ONTARIO DRAINAGE TRIBUNAL
APPEAL:
GORDON SMITH DRAIN AND BRANCHES (RE) Township of Rochester Bruce Armstrong, Edwin Armstrong and William A. Olson
GORDON SMITH DRAIN AND BRANCHES (RE), 1994 ONAFRAAT 05
STATUTE:
HEARING:
February 28, 1994
March 29, 1994 for Order July 11, 1994 for Reasons
NEUTRAL CITATION:
1994 ONAFRAAT 05
ONTARIO DRAINAGE TRIBUNAL
IN THE MATTER OF:
an Appeal of Bruce Armstrong from the Report of E. P. Dries, P. Eng., dated November 13, 1993, on the Gordon Smith Drain and Branches, in the Township of Rochester, in the County of Essex.
DECISION
This Appeal came before the Ontario Drainage Tribunal on February 28, 1994, at the Township of Rochester Council Chambers, 958 Highway No. 2, St. Joachim, 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, E. P. Dries, P. Eng., who prepared and presented the Report dated November 13, 1993; the Appellants, Bruce Armstrong, Edwin Armstrong and William A. Olson; and other assessed owners.
The Clerk of the Township of Rochester, Annette Drouillard, acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
IT IS ORDERED THAT the Assessments levied against the lands of the Appellants, Bruce Armstrong, Edwin Armstrong and William A. Olson, being the West Part Lot 26, Concession 5, Roll No. 020-02301, East Half Lot 26, Concession 5, Roll No. 020-01001, and the West Part Lot 25, Concession 5, Roll No. 020-024, and East Part Lot 25, Concession 5, Roll No. 020-025, be reduced to zero.
IT IS ORDERED THAT the reduction in the Assessments levied against the lands of the three Appellants be levied against the lands of the rest of the assessed owners in the watershed in the ratio of their individual assessment to their total assessment.
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 at Chatham, Ontario, this 29th day of March 1994
BERNARD J GOODAL, CHAIRMAN ONTARIO DRAINAGE TRIBUNAL
ONTARIO DRAINAGE TRIBUNAL.
IN THE MATTER OF:
an Appeal of Bruce Armstrong from the Report of E. P. Dries, P. Eng., dated November 13, 1993, on the Gordon Smith Drain and Branches, in the Township of Rochester, in the County of Essex
REASONS FOR DECISION
This Appeal launched by the Appellants, Bruce Armstrong, Edwin Armstrong, and William and Lorraine Olson, pursuant to S. 54 (1) of the Drainage Act, R.S.O. 1990 c. D. 17, was heard on February 28, 1994.
The proceeding was initiated by the Council of the Township of Rochester pursuant to S. 78 of the Act in response to a request of William and Lorraine Olson to repair and improve the Gordon Smith Drain.
The Gordon Smith Drain (Main Drain) courses easterly along the southerly limit of Lot 26, Con. 5 to outlet into the Ruscom River approximately 550 metres east of the 5-6 Concession Road. The Appellants, Bruce Armstrong, Edwin Armstrong and William and Lorraine Olson, are the owners of Parts Lot 25 and 26, Con. 5, lands lying immediately northerly and easterly of the Gordon Smith Drain. Other than a very small area (10 acres) of the Bruce Armstrong lands in the west half of Lot 26, Con. 5, the lands of the Appellants are outside of the Gordon Smith Drain watershed.
Mr. Olson complained to the Township that, during periods of severe or moderately severe storm events, when the peak flows in the Ruscom River arrive at the outlet of the Gordon Smith Drain, the waters back up into the Gordon Smith Drain, overtop the northerly bank of the Gordon Smith Drain over a length of approximately 440 metres and flow northerly and easterly flooding the Appellants' lands and eroding the soil. The average ground elevation of the lands adjacent to the north bank of the Gordon Smith Drain is lower than the west bank elevation of the Ruscom Rive; as a result, the backup flows discharge over the north bank of the Gordon Smith Drain over the farmlands to the north (lands of of the Appellants). The flows continue northeasterly and eventually spill into the West Malden Road Drain coursing along the southerly limit of South Middle Road (the northerly limit of Lot 25, Con. 5) to outlet into the Ruscom River. During the more severe storm events, surface waters flow from Lot 25 easterly over County Road #31. As the flooding progresses, backup flows from the Ruscorn River cause localized flooding of the lands in the east half of Lot 26, Con. 4. Flooding has occurred on a number of occasions in recent years.
According to the Engineer, the flood events in Lot 25 and 26, Con. 5 are not caused by flows generated solely from the watershed of the Gordon Smith Drain. The total drainage area is in the order of 370 acres. It is not possible to generate a sufficient volume of runoff from that area alone to cause the extensive flooding experienced on the lands north of the Drain. There is no doubt in the mind of the Engineer that the flood flows are augmented by the backup ·flows of the Ruscom River.
The Engineer considered two probable solutions to the problem. First, the northerly bank of the Gordon Smith Drain could be built up to an elevation to retain the waters backing up from the Ruscom River into the Gordon Smith Drain within the Drain proper. This alternative he found rather expensive; and, to some extent, it would merely shift the flooding westerly onto the lands within the watershed. The second alternative is to install a control structure at the outlet of the Gordon Smith Drain into the Ruscorn River. He proposes three corrugated steel pipes with floodgates.
The theory is that peak flow events at the outlet of the Gordon Smith Drain into the Ruscom River occur several hours after a rainfall event in the watershed. Rainfall from the Gordon Smith Drain will be collected and discharged into the Ruscom River many hours before high water levels in the Ruscom River cause the gates in the control structure to close. In the opinion of the Engineer, the potential for flooding of the lands of the Appellants will be significantly reduced by the works. Later on, if the need arises, a pump could be installed to pump any additional waters coming down the Gordon Smith Drain and discharge them into the Ruscom River.
The estimated cost of the work is $13,650.00.
The Engineer pondered long and hard to devise an equitable assessment program in the unique situation encountered here. After a thorough analysis of the situation, the Engineer concluded that the lands of the Appellants should be charged a Cutoff Benefit. The purpose of the work is to protect the lands of the Appellants, which lie outside the Gordon Smith Drain watershed. He apportioned the total costs 40 percent as the value of the Cutoff Benefit and 60 percent as outlet Liability Assessment against the lands in the Gordon Smith Drain Watershed. The Cutoff Benefit he apportioned among the lands by assigning a relative impact factor to each derived from a sensitivity analysis, which is a function of the severity of the flooding over each of the Appellants’ lands.
The position of the Appellants is quite simple. They say that their lands are not within the watershed; the waters which are causing damage to their lands come from the Gordon Smith Drain, and it is the duty of the assessed owners in the Gordon Smith Drain watershed to take their waters to a sufficient outlet. This, the Appellants state, the assessed owners have not done; and, consequently, since the duty is on them, all the costs associated with doing so should be assessed against the assessed owners in the Gordon Smith Drain watershed.
It is certainly a unique situation. It calls for a modification of the usual approach to assessment in the normal circumstances. We are of the view that the use of the Cutoff Benefit theory is not applicable in these circumstances.
As the Appellants have put it, and the Act dictates it, it is the duty of the land’s outletting waters into a municipal drain to take those waters to a sufficient outlet. Clearly, the outlet of the Gordon Smith Drain is not a sufficient outlet. If it was, the waters would not back up the Drain and cause damage to the lands to the north. It is not a sufficient outlet since not only are the waters of the Gordon Smith Drain not able to get out through the breach in the Bank of the Ruscom River, the breach in the bank of the Rusom River permits the waters from the Ruscom River to flow back into the Gordon Smith Drain overtopping the north bank and inundating the lands of the Appellants. Since the outlet is not sufficient and it is the duty to provide a sufficient outlet, the costs of doing so must be assessed entirely against the lands in the Gordon Smith Drain watershed.
It was suggested that perhaps the Ruscom River is not a sufficient outlet for the Gordon Smith Drain. That may very well be. However, there is no duty on the assessed owners in the Ruscom River watershed to provide a sufficient outlet for the waters outletting from the Gordon Smith Drain. Therefore, it is not proper to levy any of the assessment against the lands in the Ruscom River watershed. If the breach in the westerly bank of the Ruscom River was not there to permit the waters from the Gordon Smith Drain to outlet, there would be no flooding of the Appellants' lands. It is because the breach in the bank is there that the Appellants' lands flood, and consequently, the costs to prevent the flooding must be borne by the owners in the Gordon Smith Drain watershed.
Cutoff Benefit, as we understand it, is the advantage accruing to lands by cutting off or intercepting surface flows from flowing over the benefitted lands by a drain. A Cutoff Benefit can also accrue to lands by diverting flows in a drain or a ditch to relieve the benefitted lands of the flow. That is certainly not the case here. In this case, the waters originate in the Drain, overtop the bank, and flow over the lands of the Appellants.
Mr. Olson testified that in August of 1992, after a six-inch rainfall, he had to evacuate his home and move his family to a motel. He has already spent in excess of $3,000.00 building berms around his farm to protect his home. In the past few years, he has endured four or five floods, lost a quantity of topsoil, and his crop yields have decreased so that his average yield under the Provincial insurance plan has been lowered. His well has been flooded.
The other two Appellants' lands have also been flooded but not as seriously as those of Mr. Olson.
For these reasons, an Order will go that the Benefit Assessment levied against the lands of the Appellants, William and Lorraine Olson, Edwin Armstrong and Bruce Armstrong, be expunged from the Assessment Schedule and that the reduction in the assessment levied against the lands of the three Appellants be levied against the lands of the rest of the assessed owners in the Gordon Smith Drain watershed in the ratio of their individual assessment to the total assessment.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated at Chatham, Ontario, the 11th day of July 1994.
ONTARIO DRAINAGE TRIBUNAL
Russell Piper, Panel Member
Maurice Armstrong, P.Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson