Zaburney Drain and Extension (Re), 1995 ONAFRAAT 22

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

ZABURNEY DRAIN AND EXTENSION (RE) Township of Mersea G. & A. Terron

ZABURNEY DRAIN AND EXTENSION (RE), 1995 ONAFRAAT 22

STATUTE:

Drainage Act

HEARING:

August 4, 1995

DATE OF DECISION:

August 24, 1995 for Order October 3, 1995 for Reasons

NEUTRAL CITATION:

1995 ONAFRAAT 22

TOWNSHIP OF MERSEA ZABURNEY DRAIN

IN THE MATTER OF:

An Appeal of G. & A. Terron from the Report of L. Zarlenga, P. Eng., dated January 30, 1995, on the Zaburney Drain and Extension, in the Township of Mersea in the County of Essex.

DECISION

This Appeal came before the Ontario Drainage Tribunal on August 4, 1995, at the Township of Mersea Council Chambers, 38 Erie Street North, Leamington, 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, L. Zarlenga, P. Eng., who prepared and presented the Report dated January 30, 1995; E. Marshall, Barrister and Solicitor, as Counsel for the Township of Mersea; R. G. Robertson, Barrister and Solicitor, as Counsel for the Appellants G. & A. Terron and other assessed owners.

The Clerk of the Township of Mersea, Lynn Foster, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed.

1. IT IS ORDERED THAT

the provisions for a buffer strip on both sides of the drainage works be deleted from the Report of L. Zarlenga, P. Eng., dated January 30, 1995.

2. IT IS ORDERED THAT

the Appeal of the Appellant, G. & A. Terron on all other grounds of Appeal be dismissed.

3. IT IS ORDERED THAT

the plan attached to the Report dated January 30, 1994, Project #BC-94-098, Sheet 1 of 2, be amended to show the revised watershed limits and the correct location of the drain north of the Blind Line over the lands, Roll #6-27.

4. IT IS ORDERED THAT

the spoil from the drain be deposited as directed by the Engineer in his Report of January 30, 1995.

5. IT IS ORDERED THAT

the Assessment Schedule be amended to show the affected area of the lands being assessed on the south side of the drain.

6. 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 24, 1995.

Bernard J. Goodal, Chairperson

REASONS FOR DECISION

The appeal launched by the Appellant, G. & A. Terron, pursuant to S. 48(1)(a) - Benefits not Commensurate with the Estimated Costs, (b) Drainage works should be modified and s. 54(1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on August 4, 1995.

The proceeding was initiated by the Council of the Township of Mersea, in response to a request of the Drainage Superintendent pursuant to s. 78 of the Act.

Over the past two or three years, the Township Drainage Superintendent had received requests from owners on the north side of the drain to clean the drain to provide adequate freeboard for the tile outlets. The drain had not been cleaned since 1968. Some brushing work had been carried out on the drain in 1989.

The township Drainage Superintendent held an on-site meeting intending to clean the drain under the Maintenance Provisions (s. 74) of the Act. However, the owners disagreed among themselves as to where the spoil is to be placed. The Drainage Superintendent informed the landowners he had no choice in the matter and he would have to deposit the spoil as specified in the last report, prepared by C.G. R. Armstrong, P. Eng., dated October 8, 1967.

The matter was put in abeyance until J. & H. Fittler, owners of the lands at the very upstream end of the drain, put the Township on notice under s. 79 of the Act that the drain was in need of repair and improvement. Consequently, on October 4, 1994 the Township council appointed an Engineer to prepare a Report under s. 78 of the Act.

The Zaburney Drain was originally constructed pursuant to a Report in 1939. It was 1,379 m. long. This drain was repaired and improved in 1957. In 1967 the drain was extended westerly to the westerly limit of Lot 15, Con. B with a total length of 2,500 m. The drain is located along the Blind Line. It provides an outlet for approximately 148 ha of agricultural lands on the north side of the drain and a cutoff for approximately 152 ha. of agricultural lands on the south side of the drain.

Most of the lands in the watershed are in a soil area classified as Brookston Clay. The south-east corner is in a soil area classified as Toledo Clay. Both of these soil types are characterized with poor natural drainage.

The Ontario Base Map shows the affected area to be rather flat with a natural gradient from north to south, from 0.1% to 0.15% . The drain flows easterly from the westerly limit of Lot 15 to outlet into a dredge cut flowing southerly into the West March Drainage Scheme; which is a pumped system. The outlet of the Zaburney Drain is seldom submerged except after very severe storm events.

The on-site meeting was held on November 4, 1994. The Appellant and a number of other assessed owners were present. The main topic of discussion was the disposal of the spoil to be excavated from the drain. It was abundantly clear that most of the landowners were not prepared to take the spoil from the cleanout. It appears as though they were rather unhappy with the work in 1968, particularly the manner in which the spoil was levelled. After a lengthy discussion, the Engineer was under the impression that it was agreed that the Engineer would review the entire situation and determine where the spoil material would be deposited. The consensus seemed to be that sharing the responsibility for taking the spoil is fair as long as the same landowners were not required always to take the spoil.

The other issue in contention was the provision for a buffer strip along both sides of the drain. The Essex County Conservation Authority indicated that a buffer strip would decrease future maintenance requirements and would aid in providing better water quality for the environment. On this issue, the Engineer went away with the impression that it was agreed by all present, and he told the landowners at the on-site meeting that he would prepare a Report including a 10 ft. grass buffer strip along both sides of the drain. The provision of the buffer strip complies with a Resolution of the Township Council of February 20, 1990, requesting the Engineer to inform the landowners of the benefits derived from buffer strips and hopefully to include buffer strips along drains in Drainage Reports.

From the comments made at the on-site meeting, the Engineer was expecting to see severe erosion of the drainage banks; however, he did not see evidence of major bank erosion. The banks were well-grassed and stable. He found that the tile outlets are within 300 mm of the bottom of the drain, and under certain conditions, tile outlets would be submerged. There is considerable growth of brush along reaches of the drain banks and cattails within the drain cross-section. Both of these factors would greatly impede the flow of water within the drain. He also found a number of surface water swales from the north that would benefit by providing rock erosion protection where they outlet into the drain. There is accumulation of sediment in the drain bottom.

The report recommends the Zaburney Drain and Extension be repaired and improved, and that a grassed buffer strip 3.05 m (10 ft.) in width be provided on both sides of the drain for its entire length. The drain is to be cleaned over its entire length to the original grade. The banks are to be seeded, including the buffer strip. One tile drain extension is be to provided and 6 areas of erosion protection. The estimated cost of the work is $33,585.00.

The Engineer has provided for allowances to be paid to the landowners, whose lands would be used to establish the grass buffer strips and for the lands used to dispose of the spoil material. In determining the allowance to be paid for the buffer strip. He used the value of $6,200.00 per/ha ($2,510.00 per/ac.). For the lands required for the disposal of the spoil, he used the value of $1,100.00 per/ha. ($445.00 per/ac.).

The Engineer has reviewed the previous Reports to determine where the spoil has been placed in the past. His findings as to the disposal of the spoil are illustrated on Exhibit #3. The plan shows in yellow, the disposal area from each Report. In general, he found, that a pattern has been established to provide for alternating the disposal sites for each new Report prepared. After carefully weighing the findings, he concluded that it was fair to alternate the disposal of the spoil each time the drain is cleaned. He therefore designated that the spoil is to be placed on the opposite side of the drain to that in 1967. For future clean outs, the specifications provide as follows:

"For the next clean out of the drain, the excavated materials shall be placed on the opposite side of the drain in accordance to the above-noted stations. For all subsequent drain clean outs, the excavated material shall be alternately placed on opposite sides of the drain.”

The Report provides that the spoil shall be spread to a maximum depth of 100 mm (4"). To ensure that the spoil is not spread any thicker than 4”, he increased the width of the spoil strip to 6.10 m (30 ft.). The total width including the buffers strips is 9.14 m (40 ft.). In this way, he has provided for the spreading of the spoil beyond the 10 ft. wide buffer strip which is already in existence on some lands.

Before levying assessments against the lands, the Engineer reviewed the 1957 and 1967 Reports. He found that in 1957 68% of the total cost was assessed as Benefit and 32% as Outlet. In the 1967 Report, 64% of the total cost was assessed as Benefit and 36% as Outlet. On the basis of these figures, he concluded that in 1957 and 1967 the drains were constructed to provide more Benefit than Outlet, as can be seen by the percentages of Benefit to Outlet in the Reports. He also found that the Benefit levied against lands receiving a direct benefit was only marginally higher than the cutoff benefit rate for those lands south of the drain assessed for cutoff only. He reasoned that while the original construction of the drain may have been to provide cutoff, the role of the drain, in his opinion, now appears to be more equally divided between providing outlet and benefit. Therefore, he split the costs as 50% Benefit and 50% Outlet. He assessed the cutoff benefit rate at one-half the direct benefit rate. That is, the lands assessed for benefit on the north side of the drain (direct benefit) were assessed at the rate of $46.22 per/ha; whereas, the lands receiving a cutoff benefit on the south side of the drain were assessed at the rate of $23.11 per /ha. The total assessment for each parcel was obtained by multiplying the appropriate rate by the affected area. Unfortunately, the Engineer did not show in his Report the affected area of the lands south of the drain (land receiving benefit by cutoff). In our Decision, we will direct that the Schedule of Assessment be amended to show the affected areas of the lands on the south side of the drain.

The Appellant appealed to the Court of Revision. The Court of Revision dismissed his appeal.

At the instance or consent of the Engineer, the Court of Revision made two corrections to the Report. First, the watershed shown in the previous Reports included part of the lands in Lot 15 south of the drain. The Engineer had investigated this and found that none of those lands drained northerly into the drain. He therefore made an adjustment to the watershed boundary. Second, he found that the whole drain, except the upstream 300 m in the W ½ of Lot 15, Con. “B” which courses along the boundary between the NW ¼ and the SW¼ of the lot (Blind Line), lies north of the blind line. Whereas the plan shows that the drain in Pt. Lot 15 and 16 is south of the Blind Line. This correction is to be made together with the limits of the watershed, and we so direct.

Mr. Terron testified that he has been living on the farm for approximately 60 years. Originally, the holding was much smaller. However, as time went by, more land was acquired, and they are now the owners of 200 ac. of land. His farm is primarily Brookston Clay soil and has a fall of approximately 1 ¼ " per 100 ft. to the south and then to the east. It is his evidence that none of his water drains into the Zaburney Drain or the Extension. In his view, no buffer strip is required on the south side of the drain. All of the surface waters enter the drain from the north, and if a buffer strip is to be provided for, it need only be for the north side of the drain.

He does not want the spoil to be cast on his lands. He takes the position, by his Counsel, that there is no authority to cast the spoil on his lands since his lands are not within the "drainage area", as Counsel put it. The argument continues that if the buffer strip is provided for, he will lose approximately one acre of land. This is a substantial loss to a cash crop farmer. Furthermore, he will lose control over that one acre of land in perpetuity. He is also concerned that, being approximately 10 km from a large urban center, there will be many trespassers, either hunters, bird watchers, snowmobilers, berry pickers, or asparagus pickers or other random types trespassing over his lands. The buffer strip will be convenient for them to use for the various activities which he does not want to see on his lands. He adds that there is a potential future liability in case any of the trespassers suffer damages through the pesticides or herbicides used in cash-crop farming.

He says that he was assessed for cutoff once, and that should be the end of it. In his view, the spoil should be cast where it comes from. The shallower ditch is sufficient to serve as a cutoff. The deeper drain is not required to provide an outlet for the tiles from the lands to the north. These are the reasons that the drain needs to be cleaned out and improved at this time. It is his evidence that the Resolution of Council had not been enforced since it was passed. The Engineer affirmed that the Reports that he has done since the Resolution was passed, in none of them had he provided a buffer strip.

The evidence of Mr. Terron is that the drain has only overtopped in 1972. However, one other witness testified that it had also overtopped in 1989, after an 11" rainfall. A further witness testified that it overtopped in 1993 when 2½" to 3" of rain fell in less than 1 hour.

It should be noted here that the allowances made to the landowners for the buffer strip were assessed against the same lands or landowner as a Special Benefit plus GST. However, after a discussion the Engineer informed us that there should be no GST on this element of the drainage works.

Photographs taken by the Engineer and filed as Exhibit #6, provide a good pictorial description of the drain as it is now. Many of the landowners on the north side have provided a buffer strip along the drain. The photographs clearly indicate that there is no buffer strip except in very short lengths over the lands of the Appellant. However, recently he had destroyed the crop over a with of approximately 10 to 15 ft. to create the illusion that he does provide a buffer strip along the drain. All of the owners for the north side of the drain who gave evidence stated that the Appellant works his lands as close to the top of the drain bank as he can. This is the first year that he has left a buffer strip after the crop was planted and then destroyed within the strip. Mr. Tom Dick, who farms the land directly north of the Appellant's stated that, his lands must have taken the spoil from the original drain and subsequent years. The spoil should not go on his land, since there is already a high bank there which impedes the flow of surface waters into the drain. He has had to put in two or three lateral ditches to conduct the surface waters into the drain. The outlets have eroded, and this is where the Engineer is providing for rock protection. To him, it seems logical that the spoil should go on the downstream side of the drain and serve as an added protection for the lands to the south. He confirms that the Appellant farms right up to the bank. This year, he stayed back a bit.

John Fittles, who is the owner of the westerly 50 ac. of Lot 15 on the north side of the drain, noted that Mr. Terron will in fact receive $296.22 when the allowances granted to him and the provincial grant are applied against his assessment. He too noted that, "the Appellant left a buffer strip this year but not before; he plants right up to the drain bank." He has no concerns about the urban crowds that come out for various purposes. In any event, he concluded, a buffer strip will make no difference; they will continue to do it, "there is no way to stop these guys". He says that he is prepared to take the spoil since he is not nearly as high as the lands of Mr. Dick. He called Mr. Terron's position ridiculous in view of the bottom-line cost.

In argument, Mr. Robertson, Counsel for the Appellant, noted that the Resolution says on "either" side. This, he suggests, should be interpreted as either on one side or the other. Mr. Marshall, Counsel for the Township, suggests that it means on both sides rather than on one side.

The more serious proposition put forward by Mr. Robertson is that there is no authority to take lands of the Appellant for a buffer strip, nor is there any authority to cast the spoil on his lands. It is quite clear, he says, and it is really not in contention, that the lands of the appellant do not drain into the drain. There was an indication that some of the Appellant's lands right next to the drain might do so; however, disregarding this, his lands do not drain into the drain. Therefore, Mr. Robertson concludes that the lands are not within the "drainage area". If that in fact is the case, then there is no authority to take lands from any owner who is not in the drainage area, nor to cast the spoil on his lands. Even though he did not say it, he probably could have carried this one step further, nor is there any authority to assess those lands.

In reply, Mr. Marshall pointed out that there is no such term in the Act as the "drainage area". The jurisdictional area is called the "affected area". The Appellant's affected area is the area to which benefits accrue by cutoff. That being the case, there is authority to impose a burden on the affected area and to take lands for the purpose of the drainage works and for any other lands in the watershed.

We accept the proposition put forward by Mr. Marshall on behalf of the Township. We often hear the term "drainage area" used by Engineers. It is not clear what the term means. It probably means the watershed. However, the Act speaks of an affected area not the watershed and not the drainage area and that being the case, as we have already pointed out to the Engineer, the affected area of the lands south of the drain is that area receiving benefit by cutoff. That area should be entered into the Assessment Schedule.

We therefore hold that the Engineer has jurisdiction to take lands for a buffer strip for the drainage works.

The primary issue to be dealt with here is whether or not a buffer strip should be provided along the drain. No one argued that a buffer strip is not a beneficial feature of a drainage works. It sets a till limit along the drain. It can serve as an access to the drain. It serves to stabilize the banks. It has an environmentally friendly character, in that the water quality is improved and sediment is prevented from entering the drain. In other words, it preserves the drainage works, and consequently, they require less maintenance.

As meritorious as this may seem, we are of the view that there should not be a mandatory provision in the Report for a buffer strip. If, in fact, the buffer strip is to be provided for, surely it can only be justified for the north side of the drain from which the surface waters enter the drain. There is really no justification for a buffer strip on the south side of the drain except perhaps to define the till limit and provide an access to the drain. It seems to us there may be a little advantage in stabilizing the banks; however, that would be minimal. The environmentally friendly feature is not here since no waters from the south flow into the drain nor is there any sediment to any extent entering the drain from the south. There was talk of wind erosion. A 10 ft. wide buffer strip would have very little effect on it.

An Order will therefore go that the provisions for a buffer strip on both sides of the drainage works be deleted from the Report.

In our view, the Engineer, with his extensive experience, had very meticulously determined the allowances to be granted to the owners for damages. We will not disturb them.

In a similar manner, the Engineer had meticulously and rationally approached the question of assessment and, in our opinion, made no error in determining the assessments to be levied against the lands in the watershed. The lands of the Appellant are assessed because the cutoff drain that was constructed needs to be repaired and improved. It may very well be that the existing drain is effective as a cutoff drain for all storm events other than the severe storm events. The evidence before us indicates that severe storm events are quite frequent in the area, and consequently, the assessment levied against the lands of the Appellant is equitable and proper.

The Appeal of the Appellant against his assessment is therefore dismissed.

The Appellant led no evidence that the benefits to be derived are not commensurate with the costs, and therefore that grounds of appeal must also fail.

His modification proposal was the elimination of the buffers strip. We have already dealt with that issue.

His final objection was to the disposition of the spoil over his lands. The Engineer's proposal is a very reasonable and practical method of disposing of the spoil by alternating the side on which it is to be cast.

An Order will therefore go that the spoil from the drain be deposited as directed by the Engineer in his Report.

An Order will go that the plan attached to the Report, dated January 30, 1994, Sheet 1 of 2, be amended to show the revised watershed limits and the correct location of the drain north of the blind line over the lands, Roll # 6-27.

An Order will go, that the Assessment Schedule be amended to show the affected area of the lands being assessed for cutoff on the south side of the drain.

There will be no Order as to Costs and all parties are responsible for their own costs.

Bernard J. Goodal - Chairperson (dissenting in part).

I am unable to accept the position adopted by the majority of the panel, that the Engineer has the authority to direct that the spoil from the drainage works be cast upon lands other than those of the owner on whose lands the drain is located.

It has been suggested that the Engineer derives his authority from s. 16 of the Act. That section provides:

"s. 16 The Engineer ... shall determine in what manner the material taken from the drainage works .. shall be disposed of".

In my view, the section merely provides the manner in which the Engineer shall determine how the material is to be disposed of. The Shorter Oxford Dictionary defines "manner - the way in which something is done or takes place." In my view, the language of the section would have to be much clearer than it is to vest the Engineer with the right to trespass over someone's land, spreading the excavated material over the land, in addition to that to dispossess an owner of his land (taking his soil). If in fact the Legislature intended to say that, the Engineer had the authority to direct that the excavated material from a drainage works entirely on one owners land shall be spread on another owners land on whose land the drain is not located, they would probably have used works similar to those is s. 12 of the Act giving the Engineer the power to enter on a persons land during the course of carrying out his duties under the Act.

In my view, the Engineer does not have the authority to direct the spreading of the spoil on lands other than those lands over which the drain courses, unless the other owner agrees to take the spoil.

I had taken the same position on the Application of the Corporation of the Township of Pakenham with respect to the Author's Branch of the Levi-Ryan Municipal Drain, in the Township of Pakenham reported in the Consolidated Decisions and Reasons for Decision, 1994, page 4394.

Dated October 3, 1995

Judy Clark panel member,

H.H. Todgham P. Eng., Vice-Chair,

Bernard J. Goodal, Chair.