complaint. While the City has a program and budget to maintain roadside ditches, it has no such system for off-road ditches. Many homeowners believe that since the public road is ultimately draining into their off-road ditch that the City should take full responsibility.

6.2. EXTENT OF DRAINAGE COMPLAINTS

A system to register and monitor drainage complaints was designed in 2002 by “Environmental Programs and Technical Support”. It was intended that the system would track complaints from inception to resolution. This system has not been used as intended and, at best, has captured only a portion of the complaints lodged through the Client Information Centre and Call Centre. This system would need to be simplified and made far more “user friendly” to be make it practical for on-going use. A review of available records and best estimates by Wastewater and Drainage Services reveals the following about the extent of drainage complaints along with the allocation of the drainage supervisor’s time in a typical year.9

9 These estimates were offered as the amount of time spent by the individual at the City responsible for the management of drainage complaints.


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Nature of Complaint Number of

ComplaintsPerson

Hours per year

Calls and emails addressed immediately by rapid response with general information

1,400 120

Calls and emails redirected to other areas in the City 200 20 Complaints that resolve themselves before staff review or intervention

50 10

Calls and emails addressed by providing specific property information

200 35

Resident complaint about change in grade by neighbour (caused by swale blockage, landscaping, sheds, pools)

300 600

Councilor complaint about drainage issue 100 200 Complaints about problems caused by new infill development

100 200

Complaints about new site development 25 50 Resident complaint based on unreasonable expectations

75 150

Complaints about blocked catch basins or sink holes 50 100 Complaints about downspouts on eaves-trough 50 100 Complaints motivated by bad neighbour relations 50 200 Complaints that never get a response 200 0 TOTAL 2,800 1,785 The following estimates pertain to these complaints.

• About 80% of the complaints are in urban areas; • About 60% involve single family homes; 15% for semi-detached • Most complaints are from either older established neighborhoods where infill

and additions are common; or in new developments. Taken together these would represent about 80% of all complaints.

Priority has been given to the most vociferous complaints and those registered by a City Councillor. Inadequate or inaccessible records (i.e. overall grade control plans, detailed lot grading plans, as-constructed records, drainage easement Reference Plans, complaints tracking) make it more difficult to solve drainage complaints.


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Of note, complaints also arise and are dealt with in other areas within the City:10 Nature of Complaint Number of

ComplaintsBy-Law Services 1,000Rideau Valley Conservation Authority 50Surface Operations (roads and ditches) 100Building Services 200Municipal Drainage 50Utility Services (Catch basins) 100TOTAL 1,500

6.3. LOCATION OF COMPLAINTS

While drainage complaints arise in all parts of the City, there is a concentration in the East end and rural areas.

6.4. TIMING AND SEASON OF COMPLAINTS

It is estimated that about 50% of all complaints arise in the hours and days just after a major summer storm. About 25% of all complaints occur during the spring snowmelt, and the remaining complaints arise in the winter and are caused by ice accumulation.

6.5. PROCEDURES FOR MANAGING COMPLAINTS

The City employs one full time inspector in Wastewater and Drainage Services Branch to respond to complaints. Although Drainage and Wastewater Services has responsibility for complaints, it is common that complaints are received elsewhere within the City for a response. Often complaints are made through Councilor’s offices or referred from senior City staff. The overall workload for the City increases when complaints are not routed properly. Sometimes residents register their complaints with multiple departments hoping to expedite a resolution to the problem. This often happens in an emergency situation or when they are dissatisfied with the level of service they are receiving.

10 It is likely that some of these complaints are included in the estimates provided on the previous page by Wastewater and Drainage Services.


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The need for coordination among City departments and branches is essential to the effective prevention and management of drainage issues. While the issue touches many different departments throughout the lifecycle of a property, there is no “quarterback” on “guru” on drainage at the City to oversee both pre and post construction. The City has yet to establish procedures or checklists in the management of complaints. Each complaint is addressed as a unique file. The drainage supervisor exercises judgment in determining which complaints to respond to and in the manner of the response. With the large number of complaints that are received this creates a rather haphazard, inconsistent and chaotic environment. Beyond not having a coordinated system or adequate resources and manpower, there are many other issues that impede the resolution of drainage complaints. These include:

• Access to records, in particular: grading plans; stormwater management reports; subdivision agreements, easement plans; and, building permits

• Low levels of tolerance for short term periods of standing water; • Neighbours that bicker with one another and use drainage issues as a method

of annoyance; • Pumping of water from basements into roadside ditches in rural areas; and • Variable ownership and responsibility for rear yard catch basins (e.g. the former

City of Ottawa does not own private property catch basins).


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6.6. BY-LAW ENFORCEMENT

While most drainage complaints are funneled to Wastewater and Drainage Services, Ottawa’s By-Law Services group still respond to approximately 1,000 complaints per year. Enforcement staff indicates that most issues they see are not technical and can easily managed with “common sense” solutions. A typical intervention would be to ensure downspouts from eavesthrough systems are not directed towards a neighbour’s property. By-Law Services believes that the large majority of residents are easily persuaded to remedy simple drainage problems. The presence of a uniformed officer with the authority to issue fines is seen to represent a powerful incentive. In situations where the cause and effect of a problem is not “black and white”, By-Law would prefer that someone in Public Works make a technical review and determination. They also anticipate problems persuading homeowners to restore grades where substantial investments have made in a garden, fence, pool or shed. In such circumstance, By-Law recommends issuing an Order to Comply for grade restoration. A failure to comply would then give the City the authority to initiate the work and recover costs from the homeowner in a manner like taxes. The all-inclusive cost for per By-Law Services officer for labour and equipment is $40.71 per hours. There is no recovery of costs through fines as costs associated with enforcement and collection far outweighs what might be collected in fines. By-Law reports that 95% of all incidents are corrected without the need to impose fines. Enforcement officers believe that the simple and clear City-wide By-Law is needed on drainage matters that state no resident can alter the grade of a property in a manner that adversely affects another property.


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7 CASE STUDIES

7.1. CITY OF BURLINGTON

The City of Burlington, population 300,000, has one staff member that deals with lot grading and drainage for both pre and post construction. Pre Construction: The first step is the submission of an overall lot-grading plan for City review and approval. Once approved, the City provides minimal inspection and generally relies on the developer/builder’s engineer to certify that the intent of the grading plan has been met. The City, which previously inspected the elevation of the underside of footings, no longer does so and has reported few if any problems as a consequence. There is also no requirement for an as built lot-grading plan. Post Construction: The City has two By-Laws that deal with grading and drainage issues. The first By-Law, 21-1997, prohibits the obstruction of any drain and regulates the altering of private drains. For purposes of the By-Law a “drain” includes a sewer, ditch, swale, culvert, storm sewer, manholes and catch basins. The By-Law states that no one shall:

“alter, fill, obstruct, block or in any way interfere with a private drain, including allowing a private drain to fall into disrepair such that the flow of storm, rain, ground, surface or subsurface water from or to another property or other properties is interfered with to the extent that the owners, lessees or occupants of such other private property suffer damages or are inconvenienced.”

This prohibition does not apply where the person obtains the consent in writing of the owners of all properties that would be affected by such changes to a private drain. The By-Law also requires that

“every owner, lessee, or occupant of land shall alter, relay or repair any private drain as may be required by the Director. Where the owner, lessee or occupant, or any of them, are in default of doing any matter or thing required to be done under this By-Law, the Director may cause the matter or thing to be done and the cost of so doing shall be paid by the said owner, lessee or occupant, and may be recovered by action or in a like manner as municipal taxes.”

The By-Law does not apply to:


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“lands on which construction is actively proceeding in accordance with a Building Permit issued, for which grading plans have been approved by the Director of Engineering, pursuant to the Building Code Act.”

Those in violation of the By-Law shall, upon conviction, forfeit and pay a penalty not exceeding $25,000.00, exclusive of costs, for each offence. City of Burlington staff report that when complaints arise there is nearly unanimous compliance from residents to the instructions given by enforcement officers. The presence of a uniformed officer seems to carry considerable weight with residents and the City has never had to resort to the court system to resolve a dispute. To help clarify issues, the City has an accessible record of all grading plans on file for easy reference. The City also owns all catch basins and has easements for all. Burlington By-Law 6-2002 applies to protect and conserve topsoil and for prohibiting or regulating the alteration of property. The By-Law requires that an alteration permit be obtained such that the City can satisfy itself that the altering of the grade of removal of topsoil

“will not cause erosion, blockage or contamination of a watercourse, flooding, ponding or a detrimental effect on the amenities of adjacent lots. “

“Ponding” is defined as:

“the accumulation of surface water in an area not having drainage there from which the lack of drainage is caused by the placing or dumping of fill, altering of Grade of removing of topsoil.”

Whenever someone applies for a building permit they are given a questionnaire that would alert them to the possible need for a site alteration permit. Answering, “yes” to any one of 8 questions is an indication that a permit is required. About 500 complaints are received each year with about 250 requiring a site visit. It takes one person two days per week to handle all complaints.

7.2. CITY OF KITCHENER

The City of Kitchener, population 200,000, is reported to have a similar topography to that of Ottawa. Kitchener has both considerable experience and success with private property drainage with a system that is both simple and efficient. On the development review and control, they rely heavily on the work of outside professionals to certify that proper drainage practices have been followed. For post construction complaints, they


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provide a very limited service that is based on property owners resolving problems on their own. Pre Construction: For subdivisions and site plan, an overall grade control plan is required that would show the elevations of the four corners of the lot as well as coordinates for mid and front of property. At the next stage a detailed lot-grading plan must be submitted before a building permit can be issued. The detailed plan, which must be accompanied by a $500.00 lot grading deposit, must demonstrate compliance with setback requirements as well as show grades that meet proper drainage standards for both the subject property as well as adjoining lots. The consultant that prepared the overall grade control plan must certify the detailed lot-grading plan. At the completion of construction, and within 12 months of occupancy, the professional engineering firm must send a letter to the Chief Building Official indicating compliance with the plan at which point the municipality issues a “Grading Certificate” and then returns the $500.00 deposit. In effect all inspections and certification are completed by the developer/builder’s professional consultants. For infill properties a grading consultant must submit a plan with the Building permit Application that demonstrates compliance with set backs and provides a drainage plan for the subject property plus 6 meters in all directions. A $500.00 grading deposit must accompany the application, which is returned once the professional grading consultant certifies that the actual works conforms to the plan. Other than what is provided in the Building Code, there is no provision for grading control and review for additions. Post construction: Kitchener receives about 200 complaints per year about standing water on private property. City staff is guided by the Property Standards By-Law, which states, in part:

665.12.1 Safe condition - environment protected Exterior property areas shall be maintained in a safe condition and so as not to detract from the neighbouring environment. 665.12.5 Ground cover - erosion control Suitable ground cover shall be provided and maintained to prevent erosion of the soil and so as to be in harmony with the neighbouring environment. Where grass forms part of the ground cover, it shall be resodded or reseeded as often as is required to maintain the grass in a living condition. In no event shall resodding or reseeding be required more than once in any given year. 665.29.3 Downpipe - sump pump - grading - standards Downpipes, sump pump discharge lines and grading shall be designed, provided and maintained so as to discharge water run-off away from the building


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and to prevent flooding, erosion and other nuisance to neighbouring properties

By-Law Services provides first response, although they will decline to intervene in the period immediately after a storm. Most problems stem from residents not being aware of drainage issues and responsibility. Most residents respond positively to By-Law officers and problems are quickly addressed. Most issues are readily resolved and none have gone to court.

7.3. CITY OF TORONTO

Pre Construction: The procedures that follow apply for infill housing not otherwise subject to Sub-division or Site Plan Approval. In Toronto, the owner is responsible for hiring a “Grading Consultant” who must prepare, seal and sign a site-grading plan, which must be submitted with the building permit application. The owner must submit a “Letter of Undertaking” that affirms their responsibility to engage a Grading Consultant. The plan must conform to the City’s “Lot Grading Criteria for Infill Housing”, which means that no new instances of ponding water will occur on existing adjacent properties and the subject property as a result of construction. The Grading Consultant must also provide filed review to ensure compliance with the Site Grading Plan and issue a final “Lot Grading Certificate” to the Building Division upon completion of the final grades. Grading Consultants must be one of: (a) an Ontario Land Surveyor; (b) an engineer registered with the PEO; (c) a Registered Landscape Architect; or (d) a member of AATO or OACETT. To support these processes, the City provides documentation that includes “Grading and Drainage Procedure and Requirements” and “Lot Grading Requirements for Infill Housing” and a form for the : Lot Grading Certificate”. Post construction: These issues are generally managed through City By-Laws. In short, the City simplifies its response to making any determinations by placing responsibility for removing standing water exclusively on the affected property owner. In other words, they do not consider the cause; they simply direct the homeowner to remove standing water on their own property. According to By-Law Services even if a neighbor causes the problem, the responsibility for remediation rests with the affected homeowner. Only where there a registered grade control plan in a subdivision would By-Law Services consider an order to restore a change in grade. To fix recurring and significant problems the City would expect the homeowner to install and maintain a rear yard catch basin. The City does not take ownership or


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easements over rear yard catch basins. Some residents might put up retaining walls to fix a problem, even though it may result in transferring the problem to their neighbors. The City does not get involved in disputes between homeowners and does not give advice on drainage matters. The City is segmented into many different sections making it very difficult to estimate the number of complaints received. The original City of Toronto receives about 750 complaints per year. By-Law only gets involved when a complaint is made. Since West Nile, the number of complaints has increased. Toronto, which was subject to an amalgamation in 1998, does not operate with a harmonized set of By-Laws on lot grading and drainage. Various former municipalities have By-Laws that remain in force on the placing or dumping of fill, the protection of the stormwater management system. In particular Municipal Property Standard 629-11 requires that yards be graded and have suitable ground cover to prevent recurrent ponding of water and to direct the flow of surface water away from the walls of all buildings. In addition all catch basins, storm drains, ditches and swales shall be maintained free from defects and obstructions. The City of Toronto has also developed protocol and plans when a health hazard related to standing water on private property is identified.

7.4. CITY OF OAKVILLE

Oakville, population 150,000, manages pre and post construction drainage issues through their Development Services Office. Pre construction: For subdivisions an overall grade control plan, signed by a registered engineer, must be submitted to the City for review and approval. Thereafter a detailed lot-grading plan must be submitted that must include the approval of the engineer that prepared the overall grade control plan. A Security Deposit is taken by the City to cover a wide range of issues, including lot grading (i.e. there is no specific deposit for lot grading). At project completion the builder’s engineer must submit a lot-grading certificate indicating compliance with the detailed lot-grading plan. City staff then inspects the property for verification and to ensure all drainage matters are addressed. In this process there is no requirement for “as-built” drawings and there is no review/confirmation for the underside of footings or top of foundation.


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A similar process is followed for infill properties except that a specific security deposit for lot grading is required. The deposit varies depending on the scope of the project. For infill properties, the engineer must certify that the drainage plan will have no adverse impact on neighbouring properties Post construction: Resident drainage complaints are given only minimal attention by the City. The authority to remedy problems is contained in By-Law 2003-021 on site alteration. The 24 page By-Law requires, among other things, that a permit be required to change the grade of a property such that the City can satisfy itself that it will not result in flooding or ponding on neighbouring properties. The City receives about 200 drainage complaints per year. It employs two full-time inspectors in development services and they spend about 10% of their time on post construction drainage complaints. The City attempts to provide a minimal level of intervention on disputes among neighbours, which given current budget constraints is considered to be appropriate by both Council and staff.

7.5. CITY OF HALIFAX

Halifax has a population of about 400,000 covering an area the approximate size of PEI. It employs three full-time “environmental officers” whose primary duties are to respond to about 200 complaints per year. The weather and topography around Halifax is said to make the region prone to drainage problems. An Internet search of Canadian web sites revealed only one major study on private property drainage. The City of Halifax report titled, Report on Drainage - Private Property (December 1997) included the following key findings:11

• Where it is determined to be advantageous to do so - the Municipality will construct “community systems” to resolve water and ice problems in the street, and recover full costs from the owners of land for this work

• That the Municipality develop, implement and administer a By-Law to regulate

the maintenance and alteration of stormwater systems on private property.

• The Municipality will accept ownership of stormwater systems on private property, if a number of conditions can be satisfied (e.g. constructed to City specifications)

11 Detailed recommendations from this study are included in Appendix B of this report


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• The Municipality will provide advice to property owners to assist in the resolution of drainage problems on private property. If the situation is complex or the solution is not clearly evident, or where the Municipality may unreasonably expose itself to liability by providing advice, the property owner will be advised to retain the services of a consulting engineer or other professional, and/or a contractor. Where the solution is obvious, the Municipality may provide advice to the property owner, which is general in nature only. It may also be appropriate that the Municipality write the property owner to document the advice provided.

• The Municipality is often requested by property owners to investigate and assist

regarding a drainage or flooding problem which has been caused by the action of a neighbouring property owner (i.e. from diversion of stormwater, re-grading of land, construction of a ditch, filling of the property). These matters are civil matters between adjacent owners, and not a matter for resolution by Municipal By-Law. The Municipality may provide advice in an attempt to resolve such disputes amicably, but must be careful not to interfere with the legal rights and responsibilities of property owners involved in a dispute.

The City of Halifax adopted this report as the operational policy for staff to follow in managing drainage complaints. The prime objective for drainage management is to protect the integrity of the City’s overall drainage management system. The “golden rule” for officers is to provide very limited assistance when responding to “neighbour to neighbour” complaints. As a courtesy, these complaints are dealt with by one site visit where advice is given to all affected parties. This task represents about 50% of the overall workload for environmental officers. Most of the authority to deal with drainage problems is derived form the Nova Scotia Municipal Government Act. Halifax recently went through an amalgamation and they are in the process of consolidating and harmonizing By-Laws. The “environmental officers” resolve most problems and very few end up in court, perhaps one per year.


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8 ANALYSIS OF OTTAWA’S POLICIES AND PRACTICES The analysis in this section considers Ottawa’s current policies and practices for private property drainage. It is based on a review of current systems, review of practices and policies of other cities, the views of Ottawa staff from a comprehensive roundtable, and our own experience serving both municipal government and the development community. Pre Construction: Ottawa follows many of the policies used by other cities in development review and control to prevent drainage problems. There are no clear omissions or flaws in the system. Like other cities, there is general reliance on developer/builders and builders to follow appropriate drainage management design practices. In relative terms, other cities tend to rely more on consultants to certify appropriate drainage practices. Other cities also have a range of documentation that describes the review and approval process that Ottawa should review to ensure best practices are being followed. There has been some inconsistency in the application of development control across the City. This is a legacy of past practices of former municipalities. It is expected that the new subdivision agreement, implemented Citywide in 2005, will provide a consistent platform. Construction: Building Services and Construction Services will never be in a position to provide complete and full-time inspection services for construction activity. Consequently, they follow a “risk management strategy”, which applies resources to areas believed to present the highest risk or threat in terms of health and safety to homeowners and the highest risk and liability to the City. The risk associated with drainage is considered to be low; consequently, it receives limited attention. For subdivisions, Construction Services is on site more frequently and can assess numerous lots in a relatively efficient manner. It is a greater challenge for Building Services since they are often dealing with a single lot or project at a time. Consequently, Building Services typically looks for positive drainage from a structure, and do not routinely investigate drainage impact on neighbouring properties.


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A weakness in the system is the lack of knowledge that homeowners have about the inspection process and more generally about drainage management practices and responsibility. Homeowners might well believe that the issuance of a permit provides some sort of guarantee against poor workmanship, poor design or potential drainage issues. This is not the case. Beyond Building Services reassessing the risks associated with drainage, which would have implication for both resources and staff training, the City needs to address the issue of developer/builder and homeowner education. This would include information about the following:

• Proper design standards • Need for inspection during construction • The role of Construction Services and Building Services during construction • Risks that the homeowner needs to manage

Post Construction Most drainage issues brought to the City by homeowners are a simple request for information. Initial Routing of Complaints The City has made a strategic decision to make itself accessible to residents through the Call Centre. Today, about 80 percent of the 4,000 complaints received each year by the City first come to the Call Centre. The remaining 20 percent come from Councilor’s offices and other program areas:

01020304050607080

% Call Centre% Other Sources


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It is clear that the City should encourage all initial drainage complaints to be routed through the Call Centre. It is simple, efficient, and systematic and offers the opportunity to gather data about the nature and extent of complaints. Call Centre operators can handle the level of technical knowledge and expertise required to answer the large majority of inquiries by homeowners about drainage. Providing Basic Information to Residents About 70 percent of all calls that come to the Call Centre can be addressed immediately over the telephone.

0

10

20

30

40

50

60

70

% Calls SeekingBasic Information% Other Calls

It would be nonsensical and uneconomic to re-route the calls that come into the Call Centre seeking basic information to an office with expertise on drainage issues when it is simply not required. The time spent to transfer and reconnect with the caller, then have them repeat the reason for their call to another party, would simply be a waste of time. It would be an even greater waste of time to initiate a site visit for complainants when their questions can be easily answered through a phone call. The key question is whether providing basic information on drainage issues is a service the City wants to provide? The City has the option of telling callers that it does intervene on private property drainage. However, given the sheer volume of calls,


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expectation of service, practices in other municipalities, and the opportunity to remedy problems at an early stage before they become more complex and costly, there are strong reasons to offer such a service. In regards to cost, it is estimated that each call would take on average about three minutes. That means 2,400 calls would require 120 hours on the telephone. This is a relatively insignificant proportion of total Call Centre time. There would be some additional costs related to training and the provision of material (i.e. pamphlets). The typical questions and responses would be as follows: Frequently Asked Question I know we have had a lot of rain, but there are puddles of water on my property? I am worried about my neighbour’s new garden that is very near the property line Do I need a permit to alter my garden There is water in the ditch by the road near my property? My neighbour has pointed the downspout from his eavesthrough on my property? I am worried about standing water on my property (or neighbours property) because of West Nile. How long does it take for insects to breed in standing water? I want to lodge a complaint about my neighbour. They have altered their property and water is draining onto my yard. For each inquiry, the Call Centre would direct the caller to consult the City’s web site or the information pamphlet. Consideration should also be given to having the Call Centre initiate the distribution of the pamphlet via the mail. The group that is responsible for drainage management could take the lead in providing content for the pamphlet. Responding to Emergency Complaints Clear instructions and priority needs to be given to situations that are of an emergency nature. Systems and procedures exist to handle such calls. Residents that report such a problems to the Call Centre, such as flooding from a blocked catch basin or burst pipe, are immediately routed to the First Response Team at Utility Services. This Team is trained and equipped to diagnose and respond to emergency complaints. They operate 24/7 and have the resources and systems to provide an immediate response to an emergency situation.


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Question to Call Centre There is flooding in my area. It is coming from an overflowing catch basin and manhole cover? The ditch is flooding beside my property and water is flooding into my basement? Responding to Unreasonable Expectations Experience shows that there are many residents that will not be satisfied with answers given by the Call Centre about what the City does and does not do in regards to drainage problems, and will take the time to explore other avenues within the City to obtain the service and action they expect. Many of these calls end up in a Councilor’s office. It is critical that whatever budget the City deploys to handle drainage complaints not be diverted into providing unproductive responses. The responses provided by the Police Department to certain crimes and complaints might provide a useful analogy. They do not always launch an investigation whenever a crime is reported and may not send a police officer to the scene of a crime. While it has taken many years for residents to accept that a uniformed officer will not show up at the scene of a “break and enter”, this is the reality of applying police resources where they will have the most impact. The issue with “unreasonable expectations” may result from amalgamation whereby residents have resurrected long-standing disputes with a neighbour hoping a new administrative regime will respond more vociferously. Expectations may also have been established by the services offered by some of the former municipalities that intervened in minor drainage problems Where it is clear that a service demanded by a resident is not offered, largely because it would not be effective, it is critical that City staff not be diverted from their work. The Call Centre is the first line of defense. Thereafter, staff that deal with drainage problems must be able to readily decline service when a complaint does not meet the criteria that warrants intervention. It is vital that senor management and council support staff in this regard.


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Responding to Complex Situations Homeowners are understandably upset when water does not drain from their property. Whether the problem is of their own doing, caused by a neighbour, or caused by a sequence of events and changes, they want the problem fixed. They may need help to identify the cause of the problem, or may want someone else to fix it. This is when homeowners turn to the City for help. Problems typically arise when a homeowner alters the grade of their property in a way that disrupts established drainage patterns. It could be caused by a swimming pool, shed, change in landscaping, or the alteration of a swale or catch basin. The City has technical expertise in drainage management and has an obvious interest in the overall functioning of the stormwater management system. But does that interest extend to helping residents deal with problems on private property? Is this a service the City wants to offer, and if so in what circumstances and at what level? Currently there is no system or protocol for the management of this sort of post construction drainage complaints. Currently many different departments in the City receive drainage complaints. Often, it is unclear which branch of the City is responsible for particular drainage complaints and often calls get routed to the wrong area. This causes additional and unnecessary work for the City, frustrates homeowners and Councilors that get involved, and makes it difficult to keep track of complaints received. For the most part the single person managing drainage complaints responds only to those that are most vociferous. There is also inadequate data about the nature and extent of drainage complaints. We conclude that the management of post construction drainage complaints is an area that requires a complete policy and program overhaul. Beyond maintaining the integrity of the City’s overall stormwater management system, does the City have a responsibility or obligation to addressing complaints about private property drainage? On the issue of obligation, the City’s legal department is of the opinion that a By-Law on lot grading and drainage would not imply specific responsibility for action. Another relevant variable are subdivision agreements, which include a clause restricting any changes to the grade of lots. These agreements typically include language calling for homeowners to get permission from the City before changing property grade. The clause is almost never used or applied. The legal department believes such a clause might be considered as “evidence” in a civil trial, or it might be used by the City as authority to fix a problem, but the existence of a clause in a subdivision agreement does not pose an obligation to act. Placing weight on subdivision agreements would also create a patchwork system across the City, as the


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content of agreements varies and many former communities in Ottawa are not subject to such an agreement. Some argue that the existence of an easement might impose an obligation on the City to intervene in drainage problems. No evidence by participants in this study to support this view. We conclude that an easement simply affords the City the right to make limited use of a homeowner’s property and confers no obligation to intervene to fix a problem. The obligation in such circumstances is with the homeowner to ensure that the easement is not obstructed. We conclude that the City does not have an obligation to respond to complaints about drainage problems on private property, although as a matter of risk management, it would be compelled to act if the overall integrity of the stormwater management system was in peril or there was clear evidence of a risk to human health and safety. Of course the City needs to respond to problems it creates. This leaves the issue to one of a choice of public policy and level of service, which are predominately influenced by:

• Financial considerations; • Area of City expertise; • Risk management, including the liability when the City enters private property to

make repairs; • Ability to provide effective and efficient service; • Comparison with other municipalities; • Ability of resident to get help and expertise from other sources; • Resident demands; and, • Council priorities

The services that some residents seek from the City are as follows:

• Direct a neighbour to restore property grades; • Direct a neighbour to remove or overcome obstacles to drainage (i.e. garden

shed, landscaping, swimming pool, sump pump etc.)? • Direct a neighbour to redirect water from an eavesthrough or sump pumps • Direct a developer/builder to deal with problems with grades during

construction; • Intervene with City resources or a contractor to deal with problems not

otherwise remedied by a neighbour or contractor; • Request that the City maintain drainage ditches located on private property; • Provide information specific to a property so a resident can build documentation

and a case related to a drainage problem;


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The options for the City include the following:

• Offer advice about the nature and possible remedies to a drainage problem; • Enforcement of a By-Law including the issuance of warnings or a fine for

altering grades; • Mediate disputes among neighbours; • Provide information to homeowners; • Intervene with equipment or a contractor to change grades to remedy a

problem. To provide some context to the issue of cost, currently the City has one staff member assigned to drainage complaints. While overwhelmed and overworked, this staff member is also working without systems or criteria to guide his work. Much of his work is providing immediate basic information to thousands of calls. Limiting the scope of this work to deal with problems that require expertise would have a clear impact on the use of time and overall effectiveness. A staff member equipped and trained in drainage management is estimated to cost about $40.00 per hour. Presumably, this labour could be contracted out at about the same effective per diem rate. It is worth noting that the homeowners affected ultimately resolve almost all complex complaints. The value of the investigation is usually in the advice given to the homeowner. However, this often does not meet a resident’s expectation as they would prefer the City take greater initiative and incur whatever expense is required to fix the problem.


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Organization of the City’s Response to Complaints Years of post amalgamation experience has shown that there is no “natural” place within the City to locate an office responsible for private property drainage. The criteria for allocating drainage responsibility should be based on:

• Technical knowledge of grading issues; • Synergies with other responsibilities; • Access to records and drawings relevant to drainage complaints; • Ability to coordinate and lead activities across City Departments and Branches; • Ability to assemble the resources and equipment to resolve problems; • Ability to initiate and conduct a field review, including relations with the public;

and, • Providing service at the lowest possible cost.

The candidates within the City for a private property drainage unit are:

• By-Law Services; • Utility Services: Customer Services & Operational Support; • Utility Services: Wastewater and Drainage Services; • Surface operations; and, • Private contractor/engineer.

While the idea of a private contractor is intriguing, the City does not have enough knowledge or experience with complaint management to provide a reliable basis on which to establish a scope of service. However, the use of a contractor should be considered to help deal with periods of peak demand, particularly in the spring. By-Law Services offers many advantages:

• They are in the field; • Have experience dealing with property standards and the public; • Have an infrastructure and system to track and monitor complaints; and, • As uniformed officers are empowered to write citations, orders and issue fines.

They generally have a strong track record of being persuasive with the public to effect solutions. Many other cities use By-Law Services officers as a first response to drainage problems on private property. The problem with By-Law is they lack training and expertise in drainage issues and would not be in a position to offer helpful advice to more complex problems.


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Utility Services (Customer Services & Operational Support offers the advantages of:

• Oriented towards customer service and are accessible to the field 24/7; • Engaged in drainage management issues in responding to emergency and

service calls; • Have the capacity to direct City resources to fix problems. • Have systems to track, monitor and determine the cost of complaints.

Their limitations are a lack of expertise in private property drainage and systems and culture that are designed to provide immediate and systematic responses to problems. They do not investigate complex problems and do not have the capacity to track problems that cannot be immediately solved. Wastewater and Drainage Services offer the primary advantages of:

• Post-amalgamation experience with private property drainage; and • Not encumbered by the broader mandates of By-Law and Utility Services.

While there is no clear and compelling case to locate the drainage complaint function in a particular branch of the City, it would seem to most naturally fit within a “customer service” mandate. However, it is not a perfect fit. Drainage complaints do not come from “customer”; residents raise them. Residents do not usually report a problem with a City service; a neighbour or some other circumstance usually causes it. Because of this, and the fact that the existing functions performed by Customer Services and Operational Support are quite distinct from drainage complaints, a separate unit within this office would be required.


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9 RECOMMENDATIONS The recommendations are provided, in full, in the Summary Section of this report beginning on page 5.


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APPENDIX A: ONTARIO MUNICIPAL ACT (EXTRACTS)

142. Powers of local municipality (2) A local municipality may,

(a) prohibit or regulate the placing or dumping of fill; (b) prohibit or regulate the removal of topsoil; (c) prohibit or regulate the alteration of the grade of the land; (d) require that a permit be obtained for the placing or dumping of fill, the removal of topsoil or the alteration of the grade of the land; (e) impose conditions to a permit, including requiring the preparation of plans acceptable to the municipality relating to grading, filling or dumping, the removal of topsoil and the rehabilitation of the site; (f) require that fill dumped or placed contrary to a By-Law passed or a permit issued under this section be removed by the person who dumped or placed it or who caused or permitted it to be dumped or placed; (g) require the rehabilitation of land from which topsoil has been removed contrary to a By-Law passed or a permit issued under this section; and (h) require that the grade of the land altered contrary to a By-Law passed or a permit issued under this section be restored to its original condition by the person who altered it or who caused or permitted it to be altered. 2001, c. 25, s. 142 (2).

(4) The council of a local municipality may designate persons as officers for the purpose of this section and sections 143 to 146 and delegate to them, subject to any conditions that the council considers appropriate, the power to issue permits and impose conditions to the permits. 144. Power of entry (1) A municipality may, at any reasonable time, enter and inspect any land to determine whether a By-Law, order or a condition to a permit under section 142 or 143 or this section or a court order under subsection (18) is being complied with.

No notice - Order to discontinue activity (4) If an officer is satisfied that a contravention of the By-Law has occurred, the officer may make an order requiring the owner of the land or the person who caused or permitted the placing or dumping of fill, removal of topsoil or alteration of the grade of land in contravention of the By-Law to discontinue the activity and the order shall set out,

(a) the municipal address or the legal description of the land; and (b) reasonable particulars of the contravention and the period within which there must be compliance.


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Work order (5) If an officer is satisfied that a contravention of the By-Law has occurred, the officer may make an order requiring work to be done to correct the contravention and the order shall set out,

(a) the municipal address or the legal description of the land; (b) reasonable particulars of the contravention and of the work to be done and the period within which there must be compliance with the order; and (c) a notice stating that if the work is not done in compliance with the order within the period it specifies, the municipality may have the work done at the expense of the owner.

Work done by municipality (6) If the work required by an order under subsection (5) is not done within the specified period, the municipality, in addition to all other remedies it may have, may do the work at the owner’s expense and may enter upon land, at any reasonable time, for this purpose.

Municipality not required to restore land or pay compensation (7) Clause 431 (c) does not require the remedial work done by the municipality under subsection (6) to be undone and clause 431 (d) does not require the municipality to provide compensation as a result of doing the remedial work.

Service (8) Before the municipality enters on land to do the work, the order shall be served on the owner of the land personally or by prepaid registered mail to the last known address of the owner of the land. 2001, c. 25, s. 144 (8).

Placard (9) If the municipality is unable to effect service on the owner under subsection (8), it may place a placard containing the terms of the order in a conspicuous place on the land and may enter on the land for this purpose.

Deemed service (10) The placing of the placard shall be deemed to be sufficient service of the order.

Deemed notice (11) Notice under subsection (8) or (9) shall be deemed to be sufficient notice for the purpose of clause 431 (a) of the proposed entry on the land.


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Recovery of costs (12) The municipality may recover the costs incurred by the municipality under subsection (6) plus interest accrued to the date payment is made at the rate of 15 per cent or such lesser rate as may be approved by the municipality from the owner of the land by action or in like manner as taxes.

Lien (13) Costs incurred by the municipality under subsection (6) are a lien on the land upon the registration in the proper land registry office of a notice of lien.

Amount of lien (14) The lien is in respect of all costs that are payable at the time the notice is registered plus interest accrued to the date the payment is made. 2001, c. 25, s. 144 (14).

Discharge of lien (15) Upon payment of all costs payable plus interest accrued to the date payment is made by the owner of the land, a discharge of the lien shall be registered by the municipality in the proper land registry office.

Offence (16) A By-Law passed under section 142 may provide that any person who contravenes the By-Law or an order under subsection (4) or (5) is guilty of an offence and is liable,

(a) on a first conviction, to a fine of not more than $10,000; and (b) on any subsequent conviction, to a fine of not more than $25,000.

Corporations (17) Despite subsection (16), where the person convicted is a corporation, the maximum fines in clauses (16) (a) and (b) are $50,000 and $100,000, respectively.

Order upon conviction (18) If a person is convicted of an offence for contravening a By-Law passed under section 142 or an order under subsection (4) or (5) of this section, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may order the person, in such manner and within such period as the court considers appropriate,

(a) to rehabilitate the land; (b) to remove the fill dumped or placed contrary to the By-Law or to the permit; or


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(c ) restore the grade of the land to its original condition.

Public Nuisance 128. (1) A local municipality may prohibit and regulate with respect to public nuisances, including matters that, in the opinion of council, are or could become or cause public nuisances. 2001, c. 25, s. 128 (1).

Health and Safety 130. A municipality may regulate matters not specifically provided for by this Act or any other Act for purposes related to the health, safety and well-being of the inhabitants of the municipality. 2001, c. 25, s. 130. Not subject to review (2) The opinion of council under this section, if arrived at in good faith, is not subject to review by any court. 2001, c. 25, s. 128 (2).


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APPENDIX B: SUMMARY OF REPORT ON HALIFAX PRIVATE PROPERTY DRAINAGE

An Internet search of Canadian web sites revealed only casual references to private property drainage, typically in municipal web sites dealing with property standards issues. There was one significant study on the issue commissioned by the City of Halifax. Following receipt of the research document titled “Report on Drainage – Private Property”. Halifax Regional Council adopted a policy on drainage issues in December 1997. This public document is one of the most through reviews of drainage issues in Canada The finding from the study were segmented into the following seven areas: A summary of the key findings from that study are as follows:

1. Water and Ice in the Street 2. Maintenance and Alteration of Stormwater Systems on Private Property 3. Ownership of Systems on Private Property 4. Drainage Complaints - Advice to Property Owners 5. Cost Sharing to Resolve Drainage Problems on Private Property 6. Drainage Works on Lands of Halifax Regional Municipality 7. Drainage from School Lands

Key recommendations from the study include: Recommendation 1-1 That the Municipality require the owners of land to control the discharge of stormwater unto the street, where the discharge is causing water and ice problems in the street, as provided for in the Halifax Regional Municipality Act. Recommendation 1-3 That where the property owner wishes to connect to a catch basin, the Municipality require a waiver to prevent claims against the Municipality related to damage from backups from the catch basin. Recommendation 1-4 That - where it is determined to be advantageous to do so - the Municipality construct “community systems” to resolve water and ice problems in the street, and recover full costs from the owners of land for this work, as provided for in the Halifax Regional Municipality Act. Recommendation 1-5 That community systems within the street right-of-way be owned by the Municipality, if they are constructed in accordance with the Municipality’s policies, procedures and specifications.


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Recommendation 1-6 That - in circumstances where it is likely that such problems will occur in the future – the Municipality will require in its Municipal Service Systems General Specifications, that developer/builders be required to install drainage infrastructure to prevent this problem from occurring. Recommendation 2-1 That the Municipality develop, implement and administer a By-Law to regulate the maintenance and alteration of stormwater systems on private property, and that a permitting system be developed in conjunction with this. Recommendation 3-1 The Municipality will accept ownership of stormwater systems on private property, if a number of conditions can be satisfied, as follows:

(1) That the system is utilized to drain stormwater from a system of the Municipality’s, and/or that it forms part of a trunk storm sewer system. (2) That it can be shown that the system is constructed to the Municipality's standards. (3) That an easement can be provided in a form acceptable to the Municipality. (4) That, by accepting the system, the Municipality is not unduly exposing itself to liability or to unreasonable costs associated with inspection, maintenance, repair or replacement.

Recommendation 4-1 The Municipality will provide advice to property owners to assist in the resolution of drainage problems on private property, as described below. As background to recommendation 4-1, it was noted that staff receive many complaints, which always requires a site visit by staff to determine the nature of the problem and the responsibility, if any, of the Municipality. Where the Municipality does have some responsibility, appropriate action is taken. Even where the Municipality does not have direct responsibility, the problem may be investigated and analyzed. If the situation is complex or the solution is not clearly evident, or where the Municipality may unreasonably expose itself to liability by providing advice, the property owner will be advised to retain the services of a consulting engineer or other professional, and/or a contractor. Where the solution is obvious, the Municipality may provide advice to the property owner, which is general in nature only. It is not intended that the Municipality conduct surveys or prepare designs or site-specific sketches for an individual property owner. If


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standard details or sketches are available which may assist, then these may be provided. It may also be appropriate that the Municipality write the property owner to document the advice provided. In some circumstances, the Municipality will attempt to identify the individual or agency best able or willing to resolve the problem, e.g. developer, builder, consulting engineer, land surveyor, landscape architect, provincial or federal government department, other municipal department, Atlantic New Home Warranty, insurance company, adjacent property owner, or lawyer. The Municipality is often requested by property owners to investigate and assist regarding a drainage or flooding problem which has been caused by the action of a neighbouring property owner (i.e. from diversion of stormwater, regrading of land, construction of a ditch, filling of the property). These matters are civil matters between adjacent owners, and not a matter for resolution by Municipal By-Law. The Municipality may provide advice in an attempt to resolve such disputes amicably, but must be careful not to interfere with the legal rights and responsibilities of property owners involved in a dispute. Providing any advice will potentially expose the Municipality to some risk of liability. On the other hand, over the years that the former Municipalities provided this service, the instances in which the property owner has subsequently cited the Municipality for providing bad advice have been very rare. On balance, this practice provides a very beneficial and cost-effective service to property owners, with limited risk to the Municipality. Recommendation 5.1 That the Municipality consider implementing controls to resolve drainage problems on private property. In general, that the Municipality not contribute to the cost of resolving the drainage on private property, except in exceptional cases where Council so chooses. Recommendation 6-1 That the Municipality not construct storm sewer systems/stormwater systems on its property to resolve problems on neighbouring properties, unless the municipally owned property is the cause of the problem. If the municipally owned land is the cause of the problem, then the Municipality would be part of the solution.


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APPENDIX C: LEGAL AUTHORITIES AND ISSUES 1. Common Law 2. Statutory Authority 3. Current By-laws dealing with Drainage and Grading 4. Liability Issues

1. Common Law

• No right to drainage of surface water exists • If water not flowing in defined channels containing the water, a “lower proprietor” owes

no service to upper to receive the drainage unless an easement has been acquired. Easements can be obtained through either through a grant or prescription (past open, continuous and notorious practice)

• Owner of lower land may erect obstacles necessary to keep surface water draining off higher land onto their land

• Riparian Rights – no resident may interfere with flow of water through natural watercourse. Can use natural watercourses to absorb artificial drainage. But there are limits to this type of practice.

• Resolution of common law disputes through civil courts 2. Statutory Authority

Municipal Act, 2001 s. 11(1) Sphere of Jurisdiction 4. Public Utilities

(collection of stormwater and other drainage of land)

s. 11(1) Sphere of Jurisdiction 5. Drainage and Flood Control, except storm sewers

s. 96 Drainage and Flood Control

Flood Control For the purpose of preventing damage in the municipality, a municipality may exercise its “drainage and flood control” sphere powers, within the municipality or outside of the municipality


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s. 97 Drainage Flood Control Entry on Land A municipality may enter onto land to inspect the discharge of matter into a land drainage system of any person, take and remove samples

Under General Sphere powers, we can pass a by-law, impose permit requirements and offer different levels of service to different classes of persons s. 142 (2)(a) Site Alteration – Topsoil and

Grade

P or R dumping of fill

s. 142 (2)(c) Site Alteration - Topsoil P or R alteration of grade

s. 142 (2) (d) –(h) Site Alteration – Topsoil Can impose Permit requirement – conditions on Permit (i.e. file Plans, require rehabilitation), require fill to be removed, require grade to be restored

s. 142(4) Site Alteration – Topsoil Designation of Officers and Delegation of Permit Powers

s. 142(5)(a), (b) Exemptions from By-law By-law passed by does NOT apply to:

- Activities undertaken by City

- Post Dec 31/02 -

Conditions re alteration of grade imposed via subdivision, site plan, consents, development permits under Planning Act

- Activities of pits and

quarries

- Drain construction under the Drainage Act or Tile Drainage Act


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s. 142(8) By-law ceases to have effect If regulation made under s. 28 of Conservation Authorities Act in any area of Ottawa, municipal by-law has no effect

s. 143 Appeal to OMB Applicant for permit may appeal to OMB. Appeal may take place if City refuses to issue permit, appeal from conditions of permit, fails to decide on the permit, or appeal on specific condition of permit. OMB may uphold municipal decision, require varying of condition in permit or require municipality to issue permit on OMB terms

s. 144(1)-(2) Enforcement Powers Power of Entry to Land (not buildings)

s. 144(4) Enforcement Powers Order to discontinue Activity

s. 144(5) Enforcement Powers Work Order can be issued for contravention of by-law

s. 144(6)-(8) Enforcement Powers Municipality can do work at owners expense and enter onto land for purpose of doing so. Adequate service and notice needs to be provided (registered mail and/or placard)

s. 144(9)-(15) Enforcement Powers - Recovery of Costs through Taxes

Municipality can recover costs of work as lien registered on land in same manner as taxes.

s. 144(16)-(8) Offence and Court Orders Individual fines – $10K max (first), $25k max (sub) Corporation - $50K (first), and $50K max (sub) Court Order – to rehabilitate land, remove fill or restore grade


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City of Ottawa Act, 2001 s. 12.10(1) Regulation of Sewers The city may pass by-laws for

the maintenance and management of its sewers, sewer system, sewage works, treatment works and watercourses

s. 12.10(2) Scope of by-law (a) The by-law may regulate the manner, extent and nature of the reception and disposal of sewage and land drainage from any person; and

(b) every other matter of thing related thereto that the city considers necessary and proper to secure for the inhabitants of the municipal are an adequate system of sewage and land drainage disposal

s. 12.10(4) Same The city may pass by-laws

exercising its authority under subsections (1), (2) and (3) (control of sewage) with respect to works owned or operated by or on behalf of any person, as if the works were city works.

s. 12.11 City’s by-laws regarding operation and maintenance of land drainage treatment pond

City’s by-laws limited to land treatment ponds NOT works where primary purpose is the collection and holding of land drainage.


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s. 12.12 Powers re works and watercourses

(1) No person shall enlarge, extend or alter any work or watercourse in the city that discharges into a city work or watercourse unless the person has the approval of the city to do so.

(2) The city may pass

by-laws regulating the design, construction, operation and maintenance of works owned or operated by or on behalf of any person.

9.1. PLANNING ACT

s. 53(17) Subdivisions – Applicant to provide draft plan of subdivision showing

• (g) natural and artificial features such as buildings and other installations, watercourses, drainage ditches, wetlands and wooded area within or adjacent to land to be subdivided

• (i) nature and porosity of soil • (j) extising contours or elevations as may be required to determine grade of the

highways and drainage of land proposed to be subdivided s. 53(24) in considering whether or not to grant subdivision approval, a municipality shall have regard to health, safety, convenience and welfare of present and future municipal inhabitants:

• (d) suitability of land for the purposes for which it is to be subdivided • (h) conservation of natural resources and flood control

s. 41(7) Conditions to approval of Site Plans – Municipality may require owner to:

• 8. Easements conveyed to the municipality for the construction, maintenance or improvement of watercourses, ditches, land drainage works, sanitary sewage facilities and other public utilities of the municipality or local board

Current practices – addressed in Background Report.


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Past practices of local municipalities included registration of covenants on title within subdivision agreement. Covenants (promises) would bind first and subsequent purchasers of land.

9.2. BUILDING CODE ACT

Ontario Building Code (OBC) is the authorizing regulation under the BCA

• 9.14.6.1. Building shall be located and building site graded so that water will not accumulate at or near building and will not adversely affect adjacent properties

• 9.15.4.3 Exterior foundation walls shall be extended not less than six inches above finished ground level

9.3. CONSERVATION AUTHORITIES ACT

Regulations may be passed to deal with flood control situations. If in effect, will trump municipal by-laws

9.4. DRAINAGE ACT

• Applies to works that are artificial or natural watercourses which have been artificially

improved • Municipal Drains typically found in rural area. Established through different methods. • Not road ditches. • Do have duty of maintenance for these types of drains

3. Current By-laws dealing with Drainage and Grading Cumberland By-law – Has not been repealed. Gloucester By-law – Has not been repealed. Enforcement – At present not being actively enforced. Aware of at least one case that went forward as a prosecution in Provincial Offences Act. Not successful for municipality – but no commentary as to whether the success hinged on the language of by-law Property Standards By-laws • 11 different by-laws passed by former area municipalities. • All still in effect. Consolidation has not taken effect. Projected target date for

harmonization is late Spring 2005. • Former Ottawa Property Standards By-law divided into property standards for residential

dwellings, non-residential and vacant land


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6(2) Untreated or inadequately treated sewage shall not be discharged onto surface of

ground whether into a natural or artificial drainage system or otherwise 6(3)/42(3) Roof drainage or surface water shall

(c) be drained from the lands so as to prevent reoccurrent ponding or entrance of water into a basement or cellar

(d) not be discharged on sidewalks, stairs, or neighbouring property

6(4)/42(4) Sub-surface drainage shall be installed where there is recurring excessing property caused by surface water

6(5) Where eavestrough and downspouts are installed, the roof drainage shall be discharged onto the ground at least four feet (1.2 m) from the building when physically possible

6(6) Subsection (5) does not apply where the downspouts discharge the roof drainage onto paved area provided that water does not drain onto adjoining properties

6(7) Where eavestroughs, roof gutters and downspouts are installed, they shall be kept in good repair, free from leaks and securely fastened to the building

6(8)/42(5) Catch basins shall be kept in good repair and free of debris and obstructions which would prevent them from functioning properly

42(2) Rain water from a roof area of five hundred square feet (46.5 m2) or more shall be conveyed to a storm sewer, and if such a storm sewer is not available, the rain water shall be disposed of in such a manner as not to cause a nuisance

72 All vacant land shall be graded, filled up, or otherwise drained so as to prevent recurrent ponding of storm water

74 Vacant land shall be cultivated or protected by suitable ground cover which prevents the erosion of soil.

• Administration and Enforcement of Property Standards By-laws shall be pursuant to the

Building Code Act.

Sewer Connection and Sewage Works By-law (2003-513) - Harmonized

• Drain means …an open ditch or channel constructed to carry off by gravity, liquids other than wastewater including surplus underground, storm or surface water

• Sewage means any liquid waste containing animal, vegetable, chemical or mineral matter in solution or in suspension, including stormwater or uncontaminated water

• Sewage works mean any works for the collection, transmission, treatment or disposal of sewage, stormwater or uncontaminated water, including a combined sewer, sanitary sewer or storm sewer or any part of such works, but does not include plumbing or other works to which the BCA applies

• Definitions for storm drain, storm sewer, stormwater, swale • By-law sets out a system to obtain a Sewer Connection Permit which allows for approval for

the connection to a public sewer.


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• Public sewer means lands owned by City or where the City has an easement in favour of the City, but does not mean sewage works which has not been accepted and assumed by the City or owned by a party other than the City.

Sewer-Use By-law (2003-514) – Harmonized • Governs usage of City sewage works. Sewage works includes storm sewers but does not

include plumbing or other works where BCA applies. • By-law has selective coverage in that it governs storm water runoff/discharges to storm

sewers from industrial premises or deliberate discharges of prohibited materials to storm sewers. For industrial premises, best management practices plan can be filed to allow for adoption of pollution prevention plans over time.

• Not strictly stormwater – but erosion issues are encountered with improper disposal of wastewater from swimming pool or wading pools. Section 18 of the by-law prohibits discharge of flows onto adjoining properties, into storm sewers, over a valley or ravine wall or such that is may cause erosion or instability of valley or ravine slope. Should contain discharge on own land through evaporation or use licensed hauler to remove wastewater.

4. Liability Issues • Municipality can not be compelled to provide drainage for ratepayers land • Whether we chose to pass a by-law is an exercise and a matter of municipal discretion • There is no obligation of a municipality to enforce discretionary by-laws. Therefore we are

not automatically liable for an injury caused by the violation. • Opinion on by-laws of former municipalities drainage by-laws – chosen at present not to

enforce o If by-law does not indicate that the municipality is required to act and there is no

reasonable expectation of enforcement (i.e. no explicit language requiring enforcement and no obvious safety concerns that would accompany non-enforcement), then City should be protected from liability for our non-action.

o Have to make the decision to not to enforce the by-law in good faith.

• Once a decision is made to enforce a by-law, a municipality can make further decisions as to the extent of the enforcement. We can consider practical issues such as economics and financial concerns as to the extent of enforcement. Need to make further decisions as to the extent of our enforcement. So long as these decisions do not harm or do not contemplated the real risk of harm to public health and safety – if a person would only suffer purely economic losses - these decisions will not be struck down by the courts.

• Always exposed to possibility of liability. If we express an opinion on civil liability in

neighbourly disputes, risk the possibility of getting pulled into a tort claim for damages.


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Though the instances where neighbours actually go to court in such situations are low. Reality is that the costs of litigation usually outweigh desire to be proven right in principle.

• Municipality is a natural person. We can chose to enter into a contract with another party for

a drain and drain maintenance.


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APPENDIX D: OPTIONS REVIEWED AT ROUNDTABLE

Pre Construction and Construction Policy Options

1. PROVIDE OVERALL COORDINATION TO PRIVATE PROPERTY DRAINAGE

MANAGEMENT

2. PLACE RELATIVELY MORE ONUS ON CITY TO ENSURE PROPER DRAINAGE ON

SUBDIVISIONS AND FOR SITE PLANS

3. PLACE RELATIVELY LESS ONUS ON CITY TO ENSURE PROPER DRAINAGE ON

SUBDIVISIONS AND FOR SITE PLANS

4. BUILDERS TO PROVIDE AS-BUILT DETAILED LOT GRADING DRAWINGS

5. REQUIRE BUILDERS TO CERTIFY ELEVATIONS OF UNDERSIDE OF FOOTINGS

AND TOP OF FOUNDATIONS

6. INSPECT PROPERTIES IN SUBDIVISIONS AT THE ROUGH GRADING STAGE

7. DEVELOP DESIGN GUIDELINES FOR STRUCTURES ON PRIVATE PROPERTIES THAT MIGHT IMPACT DRAINAGE

8. REQUIRE SWIMMING POOL PERMITS THAT CONSIDER DRAINAGE IMPACT

9. UNIVERSAL ENFORCEMENT OF BUILDING CODE ABOUT NOT ADVERSELY

AFFECTING DRAINAGE OF NEIGHBOURING PROPERTIES

10. REQUIRE A DETAILED LOT GRADING PLAN FOR ADDITIONS

11. FOLLOW A CONSISTENT POLICY IN ALL PARTS OF CITY

12. INCLUDE A SPECIFIC CLAUSE IN BUILDING PERMIT APPLICATIONS ABOUT LOT

GRADING

13. REAR YARD CATCH BASINS TO BE CONNECTED TO STREET CATCH BASINS

AND NOT MAIN SYSTEM


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Post Construction Policy Options

14. ENACT BY-LAW ON LOT GRADING

15. EDUCATE RESIDENTS ABOUT THEIR RESPONSIBILITY FOR DRAINAGE

16. EDUCATE THE CALL CENTRE ABOUT HOW TO RESPOND TO DRAINAGE

COMPLAINTS

17. EMERGENCY COMPLAINTS TO BE HANDLED BY UTILITY SERVICES

18. RESIDENTS TO SUBMIT AND SIGN COMPLAINT FORM

19. GIVE RESPONSIBILITY FOR TECHNICAL DRAINAGE MANAGEMENT ISSUES TO

THE BRANCH BEST SUITED TO HANDLE COMPLAINTS

20. ALL WRITTEN COMPLAINTS TO BE REVIEWED BY THE DRAINAGE

MANAGEMENT OFFICE

21. MAKE BY LAW SERVICES THE INITIAL FIELD RESPONSE TO NON-EMERGENCY

COMPLAINTS

22. CITY OWNERSHIP OF CATCH BASINS

23. ESTABLISH A DRAINAGE INVENTORY RECORDS SYSTEM

24. DRAINAGE MANAGEMENT REPORTS

25. COMMUNICATIONS AND ISSUE MANAGEMENT

26. DETERMINE POLICIES AND LEVEL OF SERVICE FOR DRAINAGE COMPLAINTS

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