Branconnier Drain (Re), 1996 ONAFRAAT 15

BRANCONNIER DRAIN (RE) Townships of Casimir, Jennings & Appleby Hank Allen

BRANCONNIER DRAIN (RE), 1996 ONAFRAAT 15

Drainage Act

August 20, 1996

DATE OF DECISION:

September 5, 1996

1996 ONAFRAAT 15

An Appeal to the Ontario Drainage Tribunal under section 64 of the Drainage Act, by Mr. Hank Allen, concerning the quality of construction on the BRANCONNIER DRAIN, TOWNSHIPS OF CASIMIR, JENNINGS & APPLEBY.

Before:

Mr. Andrew Osyany, Vice Chair; Mr. Rene Montpellier, Member: Mr. Russell Piper, Member.

Appearances:

Mr. Hank Allen, appellant in person. Mr. Garth Noecker, on behalf of the respondent, the Township of Casimir, Jennings & Appleby.

DECISION OF THE TRIBUNAL

This appeal was heard on August 20, 1996 in the Council Chambers of the Township of Casimir, Jennings & Appleby (the Township), 2 King St. East, St. Charles, Ontario. Mrs. Gaetane Lemieux, Chief Administrative Officer for the Township, performed the duties of the Clerk of the Tribunal.

The Background

The Branconnier Drain was constructed under report of J.K. Young dated February 19, 1981. It is an open ditch of approximately 1 metre bottom throughout, with side slopes of 1.5:1, with depth varying from 1.5 to 2.0 metres. Additional open ditch tributaries were added to the drain in 1984 and 1985. Young Smart Engineering filed a report, dated May 30, 1994, prepared under Section 78 of the Drainage Act (the Act) for the repair and maintenance of the Branconnier and Dorzek-Lemieux Drains.

The work in the May 30, 1994 report consists of removal of all beaver dams, brushing of the full channel and scattered to continuous clean out of the bottom of the drain. The report calls for 8630 meters of ditch clean out, 465 meters of channel repair, repair of seven road crossings, filling in 260 meters of open channel, construction of seven temporary sediment traps, etcetera.

Mr. Allen filed, with the Township a notice of appeal dated January 24, 1996 wherein he notified the Township that, in his opinion, the following defects in construction existed:

1/ seeding of the ditch bank

2/ levelling of the spoil

3/ temporary sediment traps

The Issue

Is the construction of the Branconnier drain in substantial compliance with the engineer's report dated May 30, 1994 and the specifications contained in that report?

The Evidence and the Findings

Mr. Allen told the Tribunal that he had the following concerns with the quality of construction of the Branconnier Drain:

The banks are sliding down into the ditch dug last year. He said that the slumping is extensive along a lot of the drain. He said that one slump on the Schmidt property is about 100 feet long and that there are five or six slumps on the Palkovits property that are each five to six feet long.
The culvert installed on the Schmidt property for the farm crossing has three inches of silt in it already and it is blocked with branches and stones.
The ditch has not been seeded down and there are spots where the bottom elevation varies by three or four inches. He said that the excavator bucket was higher or lower, causing the drain bottom to be up and down.
The silt traps have not been removed from the drain as required.
On the Lapensee property, partway down in drain A, there is a bedrock outcrop that obstructs the flow and causes a pond two to three feet in depth.

Mr. Garth Noecker told the Tribunal that the drain was originally dug in 1981. He said that the current work was a repair and maintenance of the drain - a bottom clean out using the grades in the original report. He said that the only change made was about 140 m of the Dorzek Lemieux drain which was dug as a new drain and a section of this same drain was closed in. Tendering was done in the spring of 1995, and Gaudette Contracting was awarded the contract. Mr. Gaudette wound up the company within a few weeks of taking the contract but retained the contract. In May of 1995, Gaudette removed the beaver dams. Prior to that, he had placed silt traps using straw bale-type traps. In June 1995, Gaudette leased a hydraulic excavator and brushed the drain and cleaned the bottom. A letter listing seven construction deficiencies was sent by Mr. Noecker to the contractor under date of October 13, 1995. The deficiencies include two sections of drain where the grade was too high, a problem with installation of rip rap, a problem with the spreading of spoil in one location, a tree across the drain, a problem with the Schmidt drain crossing culvert being blocked by spoil and stones, and the silt traps requiring cleaning and removal. A certificate of substantial completion of the work was issued by the engineer under date of October 18, 1995. On July 15, 1996, a further letter was issued to the contractor indicating that the deficiencies listed in the October 13 letter had been dealt with, except for some work remaining on Branch D and Branch C on the Dorzek property and the removal of the seven silt traps and the silt accumulated in these traps.

Mr. Noecker responded to Mr. Allen's concerns as follows:

There is some bank slippage on the Schmidt property downstream of the farm crossing as well as other isolated spots on the drain. The slippage occurred in the spring of 1996 not at the time of construction. The channel is open at the bottom and the slips have stabilized. Other than re-sloping the entire length of the slipped ditch bank, there is little that can be done. Mr. Noecker recommended that the slips be left as is until it is determined they are causing a problem and then they can be addressed as part of the maintenance of the drain.
In the original construction of the drain, the Schmidt property was provided a severance allowance in lieu of constructing a culvert. This crossing is a private crossing. An offer was made to replace this culvert with the cost charged to the Schmidt property, but it was not accepted by the owner. The contractor removed the existing 18-inch culvert and then reinstalled it with the available materials. The obstructions at the culvert have been removed since the filing of the letter of appeal but some silt remains in the bottom of the culvert.
The project is maintenance of the drain - a bottom clean-out - page 37 of the report describes this work as Type 1 and Type 2. Mr. Noecker described the work as a clean out of the bottom sediments accumulated since construction in 1981, and there would be no sense in seeding the bottom of the drain channel. Therefore, seeding is not specified except for the 149 metres of new ditch. An invoice was shown to Mr. Noecker by the contractor for the seed used on the new ditch. The contractor did have variations of two or three inches in the bottom of the drain. However, these variations are within the tolerances allowed in the specifications and, since the spring runoff, they are no longer visible. The flowing water has levelled the drain bottom.
The silt traps have not been removed from the drain. The contractor was instructed by letter on July 15, 1996 to remove the accumulated silt and then the silt traps. This work has not been done.
The rock outcrop is at the grade of the original drain and is one meter below the outlet at the road culvert. The downstream ditch has a constant grade on it and water drains away. There is a pond behind the rock outcrop caused by over excavation of the remains of a beaver dam making the drain below grade in that area. It forms a natural silt trap.

The Tribunal accepts the evidence of the engineer that the local soil conditions contributed to the collapse of sections of the drain bank and that the drain continues to function satisfactorily. In the event that the bank collapse leads to the impairment of the function of the drain or further erosion occurs, corrective measures can be taken as a work of maintenance. The Tribunal understands that the funds remaining in the project may allow some corrective measures to be taken at this time. However, any work is left to the discretion of the Township Council.

The appellant complained that the culvert on the Schmidt property was set below the level of the drain, and the outlet was obstructed by rocks. This is a private culvert, not part of the drain. During the course of construction, the contractor removed the culvert to do the brushing and then reset it in the drain. The engineer has viewed the culvert several times since then and has stated that, although it is slightly small, it is functioning as well as can be expected. The Tribunal finds no defect in the quality of construction in respect to the Schmidt culvert.

The appellant complained that the lack of seeding has contributed to the excessively fast regrowth of weeds and brush. The engineering report sets out different classes of channel repair starting at page 37 in the special provisions. Along Branch A, only Type 1 and 2 channel repairs were to be carried out, neither of which calls for seeding. Branch D is the only area where seeding was called for in the report. The engineer confirmed a meeting with the contractor and the landowner (Dorzek) on whose property Branch D is constructed. They are all satisfied with the growth of vegetation, including the grasses. The engineer has been shown the invoice for the grass seed by the contractor as required by the report, although the engineer has not been given a copy of it. The Tribunal is satisfied that there is no defect in the quality of construction on this count.

The Tribunal finds that the sediment traps are still in place and partially washed out and that the sediment behind the traps has not been cleaned out. The report deals with sediment traps in several locations.

Paragraph 4.13 of the General Specifications is as follows:

Unless other dimensions are supplied, temporary sediment traps shall be constructed where specified by excavating the drain bottom to 0.3 m below the grade line for a length of 15m (See Detail Drawing NE - 1). The over-excavated section shall have a bottom width equal to that of the adjacent channel, and sides shall be sloped at the same ratio as the drain banks. The outlet from the sediment pond shall have a porous dam of baled straw, completely wrapped in a continuous piece of filter fabric (Terrafix 270R or approved equivalent) and keyed into the drain banks and bottom. Bales placed on the drain bottom shall be held in place with a minimum of two steel posts driven into place. Bales placed on the side slope shall be held in place with a minimum of one post each. The contractor shall maintain the sediment trap during the course of construction and for six months after the completion of the work and then remove the dam. Temporary sediment traps shall be installed prior to any excavation taking place upstream of that location.

Paragraph 4 of the Special provisions (Page 39) is as follows:

Temporary Sediment Traps - Wherever temporary sediment trap dams are specified, the work shall be done in accordance with Detail Drawing NE-1 and GS 4.13. Rock sediment traps are preferred. They shall be temporary (one year) and shall be treated in the same fashion as sediment traps as specified in Section GS 4.13. Straw bale sediment traps may be used in lieu of the rock sediment trap only when prior approval is given by the Engineer. Sediment traps shall stay in place over one winter and be removed in the late spring or early summer. Accumulated sediments shall be removed and levelled.

Notwithstanding the engineer’s written deficiency notice and follow-up notice to the contractor, the work on the sediment traps and the removal of accumulated silt are still outstanding. In this respect, the drain is not completed, and, in the opinion of the Tribunal, that is a defect in the quality of construction. The Tribunal is satisfied that the engineer will have this work done by another contractor within the next few weeks, and that will satisfy the defect. The Tribunal accepts that the work can be done within one day and there are sufficient monies in the holdback to cover the cost.

The issue of cattle access to the drain was brought to the attention of the Tribunal during the course of the hearing. Although that is not an issue relating to quality of construction, the Tribunal draws attention of the Council to the provisions of Section 80, 82 and 83 of the Act.

The Tribunal is concerned over the costs and circumstances of this appeal and considered awarding costs against Mr. Allen. However, the majority of the panel felt that, due to the persistence of the problem with the silt traps, and the failure of the Engineer/Drainage Superintendent to ensure that the silt traps were completed to specifications prior to the hearing, there should be no award of costs.

Decision and Reasons

After careful consideration of the evidence submitted and submissions made, the Tribunal finds that there is a deficiency in the construction of the Branconnier and Dorzek-Lemieux Drains 1994 in that the temporary sediment traps have not been completed in accordance with the specifications in the report. Therefore, the Tribunal orders:

1/ The Corporation of the Townships of Casimir, Jennings & Appleby is to complete the removal of the accumulated sediments and the temporary sediment traps in the Branconnier and Dorzek-Lemieux Drains 1994 to the specifications in the engineer's report dated May 30, 1994, within six weeks of the date of this decision.

2/ 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 5^th^ day of September 1996.