McVittie Drain (Re), 1995 ONAFRAAT 34

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

McVITTIE DRAIN (RE) Township of East Wawanosh John VanEeden Petersman

McVITTIE DRAIN (RE), 1995 ONAFRAAT 34

STATUTE:

Drainage Act

HEARING:

November 24, 1995

DATE OF DECISION:

December, 6 1995

NEUTRAL CITATION:

1995 ONAFRAAT 34

TOWNSHIP OF EAST WAWANOSH McVITTIE MUNICIPAL DRAIN

IN THE MATTER OF:

THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal under Section 48 of the Drainage Act by Mr. John VanEeden Petersman from the report of the engineer on the McVittie Municipal Drain Improvement dated May 1995, as amended.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Russell Piper, Member.

Appearances:

Mr. John VanEeden Petersman, appellant. Mr. Harry DenHaan, advocate for the appellant. Mr. Andrew McBride, on behalf of the respondent, the Township of East Wawanosh.

DECISION OF THE TRIBUNAL

This appeal was heard in Belgrave, Ontario on November 24, 1995. Mrs. Winona Thompson, Clerk of the Township of East Wawanosh (the Township), acted as Clerk of the Tribunal.

Mr. John VanEeden Petersman appealed to the Ontario Drainage Tribunal under Section 48 of the Drainage Act (the Act) from the report of the engineer on the McVittie Municipal Drain Improvement dated May 1995, as amended.

Section 48 of the Act 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.

Mr. VanEeden Petersman appealed that the allowances provided are inadequate and that the terms of maintenance of the buffer strip, provided in the report, should be modified.

Preliminary Matters

At the outset of the hearing, Mr. Andrew McBride, P. Eng., the engineer appointed by the Township to prepare an engineer's report under the Act on the McVittie Drain, requested that the Tribunal correct three typographical errors in the report dated May 1995.

The first change requested is in Amendment# 3 which makes changes to clause 9.5 of the report. Amendment 3 now reads, in part, " Appendix B - Cost Estimate is also amended by changing the number 3 to the number 2". The error is the word "changed". Mr. McBride requested the word "changing" be substituted for the word "changed".

The second change requested is in Appendix D - Maintenance Assessment Schedule McVittie Municipal Drain on page 19 of the report. In the schedule at Concession 3, W ½ Lot 32, Roll Number 3-09, add the name T. Arenburg beside the name I. Grigg.

The third change requested is on the plan of the drainage works on Lot 31, S. and A. Siertsema, the chainage notation shows l + 910 and should show 1 + 410.

The Tribunal received no objections to the requested corrections and will order these corrections be made by the Clerk of the Township prior to the passing of the by-law.

The Background

The Township of East Wawanosh authorized J. A. McBride, P. Eng., of Maitland Engineering Services Ltd. to prepare a report on the McVittie Drain (the Drain) in December 1993.

The objectives of the project as shown in the report are as follows:

1. To authorize the ditch bottom clean out of certain sections of the Drain;

2. To authorize ditch bank erosion control along certain sections of the Drain;

3. To authorize fisheries habitat improvement work on the downstream 950 metres of the Drain;

4. To create permanent sediment basins in an attempt to reduce future channel sedimentation;

5. To create permanent buffer strips along both sides of the Drain in that section downstream of Concession Road 1-2, East Wawanosh Township; and

6. To prepare a maintenance assessment schedule for future use by both municipalities.

The Tribunal notes that, in addition to these objectives, the work proposed will maintain the existing water quality in the stream to the benefit of both the adjacent landowners and the fish that live in this stream.

Most of the McVittie Municipal Drain and its associated drainage area is situated in the extreme southwest corner of the Township. The drain crosses Huron County Road #25, which is the boundary road between East Wawanosh and Hullett Townships, approximately 6.4 km westerly of the Village of Blyth. From that point, the drain continues downstream for approximately 700 metres joining the Blyth Brook or Creek in the north part of Lot 36, Concession 14, Hullett Township. Five properties are affected in Hullett Township.

The portion of the McVittie Drain downstream of Concession Road 1-2 will have work done on it under this report.

A representative of the Ministry of Natural Resources attended at the on-site meeting and advised that this Municipal Drain is a trout fishery and, as a result, fish habitat reinstatement would have to be incorporated into the project. Arrangements have been made for the Maitland Valley Anglers to undertake improvement works upstream from the outlet to and through Lot 33, Concession 1, East Wawanosh Township. This work will be considered adequate mitigation for the fish habitat damage that may be done by the remaining work, namely the mechanical sediment removal proposed in Lots 31 and 32.

The soils in the watershed are Harriston loam and Harriston silt loam (predominant in the downstream portion), and Donnybrook sandy loam (predominate in the upper portion). The majority of this drainage area is moderately undulating, with slopes ranging from 1% to 2%. The higher slopes are found in the upper part of the watershed in the Donnybrook sandy loam soil areas. All of the cleared land within this drainage area is used for agricultural purposes, namely the production of cash crops such as corn, beans, and hay, as well as some pasture. The balance of the drainage area is in bush.

The portion of the drain surveyed as part of this work extends downstream from Concession Road 1-2 for approximately 2 km. The survey revealed two significant areas of sediment accumulation in Lots 31 and 32. Sediment bars were also noted in Lot 33. The drain was inspected over this length and downstream of the County Road through to the outlet. A number of ditch bank erosion sites, some channel obstructions by debris through the bush sections, and some additional sediment bars where noted. Except where sediment had accumulated, the ditch bottom was fairly firm and gravelly. It appeared that most of this sediment was originating from the Donnybrook sandy loam soil in the upper reaches of the watershed.

The report proposes that vegetative buffer strips, at least 3 metres in width, be established along both sides of this watercourse for the full length downstream of Concession Road 1-2 to control erosion resulting from cultivation too close to the top of the ditch bank. Livestock access to the drain will be prohibited in the future. The accumulated sediment from the bottom of the ditch will be removed by mechanical means. This will include a length of approximately 460 metres in the east half of Lot 31 and approximately 470 metres in Lot 32. This excavated material will be levelled on the land adjacent to the drain, well beyond the three-metre buffer strip. In other areas, obstructions will be removed by hand in order to protect the fish. This hand work will be done by the Maitland Valley Anglers Inc., at no cost to the drainage project, at an estimated savings to the drain of $9,832.00.

At various locations along the length of the drain in Lots 31 and 32, it will be necessary to regrade the existing ditch banks where erosion is occurring. Where considered necessary, these and other areas will be protected with field stone rip rap. The rip rap at the lane crossing in Lot 32 will also be restored. At two locations, sediment basins, each approximately 10 metres in length, will be constructed in the ditch bottom in an effort to reduce the sediment load in this drain.

The Issue

There are two issues before the Tribunal in this appeal:

1. Are the allowances for land used in the establishment of the buffer strip on the land of Mr. VanEeden Petersman appropriate?

2. What is the extent of the obligation to maintain the buffer strip and should this obligation be modified or transferred to the Township?

The Evidence and Findings

Mr. McBride told the Tribunal that he calculated the area used as a buffer strip along the length of the drain using a figure of four meters of width on each side of the drain. Mr. VanEeden Petersman has 1.9 acres or 0.77 hectares within this area [961 meters by 8 meters]. Mr. McBride said that he then looked at a 1978 aerial photo and decided that for the land adjacent to the ditch on the farm of Mr. VanEeden Petersman, 50 % of the length of the drain was crop land and 50% was not cropped. He said there was bushland adjacent to the drain where the land was not cropped.

Mr. McBride said that he based his allowances on a land value of $1,000 per acre. Mr. McBride said that this was a general figure and would be adjusted for less productive bottom land (such as those closer to the drain) and uncultivated land. He said that cultivated land is generally taken at $1,000 per acre and uncultivated land at $700. In this case, the landowners do not lose the entire use of their land. For instance, they can harvest forage crops from the strip, and they can make other use of the strip so long as the vegetative cover is maintained. He said that, because of this, the allowance should be for one-half the value of the land, namely $500 per acre in the case of cultivated land and $350 per acre in the case of uncultivated land. He said that, based on this reasoning, the total allowance under section 29 for land taken was $810. He also said that he calculated an amount of $0.50 per meter to allow for the establishment and maintenance of the buffer strip in a permanent cover crop. This amounts to $1.00 per meter of channel if the buffer is established on both sides of the channel. In the case of Mr. VanEeden Petersman, 240 meters of buffer is needed on both sides of the channel. A buffer already exists on most of the channel on his farm. The $240 allowance for the establishment of the buffer into permanent cover crop and the $810 allowance for land used for the drain totals $1,050 for land allowance to Lot 32 Con. 1. Mr. McBride told the Tribunal that allowances for damage that may be done to the land are also provided as indicated in the report.

Mr. McBride told the Tribunal that his intention with respect to maintenance of the buffer strip was that it has to continue to exist. He said that it became apparent during the discussions that the appellant thought he had to maintain the buffer strip in an intensive manner on a yearly basis. He said that the wording in section 12.3 of the report was changed to clarify that the landowners had to establish and keep a cover crop on the buffer strip. The landowners do not have to mow it, therefore, there is no regular maintenance required other than keeping a cover crop on the buffer strip.

Mr. VanEeden Petersman told the Tribunal that he had several concerns with the report. He said that he has a spot in the creek where he can drive through. He said that Mr. McBride asked if he wanted to keep it, and he said he did, but there is nothing in the report to specify that this drive-through crossing is to remain. He asked: "Do I still have that spot to drive through?" Mr. VanEeden Petersman told the Tribunal that he understood that, according to page 8, section 9.1, trees can be planted on one side of the buffer strip and he objected to that. He said that trees tend to grow and shade crops and the root system affects an area wider than the buffer strip. He said, in his opinion, this amounted to a wider buffer strip than specified in the report. He asked the Tribunal to eliminate trees on the buffer on his property. He said that the amount of allowances provided was less than the land allowances for road widening, etcetera. He said that in his opinion, an allowance of $1,050 did not compare to the compensation provided by gas lines and road authorities. He said both are permanent losses of land, so why not compensate at the same rate for all?

Mr. Harry DenHaan spoke on behalf of Mr. VanEeden Petersman. Mr. DenHaan told the Tribunal that he has been in the real estate business since 1983 and a farm financial advisor since 1978. Mr. DenHaan said that he had not walked the drain on Mr. VanEeden Petersman's property, but he had evidence on the value of land in the area. He said that recent sales indicated that land was selling for about $2,100 per acre and that this is the figure that should be used when calculating the allowances, not $1,000. He said that the land values in Huron County had increased 8% during the past year. Mr. DenHaan argued that the compensation should be based on the full market value of the land used for the drain. He also argued that it was not reasonable to ask Mr. VanEeden Petersman to maintain the buffer strip. He said that since Mr. VanEeden Petersman was not the person who would decide when maintenance was required, he faced an open-ended requirement that could result in future costs that far exceed the compensation provided in the report.

Mrs. Doreen Wilson told the Tribunal that she and her husband owned Lot 30, Con. 3 East Wawanosh. Their property is listed in the assessment schedule under the name C. and D. Wilson. She said they own 200 acres of which 160 are workable. They have a beautiful home, three acres of lawn, and a barn with 500 caged laying hens. The land is rented. They have had the farm listed for sale for $300,000 for the past one and a half years and have had no offers. She told the Tribunal that the sale price of $300,000 was an appraised price by a realtor. She said that, in her opinion, the land must be worth less than the $1,500 per acre valuation since they have been unable to sell their farm.

Mr. Jim Hunter, a ratepayer in the Township who is not assessed for this drain but who owns land adjacent to the highway, testified before the Tribunal. Mr. Hunter said that when the highway was widened in the past five years, a strip of land was taken from the frontage of his farm. He said that the compensation for this land was about $1,000 per acre. He told the Tribunal that this land was the dry, productive land on his farm and not land adjacent to a ditch bank.

In response to questions from the Tribunal, Mr. McBride said that the report provided that the Maitland Valley Anglers Inc. could work in the stream channel and buffer downstream of the property of Mr. VanEeden Petersman. He said that the report allowed for the planting of trees on the buffer strip in the area where the Maitland Valley Anglers Inc. were working. He said that the report provided that Mr. VanEeden Petersman could plant trees if he wished, but the only requirement of the report was that a permanent cover be established on the buffer. The nature of the vegetation in the buffer was at the discretion of Mr. VanEeden Petersman. He could plant permanent grasses, hay, shrubs, trees or any other permanent cover that he wished. Mr. McBride said that the report did not authorize the planting of trees on Mr. VanEeden Petersman's property without the owner's permission. In the opinion of Mr. McBride, once the vegetative buffer is established, there should be virtually no maintenance required as long as the landowner did not destroy the vegetation.

Mr. McBride also told the Tribunal that the report called for a cleaning of obstructions through Mr. VanEeden Petersman' s property. In the opinion of Mr. McBride, since the report does not change the drive-through crossing, Mr. VanEeden Petersman will have the same use of the crossing as he has had in the past.

The Tribunal notes that the question of whether or not there should be a buffer strip along this drain was not raised as an issue in the appeal, and therefore, the Tribunal did not address this question.

In the opinion of the Tribunal, Mr. VanEeden Petersman's concerns about tree planting and the loss of his drive-through crossing arose as a result of misinterpretation of the report. It appears clear to the Tribunal that the report does not provide for planting of trees without the permission of the landowner nor does it require removal of the drive-through crossing.

The Tribunal accepts the argument of Mr. McBride that, once established in a permanent cover, the buffer strip will require little or no maintenance in the future, and therefore it is appropriate, in this case, to require the landowner to keep the buffer strip in permanent cover. The Tribunal also notes that societal values and landowners' values change with experience and the passage of time. If maintenance of the buffer strip does become an issue in the future, the Council of the Township can authorize a report to address the problem.

This leaves the Tribunal with the issue of the amount of the allowance for land used in the buffer strip. The evidence before the Tribunal was inconclusive. Mr. DenHaan testified that local real estate values are in the order of $2,100 when a block of land is sold. Since the house and barn should not be included in establishing a value for her land, Mrs. Wilson's evidence indicated a land value of less than $1,500 per acre is appropriate. Mr. Hunter was paid $1,000 per acre when the highway in front of his property was widened. Mr. McBride used a land value of $1,000 per acre.

The Tribunal also notes that the land used for the buffer strip is not "consumed" by the ditch. It retains a "use value" for the owner if the owner wishes to use it. The evidence given was that land values range between $2,100 and $1,000. The Tribunal notes that Mr. McBride based the allowance on a land value of $1,000 per acre, an area calculated using a four-meter width instead of the three-meter width of the buffer strip and a 50/50 split between cropped and uncropped land on the property of Mr. VanEeden Petersman. In the view of the Tribunal, that was a generous estimate for the workable land. The Tribunal calculated an allowance using $1,500 per acre (Mrs. Wilson's testimony), a three-meter width (the width specified in the report), and a split of 25 % cropped and 75 % uncropped land (the division of land use on Mr. VanEeden Petersman's property in the opinion of the Tribunal) and arrived at an allowance of $813. In the opinion of the Tribunal, the allowance of $810 provided in the report is appropriate.

In the opinion of the Tribunal, the proposed work will help maintain the water quality and enhance the societal value of this stream. The Tribunal was impressed with the cooperative manner in which the Maitland Valley Anglers Inc. worked to improve the drainage of the area while maintaining water quality and improving the wildlife habitat. The Tribunal is also impressed with the manner in which the landowners have cooperated with the Anglers to maintain the environmental quality of this stream. In the opinion of the Tribunal, such cooperative activities should be encouraged so they become the normal mode of problem solving so as wide a sector of society as possible can benefit from these projects.

Decision and Reasons

After carefully considering all of the evidence presented and the submissions made, the Tribunal decided to deny the appeal for the following reason:

The $1,000 per acre land value used by Mr. McBride in calculating the allowance for the buffer strip is in the range of land values presented in evidence. While the value is at the lower end of the scale, the calculation of the area using a four-meter width instead of the three-meter width specified for the buffer strip along with the generous division of use between cropped and uncropped land offset the lower land value.

ORDER OF THE TRIBUNAL

1. It is ordered that:

The appeal of Mr. VanEeden Petersman be dismissed.

2. It is ordered that:

The word "changing" be substituted for the word "changed" in the sixth line of Amendment #3 of the report.

3. It is ordered that:

On page 19 of the report, in the schedule at Concession 3 W½ Lot 32 Roll Number 3-09 the name T. Arenburg be added beside the name I. Grigg.

4. It is ordered that:

On the plan of the drainage works on lot 31 S. and A. Siertsema, the chainage notation be changed from 1 + 910 to 1 + 410.

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 6th day of December 1995.