Highway #24 Drain (Re), 1995 ONAFRAAT 33

Ontario Drainage Tribunal

APPEAL:

HIGHWAY #24 DRAIN (RE) Township of Clearview Ministry of Transportation, Schnurr's Country Market Ltd., Mr. Ted Petter, Ms. Florence McCarl, Mr. Allan Judges, Mr. Edward West, Mr. Donald Kolkea and Mr. Ray Swaim

HIGHWAY #24 DRAIN (RE), 1995 ONAFRAAT 33

STATUTE:

Drainage Act

HEARING:

November 10, 1995

DATE OF DECISION:

November 20, 1995

NEUTRAL CITATION:

1995 ONAFRAAT 33

TOWNSHIP OF CLEARVIEW

HIGHWAY #24 DRAIN

AND IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal under Section 54 of the Drainage Act by the Ministry of Transportation, Schnurr's Country Market Ltd., Mr. Ted Petter, Ms. Florence McCarl, Mr. Allan Judges, Mr. Edward West, Mr. Donald Kolkea and Mr. Ray Swaim from the May 25, 1995 decision of the Court of Revision for the Highway #24 Drain.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mr. John Bacher, Member.

Appearances:

Mr. Don Kolkea, appellant Mr. Edward West, appellant Mr. Dave Schnurr on behalf of Schnurr's Country Market Ltd. Mr. Jack McCarl, on behalf of Florence McCarl, appellant. Mr. Ray Swaim, appellant Mr. J. Muller, appellant. Mr. Steven Mclnnis, on behalf of the appellant Ministry of Transportation of Ontario. Mr. Don McNalty, P. Eng., on behalf of the respondent, the Township of Clearview.

DECISION OF THE TRIBUNAL

This appeal was heard in Stayner, Ontario on Friday November 10, 1995.

Mr. Boh Campbell, Clerk of the Township of Clearview (the Township) acted as Clerk of the Tribunal.

Several landowners assessed for the Highway # 24 Drain in the Township appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision. Section 54 of the Act states:

54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal, within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal. Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1980, c. 126, s. 54.

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1980, c. 126, s. 54.

Preliminary Matters

At the outset of the hearing, Mr. Steven Mcinnis, representative of the Ministry of Transportation of Ontario (MTO), requested that MTO be allowed to appeal to the Tribunal under Section 48 of the Act on the grounds that the drainage works should be modified. He said that in reviewing the assessment in the report, MTO concluded that in some respects, the drain is more elaborate than required for highway purposes. He said that MTO had reviewed three alternative designs, prepared sketches of these designs, and the pros and cons of each. He said that MTO wanted to present these alternatives to the Tribunal.

Mr. Don McNalty, P. Eng., the engineer who prepared the report on the Highway #24 Drain for the Township, told the Tribunal that he had seen the sketches earlier in the week and he was prepared to address the proposals.

Since no objection was raised, the Tribunal decided to allow the MTO to expand its appeal to include an appeal under Section 48 of the Act concerning the design.

Section 48 states:

48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be.

(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1980, c. 126, s.48.

The Background

The Township of Nottawasaga received a petition for drainage works dated November 13, 1991. The petition was initiated by Mr. Andrew McConnell, P. Eng. of the MTO.

As noted in the petition, there is insufficient outlet for the existing 2300 mm x 1500 mm C.S.P.A. culvert that crosses Highway 24 approximately 90 metres north of Simcoe County Road 33.

The problem of insufficient outlet is caused by the inadequate depth of the existing drainage outlet swale downstream of the road culvert. The outlet swale, which is approximately 70 metres in length, crosses the property of Mr. Ed West (Roll No. 7-081) and outlets to a tributary of the Pretty River, located on the property of Mr. Ted Petter (Roll No. 7-081-06).

The upper portion of the swale is poorly defined with a relatively flat profile. In this area, the swale is roughly 0.7 metres higher than the road culvert invert. The inadequacy of the swale to handle the run-off causes ponding upstream in the roadside ditches. The Ministry of Transportation has noted that the ponding is a hazard to public safety.

The area requiring drainage includes the portion of the Highway 24 road allowance where ponding occurs upstream of the culvert as well as a portion of the existing swale downstream of the culvert on Mr. West's property. The drainage area for this project is approximately 70 hectares. Roughly 70% of the drainage area is farmland. Of the remaining portion, 11 % is road allowance and the rest is residential/non-agricultural. The land in the area is relatively flat and slopes generally to the north. Soil mapping describes the primary soil types within the drainage area as having imperfect drainage characteristics.

The recommended solution to the drainage problems of the area involves the installation of a 500 mm diameter covered drain along the south bank of the swale with an offset of 2. 5 metres minimum. The 500 mm diameter covered drain would be connected to a standard ditch inlet catchbasin structure located in the ponding area on the west side of Highway 24 near the outlet of the highway culvert and would outlet to the stream on the West property close to the boundary with the Petter property. The inlet elevation of the ditch inlet catchbasin would be set at the invert elevation of the highway culvert. To protect the covered drain outlet from scouring/erosion, the outlet and the stream bank would be protected with a 300 mm layer of stone rip-rap and geotextile filter fabric liner. The shallow swale and landscaping on Mr. West's property would not be significantly altered.

During 'low-flow' conditions run-off will be conveyed to the stream by the surface inlet and a 500 mm diameter covered drain. During normal flow conditions, as the capacity of the underground pipe is exceeded, run-off will build up and eventually flow overland to the stream via the existing swale. Following a storm, the temporarily ponded water will drain to the stream through the ditch inlet catchbasin and a 500 mm diameter covered drain. The ditch inlet catchbasin will ensure that water does not pond in the roadside ditches between storms.

The total estimated cost for the overall project is as follows:

1. Cost of construction: $11,000
2. Allowances: $2,000
3. Engineering fee for preparation of preliminary and final report: $16,000
4. Engineering for attendance at public meetings and contract administration and construction inspection: $6,000
5. Interest on temporary financing: $3,000

TOTAL PROJECT ESTIMATE: $38,000

This amount was assessed against the lands and roads in the watershed in the ratio of 84 % benefit and 16% outlet liability. MTO was assessed 90% of benefit costs, Mr. West 6%, Mr. KoIkea 2 %, the Township 1 % and Schnurr Country Market 1 %. The remaining cost was levied against lands and roads in the drainage area as an outlet liability assessment.

The Court of Revision considered these assessments and removed the benefit assessment from Mr. West, Mr. Kolkea and Schnurr's Country Market and placed this assessment against the MTO. The Court of Revision also reduced the outlet assessment of Schnurr's Country Market by the sum of $40.20 and increased the outlet assessment against the lands of Ontario Hydro by $40.20.

The Issues

There are two issues in the appeal:

1. Should the Tribunal confirm the assessments as established by the Court of Revision?
2. Should the drainage works be modified to one of the proposals presented by the MTO?

The Findings

Mr. McNalty told the Tribunal that the complaint was ponding water at the highway. He said there was a need for a drain to remove the ponded water and allow the peak flows to travel overland. He said that the stream that the proposed drain will use as an outlet meanders and once it flows into Mr. Petter's property it meanders extensively. There are some timbers in the channel trying to train the channel into one course. He said that this is an environmentally sensitive area, and the Ministry of Natural Resources (MNR) had fisheries concerns in this area and in the Pretty River. The Conservation Authority had concerns about erosion control in the channel. He explained to the Tribunal that to minimize the municipality's exposure for damages on the watercourse, he felt it was reasonable to put in a low-flow covered drain and leave the swale alone. Low flows would travel through the tile with a protected outlet into the outlet stream. This proposal resulted in little work in the stream. This satisfied MNR and solved the MTO problem. He said that under peak flow conditions, the swale was needed to carry the volume of water, so it was part of the drain proposed in the report. He said that this alternative did not change the aesthetics of Mr. West's property, except during construction.

Mr. McNalty told the Tribunal that efforts were made to reach a direct agreement between the MTO and Mr. West that would have permitted the Ministry to deepen the swale that crosses Mr. West's property and thereby alleviate the upstream ponding. Direct discussions between the Ministry and Mr. West were not successful in resolving the issue. It was the MTO' s position that initiating a petition for drainage under Section 4 of the Drainage Act is the most appropriate method of resolving the matter.

He also said that a number of residents whose properties are located along the tributary of the Pretty River reported that flooding problems and the rate of stream bank erosion along the tributary have increased since the Ministry carried out ditch improvements along Highway 24 in 1990.

Mr. McNalty indicated to the Tribunal that Mr. Ted Petter, on whose property the drainage swale outlets to the stream, expressed concerns regarding improvements to the drainage swale. Mr. Petter noted that his property currently suffers from flooding and bank erosion problems and that any deepening or widening of the existing shallow swale on Mr. West's property could cause an increase in these problems.

Mr. Steven Mcinnis spoke on behalf of the MTO. He presented three alternative alignments for an open ditch to solve the MTO drainage problem. One alternative followed the alignment of the existing swale. A 500 mm culvert would be installed on the West property to allow access to both sides of the property. The side slopes of the swale would be flat enough to allow for relatively easy lawn maintenance. The construction cost of this proposal is approximately $8,860.

The second alternative involved constructing a grassed swale, north of the existing swale, along the West-Petter property line. This alternative would cost approximately $10,330 to construct.

The third alternative involved constructing a grassed swale on the West property. The proposed swale would run parallel to the highway ditch and then parallel to the West-Petter property line. This alternative would cost approximately $11,730 to construct.

Mr. McNalty told the Tribunal that the land at the corner of the West property was approximately 0.7 metres higher than the high point in the swale in the West property. In order for the last two alternatives to be feasible, the ditch would have to be approximately 1.4 metres deep at the northeast corner of the property.

In response to questions from the panel, Mr. McInnis told the Tribunal that he had not requested comments from MNR or the Conservation Authority on the proposal to deepen the existing swale. He also told the Tribunal that he had considered only the construction costs and not the allowances for land taken to construct the work and for damage to lands during construction of the ditch. The Tribunal noted that the difference between the MTO proposal ($8,800) and the recommended proposal ($11,000) is only $2,200. This sum will quickly be consumed in the cost of the allowances, the new report necessary to implement the proposal and in obtaining approvals from MNR and the Conservation Authority for the work. In the opinion of the Tribunal, the MTO proposal would not result in savings in construction costs or environmental costs and therefore, the Tribunal decided to deny the Section 48 appeal of MTO to have the report modified.

Having decided that the work proposed in the engineer's report is the preferred option for solving the problem, the Tribunal turned to the issue of assessments.

Mr. McNalty said that the total cost of the drain was $38,000. He used the Todgham method of distributing the cost. He first divided the cost into 84 % benefit and 16 % outlet liability. He said that he originally started with a larger portion on outlet, but decided that most of the water making its way to the outlet through the problem area and swale is escaping, so he reduced the percentage assessed as outlet liability. He said that the work involved is mainly to benefit a restricted area as most of the upstream water already has an outlet. He distributed the outlet assessment using the equivalent acreage method. He assigned factors of 0.15 to agricultural open space lands; 0.30 to severed lots with some impervious areas, and 0.95 to the roads. He said that the factor for roads was higher than usual since Highway 24 at this location is essentially ditch, shoulder and impervious area from property boundary to property boundary. Because of this unusual situation, the road is very efficient at delivering water to the drain.

Mr. McNalty told the Tribunal that each property he thought should pay benefit assessment had different factors because of the situation of each of the properties. He said that the distribution of benefit assessment was very subjective in this case. He applied the reasoning that MTO should be a significant contributor, since they had the safety problem of ponding water on the right of way. He assessed MTO 90 % of the benefit assessment.

He assessed Mr. West 6% of the benefit assessment because, in his opinion, Mr. West would have easier maintenance of his property because the low flow would travel underground and the ponding at the property line would be eliminated.

He assessed Mr. Kolkea 2% of the benefit assessment because the drain would remove the standing water in front of his property, removing a safety hazard, and the underground tile would allow drainage of his land, removing the saturated conditions that exist in the area.

He assessed the Township 1% of the benefit assessment. The local airport road runs east and is a Township road. At present, water lies on the road allowance and improving the outlet improves that situation. However, since the road base is above the level of standing water, it is secure and a large benefit assessment is not warranted.

He assessed 1% of the benefit assessment to Schnurr' s Country Market. The property has a tile drainage system with both a gravity outlet and a pump outlet into the highway ditch. The tile water flows down the road ditch to the proposed drain. Providing an outlet is a benefit to the Schnurr property, but it is also at the upstream end of the benefit area and so does not warrant a large benefit assessment.

The arguments of Mr. West, Mr. Kolkea and Mr. Schnurr were very similar. They believed that the MTO, or its contractors, had erred by setting the culvert crossing Highway #24 approximately two feet too low, resulting in ponding water above and below the culvert. All of them believed that they received no benefit from the proposed drain and that the entire responsibility for solving the drainage problem lies with the MTO. MTO introduced air photographs showing construction on the West property and suggested the possibility that fill placed in the swale had contributed to the ponding. From the evidence, it was not possible for the Tribunal to determine whether the actions of either or both parties contributed to the ponding.

In the course of the testimony, it became clear to the Tribunal that these owners do not understand their legal responsibilities with respect to drainage waters. The only evidence offered was statements that they would not benefit from the work or, in the case of Mr. West, that he would do the work himself. In response to questions from the panel, all agreed that there was a drainage problem and something needed to be done to correct it. In an effort to assist these owners in understanding their obligations with respect to drainage waters, the Tribunal will instruct the Clerk to attach a copy of fact sheets from the Ministry of Agriculture, Food and Rural Affairs to this decision when it is sent to the parties.

MTO argued that the original assessment in the January 30, 1995 engineer's report was based on established principles and should be reestablished by the Tribunal. MTO asked that the decision of the Court of Revision be overruled, and the assessments restored to those shown in the report.

The Tribunal found no fault with the method used by the engineer in distributing the cost of the project, and therefore, the Tribunal decided to overturn the decision of the Court of Revision and restore the assessments, both benefit and outlet liability, as set out in the engineer's report dated January 30, 1995.

The appeals of Mr. Muller and Mr. Swaim were more difficult to decide. Both gentlemen have resided on their properties for a number of years. Both claimed that none of the water from their lands drained into the highway ditch or through the proposed outlet on Mr. West's property. Mr. McNalty told the Tribunal that he had not taken levels of the land but had relied on the Ontario Base Maps and a visual inspection of the properties. The Tribunal noted that both of the gentlemen had appealed to the Court of Revision. The Court of Revision had received evidence and then recessed to view the area before making a decision. Since the Court of Revision consisted of people local to the area who had the opportunity to view the area and had decided not to change the assessment of Mr. Muller or Mr. Swaim, the Tribunal decided to deny these appeals as well.

Mr. Ted Petter and Mr. Allan Judges did not appear at the hearing to provide evidence and therefore their appeals are dismissed.

Decision and Reasons

After carefully considering all of the evidence filed and submissions made, the Tribunal decided to grant the assessment appeal of the MTO; deny the Section 48 appeal of the MTO; and deny the assessment appeals of Schnurr's Country Market Ltd., Mr. Ted Petter, Ms. Florence McCarl, Mr. Allan Judges, Mr. Edward West, Mr. Donald Kolkea and Mr. Ray Swaim.

The reasons for this decision are:

1. In the opinion of the Tribunal, the appellants did not provide evidence of errors in the methodology used by the engineer in calculating the assessment schedule.
2. In the opinion of the Tribunal, the alternative design proposed by MTO would not result in significant dollar savings or in improved environmental considerations.

ORDER OF THE TRIBUNAL

1. It is ordered that

The appeals by Schnurr's Country Market Ltd., Mr. Ted Petter, Ms. Florence McCarl, Mr. Allan Judges, Mr. Edward West, Mr. Donald Kolkea and Mr. Ray Swaim from the May 25, 1995 decision of the Court of Revision for the Highway #24 Drain be denied.

2. It is ordered that

The appeal of the Ministry of Transportation from the May 25, 1995 decision of the Court of Revision for the Highway #24 Drain be granted.

3. It is ordered that

The assessment for the Highway # 24 Drain be restored to those shown in the schedule in the January 30, 1995 engineer's report.

4. It is ordered that

The appeal by the Ministry of Transportation under Section 48 of the Drainage Act be denied.

5. It is ordered that

The Clerk of the Tribunal circulate copies of the Ministry of Agriculture, Food and Rural Affairs Factsheets - Common Law Aspects of Water, Duties of the Landowner Under the Drainage Act, and Understanding Drainage Assessment, to all parties entitled to a copy of this decision of the Tribunal at the time the decision is circulated.

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 Section 73 of the Act.

Dated at Chatsworth, Ontario, this 20th day of November 1995