Whose responsibility is it, anyway?

The June 5 public works meeting was once again dominated by the issue of excessive water run off onto properties on North Shore Road.

The June 5 public works meeting was once again dominated by the issue of excessive water run off onto properties on North Shore Road.

A delegation of property owners presented council with concerns they say they have been trying to get the town to address since 2008. This group, owning lots 1-17 along North Shore Road, want something to be done about excess water seeping down to their properties from Deer Road and Castley Heights.

In 1990, at the time the properties were developed, the group claims, that  “a requirement was put into place to protect the properties from instability and potential instability of lands which may result in landslides directly above the development and which would ultimately post significant threat to the property owners of the subdivision.”

Neil Fatin, who owns lot 10 on North Shore, explained to council that he and his neighbours have shared these documents with the town in the past in order to find some kind of resolution. “We’ve drawn to the attention of the town, records dating back to 1990 which is the Rusnak Geotechnical Survey Report—the easement document which covers the particular easement for the interceptor drain at the back, the easement that covers the front of the properties, the site plan which shows those easements and the documentation that goes with them.”

The group also states that there was a geotechnical survey done by Lewkowich Geotechnical Engineering in September of 2008 which stated that there were “serious issues with the interceptor drain system and damage to one or more properties in the development.”

The property owners claim that the problem is getting worse and that the easement is too clogged to allow for proper water flow to the storm water drains. They also say that the water is flooding North Shore Road and causing “substantial degradation of the asphalt road immediately in front of lots 10 and 11.”

Fatin says that the increase in water is also due to a road that has been cleared on the property above him, on land owned by Bob Godfrey. According to Fatin, this work was done in violation of a bylaw which requires a permit for any development on lands that are labeled an area of seepage and springs and slopes greater than 30 per cent. Symon Whalvin says he has seen the letters that the town has sent to Godfrey. “So all I can say, as Mr. Fatin said, is that we look for something to be done.”

Godfrey and Rod Peters, a neighbour to Godfrey, claim that the switchback road is actually a trail and was built for fire department access. “(The land) is just a tinderbox of dried, old maples and it’s just in case there’s a fire and you can get access to it because if you don’t, that whole hillside’s going to go up,” says Peters.

Both Peters and Godfrey claim there is only one small damp spot on their properties between lots six and seven. “The problem on that hill has been an ongoing problem since time began because there is a blue clay seam that comes down from Elk Road and crosses from Castley Heights and goes down, and that’s where most of the water comes from. The town should know that because when they put in the Castley Heights subdivision they had some major problems with drainage,” says Peters.

Peters has lived on the property above those on North Shore since 1980, and says he subdivided in 1983. At that time he had a geotechnical report done, at the request of the then chief administrative officer, which stated that the hillside was stable.

Godfrey says there is no water movement on his property as a result of the work that he has done. “The worst thing there, these people have built their houses below those big maple trees. We should get together, the town, and us property owners above and get those maples and alders safely down. They’re hanging over their houses, and that’s more of a concern.”

Fatin told council at the end of his presentation that “Either the town does something about it or my suggestion is to please appropriate the lots and return it back to its original state and let the owners get out of there.”

“There is nowhere in the easement documents that says the homeowners are responsible for clearing or maintenance and there is a lot of restrictions on the homeowners to even go near it to trench it, clear it, clean it, or whatever.”

During the meeting, Mayor Ross Forrest told the delegation that council has not been ignoring the issue. “We have applied for a storm management grant, storm management funding, to try and find the answers there. It’s easy to come and complain to us, but somebody’s got to pay for that, and you know what, we put enough on our tax payers as it is. So we’ve applied for funding to get a study done there and have it looked at, and hopefully we will be successful in getting that funding.”

Nagi Rizk, superintendent if public works and engineering, agrees that there is a problem with moisture on the hillside. “There are always traces of water, summer or winter.”

However, when it comes to responsibility for clearing or maintaining the easement, he says there are many things that have to be taken into consideration, and proper procedure must be followed. The issue of drainage is never straightforward, especially for communities that live within a water catchment basin like Lake Cowichan. “You can hire all the engineers you want to investigate, but I’m not a legal expert to determine what is inside the easement, what is outside the easement.”

Rizk has been interviewed by the Municipal Insurance Association, “And I told them all the same things. I said that you guys have to search the titles, search who is responsible to do what.”

Rizk is not even sure of the exact location of the easement. The legal documentation is conflicting. In some documents it is shown, and others it is missing completely.

Rizk is concerned with protecting everyone’s interests and balancing and prioritizing the needs of the town, and being responsible with taxpayer’s dollars. “If there is imminent danger, yes, we will do something about it. I will not wait for someone to get killed before we step in or some major damage to the property takes place. But from what I’ve seen so far, all the reports that came to me so far, all the appropriate measures have been taken care of.”