ONTARIO DRAINAGE TRIBUNAL
APPEAL:
PORT BRUCE DRAIN (RE) Township of Malahide R. Wilkins and R. Lee
PORT BRUCE DRAIN (RE), 1995 ONAFRAAT 15
STATUTE:
HEARING:
June 8, 1995
July 11, 1995 for Order August 17, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 15
TOWNSHIP OF MALAHIDE
PORT BRUCE DRAIN
IN THE MATTER OF:
an Appeal of R. Wilkins and R. Lee from the Report of J. R. Spriet, P. Eng., dated November 10, 1994, on the Port Bruce Drain, in the Township of Malahide, in the County of Elgin.
DECISION
This Appeal came before the Ontario Drainage Tribunal on June 8, 1995, at the Township of Malahide Council Chambers, 87 John Street South, Aylmer, 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. R. Spriet, P. Eng., who prepared and presented the Report dated November 10, 1994; the Appellants, R. Wilkins and R. Lee and other assessed owners.
The Clerk of the Township of Malahide, R.R. Millard, acted as Clerk of the Tribunal. On hearing the evidence, the submissions and reading the materials filed:
1. IT IS ORDERED THAT
all Outlet Assessments levied in the Report against the lands in the watershed be reduced by 20%.
2. IT IS ORDERED THAT
the reduction in the Outlet Assessment levied against the lands in the watershed be added to the Outlet Assessment of Highway No. 73 (Rolph St.) - Ministry of Transportation of Ontario.
3. 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: July 11, 1995.
Bernard J. Goodal, Chairperson
REASONS FOR DECISION
This Appeal, launched by the Appellants, R. Wilkins and R. Lee pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on June 8, 1995.
The proceeding was initiated by the Council of the Township of Malahide, in response to a Petition of the majority of the owners of lands in the area requiring drainage, pursuant to s. 4(1)(a) of the Act.
The area requiring drainage comprises the north two-thirds of a residential block bounded by Water Street on the north and east, Walnut Street on the south and Highway No. 73 (Rolph Street) on the west.
Extensive ponding results, even after a moderate storm event, on the undeveloped lands owned by R. Wilkins, the residential lot owned by R. Lee and the rear of a number of developed residential lots fronting on Highway No. 73. Waters from the higher lands on the west side of Highway No. 73 drain easterly to the westerly ditch along Highway No. 73, course northerly to a culvert under Highway No. 73, approximately 40 m south of the intersection of County Road No. 24 and Highway No. 73, cross the road and discharge onto the southeast corner lot at the intersection of Highway No. 73 and Water Street and spread out to pond at the rear of the developed lots, on a part of the lot owned by R. Lee, fronting on Water Street and along the northerly part of the undeveloped lands owned by Mr. R. Wilkins. The surface waters from the lands in the watershed on the east side of Highway No. 73, the waters from the roads, streets and Highway in the watershed also run in this direction, since this is the low point in the saucer-shaped area in the central part of the watershed. It is alleged that there is a drain along Water Street; however, either it is not functioning properly or is too small; in any event, it provides next to no relief for the extensive ponding taking place in the area requiring drainage. In the evidence it was suggested that at one time there was a functioning drain coursing in the southerly direction serving as an outlet for part of the area requiring drainage. According to the evidence of Mr. Wilkins, that drain was severed when the water main was installed along Water Street. After being severed, it continued to run and bubble up where the severance took place and finally ceased working all together.
Mr. Wilkins and Mr. Lee both testified that the primary cause of the problem is the relocation and reconstruction of Highway No. 73 in 1963. At that time, a new bridge was constructed over Catfish Creek on the alignment of the northerly production of Rolph Street. The elevations of Rolph Street and Water Street and County Road No. 24 were raised at the intersection approximately 5 ft. The raised roads became dams, trapping the waters in the area requiring drainage, according to the evidence of the two Appellants. They state that before the new bridge was constructed, the waters coursed northerly along the easterly and westerly ditches of Rolph Street to outlet into Catfish Creek. However, when the new bridge was built no provision was made or a culvert installed to permit the waters to continue to course northerly into Catfish Creek. Since that time, the flooding problem has existed.
According to the evidence of Mr. Lee, who is a contractor and who has been carrying on business in the area since 1955, the problem could have been simply solved by installing a culvert across the raised Water Street, so that the waters could continue to outlet into Catfish Creek. This is their grounds for the contention that the problem was caused by MTO in altering the topographic features of the area, in effect, damming the waters in the area requiring drainage and consequently, it is MTO that should pay the bulk of the costs of the proposed drainage works. Mr. Wilkins has suggested that the assessment that should be levied against MTO should be in excess of $8,000.00. He adds that not only did the Ministry fail to provide the outlet or replace the outlet that existed, but the new geometric configuration at the intersection caused the waters from the new bridge and road to flow southerly to pond in the area requiring drainage.
There is considerable inconsistency in the evidence and controversy as to really what did exist at the intersection providing an outlet for the waters in the area requiring drainage prior to reconstruction of Highway No. 73. In reply, MTO, through their representative at the hearing, Mike Plant, attempted to establish that there was no culvert across Water Street at the intersection of Highway No. 73 (Rolph Street) and Water Street prior to the reconstruction to permit waters to flow to Catfish Creek. This attempt was made by tendering in evidence the construction drawings and the topography at the site prior to the construction of the new bridge, which were filed as Exhibit #5. That information shows that there was a 24” diameter culvert under Rolph Street (now Highway No. 73) prior to the reconstruction. The materials also clearly shows that there was a culvert or perhaps two, west of the intersection of Highway No. 73 and County Road No. 24. There was a third culvert on Water Street, east of the intersection in the vicinity of the existing catchbasin approximately halfway between Highway No. 73 and Water Street running north and south. The profile showing the original ground conditions indicates, that the low point in the Street was at the culvert and the existing catchbasin on Water Street. On the basis of this evidence, Mr. Plant submits, that the waters from the area requiring drainage could not have outletted into Catfish Creek since there was no culvert across Water Street on the east side of the intersection except the one further east at the existing catchbasin. This culvert is still there, but the waters from it could not have discharged into Catfish Creek due to the higher lands north of it. Any waters outletting from that culvert, if in fact they flowed northerly, would be outletted into the existing catchbasin. Where the waters would go after they entered the catchbasin, there is no evidence, and no investigation was carried out to make that determination.
Mr. Plant acknowledges that the grade of the reconstructed Highway No. 73 is such that the waters from the Highway from the center line of the bridge will flow southerly. When they reach the intersection, the waters are now directed by means of curb and gutter to the four corners of the intersection. The waters delivered to the northwest and northeast corners have a natural outlet into Catfish Creek. However, the waters delivered to the southwest and southeast corners are impounded in the area requiring drainage with no outlet to Catfish Creek.
Care needs to be taken when interpreting the profiles and other information supplied by MTO in that all elevations shown are elevations along the center lines of the road, that is, Water Street, County Road No. 24 and Rolph Street. The evidence of the Appellants indicates that the waters ran along the road ditches northerly and westerly and then northerly across Water Street along a natural water run to outlet into Catfish Creek. Mr. Lee, in his evidence, says that, during the winter and spring of each year, Rolph Street at the intersection was, in his words “a mud hole” and he could not travel down it. It is curious to note that the information supplied by the Ministry indicates a considerable rise, what may even be called a berm, at the end of Rolph Street on the bank of Catfish Creek. This would tend to indicate that even if the waters coursed northerly to Catfish Creek, they could not go over the berm at the foot of the street. However, they could travel in the east west directions and finally outlet into Catfish Creek. It is not possible to draw any concrete conclusions from the material because of its two-dimensional character.
The Report recommends the construction of a storm sewer system outletting into Catfish Creek approximately 45 m east of the center line of Highway No. 73. The drain courses southerly along a property line, across Water Street. along the Lee easterly boundary to the northerly limit of the Wilkins land 113 m to a catchbasin. It then courses easterly, along the rear of the lots fronting on Water Street, 58 m to the rear of the lots fronting on Water Street north and south. It continues southerly 33 m to a catchbasin on the Wilkins lands at the rear of the lands owned by M. Squire. At the on-site meeting, Mr. Squire requested that the catchbasin be put in at that depressed area since much of the ponding takes place there.
There is a Branch A coursing easterly along the southerly limit of Water Street, a length of 78 m and a Branch B coursing westerly along a property line approximately 40 m south of the intersection to the easterly limit of Highway No. 73 to a catchbasin at the downstream end of the culvert across Highway No. 73.
The drain is a covered drain, constructed as a storm sewer. It consists of 315 m housed in 200 mm (8") to 450 mm (18") tile and pipe with appropriate appurtenances such as catch basins and manholes (there are six catch basins and one manhole). The drain will serve a watershed of 6 ha, primarily residential lots, with a small commercial enterprise on Water Street, a church on Rolph Street and the Highway, the streets and the road in the watershed. The drain is to be called the Port Bruce Drain. The estimated cost of the drainage work is $34,700.00.
In levying assessments, the Engineer used the Todgham method. He apportioned the costs between Benefit and Outlet. In determining the equivalent acreage of the Highways and the roads, he used a factor of three. For developed residential lands, he used a factor of 1.5. For undeveloped lands (such as the lands of Wilkins) he used the factor of 0.75. For the small commercial operation at the corner of Water Street, he used a factor of three.
The Appellants Wilkins and Lee appealed their assessments to the Court of Revision. The Court of Revision reduced all outlet assessments levied against the lands (not the roads) on the Main Drain by $1,000.00. The Court added the $1,000.00 to the outlet assessment of Highway No. 73 - MTO.
It was indicated in evidence, that the Court of Revisions increased the assessment levied against MTO because the waters from the center of the bridge flow southerly and during severe storm events are not caught by the gutters directing it to the north side of County Road No. 24 and Water Street, but rather cross over the crown of the road and outlet those waters on the south side of County Road No. 24. The Engineer agreed that he did not consider, and the plan in the Report clearly shows, that this portion of the Highway was not included in the watershed. The Engineer adds, now that the Court of Revision has made an adjustment, no further assessments should be levied against MTO.
We feel that there is one more adjustment that should be made to make the MTO assessment equitable. The Engineer used a factor of three in determining the equivalent area of the Highway. In our view, the factor should be at least four, particularly when the Engineer considered the property of the Appellant Lee with a factor of 1.5. Those lands are entirely in grass with a trailer that is not occupied parked in the southwest corner. It is true that eventually the lands may be developed; however, the Appellant seems to have no immediate plans for their development, and consequently, it should be taken into consideration in determining the equivalent areas.
In our view, the factor to convert the area of Highway No. 73 to equivalent area should be four. The Outlet Assessment for Highway No. 73 should be increased accordingly. This can most expediently be done by reducing all Outlet Assessments levied against lands (not roads) in the watershed in the Schedule of Assessments in the Report as revised by the Court of Revision on March 2, 1995, by 20 % and adding the reduction to the Outlet Assessment of Highway No. 73 (Rolph St.) - Ministry of Transportation for Ontario.
An Order will go accordingly.
In our view, the Benefit Assessments levied by the Engineer are equitable. We will not disturb them.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: August 17, 1995.
H.H. Todgham, P. Eng., Vice-Chairperson
Betty Lambert, panel member
Bernard J. Goodal, Chairperson