ONTARIO DRAINAGE TRIBUNAL
APPEAL:
GLASSCO DRAIN AND BRANCHES AND ROSS DRAIN, ROSS-KERR EXTENSION (RE) Township of Harwich Wm. & Helen E. Glassco
GLASSCO DRAIN AND BRANCHES AND ROSS DRAIN, ROSS-KERR EXTENSION (RE) 1995 ONAFRAAT 03
STATUTE:
HEARING:
November 8, 1994
January 19, 1995 for Order February 16, 1995 for Reasons
NEUTRAL CITATION:
1995 ONAFRAAT 03
ONTARIO DRAINAGE TRIBUNAL
IN THE MATTER OF
an Appeal of Wm. & Helen E. Glassco from the Report of Henry E. Regts, P. Eng., dated April 22, 1994, on the Glassco Drain and Branches and Ross Drain, Ross-Kerr Extension, in the Township of Harwich, in the County of Kent
DECISION
This Appeal came before the Ontario Drainage Tribunal on November 8, 1994, at the Township of Harwich Council Chambers, 1000 Highway No. 40 South, Chatham, 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, Henry E. Regts, P. Eng., who prepared and presented the Report dated April 22, 1994; Wm. Michael Phipps, Township Administrator on behalf of the Township of Harwich, Jane E. Glassco-Currie as agent for Wm. and Helen E. Glassco and other assessed owners.
The Deputy-Clerk of the Township of Harwich, Nancy L. Rumble acted as Clerk of the Tribunal.
On hearing the evidence, the submissions and reading the materials filed:
IT IS ORDERED THAT the Benefit Assessment to be levied against the lands of H. Bradley and J. Stevens, property reference #1-381 and #1-380, respectively, be levied at the sum of $1,200.00.
IT IS ORDERED THAT the decrease in the Benefit Assessments levied against the lands of H. Bradley and J. Stevens in the sum of $1,400. 00 be levied equally as Benefit Assessment against the six other parcels assessed for benefit in the Schedule of Assessment.
IT IS ORDERED THAT the eight offset private catch basins shall not be maintained as part of the drainage works.
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: January 19, 1995.
Bernard J Goodal, Chairperson
Ontario Drainage Tribunal
REASONS.FOR DECISION
This Appeal was launched by the Appellant Wm. & Helen Glassco, pursuant to s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act), was heard on November 8, 1994.
The proceeding was initiated by the Council of the Township of Harwich in response to a Petition pursuant to s. 4(l)(a) of the Act of seven of the eight property owners in the area requiring drainage (also the whole watershed).
Rather than attempt to describe the routing, attached to these Reasons is plan of the area of the proposed drainage works.
Most of the properties within the area requiring drainage experience considerable flooding in the Spring and after severe storm events. The proposed drainage works is basically a storm drainage system for the residential properties. Each of the properties will be served by at least one rear yard catchbasin connected to the outlet drain. All of the pipe is solid except that portion coursing over the parcel 1-382. The owner of that property, Wm. M. Ross, carries on a nursery business with a retail outlet fronting on County Road #10 (Charing Cross Road). The seven residential properties each contain a home and accessory buildings with access from Charing Cross Road. The rear part of parcels #1-378, 1-377, 1-376 has been left in a semi-natural condition. The proposed drainage works will serve a watershed of 13.68 ac. at an estimated cost of $19,020.00.
The on-site meeting was held on September 9, 1993, with all but one of the property owners present. In addition to his statutory duties under s. 9 of the Act, the Engineer explained to the owners the procedure as provided by the Act. He reviewed the potential alternatives for providing drainage for the area requiring drainage. He suggested the size of the drain that will be required; however, at that time, he had no preliminary cost estimates. He explained that the assessment would be based on a "base" assessment against each of the properties for benefit, regardless of the size of the property, and an outlet assessment based on the area of the property and its location along the drain. The final decision on the route of the proposed drainage works was postponed until the Engineer was ready to do the survey.
The Engineer prepared a Preliminary Report dated November 12, 1993, filed as Exhibit #7. The Report describes the area requiring drainage as "the rear or easterly portion of the properties facing Charing Cross Road, southerly from the Ross' Flower Shop at the intersection of Indian Creek Road and Charing Cross Road, running southerly about 800 ft. or so, up to and including the Smith property, parcel #1-374".
The route and the general configuration recommended in the Preliminary Report is the same as the route in the Report, except that the Bradley and Stevens properties (1-381 and 1-380, respectively) were not provided with rear yard catch basins. The catch basins were added later at the request of Mr. Bradley. The route was selected to miss as many of the trees as possible, and to avoid destroying or damaging boundary markers and boundary fences, lawn and landscaped areas. The estimated cost of the work was $14,925.00. The Preliminary Report does not contain a cost sharing or assessment schedule. It states that, "For all practical purposes, the benefits are about the same for all involved, and since there are eight properties involved to be assessed the costs, the preliminary amount thereof would be the total cost of $14,925.00 divided by 8 or about $1,865.00 to each party involved. There could be a slight variation of this, but in our opinion, this would be the range".
The Final Report provides for 4" diameter connections from the rear yard catch basins to the Main Drain. At the consideration meeting, the connections were increased to 6" diameter and the junction box at Sta. 330.5 was relocated to Sta. 347.5, where the 6" diameter branch outlets into the Main Drain.
The final location of the rear yard catch basins is to be made in the field at the time of construction by the Drainage Superintendent, the contractor and the owner at a location most suitable to the owner for proper drainage.
The Court of Revision was held on July 11, 1994. The only Appellant to the Court of Revision was H. Bradley, parcel 1-381. In that Court, Bradley argued that it is manifestly unfair that an assessed owner who owns approximately 2% of the total area assessed should pay 10% of the total costs. The affected area of the Bradley property is 0.31 ac. The property has been assessed the sum of $1,900.00 by way of benefit, as have all of the other seven properties, and the sum of $80.00 as outlet liability.
The Court of Revision accepted the submission. It was of the view that a much greater benefit accrues to the three-acre property than to the 0.3-acre property out of the construction of the drainage works. It reduced the benefit assessment on the Bradley and Stevens property by $900.00 each and distributed the $1,800.00 reduction evenly among the other six properties. After adjusting the Assessment Schedule to reflect the decision of the Court of Revision, six of the properties were assessed the sum of $2,200.00 each by way of benefit and the other two properties (Bradley and Stevens) were assessed the sum of $1,000.00 each.
The Engineer apportioned the total costs of the work as 80% benefit and 20% outlet. In determining the individual benefit assessments, the Engineer reasoned that each owner has a rear yard catchbasin as an outlet for any waters he wants to deliver to the drain generated on his lands; and consequently, the benefit accruing to each of the properties is the same. He therefore divided the total benefit assessment to be levied by eight to arrive at the benefit assessment to be levied against each property. This worked out to $1,900.00 per property. He then calculated the outlet liability assessment. The rate per/ac for outlet liability ranges from $220.00 per/ac for parcel 1-382 (Ross) to $333.00 per/ac for parcel 1-374 (Smith).
As a demonstration of the equity of the benefit assessments he had levied against the three most downstream parcels, i.e. 1-382 (Ross), 1-381 (Bradley), and 1-380 (Stevens), the Engineer tendered the results of some calculations that he has made. The calculations are produced on page three of Exhibit #11. He first determined the total cost of constructing the 6" branch, the three rear yard catch basins and the outlet pipes for the catch basins. He divided this sum by three. He then determined the cost of constructing the catch basins at Sta. 0+00 and 0+330.5, the cost of constructing the 8" outlet drain between the two Stations, the total miscellaneous and engineering costs and the allowances for the whole drain. He divided this total by eight. He then added together the first-mentioned sum obtained by dividing the cost by three and the second-mentioned sum by dividing the costs by eight which produced a total of $1,845.00. This sum, if rounded up to the nearest hundred dollars, is the same as the benefit assessment he levied against each of the three properties. (We note that there is an error in the calculations. When the Engineer divided $700.00 by three, he got $330.00, rather than $233.00. The sum of the two would then be $1,748.00 rather than $1,845.00.)
The Appellant Glassco was satisfied with the assessment levied against his property by the Engineer. However, following the decision of the Court of Revision, he felt that the adjustment made by the Court of Revision was inequitable and consequently appealed to the Tribunal.
The Appellant does not take issue with the outlet assessment levied against his property. He asks that the benefit assessment levied by the Engineer against his property be restored.
In support of his position, the Appellant adopted the reasoning put forward by the Engineer; that, the benefit assessments should all be equal because when the drainage works are constructed each property will be provided with an outlet for all its surplus waters. He then added some other reasons. The miscellaneous and engineering costs are 50% of the construction costs. These costs should be assessed to each property equally. The most serious water ponding problem is on the Ross property adjacent to the Bradley property. Eliminating that ponding is a substantial benefit accruing to the Bradley and Ross property. Ross and Bradley had intended to alleviate the ponding. If they had done it on their own, it would have cost them much more money. There were extra engineering costs incurred when Bradley asked that the rear yard catchbasin be installed on his property.
The Appellant alleges that the Court of Revision made its decision without adequate consultation with the Engineer. In his view, since the Engineer is better qualified to make the determination, the Court should have consulted with him before deciding to make the reduction, and after making a decision to reduce the benefit assessments, how to redistribute the reduction made.
Furthermore, he points out, there is no evidence that the Engineer had not, to the best of his skill, knowledge, judgment and ability, honestly and faithfully and without fear of or favour to or prejudice against any person, performed the duties assigned to him and consequently his assessment should not be lightly disturbed.
Simply put, the Appellant feels that all owners benefiting equally by having their properties to the rear of their homes drained and therefore the costs of constructing the drainage works should be shared equally.
William Wybenga, a member of Council, Chair of the Court of Revision, gave evidence at the hearing. He has been Chair of 22 Courts of Revision. He has participated in the orientation course and other programs of the Township to prepare members of Council for their role as members of the Court of Revision. He said that the Court was unanimous in accepting the proposition put forward by Bradley that an owner of a property of 0.3 ac should not be assessed the same benefit as an owner of property of three acres. In addition to this, he added, that the Court considered the impact of the drain on each of the properties, the length of the drain over the different properties and the opportunity of a property owner to outlet waters into the drain at more than one point and the potential subdivision of the larger properties for residential use. Having weighed all of these factors, the Court was unanimous in its decision to reduce the benefit assessments levied by the Engineer against the Bradley and Stevens property. They did not take into consideration the extra engineering required because Bradley decided, after the system was designed, that there should be a rear yard catchbasin on his property.
The Court felt that some of the other small properties were also assessed too high. However, he added, they felt that they should not disturb the other assessments.
Dennis Vourbonnis, who purchased the Stevens property on July 29, 1994, also gave evidence at the hearing. He stated that there is an in-ground pool at the rear of his property and it will be difficult to locate a catch basin there. He added that the pool drains out to the County Road. Further, he concluded, that the property has no problems with ponding. It is the ponding on the Ross property which needs to be relieved.
William Ross also gave evidence at the hearing. He does not fee1 that there is any need for these drainage works. He went along with it to be a good neighbour. In his opinion, he has one rear yard catchbasin on his property like everyone else, and therefore, the benefit assessment levied against his property should not be any greater than the benefit assessment levied against the other properties.
Tracey Bradley is still of the opinion that the reduced benefit assessment levied against their property is excessive; however, they are prepared to accept it.
Mr. Phipps, the Clerk-Administrator of the Township of Harwich, as agent for the Township, urged that we should uphold the decision of the Court of Revision. He pointed out that the Court has extensive experience and is fully qualified aware of the duty that it is to discharge under the Act. Many of the members had visited the site. They are familiar with the Drainage Act. They have participated in an orientation program presented by E.P. Dries, P. Eng., a recognized Drainage Engineer. They have read the paper, "Drainage Assessment Re-visited" by E.P. Dries, P. Eng., and H.H. Todgham, P. Eng., published in the proceedings of the 20th Drainage Engineer's Conference 1988 at page 10. They are aware of the relevant Ontario Drainage Tribunal decisions. The decision of the Court composed of highly qualified members, should not be lightly set aside.
In addition, Mr. Phipps asked us to comment on the following:
(i) The equal benefit assessment levied against properties of different sizes;
(ii) Maintenance of the rear yard catchbasins;
(iii) Maintenance of the Ross Drain and the Ross/Kerr Extension;
(iv) Interpretation of s.53 of the Act.
It is quite clear from the evidence, photographs and a view of the site, that the proposed drainage works are required and will bestow considerable drainage benefits to the area. This is really not an issue. The only question before us is: Are the benefit assessments as levied by the Engineer equitable?
Assessment appeals from the Court of Revision to the Ontario Drainage Tribunal are by way of a new trial (trial de novo) rather than a review of the decision of the Court of Revision as in the normal appeal process. The Tribunal is to hear the evidence and determine independently of the Court of Revision's decision whether or not the appeal should be granted or dismissed. The· Tribunal encourages members of the Court of Revision to give evidence at the hearing and their reasons for altering or upholding the assessments as levied by the Engineer and the facts as the Court found them; however, the Tribunal is obliged to find its own facts and on the -basis of these facts, arrive at its own conclusion. The Tribunal wants to hear from the Court of Revision to ensure that all of the relevant evidence is before it.
The Appellant (Bradley) in the Court of Revision argued, that it is manifestly unfair to levy the same benefit assessment against the property with an affected area of 0. 31 acres and a property with an affected area of three acres. The Court of Revision accepted the proposition. In his argument before us, Mr. Phipps said, that the authority for the proposition is the appeal of Wm. A. Anderson et. al. (Appellant) vs. The Corporation of the Township of Thurlow (Respondent), a decision of S.L. Clunis, Drainage Referee, rendered in November 1968.
In the Anderson appeal, the Engineer prepared a Report to improve an existing Municipal Drain pursuant to, what is now s. 78 of the Act. He levied assessments for the cost of the work in the proportion determined by the then current by-law for the drain. After the Report was filed, Council received a Petition asking for the construction of a branch drain to outlet into the existing drain. Council referred the Report back to the Engineer and asked him to prepare a Report consolidating the improvement work on the existing drain and the construction of the branch drain in one Report. In the revised Report, the Engineer levied an uniform benefit assessment against all of the lands abutting on the existing drain or the branch at a rate of $6.00 per/ac. This meant, that the owner of land fronting on the existing drain near the outlet was assessed $6.00 per/ac by way of benefit as was an owner of land abutting the branch, 16,000 ft from the existing drain. The sole test of liability for benefit assessment in the Report seemed .to be whether or not the lands abutted on the drain. This method of levying the benefit assessment failed to take into consideration the varying benefits accruing to the lands along the drain. In addition, the assessments violated the principle that lands should not be charged or assessed for work done upstream of the lands. The Referee concluded, that to assess lands liable for maintenance or improvement on the existing drain at the same rate per/ac as the lands liable to pay the cost of construction of the branch drain, is definitely wrong in principle.
In our view the Anderson case does not hold that it is wrong to assess properties of different areas the same benefit assessment. The case merely stands for the proposition, that it is wrong to assess lands uniformly for benefit when in fact the advantages accruing to the different lands are different. Second, that downstream lands should not be charged or liable for any cost of the work done upstream of them unless, of course, the benefit accruing to the lands is a benefit by cutoff.
Although in the case before us, another Drainage Engineer would not have started with the premise in levying the benefit assessments, that an equal benefit accrues to each of the properties, in our view, there is no error in principle in doing so in the circumstances of this drain. The reasoning of the Engineer is quite logical. The problem being experienced by each of the properties is ponding of water in the rear yards. To solve this problem, the Engineer has proposed a drainage works providing a catchbasin for each of the properties to alleviate the rear yard ponding problem. Each owner will be able to dispose of all of the waters generated on his property by outletting it into the proposed drainage works to eliminate the ponding. From those facts, it is not unreasonable to conclude that benefits accruing to each of the properties is the same.
Having worked out the individual assessments on the basis of that premise, it is then necessary to look at the individual properties and weigh any other advantages that accrue to a specific property other than the advantages which have already been considered. These may include such things as the proximity of the outlet, benefit by cutoff or any other advantage which would then be valued for the specific property and the initial benefit assessment adjusted accordingly.
The final step in the process is to check the total assessment (benefit and outlet) to ensure, that the total assessment levied against any property does not exceed the equitable share of the cost of a drainage works constructed to carry the waters from that property to a sufficient outlet.
Mr. Regts has made those calculations on page 3 of Exhibit #11. However, as we have already pointed out, there is a $100.00 error in dividing $700.00 by three to obtain $330. 00. Second, in determining the share that the three properties should bear of the cost of the common element (the two catch basins at Sta. 00+00 and Sta. 0+330.5 and the 8" Main Drain) he divided the total miscellaneous costs and the engineering costs by eight. In our view, miscellaneous and engineering costs are almost always calculated as a percentage of the construction costs. Therefore, these sums should have been calculated as a percentage of the construction costs of the common element and then divided by eight. Similarly with allowances. Mr. Regts divided the total allowances by eight. In calculating what portion of the allowances should be borne by the three downstream properties only those allowances that were granted to those three properties should be considered and divided by eight.
We have done similar calculations, and our results indicate, that, depending on the way the costs of the common elements are redistributed, the cost of servicing each of the Bradley and Stevens properties range from a low of $1,100.00 to a high of $1,450.00. The reason for this spread is, that one can rationally apportion the costs of the common element in two or three different ways to arrive at the equitable share that each owner should contribute towards the common element. There is no logical reason for selecting one over the other. The equitable share to be paid by each property owner is best determined by the Solomon’s principle of justice; that is, dividing the difference in half (even though the Solomon’s principle of justice is not universal, its application in this case is appropriate, even though it would be inappropriate in a case where the custody of children is involved and there is an odd number of children to divided between the two parents). The total assessment to be levied against each of the properties works out to about $1,275.00.
We would therefore levy a benefit assessment against the lands of Stevens and Bradley in the sum of $1,200.00 each.
The adjustment for the difference in the areas of the properties to be assessed is made in levying the outlet liability. The outlet liability is primarily a function of the area of the property and the characteristics of it which tend to affect the rate and/or the volume of the waters artificially caused to flow from the property. This has been properly done by the Engineer. He has considered all of the factors including the length of travel along the drain in determining the unit rate of outlet liability to be assessed against the individual properties.
It is our view that the rear yard catch basins should each be maintained by the owner of the property. The catch basins will probably require regular cleaning of the grates to permit the ponded waters to inlet into the drainage works. This can best be done by the owner. If the owner does not wish to drain his lands and suffer the ponding, then that should be left up to him rather than having the Township attend from time to time to clean the grate of a catchbasin. All of the rest of the drainage works, including the rear yard catchbasin connections shall be maintained as provided in the Report.
It has been suggested that perhaps the Branch Drain should have a separate Assessment Schedule. Theoretically speaking, that is right. However, in the circumstances, it seems to us that since the Engineer put it all into one Schedule, we should not change it.
We are unable to accede to Mr. Phipps request to clarify the maintenance provisions of the Ross and Kerr Drain for two reasons. First, the maintenance and repair provisions for that drain should be part of the Report for the drain. Second, there is considerable uncertainty in our mind, from the evidence before us, as to what constitutes the Ross and Kerr Drain. It seems to us, that this can best be done by the Township appointing an Engineer under s.76 to clarify the maintenance and repair provisions for this drain or make an application to the Tribunal specifically requesting the requisite modifications to the appropriate Report. There are some provisions in this Report on page 2 and 3 dealing with maintenance of the Ross and Kerr Drain, however, the provisions would be much clearer if they were part of the Report dealing with the drain.
Mr. Phipps tells us, that he and number of other Municipal Administrators have been interpreting s.53 of the Act as not requiring two sittings of the Court of Revision whenever an adjustment in assessment is made when only one Municipality is involved. Their interpretation is that a second sitting of the Court of Revision is required only when the assessments are to be changed and two or more Municipalities are involved.
In our opinion, the provisions of s.53 of the Act applies regardless of the number of Municipalities involved.
The section provides, that the Court shall adjourn the hearing of the Appeal and dispose of the matter of the Appeal at an adjourned hearing:
i) When the ground of Appeal is, that the lands (or roads) are assessed too high; and
ii) The evidence produced satisfies the Court that the assessment on such lands (or roads) should be reduced; and
iii) There is no evidence to indicate that the amount of such reduction should be levied against lands (or roads) whose owners are parties to the Appeal; then
iv) The Court shall adjourn the hearing of the Appeal.
Parties to the Appeal are persons who appeal (Appellants) and the Initiating Municipality (Respondent). Assessed owners who have not appealed are not parties to the Appeal.
An Order will therefore go, that the Benefit Assessment to be levied against the lands of H. Bradley and J. Stevens, property reference #1-381 and #1-380, respectively, be levied at the sum of $1,200.00.
It is ordered that the decrease in the Benefit Assessments levied against the lands of H. Bradley and J. Stevens in the sum of $1,400.00 be levied equally as Benefit Assessment against the six other parcels assessed for benefit in the Assessment Schedule.
There will be no Order as to costs and all parties are responsible for their own costs.
Dated: February 16, 1995.
ONTARIO DRAINAGE TRIBUNAL
Maurice Armstrong, P. Eng., Vice-Chairperson
H.H. Todgham, P. Eng., Vice-Chairperson
Warren Jenner, panel member
Bernard J. Goodal, Chairperson