Jarvis Drain Bridge Repair (Re), 1995 ONAFRAAT 36

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

JARVIS DRAIN BRIDGE REPAIR (RE) Township of Moore Gary Robbins Gerald Fournie, David O'Neill, Russell Eyre, Don Gray and Gerald Little

JARVIS DRAIN BRIDGE REPAIR (RE), 1995 ONAFRAAT 36

STATUTE:

Drainage Act

HEARING:

December 18, 1995

DATE OF DECISION:

December 22, 1995

NEUTRAL CITATION:

1995 ONAFRAAT 36

TOWNSHIP OF MOORE JARVIS DRAIN BRIDGE REPAIR

IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal under Section 48 (b) of the Drainage Act by Mr. Gary Robbins requesting that the engineer's report dated June 28, 1995 for the Jarvis Drain Bridge Repair, Moore Township, should be modified.

Before:

Mr. Vernon Spencer Chair; Mr. Andrew Osyany, Vice Chair; Mr. Herbert Todgham, Vice Chair.

Appearances:

Mr. Gary Robbins, appellant. Mr. Ron Kerr, on behalf of the respondent, the Township of Moore. Mr. Gerald Fournie, Mr. David O'Neill, Mr. Russell Eyre, Mr. Don Gray and Mr. Gerald Little.

DECISION OF THE TRIBUNAL

This appeal was heard in Mooretown, Ontario on December 18, 1995. Mr. R.H. Whitman, Clerk of the Township of Moore (the Township), was the Clerk of the Tribunal.

Mr. Gary Robbins appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) requesting that the engineer's report dated June 28, 1995 for the Jarvis Drain Bridge Repair, Moore Township, should be modified.

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.

Preliminary Matters

At the outset of the hearing, several assessed ratepayers requested party status at the hearing. The Tribunal considered their requests and granted party status to: Mr. Gerald Fournie, Mr. David O'Neill, Mr. Russell Eyre, Mr. Don Gray and Mr. Gerald Little.

The Background

The Jarvis drain is a large open drain that outlets into Sombra township and extends almost the full length of Moore Township. The watershed is long and narrow. The drain was cleaned out under a 1968 report prepared by Mr. Brisco. Seven bridges were constructed in 1970 under a report prepared by Mr. Brisco. The bridges are constructed with "I" beams sitting on a concrete footing with an oak plank deck. Four of the bridges have been replaced since 1970, and the three remaining bridges are the subject of the report under appeal. These three bridges (bridge #1, bridge #2 and bridge #3) have a span of 45 to 50 feet and are the largest bridges on the Jarvis drain and are located at the deepest and widest portion of the drain.

In November of 1993, Council of the Township received a request from Mr. Gerald Little indicating his bridge had collapsed. A second ratepayer contacted Council concerned about the safety of his bridge. Substantial repairs are required to provide safe access across the bridge. The major work necessary is to reinforce the pier in mid-span, replace any damaged beams, and replace the decking. The existing structural beams need to be cross-braced using diaphragms on either side of the pier.

The engineer, Mr. Kerr, held a site meeting in September 1994. After reviewing the files, the watershed, and the existing structures, Mr. Kerr proposed:

1. Rehabilitating two of the bridges (bridge #1, Mr. Fournie, and bridge #2, Mr. Little) to a minimum of a 20-ton load.

2. Bridge #3 (Mr. Robbins) be removed, and the salvaged materials used to rehabilitate bridges #1 and #2.

3. An allowance for loss of access for Mr. Robbins since his bridge is being removed.

4. The Schedule of assessment charges about 30% of the actual rehabilitation costs of the bridges to the abutting owners, with the remainder, together with the allowances and overhead, assessed upstream as an outlet assessment.

The bridges have two 18-inch "I" beams on each side and a 12-inch "I" beam in the middle, for a total of five beams, with an oak plank deck. The rehabilitated bridges will have five 18-inch "I" beams with a deck of pressure-treated laminated 2" x 6" spruce, on edge, with a new headwall on the ends to provide lateral support and keep earth from falling between the beams.

The Issue

There are two issues before the Tribunal:

1. Should bridge #3 (Mr. Robbins) be removed from the drain and an allowance for loss of access be made to compensate the owner for the loss of this bridge as proposed by the engineer?

2. Should the design of the rehabilitation of bridges #1 and #2 be modified to provide for a 20-foot top width or replacement with concrete structures?

The Evidence and the Findings

Mr. Gary Robbins addressed the Tribunal. He said that he has owned the property where bridge #3 is located since the mid-1970s. His parents-in-law lived on the farm until they retired to town about 1990. At that time, he removed the buildings. Up to the time the buildings were removed, bridge #3 was the access to the farmstead. The house was on one side of the lane, the barn on the other. He now has the use of this bridge for his tractor and empty wagons, truck, etc.; any vehicle with a light load. He said he put a culvert in the road ditch at the concession road and takes heavy loads on and off the farm by crossing this road ditch and gaining access from the road. He has five concerns with the report. These concerns are:

1. Why has it taken from November of 1993 until December of 1995 to have the report prepared and appeals to the Tribunal heard?

2. At the site meeting, he told the engineer he needed his bridge. Why does the report now recommend removal of his bridge?

3. Why was the option of concrete bridges not recommended?

4. Oak is a "tried and true" decking material; why is the engineer recommending pressure-treated, laminated spruce - an unknown?

5. The Storey bridge (located between bridge #1 and bridge #2) across the Jarvis Drain is undersized. Why is it not being replaced as well?

Mr. Robbins told the Tribunal that, in his opinion, a sixteen-foot top width on these bridges was no longer adequate for today's farm equipment. He said that while the current owners may be satisfied, a new owner may wish to have a more serviceable bridge with a 20-foot top so that large farm equipment can cross safely. He said that his combine is 14 feet to the outside of the tires, and the vision point is ten feet off the ground. He said he does not want to cross a 16-foot deck with this combine, especially at night in wet conditions. He said that he does not consider a 16-foot-wide bridge to be safe.

Mr. Robbins urged the Tribunal to remove the existing Storey and Little bridge (#2) and replace them with an adequately sized box concrete culvert located on the property boundary between Mr. Little and Mr. Storey. He asked that his bridge (#3) and the Fournie bridge (# 1) be repaired with an oak deck.

Mr. Kerr, Commissioner of Public Works and Township Engineer, was appointed by the Council of the Township to prepare the report on the Jarvis Drain bridges. He told the Tribunal that four alternative solutions were considered at the on-site meeting.

The first option was to remove the existing bridges and use alternate access on roads and easements. He said that Mr. Robbins has an alternate access already; Mr. Storey could provide access for the back part of the Fournie farm by easement and the Little farm by easement. This option is the least costly; however, it was not acceptable to the owners because Mr. Fournie and Mr. Little will lose direct access to their farms.

The second alternative discussed was replacement of the existing bridges with steel or concrete culverts. That is what had happened when the other four bridges were replaced. This option would cost $30,000 to $50,000 per bridge, depending on the location of the bridge and whether the bridge was steel or concrete construction. The total cost of this proposal would be in excess of $100,000. This option was rejected based on the cost.

The third alternative was to rehabilitate the current bridges at the current locations. He said that the Township retained MIG Engineering to evaluate the structures. This was the least expensive alternative as it made use of the existing foundations and materials.

The fourth alternative was to combine the Robbins and Little bridges at the Robbins-Little property line. The cost of this option was somewhat more expensive than rehabilitating one bridge, because new foundations would be required, but is slightly less expensive than rehabilitating two bridges. This option was rejected because Mr. Little opposed moving his access from the centre of the farm to the farm boundary.

Mr. Kerr said that he based his recommendation to remove the Robbins bridge and utilize the materials to rebuild the Fournie and Little bridge on the following factors:

1. Mr. Robbins has an alternate access and is using it.

2. The existing materials are there and could be reused.

3. Removing a redundant bridge now will reduce future drain maintenance costs.

4. This is the least cost option that retains flexibility for future abandonments of bridges that become redundant.

Mr. Kerr stated that his concerns about leaving the Robbins bridge (#3) in place related to safety. The bridge connects the travelled portion of the road to the Robbins property. If it is left without rehabilitating and strengthening the deck, it can be a safety hazard for the public. If Mr. Robbins places a barricade on the bridge, it would have to be on the road allowance to be effective, and this could cause problems for the road department. Mr. Kerr was also concerned about the cost of rehabilitating this bridge, as well as future maintenance costs of the bridge. Mr. Kerr urged the Tribunal to accept the report as prepared.

Mr. Gerald Little, owner of the property that is serviced by bridge #2 spoke to the Tribunal. He said that this farm has been in the family since the Crown issued the deed. He said he was raised on the farm. He told the Tribunal that in October of 1993, the tenant came onto the bridge with a tractor and equipment and went through the bridge. Arrangements were made for access through the farm of Mr. Storey, provided repairs could be completed on the bridge by the fall of 1994. It was not until September 20, 1994 that the site review with the ratepayers took place. He said he was promised a report by November 1994 and he received the report in June of 1995. In the meantime, he has had reasonable access across the north 2/3 of the bridge. He said that he has now lost the remaining deck on the bridge because the Township decided to take off the deck without telling him. He said that he has a contractor who wants to log the bush this winter, and he must have access in order to do this work. Mr. Little told the Tribunal that, if the bridge had been completely destroyed, he would consider asking for a wider bridge, but he was concerned about the cost and the trend toward building wider and wider bridges. He said he felt that farmers would soon be restricted from travelling the roads with over-width equipment, and therefore, he would accept a 16-foot-wide bridge built on the existing piers using the existing beams if possible.

Mr. Gerald Fournie told the Tribunal that he was the landowner at the location of bridge #1. He said that he was concerned about the cost of the project. He said he would accept a 16-foot-wide bridge at the present location. He also offered a suggestion that two new "I" beams be placed under the wheel tracks on the bridge, and a lighter deck be put on if that would save some cost.

The Tribunal examined the evidence and decided that the first decision that was required was whether or not Mr. Robbins was entitled to a bridge over the drain. In making its decision, the Tribunal noted:

1. The property has had a bridge over the drain, and this was the principal access to the farm buildings for many years.

2. Mr. Robbins makes use of the existing bridge on a regular basis for his farming operation.

3. The existence of an alternate access does not preclude the necessity of a bridge over the drain.

4. It is possible that a new farmstead could be constructed at the location of the bridge.

5. The normal allowance for the loss of access to a property is the lesser of the value of a crossing or the value of the land severed. If the allowance provided in this report reflected the value of the loss of access, repairing the bridge would be the logical alternative to select.

The Tribunal concludes, therefore, that at this time, Mr. Robbins is entitled to continued access across the Jarvis Drain. In coming to this conclusion, the Tribunal wishes to note that it agrees with the philosophy of Mr. Kerr that bridges that are no longer required should be abandoned. In this case, Mr. Robbins has demonstrated to the satisfaction of the Tribunal that his bridge is being used and is required. The Tribunal will order an amendment to the report requiring the rehabilitation of bridge #3 - the Robbins bridge - to the same standard as bridge #1 and bridge #2.

On the issue of the width of the top of the bridge and the construction materials to be used, the Tribunal noted that the owners of the property that abuts bridges #1 and #2 expressed acceptance of the proposed 16-foot width and the proposed construction materials. The Tribunal noted the concern of the upstream landowners that the bridges be made of concrete and be made wider at this time, so they are not required to contribute money in the near future to improve these crossings. The Tribunal also noted that concrete construction would be significantly higher in cost. The Tribunal considered Mr. Kerr's concern that these bridges were replaced in 1970 because of foundation problems arising after a clean out of the channel, and this could happen again. The location of the access bridges appeared to be of such importance to the owners that it did not appear to the Tribunal to be reasonable to combine the access points at this time. Such combinations would certainly be required to justify the expense of concrete structures. The Tribunal was not convinced by the arguments that it is in the best interests of the ratepayers to require these bridges be replaced with concrete structures with wider top widths, at this time.

All of the ratepayers who addressed the Tribunal expressed a preference for an oak plank deck on the bridges. Mr. Kerr told the Tribunal that the design for the rehabilitation of the bridges was done by MIG Engineering. He said a laminated, pressure-treated deck design is part of the design standards issued by the Ministry of Transportation. This design relies on the nailing of the laminated spruce for its strength. He also said that the bracing on the bottom of the deck parallel to the "I" beams is required to provide stability to the beams. Because of the interconnection of the decking design and the "I" beam design, changing from the proposed deck to an oak plank would require re-engineering of the bridges. Opinion evidence from the ratepayers was not sufficient reason for the Tribunal to order a redesign of the bridges. Mr. Robbins argued for cleats to be installed along the edge of the bridges for safety. Mr. Kerr indicated that cleats could be added at the time of construction for a minimal cost. The Tribunal will order the installation of cleats on the crossing at the option of the landowner, with the cost to be assessed 100% to the landowner.

In the opinion of the Tribunal, there was conflicting evidence on the suitability of the Storey Bridge. While some of the ratepayers felt the bridge was undersized, none had seen water overflowing the bridge or the drain banks. When asked if the water backed up the tributaries and flooded the farmland, the answer was that it was difficult to determine if the flooding was a result of water not getting into the drain or water getting out of the drain. The Tribunal notes that this bridge is not part of the project before it in this report. The Tribunal also notes that the adjacent property owner was not at the hearing requesting a change in the bridge. The Tribunal concluded that if an assessed owner is concerned about this bridge, that owner should bring the concern to the Council of the Township for a decision on what action the Council feels is required. In the opinion of the Tribunal, it is inappropriate for it to order a report on a bridge before Council has had the opportunity to consider the problem and make a decision.

The Tribunal is concerned about the amount of time that has passed since the failure of the Little bridge (#2). Mr. Kerr said that the time from November 1993 until September 1994 was used in reviewing the files and getting an evaluation of the bridges from MIG Engineering. There was no explanation of why it took from September 1994 until June 1995 to complete the report. The Township knew there was urgency to get this report and work done. Council had negotiated arrangements with Mr. Storey for temporary access to the Little property while the report was being prepared. In the opinion of the Tribunal, the Council was not diligent in directing their employee, Mr. Kerr, to complete the work and file the report in a timely manner. Therefore, in the opinion of the Tribunal, the Council must carry some of the responsibility for the time lapse in this project.

The engineer has been the Township Works Superintendent and engineer for eleven years. The duties of the Drainage Engineer are set out in several sections of the Act, principally in section 11. An established line of decisions from the Drainage Referee and this Tribunal has held that the Drainage Engineer performs a quasi-judicial function, and that the Drainage Engineer must act with the utmost independence. The same cases have said, in the plainest terms, that the Drainage Engineer doing the report should not be the Township Engineer, nor be a regular employee of the Township. The issues are the factual and perceived independence of the Drainage Engineer.

In this instance, the Tribunal is not imposing a separate penalty beyond what can be inferred from the disposition of the appeal. However, it may in the future.

Decision and Reasons

After careful consideration of the submissions made and evidence presented, the Tribunal decided to grant the appeal of Mr. Robbins and order changes to the report of the engineer for the following reason:

In the opinion of the Tribunal, considering all of the circumstances presented at the hearing, Mr. Robbins is entitled to continued access to his property or an appropriate allowance. In the opinion of the Tribunal, maintenance of the bridge is more economical than the allowance for loss of access.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The Council of the Township of Moore refer the report on the Jarvis Drain bridges dated June 28, 1995 back to the engineer with instructions to prepare a revised report that provides for the repair of the bridge at

E. pt. E. ½ Lot 18, Concession 1, Mr. G. Fournie (bridge# 1),

S½ Lot 18, Concession 2, T. & K. Little Estate (bridge #2), and

pt. N½ Lot 18, Concession 2, G. & B. Robbins (bridge #3)

to the same design standard as is proposed in the report dated June 28, 1995.

2. Since there were no appeals on the assessment schedule in the report dated June 28, 1995, it appears that the owners were satisfied. Therefore, the costs of the additional work ordered shall be assessed to the lands and roads liable for assessment on the Jarvis Drain on the same basis as the report dated June 28, 1995.

3. The Township of Moore is directed to proceed forthwith to repair the Little bridge (#2) to the specifications in the engineer's report dated June 28, 1995. The materials to be purchased by the municipality and installed per the specifications. The cost of this work is to be borne by the General Funds of the municipality until such time as the amendments to the report ordered by the Tribunal are done and the construction on all three of the bridges is completed. At that time only the cost of the materials, installation and supervision shall be added to the cost of the project and assessed in accordance with the by-law.

4. The Township of Moore is directed to pay forthwith the allowance to Mr. Storey for the access already provided to the Little and Fournier properties. This payment is to come from the General Funds of the municipality and charged to the drain only when the amendments to the report ordered by the Tribunal are done and the construction on all three of the bridges is completed.

5. The engineer is directed to provide for the installation of cleats on the bridges, at the option of the landowner, with the cost to be assessed 100% to the landowner.

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 Chatsworth, Ontario, this 22nd day of December, 1995.