Howick Number 11 Drain Extension (Re), 1996 ONAFRAAT 18

HOWICK NUMBER 11 DRAIN EXTENSION (RE)

Township of Wallace

V W. L. Scriven, agent for S. Barbarino

HOWICK NUMBER 11 DRAIN EXTENSION (RE), 1996 ONAFRAAT 18

Drainage Act

September 26, 1996

DATE OF DECISION:

October 18, 1996

1996 ONAFRAAT 18

HOWICK NUMBER 11 DRAIN EXTENSION

An appeal to the Ontario Drainage Tribunal under Section 54(1) of the Drainage Act by Mr. W. L. Scriven, agent for S. Barbarino from a decision of the Court of Revision dated June 24, 1996 with respect to the HOWICK NUMBER 11 DRAIN EXTENSION, TOWNSHIP OF WALLACE.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Wright, Vice-Chair; Mr. Russell Piper, member.

Appearances:

Mr. W. L. Scriven, for the appellant, S. Barbarino.

Mr. John Kuntze, P. Eng., on behalf of the respondent, The Corporation of the Township of Wallace.

DECISION OF THE TRIBUNAL

This appeal was heard in Gowanstown, Ontario on Thursday, September 26, 1996. Mr. Gordon Burns, Clerk of the Corporation of the Township of Wallace (the Township), performed the duties of the Clerk of the Tribunal.

Mr. W. L. Scriven, agent for S. Barbarino, appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act), stating that the assessment proposed against the lands owned by S. Barbarino for the proposed Howick Drain Number 11 Extension, is too high.

The Background

The Howick Drain Number 11 Extension was initiated by petition signed on behalf of the Township of Wallace by the Reeve asking for drainage of part of Lot 47, Concession 5, Wallace Township. This property is owned by the Township, and the Kurtzville arena is located on it. The area requiring drainage is the southeast corner of the Kurtzville Arena parking lot, which is periodically flooded due to the absence of a natural overland outlet for surface drainage.

This area is located within the watershed of Howick Drain 11. The head of Howick Drain 11 is presently located on the west side of the Lot 48-49 sideroad, which is to the north and west of the arena parking lot. The upstream end of Howick Drain 11 was constructed under a report of Fred A. Edgar dated February 6, 1928. From the side road west, the drain is a 10-inch-diameter tile. The catchbasin at the head end is a poured-in-place structure with a steel grate on the top that cannot be removed.

A private drain runs from the sideroad southeasterly across lots 47 and 48 (Barbarino), which is the appellant's property. This is a private drain that appears to consist of twin six-inch tiles. There is a culvert of undetermined size and condition under the Lot 48-49 sideroad carrying water from the sideroad ditch to the Howick Drain 11 head end catchbasin.

The Township constructed a catchbasin in the low point in the arena parking lot and installed a six-inch drain from the catchbasin north onto the Barbarino land, where a connection was made to the existing private drain. The connection was made with the consent of Mr. Scriven as agent for the owner of the Barbarino land. Over time, several repairs were made to the private tile on the Barbarino property by the Arena Board. The Board then decided to ask the Township to petition for a new drain to be constructed from the head of Howick Drain 11 southeasterly to connect to the drain constructed by the Arena Board.

The engineer's report dated September 30, 1992 proposes to construct:

1/ a new catchbasin on the west side of the sideroad;

2./ a 400 mm (16 inch) steel pipe across the sideroad;

3/ a 300 mm (12 inch) perforated corrugated plastic drain across lot 48 to the west side of the lane, that runs north and south through the Barbarino land, approximately along the lot line between lots 48 and 47;

4/ a 300 mm (12 inch) steel pipe under the lane with a new catchbasin on the east side of the lane to allow surface water from the upstream area access to the new tile outlet;

5/ a 200 mm (8 inch) diameter perforated corrugated plastic drain across Lot 47 to a catchbasin to be installed at the end of the 150mm (six inch) clay tile drain coming from the arena parking lot.

The total length of the proposed drain is 581 m (1906 ft.), including the incorporation length. The total estimated cost is $29,920. There are 36.2 hectares (89.4 acres) affected of which the appellant Barbarino owns 31.9 (79 acres).

The Issue

The issue before the Tribunal is:

Are the assessments as proposed in the September 30, 1992 engineer's report on the Howick Drain 11 Extension, appropriate?

The Evidence and the Findings

Mr. William Scriven told the Tribunal that he has been agent for the appellants (Barbarino) for a number of years. The property is rented to Rosendale Farms, a large cash crop operation. He said that the tenants were happy with the drainage on the property. He said that he was not opposed to drainage and is assessed for several drains on or near the affected properties. Mr. Scriven said that Mr. Williams from the Arena Board had called to see if they could connect the drain from the arena parking lot into the Barbarino's field tile. He had allowed this connection to be made, and it appeared to work for several years. He said he wondered why they had not considered the proper drainage of the parking lot before the arena was completed. He said he was not aware of the extent of the repairs that were done by the Arena Board, but he knew they had been on the property to make repairs.

Mr. Scriven said he has the following concerns with the proposed Howick Drain 11 Extension:

1/ The 31.9 hectares is tiled randomly. These tile work and there are no wet spots. Where is the benefit for this property?

2/ Since the arena is built on fill, in some places five feet of fill, does the Township have the right to petition to drain this area?

3/ Can the councillors who initiated the petition sit as members of the Court of Revision?

4/ Was there no consideration given to the proper drainage of the arena parking lot before the area was filled and the water directed onto the Barbarino property?

5/ Why would anyone spend $30,000 on 581 m of drain unless it was not their own money? An eight-inch tile would take the water away; a six-inch tile has worked for 15 years.

Mr. Scriven said that his main concern was with the process followed by the Township in arriving at this point.

The Tribunal pointed out that the only portion of Mr. Scriven's concerns that it could deal with at this time is the matter of assessments.

The Tribunal wishes to note that the persons eligible to sit on the Court of Revision are councillors or persons eligible to be elected to Council. In cases where the municipality itself is petitioning for a drainage work, the Tribunal feels that it would be preferable for the councillors not to sit as members of the Court of Revision. If non-councillors sit on the Court of Revision, the appellants should not have a perception of bias in the membership of the Court.

Mr. Scriven did not appeal under section 48 of the Act, stating that the benefits are not commensurate with the cost, and he did not press this issue in front of the Tribunal. Therefore, the Tribunal dealt only with the appeal on assessments.

Mr. John Kuntze, P. Eng. told the Tribunal that he was the engineer appointed by the municipality to prepare the report for the Howick Drain 11 Extension. He said that he calculated the assessment for the Barbarino property in the following manner:

1/ $2000.00 special benefit for an improved outlet direct into the Howick Drain 11. Mr. Kuntze said that at the present time the appellant's land cannot connect directly to Howick Drain 11 - a road crossing has to be constructed by agreement with the road authority to get an outlet to the drain. He assessed each of the appellant's lots a special benefit for having the ability to make a connection directly to the new outlet on the property.

2/ Lot 48 is assessed a benefit assessment of $5,000.00. This was calculated at $15/m for 326.5 m of 300mm drain.

3/ Lot 47 is assessed a benefit assessment of $2330. This was calculated at the rate of $10/m for 233 meters of 200mm drain.

4/ The lands upstream of the appellant are assessed a benefit assessment of $7,200.00 for an improved direct outlet.

5/ The balance of the estimated costs is charged as outlet assessment. For outlet assessment, residential lots were given a runoff factor of 2, agricultural land a factor of 1 and bush land a factor of 0.5. The land area was multiplied by the runoff factor to obtain the adjusted acres. Each property was charged a portion of the outlet cost based on its proportion of the adjusted acreage to the total acreage.

Mr. Scriven argued that the water problem was caused by the municipality filling in a low area and building the arena parking lot without regard to proper drainage of the lot. The water was directed to flow across the Barbarino lands. The Barbarino lands do not have a drainage problem and therefore should not pay such a high assessment. Mr. Scriven suggested that the Township should pay the cost of the drain, since it is their actions that caused the problem.

Mr. Lincoln Smith, a long-time resident of the area, told the Tribunal that this area was a natural low spot. He owns part of this low area and is adjacent to the arena property. He had filled his lot commencing in 1954 and built a sawmill on the property. At that time, the water flowed through the north-west corner of the arena lot and then north westerly through the Barbarino property. Since the arena was built up, the water now flows to the northeast, then through the tile to the north over the Barbarino lands. In response to questions, Mr. Smith said that the water still ends up in the same water run on the Barbarino property that it always flowed in, it just enters at a different spot.

The Tribunal examined the evidence. In the opinion of the Tribunal, the main issue is the fairness of assessing the agricultural acreage for such a large portion of the cost when the project was initiated by the municipality for the drainage problem at the parking lot of the arena. It appears that there were no options for alignment of the drain, other than the general alignment chosen by the engineer. All parties agreed that the built-up area was a naturally low area that had been filled by several owners until the only place left for the water to go was to the arena property. The Tribunal is satisfied that the project proposed is a reasonable technical solution to the problem. While the total cost of the project appears to be high, the final resulting outlet should solve the drainage problems of the urban area and provide a legal outlet for the affected agricultural lands.

The drainage engineer, in his evidence outlined his methodology and rationale for arriving at the assessments, and the appellant, while disagreeing, failed to point the Tribunal to errors or omissions by the engineer. The Tribunal found no fundamental unfairness in either the methodology used in calculating the assessments or the resulting assessments.

Decision and Reasons

After careful consideration of the evidence filed and the submissions made, the Tribunal decided to deny the appeal for the following reason:

In the opinion of the Tribunal, the appellant failed to bring forward persuasive evidence to convince the Tribunal that the assessments as proposed in the report are inappropriate.

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 Chatsworth, Ontario this 18^th^ day of October 1996.