Laidlaw Drain (Re), 1995 ONAFRAAT 35

Township of Malahide

Hallstead Farms Limited

LAIDLAW DRAIN (RE), 1995 ONAFRAAT 35

Drainage Act

December 6, 1995

DATE OF DECISION:

December 13, 1995

1995 ONAFRAAT 35

An Appeal to the Ontario Drainage Tribunal by Hallstead Farms Limited from the September 22, 1995 decision of the Court of Revision on the Laidlaw Drain, Township of Malahide.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mrs. Betty Lambert, Member.

Appearances:

Mr. Gerald Newell, on behalf of the appellant Hallstead Farms Limited. Mr. John Spriet, on behalf of the respondent the Township of Malahide.

DECISION OF THE TRIBUNAL

This appeal was heard in Aylmer, Ontario on December 6, 1995.

Mr. Randy Millard, Clerk of the Township of Malahide (the Township) acted as Clerk of the Ontario Drainage Tribunal (the Tribunal).

Hallstead Farms Limited (Hallstead) appealed to the Tribunal under Section 54 of the Drainage Act (the Act) from the September 22, 1995 decision of the Court of Revision on the Laidlaw Drain, in the Township.

Section 54 of the Act is as follows:

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.

(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.

The Background

The outlet of the Laidlaw drain is in Lot 15, Con. 9 Malahide and the end point is Lot 8, Con. 9. It is 3,395 meters long. The old drain was built in 1919 and consisted of a 6-inch tile at the upper end and 16-inch tile at the lower end. The outlet for the drain is on the Hallstead property. The current work proposed for the Hallstead property is 117 meters of open ditch cleanout and 286 meters of 24-inch tile to replace the tile installed in 1919. Two new branch tiles are being built at the upper end, and one old 1919 branch is being replaced.

See the attached plan of the Laidlaw drains for additional details of the work.

The Issue

Is the assessment levied against the lands of Hallstead reasonable?

The Evidence and the Findings

Mr. John Spriet, P. Eng. was appointed by the Township to prepare a report under the Act for the Laidlaw drain. He said that, since the existing drain was a tile, there was no discussion about replacing it with an open ditch, which would be a less expensive alternative.

Mr. Spriet told the Tribunal that he used the Todgham method for distributing the cost of the work. He said that he divided the drain into sections, calculated the cost of constructing that section, including a cost for administration, and divided the cost into a portion for benefit and a portion for outlet. The benefit portion he assessed to the lands adjacent to the drain. The outlet he assessed against the upstream lands, including the lands adjacent to the section, based on the acreage.

Mr. Spriet said that for Hallstead, the cost involved in the ditch clean out, outlet protection, tile and catchbasin at the line fence is $18,000. He told the Tribunal that the division between benefit and outlet is a judgment decision based on the experience of the engineer. He said that he has been preparing reports under the Act for 25 years and, based on his experience, he chose to divide the cost of the work on the Hallstead property as 35% benefit and 65% outlet liability. Mr. Spriet said that he used this division of the cost for all of the properties where the 24-inch tile was located. He said that he used a higher ratio for benefit in the upstream portion of the drain where the tile size was smaller.

Mr. Newell spoke on behalf of the appellant, Hallstead. Mr. Newell told the Tribunal that he felt that the assessment for drains should be made on the basis of the area that could be drained to the outlet drain. He said, in this case, he has 2.6% of the acreage, but he is paying 4.1% of the cost. He said that, in his opinion, he would not receive any increase in the sale price of his property because he has a 24-inch tile on it rather than the existing 16-inch tile. Mr. Newell compared the assessment of the current proposal to the assessments that were made when the original tile was constructed in 1919. He noted that his property was assessed a higher portion of the work in 1995 than it was in 1919. He said that this increase in assessment is unjustified, and his share of the proposed work should be reduced. He told the Tribunal that he has two 12-inch tiles parallel to the Laidlaw drain that he uses for an outlet for his farm tile system. Because of these tiles, he does not use the Laidlaw drain, and it is of no benefit to him.

Mr. Spriet told the Tribunal that it was not appropriate to compare the ratios from the 1919 report to the 1995 report because:

The assessment schedule in 1919 did not differentiate between the assessment for the main drain and the branch drain; therefore, the assessment on the upstream owners included the cost of the branch drain, and it is inappropriate to compare that to the 1995 assessment for the main drain only.
In the 1995 work, there is a special benefit assessment against the highway. He said that the highway had widened the roadway, improved the ditching and increased the run-off from the property. He calculated that an eight-inch tile would be required from the highway to the outlet to carry this increased flow. Since the slope of the watershed is relatively uniform, no change in tile size is required. The cost of this eight-inch tile he estimated at $33,000, and he assessed this as a special benefit to the highway. He then reduced the cost of construction of the proposed drain from the highway to the outlet by a uniform amount per meter ($15.00/meter) when he was calculating his assessments. Since $15.00 per meter represents a higher portion of the cost of constructing an 18-inch tile than it does for a 24-inch tile, those properties closer to the highway appear to be assessed less. Mr. Spriet told the Tribunal that this factor also makes a comparison to the 1919 assessment schedule inappropriate.

Mr. Spriet also told the Tribunal that even though Mr. Newell does not use the Laidlaw drain as a main to connect his tile drain to, he does receive a benefit in that the water from the upper watershed passes across his property underground except during periods of high flow.

Mr. Newell acknowledged that it was necessary to work on the drain at this time, and he did not raise any concerns about the design of the project.

The Tribunal accepts the argument of the engineer that there is a benefit to the appellant from the construction of the Laidlaw drain. In the opinion of the Tribunal, the 1995 work will continue the benefit that accrued to the property when the Laidlaw drain was first constructed in 1919.

The Tribunal notes that the engineer was consistent in his calculations and division of the cost of the 24-inch tile between benefit and outlet assessments. The Tribunal also notes that, in arriving at the benefit assessment, the engineer used the same per meter costs for the work for all of the properties that had a 24-inch tile; therefore, in the opinion of the Tribunal, there is no bias in the assessment of Mr. Newell in comparison to the assessment of his neighbours who also have the 24-inch tile on their property.

Decision and Reasons

After careful consideration of the evidence presented and submissions made, the Tribunal decided to deny the appeal for the following reasons:

In the opinion of the Tribunal, there was no error in the methodology the engineer used in calculating the assessments.
In the opinion of the Tribunal, when reviewing the assessments for this project, the assessment against Mr. Newell appears to be reasonable.

ORDER OF THE TRIBUNAL

It is ordered that:

The appeal of Hallstead Farms Limited be denied.

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.

Vernon I.D. Spencer, Chair

Dated at Guelph, Ontario, this 13th day of December 1995.