Self-Help Drainage – Be Wary

Landowners adjacent to public highways often have concerns about drainage impacts of those roads on their property. Are such concerned landowners entitled to implement measures to prevent the flow of water onto their lands?

In a recent case before the Ontario Superior Court, a municipality applied for a mandatory order requiring a landowner to remove a recently constructed berm which was interfering with water flow from an adjacent municipal road ditch to a provincially significant wetland also located on the landowner’s property. The landowner had erected the berm following culvert repairs and ditch sediment removal by the municipality in an effort to prevent increased water flow across his property. The court determined that, prior to the construction of the berm, water flowed across the landowner’s property through an intermittent water course to the wetland. After construction of the berm, the water was required to infiltrate underground to the wetland causing water to pond in the adjacent ditch.

In considering the respective evidence of the parties, the court commented:

“Whether or not the [landowner] had the right to construct the berm on the subject property is not an issue with respect to this motion. This motion relates to whether or not the [landowner] should be required to remove the berm …”

“The two main areas of contention, as between the parties, are the cause of the flooding in one or both of the ditches, and the course of the surface water and where it flowed prior to construction of the berm.”

“The Region maintains that the cause of flooding is related solely to the construction of the berm. The defendants are adamant that the flooding has been caused from work that the Region did on one or both of the ditches in the summer of 2012.”

With respect to both of these issues, the court found in favour of the municipality and granted the requested order requiring the landowner to remove the berm. On the evidence accepted by the court, the court concluded:

“Prior to the construction of the berm, water drained from the ditches and culvert … into a water course on [the landowner’s] property;”

“The berm could create ponding up to a depth of 1.88m which is considered a safety hazard without a guiderail between the pond and the road edge;”

“High water levels could result in pavement damage …”

“I accept [the municipality’s expert’s] findings that prior to the construction of the berm, water flowed from the north edge on to the defendant’s property as sheet flow and then narrowed into a water course. I accept that a water course does not always need to be filled with water to be an area in which water flows.”

In considering the landowner’s conduct, the court commented:

“It appears he does not like to be told what to do when it comes to his property. He applied for permission to construct the berm only after he had already constructed it. In 2007 he submitted a permit for placement of fill only after he received a Notice of Violation from the [conservation authority]. [The landowner] appears to like to act first and seek required permission later.”

Landowners concerned about the drainage impacts of public highways should be wary of self-help remedies to reduce water flow onto their property. Where such measures adversely impact municipal drainage, municipalities may require their removal.

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