Case suggests certain items of city infrastructure, such as backyard catch basins, can be the property of the homeowner to do with as they please.
A decision of the Ontario Superior Court last month has allowed 4,000 Vaughan homeowners to disconnect their homes from privately-owned stormwater management systems, raising the spectre of the city’s inability to deal with the resulting flooding.
The court action was brought by Louis and Carmel Channell, who bought their home on Villagewood Ct. in Woodbridge in 2017. Shortly after moving in, they discovered a large concrete structure buried under their back deck. Municipal records revealed that it is a rear lot catch basin and manhole with a total surface size of about 54 square feet.
The structure is part of a vast and elaborate stormwater management system used by the city for the local subdivision, adjacent properties and roads. The collection system directs rainwater into a subterranean cavern for the purpose of redirection into nearby Rainbow Creek.
A private engineering report concluded that if the stormwater management system is not maintained, the result would be flooding in the subdivision.
There are more than 4,000 similar structures in Vaughan, all privately owned. No document is registered on the title to the Channell property providing for any third-party access, usage or ownership.
Since the manhole is private property, the Channells applied to Vaughan for a permit to remove it, but their request was denied. They then turned to the court, asking for a declaration that the manhole and all related pipes and infrastructure on their property are owned by the city of Vaughan, that an access easement be registered on title to their property, and that they receive compensation for expropriation of that part of their property where the manhole is located.
The city of Vaughan took the position that the catch basin is private property and that it has no responsibility for acquiring or maintaining drainage structures there.
Many municipalities often take ownership and responsibility for drainage infrastructure and registration of rights to access, repair, inspect and maintain the equipment. But not Vaughan.
In his decision last month, Justice Chris de Sa ruled that the manhole infrastructure is the private property of the Channells, and they have the right to remove it. “If removed,” the judge wrote, “the City would have to make the necessary adjustments to the drainage system to ensure there is adequate drainage in the absence of the structure.”
In the wake of the court’s decision, the Channells are removing the catch basin from their property. The city now has to find some other way to deal with stormwater, no doubt at huge public expense.
What happens if all 4,000 Vaughan homeowners remove their backyard catch basins? How will Vaughan deal with the inevitable flooding?
Graham Alloway, who represented the Channells in court, emailed me to say that he is in disbelief with this decision.
It seems that Vaughan got its way by getting the judge to agree that the catch basins are private property, but it now has a much greater problem on its hands – how to deal with flooding from rain water and snow melt.
It seems to me to be a Pyrrhic victory. Vaughan has won the battle but lost the war.
Channell v Vaughan – https://www.canlii.org/en/on/