ONTARIO DRAINAGE TRIBUNAL
APPEAL:
NORMAN HEIGHTS MUNICIPAL DRAIN (RE) Township of Hay Landmark
NORMAN HEIGHTS MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 16
STATUTE:
Drainage Act
HEARING:
September 20, 1996
October 2, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 16
NORMAN HEIGHTS MUNICIPAL DRAIN TOWNSHIP OF HAY
IN THE MATTER OF:
An Appeal to the Ontario Drainage Tribunal by Landmark from the engineer's report on the NORMAN HEIGHTS MUNICIPAL DRAIN, TOWNSHIP OF HAY, under Section 54(1) of the Drainage Act concerning the assessment of the appellant and under Section 48 on the grounds that the benefits are not commensurate with the cost and the drainage works should be modified.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice- Chair; Mr. Russell Piper, Member.
Appearances:
Mr. David Seed, counsel to the appellant, Landmark. Ms. Kimberly Evans, on behalf of the respondent, the Township of Hay.
DECISION OF THE TRIBUNAL
This appeal was heard in Zurich, Ontario on Friday, September 20, 1996. Landmark appealed to the Ontario Drainage Tribunal (the Tribunal) under section 54(1) and under section 48 of the Drainage Act (the Act). Janisse Zimmerman, Clerk-Treasurer of the Corporation of the Township of Hay (the Township), performed the duties of the Clerk of the Tribunal.
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.
48(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.
Section 54(1) 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.
Preliminary Matters
At the start of the hearing, the Tribunal identified several ratepayers in the audience who were assessed for the proposed Norman Heights Municipal Drain, who were not parties before the hearing. After determining that some of these ratepayers wished to have party status at the hearing, the Tribunal issued an order that all ratepayers who had property assessed in the engineer's report on the Norman Heights Municipal Drain be made parties to the hearing.
Ms. K. Evans, solicitor for the Township, moved for dismissal of the appeal on the grounds that:
the appeal under section 48 was filed late. The deadline for appeal was June 26, 1996 and the appeal was not filed until June 28, 1996. The appellant was represented at all times by counsel and therefore should have been aware of the deadline.
the appeal under subsection 54(1) is not properly before the Tribunal in that the appellant was not a party to an appeal to the Court of Revision and therefore not eligible to appeal to the Tribunal.
Ms. Evans argued that, if the Tribunal is prepared to hear the appeals, the Tribunal should consider awarding costs against the appellants, since the taxpayers would be paying the cost of an appeal that was filed after the deadline.
Mr. D. Seed, solicitor for the appellant Landmark, argued that the format for an appeal to the Court of Revision is not specified, and he had filed with the Court of Revision an appeal document nine days before the first sitting of the Court. He said that the Court of Revision had refused to accept the format of the appeal and objected to hearing the appeal since it was not filed within the required ten days before the first sitting. He argued that there was no great prejudice to the parties by allowing the appeal to proceed.
The Tribunal recessed to consider the preliminary objections and decided to grant an extension of time for the filing of the s. 48 appeal, and to regularize any procedural defects in the s. 54 appeal. The Tribunal reserved its decision on the issue of costs of the hearing.
The Background
The Norman Heights subdivision has been under development since the 1940s. At the present time, there is a row of lots fronting on the Lake Huron shoreline with access at the rear from a road known as Main Street. There is a second row of lots fronting on the land side of Main Street and extending inland. Between subdivision lots 21 and 22 on the inland side of Main Street is an easement for a road. As well, four road easements, strategically placed, provide access from Main Street to the lakefront. Main Street and the land affected by the road easements, as well as all of the land between the existing subdivision lots and Highway 21, is owned by Landmark.
The Norman Heights Municipal Drain was initiated by petition of the affected ratepayers under section 4 of the Act. The complaints of the owners were:
areas in and adjacent to the Norman Heights subdivision have been subject to varying degrees of flooding, with surface water remaining for extended periods of time;
during periods of surface water ponding, septic systems have become inundated with groundwater, and basements have become damp or wet;
sump pumps run excessively during times of local flooding.
When he examined the area, Mr. Paul Elston, P. Eng., the engineer appointed by the Township to prepare the report on the Norman Heights Municipal Drain, observed that the roadside swales had access culverts of various sizes and installed at various elevations. He also noted that in some locations, the swale had been replaced by a conduit and backfilled. Also, the construction of elevated septic beds had altered the local surface drainage patterns and displaced some surface drainage waters onto adjacent lands.
The report recommends construction of a drainage system to:
intercept any drainage system that may enter the affected subdivision area from the abutting agricultural lands; promote lowering of the local water table and provide an outlet for surface and subsurface drainage water;
provide outlet for future development of the land (Roll No. 36-01), currently in agricultural use;
reconstruct the roadside swales and replace the laneway culverts;
The proposed subsurface drainage work commences at an outlet in a ravine at the northerly end of the Norman Heights subdivision and runs southerly from there parallel to the back lot lines of lots 14 to 27 on lands owned by Landmark. This drain is known as the main drain. Drain B runs along the front of lots 11 through 25 on the inland side of Main Street and is connected to the main drain at the road easement between lots 21 and 22. The roadside swale along Main Street is to be reconstructed and the lane culverts replaced as part of the construction work, but is not part of the drainage works for future maintenance.
The estimated cost of the work is $112,900.00.
The Issue
There are two issues before the Tribunal.
Should the drainage work as proposed be modified?
Are the assessments as confirmed by the Court of Revision appropriate?
The Evidence and the Findings
Mr. Seed indicated to the Tribunal that Landmark's position was that the report should be referred back to the engineer because:
the procedures used by the Township are flawed, and the petition is invalid;
the allowances are insufficient;
the design is improper and requires water to run up hill;
the assessment is improper;
there is a low cost, low technical solution that should be considered in place of the solution recommended by the engineer;
Landmark should have had an allowance for its existing subsurface drainage system;
The Tribunal indicated that it does not have jurisdiction to deal with issues of the sufficiency of the petition and procedures, and that concerns on these issues had to be taken to the Drainage Referee.
Mr. Jerry Stark testified on behalf of the appellant, Landmark. Mr. Stark told the Tribunal that he is a certified engineering technician who has worked for the Landmark group of companies for over twenty years. He has had considerable experience in construction supervision relating to subdivision development. Mr. Stark introduced several photographs of the area that he had taken in July of 1996. Mr. Stark agreed that there is an area where ponding of water takes place behind lot 20 and lot 15. His review of the location indicated that the roadside swales had been backfilled and conduits placed improperly so that the roadside drainage was ineffective. He also noted considerable landscaping encroaching on Landmark's property. Mr. Stark said that the allowances granted to Landmark were insufficient because this landscaping would be removed along the line of the drain for a width of 15 to 20 meters, and no compensation had been provided.
Mr. Elston testified that all of the work was being done on property owned by Landmark and that Landmark was the only property owner granted allowances in the report. He said he had calculated the allowances on the basis of a uniform rate per hectare of land used for the installation and a working corridor for the contractor. He pointed out that the general specifications that require clearing of all trees and stumps for an area 20 meters in width from all tile drains had been superseded by the notes on the profile and that extreme caution was to be used when constructing the drain to avoid causing damage to above and underground utilities, laneways and landscaped areas. He said that interference with the existing landscaping would be kept to a minimum. He also pointed out that the landscaping had been installed by the cottagers, the owners of the subdivision lots, partially on lands owned by Landmark. Since all of the construction was on Landmark property, and since the landscaping had been done by the cottagers, he had not provided allowances for any of the landscape bushes and trees that would have to be removed. He also pointed out that all disturbed areas were to be seeded and therefore damages would be minimal.
The Tribunal accepts the arguments of the engineer and finds that, in the circumstances, the allowances provided to Landmark are appropriate.
Mr. Stark also noted that in lots 10 and 11, the water flows to the back of the property. To make the proposed system work, the water has to flow through the property to the drain in the front. He also indicated that the engineer had erred in his assessment of the general topography. The engineer had based his design on the water flowing in a north westerly direction from lot 27, Lake Road West Concession and in a north westerly direction from lot 28, Lake Road West Concession, while in fact the water from lot 28 flows naturally in a south westerly direction. He also said that there was a systematic tile drainage system installed on lots 27 and 28 with a header tile running approximately in the location of the proposed main drain. He proposed installing catchbasins and connecting the two ponding areas to this header tile and reconstructing the roadside swale as a low-cost alternative to the engineer's proposal.
He provided a quote from a tile drainage contractor indicating this work could be done for under $10,000.00. In response to questions, Mr. Stark indicated that he was not sure of the size of the header tile nor the location of the outlet. He said he had a plan indicating that the outlet was into the same ravine as was being used by the engineer for an outlet.
Mr. Elston told the Tribunal that he found three tiles outletting into the ravine downstream of the location where he proposed to outlet the Norman Heights Drain. Mr. Elston said that these outlets were deteriorated and were causing instability in the slope of the ravine. In his opinion, the solution proposed by Mr. Stark was not suitable. Mr. Elston also said that he was aware that portions of lots drained to the rear and that these lots would require grading toward the drain. He agreed with the general description of the direction of the natural flow of surface water given by Mr. Stark and said that he had based his design for handling the surface water problem considering these factors.
The Tribunal has serious reservations about the proposal provided by Mr. Stark. Mr. Stark said he had spent considerable time on the site, talking to landowners and reviewing the tile drainage system on lots 27 and 28. In the opinion of the Tribunal, if Mr. Stark intended to provide an alternative proposal for consideration by the Tribunal, he ought to have conducted an investigation of the existing tile system, the size, location and outlet for the header tile, as well as determining the suitability of the outlet. The Act (section 15) requires that every drain constructed under the Act be carried to a sufficient outlet. The Act does not contemplate a "build it and see if it works" approach to constructing a drainage works. The Tribunal cannot condone a project that would use as its outlet a tile drain of unknown size and unknown outlet. Mr. Stark also admitted that his proposal does not address the subsurface drainage problem. In the opinion of the Tribunal, sufficient time was provided to Landmark to gather the information for its proposed low-cost alternative, and it failed to do so. Therefore, the Tribunal concludes that the alternative project proposed by Landmark is not appropriate for a project under the Act, and this ground of appeal must fail.
The next ground of appeal was that the assessment against Landmark was too high.
Mr. Elston said that he assessed a special benefit of $8,450.00 for use of the drain as an outlet for potential development of lands currently owned by Landmark. This allows the owner of the properties to use the outlet down the ravine and assesses a portion of the cost of this construction for future use. The lane culverts along Main Street, he assessed 50% to the abutting property owner and 50% to Main Street. After deducting the assessment for this work and the special benefit assessment, he was left with $100,700.00 to assess. He said that, in his opinion, the reason for constructing the drain was to benefit the affected lands, and so he assessed the drain 90% benefit and 10% outlet. The benefit was divided 60% to the roads and lanes and 40% to the abutting landowners on the basis of minimum assessments. All residential lots were assessed $625.00 per lot for improved drainage. If the lot abutted the drain, it was assessed $1,295.00 plus any assessment for culvert work mentioned above. Outlet assessment was based on size and use of the land. A runoff factor of 1 was used for the agricultural lands and 3 for the residential lots, roads and lanes.
The only evidence offered by Mr. Stark on the issue of assessment was that the assessment was too high and that no allowance had been given for the reduction in flow due to the tile drainage system on Landmark's property. Mr. Seed argued that the assessment was biased against Landmark. He said that since Landmark still owned the roads and lanes, it was assessed the major portion of the cost of the work.
After examining the assessments and the methodology used by the engineer, the Tribunal is satisfied that the assessments are reasonable when all of the circumstances are considered. In the opinion of the Tribunal, the engineer treated each property consistently, in a similar fashion, and the Tribunal found no bias in the assessments as calculated by the engineer.
The final ground of appeal was that no allowance has been made for the existing tile drainage system on Landmark's lands. Mr. Stark argued that the tile drainage system on Landmark's property was not taken into consideration by the engineer and Landmark ought to have an allowance for this tile drainage system.
Mr. Elston told the Tribunal that he was aware of the existence of a tile drainage system on the Landmark property. Since the location, age and condition of the system was not determined, he decided not to incorporate any of the existing tile into the Norman Heights Drain. He argued that unless all or part of the system was incorporated into the drain, no allowance could be provided.
The Tribunal agrees with the engineer. Section 31 makes provision for the engineer to provide an allowance for a private drain that is incorporated into a drainage works. In this case, since no private drain is incorporated into the proposal, no allowance can be made.
Decision and Reasons
After careful consideration of the evidence filed and submissions made, the Tribunal decided to deny all appeals by Landmark under section 48 and the appeal under subsection 54(1).
The Tribunal decided to grant the request of the Township and award costs of $2000.00 to be paid by Landmark to the municipality to be used towards the cost of this appeal.
The reason for this decision is:
In the opinion of the Tribunal, the appellant failed to bring forward persuasive evidence from qualified witnesses to convince the Tribunal that the project was ill-founded or that the assessments were inappropriate.
ORDER OF THE TRIBUNAL
It is ordered that Landmark pay to the Corporation of the Township of Hay the sum of $2000.00 within 45 days of the date of this decision. The Corporation of the Township of Hay is ordered to apply this payment against the costs incurred by the Township for this hearing. Any balance is to be credited to the account of the Norman Heights Municipal Drain, thus reducing the total cost that will be levied against all of the landowners.
It is ordered that there be no other order as to costs, and all parties are responsible for their own costs.
Attention is drawn to Section 73 of the Act.
Dated at Chatsworth, Ontario, this 2nd day of October 1996.