Abray Drain (Re), 1995 ONAFRAAT 1

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

ABRAY DRAIN (RE)

Township of Howard

Peter Heyboer

ABRAY DRAIN (RE) 1995 ONAFRAAT 01

STATUTE:

Drainage Act

HEARING:

January 17, 1995

DATE OF DECISION:

March 21, 1995

NEUTRAL CITATION:

1995 ONAFRAAT 01

TOWNSHIP OF HOWARD

ABRAY DRAIN

IN THE MATTER OF:

An Appeal of Peter Heyboer from the Report of Wm. D. Colby, P. Eng., dated July 20, 1994, on the Abray Drain, in the Township of Howard, in the County of Kent.

DECISION

This Appeal came before the Ontario Drainage Tribunal on January 17, 1995 at the Township of Howard, Council Chambers, 57 Main Street East, Ridgetown, Ontario.

All assessed owners were served with a Notice of Hearing, as evidenced by the Affidavit of Service filed, and invited to make representations.

At that time there appeared before the Tribunal, Enio P. Sullo, P. Eng., who presented the Report of Wm. D,. Colby, P. Eng., deceased, dated July 20, 1994; P. J. Courey, as Counsel for the Township; the Appellant Peter Heyboer and other assessed owners.

The Deputy Clerk of the Township of Howard, Tracey Beaton, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed:

1. IT IS ORDERED THAT:

The Erosion Control Special Benefit Assessment at Sta. 11 + 00 levied against the lands of Foster Gillespie, being the N Pt Lot 18, Con. 5, in the Township of Howard, Roll #2-185, be increased by $211.00 to the sum of $282.00.

2. IT IS ORDERED THAT:

The Erosion Control Special Benefit Assessment at Sta. 12 + 15 levied against the lands of Foster Gillespie, being the N Pt Lot 18, Con. 5, in the Township of Howard, Roll #2-185, be increased by $474.00 to the sum of $687.00.

3. IT IS ORDERED THAT:

The increased in the Erosion Control Special Benefit Assessment in the sum of $685.00 be applied to reduce by $211.00 all of the outlet assessments in the Assessment Schedule under the column headed "Erosion Control at Sta. 11 + 00" to zero and the balance of $474.00 be applied to reduce the outlet assessments under the heading of "Erosion Control at Sta. 12 + 15" in the ratio of the individual assessments to the total outlet assessment levied under that heading.

4. IT IS ORDERED THAT:

The provisions for the future maintenance of the drainage works in the Report of Wm. D. Colby, P. Eng., dated July20, 1974 be deleted and the following substituted therefore:

“After completion, the drainage works, other than the Erosion Protection Control Work at Sta. 11 + 00 and Sta. 12 + 15 shall be maintained by the Municipality at the expense of all lands and roads herein assessed and in the same relative proportions as the assessments levied under the heading "Drain" in the Assessment Schedule.

The Erosion Control Work at Sta. 12 + 15 shall be maintained by the Municipality at the expense of all lands and roads assessed under the heading "Erosion Control at Sta. 12 + 15" and in the same relative proportions.

The Erosion Control Work at Sta. 11 + 00 shall be maintained by the Municipality entirely at the expense of Lot 18, Con. 5, Roll #2-185.

The Erosion Control Work at the southwest and northwest corners of the culverts under 4 - 5 Concession Road shall be maintained by the Municipality at the expense of the Township Roads.

These maintenance provisions are subject to any variations made under the Drainage Act, R.S.O. 1990, c. D. 17".

5. IT IS ORDERED THAT:

The assessed owner Foster Gillespie be a party to this Appeal.

6. 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: March 21, 1995

Bernard J. Goodal, Chairperson

REASONS FOR DECISION

This Appeal launched by the Appellant, Peter Heyboer, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on January 17, 1995.

The Abray Drain is an open drain. It originates in the Township of Orford (Orford), courses westerly across the Howard-Orford Townline, diagonally across the north corner of Lot 18, Con. 5 (lands owned by Foster Gillespie), across 4-5 Concession Road to an outlet into the McKay Drain in the Township of Howard (Howard).

Foster Gillespie asked the Council of Howard to repair a "washout" at a bend in the drain a short distance south of the 4-5 Concession Road. The Council of Howard instructed their Drainage Superintendent, Ron Gelderland, to consider the request and report to Council. Mr. Gelderland reported to Council that the work could be done under s. 74 of the Act at an approximate cost of $300.00 to $500.00.

Because lands in Orford would also be assessed for the proposed work, the Council of Howard notified the Council of Orford of the proposed repairs. The Council of Orford replied that, in their opinion, this work was beyond work that could be done under s. 74 of the Act. They suggested, that an Engineer should be appointed under s. 78 of the Act to prepare a Report. Council of Orford also informed Howard that, "The problem was caused by Mr. Gillespie farming too close to the edge of the drain, and therefore it should be repaired at his expense" (letter of December 8, 1993).

Mr. Wm. D. Colby, P. Eng., inspected the drain and recommends that:

(1) The reach of the drain from the upstream end of the Townline Road culvert to a point downstream (a length of 570 m) of the 4-5 Concession Road culvert be cleaned and brushed;

(2) The "washout" in the bank at Sta. 11 + 00 on the southerly side of the drain be repaired with filter cloth and stone as erosion protection work;

(3) The "washout" at Sta. 12 + 15 "where the existing spring has washed out the bank" be repaired by installing a tile drain loop to outlet through a filter cloth and stone riprap protection in the bank of drain.

(4) The "washout" at the southwest corner of the 4-5 Concession Road culvert be repaired with filter cloth and stone as erosion protection work, and

(5) The tree at the northwest corner of the culvert be removed and the bank repaired with filter cloth and stone as erosion protection work.

He assessed the costs of the erosion protection work in items 2 and 3 above, in the sum of $282.00 and $859.00, respectively, against all upstream lands in the watershed outletting waters into the drain. He assessed all of the costs of the erosion protection works in Items 4 and 5 above against Howard, except $100.00, which he assessed against all upstream lands in the watershed outletting waters into the drain.

As a preliminary matter, Mr. P.J. Courey, Counsel for Howard, made a motion to strike out the Notice of Appeal of the Appellant on the grounds that it has been filed beyond the 21 days provided by s. 54 (1) of the Act. He noted that the Court of Revision was held on September 26, 1994. At that hearing, the Court rendered its decision. The Notice of Appeal was filed on October 19, 1994. This is 23 days, or 2 beyond the 21 days provided for by the Act.

The Appellant, Peter Heyboer, testified that he filed his Notice of Appeal as directed by the Clerk of Howard.

From the evidence and the material before us, it appears as though, the Appellant was not given written notice of the decision of the Court of Revision, nor was he informed that, if he wished to appeal to the Ontario Drainage Tribunal he must do so within 21 days of the date that the Court of Revision renders its decision.

In our view, the Clerk of Howard should have provided the Appellant with specific instructions as to the filing of the Appeal to the Tribunal. In any event, there does not appear to be any prejudice to anyone by extending the time for filing the Notice of Appeal. After all, the period exceeds by merely two days the period provided for by the Act.

Therefore an Order will go extending the time for filing the Notice of Appeal to the date that it was filed and granting leave to the Appellant to file the Notice of Appeal.

Peter Heyboer, the Appellant, is an owner of lands assessed upstream in Orford. In addition to his oral evidence, he has submitted some written evidence, filed as Exhibit #4. He does not object to the cleaning and brushing of the drain and the assessment levied against his lands for that work. However, as he had stated on previous occasions and at the Court of Revision, the upstream owners should not have to pay for the repair of the "washouts" at Sta. 11 + 00 and Sta. 12 + 15. These washouts were caused by the surface water from the Gillespie lands flowing into the drain. He stated that Gillespie had some years ago bulldozed a strip of trees along the southerly bank of the drain. This left a very uneven drain bank. He levelled it by running his disk over it, and he put some soil into the drain. He did this for a couple of years, leaving the drain bank with no protection against erosion and as a result, the surface waters from his lands flowing into the drain have washed out the drain bank. He said that he had carefully examined the washout at Sta. 12 + 15 and there is no spring there as determined by the Engineer. At this point, the lands rise. It is a side hill and there is some seepage from the side hill common to the sandy soils.

Mr. Heyboer also objects to the payment of the $360.00 allowance to Gillespie under s. 29 and 30 of the Act.

Another assessed owner testified that Mr. Heyboer is a conscientious conservationist. He has received the award of "Conservationist of the Year". He uses appropriate farming practices. Whenever a washout occurs on his lands, he immediately repairs it by riprap or a drop structure.

Mr. Wm. D. Colby, P. Eng., the Engineer who prepared the Report, died before this matter came on for a hearing. Howard appointed Mr. Enio P. Sullo, P. Eng., to present the Report at the hearing. Mr. Sullo has a wide range of engineering experience, including drainage engineering.

Mr. Sulla visited the site in December 1994 and January 1995. He saw the washouts at Sta. 11 + 00 and Sta. 12 + 15. There was no snow in the drain, so he had an opportunity to examine the banks in the reach of the proposed work. At Sta. 12 + 15, he noted that the bank had eroded into the drain. There was grass over the area. In his opinion, it had been in that condition for some time. He did not see any spring at Sta. 12 + 15. From his observations, he is of the opinion that the erosion at Sta. 12 + 15 is due to the flow of water in the drain, rather than due to surface runoff into the drain. The damage to the bank at Sta. 12 + 15 at the bend in the drain is typical of damage to banks at a bend in a drain in erodible soils and higher water flow velocities. (He has calculated that at peak flows the velocity in the drain would be approximately 8 ft/sec.). He said that there is no erosion taking place at Sta. 12 + 15 now. It is in equilibrium. When he was asked: why do the repairs now? He replied that it is necessary to channelize the waters within the drain and contain them during peak runoff periods.

When Mr. Sullo was questioned further with respect to the transverse gullies that have been washed out in the bank of the drain at the two locations (Sta. 11 + 00 and Sta. 12 + 15), he conceded that probably a considerable amount of the damage to the bank at Sta. 11 + 00 is due to surface water runoff. However, he maintained that practically all of the damage at Sta. 12 + 15 is due to erosion caused by the flow of water in the drain.

Mr. Sullo supported the assessment of the costs of the erosion protection work made by Mr. Colby. Who is to be assessed the costs, he added, depends upon the cause of the damage at the two stations. If the damage has been caused by the surface flows of water from the abutting lands into the drain, then the assessment should be levied against the abutting lands. If it can be said that 100% of that damage is due to surface flows from the abutting lands, then 100% of the cost should be levied against the abutting lands. However, if the damage has been caused by the flow of the water in the drain by undermining the banks and causing bank failures, then the cost of the erosion protection work is properly assessed against the upstream lands in the watershed.

Ronald Gelderland is the Road and Drainage Superintendent of Howard and a farmer. He graduated from Guelph Agricultural College in 1960 and started to work for Howard in 1969. He has been the Drainage Superintendent since 1981. There are more than 600 municipal drains in Howard. Mr. Colby has been Howard's Engineer for 49 years.

Mr. Gelderland has been to the site a number of times. In his evidence, he stated that the soil along this reach of the drain is sandy. The water percolates into the soil and seeps out of the drain banks. In his opinion, the farming practices of Mr. Gillespie are not poor; they are normal.

Mr. Gelderland endorsed the theory that the damage to the banks of the bank at Sta. 11 + 00 and Sta. 12 + 15 was primarily caused by the flow of the water in the drain. He noted that at Sta. 11 + 00 Mr. Gillespie had placed some stone and rubble to stop the erosion. It appears to be working. However, Mr. Colby felt that it should be repaired properly while the repair work at Sta. 12 + 15 is being done. In his opinion, the flood waters overtopping the banks of the drain and flowing back, as the flooding recedes, into the drain do not erode or damage the banks.

When his attention was drawn to the profile, which indicates that, Sta. 11 + 00 is a low point along the bank of the drain and therefore a point at which surface waters would enter the drain, Mr. Gelderland conceded that the damage to the bank of the drain at this point could very well be caused by surface waters flowing into the drain rather than waters flowing in the drain. In his opinion, the steep banks (1:1 slope) are not a cause of bank instability. Almost all of the drain banks in Howard have that slope and drain bank instability is not a serious problem.

Since the Appellant, Mr. Heyboer, specified that the assessment levied against the lands of Foster Gillespie should be increased, and Mr. Gillespie was at the hearing, we added Foster Gillespie as a party to the appeal.

In his evidence, Foster Gillespie said that he is a full-time farmer, farming 700 acres in three Townships. He has been farming for 30 years. He purchased this farm in 1981. He described his land in the N Pt Lot 18, Con. 5, as rolling sandy soil with the drain running through the lowest part of the farm. The soil is highly erodible. He has attempted to control erosion by no-till. The farm, although not systematically tiled, is well tiled in a pattern commensurate with the topography. There is an 8" main outlet at the bend in the drain at Sta. 12 + 15. There is seepage out of the hillside into the drain at that Station. There is very little over land flow into the drain. He concedes that surface waters enter the drain at Sta. 11 + 00 but not much at Sta. 12 + 15. He put stone in the washout at Sta. 11 + 00. It is his theory that much of the damage to the banks of the drain is caused by the flood waters flowing back into the drain after a flood.

In his final submission, Mr. Courey, Counsel for Howard, said that the work is necessary, appropriate and should be done. He added that there is no evidence that the Engineer did not perform his duties in accordance with s. 11 of the Act. He was duly appointed; his judgment or integrity should not be put in issue here. The expert evidence indicates that the damage to the drain was caused by water flowing in the drain, and therefore, the upstream lands are properly assessed. The Appellant's assessment is less than $1.00 per/ac, whereas Gillespie's assessment is $10.06 per/ac.

He continued that this was a simple problem with a simple solution. No Report was required. It was at the instance of Orford that the Report was obtained to solve a $500.00 problem at Sta. 12 + 15. There may be some grounds on which to increase the assessment against the lands of Gillespie for the work at Sta. 11 + 00; however, the evidence also indicates that probably the assessment levied against Gillespie' s land for the work at Sta. 12 + 15 should be decreased. When these two are balanced out, the bottom line would be the same. The parties have been fighting over very little. It does not make sense, nor is it practicable, to revise the assessment over such minor differences.

Mr. Heyboer's final submission was that the damage to the drain was caused by Mr. Gillespie' s poor farming practices and the surface waters flowing from his lands into the drain. Therefore, the cost of the repairs should be assessed against the lands of Gillespie.

Before addressing the question of who should pay for the cost of repairing the damage to the drain at Sta. 11 + 00 and Sta. 12 + 15, we must first determine the cause of the damage. After determining the cause, the question of who should pay is governed by the proposition already correctly put forward by Mr. Sullo. If the damage to the drain was caused by the waters flowing in the drain on their way to the outlet, then the costs of repairing the damage shall be assessed against all upstream lands outletting waters into the drain. If the damage to the drain was caused by an assessed owner outletting his waters into the drain, then the cost of repairing the damage shall be assessed against the lands of the assessed owner. That is, if the damage to the drain at Sta. 11 + 00 and Sta. 12 + 15 was caused by the waters flowing in the drain to their outlet, the cost of repairing that damage must be assessed against all upstream lands outletting waters into the drain. If the damage was caused hy the waters discharged into the drain from the lands of Mr. Gillespie then the lands of Mr. Gillespie shall be assessed the costs of repairing the damage.

This proposition arises out of the principle that we had enunciated in the Appeal of the County of Kent from the Report of Wm. D. Colby, P. Eng., on the 18-19th Sideroad Drain, in the Township of Raleigh, in the County of Kent. We gave Reasons for Decision in that Appeal on February 9, 1993. Unfortunately, this Decision and Reason for Decision have for some reason been omitted from the Consolidated Decisions and Reasons for Decision of the Ontario Drainage Tribunal, 1993.

The principle is:

Although an assessed owner has a right to outlet his waters into the drain to the extent of his affected area, he must do so without causing damage to the drain. If he outlets the waters into the drain causing damage to the drain, he is liable to pay the costs of repairing the damage.

The problem that we are facing here is like the problem with which we were faced in that Appeal, but not quite as complex. In that case, fast-flowing meandering flows in the drain undermined the banks of the drain and initiated bank failures. Bank failures at outlet pipes caused the outlet pipes to break off. Water from the broken outlet pipes eroded deep gullies or V-channels in the bank of the drain. The issue was, who should pay for the repair of the bank failures and the gullies or V-channels washed out in the bank of the drain?

We have visited the site of the Abray Drain on two occasions: first, prior to the hearing and the second, subsequent to the hearing. On the first visit, we examined the locations of the damage quite carefully. We formed a tentative opinion that the damage was caused by surface water flows into the drain.

Because the preponderance of the evidence at the hearing was that the damage was caused by waters flowing in the drain, we made a second visit to the site. That visit confirmed our first impression. At Sta. 11 + 00, there is a deep eroded transverse gully in the bank of the drain. Some attempts have been made to mitigate the erosion by placing stone in the gully. A meandering surface water run extending deep into the field outlets into the drain at this point. There is no evidence on either side of the gully of undercutting of the bank or bank failures caused by the flow of water in the drain.

At Sta. 12 + 15, at a sharp bend in the drain, there is even a more pronounced eroded transverse gully approximately 2 m wide, 1 m deep and perhaps 12 m long. The bank and the soil from the gully have been washed into the drain. The slope of the bank is very flat and practically covered with grass. The gully could only have been eroded by surface waters flowing into the drain. On either side of the gully, there is no evidence whatsoever of undermining of the bank by the flow in the drain.

The two stations are low points along the bank of the drain. These are the natural points at which surface waters from the lands of Gillespie enter the drain. All of the physical evidence and the proximate topography lead to the inescapable conclusion that the damage done to the drain at Sta. 11 + 00 and Sta. 12 + 15 was done by the surface waters flowing into the drain from the Gillespie lands.

Because the damage at Sta. 12 + 15 had started some years ago, evidence which would tend to indicate that the waters flowing in the drain may have contributed to the bank failures at that location might not now be visible. Therefore, we cannot entirely exclude the possibility that the waters flowing in the drain contributed to the damage at Sta. 12 + 15. So part of the costs of repairing that damage should be assessed against the upstream lands outletting waters into the drain.

We have examined the drain banks between the two stations. They exhibit no evidence of failure caused by the waters flowing in the drain.

Mr. Courey reminded us, that all of the expert evidence before us, is that it was primarily the flows in the drain that caused the failures. There is only the evidence of Mr. Heyboer, who is not an expert in drainage, that the damage was caused by surface flows into the drain from the Gillespie lands.

Mr. Sullo, P. Eng. was called as a Drainage Engineer and his evidence was given as an expert in drainage. However, Mr. Sullo had only visited the site on two occasions for the purpose of giving evidence at the hearing. He did not have an opportunity to talk to Mr. Colby. He took no part in the investigation and design of the proposed erosion control

works. He has not done any work in Howard as a Drainage Engineer. He conceded, that some of the damage at Sta. 11 + 00 was caused by the surface waters flowing from the Gillespie lands into the drain. He, however, maintained that all of the damage at Sta. 12 + 15 was done by the waters flowing in the drain. He arrived at this conclusion because that point is at a bend in the drain and the high velocity of the flowing water which he calculated at 8 ft./sec. Experience and a visual examination of the drain in that area indicate that the velocity cannot be that high. We have calculated the velocity using that parameters used by Mr. Sullo in making the calculations and we find it to be 4 ft./sec. He did not mention that he examined the adjacent banks and the surrounding area for signs of erosion caused by the water flowing in the drain. He did not examine the banks between the two stations or signs of bank undercutting caused by water flowing in the drain.

Mr. Gelderland has probably looked at all 600 drains in Howard. Until Mr. Gillespie asked to have the washout in the Abray Drain repaired, there is no reason why Mr. Gelderland would pay any particular attention to this drain as opposed to any one of the 600 drains in Howard. He was with Mr. Colby when he did his field investigation prior to preparing the Report. However, his evidence was, that at no time did Mr. Colby express an opinion as to the cause of the washouts in the drain over the Gillespie land except to the extent of Mr. Colby' s statement in the Report, that: "It will also be necessary to repair the washout at or near Sta. 12 + 15 where the existing Spring has washed out the bank". Mr. Gelderland, in his evidence, did not refer to the seepage into the drain at Sta. 12 + 15 as a spring; he termed it "seepage into the drain from the hillside". This is perhaps more a question of semantics than what is actually happening at that location.

In his evidence in chief, Mr. Gelderland fully endorsed the theory of Mr. Sullo that the damage at both of the stations was caused by water flowing in the drain. It was not until it was pointed out to him, that the profile clearly indicates that the lowest point along the bank of the drain over the Gillespie lands is at Sta. 11 + 00 and that this is a natural point where surface waters from the Gillespie lands outlet into the drain. He then conceded that the damage at Sta. 11 + 00 was likely caused by the surface flows from the Gillespie lands into the drain. He however, continued to endorse Mr. Sullo's theory of the failure at Sta. 12 + 15. Nor did Mr. Gelderland at any time point to any physical evidence that would lead him to believe or on which to base that theory of the causes of the damage at the two locations.

In weighing Mr. Gelderland's evidence, it is incumbent upon us to keep in mind that he is an employee of Howard. From the tenor of the evidence at the hearing, it appears as though this has become a contest between the Councils of the two Municipalities. In the circumstances, there is a natural propensity most likely subconscious, for Mr. Gelderland to gravitate to a theory of failure most advantageous to his employer. It was not until the problem was brought to the attention of Howard by Gillespie and the position taken by Orford as to who should pay for the repairs, that Mr. Gelderland had any reason to pay more attention to this drain than to any of the other 600 drains in Howard.

There is an added element here to complicate our assessment of Mr. Colby's judgment. He is not here to speak to it. Howard has had to appoint Mr. Sullo and ask Mr. Gelderland to do it.

Mr. Gelderland testified that he worked very closely with Mr. Colby for 13 years. He is probably more aware of Mr. Colby's practices than anyone else.

In his evidence, Mr. Gelderland said, "Bill Colby always assessed the abutting owners and commonly this was 25% ", in situations such as this. In response to a question put by the Tribunal, he said, "It was common for Bill to use about 25% as the assessment to the adjoining owners for bank protection - although he might vary this by two or three percent - regardless of the cause of erosion".

We are quite prepared to accept this evidence, and we are satisfied that this is the reason the costs of the bank protection were assessed as set out in the Report. Mr. Colby followed his usual practice, regardless of the cause of erosion, because that is how he always did it.

When Mr. Sullo and Mr. Gelderland were called on by Howard to support the Report, this reasoning was not open to them to use, of course, since they had not prepared the Report. Instead, they must look for some logical reason that would support the costs split of 30% to the adjoining lands and 70% upstream as set out in the Report. Clearly, the only logical reason for such a split, is that, 70% of the erosion is being caused by the upstream lands and 30% by the adjoining lands, and this is how the two witnesses logically rationalized the assessment as levied by Mr. Colby. And, to that end, they both testified that in their opinion, the erosion at Sta. 11 + 00 and at Sta. 12 + 15 was caused chiefly by the water flowing in the drain and not by surface waters flowing from the adjoining lands into the drain. Mr. Sullo even went so far as to say in his evidence, that "I agree with Mr. Colby that the cause of the erosion is the flow of water in the drain. rather than the flow of water off the Gillespie lands", but no where in his Report does Mr. Colby express this or any other opinion for the cause of erosion. Mr. Gelderland when pressed by the Tribunal, conceded that the erosion at Sta. 11 + 00 was likely caused by the flow of surface waters from the Gillespie lands into the drain. He gave no reasons to explain the 30% - 70% cost split used by Mr. Colby in his Report, except to say, that it was common for him to use approximately this split regardless of the cause of the erosion.

We can only conclude that the evidence of both Mr. Sulla and Mr. Gelderland has been directed more towards logically rationalizing the assessment levied by Mr. Colby then by opinions based upon the physical evidence at the site.

In the area of expert evidence, the Tribunal is not entirely dependent upon the expert evidence brought before it. Two of the members of this panel are highly qualified and recognized Drainage Engineers with over 40 years of drainage engineering experience. In their view, all of the physical signs at the site lead to the inescapable conclusion that the damage caused to the drain bank at Sta. 11 + 00 was caused by surface waters flowing from the Gillespie lands into the drain; and the damage caused at Sta. 12 + 15 was primarily caused by the surface waters flowing from the Gillespie lands into the drain.

It is not a question of whether or not Mr. Colby made the apportionment on the basis of his engineer's skill, knowledge and judgment without fear of, favour to or prejudice against any person. We would not have disturbed that judgment were it not for the overwhelming physical evidence, which leads to the inescapable conclusion that the damage to the drain at the two locations was caused by the surface waters flowing from the Gillespie lands into the drain. There is the added evidence that Mr. Gillespie cleared trees from the drain bank and worked over them for several years. For these reasons, the assessments as levied by Mr. Colby cannot stand. We find that the damage caused to the drain at Sta. 11 + 00 was caused entirely by the surface waters flowing from the Gillespie lands into the drain. Therefore, all of the costs of repairing the damage at Sta. 11 + 00 in the sum of $282.00 shall be levied as Special Benefit Assessment against the lands of Gillespie.

We find that 80% of the damage caused to the drain at Sta. 12 + 15 was caused by the surface waters flowing into the drain from the Gillespie lands. Therefore 80% of the costs of repairing the damage at Sta. 12 + 15 in the sum of $687 .00 (80% of $859.00) shall be levied as Special Benefit Assessment against the lands of Gillespie.

It is interesting to note that Mr. Colby levied almost all of the costs of the other two points where erosion protection work is being installed, that is, at the southerly and northerly end of the 4-5 Concession Road culvert against Howard. The conditions there, in our view, are not any different than the conditions along the drain over the Gillespie lands.

The increase in the Special Benefit Assessment levied against the lands of Gillespie, being N Pt Lot 18, Con. 5, in the Township of Howard, shall be applied:

(1) To reduce by $211.00 all of the outlet assessments in the Assessment Schedule under the column headed "Erosion Control at Sta. 11 + 00" to zero.

(2) The balance of $474.00 shall be applied to reduce the outlet assessments under the heading of "Erosion Control at Sta. 12 + 15" in the ratio of the individual assessments to the total outlet assessment levied under that heading.

Mr. Gillespie has been paid the sum of $360.00 as an allowance for damages in spreading the spoil from the drain over his lands. Mr. Heyboer objects to this payment.

If the work had been done under s. 74 of the Act, there would have been no allowance granted to Mr. Gillespie for spreading of the spoil over his lands. However, since the work is being done under s. 78 of the Act, there is authority in the Engineer to grant an allowance for the damages caused by spreading of the spoil over the land. Mr. Colby has elected to do this. Since he has done so, we have no authority to interfere with his making the allowance.

Because of the changes we have made to the Assessment, we feel it is necessary to modify the provisions for the future maintenance of this reach of the drain. The last paragraph on page two of the Report shall therefore he deleted from the Report and the following substituted for

"After completion, the drainage works, other than the Erosion Protection Control Work at Sta. 11 + 00 and Sta. 12 + 15 shall be maintained by the Municipality at the expense of all lands and roads herein assessed and in the same relative proportions as the assessments levied under the heading "Drain" in the Assessment Schedule.

The Erosion Control Work at Sta. 11 + 00 shall be maintained by the Municipality entirely at the expense of Lot 18, Con. 5, Roll #2-185.

The Erosion Control Work at Sta. 12 + 15 shall be maintained by the Municipality at the expense of all lands and roads assessed under the heading "Erosion Control at Sta. 12 + 15" in the same relative proportions.

The erosion control work at the southwest and northwest corners of the culverts under 4 - 5 Concession Road shall be maintained by the Municipality at the expense of the Township Roads.

These maintenance provisions are subject to any variations made under the Drainage Act, R.S.O,. 1990, c. D. 17 ".

There will he no Order as to costs, and all parties are responsible for their own costs.

Dated: March 21. 1995.

Maurice Armstrong, P. Eng., Vice-Chairperson

H.H. Todgham, P. Eng., Vice-Chairperson

Judy Clark, panel member

Bernard J. Goodal, Chairperson