ONTARIO DRAINAGE TRIBUNAL
APPEAL:
FULLER DRAIN EXTENSION (RE) Township of Malahide M. Rokeby Don Shackleton Farms Ltd.
FULLER DRAIN EXTENSION (RE), 1995 ONAFRAAT 28
STATUTE:
HEARING:
August 15, 1995
October 16, 1995
NEUTRAL CITATION:
1995 ONAFRAAT 28
TOWNSHIP OF MALAHIDE
FULLER DRAIN EXTENSION
IN THE MATTER OF:
An Appeal of M. Rokeby and others from the Report of J. R. Spriet, P. Eng., dated February 15, 1995, on the Fuller Drain Extension, in the Township of Malahide, in the County of Elgin.
AMENDED DECISION
This Appeal came before the Ontario Drainage Tribunal on August 15, 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 February 15, 1995; M. Rokeby, D. Shackleton as agent for Don Shackleton Farms Ltd. and other assessed owners.
The Clerk of the Township of Malahide, R. Millard, 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 Highway No. 73 (Ministry of Transportation for Ontario) be increased by the sum of $4,900.00.
- IT IS ORDERED THAT:
the Benefit Assessments levied against the following lands be reduced by:
N 1/2 Lot 10, Con. 8, Roll #40-090 (Don Shackleton Farms Ltd)
$ 200.00
Pt N1/2 Lot 11, Con. 8, Roll #40-099 (M. Rokeby)
$2,500.00
Pt N1/2 Lot 12, Con. 8, Roll #40-103 (P. & G. Van Kasteren)
$ 850.00
- IT IS ORDERED THAT:
the Outlet Assessment levied against Pt N ½ Lot 11, Con. 8, Roll #40-099 (M. Rokeby) be reduced by $1,350.00.
- IT IS ORDERED THAT:
Schedule "D" Assessment For Maintenance on page 8 of the Report shall be struck from the Report and the assessment for maintenance and repair shall be made pursuant to Schedule "C" - Assessment For Construction except that in determining the ratio of MTO the Special Benefit Assessment in the sum of $5,900.00 shall not be included, but the sum of $6,900.00 shall be included.
- 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: October 16, 1995.
Bernard J. Goodal, Chairperson
REASONS FOR DECISION
This Appeal was launched by the Appellant, M. Rokeby and Don Shackleton Farms Ltd., pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D. 17 (the Act), was heard on August 15, 1995.
The proceeding was initiated by the Council of the Township of Malahide in response to a Petition of the Ministry of Transportation of Ontario (MTO) pursuant to s. 4 (1) (c) of the Act.
The area requiring drainage is a stretch of Highway No. 73 between Lot 10 and 11, Concession 8, in the Township of Malahide. The Highway had been recently reconstructed, including a new culvert across the Highway and the deepening of the Highway ditches on both the east and west side of the Highway. The bottom of the deepened ditches is below the existing outlet for the Highway waters. As a result, waters now pond along both sides of the Highway, presenting not only a hazard to the public but, the ponding is deleterious to the roadbed itself.
The Township records indicate that the Fuller Drain was probably constructed in 1910. The upper 260 m of the drain, on Lot 12, Con. 8, a covered drain housed in 200 mm tile, is part of the original 1910 drain. The drain was last reconstructed in 1983. At that time, 3,670 m of 200 mm to 600 mm diameter tile was installed. It is now proposed to extend the drain from the upstream end of the work done in 1983 westerly across Lots 11 and 12, Highway No. 73 into Lot 10 to provide an outlet for the 4.5 ha of land of Lot 10, Con. 8 in the watershed.
There is a tile drain across Lot 11, Con. 8. It is difficult to determine from the evidence whether this tile drain had at one time been part of the Fuller Drain or not. It courses across Lot 11 from its easterly boundary (the upstream end of the Fuller Drain) across Highway No. 73 to provide an outlet for the 4.5 ha of land owned by the Appellant Don Shackleton Farms Ltd. in Lot 10, Con. 8. On the basis of the evidence available, including the plan of the drain in 1910, it appears as though this reach of the drain was a private drain, an extension to the Fuller Drain to provide the outlet for the lands in Lot 10.
Highway No. 73 was recently reconstructed. The private drain providing an outlet for Lot I 0 was destroyed, so that the lands in the watershed in Lot 10 do not now have an outlet. To some extent the deeper Highway ditch and a new culvert provide an outlet for those lands across Highway No. 73. However, since the invert of the Highway ditch both on the west and east side of the Highway is lower than the existing private tile, there is no outlet for the lands or the Highway downstream. This is the primary reason why MTO has filed a Petition under the Act.
The Report recommends that a new covered drain be constructed from the upstream end of the 300 mm diameter tile installed in 1983 (Sta. 3 + 542) that is, replacing the existing 200 mm tile in Lot 12 and installing a new 300 mm tile to the easterly limit of the Appellant Rokeby lands. Then adjust the alignment such that the drain across Lot 11 runs along the service lane for the existing orchard to the easterly limit of Highway No. 73 and then readjust the alignment so that the drain cross the Highway No. 73 at the new surface water culvert to a catchbasin on the westerly limit of Highway No. 73 and a short extension into Lot 10, Con. 8 to provide an outlet for the lands in the watershed in Lot 10, Con. 8, lands owned by the Appellant Don Shackleton Farms Ltd. It is totally a covered drain housed in a 300 mm to 200 mm diameter concrete tile. The estimated cost of the work is $26,900.00. The proposed drainage works are to be called the Fuller Drain Extension. It consists of 783 m of 200 mm (811) to 300 mm (1211 concrete field tile, four catchbasins at two junction boxes in Lot 11 at the points of change of direction of the alignment of the drain.
The lands of the Appellant Rokeby, being Pt N 1/2 Lot 11, Con. 8, Roll #40-099, have been assessed the sum of $3,600.00 for Benefit and $2,514.00 for Outlet, for an affected area of 14.4 ha. The lands of the Appellant Don Shackleton Farms Ltd., comprising N 1/2 Lot 10, Con. 8, Roll #40-090, have been assessed the sum of $600.00 for Benefit and $1,226.00 for Outlet, for an affected area of 4.5 ha.
Both of the Appellants gave evidence at the hearing. Mr. Rokeby in addition to his oral presentation, submitted a written resume of his evidence, filed as Exhibit #3. Simply, he stated that prior to the reconstruction of the Highway by MTO, he had an adequate, reliable, functioning drainage system. His lands, which are an orchard, were systematically tiled in 1972. Since the lands slope from west to east, the laterals also run from west to east with a header at the easterly limit of his lands, outletting into the Fuller Drain. He added that he has had no problems with the systematic drainage system until the Highway was reconstructed. It appears to him that a muskrat family broke into the tile and caused damage, which he had to repair. It is his view that when the Highway was being reconstructed and the drain was severed and left open, muskrats entered the drain and caused the damage. When the drain was severed, Mr. Rokeby pointed out to MTO that the tile was open and that muskrats, corn, vegetation and other trash could get into the drain. However, MTO took no action on the complaint. He states that the Fuller Drain as it is now provides a sufficient outlet for his drainage system, and as an indication of that he stated that if it had not he would have asked for a larger drain in 1983 when the drain was reconstructed. Or perhaps even in 1972 when he installed his systematic subsurface drainage system.
In his submission, he states that it is a problem that was created by MTO, and now they are attempting to saddle the farmers with the cost of the drainage works. It seems to him that they are asked to pay for MTO mistakes and are way over-assessed for the limited benefits that accrue to his lands. He suggested that perhaps MTO should pay the total costs. However, on further questioning, he conceded that there is some benefit to him and he is prepared to pay for whatever benefit does in fact accrue to his lands; however, the benefits that do accrue to his lands have been way over-valued by the Engineer. In addition to this, he will not use the proposed drainage works as an outlet for his subsurface drainage system, since his mains are on the easterly limit of his lands. Nor will any surface waters from his lands enter the system since there are no surface water inlets along the drain that would intercept any of the future flows from his lands except for the catchbasin at his easterly limit.
Mr. Shackleton, who also supplemented his oral evidence with a written submission filed as Exhibit #4, primarily reflects the position taken by Mr. Rokeby. He reiterates the proposition that MTO has caused the problem; they have cut off his drainage across the Highway, and as a result, ponding is taking place on the west side of the Highway and over his lands, reducing crop yields in the area in the watershed. He adds that the old drain had been there for a long time, and when the Highway was repaired in the past, even prior to 1973, the reconstruction of the road did not interfere with the tile until the most recent reconstruction in 1992. In his view, the drain is of very little benefit to Mr. Rokeby. The benefit does not exceed 5% . All that he will realize is slightly faster drainage by upsizing the tile from east of Lot 11, Con. 8 to the reconstructed Fuller Drain. If, in fact, a bigger outlet was required, it would have been done in 1983 when the drain was reconstructed. He added that his family owns three farms and are contributing to the reconstruction of five municipal drains, all because MTO has petitioned and in their high-handed approach to the reconstruction of Highway No. 73. He also asks that the assessment against the Shackleton Farms Ltd. be reduced.
Mr. Shackleton had appealed to the Court of Revision. However, he did not file a Notice of Appeal to the Tribunal. At the commencement of the hearing, he made a motion requesting leave to file a late Notice of Appeal from the Court of Revision. Following his submission and the position taken by the Engineer, we granted the motion. An Order will therefore go granting leave to Shackleton Farms Ltd. extending the time to file a Notice of Appeal from the Court of Revision to the date of the hearing and granting the Appellant permission to appeal to the Ontario Drainage Tribunal.
In calculating the assessments levied against the lands in the watershed and the Highway, the Engineer first assessed the sum of $5,900.00 for the increase in costs of constructing or boring the covered drain under Highway No. 73, pursuant to s. 26 of the Act. He next calculated the costs of a drain to take the waters generated on the Highway right-of-way to a sufficient outlet into the Fuller Drain. He calculated this at 800 m of 6" diameter tile designed to a coefficient of 1/2" per 24 hrs. and a cost of $6,900.00. He levied this as an additional assessment against the Highway. He also levied an Outlet Assessment in the sum of $1,282.00 against the Highway. In addition to this, he levied the sum of $1,500.00 by way of benefit against Highway No. 73 for the two catchbasins that are to be installed. The total assessment against the Highway is therefore $15,582.00 . The balance of the cost of the drain of $11,318.00 he levied as Benefit and Outlet Assessment against the lands in the watershed. The Benefit Assessment he calculated at $7.33/m for 491 m over the Rokeby land, or a Benefit Assessment of $3,600.00. The lands immediately downstream, with a length of drain 261 m, he assessed at $7.11/m for a Benefit Assessment of $1,850.00. There is a very short length of drain on the Shackleton Farms Ltd. lands. He assessed a Benefit of $600.00 against those lands. For a total Benefit Assessment of $6,050.00. This, he says, is approximately three-quarters of the cost of a 6" diameter tile drain.
The balance of $5,268.00 he levied as Outlet Assessment against all of the lands in the watershed.
The primary purpose of these drainage works, is to provide an outlet for the Highway No. 73 waters. The Engineer, when questioned on this issue, was rather reticent to concede that this was the primary purpose. However, if that is not the primary purpose, what is the primary purpose? Looking at the issue in that way, it is quite clear that the primary purpose of these drainage works is to provide an outlet for the waters on Highway No. 73. In that case, as we have already stated in a number of similar appeals, (where MTO has been the Petitioner for the purpose of providing an outlet for Highway waters) that unless unique and compelling circumstances exist and rather real and substantial benefits accrue to the downstream lands, the highway should not be assessed any less than 50% of the total cost of the work and not more than 85%. Presently the Highway is assessed 46% of the cost of the work, excluding the assessment levied against the Highway under s. 26 of the Act. In reviewing the conditions in the watershed, the evidence of Mr. Rokeby, his subsurface drainage system and the fact that there is only one surface water inlet to inlet waters from his lands, it is quite clear that the benefits accruing to his lands are collateral and not very substantial.
We do not know much about the owner of the lands downstream (P. & G. Van Kasteren), but they are not likely in a much different position than Mr. Rokeby. If, in fact, there is a subsurface drainage system on those lands, the laterals run in the same direction as those of Mr. Rokeby. That is, the main is at the easterly limit of the lands outletting into the 300 mm diameter Fuller Drain. There may be a small percentage of the area outletting into the existing 8" diameter drain. There are no surface water inlets along the drain to receive waters from the Van Kasteren lands; therefore, the lands appear to be in the same relative relation to the drain and the need for it as those of Rokeby.
Don Shackleton Farms Ltd. is in a slightly different position. These are lands upstream of Highway No. 73. Those lands had an outlet through the private tile over the Rokeby land. Although it was not in any precarious position as to use, in order to establish a legal right over that outlet, should the issue ever be raised, it would be necessary to get a Court declaration of the right. This, of course, would be quite expensive. With the construction of the Municipal Drain, the lands of Don Shackleton Farms Ltd. will have a legal and a secured outlet into the new Municipal Drain. Once again, we question the Engineer on the primary purpose of taking the subsurface drainage or the extension across the Highway to the Don Shackleton lands. Again, he seemed to exhibit certain reticence in agreeing with that submission; however, if that in fact is not the case, what is the primary purpose? It may be true that there is a catchbasin on the west side of the Highway which inlets into the drain; however, these waters could just as easily flow through the culvert to the other side and enter the drain through a catchbasin on the east side. There is no question, the primary purpose of the extension of the drain under Highway No. 73 is to service the Shackleton lands. By that analysis, the major cost of that extension should be assessed against the Don Shackleton Farms Ltd.
However, there is one more factor to consider in determining what the assessment against Shackleton Farms should be.
Prior to the reconstruction of the Highway, Shackleton Farms Ltd. had an outlet into the private drain. This outlet was, in fact, destroyed by the Highway when the Highway was reconstructed. Therefore, it seems to us that it would be only equitable that, having destroyed the outlet for Shackleton Farms Ltd. the Highway should contribute a portion of the costs of reestablishing that outlet. The existing outlet is going to be a much more substantial outlet; it’s going to be a much newer outlet with a greater life expectancy. In the circumstances, it is our view, after having studied the figures and reviewed the costs of extending that drain across Highway No. 73, that the Shackleton Farms Ltd. Benefit Assessment should be reduced by the sum of $200.00.
In our view, Highway No. 73 should be paying 70% of the total costs of the works, excluding the $5,900.00 which has been levied against the Highway under s. 26 of the Act. This can best be accomplished by reducing the Rokeby Benefit Assessment by $2,500.00, the Van Kasteren Benefit Assessment by $850.00, the Shackleton Farms Ltd. Benefit Assessment by $200.00 and the Rokeby Outlet Assessment by $1,350.00.
The reductions made in the Benefit Assessments and the Outlet Assessment shall be levied against the MTO - Highway No. 73 as a Benefit Assessment.
The Engineer has also prepared a separate Schedule for Future Maintenance. In determining the percentages to be paid by each of the lands and roads in the watershed, he deducted from the MTO - Highway No. 73 assessment the $6,900.00 which he levied as a Benefit Assessment against the Highway derived from the calculation of supplying a drain for the Highway for their waters. In the Assessment for Maintenance Schedule, MTO pays 19.7% of the costs of future maintenance, whereas the lands of Mr. Rokeby pay 41.2%. This Schedule was purportedly prepared pursuant to s. 38 of the Act. Section 38 provides that, "Where the Engineer considers it equitable that the cost of the maintenance and repair of a drainage works be assessed upon a basis different from that upon which the cost of its construction or improvement is assessed, the Engineer shall determine and report the basis upon which the cost of maintenance and repair of the drainage works or any part or parts thereof shall be assessed".
We are of the view that, in order to justify a separate Schedule of Assessment for Future Maintenance and Repair, it is necessary to show that there is some special and particular reason for assessing future maintenance in different ratios than construction. The Engineer has pointed to no such unique feature. He merely stated that, in his view, he felt that the $6,900.00 which may be termed as a direct benefit to the Highway, should not be included and, of course, (correctly) he did not include the assessment under s. 26 of the Act. There is nothing before us to show that the costs of future maintenance and repair should be assessed on a basis different from that upon which the costs of its construction is assessed.
An Order will therefore go striking out Schedule "D" Assessment For Maintenance in the Report. The assessment for maintenance and repair shall be made pursuant to Schedule "C" Assessment For Construction, except that in determining the ratio of MTO, the Special Benefit Assessment in the sum of $5,900.00 shall not be included, but the sum of $6,900.00 shall be included.
There will be no Order as to costs and all parties are responsible for their own costs.
Dated: October 16, 1995.
Judy Clark, panel member
H.H. Todgham, P. Eng., Vice-Chairperson
Bernard J. Goodal, Chairperson