North Woolsey Drain (Re), 1996 ONAFRAAT 14

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

NORTH WOOLSEY DRAIN (RE) Township of Enniskillen Julie Archer, appellant. Thomas Billington, appellant. Laurie Brander, appellant. Scott Campbell, on behalf of Oildale Farms Ltd. Edward Sullivan, appellant. John Ravenhorst, assessed landowner. Bill Vandenhoven, appellant. Ray Dobbin, P. Eng., on behalf of the respondent, the Township of Enniskillen

NORTH WOOLSEY DRAIN (RE), 1996 ONAFRAAT 14

STATUTE:

Drainage Act

HEARING:

June 26, 1996

DATE OF DECISION:

July 8, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 14

NORTH WOOLSEY DRAIN TOWNSHIP OF ENNISKILLEN

IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal under Section 54 of the Drainage Act concerning the NORTH WOLLSEY DRAIN, TOWNSHIP OF ENNISKILLEN from the March 26, 1996 decision of the Court of Revision by the following appellants: James & Donna Clow, Alec & Laurie Brander, Thomas & Maureen Billington, Mr. & Mrs. John Giffels, Steve & Roxanne Vlcek, Frances Lumley, Bill & Constance Vandenhoven, Steven Carr, Paul & Julie Archer and Edward & Liz Sullivan.

Before:

Mr. Herb Todgham, Vice Chair; Mr. Warren Jenner, Member; Mr. Andrew Wright, Member.

Appearances:

Mrs. Julie Archer, appellant. Mr. Thomas Billington, appellant. Mrs. Laurie Brander, appellant. Mr. Scott Campbell, on behalf of Oildale Farms Ltd. Mr. Edward Sullivan, appellant. Mr. John Ravenhorst, assessed landowner. Mr. Bill Vandenhoven, appellant. Mr. Ray Dobbin, P. Eng., on behalf of the respondent, the Township of Enniskillen

DECISION OF THE TRIBUNAL

This appeal was heard in the Enniskillen Township Council Chambers, 4465 Rokeby Line, on June 26, 1996. Mr. Duncan McTavish, Clerk of the Township of Enniskillen (Enniskillen) performed the duties of the clerk of the Tribunal. Several ratepayers 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 held on March 26, 1996 for the North Woolsey Drain. At the beginning of the hearing, it became apparent that some of the appellants also wished to appeal to the Tribunal under Section 48 of the Act on the grounds that the work should be modified by deleting the proposed improvements to the drain and requiring a clean out of the drain instead of the improvement. The engineer for Enniskillen told the Tribunal that he was prepared for this appeal. Therefore, under the authority of Section 100 of the Act, the Tribunal extended the time for filing appeals under Section 48 and accepted these appeals at the hearing.

Section 48(1) 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.

(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.

At the outset of the hearing the Tribunal ordered that, in accordance with Section 51(2) of the Act, all owners of property within the watershed are to be made parties to the appeal.

The Background

LaSalle Line runs in an east and west direction. Kettle Lane commences at LaSalle Line and runs north, stopping short of the middle of the concession. The Kettle Lane Drain runs along the line of the road and outlets into the North Woolsey Drain. The North Woolsey Drain begins in the East ½ Lot 8, Concession 13, Enniskillen, as a storm sewer and runs west along the north side of LaSalle Line. At the west side of Kettle Lane, it becomes an open ditch that is enclosed in culverts across parts of six residential lots, and then it continues as an open ditch to the intersection of LaSalle Line and Plowing Match Road (north-south road) where it outlets into the Callinan Drain.

On October 2, 1994 the Council of Enniskillen Township received a written request from Mr., Mansal Day, the owner of Part Lot 8 Concession 13, sub lots 10, 11 & 12, Plan 26, requesting the existing open channel be filled in. Mr. Ray Dobbin, P. Eng., was appointed by Council to prepare a report in response to this request. A site meeting was held on October 24, 1994. On May 1, 1995, Mr. Dobbin filed a preliminary report proposing to fill in the existing open ditch and install a tile drain in its place. The report contained cost estimates for three different lengths of drain to be enclosed, together with an approximate assessment for each alternative. There was no discussion of an option to clean out the existing channel, as the request was to fill in the channel. After the meeting to consider the preliminary report, Mr. Dobbin proceeded to complete and file with the Council a report recommending replacing 309 meters of the existing North Woolsey Drain with a tile drain.

The proposed project will enclose the North Woolsey Drain from the intersection with Kettle Lane west for a distance of 309 meters. The first 139 meters is 525 mm diameter tile and pipe, and the next 168 meters is 600 mm diameter tile and pipe. The estimated cost of the work is $54,916.

The Issue

There are two issues before the Tribunal:

1. Are the assessments for the construction detailed in the January 8, 1996 report on the North Woolsey Drain, as confirmed by the Court of Revision, appropriate?

2. Should the work be modified by deleting the installation of the tile drain and filling in the open ditch and requiring instead a clean out of the existing open ditch?

The Evidence

Mr. Dobbin told the Tribunal that he had prepared a preliminary report so the ratepayers assessed would be in a position to decide how much of the existing open channel on the North Woolsey drain should be filled in. In the preliminary report, he had estimated the cost of filling in the 309 meters at $54,907 and he had provided a preliminary assessment schedule in that report to assist landowners. He said that the final report was estimated at $54,916, and the assessment schedule had changed slightly from the preliminary report in that less cost was assessed to the landowners along Kettle Lane. Mr. Dobbin told the Tribunal that, for purposes of calculating the assessments to be levied, he divided the drain into three sections. He calculated the cost of each section and then divided that cost between special benefit, benefit and outlet.

Mr. Dobbin said that he determined the special benefit by charging the abutting landowners the cost of filling in the open drain with earth but no tile, and restoring the topsoil and seeding the area to grass. He included a portion of the overhead cost in his calculation of special benefit. The special benefit he estimated in this manner totalled $8,510, which he assessed to each abutting property based on the length of ditch to be filled on each parcel.

For benefit assessment he determined the cost of installing a 300 mm tile drain across each property, installing catch basins, restoring lawns, backfilling the driveways with granular, plus overhead. The benefit assessment was applied to all of the properties fronting the channel on a per-meter basis. Mr. Dobbin said that, on reviewing his calculations, he felt he had not charged enough for benefit and so had increased the total benefit from the calculated figure of $18,000 to $21,092.

The balance of the cost of each section Mr. Dobbin assessed as outlet on an equivalent acreage basis for a total outlet assessment of $25,314.

Mrs. Laurie Brander was the first appellant to testify. She told the Tribunal that she lives on Kettle Lane. Her property does not drain, and she has constructed a pond 40 feet by 50 feet by five feet deep in her backyard to contain the water. She said that the only way for water from her property to get into the Kettle Lane Drain to the North Woolsey Drain is by pumping. Mrs. Brander said that she had asked what the cost would be for a clean out of the existing North Woolsey Drain, and that Mr. Dobbin had estimated a clean out at about $4,500. Mrs. Brander argued that, in these difficult financial times, a clean out of the drain is more desirable than the proposed improvements.

The other appellants told the Tribunal their situation was similar to that of Mrs. Brander. All were being flooded; they were experiencing difficult financial times; they did not oppose the improvement of the North Woolsey Drain as long as their assessment was reasonable, but they believed they were being assessed too large a share of the cost of the proposed work. They said they would receive no benefit, nor would their outlet be improved. Mr. Edward Sullivan told the Tribunal that he has pumped his backyard into the catch basin in the Kettle Lane Drain three times this year. He uses a gas pump with a fire hose, and it takes about 12 hours to pump the pond from his yard.

In his reply evidence, Mr. Dobbin told the Tribunal that the problems along the Kettle Lane exist because the owners have not installed drains from their properties to connect to the Kettle Lane Drain. The Kettle Lane Drain is a solid pipe that will provide outlet for each property's private drainage system. He also said that he had not included an option of cleaning out the existing open ditch because that was not the request he was appointed to respond to. He argued that if you take:

1. the cost of cleaning the open ditch every seven or eight years (this is the historical pattern on the North Woolsey Drain in this area), and

2. the cost of replacing the existing 25 year old lane culverts and lawn culverts that are part of the North Woolsey Drain,

and compare that total to the expected 40-year life of the proposed work, the proposed work is economically sound.

Mr. John Ravenhorst was the only ratepayer present to speak in favour of the proposed work. He told the Tribunal that he wished the project to proceed as long as his assessment was not changed significantly.

Mr. Mansal Day, 3718 Lasalle Line, whose property abuts the upstream end of the proposed work, filed a letter with the Tribunal expressing his support for the project.

Mr. Dan Nolan and Linda Nolan, 3712 LaSalle Line, whose two properties abut the proposed work, filed a letter with the Tribunal expressing their opposition to the project.

The Findings

The Tribunal examined the evidence and made the following findings:

• The Tribunal accepts Mr. Dobbin's argument that, over a forty-year life, the proposed improvement to the drain is a comparable cost to regular maintenance of the affected section of the existing North Woolsey Drain, but it will take forty years to fully realize this.

• While the conditions along the Kettle Lane Drain are of significant concern to the affected landowners, this does not have a bearing on the proposed improvements to the North Woolsey Drain or the assessments for that improvement.

• In the opinion of the Tribunal, Mr. Dobbin has used a consistent approach in calculating assessment for outlet and benefit for the proposed work and therefore, the assessment proportions, one property to another, are appropriate.

• This project was initiated by a request to the Council of Enniskillen to fill in the existing open channel. The three alternatives considered in the Preliminary Report dealt only with enclosing different lengths of the North Woolsey Drain. The Tribunal therefore concludes that the main (if not the sole) purpose of the proposed work is to eliminate the existing open ditch by enclosing it in tile. Since the properties that stand to gain the most, by far, from enclosing the drain are those which abut the work, these properties, including the road, must pay the largest share of the cost through their assessments under the headings of "Special Benefit" and "Benefit".

Decision and Order of the Tribunal

After careful consideration of the evidence presented and submissions made the Tribunal decided to issue the following orders:

1. The assessment for outlet levied under the engineer's report is to be reduced by half from $25,314 to $12,657. The $12,657 reduction is to be charged against the lands and road assessed a special benefit assessment, as shown in the report, on a pro rata basis.

2. After modification of the assessment schedule, the Council is directed to circulate the revised assessment schedule to all assessed parties and convene a meeting with all the parties to discuss the revised assessment schedule.

After this meeting, Council must decide whether:

a) to proceed with the proposed project with the revised assessment schedule, or

b) to clean out the drain to the specifications in the current bylaw pertaining to this section of the North Woolsey Drain.

If the Council decides to proceed with a clean-out only, the report is to be modified by deleting all of the proposed work in the present report. The cost of the clean-out and this report, as well as the cost of future maintenance of this portion of the North Woolsey Drain, are to be levied pro rata on the basis of the revised assessment schedule, excluding the special benefit assessment. For purposes of eligibility for grants, either project shall be deemed to be undertaken under Section 78 of the Act.

3. The costs incurred by the municipality and the engineer for preparation for and attendance at this hearing shall not be charged to the account of the North Woolsey Drain.

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.

The reasons for this decision are as follows:

1. In the opinion of the Tribunal, the properties abutting the North Woolsey Drain receive a significant benefit from enclosing the existing open ditch, and this benefit was not sufficiently reflected in the assessments proposed against these properties.

2. Since the Tribunal made a significant change in the assessments, in the opinion of the Tribunal, the affected property owners should have the opportunity to discuss the project and the revised assessments with the Council before a final decision on the work is made.

Dated at Chatham, Ontario, this 8^th^ day of July 1996.