ONTARIO DRAINAGE TRIBUNAL
APPEAL:
HARGREAVES DRAIN 1994 (RE)
Township of South-West Oxford
Ministry of Transportation of Ontario
HARGREAVES DRAIN 1994 (RE), 1995 ONAFRAAT 23
STATUTE:
HEARING:
May 16, 1995
September 1, 1995
NEUTRAL CITATION:
1995 ONAFRAAT 23
TOWNSHIP OF SOUTH-WEST OXFORD
HARGREAVES DRAIN 1994
REASONS FOR DECISION
This Appeal was launched by the Appellant, the Ministry of Transportation of Ontario (MTO), pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on May 16, 1995.
The proceeding was initiated by the Council of the Township of South-West Oxford in response to a Petition of MTO pursuant to s. 4 (l)(c) of the Act and the Petition of R. & S. Pullen. The area requiring drainage is a stretch of Highway #401 across lots 8, 9 and 10, Con. 2, in the Township of South-West Oxford which is being reconstructed and widened to a total of six lanes and the grassed median being paved and a depressional area in the S Pt. Lot 8 and 9, Con. 2, lands owned by the Petitioner R. & S. Pullen.
The watershed is presently served by two drains. The Cook Drain, north of the Highway, constructed in 1910, is a covered drain outletting into the Carr Drain. Upstream of the origin of the Cook Drain, and outletting into it, the Hargreaves Drain, a covered drain, constructed in 1947.
The lands in the watershed are primarily agricultural, except Highway #401 and the Highway Service Center. The lands are rolling, well-drained, requiring a minimum subsurface drainage.
The primary purpose of the proposed drainage works is to provide an outlet for Highway #401 and the storm sewer system to be installed in the paved median. The Highway waters now outlet into the Hargreaves Drain. A further object is to provide an outlet for the lands of the Petitioner Pullen, for a depressional area where extensive ponding (to the extent of six acres) occurs on a rather regular basis even after moderate storm events.
The Report recommends the construction of a covered drain originating in the depressional area on the Pullen lands, coursing southwesterly and then northwesterly across Highway #401, and across 1-2 Concession Road to outlet into the Carr Drain. The drain is to be constructed parallel to the existing covered drain. It is housed in 300 mm (12") to 400 mm (16") tile. The total length of the drain is 2,323 m. It serves a watershed of 220.9 ha (546 ac.). The estimated cost is $128,400.00. The drain is to be called the Hargreaves Drain 1994.
No issue has been raised with respect to the drain south of the Highway nor the assessments levied. Therefore, we need not deal with it except to the extent of Mrs. Pullen's complaints relating to the construction of the water management scheme and consequent flooding of her land at the Service Center.
The Engineer has assessed the sum of $17,255.00 as a Special Benefit Assessment pursuant to s. 26 of the Act against Highway #401. He then divided the drain north of Highway #401 into four lengths and applied the Todgham method to determine the additional Benefit Assessment levied against Highway #401 in the sum of $17,000.00 and an Outlet Assessment of $3,526.00. He also assessed MTO $1,000.00 Benefit on the length of the drain across Highway #401 for a total of $21,526.00. Of the $18,000.00 levied as a Benefit Assessment, $15,000.00 is for the improved drainage of the Highway and $3,000.00 as the benefit of an improved outlet. This is approximately 35% of the cost of constructing the drainage works downstream of Highway #401, at a cost of $62,065.00. In the opinion of the Engineer, this is an equitable assessment against MTO. As further substantiation of the equity of the assessment, he pointed out that normally, the downstream lands abutting the proposed drainage works would be charged 50% of the cost of constructing the works over their lands. The percentage that the agricultural lands are paying is 27% . He added that the affected area of the Highway right-of-way is 10.4 ha. He converted this to an equivalent area by multiplying it by a factor of four for an equivalent area of 41.6 ha. This, he says, is 15% of the area of the watershed. Whereas MTO is paying approximately 35% of the total cost of the drainage works downstream of Highway #401. When we asked him to enumerate the advantages accruing to the lands downstream (north) of Highway #401 right-of-way, he put forward two: one, improved control over surface waters across the lands; and two, the new tile will provide some improvement to subsurface drainage.
As a further substantiation for the equity of the assessment, he pointed out that a 20 ft. strip of land, as an example, over the J. Van Loon farm could probably be purchased for $5,000.00. Whereas the costs of constructing the covered drain over that land is $27,000.00. He added that certainly Mr. VanLoon would probably not be satisfied with that solution, nor is that the solution that should be resorted to here. This being the case, the owners over whose lands the drainage works pass should pay a reasonable amount of the costs of the drainage works as constructed.
The owner of N Pt. Lot 9 and 10, Con. 2, lands immediately north of Highway #401, Murton-Brae Farms Ltd., appealed its assessment to the Court of Revision. The Court of Revision granted the Appeal and reduced the benefit assessment by 50%; i.e. from $8,500.00 to $4,250.00. The members of the Court of Revision were of the view that all of the agricultural lands abutting on the drain north of the Highway were assessed too high. A member of the Court of Revision said at the hearing that they felt that all of the assessments levied against the agricultural lands north of the Highway were too high. However, since no other owner north of the Highway appealed to the Court of Revision or attended the second sitting of the Court, the Court felt that they could only reduce the assessment levied against the lands of the Appellant Murton-Brae Farms Limited.
Mr. M.C. Ayton, P. Eng., the representative of MTO at the hearing, did not so much object to the increase in the MTO Benefit Assessment, but rather that the Court did not give reasons for reducing the benefit assessment of Murton-Brae Farms Ltd. and adding it to the assessment levied against MTO. In his view, the Court is obliged to set out the rationale to support the increase and as he put it in his letter to the Township dated January 31, 1995 and filed as Exhibit 5, "Unless a rational logical explanation can be provided for increasing MTO's Highway 401 assessment, we must object to the Court of Revision decision of January 3, 1995". We concur with the view taken by the Court of Revision that all of the Benefit Assessments levied against the agricultural lands north of Highway 401 abutting on the drain are too high. There are two reasons for our opinion. First, the Engineer considered that in constructing the drainage works, a benefit will accrue to the downstream lands because of the improved control over surface waters draining across them. This would be a benefit if the surface water being discharged across those lands were not artificially caused to flow. The waters discharging out of the downstream end of the highway culvert across the downstream lands have been collected by the highway drainage system and artificially caused to flow over the lands. In the circumstances, there is a duty on MTO to take those waters to a sufficient outlet. The proposed drainage works are therefore not bestowing a benefit on the downstream lands, as defined by the Act, but merely serving as the vehicle by which the Ministry is discharging its legal obligations.
Second, as we have so many times stated, in weighing the equity of an assessment levied against particular lands or roads, it is necessary to ask and answer the question, What is the purpose of the proposed drainage works? The answer in the matter before us is; to provide an outlet for the waters that have been or will be collected from the Highway right-of-way and artificially caused to flow and will be discharged over the downstream lands. That being the case, as a general rule, not less than two-thirds of the cost of constructing the drain (unless some particular circumstances dictate that a substantial benefit is accruing to the downstream lands) and not more than 85% of that cost must be assessed against MTO.
In this particular case, the agricultural lands downstream of the MTO right-of-way do not really require an improved drainage outlet. The lands in the watershed downstream of Highway #401 are rolling lands and have natural drainage. The soil type is such that it is easily drained, and with the drainage works that are there now, the drainage is adequate for agricultural lands used for agricultural purposes. Consequently, in this case, the benefits that accrue to those lands are collateral advantages for which they must pay; however, their value is not nearly the value assigned to them by the Engineer. We are aware of the fact that all of the waters discharging from the downstream end of the Highway #401 culvert are not waters generated on the Highway right-of-way. The Engineer has, however, provided for that by assessing the lands upstream of the Highway right-of-way, an outlet assessment. However, even if he had not assessed the upstream lands for an outlet assessment, MTO would still be responsible for taking all of the waters discharged from the downstream end of the Highway culvert to a sufficient outlet or expose itself to liability if the outlet is not sufficient. MTO could erect a berm on the southerly side of the Highway right-of-way to prevent the surface flows from entering the right-of-way. However, once they permit those waters to flow onto the right-of-way, into the Highway drainage system, then they are liable for all of the waters discharged from the Highway right-of-way and to take those waters to a sufficient outlet. If the waters being discharged onto the Highway right-of-way are artificially caused to flow, the Ministry has the same right of action for damages against those upstream lands corresponding to its liability and duty to the downstream lands. The physical manifestations of collecting and causing water to artificially flow are much more apparent here than in a large number of the appeals that come before us. In reconstructing Highway #401, the grassed median area is to be paved, a storm sewer drainage system with catchbasins to catch surface waters at frequent intervals is to be installed, the Highway is to be widened to three lanes in each direction. The outlet pipe for the storm sewer system is 21" in diameter discharging into the Highway culvert over the Hargreaves Drain. Clearly, there is a duty on MTO to provide a sufficient outlet for the 21" storm sewer outlet. This, in fact, is not being done. The Engineer has designed the proposed drainage works on the historical coefficient of 1/4 in 24 hours. It is to be kept in mind that was the design for agricultural lands. We now have a 300 ft. highway right-of-way over half of which is paved with a runoff coefficient of 0.9. The duty cast upon MTO is to take all of the waters to a sufficient outlet in order that it not be exposed to liability for damages for discharging artificially collected waters onto private lands.
Even though the design criteria is far from adequate to provide a sufficient outlet for the Highway storm sewer system, in theory, it may be said that the downstream lands will not be in any worse position than they were prior to the reconstruction of the Highway and the construction of the proposed drainage works. The proposed system is a very efficient collecting and conducting system to get the water off the Highway and into the drain expeditiously. Theoretically, these waters will be in the drain and well downstream before waters from the remaining watershed enter the proposed drainage works. This will be the case except in extremely long serious storm events, and therefore the downstream lands are basically in the same position as they were, even though the outlet being provided does not have the capacity to take the discharge from the outlet of the storm sewer system, plus the upstream lands at the same time. There are no other surface water inlets along the drainage work except those provided along the Highway right-of-way. Nor does it advance the argument of the Engineer in support of the equity of assessments one iota to say that the lands over which the drain passes could be bought for a fraction of the costs of constructing the drain. This watershed has historically been served by a covered drain. The abutting lands are entitled to a covered drain. Therefore, the proposed drainage works, an improvement of the existing drainage works, must be done by a covered drain if, in fact, the owners object to an open drain. The increased costs are an added burden that the owner of lands or roads must bear if he wants to improve the drainage system and discharge additional waters through it. The drain is not being designed to any higher standard. It is merely being improved to provide for the added waters, which are to be carried by the drainage works, by providing an outlet for the MTO storm sewer system and an outlet for the area requiring drainage on the Pullen lands. The downstream lands get no higher service than they had, and consequently, only those advantages which accrue directly from the construction of the covered drainage system are advantages for which they are obliged to pay or be assessed.
For the reasons given above, it is our view that MTO should be assessed approximately 75% of the cost of constructing the drainage works downstream of Highway #401, excluding the Special Benefit Assessment levied against 1-2 Concession Road - the Township of South-West Oxford ($1,645.000), Union Gas ($1,665.00) and that part of the Outlet Assessment levied against the lands and roads south of Highway #401 as assessment for the reach of the drain downstream of Highway #401 ($19,029.00); that is, 75% of the sum of $39,726.00.
An Order will therefore go that the Benefit Assessment levied against the Ministry of Transportation of Ontario - Highway #401 be increased by the sum of $9,000.00, from $18,000.00 to $27,000.00 and that the increase in the Benefit Assessment in the sum of $9,000.00 levied against the Ministry of Transportation of Ontario - Highway #401, be applied to decrease the Benefit Assessments levied in the Report against all lands (not roads) assessed for Benefit north of Highway #401 in the ratio that the individual Benefit Assessments are to the total Benefit Assessment.
It may not be MTO policy, however, it may be MTO practice. Over the years, we have noted that MTO provides effective and efficient drainage systems for Highways. This is a feature, no doubt, of properly engineered highway design. However, we have further noted that in rare cases has the Ministry has ensured or provided a sufficient outlet for the highway drainage systems. In most cases, the waters are merely discharged over the downstream lands. Even after the proposed drainage system is constructed, there will still be one highway culvert approximately 500 m east of the drainage works which discharges its water along a surface water run on the Murton-Brae Farms Ltd. No provision is being made to take those waters to a sufficient outlet.
We questioned Mr. Ayton as to the policy and practice of MTO in discharging their duty with respect to waters artificially caused to flow. His answer was that, if there is something already there, they use it as an outlet for their waters. If not, certainly in recent years, they have petitioned for a drain under the Act.
We have already commented on the duty of an owner of land who collects waters and causes them to artificially flow. This law applies equally to MTO as it does to any other owner of lands or roads. MTO has the same rights under the Act, and at the same time, it has the same duties at common law. We make these comments to make it perfectly clear that we are not transferring the burden of the costs on one with "deep pockets," as a representative in another hearing put it. We are merely putting the costs and burden where they belong in accordance with the law. The Act is quite clear, one only pays for the benefits that accrue to him and those to whom benefits accrue must pay. Nor is this offered as criticism of the Ministry. Naturally, as the Ministry of Transportation for Ontario, its primary function is to ensure that the Province and its residents have a good, safe and efficient transportation system. Even though drainage is a critical and an important element in the construction of a good and efficient transportation system, once it is in place and disposes of the water its importance to the transportation system has been recognized and it is then secondary in a sort of a final clean up detail to be looked after in compliance with the law to take those waters to a sufficient outlet. This is no doubt the pecking order within the Ministry, and this is no doubt the reason that, to some extent, the Ministry in the past has failed to discharge the duty imposed upon it by law and had exposed itself to liability for injuries caused to downstream lands. The fact that no one that we are aware of, has sought damages from MTO for injury sustained by them does not mean that the duty is not there and is enforceable in its breach at law.
Although not part of these reasons, we would like to recite some of Mrs. Pullen's bitter complaint against MTO with respect to the water management scheme being constructed at the service center (in her words) with complete disregard for water damage done to downstream lands. The work is being done by a contractor and not directly by MTO, and consequently, much of what has happened to some extent is beyond the control of MTO. However, in her evidence, Mrs. Pullen said and produced photographs taken on March 20, 1995, showing the contractor pumping water from the water management pond and discharging it over their lands. The service center is being expanded and reconstructed to provide a large, paved area for truck parking and servicing. The service center lands are within the watershed and have been assessed. It appears as though there is a private drain upstream of the Hargreaves Drain, which served as an outlet for the Service Center, probably prior to the severance from the original farm lands. It is into this outlet that the waters were purportedly attempted to be discharged. Apparently, large quantities of water have flowed on the Pullen lands. Mrs. Pullen stated that they could not prove that they were MTO waters until MTO held their waters and the area dried up. It was quite clear then that the waters were coming from the service center.
This has happened in the construction phase of the water management scheme. Mr. Ayton pointed out, that once the works are constructed, they will provide for the waters on the service center and discharge them through the control structures at a rate compatible with the design criteria of the outlet.
Mrs. Pullen stated that she talked to Mr. Ayton about the water bubbling out in their field. Mr. Ayton could not recall her call; however, he stated that if she did, it was immediately looked into. If she had called, he would be aware of the complaints of the owners. He had checked with maintenance with respect to complaints, but there were none, apparently. The water management scheme has been designed for a 100-year storm; however, because it is not completed, it overtopped in the Spring and spilled over onto abutting lands. It has no positive connection to the outlet tile. She also mentioned that there had been an oil spill at the Service Center; however, it was a "hush-hush operation". She said that MTO takes what they want at the expense of abutting lands. She had contacted MNR; however, there was no response from them. The water management scheme has now incorporated in it a provision for oil spill and inlet control structures, and when completed, it should function properly without causing any inconvenience or damage to downstream lands. MTO is now conscious of their duty to act when collected waters are discharged.
There will be no Order as to costs, and all parties are responsible for their own costs.
Dated: September 1, 1995.
H.H. Todgham P. Eng., Vice-Chairperson
Warren Jenner, panel member
Bernard J. Goodal, Chairperson