ONTARIO DRAINAGE TRIBUNAL
APPEAL:
JOHNSON MUNICIPAL DRAIN (RE)
Town of Grimsby
D. & L. French
JOHNSON MUNICIPAL DRAIN (RE), 1995 ONAFRAAT 17
STATUTE:
HEARING:
June 20, 1995
DATE OF DECISION:
July 11, 1995 for Order and August 17, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 17
TOWN OF GRIMSBY
JOHNSON MUNICIPAL DRAIN
IN THE MATTER OF:
An Appeal of D. & L. French from the Report of J. Bryon Wiebe, P. Eng., dated November 30, 1994, on the Johnson Municipal Drain, East Branch, in the Town of Grimsby, in the Regional Municipality of Niagara.
DECISION
This Appeal came before the Ontario Drainage Tribunal on June 20, 1995, at the Town of Grimsby, Council Chambers, 160 Livingston Avenue, Grimsby, 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. Bryon Wiebe, P. Eng., who prepared and presented the Report dated November 30, 1994; the Appellant, David French and other assessed owners.
The Deputy-Clerk of the Town of Grimsby, D. Schonewell, acted as Clerk of the Tribunal. On hearing the evidence, the submissions and reading the materials filed:
- IT IS ORDERED THAT:
the Appellant, D. & L. French, owner of Pt. Lot 9, Con. 4, Assessment Roll #24-213, be granted the sum of $300.00 as allowance pursuant to s. 31 of the Drainage Act, R.S.O. 1990, c. D.17, for the existing ditch.
- IT IS ORDERED THAT:
the Appellant's appeal pursuant to s. 48 (l)(a) - Benefits not commensurate with costs and (b) - the drainage works should be modified, is dismissed.
- IT IS ORDERED THAT:
the statement at the bottom of the Assessment Schedule with respect to maintenance be deleted therefrom.
- 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 Appellant, D. & L. French, pursuant to s. 48 (1) (a) (b) (c) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on June 20, 1995.
The proceeding was initiated by the Council of the Town of Grimsby in response to a Petition of 14 of the 19 landowners in the watershed, including the Appellant French, pursuant to s. 4 (1) (b) of the Act.
The proposed Johnson Municipal Drain - East Branch is part of an extensive drainage works comprising the Johnson Municipal Drain and the Haws Branch. The Johnson Municipal Drain was constructed pursuant to Report of J. Bryon Wiebe, P. Eng., dated August 27, 1993. Up to that time, the Engineer was unable to confirm the legal status of the Johnson Drain as a Municipal Drain. Evidence seems to indicate that the Main Drain was constructed in 1910. The Haws Branch was constructed in 1963. The Drain outlets into the 40 Mile Creek Municipal Drain. It is located at the top of the Niagara Escarpment. The area of the watershed is approximately 1,078 hectares (2,664 acres). The watershed is approximately 4 kilometres wide and 5 kilometres long.
The proposed extension of the Johnson Municipal Drain by the construction of the East Branch, is necessitated by the extensive flooding of the residential lands and some commercial lands fronting on Mountain Road (Regional Road #12).
The existing ditch is not a Municipal Drain. Portions of the existing drain, running along Mountain Road, are primarily roadside ditches maintained by the road authority. The existing ditch coursing northerly from Mountain Road to the Johnson Municipal Drain does not now provide an adequate outlet for the roadside ditches. The residential landowners and the commercial landowners have been complaining about flooding for a number of years now. The Municipality is unable to assist the landowners since the outlet for the roadside ditches is not a Municipal Drain. It is therefore powerless until the drainage works are assumed or reconstructed under the Act. It would be ineffective to do any work on the roadside ditches without improving the ditch downstream to the outlet into the Johnson Municipal Drain.
The East Branch watershed is located in the northeast area of the Johnson Municipal Drain watershed. It is generally oval in shape, measuring approximately 0.6 kilometres wide and 1.2 kilometres long.
The total watershed of the East Branch is approximately 57 hectares (141 acres). The watershed was established by considering the total Johnson Municipal Drain watershed, as well as a review and field investigation in conjunction with Ontario Base Mapping.
The on-site meeting was held on September 15, 1994. Only five of the assessed owners in the watershed attended. None of the owners whose lands abut on the drain attended the on-site meeting. Those who attended were primarily the residential owners experiencing severe flooding on their lands. One of the owners indicated that approximately 1/3 of the rear of his property has standing water on it.
The existing land uses within the watershed are primarily agricultural in nature, with several single-family residential lots and one commercial undertaking.
The East Branch is located on top of the Niagara Escarpment. The slope of the drain is gradual with a relatively flat watershed. The soils within the watershed consist mainly of lacustrine silty clay and lacustrine silty clay over clay loam till. The topography may be generally described as flat or very gently sloping. The natural drainage of these soils is classified as imperfect to poor. Improved land drainage in this area could lead to an improved soil classification and crop production.
Generally, the existing ditch has a defined watercourse and well defined channel and cross section from the Johnson Municipal Drain to Mountain Road. The roadside ditch along the west side of Mountain Road is in fair condition but with a limited outlet. The roadside ditch along the east side of Mountain Road is restricted by the elevation of the culvert under Mountain Road as well as an accumulation of vegetation causing ponding in the ditch. There is sufficient grade from Mountain Road to the Johnson Municipal Drain to accommodate the reconstruction of the roadside ditches in order to improve the drainage of area. Much of the problem associated with the ditch can be attributed to the obstructions such as silt, vegetation, debris, private crossings and inadequate channel depth. The Johnson Municipal Drain which has just been reconstructed and cleaned out, will provide a suitable and sufficient outlet for the East Branch.
The Drain has been designed to accommodate a 2-year storm event. It has been designed with a parabolic channel bottom to be utilized to concentrate the base flow and maximize its depth. It assists in the movement of sediment, thereby reducing maintenance.
The Report recommends the debris removal, cleaning of the existing open ditch, clearing and brushing of the working space, erosion protection and the revegetation of any disturbed areas. The work commences at the Johnson Municipal Drain and continues upstream to Mountain Road. The drain then courses on the east and west side of Mountain Road, both to the north and to the south to provide drainage for the road and the residential properties abutting it. The existing road culverts are to be removed and replaced with a new 1,000 mm diameter corrugated steel pipe 20 metres long. The culvert will be lowered to provide a proper outlet for the drains along the roadside which are being deepened to ensure that all lands abutting on the road are provided with an outlet for the surface waters flowing from them.
The estimated cost of the work is $65,000.00. The drain is to be called the Johnson Municipal Drain East Branch.
The Appellant, D. & L. French, appealed to the Court of Revision. The Court of Revision reduced their Outlet Assessment by $300.00 to $1,535.00. Their Benefit Assessment is $418.00 for a total assessment of $1,953.00. He has been granted an allowance of $220.00 under s. 29 of the Act and $110.00 under s. 30 of the Act. The Engineer has granted no allowances for the existing ditch being incorporated as part of the Municipal Drain. The work to be done on the Appellant's land, comprises a clean out of approximately 106 m of the existing open ditch, including clearing and brushing. The spoil is to be deposited on the land and levelled with shallow swales across the levelled spoil to permit surface flows into the drain. His existing 900 mm diameter culvert is to be reset to be consistent with the• proposed bottom of the drain.
The Appellant's appeal to us is on the grounds pursuant to s. 48 (1):
(a) The benefits to be derived from the drainage works are not commensurate with the estimated cost thereof:
(b) The drainage works should be modified. He has suggested that the drainage works be extended upstream to accommodate lands in the extreme easterly limit of the watershed, and also that they be relocated along a surface water run a short distance to the west.
(c) The compensation provided by the Engineer is inadequate.
The Appellant led no evidence with respect to his grounds under s. 48 (1) (a) - Benefits not commensurate with costs. That ground of appeal is therefore dismissed.
As to his proposal to extend the drain upstream of the area requiring drainage as described in the Petition, it cannot stand. There is no authority in the Engineer to extend works upstream of the area requiring drainage. It is the submission of Mr. French, that the lands of W. Sawron and M. Rosensprung, being Pt. Lot 7, Con. 4, Roll #24-210 are very wet and that the drain should be extended to provide an outlet for those lands. The evidence discloses, that Mr. Rosensprung is not a Petitioner. Nor did he at any time request the extension of the drain upstream. As a matter of fact, the evidence indicates that he proposes to construct a drain to serve his purpose pursuant to an arrangement which he will make privately with his neighbours.
As to the Appellant's suggestion, that the drain be moved westerly along a surface water run to the west, there is no evidence that this is the course the drain should take. The Engineer has fully investigated the needs and the course to be followed to provide an outlet for the petitioning lands, he has concluded that the most efficient way of getting these lands to an outlet is along the course proposed over the existing ditch. In the circumstances, that ground of appeal must also fail.
The Appellant seeks compensation for trees that may be destroyed with the construction of the drain. He has already been granted an allowance, pursuant to s. 30 of the Act in the sum of $110. 00. This apparently is an allowance for any damage or destruction of trees on his property. His evidence is that his farm is a tree farm. It has been established under the Ontario Government Program. He has over 5,500 trees on 18 acres of land. His concern is that when the work is done a number of the trees will be destroyed. He is particularly concerned about the hickory trees on the south side of the drain which are mature trees and which should be preserved. However, if they are in fact destroyed or damaged, he feels that he should be compensated.
He also has the trees planted quite recently, between four and six years ago, under the Government Program, and he feels that 125 of them will be destroyed by the construction of the drain. He has estimated the cost or the value of these trees between $15.00 to $30. 00 a piece, depending on the type of tree.
The Engineer in his evidence, positively testified that he has investigated the conditions and there is approximately 10 m of open working space between the northerly bank of the drain and the first trees where the spoil is to be deposited. In his opinion, this is adequate room to do the work without damaging or destroying any trees. It is also his view that none of the trees on the south bank of the drain will be damaged or destroyed. In the circumstances, he has provided no compensation for the destruction or damage to any trees.
In his evidence, the Appellant did not contest the dimensions or the clear working area that is available to do the work. In the circumstances, we accept the evidence of the Engineer that the working space is sufficient and no trees will be destroyed or damaged. Of course, if in fact trees are destroyed or damaged by way of the contractor working outside of the provided working space, then the contractor is bound or liable to compensate the owner for any damage or destruction of such trees. The Appellant, of course, should ensure that he seeks such compensation from the contractor and also the Engineer, or whoever supervises the contract, should ensure that monies are withheld if, in fact, damage is done to compensate the owner for the damage that he has sustained.
We are also of the view, that the Appellant, is entitled to compensation for the existing ditch being incorporated as part of the drain under s. 31 of the Act. We have reviewed the materials and cross-sections provided to us by the Engineer as to the existing ditch and also the method of calculating the work to be done on the drain. The Engineer is of the view, that this is primarily a cleanout and consequently the estimated cost has not been based on the volume of material removed, but on the length of the drain to be cleaned. For that reason, the existing ditch is of minimal value to the works. However, he did conceded that there will be less excavation required because the ditch is there, than if it had not been there. We are further of the view, that when a contractor examines the site and sees the existing drain already there, that no doubt his contract price will be lower than it would have been had there been no drain there to start with. For this reason and on the basis of the material before us, we are of the view, that the Appellant should be granted the sum of $300.00 as compensation for the existing ditch being incorporated as part of the proposed drainage works.
It has been noted by one of the members of the panel that the note at the bottom of the Assessment Schedule on Page No. 21 of the Report is inconsistent with the Maintenance Provisions within the body of the Report. The Engineer has indicated that this note is not correct and is inconsistent with the provisions made for future maintenance in the Report. An Order will therefore go, directing the deletion of the note at the bottom of the Assessment Schedule in the Report on Page No. 21.
There will be no Order as to costs and all parties are responsible for their own costs.
Dated: August 17, 1995.
John Bacher, panel member
H.H. Todgham, P. Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson