ONTARIO DRAINAGE TRIBUNAL
APPEAL:
DOMM MUNICIPAL DRAIN, BRANCH D (RE) Township of Normanby Vernon Dippel Orland Dippel Freda Dippel John Bosomworth, Eunice Bosomworth,
DOMM MUNICIPAL DRAIN, BRANCH D (RE), 1996 ONAFRAAT 17
STATUTE:
Drainage Act
HEARING:
September 18, 1996
October 2, 1996
NEUTRAL CITATION:
1996 ONAFRAAT 17
DOMM MUNICIPAL DRAIN, BRANCH D TOWNSHIP OF NORMANBY
IN THE MATTER OF:
An appeal to the Ontario Drainage Tribunal under Section 54(1) of the Drainage Act, by Mr. Vernon Dippel from the decision of the Court of Revision on the DOMM MUNICIPAL DRAIN, BRANCH D, TOWNSHIP OF NORMANBY.
Before:
Mr. Vernon Spencer, Chair; Mr. Andrew Wright, Vice-Chair; Mr. Russell Piper, Member.
Appearances:
Mr. Vernon Dippel, appellant. Mr. Orland Dippel, appellant. Mrs. Freda Dippel, appellant. Mr. John Bosomworth, party to the hearing. Mrs. Eunice Bosomworth, party to the hearing. Mr. Wm. Mannerow, on behalf of the respondent, the Township of Normanby.
DECISION OF THE TRIBUNAL
This appeal was heard in Ayton, Ontario on Wednesday, September 18, 1996. Mrs. Susan Shannon, Clerk-Treasurer, Township of Normanby (the Township), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).
Mr. Vernon Dippel appealed to the Tribunal under Section 54 of the Drainage Act (the Act), stating that his assessment was too high.
Section 54(1) 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.
The Background
The Domm Municipal Drain was constructed in 1958 under report of James Howes. It flows in a northwesterly direction beginning in Lot 15, Concession 5 and outletting in Lot 11, Concession 9. Mr. Dippel, owner of Lot 14, Concession 5, is concerned about water flowing through the bush at the back of his property and then across his fields to enter into the open ditch of the Domm Municipal Drain. The proposed Branch D is a tile drain which runs northwesterly in Lot 14, Concession 5. Commencing at a catchbasin to be installed in a 6-meter diameter pond to be constructed just inside the bush on Lot 14, a 300 mm tile runs northerly for 497 meters to outlet into the Domm Municipal Drain. The water level in the bush will be controlled by this tile so it will not rise high enough to flow over the cultivated land. The estimated cost of the project is $14,000.
The watershed of Branch D includes parts of Lots 14 and 15, Concessions 4 and 5. The E½ of Lot 15, Concession 4 (Bosomworth), is tile drained into the Domm Municipal Drain and does not flow into Branch D. The Lot 14, Concession 4 (Bosomworth), is tile drained to an outlet in the Shannon Drain. Surface water from most of Lot 14, Concession 4 flows into Branch D. The W½ Lot 15 has an old tile drain (approximately 50 years or more of age) that outlets at the edge of the bush on Lot 15, Concession 4 and both tile water and surface water flows through the bush into Branch D in Lot 14, Concession 5.
There are some tile drains installed on Lot 14, Concession 5 (V. Dippel) but the owner is not certain of the location of all of these tiles.
The Issue
Is the assessment for the Domm Municipal Drain Branch D, as confirmed by the Court of Revision, reasonable?
The Evidence and the Findings
Mr. Wm. Mannerow, P. Eng., told the Tribunal that he is the engineer appointed by the Township to prepare the report on the Domm Municipal Drain, Branch D. He said that he met with Mr. Vernon Dippel, and Mr. Dippel explained that the problem was water from the swamp at the back of Lot 14, Concession 5. The swamp runs along the concession line to the rear of Lots 14 and 15 in Concessions 5 and 4. Water from the swamp runs overland across the fields and discharges into the open portion of the Domm Municipal Drain. Mr. Mannerow said that Mr. Dippel agreed that the best means of handling this water was to:
- construct a pond at the swamp.
- install a catchbasin, with a bird cage inlet grate in the pond.
- install a tile drain from the catchbasin to the open Domm Municipal Drain.
The system is designed to control the level of water in the swamp so it does not overflow by taking excess water to an outlet. Mr. Mannerow said that all of the estimated total cost is assessed for benefit and outlet. He made no assessment for injuring liability and, in his opinion, there are no properties with riparian rights.
Mr. Mannerow assessed only Lot 14, Concession 5 (Dippel) for benefit. He said that, without considering the area upstream of Lot 14, Concession 5, Mr. Dippel would have to install the pond, catchbasin and a 200 mm tile from the pond to the Domm Municipal Drain. The cost of this work, Mr. Mannerow estimated at $7,950, and he assessed this amount as a benefit to Lot 14, Concession 5. The remainder of the cost he assessed as outlet liability.
Mr. Mannerow said that he uses the following system to calculate outlet assessments for each property:
First, he finds the acreage of each property within the watershed and the centre of land mass (centroid) of the property.
He then calculates the assessable number for each property by multiplying the acreage by:
- the land class (similar to a runoff coefficient, and is dependent on the use made of the property), and
- the distance factor (those properties that lie farther from the drain pay a smaller amount of outlet than those lying adjacent to the drain since water from the far lands will get to the drain slower and in diminished quantity), and
- the profile factor (how much of the length of the drain is used by the water from the property, if water enters the upstream end of the drain, the factor would be 100, if in the middle of the drain the factor is 50).
For Branch D, all of the properties have similar uses and were assigned the same land classification; water from all of the properties enter the upstream end of the drain, so the profile factor for all properties is 100. For Lot 14, Concession 4, the centroid is 1200 feet from the drain, so the distance factor is 0.99. For the W½ Lot 15, Concession 4 (Bosomworth), the centroid is 1700 feet from the drain, and the distance factor is 0.85. For Lot 15, Concession 5 (Pletsch), the centroid is 800 feet from the drain, and the distance factor is 1.15. For Lot 14, Concession 5 (Dippel), the centroid is 200 feet from the drain and the distance factor is 1.57.
Once the assessable numbers have been calculated, they are totaled and each property is assessed its share of the outlet assessment on a pro rata basis. Mr. Mannerow told the Tribunal that once the calculations are completed, he conducts a review of the final numbers to determine if the proposed assessments are, in his opinion, fair. In this case, he felt the results were fair and assessed the properties according to the calculation without adjustment.
Mr. Orland Dippel told the Tribunal that the assessment on Lot 14, Concession 5, was too high and should be reduced considerably. He said that the Dippel property was assessed outlet at the rate of $80 per acre and the Bosomworth property was assessed at the rate of $50 per acre. He said that he felt the person at the bottom end of the drain, who has to take the water, should not have to pay at a rate greater than the person at the upper end of the drain, whose property the water flows from. He said there was a considerable flow of water through his bush lot and then across his fields to the Domm Municipal Drain. He feels this water is coming from the old tile drain on the Bosomworth property and from a stone pile at the edge of the bush on the Bosomworth property. He said the land appeared to be excavated around the stone pile and part way into the bush, and there was no outlet from this excavation. The water just flows overland through his bush and fields. Mr. Dippel said that the previous owner had installed a six-inch clay tile from the bush to the Domm Municipal Drain to provide an outlet. He said this tile runs full and there is still water flowing over the surface. There is no catch basin to let water into this tile. It was installed in a shallow trench, and the water just seeps in. Mr. Dippel told the Tribunal that he had installed some four-inch lateral tiles parallel to the fence line, with each tile outletting into the Domm Municipal Drain, and the engineer had not considered this in calculating the assessment. Mr. Dippel also told the Tribunal that he felt the area assessed in Lot 14, Concession 5, was too large and should be reduced from 30 acres to 10 acres.
Mr. Dippel said that, while the water problem has been a long-standing one, it was aggravated when Mr. Bosomworth installed additional tile drains in 1987.
Mr. Vernon Dippel told the Tribunal that the engineer has made an error when he said that the water from their land uses 100% of the drain. He pointed out that the water would have to flow up the slope from the Domm Municipal Drain to get into the upper end of Branch D.
Mrs. Eunice Bosomworth told the Tribunal that, in 1987, she and her husband had contracted the installation of a tile drainage system on Lot 14, Concession 4. She said that they did not feel there was an outlet at the bush, so they installed a header tile and took the water to the west to the Shannon Drain. The old existing tile drain from Lot 14 that had emptied into the bush was intercepted about 15 feet from the bush and connected to the new header tile. A steel outlet pipe was installed on the old tile outlet from the W½ Lot 15 to protect it from any further deterioration. Mrs. Bosomworth explained that since they had intercepted much of the water that was previously flowing across the bush lot and tile drained it to outlet into the Shannon Drain, she did not understand how this work could have aggravated the problem on the Dippel land. She argued that if any change was made to the flow of water on the Dippel land, it should have been reduced by their tile drainage work. Mrs. Bosomworth acknowledged that the old tile drain outlet is still in place. She said that the stone pile referred to· by Mr. Dippel was field stone they had placed in the old open ditch that had served as an outlet for tile on their property. Since the installation of the header tile, the ditch was no longer necessary, and they were using it as a place to dump field stones. She said if there is water flowing from these stones, it is a minimal amount and there are no known tiles outletting there.
The Tribunal examined the evidence and made the following findings:
The engineer assessed the total acreage of each property without regard to tile drainage. Surface water flows from Lot 14, Concession 4, into Branch D, but the newly installed tile drainage does not. In the Tribunal's experience, when surface water flows one direction and tile drainage another, it is a common practice for that land to be assessed at a lower rate because some of the drainage water has been diverted. While engineers follow different lines of reasoning to calculate the assessment, this is a usual result.
The engineer agreed with Mr. Vernon Dippel that some of the Dippel property would drain into the tile and not go through the catchbasin, but this was a small amount of the total area, and while he could have further refined the calculations, the change in assessment would be minimal and did not justify the expense. The Tribunal accepts the argument of the engineer in this regard.
There is a difference of opinion on how many acres of the Dippel property are affected by the work. Mr. Mannerow assessed 30 acres, and Mr. Dippel said he thought 10 acres. A review of the plan leads the Tribunal to believe the area is larger than 10 acres, and since no measurements were provided, the Tribunal decided not to interfere with the judgment of the engineer.
Decision and Reasons
After careful consideration of the evidence submitted and the submissions made by the parties, the Tribunal decided that:
The appeal of Mr. Dippel under Section 54 is dismissed.
It is ordered that there be no order as to costs, and all parties are responsible for their own costs.
The reason for this decision is that, in the opinion of the Tribunal, the engineer was consistent in the method used to calculate the assessments, and the Tribunal agrees with the engineer that the final result of the assessment is fair and reasonable.
Attention is drawn to Section 73 of the Act.
Dated at Chatsworth, Ontario, this 2nd day of October 1996.