ONTARIO DRAINAGE TRIBUNAL
APPEAL:
NORTH BRANCH OF THE DINGMAN CREEK MUNICIPAL DRAIN EXTENSION 1993 (RE) Township of North Dorchester G. & S. Braun
NORTH BRANCH OF THE DINGMAN CREEK MUNICIPAL DRAIN EXTENSION 1993 (RE), 1995 ONAFRAAT 14
STATUTE:
HEARING:
April 25, 1995
June 15, 1995 for Order July 13, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 14
TOWNSHIP OF NORTH DORCHESTER NORTH BRANCH OF THE DINGMAN CREEK MUNICIPAL DRAIN EXTENSION
IN THE MATTER OF:
An Appeal of G. & S. Braun from the Report of W. J. Bartlett, P. Eng., dated September 16, 1994, on the North Branch of the Dingman Creek Municipal Drain Extension 1993, in the Township of North Dorchester, in the County of Middlesex.
DECISION
This Appeal came before the Ontario Drainage Tribunal on April 25, 1995, at the Dorchester Arena, 2066 Dorchester Road, Dorchester, 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, J.W. Bartlett, P. Eng., who prepared and presented the Report dated September 16, 1994: the Appellant G. & S. Braun and other assessed owners.
The Clerk of the Township of North Dorchester, R.G. LaCroix, A.M.C.T., acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
- IT IS ORDERED THAT
the drainage works shall be modified to locate the infiltration pond within the Highway #401 right-of-way.
- IT IS ORDERED THAT
the Benefit Assessments levied against the following lands be reduced by 50%:
SW Pt. Lot 20, Con. 1, Roll #50-370 owned by G. & S. Braun SE Pt. Lot 21, Con. 1, Roll #50-367 owned by R. & P. Armstrong SW Pt. Lot 21, Con. 1, Roll #50-366 owned by J. & M. Curk.
- IT IS ORDERED THAT
the reduction in the Benefit Assessments ordered in paragraph two above, in the sum of $6,615.00 shall be added to the Benefit Assessment of Highway #401 - Ministry of Transportation for Ontario.
- IT IS ORDERED THAT
the ditch which serves as an outlet for the tile portion of the proposed drainage works and which is located on the S ½ Lot 21 and 22, Con. 1, S. R. T. , from the outlet end of the tile to the inlet end of the new road culvert under Cromarty Drive shall be incorporated as part of the North Branch of the Dingman Creek Municipal Drain Extension 1993.
- IT IS ORDERED THAT
the first and last sentence in the paragraph on page eight of the Report be deleted and that the following be added as a second paragraph on page eight of the Report:
The North Branch of the Dingman Creek Municipal Drain Extension 1993 is to be maintained by the Township of North Dorchester with the cost of such maintenance being assessed as follows: (a) The cost of maintaining the road culvert under Cromarty Drive is to be paid by the Road Authority having jurisdiction over Cromarty Drive. (b) The cost of maintaining the tile portion of the drain together with the detention pond area and the infiltration pond area is to be paid by the lands assessed in the Schedule on page nine of the Report headed, "Schedule of Assessment - Closed Drain" and by the Ministry of Transportation in the same relative proportions as the sum of the assessments levied against them in that Schedule under the heading, "Benefit Liability" and "Outlet Liability". (c) The cost of maintaining the open portion of the drain is to be paid by the lands and roads assessed in the Schedule on page 10 of the Report headed, "Schedule of Assessment Open Channel" and in the same relative proportions.
- IT IS ORDERED THAT
access to the drainage works shall be over the lands of R. & P. Armstrong; being the E1/2 Lot 21, Con. 1, S.T.R. and that the allowance granted for the access to J. & M. Kirk and E. & S. Bloetjes in the sum of $1,300.00 shall be paid to R. & P. Armstrong.
- 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 15, 1995
Bernard J. Goodal, Chairperson
REASONS FOR DECISION
This Appeal launched by the Appellant, G. & S. Braun pursuant to s. 48 and s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on April 25, 1995.
The proceeding was initiated by the Council of the Township of North Dorchester in response to a Petition of the Ministry of Transportation for Ontario (MTO) pursuant to s. 4(1)(c) of the Act.
The area requiring drainage is the reconstructed and widened Highway #401 in Lots 20 and 21, Con. 1, S.R.T., and a triangular area in the northwest corner of the farmlands owned by the Appellant G. & S. Braun, Lot 20, Con. 1, S.R.T.
The problem area is located at the downstream (south) end of the culvert which crosses under Highway #401. The lands south of the culvert are at a higher elevation than the invert of the culvert. The water ponds to a depth in excess of 1 m. Excess waters spill over onto the lands of the Appellant, then flow southwesterly along a natural water run to eventually flow out into the North Branch of Dingman Creek Municipal Drain.
The investigation indicated that an outlet for the area requiring drainage could be provided by constructing a drain southwesterly from the highway culvert, over the surface water run to an outlet into the North Branch of Dingman Creek Municipal Drain. R. & P. Armstrong, the owner of the SE Pt. Lot 21, Con. 1, immediately downstream of the Appellant's land, has installed a tile along the surface water run as an outlet for the tile drainage system for the agricultural lands. This tile is not large enough to accommodate the surface flows or be of any value in draining the ponding waters at the highway.
A storm water impact study prepared for MTO by M.M. Dillon Engineering Consultants predicted that the reconstruction and widening of Highway #401 will result in an increase in both the rate and volume of storm water runoff from the highway. According to the study, the peak flow rate would triple, and the runoff volume would double over their present values.
The Report recommends the construction of a tile drainage system across Pt. Lot 20 and 21, Con. 1, S.T.R., to outlet into an existing shallow open channel, to which no improvements will be made, but which is to be incorporated as part of the drainage works. The open channel crosses Cromarty Drive through a culvert which is out of repair and will be replaced by a new culvert, to outlet into the North Branch of the Dingman Creek Municipal Drain.
To reduce the amount of erosion and sedimentation on the lands downstream of the highway culvert, a storm water detention pond and an infiltration pond are to be constructed immediately downstream of the highway culvert in the triangular area in the northwest corner of the Appellant's lands. The area of the two ponds has been determined for a ponding time of 5.5 hours and a one-in-ten-year storm. The detention pond at its peak will cover an area of 0.37 ha to a maximum depth of 0.45 m. The infiltration pond is to be 6 m x 20 m and designed to accept 1/2" of rain on the upstream watershed. The purpose of this pond is to intercept sediments and remove contaminants before they can reach the downstream drainage system. The total estimated cost of the drainage works is $102,900.00, including the cost of removing and reinstalling a new 36" diameter culvert across Cromarty Drive, which is $49,300.00. That part of the work has already been completed. The costs of the Cromarty Drive culvert have all been assessed against Cromarty Drive (Township of North Dorchester) and Ontario Hydro pursuant to s. 26 of the Act. The drainage works are to be called the North Branch of Dingman Creek Municipal Drain Extension 1993.
The northwest corner of the Appellants’ lands, a triangular area of approximately 0.35 ha. is overgrown with swamp grass and cannot be worked. Further downstream at the westerly boundary of the Armstrong lands (Lot 21, Con. 1, S.R.T.) the water ponds and drowns out much of the crop.
The Engineer has levied the sum of $3,450.00 as benefit assessment and the sum of $810.00 as outlet liability assessment against the lands of the Appellant for a total assessment of $4,260.00 with an affected area of 2.6 ha.
The Appellant appealed his assessment to the Court of Revision. The Court of Revisions dismissed the Appeal.
In determining the Appellants’ assessment, the Engineer used the hypothetical drain method. The hypothetical drain required to provide drainage for the affected area of the Appellants’ lands would be a 6" tile to carry the waters to an outlet approximately one-half kilometre away at a cost of $4,400.00. The Engineer adjusted this amount to $4,260.00 and levied a total assessment against the Appellant's lands of $4,260.00.
The Appellant, George Braun, in addition to his oral evidence at the hearing, submitted a brief filed as Exhibit #4, which includes Items 1 - 20. Each of the items is filed in support of a submission which the Appellant wished to put forward. As an example, the first item is a letter dated June 12, 1992 from the Engineer to Don Weir, the Township Drainage Superintendent, putting forward a preliminary cost estimate after the on-site meeting. In that letter, the Engineer states that the net costs to Lot 20, Roll #50-370 (the lands of the Appellant) would be $500.00. The Appellant points to this and states that his costs are now eight times that sum. However, the Engineer notes that those would be the net costs, that is, the total assessment levied against his lands less the allowances granted to the lands and the one-third Provincial grant. At the on-site meeting, it was proposed that the access to the drain was to be over the Appellant's lands. The allowance granted to him for the access was $1,300.00. The Appellant would not permit the access to the drain over his lands and consequently gave up the $1,300.00 in allowance. If the access to the drain had been over his land, his net costs would have been $460.00. The access having been removed from his lands, his net costs are now $1,760.00.
The original Report is dated June 17, 1994. In his appeal of this Report to the Court of Revision, the Appellant objected to his assessment on the grounds that he receives no benefit from the drainage works. He also objected to the allowance granted to him for the holding pond. He alleged that the assessment against MTO is "grossly excessive". In that, MTO asked for the removal of a small quantity of static water at the 401 culvert, which could easily be drained at considerably less cost than their assessment alone. He added that the assessments against Armstrong and Curk are inadequate, since the proposed drainage work provides a major benefit to their properties.
The Court of Revision was convened on July 15, 1994. At the hearing, the Appellant alleged that the Council was misinformed and misinstructed by the Engineer. He further alleged that he had consulted with MTO and they had agreed with his suggestion that the detention pond could be constructed on the highway right-of-way. In their letter of October 19, 1994, MTO suggested that the detention Pond could not be accommodated within the Highway right-of-way; however, a second look could be taken at the infiltration pond because of its smaller size. The Engineer's reason for locating the ponds on private property is that it is his policy not to locate drainage works on a highway right-of-way, and furthermore, that there is not sufficient room within the right-of-way to locate the detention pond.
Because of the allegations made by the Appellant Braun at the Court of Revision, the Court of Revision referred the Report back to the Engineer.
The Report was revised and resubmitted to Council, dated September 16, 1994. Council considered the revised Report on October 11, 1994. Because of the Appellant's objections, the Engineer had moved the access route to the drainage works over the lands of J. & M. Curk and E. & S. Bloetjes, the owners of the W½ Lot 21 and Lot 22, Con. 1, S.T.R., respectively. Bloetjes later informed the Engineer that he did not wish to have the access route on his lands. Mr. Armstrong consented to accept the access route and consequently, the report needs to be amended by transferring the allowance for the access route from Curk and Bloetjes to Armstrong. The open channel downstream of the closed drain was intended to be incorporated as part of the Municipal Drain.
At the consideration meeting on October 11, 1994, the Appellant put forward his expert, W. J. Lenson, P. Eng., M.E.S., who has prepared an alternate proposal as an outlet for the ponding waters at the south end of Highway #401 culvert, dated September 14, 1994. He introduced his proposals as two alternative routes, "possibly being feasible". The first alternative is to take the waters westerly by means of an open drain, into the adjacent watershed - the Harris/Connors Municipal Drain. The second alternative proposes to install a solar pump to pump the water. However, the Report makes no provision for the discharge from the pump, except stating that the field data collected indicates that a solar pump option is feasible and the water to be distributed anywhere in Lots 20 & 21, or to the portion of the highway ditch which drains into culvert #2. This second alternative also suggests that the waters be taken to the adjacent watershed. The estimated cost of the solar pump installation is $8,000.00.
The Engineer made the same reply to the alternatives proposed by Lenson as he did at the hearing before us. He stated that the Harris/Connor Drainage Works was not designed for the additional waters that it would have to convey if the waters from this culvert were diverted to it. This would be adding 9.1 ha of watershed to the drainage works, which he does not recommend since the drainage works are not designed for the water. Furthermore, the waters should not be taken that way to be discharged into another watershed.
As to the solar pump proposal, the Engineer raised the same question: "Where will the pump outlet?". The suggestion by Mr. Lenson was that this could be an experimental project suggested by a Professor at the University of Western Ontario and constitute a demonstration exhibit.
At that hearing, the Appellant also charged corrupt practices by the Municipal officials with respect to the project.
Council again adjourned the matter to October 24, 1994. At that meeting, further particulars were worked out with respect to the detention and infiltration pond. The Engineer pointed out that the infiltration pond is primarily being constructed to permit the containment of contaminants that might be running off the highway. It is the first flush stage of a potential ½" rain. More severe storms would deliver water to the retention pond, which would pond to a depth not exceeding 0.75 m. The detention period would be approximately 5½ hours. Council adopted the Report at this meeting and set the date for the Court of Revision for November 21, 1994 at 8:30 a.m.
Three of the assessed owners appealed to the Court of Revision - Bruan, Armstrong and Curk. The Court of Revision dismissed all three appeals and upheld the assessments as levied by the Engineer.
There is an unfortunate trend, both among Engineers and the Court of Revision, (in a number of our previous Decisions, we have attempted to discourage the trend); wherein the Engineer and the Court continue to use the assessed owner’s net assessment in passing on the equity of the assessment. That is, the assessment levied by the Engineer, less any allowances, less the one-third grant of the Provincial Government. In this particular case, the Deputy Reeve asked the Engineer to review the amounts of the "actual" assessment, given that there would be some allowance and a one-third grant. The Engineer reported that the net cost to Curk is $100.00 and the net cost to Armstrong is $925.00, and the net cost to Braun is $1,800.00.
With all due respect to the Engineers and the Court of Revision, this is not the proper approach in determining the equity of an assessed owner’s assessment. The allowances are compensation for the damages that the assessed owner suffers or for the land that he gives up for the purpose of the drainage works. The Provincial Grant is discretionary, although as we understand it, it has been granted quite regularly in the past, there is always the possibility that it may not be granted in the future. Furthermore, the allowances and the one-third grant have nothing to do with the equity of the assessed owner’s assessment. The assessments as levied are for Benefit and Outlet. With respect to the benefit assessment, the only thing to consider is whether or not the advantages that accrue to a particular parcel of land have in fact a value of at least what the lands have been assessed for benefit. When considering the equity of the outlet assessment, the factors to be considered, as provided by s. 23 of the Act, is the volume and the rate of flow of water artificially caused to flow. If the Engineer or the Court, after reviewing the assessment levied on the basis set out above, is not convinced that the assessment is equitable, then the Engineer or the Court must reconsider the assessment to determine an equitable value for it. It is of no help whatsoever in making that determination to refer to the net assessment (that is, the out-of-pocket expenses) that the assessed owner must pay.
The Appellant has filed his appeal in the standard form. The Appeal filed on October 27, 1994 is pursuant s. 48 (l)(a)(b) and (c). To that form has been attached Appendix "A" as a supplement to the Appeal under s. 48 (l)(b). Appendix "A" sets out two objections; one, the proposed detention pond proposed by the Engineer is unnecessary; and two, the proposed infiltration pond should be located on MTO property where the waters presently pond and not on the Appellant's lands. The other Notice of Appeal is marked not as an Appeal from the decision of the Court of Revision, but rather as an Appeal from "the omission, neglect or refusal of the Court of Revision to hear or decide an Appeal within 21 days of the pronouncement of the Decision or of any matter evidencing such omission, neglect or refusal".
The Appellant led no evidence with respect to the last grounds noted above. It is clear before us that the Court of Revision did not omit or neglect or refuse to hear or decide the Appeal within 21 days. The Appeal must therefore be dismissed on those grounds.
However, the evidence of the Appellant at the hearing seems to indicate that the intention was to appeal from the Decision of the Court of Revision. An Order will therefore go amending the Notice of Appeal accordingly, and the Appeal will be deemed to have been filed as an Appeal from the Decision of the Court of Revision.
There is a further supplement to the Notice of Appeal dated November 9, 1994. In this supplement, the Appellant recites a discussion he had with Mr. Wier (the Drainage Superintendent) with respect to the detention pond. The Appellant alleges that the Drainage Superintendent told him that the pond could not be constructed without his consent. He then objects to the berm being constructed on the line between his property and the Armstrong property. He seems to indicate that this is illegal. It is his understanding that the Engineer had made it clear that downstream property owners are under an obligation to accept natural water runoff. We interject here to point out that this is just the opposite of the law. Surface water runoff need not be accepted by downstream owners. They can erect a barrier to keep it from entering on their lands.
He then goes on to say that the creation of the pond effectively and permanently deprives him of the control of his land and in fact constitutes expropriation. He adds, since Council feels that $4,398.00 is a reasonable assessment to drain one acre of land, in his view, the land must be worth at least $15,000.00 per/ac for the purpose of the expropriation. He concludes by stating that since none of the affected property owners requested this project, the total cost should be borne by MTO who created the problem and then petitioned to have it resolved.
Mr. Braun's presentation at the hearing was both oral and written. His written submission has been filed as Exhibit #4. It consists of 20 items, each of which constitutes a fact or information in support of the grounds of his Appeal. We have already reviewed much of that evidence. That which we have omitted, we deem not to be germane to the issues before us.
One of the points that has not yet been discussed is Mr. Braun's submission that the watershed for the proposed drainage work is not correct. It is his submission that his lands drain northerly towards Highway #401, and consequently, the drain should not be carried southerly as proposed by the Engineer. According to his measurements and information, the level of the ground at the southerly end of the Highway #401 culvert is at an elevation of 80.5 ft., and his lands are at an elevation of 82 ft. He asked the Engineer to explain how the water is going to flow from the Highway over his lands under the circumstances. In support of that position, he put forward Item 9, Exhibit #4 "Dingman Creek - Sharon Creek Sub Watersheds". The plan attached to that folder seems to indicate that the watershed limits do in fact fall on the southside of Highway #401. There is a suggestion that perhaps the construction and reconstruction of Highway #401 has distorted the natural watershed for the drainage area. The Engineer has specifically checked this out, referring to base mapping, aerial photographs, and his own observations, and has concluded that the watershed, in fact, extends slightly north of Highway #401 at this location. We accept the Engineer's determination of the watershed and reject the Appellant's contention.
Mr. Bruan also points to a letter of MNR, wherein they state that the ditch inlet structure at Sta. 0 + 617 is prone to failure due to clogging and will likely require frequent maintenance and possible early replacement. They suggested another type of inlet should be considered.
The Engineer commented on that feature of the design, and he is satisfied that there is no better inlet structure than the one proposed. The Report has provided for the maintenance of the structure, and in the opinion of the Engineer, it will perform satisfactorily.
Many times, since this proceeding was commenced, the Appellant had directed many of his complaints to MTO. It appears to us that MTO has listened to these complaints patiently and investigated all suggestions made by the Appellant. It clearly pointed out to him that it is not for them to design the proposed drainage works. They have Petitioned under the Act. An Engineer has been appointed. It is up to him to provide an outlet for the area requiring drainage. They urged him to take his suggestions and objections to the appointed Engineer.
Item 12 in Exhibit #4 is the Report of W.J. Lenson, P. Eng., M.E.S. There is no curriculum vitae any place in the Report, nor has any evidence been led as to Mr. Lenson's qualifications. Mr. Lenson is a Professional Engineer. However, there is nothing from which we can conclude that he is an expert in drainage. We have already reviewed the two alternatives which he has proposed. The Engineer carefully and meticulously reviewed the proposals, and in his opinion, they do not provide an acceptable solution to the MTO drainage problem.
Furthermore, Mr. Lenson was not available at the hearing as a witness. There was no opportunity to cross-examine him on his proposals or to assess his expertise in the area of drainage. Mr. Braun said that it would cost too much money to bring Mr. Lenson to the hearing. That is probably quite true. Unfortunately, if a party to a proceeding tenders in evidence a Report of an expert, it is necessary almost in every case, to have him attend at the hearing, otherwise, there is no opportunity to test the practicability or efficacy of the proposed alternatives. His statement at the meeting of October 11, 1994 to consider the revised Report, that "the Report outlined the alternatives as, "possibly being feasible" indicates that perhaps he lacked confidence in the practicability of the proposed alternatives.
It should be pointed out here that MTO did not request either the detention or the infiltration pond. It appears from the evidence that these were incorporated as part of the drainage works at the instance of MNR and the Upper Thames River Conservation Authority. As already mentioned, there are significant wetlands downstream of the proposed drainage works and the Foster Ponds. It was the opinion of MNR and UTRCA, that sufficient precautions should be taken to prevent sediment and other contaminants from entering the wetland areas and also to ensure that any serious spill on the Highway could be contained before it reached the wetlands. It is for these reasons, as we see the evidence, that the detention and infiltration ponds were incorporated as part of the drainage works.
The Engineer noted that the total costs of the two ponds is being assessed against MTO.
In his efforts to convince us that the ponds should be located entirely on Highway #401 right-of-way, Mr. Braun produced a sketch filed as Item 15, Exhibit #4. At one of the consideration meetings, he indicated to Council, that he had spoken to MTO and that MTO felt that there was adequate space within the Highway #401 right-of-way to construct the ponds. Items 16 and 17 of Exhibit #4, indicate that Mr. Braun had suggested to MTO that if a guardrail was erected along the south shoulder of Highway #401 in the vicinity of the ponding area, it would satisfy the concerns of traffic safety.
Item 18 is a series of photographs taken in the area requiring drainage. We have visited the site and investigated the area; therefore, we are quite familiar with it. Items 19 and 20 are letters of Mr. Armstrong to the Township regretting that he cannot attend the meetings but wants to express his concerns about the proposed drainage works, including their high costs and a complaint that MTO has not attended any of the meetings to give answers to assessed owners inquiries and that MTO was fully aware of this situation many years ago, before they started the reconstruction of the Highway and should have made sufficient provisions for these waters at that time. He urges Council, that it should consider some other alternatives, and he refers to the privately hired Engineer who proposed a solution that requires no use of his property and is approximately $80,000.00 cheaper. He accuses Council of not investigating the alternatives before making their final decision.
Mr. Armstrong forwarded to us a similar letter dated April 24, 1995, filed as Exhibit #3. He regrets that he cannot attend the hearing because his employment takes him out of town on an irregular schedule. He does not object to the drain going across his property. He does, however, object to "being forced to pay for something that he does not need or ask for, nor get any value from". He points out that he has an adequate tile drainage system to provide drainage for his lands. It was not until the reconstruction and widening of Highway #401, that water started to pond over approximately 2 ac. of his lands. He argues, even assuming that the 2 ac. were ·being destroyed by the water previously, an assessment of $7,500.00 cannot be justified as the cost of the relief of the injury to 2 acres of land. He has talked to a drainage contractor who informed him that it would take approximately $500.00 per/ac. to systematically tile his fields. There is no justification for the amount that has been assessed against his lands.
There has been no evidence led by the Appellant that the benefit to be derived from the drainage works are not commensurate with the estimated cost thereof. That ground of Appeal must therefore fail.
It is our view that the compensation and allowances made by the Engineer are adequate and fall within the range that other Engineers would have provided. It is to be noted that the lands of the Appellant to be taken or used for the ponds are best termed a "mud hole". After the drainage works are constructed, this mud hole will become part of the arable lands. There will be times when the water will pond in the detention pond; however, with the retention time of 5.5 hours the Appellant will be able to work these lands. The drainage works will greatly enhance the rear part of his farm. Consequently, the market value of the Appellant's property will rise considerably. In addition to this, if he so wishes, he will have a proper outlet for any tiling that he wants to do in the affected area. The surface waters will be completely controlled. He will, in effect, have recovered the land which has been useless to this time.
What are the benefits accruing to the lands of Mr. Armstrong? As the Engineer pointed out, the erosion will be eliminated. The ponding, which is now occurring on his lands, will be eliminated. Care must, however, be taken not to value this advantage too high, since we accept the evidence that this ponding was not very serious prior to the reconstruction and widening of Highway No. 401 and that the tiling system that is there now was providing adequate drainage for the lands. There will, however, be an added advantage. Furthermore, the drainage works will provide a much better and a more efficient outlet for any additional subsurface drainage that he wants to do. It, therefore, cannot be said that benefits do not accrue to the lands of Mr. Armstrong.
However, the advantages accruing to the agricultural lands are collateral to the primary purpose of the drainage works, and it might even be said that the only purpose for constructing these drainage works is to provide an outlet for the serious condition that has developed on the MTO right-of-way. MTO considers it a hazard to the public. There is extensive ponding to a depth of 1 m along the southerly limit of the right-of-way. This cannot be good for the roadbed either.
Therefore, MTO should be paying not less than two-thirds of the cost of these drainage works and not more than 85 % because of the very limited benefits accruing to the downstream lands. MTO has been assessed the sum of $18,630.00 by way of benefit and $15,496.00 by way of outlet for a total assessment of $34.126.00, out of a total estimated cost of $49,600.00, excluding the costs of the Cromarty Drive culvert assessed against the Municipality under s. 26 of the Act in the sum of $44,300.00 and the sum of $5,000.00 assessed against Ontario Hydro under s. 26 of the Act, that is approximately 69% of the costs.
In the circumstances here, it is our view, that MTO should be assessed at the upper limit of approximately 85 % of the cost of the work excluding the increase in costs assessed under s. 26 of the Act. The assessment added to the MTO should be applied to reduce the benefit assessments against the lands of Braun, Armstrong and Curk. If these benefit assessments are reduced by 50%, the result will be an equitable apportionment of the costs of these works among the lands and roads assessed within the watershed.
An Order will therefore go, that the benefit assessment levied against the lands of Braun, Armstrong and Curk be reduced by the sum of 50% and that the reduction in the benefit assessment ordered above in the sum of $6,615.00 shall be added to the benefit assessment of Highway No. 401 - Ministry of Transportation for Ontario.
We agree with Mr. Braun that the infiltration pond should be located within the Highway #401 right-of-way. The evidence clearly shows that there is room to locate it in the right-of-way. The only reason the Engineer did not locate it in the right-of-way is because of his policy not locating drainage works constructed under the Act within road allowances. He does this because, when it is necessary to enter the lands for the purpose of repair and maintenance, a permit is required from the Highways. It seems to us that neither of these reasons, in these circumstances, is an adequate justification for using Mr. Braun's land to construct the infiltration pond on it. The purpose of this pond, as has already been stated, is to remove contaminants and intercept sediments from the Highway before they can reach the downstream drainage system. These contaminants and sediments originate on the Highway and, consequently, in our view, since there is room to construct the pond on the Highway right-of-way, should remain on the Highway right-of-way. The lands of Mr. Braun should not be burdened with that sediment and contaminants.
An Order will therefore go that the drainage works shall be modified to locate the infiltration pond within the Highway #401 right-of-way. The Report fails to state that the ditch which was intended to be incorporated and serves as an outlet for the tile portion of the proposed drainage works and which is located on the S½ Lot 21 & 22, Con. 1, S.T.R., is to be incorporated as part of the drainage works. We brought this to the attention of the Engineer at the hearing. He has consented to include a paragraph in our Order directing that it be incorporated as part of the North Branch of the Dingman Creek Municipal Drain Extension 1993.
An Order will therefore go, that the ditch which serves as an outlet for the tile portion of the proposed drainage works and which is located on the S½ Lot 21 & 22, Con. 1, S. T.R., from the outlet end of the tile to the inlet end of the new road culvert under Cromarty Drive shall be incorporated as part of the North Branch of the Dingman Creek Municipal Drain Extension 1993.
Because the open portion of the drainage works has been incorporated as part of the Municipal drain and due to certain ambiguities in the provisions on page eight of the Report for the Future Maintenance of the Drainage Works, it is necessary to amend those provisions.
An Order will go that the first and last sentence in the paragraph on Page 8 of the Report be deleted, and the following be added as a second paragraph on Page 8 of the Report:
"The North Branch of the Dingman Creek Municipal Drain Extension 1993 is to be maintained by the Township of North Dorchester with the cost of such maintenance being assessed as follows:
(a) The cost of maintaining the road culvert under Cromarty Drive is to be paid by the Road Authority having jurisdiction over Cromarty Drive.
(b) The cost of maintaining the tile portion of the drain together with the detention pond area and the infiltration pond area is to be paid by the lands assessed in the Schedule on page nine of the Report headed, "Schedule of Assessment - Closed Drain" and by the Ministry of Transportation in the same relative proportions as the sum of the assessments levied against them in that Schedule under the heading, "Benefit Liability" and "Outlet Liability".
(c) The cost of maintaining the open portion of the drain is to be paid by the lands and roads assessed in the Schedule on page 10 of the Report headed "Schedule of Assessment Open Channel" and in the same relative proportions.
Finally, an amendment to the Report is required to define the new location of the access to the drainage works and transfer the allowance to the owner of those lands.
An Order will therefore go, that access to the drainage works shall be over the lands of R. & P. Armstrong; being the E½ Lot 21, Con. 1, S.T.R. and that the allowance granted for the access to J. & M. Curk and E. & S. Bloetjes in the sum of $1,300.00 shall be paid to R. & P. Armstrong.
Dave Bloetjes, the son of the owners of Lot 22, Con. 1, S.T.R., E. & S. Bloetjes, although not an Appellant or even an assessed owner in the watershed, provided some enlightening information at the hearing. He has been farming all of the lands abutting on the drain since 1980. Before that, his father farmed the lands. He feels that MTO created the problem with the construction of Highway #401. Since the widening and the reconstruction started, the problem is worse than it was. He noted that the lands of the Appellant at the Highway were always wet. He was obliged to leave it and work around it. There is even a muskrat hut on the Braun lands in the triangular area. Approximately five years ago, he was able to farm the wet area since it was a real dry year. The following year, he was unable to take off the wet crop because it was too wet. The waters always ran across the Armstrong lands and ponded to an extent of approximately 2 ac. He stated that his father put in the tiles on the Armstrong lands in 1977. The system was adequate prior to the reconstruction and widening of Highway #401. The waters have always flowed along the surface water run; however, they have increased, and the ponding on the Armstrong lands has become more extensive. He is familiar with similar works having been constructed north of Highway #401. They have produced an excellent result. He can see no reason why the works won't work here.
He entered in evidence, as Exhibit #5, six photographs taken in mid-March 1995, showing the waters coursing over the water run, the extensive ponding, the muskrat hut on the Braun lands, and the ponding on the Armstrong lands. The photographs are a clear pictorial representation of the area and convincing evidence that it is necessary to do something to relieve the seriousness of the condition, and proposed drainage works will, in all probability, do that.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: July 13, 1995.
Betty Lambert, panel member
H.H. Todgham, P. Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson.