ONTARIO DRAINAGE TRIBUNAL
APPEAL:
McFEETERS DRAIN (RE) Township of Mariposa R. & D. McFeeters
McFEETERS DRAIN (RE), 1995 ONAFRAAT 13
STATUTE:
HEARING:
May 24, 1995
June 8, 1995 for Order July 6, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 13
TOWNSHIP OF MARIPOSA
McFEETERS DRAIN
IN THE MATTER OF:
An Appeal of R. & D. McFeeters pursuant to s. 8 (3) of the Drainage Act, R.S.O. 1990, c. D.17 - Council fails to appoint an Engineer after giving notice of its decision to proceed on the Petition of the Appellant, in the Township of Mariposa, in the County of Victoria.
DECISION
This Appeal came before the Ontario Drainage Tribunal on May 24, 1995 at the Township of Mariposa Council Chambers, Highway #7, Oakwood, Ontario.
All owners and roads and Authorities having a potential interest, 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, D. McFeeters on his own behalf and on behalf of R. McFeeters, the Petitioners, Jeffery Matthews as agent for the Township of Mariposa and other persons having a potential interest in the matter.
The Clerk of the Township of Mariposa, Sandra Lloyd, A.M.C.T., acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
- IT IS ORDERED AND DIRECTED
that the Council of the Township of Mariposa proceed, within 60 days of the date of this Order, to appoint an Engineer to make an examination of the area requiring drainage as described in the Petition, pursuant to s. 8 (1) of the Drainage Act, R.S.O. 1990, c. D.17.
- IT IS ORDERED THAT
if the Council fails to appoint an Engineer within the time provided for in paragraph one, the Ontario Drainage Tribunal shall appoint an Engineer.
- 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: June 8, 1995.
Bernard J. Goodal, Chairperson
REASONS FOR DECISION
This Appeal launched hy the Appellants, R. & D. McFeeters pursuant to s. 8 (3) - (Council failing to appoint an Engineer after deciding to proceed on the Petition), of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on May 24, 1995.
The Appellants are the owners of the easterly 124 ac. of Lot 1, Con. 13 in the Township of Mariposa. They purchased the lands three years ago. The Appellants carry on an extensive farm operation in cash crops and dairy herd. The farm is primarily used for cash crops (corn, barley, etc.) except for an area of 10 to 15 acres, which is in pasture.
The Appellants allege that there is an area requiring drainage comprising approximately 15 ac., including the pasture area, at the westerly boundary of their lands midway along the depth of the lot. It is a depressional area where the waters run into and it has no outlet. The second problem that the Petitioners wish to address is the need for an outlet for the tiles outletting onto their farm from the lands immediately to the east, being Pt. Lot 2, Con. 13, in the Township of Mariposa. The lands are owned by R. & T. Van Schaik.
The Appellants filed a Petition with the Clerk of the Township on September 20, 1994, describing the area requiring drainage as Con. 13, Pt. Lot 1, filed as Exhibit #2. At the Council meeting on October 17, 1994, Council passed a Resolution to proceed with the drainage works in accordance with s.4 of the Act. For reasons that haven't been disclosed at the hearing or in any of the evidence before us, at a Council meeting on January 10, 1995 Council passed a Resolution that "it decided not to appoint an Engineer pursuant to s.8(1) of the Act".
The Petitioners now appealed to the Ontario Drainage Tribunal pursuant to s.8(3) of the Act.
Dale McFeeters gave evidence at the hearing. He wants to proceed with the Petition to get an outlet for the area requiring drainage. He stated that there is water flowing into the low area comprising approximately 15 ac. as described above. Also, there are two tiles outletting from Lot 2, Con. 13, into his field in the northerly third of the lands from the lands owned by R. & T. Van Schaik. Much of the water flowing to the area requiring drainage is from his own lands; however, he stated that there is some from the westerly 75 ac. of the lot owned by L. Holder, the owner of the whole lot before severing the portion which is now owned by the Appellant. The Appellant indicated the area requiring drainage on a plan of the farm prepared for the purpose of the severance and filed as Exhibit #4. We put the question to Mr. McFeeters, whether or not he asked Council why they failed to appoint an Engineer. He stated he did not.
Mr. McFeeters contacted Mr. W.J. Kuntze, P. Eng., who is the Township Drainage Superintendent, in July 1992. At that time, he talked to him about another drain which requires repair and maintenance over other lands that he owns and about providing an outlet for the area requiring drainage. Mr. Kuntze advised him that there were probably three alternate ways in which he could go. One, he could build a drain on his own to provide an outlet for the waters. Two, he could enter into an agreement with the other owners whose water is to he provided for and construct a drain pursuant to an Agreement. Three, he could petition for a new drain under the Drainage Act. Mr. McFeeters selected the third alternative to get an outlet for the area requiring drainage. Although he did mention that he had spoken with his neighbours and none of them were interested "in cost sharing of the proposed outlet".
Richard Holder, the spouse of Louis Holder, the owner of the westerly 75 ac. of Lot 1, Con. 13, gave evidence at the hearing. He submitted that he does not want to impede progress; however, in his view, if the Petitioner wants to drain his land, he can do so very readily on his own over his own lands to outlet into the natural watercourse coursing across the southerly third of the lands. He does not want an open drain across his property. He is the predecessor in title to the Appellant to the lands of the Appellant. He had farmed them since he was 12 years old. It is his evidence that there is approximately a 10-ac. parcel, which is now fenced off and used for pasture, that does require drainage. Most of these waters are waters that flow to the low area from the lands of the Appellant.
In his opinion, the remainder of the farm is one of the better-drained farms in the area. On occasions, he had rented these lands. He had received a premium rent for them because they could be planted earlier than most lands around. Oftentimes, the barley can be sown in April. Similarly, the crops can be taken off later in the year if it becomes necessary. It is his suggestion that the area be drained southerly along the boundary fence between his lands and the lands of the Appellant, approximately 300 ft. to the natural watercourse. The natural watercourse is a sufficient outlet for the waters. Approximately 15 years ago, he and his neighbour had straightened the watercourse. He filed a plan of the area, being part of the severance plan, showing the area requiring drainage and the probable outlet for the area, as Exhibit #5. His written submission was filed as Exhibit #6. If he were the owner of the lands, he would leave it as it is, since the field is not that wet, so it cannot be cropped each year. He pointed out that Mr. McFeeters does not get on the land as soon as it is ready for seeding. The first year that he had it, he did not begin seeding until the end of May. Mr. Holder thought that he was going to summer-fallow the lands. This year, he could also have seeded before the end of April, but only started recently.
Richard Van Schaik, the owner of Lot 2, Con. 13, stated that he is prepared to join the Appellant to provide an outlet for his tiles that are outletting onto the Appellants' lands. It appears as though they had spoken about it approximately two years ago; however, nothing had come of it since neither of them pursued it until now.
We were rather persistent in pressing Mr. Matthews, the agent for the Township, to set out the reasons why Council decided not to appoint an Engineer. Mr. Steve Carpazin, the Reeve, then tendered some remarks, that he is not prepared to set out the reasons; however, Council has instructed Mr. Matthews to speak on their behalf, and they will be bound by what Mr. Matthews submits at this hearing.
The Township called no further evidence. In his final submission, Mr. Matthews reiterated that he had been instructed by Council to speak on their behalf. Council has decided not to appoint an Engineer on the basis of their local knowledge and information. He pointed out that the Petitioner has requested that Mr. J. W. Kuntze, P. Eng., be the appointed Engineer. It appears as though, initially, the Petitioner had no specific preference. However, at the hearing, at the instance, to some extent, of the prompting of Mr. Matthews, Mr. McFeeters did say that he would like to see Mr. Kuntze be appointed. It so happens that Mr. Kuntze is also the Drainage Superintendent of the Township. Mr. Matthews recalled that the Drainage Referee had on several occasions pointed out that there is a conflict of interest if the appointed Engineer is also the Township Drainage Superintendent. It is for this reason, to avoid the appearance of conflict, that Mr. Kuntze should not be appointed. He also pointed out that the soil in the area requiring drainage is clay rather than the sandy loam over the rest of the farm which has much better drainage characteristics. He then stated that there is no evidence that the Council is opposed to the proposed work; however, the indication is that the area could be provided with a proper outlet without the appointment of an Engineer. All of the neighbours and Council want to cooperate in solving the problem.
Mr. McFeeters in his final submission, seemed to see that there is a spirit of cooperation, and hopefully, this matter will be resolved without further dissension.
Without the benefit of the reasons of Council why they failed to appoint an Engineer, we are left entirely on our own with the rather meagre evidence to decide the issue before us.
There is no question, there is no disagreement with this whatsoever, that the area is an area requiring drainage. Council has accepted the Petition and decided to proceed with the work. For some unknown reason they then decided or failed to appoint an Engineer. In our view, now that Council had accepted the Petition and decided to proceed, unless some cogent reason is given why it should not proceed, Council is bound to proceed to appoint an Engineer. There may be cases where, between the decision to proceed and the decision to appoint an Engineer, intervening events or facts come up that dictate that an Engineer should not be appointed, then there is grounds for not doing so, even though it has been recognized that there is an area requiring drainage. Such is not the case here. Here the case is quite clear that there is an area requiring drainage. No reason whatsoever has been given for the failure of Council to appoint an Engineer. In the circumstances, it is incumbent upon Council to appoint an Engineer.
It may very well be that the proposed outlet can be taken over the Appellant's lands. However, that cannot be determined until an Engineer has an opportunity to investigate the conditions and the requirements for the area requiring drainage to make that determination. The Appellant is entitled to that appointment, and consequently, the next step in the proceedings must be taken.
An Order will therefore go directing Council to appoint an Engineer to prepare a Report within 60 days of the date of this Decision. Failing Council’s appointment of an Engineer within that period, the Tribunal will then appoint an Engineer to prepare the Report.
There will be no Order as to costs, and all parties will be responsible for bearing their own costs.
Dated: July 6, 1995.
H. H. Todgham, P. Eng., Vice-Chairperson
Rene Monpellier, panel member
Bernard J. Goodal, Chairperson