ONTARIO DRAINAGE TRIBUNAL
APPEAL:
BIG CREEK DRAIN 1994 (RE) Township of Norwich David Lendvay
BIG CREEK DRAIN 1994 (RE), 1995 ONAFRAAT 21
STATUTE:
HEARING:
July 27, 1995
August 17, 1995 for Order October 16, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 21
TOWNSHIP OF NORWICH
BIG CREEK DRAIN
IN THE MATTER OF:
The Appeal of David Lendvay from the Report of J. W. Kuntze, P. Eng., dated January 20, 1995, on the Big Creek Drain 1994, in the Township of Norwich, in the County of Oxford.
DECISION
This Appeal came before the Ontario Drainage Tribunal on July 27, 1995, at the Township of Norwich Council Chambers, 10 Main Street East, Otterville, Ontario.
At that time there appeared before the Tribunal, J. W. Kuntze, P. Eng., who prepared and presented the Report dated January 20, 1995; the Appellant David Lendvay and other assessed owners.
The Clerk of the Township of Norwich, Robert C. Watkins, acted as Clerk of the Tribunal. On hearing the evidence, the submissions and reading the materials filed:
- IT IS ORDERED THAT
the Benefit Assessment levied against the lands of D. Lendvay being Pt. S 1/2 Lot 1, Con. 1, Roll #030-020-095 and the Benefit Assessment levied against Homeland Farms Ltd., being Pt. Lot 1 and 2, Con. 1, Roll #030-020-095-10 in Schedule "B" of the Report dated January 20, 1995 - Schedule of Assessment for Future Maintenance Big Creek Drain 1994 be reduced by 50%.
- IT IS ORDERED THAT
the reduction in the Benefit Assessments in paragraph one above be added to the Outlet Assessments levied against all of the upstream lands and roads in the watershed in the ratio that the individual Outlet Assessments are to the total upstream Outlet Assessment.
- IT IS ORDERED THAT
the first paragraph under the heading of "Maintenance" on page 13 of the Report dated January 20, 1995, be deleted and the following substituted therefor:
"After completion the Big Creek Drain from the Townline upstream to the Palmer Drain shall be maintained by the Township with costs of all maintenance to be assessed to the upstream lands and roads prorata with the assessments in Schedule B. Schedule B is divided into columns to reflect the properties upon which maintenance work may be undertaken. This helps to identify which upstream lands and roads are to be assessed."
- 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: August 17, 1995.
Bernard J. Goodal, Chairperson
REASONS FOR DECISION
This Appeal launched by the Appellant, David Lendvay, pursuant to s. 54(1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on July 27, 1995.
The proceeding was initiated by the Council of the Township of Norwich, pursuant to s. 78 of the Act, in response to a request of D. Orth, the owner of the N½ Lot 3, Con. 2, inter alia, (lands upstream of the Appellant, Lendvay) asking that the access culvert to his lands from County Road No. 21 be repaired and improved by removing the existing superstructure, reconstructing the north ballast wall, part of the north wing wall and part of the north abutment, and constructing a new concrete deck of sufficient width to accommodate his farm machinery.
In reply to that request, Council appointed an Engineer to prepare a Preliminary Report. The Preliminary Report was prepared by the Engineer dated August 12, 1994.
At the meeting to consider the Preliminary Report, and on the basis of the comments made in it with respect to Assessment Schedules in the current Report, it was the opinion of Council that the Assessment Schedule in the current Report contains many deficiencies not only with respect to owners, but as to subsequent divisions of the lands in the watershed. Council felt that it would be most expedient to instruct the Engineer, since conditions have changed and circumstances have arisen, such as to justify a variation of the Assessment for Maintenance and Repair of the Drainage Works, to prepare a Report and a new Assessment Schedule pursuant to s. 76(1) of the Act.
Council then instructed the Engineer to prepare a final Report with respect to the request for the repairs and improvement of the culvert and to include in that Report the revised Schedule of Assessment for Maintenance and Repair. The Report, prepared and dated January 20, 1995, contains both of the items.
The Appellant, being an owner downstream of the proposed culvert work, is not assessed for the culvert repair and improvement. His Appeal is pursuant to s. 54(1) of the Act, with respect to the Assessment that has been levied against his lands comprising Pt. S½ Lot 1, Con. 1, in the Schedule of Assessment for Future Maintenance of Big Creek Drain 1994, included as Schedule "B" in the Report - filed as Exhibit #2.
In determining the amount of each owner's assessment for the purpose of future maintenance, the Engineer used the Todgham method and divided the drain in several convenient lengths. The first length from Sta. 0+00 to Sta. 0+917, is a reach of the drain located over the lands of the Appellant, with the downstream 567 m entirely within his lands and the upstream reach from Sta. 0+567 to 0+917 along the lines between his lands and the lands of HomeLand Farms Ltd. The Engineer valued the Benefit Assessment against each parcel abutting on the first length at $10.00 per/m of length over the owner’s lands. Where the drain is common to two owners (that is, along a boundary line), half of that sum was levied against the lands of each owner. Therefore, the figures for levying the Benefit Assessment against the Appellant's land would be 567 m of drain at $10.00 per/m, equals approximately $5,700.00 and 350 m at $5.00 per/m equals approximately $1,800.00 for a total of $7,500.00. The Engineer then levied the sum of $500.00 for what he calls a direct improved outlet for a total Benefit Assessment against the Appellant's lands of $8,000.00.
Running through a similar sequence, the Engineer levied the sum of $2,000.00 as Benefit Assessment against Homeland Farms Ltd.; lands abutting the drain from Sta. 0+567 to 0+917 (350 m).
For the next reach upstream, he used the figure of $5.00 per/m, rather than $10.00 per/m and proceeded to assess the upstream abutting lands on that basis.
In transferring the initial calculations for Benefit Assessment to Schedule "B" (Schedule of Assessment for Future Maintenance), the Engineer reduced the Benefit Assessment levied against each of the lands abutting the drain by 50%. He then used the 50% figure plus the Outlet Assessment as the assessment levied against the lands for the purpose of Future Maintenance and Repair of the Drain. It is his view that in apportioning Future Maintenance and Repair costs, the predominating factor should be the area rather than the length of drain over the lands. It is for this reason that the adjustment to the Benefit Assessment was made by reducing it by 50%, and in this way, the assessment is much more proximate to the area since half of the Benefit Assessment has been transferred to Outlet.
In substantiating the assessment levied against the Appellant's lands, the Engineer noted that the Appellant's share of the cost of maintaining that reach over his lands is approximately 25%. HomeLand Farms Ltd. assessment is approximately 7%. That is, the two owners pay approximately 32% of the costs of the maintenance and repair work over that reach of the drain. In the opinion of the Engineer, this is a very reasonable percentage.
Mr. Lendvay's main objection to the assessment levied against his land is that, under the revised Assessment Schedule, he is paying approximately 25% of the future maintenance costs of the reach of the drain over his lands. Whereas, in the previous Report prepared by John Dodd in 1972, his percentage was approximately half that amount. He adds that the circumstances have not changed with respect to his lands and consequently the percentage should be approximately the same.
The Engineer's evidence was that when he prepared the new Schedule, he did not pay much attention to the previous Report since his purpose was to prepare a new Schedule. Prior to the hearing, he had examined the Dodd Report dated March 1, 1972. The Lendvay property was at that time owned by A. Burgers. The lands were then assessed $1,257.50 out of a total of $9,900.00, which is 13%. The HomeLand Farms Ltd. property in Lot 1 was assessed $3,507.50; that is, 35% of the cost of the work on that reach. He is unable to explain the reason why, in the Dodd Report, Homeland Farms Ltd. should be assessed 35% and the lands of Burgers 13%. There appears to be no reason why Homeland Farms Ltd. should be assessed so high when the drain is only along a portion of their boundary, common to both of the lands, yet the drain passes through the Burgers property. He has concluded that the discrepancy arises out of the fact that the Engineer had inadvertently reversed the assessments that should be levied against the lands. That is, the assessment levied against HomeLand Farms Ltd. property should have been assessment against the Burgers property and vice-versa. For this reason, the Engineer cannot support reverting to the 1972 percentages which he feels are incorrect. Looking at the combined assessment levied against the two lands, that is, 48% in the 1972 Report. Under the present Schedule, there is a reduction of approximately 1/3 where the percentage for the two properties stands at 32%. That is what the Engineer had intended in preparing the revised Assessment Schedule for Maintenance.
It is to be noted that on page 2 of the Dodd Report, filed as Exhibit #3, the allowances granted to owners show that the HomeLand Farms Ltd. have been granted a total allowance of $1,875.00 whereas Burgers lands have been granted an allowance of $675.00. This is in approximately the same ratio as the assessments levied against the lands. When we pointed this out to the Engineer, he said the same inadvertent reversal is probably carried into the granting of allowances to the lands.
In his evidence Mr. Lendvay stated that it is the extraordinarily large sum of $8,000.00 shown in Appendix “A” - Calculation of Assessments, when compared to the Benefit Assessments levied against other lands, that drew his attention to the inequity of the assessment. Even though that sum had been reduced to $4,000.00 in preparing Schedule “B" - Schedule of Assessment for Future Maintenance, when compared to all other lands it is by far the highest on any reach of the drain, with the next highest assessment being $2,155.00 levied against the lands of R. Catton, being the N½ Lot 4, Con. 2, Roll #030-020-081, which have a length of drain over the lands of 700 m.
The Engineer explained that the calculations of the Benefit Assessment for the purpose of Appendix “A" were for the Catton lands were made in a manner similar to that for the Lendvay lands. The rate for the downstream 400 m was calculated at $10.00 per/m and the rate for the upstream 300 m was calculated at $5.00 per/m for a total Benefit Assessment for the purpose of Appendix "A" of $5,500.00. This was reduced by 50% for the purpose of Schedule “B” to the sum of $2,750.00. To make a comparison between the lands of Lendvay and Catton the comparison should be $4,000.00 for the Lendvay lands and $2,750.00 for the Catton lands.
Disregarding what the percentages were in the 1972 Report, (we tend to accept the conclusion drawn by the Engineer that the assessments have been reversed). From our view of the site and an overall view of the drainage works, we feel that the assessment levied against the lands of the Appellant Lendvay is too high. We further feel that the assessment levied against HomeLand Farms Ltd. is also too high. The Lendvay lands are at the very downstream end of the Drain. It seems to us, that some of his lands would tend to outlet at Sta. 0+00 or a few meters upstream. For that reason, in our opinion, there should be an adjustment to the affected area in determining not only the outlet assessment but the length of drain for assessment purposes that is to be considered as coursing over the Appellant's land, since the very downstream portion probably provides very little direct benefit to the lands. Second, we have noted that Mr. Lendvay has established a grass buffer strip along the whole length of the drain including that part over the HomeLand Farms Ltd. lands. This buffer strip is for the purpose of protecting the banks and minimizing sedimentation of the drain. In his evidence he stated that he had repaired surface water inlets and has planted trees to stabilize the banks of the drain.
The drain was originally a natural watercourse. The size of it was naturally formed to accommodate the waters from the 2,474-ha watershed. In our view, to charge 32% of the costs of maintaining that reach of the drain to the downstream lands is too high. With the size of the watershed and the lands immediately upstream of it, that percentage should be lower. It seems to us, a reasonable percentage of those costs to be levied against the lands of Lendvay and HomeLand Farms Ltd. should be half the 32% that is between 15% and 20%.
An Order will therefore go reducing the Benefit part of the Assessment levied against the lands of the Appellant D. Lendvay, being Pt. S½ Lot 1, Con. 1, Roll #030-020-095 and the Benefit Assessment levied against HomeLand Farms Ltd., being Pt Lot 1 and 2, Con. 1, Roll #030-020-095-10, in Schedule "B" of the Report dated January 20, 1995 Schedule of Assessment for Future Maintenance Big Creek Drain 1994 by 50%; that is, the assessments levied in Schedule "B" - Schedule of Future Maintenance, on the Lendvay lands shall be reduced by the sum of $2,000.00 and on the HomeLand Farms Ltd. lands by the sum of $500.00.
The reduction in the Benefit part of the Assessment we have made shall be added to the Outlet Assessments levied against all of the upstream lands and roads in the watershed in the ratio that individual Outlet Assessments are to the total upstream Outlet Assessment.
The Engineer agreed that the first paragraph under the heading of "Maintenance" on page 13 of the Report is inconsistent with the balance of the provisions for maintenance. An Order will therefore go, deleting the first paragraph under the heading of "Maintenance" on page 13 of the Report and substituting the following therefor:
"After completion the Big Creek Drain from the Townline upstream to the Palmer Drain shall be maintained by the Township with costs of all maintenance to be assessed to the upstream lands and roads prorata with the assessments in Schedule B. Schedule B is divided into columns to reflect the properties upon which maintenance works may be undertaken. This helps to identify which upstream lands and roads are to be assessed.
There will be no Order as to costs and all parties are responsible for their own costs.
Dated: October 16, 1995.
Russell Piper, panel member
H.H. Todgham, P. Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson