ONTARIO DRAINAGE TRIBUNAL
APPEAL:
ESCOTT DRAIN (RE) Township of Chatham David Forsyth, by his agent Grant Forsyth
ESCOTT DRAIN (RE) 1994 ONAFRAAT 01
STATUTE:
HEARING:
January 12, 1994
January 26, 1994 for Order May 30, 1994 for Reasons
NEUTRAL CITATION:
1994 ONAFRAAT 01
ONTARIO DRAINAGE TRIBUNAL
IN THE MATTER OF:
an Appeal of David Forsyth from the Report of David G. McGeorge, P. Eng., dated August 3, 1993, on the Escott Drain in the Township of Chatham, in the County of Kent.
DECISION
This Appeal came before the Ontario Drainage Tribunal on January 12, 1994, at the Township of Chatham Council Chambers, 785 St. Clair Street Extension, Chatham, Ontario.
All assessed owners were served with the Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.
At that time, there appeared before the Tribunal, David G. McGeorge, P. Eng., who prepared and represented the Report dated August 3, 1993; the Appellant, David Forsyth, by his agent Grant Forsyth, and other assessed owners.
The Clerk of the Township of Chatham, Nelson Praill, acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
IT IS ORDERED THAT the Appeal of the Appellant, David Forsyth, be dismissed.
IT IS ORDERED THAT there be no Order as to costs, and all parties are responsible for their own costs.
Attention is drawn to S. 73 of the Drainage Act, R.S.O. 1990, C. D.17.
Dated: January 26, 1994.
Bernard J. Goodal, Chairperson Ontario Drainage Tribunal
REASONS FOR DECISION
IN THE MATTER OF:
an Appeal of David Forsyth from the Report of David G. McGeorge, P. Eng., dated August 3, 1993, on the Escott Drain in the Township of Chatham, in the County of Kent.
This Appeal, launched by the Appellant, David Forsyth, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on January 12, 1994.
The proceeding was initiated by the Council of the Township of Chatham in response to a request of the Works Superintendent. The 5th Concession Road is scheduled for improvement and the open portion of the Escott Drain coursing along the 5th Concession Road allowance is a hazard to the travelling public.
The Escott Drain serves lands in Part of Lots 11 and 12, Concession 4, and Part of Lots 11 and 12 in Concession 5. The Drain extends northwesterly along the Southeasterly side of the 5th Concession Road Allowance from an outlet in Big Creek Drain. In 1952, the lower 770 feet of the Drain were improved by enclosing it in a 1511 diameter concrete sewer pipe. The remaining 900 feet was improved as an open Drain.
The Report recommends, due to the unstable soil conditions, that, instead of moving the open Drain off the road allowance on to private lands to the Southeast, a closed joint Drain, housed in 1511 and 1211 diameter pipe, be laid in the bottom of the existing open Drain and the open Drain backfilled to a level approximately 1.5 feet below road grade. This wilI provide a wider shoulder and a shallow roadside ditch, reducing the hazard to the travelling public. Additional catch basins are to be provided along the Drain at locations where· farm main drains outlet into the Escott Drain as requested by the Appellant, David Forsyth, owner of the Northwest half of Lot 12, Concession 4.. All of the proposed improvement to the Escott Drain is along the frontage of the Appellant's lands. The estimated cost of the work is $19,530.00.
The work consists of the installation of 500 feet of 15" diameter, 400 feet of 1211 diameter high-density polyethylene storm sewer and five catch basins: three of them at the outlet mains of the Appellant.
The Appellant has been assessed the sum of $3,000.00 by way of Benefit, no Outlet, for an affected area of 8.1 ha. (20 ac.). He has been granted an allowance of $215.00 under S. 30 of the Act.
The Appellant appealed his assessment to the Court of Revision. The Court of Revision dismissed the Appeal. The Appellant now appeals to the Tribunal.
The Engineer, Mr. McGeorge, reviewed his reasoning for the assessment he had levied against the Appellant's lands. The benefit accruing to the lands of the Appellant fall under several heads. By enclosing the Drain, which has an estimated life of about 60 years, four to six cleanouts will not be required. The cost of the cleanouts would be about $3,000..00. Maintenance of the Appellant's main outlets has been eliminated over the life of the Drain since each outlets into a catch basis as requested by the Appellant. Outlet pipes have been eliminated. The Appellant can inspect his outlets the reason he wanted a catch basin at each outlet, at any time. The open ditch has been eliminated, facilitating the cultivation of his lands, eliminating any hazard to his farming operation and enhancing the appearance of the farm and hence its value. The useful life and efficiency of the downstream reach has been extended by flushing.
The Engineer pointed out that the added cost of the three catch basins, requested by the Appellant, the Engineer put at $1,200.00 (3 at $400.00 each). Assuming four cleanouts of an open drain over the life of the covered Drain, it would cost $3,000.00. Of the total cost of the work of $19,300.00, the Township has been assessed the sum of $15,430.00, or 79 percent.
The Engineer submits that the assessment levied against the lands of the Appellant is most equitable.
Grant Forsyth, the brother of the Appellant, and an assessed owner of the Northeast Half of Lot 11, Concession 4, acted as agent for the Appellant. Most of his remarks were in opposition to enclosing the Drain. He said that the downstream end, which had been enclosed in 1952, had failed on a number of occasions. The Township had made numerous repairs to it. It failed just recently. It will fail again. He suggests that the Drain remain an open Drain so that his brother can continue to pump ponded water after a severe storm event with his irrigation system into the Drain.
He added that there are portions of open Municipal Drains along roads more heavily travelled than this that are not being enclosed but should be enclosed, if hazard to the travelling public is the criteria. The upstream end of the drain is not being enclosed. He called the enclosing of Municipal Drains "a disturbing trend". He said that the family and Township Officials have been at odds for many years. On one occasion, he had to go "over the local officials' heads" to·get the thing done. We directed the attention of Grant Forsyth to the Appellant's Notice of Appeal. The Appeal is under S. 54(1) of the Act, against his assessment, not under S. 48 (l)(b), modification of the Drain. He confirmed that he is acting as agent for his brother and that his brother, the Appellant, objects to his assessment.
We agree with the Engineer that the assessment levied against the land of the Appellant is most equitable. All of the advantages enumerated by the Engineer accrue to the lands of the Appellant. The value of the three extra catch basins of $1,200.00 (excluding Engineering and Administrative expenses -- $250.00) comprise about one half of the Appellant's assessment. In our opinion, the value of the other three advantages is far in excess of $1,500.00.
The Appeal of the Appellant is without merit. The Appeal is therefore dismissed. There will be no order as to costs. All parties are responsible for their own costs.
Since Grant Forsyth had put forward a rather formidable argument for leaving the Drain as an open Drain, we do not wish to leave these Reasons without commenting on that submission. He noted that it is rather incongruent to enclose this reach of the Drain and leave the road ditch upstream of the proposed work open.
In reply, the Engineer pointed out that the roadside ditch is much shallower and, in his opinion, does not create the same hazard to the travelling public. Furthermore, there is a restriction on the funds available to upgrade the 5th Concession Road.
Mr. Brian Anderson, the Road and Drainage Superintendent, admitted that there are other and deeper Municipal Drains on road allowances in the Township, including roads with heavier traffic. However, the policy of the Township has been and continues to be to move Municipal Drains off road allowances where practicable or economically feasible. In a specific drain alluded to by Mr. Forsyth, Mr. Anderson said it is just cost-prohibitive to do so. In this case, the drain is short and the costs can be accommodated.
Mr. Anderson said that the downstream reach of the Escott Drain had been repaired four or five times. This is not unusual keeping in mind the age of the Drain and the soil conditions. Mr. McGeorge said that the downstream end enclosed in 1952 was flushed just prior to the preparation of this Report. It is in good condition. The required repairs are not unreasonable.
In all of our Decisions, we have supported the policy that whenever a Municipal Drain that is on a road allowance is being constructed or substantially improved, the Drain should either be constructed as a closed Drain or moved off the road allowance, unless unique and compelling circumstances exist making it impractical or too expensive to do so. Just because there are other open drains creating even a greater hazard to the travelling public is not sufficient cause not to adhere to the policy. The work is being done on a particular Drain and the policy applied to that Drain. Certainly, the more hazardous cases should have priority. But in this case, it is the 5th Concession Road that is to be improved, not some other road in the Township; and therefore, it is the Escott Drain that must be considered.
The Appellant continues to have access to his main. He can pump ponded water into the roadside ditch or catch basins. He can flush his drains as required.
Dated at Chatham, Ontario, this 30th day of May 1994.
ONTARIO DRAINAGE TRIBUNAL
Warren Jenner, panel member Herbert H. Todgham, P. Eng., Vice-Chairperson Bernard J. Goodal, Chairperson