ONTARIO DRAINAGE TRIBUNAL
APPEAL:
WILES MUNICIPAL DRAIN (RE) Township of Fullarton Mr. Mervin Martin, appellant. Mr. Ken Bearss, appellant. Mr. Brian Bearss, appellant. Mr. Clifford Stephens, advocate for Mr. Mervin Martin. Mr. David Johnson, P. Eng., on behalf of the respondent the Township of Fullarton.
WILES MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 11
STATUTE:
Drainage Act
HEARING:
May 16, 1996
May 28, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 11
EXTENSION TO THE OAKE BRANCH OF THE WILES MUNICIPAL DRAIN TOWNSHIP OF FULLARTON
IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal concerning an extension to the OAKE BRANCH OF THE WILES MUNICIPAL DRAIN, TOWNSHIP OF FULLARTON under Section 54 of the Drainage Act by Mervin Martin and Brian Kenneth Bearss and under Section 48 and 54 of the Drainage Act by Ken and Shirley Bearss.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice Chair; Mr. Russell Piper, Member.
Appearances:
Mr. Mervin Martin, appellant. Mr. Ken Bearss, appellant. Mr. Brian Bearss, appellant. Mr. Clifford Stephens, advocate for Mr. Mervin Martin. Mr. David Johnson, P. Eng., on behalf of the respondent the Township of Fullarton.
DECISION OF THE TRIBUNAL
This appeal was heard in Fullarton, Ontario on May 16, 1996. Mr. Mervin Martin and Mr. Brian Bearss 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 on the Oake Branch of the Wiles Municipal Drain, Fullarton Township. Mr. Ken Bearss appealed to the Tribunal under Section 54 and Section 48 of the Act.
Section 48 of the Act is as follows:
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.
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 Tribunal, given 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.
54(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.
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.
The Background
David G. Johnson, P. Eng., of Johnson Engineering Consultants was appointed under Sections 4 and 78 of the Act by the Council of the Township of Fullarton to prepare a report on the Oake Branch of the Wiles Drain (the Oake Branch). He prepared and filed a report dated January 23, 1996.
The existing Oake Branch in the Township of Fullarton is an open ditch in Lot 13 Concession 14. The owner of this property, Mr. Ken Bearss, requested that the open ditch be replaced with a tile drain. This tile drain would outlet into the open ditch portion of the Oake Branch in Blanshard Township.
The owners of Lot 11 and Lot 13 Concession 14 and the Road Superintendent signed a petition to extend the Oake Branch to provide an outlet for their properties.
The proposed work outlets at a ditch inlet catchbasin on the north side of the Township Boundary Road between Fullarton and Blanshard at Lot 13, Concession 14, Township of Fullarton. The drain leads in a northeast direction to the east side of Sideroad 11/12, then northerly 55 meters, a distance of approximately 803 meters in total. The drain is comprised of 248 meters of 600 mm concrete farm tile, 220 meters of 450 mm concrete farm tile, 263 meters of 400 mm concrete farm tile, 17 meters of 400 mm corrugated metal pipe and 55 meters of 300 mm concrete farm tile. Four catch basins are positioned in line at Stations 0+2022, 0+270, 0+490 and 0+770.
The Oake Branch of the Wiles Municipal Drain open portion that exists across Lot 13, Concession 14, Township of Fullarton, is abandoned and will be backfilled as part of the construction.
The design capacity of the proposed tiled Oake Branch of the Wiles Municipal drain serving Concession 14 provides a drainage coefficient of 25 mm in 24 hours to Lot 11, 38 mm to Lot 12 and in excess of 51 mm to Lot 13. To protect Lot 12, Concession 14, from surface water flows from the upstream lands, the existing surface flow culvert across the 11/12 sideroad is removed.
The Issues
There are two issues before the Tribunal:
1/ Should the drain be modified by adjusting the watershed boundary and the acreage assessed?
2/ Are the assessments levied against the lands of Mervin Martin, Ken Bearss, and Brian Bearss appropriate?
The Findings
Mr. David Johnson, P. Eng., told the Tribunal that he was appointed by the Township of Fullarton to prepare a report in response to a petition from the owners of Lots 11 and 13, Concession 14, and the Township road superintendent. Mr. Johnson told the Tribunal that there had been several unsuccessful attempts to construct a drain by mutual agreement to solve the problems found in the upper watershed.
He said that the existing drainage system consisted of an open ditch across Lot 13. At the boundary between Lot 13 and Lot 12, this open ditch turns north and runs a short distance along the boundary line. An old private tile drain commences at this open ditch and runs across Lot 12 and ends on the west side of the 11/12 sideroad. This drain receives water from random tiles on Lot 12 and surface water flowing through the road culvert from the road and upstream lands, mainly Lot 11.
Mr. Johnson said that the proposed project on Lot 13 would replace the open ditch with a tile drain. He said that the owner had agreed to pay the cost of installing the tile and filling in the open ditch on the property. The owner requested a 600 mm tile be installed. This is larger than Mr. Johnson would have installed, but since the owner had agreed to pay the cost Mr. Johnson agreed to the size. In calculating the assessment for Lot 13 Mr. Johnson told the Tribunal that he had estimated the cost of two clean outs of the open ditch - $1,800.00 - and assessed this amount to the upstream owners as outlet assessment. The remainder of the cost he assessed against Lot 13.
Mr. Johnson told the Tribunal that the proposed project on Lot 12 would parallel an old existing tile drain running the width of the Lot to the 11/12 sideroad. The drain crosses the road in a steel pipe and ends in a ditch inlet catchbasin. The existing main tile outlets from Lot 11 are to be connected directly to the ditch inlet catchbasin providing a positive outlet for these tiles. Surface water from Lot 11 is directed into the catchbasin as no road culvert is provided.
Mr. Johnson told the Tribunal that he assessed the lands in Lot 11 outlet assessment at the rate of $100 per hectare and Lot 12 at the rate of $110 per hectare. The remainder of the cost he charged to the two properties as a benefit assessment. This method of assessment results in about 60% of the cost being charged to Lot 11 and 40% to Lot 12.
Mr. Ken Bearss told the Tribunal that he was satisfied with the engineer's report except that the watershed boundary on his property was incorrect. He said that the southwestern part of his property drained to the Anderson Branch. He estimated about 6 hectares of his land should be assessed into the Anderson Branch and 10 into the Oake Branch. Mr. Bearss said that he recognized that this would not make any difference to his assessment but when the Anderson Branch is next cleaned he should pay his share of that drain and would not if all of his property is assessed into the Oake Branch.
Mr. Clifford Stephen spoke on behalf of Mr. Mervin Martin. Mr. Stephen indicated that Mr. Martin did not receive benefit from the proposed project since:
Mr. Martin already has access to the existing Oake Branch to outlet all of his property and therefore he should have only a nominal assessment for outlet.
The tile to be installed across the Martin property is essentially an outlet for Brian Bearss on Lot 11. With existing tile and header tiles Mr. Martin has all the drainage he needs and therefore should not be assessed for benefit.
Mr. Martin has all of the construction on his lands and the subsequent problems of soil compaction and stone picking, in his opinion the allowances provided are inadequate.
Mr. Martin told the Tribunal that the tiles in the north side of his property that empty into the existing drain do not drain properly in times of high flows because the surface water from the upper watershed enters at the ditch inlet and overloads the existing tile outlet. He also said that in times of high flow the water meanders across his property flooding the crops. The land is fairly flat and therefore erosion does not appear to be a problem.
Mr. Brian Bearss told the Tribunal that he purchased Lot 11 in 1993. After buying the land, he talked with Mr. Martin to obtain an agreement outlet drain for the property. He said he thought he had reached agreement with Mr. Martin, so he proceeded to systematically tile drain Lot 11. When the attempts to reach an agreement drain failed, he filed a petition with the Township to secure an outlet for his tile system. He said he thought he was assessed too high for the project. About 5 hectares in the south part of his property is shown on the plan as having tile drains running north and surface water running south. Mr. Bearss said that this area is tiled to the south and therefore should not be assessed into the Oake Branch.
Mr. Brian Bearss also told the Tribunal that he was concerned that the road culvert had been removed. He said that he had agreed to this in order to have the project proceed but he thought the water would back up against the road embankment and flood his land at time of high flow. He filed photos of his property taken in May 1996 showing flooding.
The Tribunal examined the evidence before it. The engineer did not dispute the evidence that part of Lot 13 drains into the Anderson Branch. The engineer also could not dispute the evidence that the tile drained southern portion of Lot 11 could be drained to the south. The tiling contractor had not provided a map of the drains. The Tribunal concludes that the exact extent of both these areas are in question. Since the cost of the work in Lot 13 is charged against that lot, eliminating the area that drains to the Anderson Branch will have no effect on the assessment in this report. The Tribunal also concludes that the change in assessment for Lot 11, if the disputed area is excluded from the report, would be minimal. Since directing the engineer to confirm the watershed would cause additional expense to the project, with only a small effect on the assessment, the Tribunal decided not to alter the boundary in this report but suggests that the Township maintain a copy of this decision in the files for the Oake Branch and the Anderson Branch so that the next time a report is being prepared the engineer will be aware of the issue and a determination can be made during the preparation of the report.
The Tribunal notes that the photos filed by Mr. Brian Bearss show the effect of flooding against the road and also ponding in the fields away from the road. The Tribunal concludes that the project will be of great benefit to Lot 11 by providing an improved outlet for tile drains. Therefore, the assessment appeal of Mr. Brian Bearss fails.
In the opinion of the Tribunal, the property of Mr. Martin, Lot 12, will also benefit from this project. Additional capacity is provided to remove tile water and the surface runoff from the upper watershed is blocked and forced underground through the new tile outlet, except in times of exceptionally high flows.
Mr. Johnson told the Tribunal that he used a figure of $2,471.00 per hectare to calculate allowances for land damage and disposal of materials. Mr. Martin did not suggest a figure that he thought would be acceptable. In the opinion of the Tribunal, $2,471.00 per hectare is adequate compensation for the damages expected during construction of this drain.
Decision and Reasons
After careful consideration of the evidence provided and submissions made, the Tribunal decided to deny all of the appeals.
The reason for this decision is that after examination of the report, and the methodology the engineer used in calculating allowances and assessments, the Tribunal is satisfied that, with the exception of the watershed boundary, the report is an appropriate solution to the drainage problem presented. In the opinion of the Tribunal, the minor adjustment to the outlet assessment on Lot 11 that may result if the watershed boundary is changed would be offset by the cost of determining the watershed.
ORDER OF THE_TRIBUNAL
The Tribunal orders that:
1/ The appeals of Mervin Martin be dismissed.
2/ The appeals of Ken Bearss be dismissed.
3/ The appeals of Brian Bearss be dismissed.
4/ The Tribunal recommends to the Township of Fullarton that a copy of this decision be placed in the file of the Oake Branch and Anderson Branch drains so the next time a report is commissioned by Council the engineer will be aware of the watershed boundary issue.
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 Shelburne, Ontario this 28th day of May 1996