Ford Outlet Drain (Re), 1995 ONAFRAAT 7

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

FORD OUTLET DRAIN (RE) Township of Collingwood Craigleith Ski Club Ltd.

FORD OUTLET DRAIN (RE) 1995 ONAFRAAT 07

STATUTE:

Drainage Act

HEARING:

September 30, 1994

DATE OF DECISION:

May 4, 1995

NEUTRAL CITATION:

1995 ONAFRAAT 07

TOWNSHIP OF COLLINGWOOD

FORD OUTLET DRAIN

IN THE MATTER OF:

An Appeal of Craigleith Ski Club Ltd. from the Report of E.P. Dries, P. Eng., dated February 15, 1994, on the Ford Outlet Drain, in the Township of Collingwood in the County of Grey.

DECISION

This Appeal came before the Ontario Drainage Tribunal on September 30, 1994 at the Township of Collingwood Council Chambers, Hillcrest Drive, Clarksburg, 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 E.P. Dries, P. Eng., who prepared and presented the Report dated February 15, 1994; R.W. Comish, Barrister and Solicitor, as Counsel for the Appellant, Craigleith Ski Club Ltd. and other assessed owners.

The Deputy-Clerk of the Township of Collingwood, Stephen Keast, acted as Clerk of the Tribunal.

On hearing the evidence, the submissions and reading the materials filed.

1. IT IS ORDERED THAT:

The Outlet Assessment levied against the lands of the Appellant Craigleith Ski Club Ltd. comprising Pt Lot 20 and 21, Con. 3 and Pt Lot 20 and 21, Con. 4 and Block B R.P. 634, Lots 54 to 57, Roll #6-083, in the Township of Collingwood be reduced to zero.

2. IT IS ORDERED THAT:

The Benefit Assessment levied against the lands of Harold Alexander, Lot 20, R.P. 529, Roll #3-390, be increased by the sum of $2,000.00.

3. IT IS ORDERED THAT:

The Benefit Assessment levied against the lands of Bruce and Elisabeth Ford, Lot 21, R.P. 529, Roll #3-391, be increased by the sum of $3,000.00.

4. IT IS ORDERED THAT:

The Benefit Assessment levied against the Township of Collingwood for Lakeshore Road be increased by the sum of $5,000.00.

5. IT IS ORDERED THAT:

The Special Benefit Assessment levied against King's Highway No. 26 be increased by $7,800.00 and that the Benefit Assessment be increased by the sum of $2,578.00.

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 s. 73 of the Drainage Act R.S.O. 1990, c. D.17.

Dated: May 4, 1995

Bernard J. Goodal, Chairperson

REASONS FOR DECISION

This Appeal, launched by the Appellant, Craigleith Ski Club Ltd., pursuant to s. 48 (l)(a)(b)(c) and s. 54 (1) of the Drainage Act, R.S.O. 1990, c. D.17 (the Act) was heard on September 30, 1994.

The proceeding was initiated by the Council of the Township of Collingwood in response to a Petition (one of four) of an Engineer of the Ministry of Transportation of Ontario (MTO), pursuant to s. 4 (l)(c) of the Act. The area requiring drainage is a stretch of Highway No. 26 in Lot 21, Con. 2, in the Township of Collingwood.

The watershed is contiguous with and to the west of the Blue Mountain and Diversion Drain watershed. It is characteristic of the topography. It is narrow. Its outer reaches are perched on the table lands of the Niagara Escarpment 300 m above Georgian Bay. It descends down the face of the Escarpment to the upper terrace, along the upper terrace to the lower terrace to Georgian Bay. Most of the watershed is on the face of the Escarpment.

Generally, the drainage patterns in the area are in the northeasterly direction towards Nottawasaga Bay. Drainage for the watershed is by way of a natural watercourse which originates on the table lands and courses over the face of the Escarpment. When the waters reach the upper terrace, they flow in a well-defined natural watercourse in a northeasterly direction to outlet into Nottawasaga Bay.

The natural watercourse crosses Lakeshore Road through a 1.5 m x 0.9 m concrete culvert. A short distance north of Lakeshore Road, the watercourse crosses the old C & 0 Railway embankment (Georgian Trail) through a 1.5 m diameter corrugated steel pipe. Immediately north of the north end of this culvert, the waters are carried under the travelled portion of Highway No. 26 through a 1.8 m x 1.1 m corrugated steel pipe arch.

From the north end of the culvert under Highway No. 26 to Nottawasaga Bay, erosion protection works (gabion baskets) have been installed by the owner along the east bank of the channel to stabilize the channel banks and protect the adjacent structures.

The area is not presently served by any Municipal drainage system constructed under the Act.

The entire area within this watershed was originally bush or open scrub land. Some of the lands in the upper and lower terrace zones were cleared for pasture, cash crops and orchards.

The lands on the face of the Escarpment remained in bush until recently when recreational demands resulted in some areas being cleared. The cleared areas have been developed for skiing.

Some limited residential development has more recently occurred within the watershed. The lower terrace zone between Highway No. 26 and Nottawasaga Bay is almost fully developed. There is some residential development in the upper terrace zone.

The drainage for the developed areas is through private and roadside drainage ditches, outletting into the natural watercourse.

In the opinion of the Engineer, the early development for agricultural use nor the recent limited residential development has significantly altered the hydrologic conditions within the watershed. In his view, the modifications of the channel north of Highway No. 26 has altered the physical state of the natural watercourse; however, it does not appear that these works have significantly altered the hydraulic characteristics of the channel. His hydraulic analysis confirms that under clear flow conditions (not obstructed by ice or snow) the channel should contain the runoff events from the watershed. However, it is also clear these runoff events will cause erosion of the channel banks due to the consistency of the native soils.

The owners of the lots abutting the channel downstream of Highway No. 26 have expressed concerns regarding the capability of the channel to effectively convey the peak flows in the channel. They have also expressed concerns regarding the stability of the slopes of the channel.

Based on a survey of the existing field conditions and a subsequent hydraulic analysis of the channel and the structures within the area requiring drainage, the Engineer has identified the problems as follows:

1. The existing 1800 mm x 1100 mm corrugated steel pipe arch culvert, which crosses Highway No. 26 in Lot 21, Con. 2, is structurally deficient and does not have sufficient capacity to effectively convey the runoff across Highway No. 26.

2. The channel in Lot 21, Registered Plan 529, requires some improvement by means of widening and removal of sediments from the channel bottom.

3. Both banks of the channel from Highway No. 26 to Nottawasaga Bay require positive erosion protection materials in order to reduce the impacts of erosion caused by flows in the channel.

To provide an adequate outlet for the existing natural watercourse across Highway No. 26 and Lot 21, Registered Plan 529, to Nottawasaga Bay, the Report recommends the following:

1. Remove the existing 1800 mm x 1100 mm corrugated steel pipe arch culvert under Highway No. 26 and replace it with a 19.51 m length of 2440 mm x 915 mm precast concrete box culvert.

2. Improve the existing open channel from the north end of the new box culvert under Highway No. 26 to Nottawasaga Bay by means of widening and removing the sediment material from the channel bottom.

3. Incorporate the existing erosion protection works on the east hank of the channel as part of the drainage works.

4. Install positive erosion protection materials on the westerly bank of the channel from Highway No. 26 to Nottawasaga Bay.

5. The work shall he done in accordance with the provisions of the Act and the drainage works are to be known as the "Ford Drain Outlet".

The estimated cost of the work is $123,300.00.

The Engineer did not have access to, nor did he actively seek, nor did the Appellant proffer particulars of the Appellant's snow-making process. The only information that the Engineer had was a study carried out by Gore and Storrie completed for the Grey-Sauble Conservation Authority. The Engineer saw the storm water management pond (snow-making pond) was aware that the Appellant was making snow to augment the natural snow on the ski trails. On the basis of this information, he concluded that the Appellant was making snow in the watershed using the water from the snow-making pond. From the Gore and Storrie study, he extracted the conclusion, that the snow-making operations on the ski area within the watershed have an impact on the peak flows. He does not say whether the impact is beneficial or detrimental.

There are no Municipal Drains in the watershed constructed under the Act or a predecessor of the Act. The watershed is drained by surface water runs, roadside drainage ditches and storm sewers outletting into the natural watercourse. Before levying assessments against the individual lands, the Engineer turned his attention to the principles of riparian ownership and rights of the riparian owners. He placed each of the properties in the watershed into one of four categories. Into the first category he placed all of the properties that do not have riparian rights and from which water is artificially caused to flow; these he assessed in the normal manner. Into the second category he placed all of the properties that do not have riparian rights and from which no water is artificially caused to flow. These he did not assess. In the third category, he placed all of the properties that do have riparian rights; these he exempted from outlet liability assessment. Into the fourth category, he placed all of the properties which do have riparian rights; but, which according to him are not exempt from outlet liability assessment. Lands of the Appellant he placed in the fourth category.

Unfortunately, nowhere in the Report does the Engineer set out the reasons why he levied outlet liability assessment against the properties with riparian rights. In this respect he did not comply with the directions of the Referee in the case of E. Belzner et. al. (Appellants) and the Corporation of the Township of Dunnville (Respondent), where the Referee directed that, if an Engineer assesses lands with riparian rights for outlet liability, he should give the reason why the lands are being assessed.

The Engineer's evidence at the hearing, as to the reason why he levied outlet liability assessment against the Appellant's lands, even though they are riparian, is somewhat obscure. We have reviewed the evidence very carefully, and from it we discern that the Engineer assessed the lands of the Appellant, even though they are riparian, because the Appellant is making an unreasonable use of the natural watercourse by discharging the snow-melt waters from the artificially made snow into the natural watercourse.

The Appellant, Craigleith Ski Club Ltd., is the owner of a large tract of land, in excess of 470 ac. comprising Pt. Lots 20 and 21, Con. 3 and Pt. Lot 20 and 21, Con. 4 and lands in R.P. 634, Roll #6-083. It operates a ski resort business. Most of the Appellant's holdings are on the face of the Escarpment and at the toe of the Escarpment fronting on Grey County Road No. 19.

In the Georgian Bay area of Southern Ontario, natural snow is a very uncertain element influenced by all of the vagaries and whims of nature. The climate in the area is such that the certainty of cold temperatures is much higher than the probability of natural snowfall. Therefore, to augment the natural snowfall, reducing the resort’s dependence on uncertain natural conditions, it is necessary to make snow. The resort must meet the demands of the guests and must be open for business before Christmas holidays; therefore, snowmaking is an indispensable manufacturing process for the success of the resort.

The Appellant has been assessed the sum of $20,378.00 for an affected area of 68. 39 ha (169 ac.).

The Appellant had appealed to the Court of Revision. The Court of Revision increased the Appellant's assessment because certain lands which the Engineer had shown as belonging to Blue Mountain Ski Club Inc. should have been assessed as belonging to the Appellant. The Appellant now appeals to the Tribunal.

The evidence at the hearing, on behalf of the Appellant, was tendered by Robert Edey, General Manager of the Appellant and Malcolm Dickson, P. Eng. who was called as an expert witness.

The evidence of Mr. Edey is, that the watershed has not changed much between 1961 and 1991. As a demonstration of this submission, he tendered in evidence two aerial photographs, one taken in 1961 and the other in 1991 and filed as Exhibits #8 and #9, respectively. He described the snow-making process. A large pond has been dug at the toe of the escarpment. Waters are diverted from the natural watercourse, under a licence from the Provincial Government, into the water management pond. The watercourse is the only source of water for the snow-making pond. The pond is generally filled by May. The snow-making process takes place between mid-December and mid-February of each year on an intermittent basis whenever the temperature gets below -3°C. With their present equipment, they can only cover the downstream end of the trails. They do not make snow in this watershed. The snow melt from the snow made in the snow-making process does not melt back into the watershed. They intend to make snow for other and future runs from the pond. The pond is a part of a water management system. It holds back water in the Spring. In the Summer, some of the water is used to sprinkle the tennis courts from time to time.

Mr. Malcolm Dickson, P. Eng., gave expert evidence on behalf of the Appellant. He is a consultant in water management and other related areas. He designed the water storage pond for the snow-making process for the Appellant. In addition to his oral evidence, he has prepared a Report filed as Exhibit #10.

Mr. Dickson questions the need for the proposed drainage works. First, he does not feel that the Highway No. 26 culvert needs to be replaced. He has examined the road surface; there are no signs of stress to indicate that the cover over the culvert is inadequate. He has inspected the culvert. It exhibits no structural deficiencies. It is in good condition. The culvert is blocked with stone, cobble and debris, so that its cross-section has been reduced to 23%. He has consulted with a local contractor who quoted a price of $3,000.00 to clean the culvert. He has made extensive calculations of the hydrologic capacity of the culvert based on the study prepared by Gore and Storrie. Although the Gore and Storrie Report did not include the watershed in question; however, by utilizing the same parameters and their graphs, the results indicate that the existing culvert is adequate to carry a 1 in 100-year storm. This is without taking into consideration the benefits of the attenuating capabilities of the snow water management pond. As a matter of fact, the 1 in 100-year storm would occupy only 66.7% of the culvert’s capacity without undue difficulty, and there would be spare capacity of 33.3 % .

Since Mr. Dickson had made his Report, Gore and Storrie have carried out a supplementary analysis of this watershed and have reviewed the conclusions he has drawn. They agree with his conclusion. They have concluded that the capacity of the "existing culvert", if cleaned, is adequate for the expected flows of the watershed. They further support Mr. Dickson' s conclusion, that the peak flows have not changed significantly from pre-development conditions, consequently, recent downstream erosion and flooding problems are probability a result of channel modifications. Nor does Mr. Dickson feel that the proposed work on the natural watercourse downstream of the Highway No. 26 culvert is required. If, in fact, it is to be done, it should be done at the expense of the owners who have modified the natural watercourse. He points out that the costs of the gabions are the major costs of the total drainage system, excluding the Highway culvert. He continues that it is clear from an inspection of the channel and the area through which it flows that the buildings and landscaping of Lot 21 impact on the natural drainage channel. He continues, it is also clear that the level of the water in the drain is directly governed by the level of the lake. This would have been particularly evident during the historically high lake water levels in 1986. The owner installed the gabions along the front of his property on Lot 21 following the high-water levels in 1986 to protect the lands from erosion by the Lake and on the east bank of the drain to protect the lands from erosion by the high waters. The gabions along the drain have a vertical face, and the land behind the gabions is backfilled to bring it to the level of the lawn. This had the effect of reducing the normal cross-sectional area of the channel, which would raise the normal water level some degree, creating more erosion on the west bank; i.e. the gabions have pushed the drain to the west.

The Engineer has proposed widening the channel and installing gabions on the west side of the drain to prevent this erosion. Mr. Dickson notes that the Engineer states that the development along this part of the channel has altered the physical state of the natural watercourse, but it does not appear to have significantly altered the hydraulic characteristics and "the channel (the existing) should contain the runoff events from the watershed". Obviously, some widening would be required, as vertical gabion walls reduce the cross-sectional area of the natural channel, which would normally have sloping sides. It may be appropriate to do this, but it is for the purpose of restricting the space that the drain would naturally occupy and to maximize land use. These measures are not required because of changing upstream flows. It would therefore appear that any such action would be a private matter for the lot owner if constructed under the Act, it would be a special benefit assessed against the owner.

He therefore concluded that since there is no need to replace the Highway No. 26 culvert and the channel downstream of the culvert is a private matter to be dealt with by the landowner. The drainage works as proposed are not required.

He then elaborated on the snow-making process. At the present time, water for snowmaking is stored on site in a storm water management pond (snow-making pond) with a capacity of 57.2 ac. ft. To produce the artificial snow, including all potential future requirements, requires a volume of 28.6 ac. ft. of water. Therefore, the snow melt from all the artificially made snow can be captured and stored by utilizing 50.05% of the available capacity of the pond. The remaining capacity attenuates the peak of the natural flows. The snow-making pond is operated in a manner that accepts flows until the month of May, and as such, it is presently intercepting and storing all of the artificial snow melt as well as reducing the peak of the normal Springtime floods.

To augment the water in the storage pond, the Appellant has considered a supply from Georgian Bay. However, at the present time there are no plans to do that, since the capacity of the present storage facilities are sufficient to supply all the snowmaking required in the foreseeable future.

Mr. Dickson has compiled a Land Use Schedule, showing the use of the land that Craigleith Ski Club has within this watershed, an area of 67. 81 ha. Of that, only 11. 82 ha. comprise ski slopes or potential future ski slopes. There is an area of 28.96 ha of undeveloped forest. The stormwater management pond takes up 3.29 ha. (8.129 ac). The balance of the lands is agricultural fallow land, parking areas, tennis courts and buildings.

In his opinion, the lands of the Appellant should not be assessed since it is a riparian owner exercising its riparian rights in a reasonable manner in discharging waters into the natural watercourse. The pond which stores the water for the snow-making process is in this watershed. However, the Appellant makes no snow in this watershed. None of the snowmelt from the artificially made snow is discharged into the natural watercourse in this watershed. There is no injury downstream to any lands as a result of the Appellant's operation.

Mr. Dickson added, that MTO should not be spending public monies if the drainage works are not in fact required as designed.

The Engineer in reply, did not seriously take issue with Mr. Dickson's analysis of the culvert under Highway No. 26. He did not talk to MTO with respect to the condition of the culvert. He had some doubts whether the culverts can be cleaned without trespassing on abutting lands. However, his main reason for replacing the culvert is that "MTO asked for the new culvert". He continued to be of the view that the gabion baskets were required under the present circumstances along the channel to protect the abutting lands from erosion.

The Engineer had no personal knowledge whether or not the Appellant was making snow in the watershed. The two other people who gave evidence at the hearing, Elisabeth Ford and Robert Alexander, testified that the Appellant was making snow in this watershed. However, they admitted on cross-examination that they had never seen it, nor were they up there to investigate whether, in fact, this was so.

The evidence of these two witnesses, who are the owners of Lot 20 and 21, respectively, was a complaint that the Appellant is taking too much water out of the natural watercourse, depriving them of adequate flow. Mrs. Ford's evidence is that it is their primary source of water, and during periods of the year, there is not sufficient or reliable enough quantity for them. She tendered in evidence two letters, filed as Exhibit #12 and #13, where the Conservation Authority or MNR cautioned the Appellant that he was diverting to much water from the natural watercourse.

Both of these witnesses also testified that in the Spring flooding does occur. Their evidence is, that there was no flooding problems prior to the time that the Appellant had started making snow. The Fords have owned their property since 1931 and the Alexanders for 47 years. Mr. Alexander stated that he preferred to leave his property in its natural state with no gabion protection along the channel whereas, Mr. Ford lined his side with gabions and to some extent forced the channel over onto his property.

From this evidence, it would seem that, if there is unreasonable use of the natural watercourse by the Appellant, it is that he is diverting too much water from the natural watercourse. The Ministry has cautioned the Appellant from time to time about this. The diverting mechanism can be readily changed to divert more water from the watercourse than the licence permits.

During the course of the hearing, the Engineer suggested, somewhat half-heartedly, that perhaps the lands of the Appellant are now riparian to the natural watercourse. It is interesting to note that on page 1 of his Report (Exhibit #2), the Engineer states, "The runoff generated from this area is collected in a natural watercourse and is discharged through the upper and lower terrace zone between the toe of the Escarpment and Georgian Bay". The Appellant is the owner of lands not only on the face of the Escarpment, he has extensive holdings on the upper terrace zone and some in the lower terrace zone. On the basis of this evidence alone, it must be concluded that the lands of the Appellant are riparian to the natural watercourse. This has been confirmed in evidence before us by the Appellant and by our view and examination of the site. We therefore find that the lands of the Appellant are riparian to the natural watercourse. Therefore, prima facie, the lands of the Appellant are not liable to outlet liability assessment.

The next question to consider is: Is there any reason why the lands of the Appellant should be liable for outlet liability assessment? The Engineer put forward two grounds. First, the Appellant is making unreasonable use of the natural watercourse. Second, the Appellant's lands are not riparian to the natural watercourse. We have already disposed of the second ground.

The evidence of the Appellant is clear that although the snow-making pond is in the watershed, it makes no snow within the watershed or none of the snow melt from the artificial snow discharges into the natural watercourse.

The Engineer had no knowledge of whether or not the Appellant made snow within the watershed. He had assumed this for the purpose of his Report.

In her evidence at the hearing, Mrs. Elisabeth Ford, the co-owner of Lot 21, Registered Plan 529, through which the natural watercourse courses downstream of the Highway No. 26 culvert, testified that the Spring runoff is a lot worse now since the Appellant started to make snow in the watershed. In her evidence, she stated that, "there had been no flooding problems in the last eight to ten years until the Appellant started to make snow". She did not have any personal knowledge of the snow-making operations of the Appellant, or whether or not, in fact, he made snow in the watershed. She merely concluded this from the apparent increases in flooding since 1987. Most of her evidence was the lack of water in the natural watercourse because of the diversion of it by the Appellant.

Bob Alexander, the co-owner of Lot 20, Registered Plan 529, testified that, the Appellant does make snow in the watershed. He has never seen the snow-making nor has he any personal knowledge of it. He did not investigate the situation. It is not clear on what basis he has drawn this conclusion other than hearsay.

In the circumstances, we accept the evidence of the Appellant that it does not make snow in the watershed nor is there any snow-melt from the artificial snow made by the Appellant outletted into the natural stream in the watershed.

In the circumstances, it cannot be concluded that the Appellant is making an unreasonable use of the natural watercourse, other than perhaps stating that he is diverting too much water from the natural watercourse. However, that is not the issue before us. If that in fact is the case, perhaps he should be compensated rather than assessed for decreasing the volume that has to be provided for in the proposed drainage works.

Having arrived at that conclusion, that the Appellant is a riparian owner and that it is not making an unreasonable use of the natural watercourse, there is no reason why the Appellant should be assessed an outlet liability assessment for the proposed drainage works. The Appellant's outlet liability assessment will therefore be reduced to zero.

The final question to be determined is: How should the decrease in the Appellant's outlet liability assessment in the sum of $20,378.00 be apportioned among the other assessed owners? In our view, it should be assessed against the lands that have been assessed for benefit as a benefit assessment.

The only lands and roads assessed for benefit in the Report are:

Highway No. 26 Ministry of Transportation of Ontario (MTO)

Lakeshore Road - Township of Collingwood

Georgian Trail - Township of Collingwood

Lot 20, R.P. 529, Roll #3-390 Harold Alexander

Lot 21, R.P. 529, Roll #3-391 - Bruce and Elisabeth Ford.

We are of the view, that a substantial benefit accrues to the residential lands (Lot 20 & 21, Registered Plan 529) abutting the proposed drainage works north of the Highway. The Engineer has assessed each of the lots the sum of $2,500.00 by way of benefit. When these works are completed, these lands will be protected from flooding because the waters will be confined to the lined channel. The lands and structures will be protected from future erosion. The waters will be taken to the Bay in a controlled and more efficient manner. For these reasons, we would increase the Benefit Assessment levied against Lot 20, Registered Plan 529, Roll #3-390, owned by Harold Alexander by the sum of $2,000.00. We would increase the Benefit Assessment levied against Lot 21, Registered Plan 529, Roll #3-391, owned by Bruce and Elisabeth Ford, by the sum of $3,000.00.

The lands of the Georgian Trail and Lakeshore Road are riparian to the natural watercourse. Prima facie, they should not be assessed. However, they are so proximate to the work that when the works are completed, the ponding that now occurs on these lands will be eliminated. The outlet for their waters will be much more substantial and efficient.

The Engineer has levied the sum of $5,200.00 by way of Benefit Assessment against the Georgian Trial. In our view, this assessment is proper. The Trial is the old railroad right-of-way and embankment. The embankment is quite high, and consequently, the ponding does not have as serious an effect upon it as it does on Lakeshore Road.

The Engineer has also levied the sum of $5,200.00 by way of Benefit Assessment against Lakeshore Road. Lakeshore Road is much lower than the Trail and consequently, much more extensive ponding takes place along it. It is an important local road. The elimination of the ponding will be a much greater benefit to Lakeshore Road than to the Trail. We would therefore increase the Benefit Assessment levied against Lakeshore Road by the sum of $5,000.00 to $10,200.00.

The primary purpose of the proposed drainage works is to provide a sufficient outlet for the waters of Highway No. 26 being discharged through the Highway culvert. By far, the greatest advantage accrues to the Highway. The Engineer has levied a total assessment of $85,360.00 against Highway No. 26. Out of this sum, the sum of $65,425.00 has been assessed against the Highway under s. 26 of the Act.

The estimated total cost of the road crossing is $73,225.00. The Engineer has reduced this sum by the sum of $7,800.00 as an allowance for "normal cost of drain construction". This is his estimate of constructing an open drain across the Highway.

In our view, no allowance for constructing an open drain across the Highway should have been made in determining the amount payable by the Highway under s. 26 of the Act. Mr. Dickson testified, and we accept this testimony, that the present Highway culvert has sufficient capacity for conveying a one-in-100-year storm and that there is no visible structural deficiency in it. Consequently, the culvert would not need to be replaced for the purpose of these drainage works. It is being replaced because MTO wants it to be replaced. The new culvert is being placed approximately at the same elevation, perhaps slightly higher, than the invert of the present culvert. The watercourse is a natural watercourse. Therefore, there would be no allowance to the Highway for the drain itself. In the circumstances, we cannot see why an allowance for an open drain across the Highway should be made to the Highway when calculating the sum payable under s. 26 of the Act. For this reason, the sum of $7,800.00 shall be removed from the calculation, so that the amount payable under s. 26 of the Act for the cost of the work across the Highway will be $73,225.00.

The remaining $2,578.00 shall be added to the Benefit Assessment of the Highway for a total increase of $10,378.00.

Three photographs have been filed as Exhibit #11. They show the Highway culvert almost filled with stone. From these photographs, it appears as though the stones and cobble were put in the culvert to reduce the flow through it.

There will be no Order as to costs, and all parties are responsible for their own costs.

Dated: May 4, 1995

Maurice Armstrong, P. Eng., Vice-Chairperson

Theresa Whalen-Ruiter, panel member

Bernard J. Goodal, Chairperson