Abraham Municipal Drain Improvement (Re), 1996 ONAFRAAT 21

ABRAHAM MUNICIPAL DRAIN IMPROVEMENT (RE) Township of Turnberry Abe Lewis, appellant. Charmian Hills, counsel to the appellant Mr. Lewis. Kevin Fitch, appellant. Elwood Fitch, appellant. Chris Hoskin, appellant. Murray Mulvey, appellant. Rick McPherson, appellant. J. Andrew McBride, P. Eng., on behalf of the respondent, the Township of Turnberry

ABRAHAM MUNICIPAL DRAIN IMPROVEMENT (RE), 1996 ONAFRAAT 21

Drainage Act

November 7, 1996

DATE OF DECISION:

November 21, 1996

1996 ONAFRAAT 21

ABRAHAM MUNICIPAL DRAIN IMPROVEMENT TOWNSHIP OF TURNBERRY

An Appeal to the Ontario Drainage Tribunal by Kevin Fitch, Larry Lawrence, Elwood Fitch, Abe Lewis, Murray Mulvey, Jim Renwick, Rick McPherson and Chris Hoskin under Section 54(1) of the Drainage Act from the decision of the Court of Revision and an appeal by Mr. Abe Lewis under Section 48 requesting a modification of the engineer's report on the ABRAHAM MUNICIPAL DRAIN IMPROVEMENT, TOWNSHIP OF TURNBERRY.

Before:

Mr. Vernon Spencer, Chair; Mr. Andrew Wright, Vice Chair; Mr. John Bacher, Member

Appearances:

Mr. Abe Lewis, appellant. Mrs. Charmian Hills, counsel to the appellant Mr. Lewis. Mr. Kevin Fitch, appellant. Mr. Elwood Fitch, appellant. Mr. Chris Hoskin, appellant. Mr. Murray Mulvey, appellant. Mr. Rick McPherson, appellant. Mr. J. Andrew McBride, P. Eng., on behalf of the respondent, the Township of Turnberry

DECISION OF THE TRIBUNAL

This appeal was heard in Bluevale, Ontario on November 7, 1996. Several ratepayers assessed in the March 1996 engineers report for the Abraham Municipal Drain Improvement 1996, Township of Turnberry (the Township) 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. Mr. Abe Lewis appealed to the Tribunal under Section 48 of the Act, requesting that the drain be modified by eliminating the berm on his property and rerouting the drain across his lands. Mrs. Dorothy Kelly, Clerk Treasurer of 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; the drainage works should be modified on grounds to be stated;

(b) the compensation or allowances provided by the engineer are inadequate or excessive;

(c) 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 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.

54(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.

54(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.

The Background

The Abraham Municipal Drain is located in Lots 1 and 2, Concession 11, which is generally in the northeast corner of the Township. This drain was constructed under Bylaw # 1 of 1925 pursuant to the report of Fred A. Edgar, Engineer. This report indicates that the affected portion of the Drain consists of an open drain, two to three feet in depth, with a 14-inch diameter tile installed in the ditch bottom. The portion of the Drain upstream of Lot 2 consists of an open drain and 8, 9, 10, or 12-inch diameter tile.

The Township records also indicate that the portion of this Drain downstream of the north side of Concession Road 10/11 was repaired and improved under By-law #10 of 1976 under a report by E. W. Shifflett, P. Eng.

The head of the drain is in Lot 7 Concession C from which it runs in a northerly direction across Lot 6 Concession C, then across the 10/11 Concession Road to Lot 5 Concession C, where it turns westerly running through lots 1, 2, 3 and 4 Concession 11, back across the 10/11 Concession Road to an outlet in the Armstrong Drain Extension in Lot 5 Concession 10.

The drain from the Armstrong Drain Extension to the north side of the 10/11 Concession Road crossing is a large tile drain (350mm at the road). From there the ditch has been filled in across Lots 4 and 3 Concession 11, by the landowners.

The 1925 tile drain appears to be sound and intact across Lots 4, 3 and partway across Lot 2. There is an area on Lot 2 and Lot 1 that floods.

In April 1994, the Township received a request for an improvement to the Abraham Municipal Drain signed by Mr. Eugene St. Louis, the owner of Lot 2, Concession 11. An on-site meeting was held on June 2, 1994, and two Preliminary Reports were prepared dated September 30, 1994 and February 7, 1996.

The affected watershed is approximately 198 hectares in area, of which 136 hectares are agricultural land. With the exception of one small rural residential property, all of the privately owned land within the drainage area is used for agricultural purposes, mainly the production of cash crops such as corn, grain, beans, and hay. A significant portion of bush exists in the drainage area and forms part of the Glennannan Wetland Complex. The upland hardwood portion of this Complex is approximately 15.9 hectares, and the lowland softwood area is approximately 42.4 hectares.

The following options for relieving the flooding problems on the lands of Mr. St. Louis were considered:

Install a large new drain that would be deeper and larger from the Concession 10/11 road crossing through Lots 1 and 2 to provide an adequate outlet for the upstream lands at a total estimated cost of $105,000.
Extend the new drain for a length of 1500 metres upstream of Lot 2 as concrete tile, large enough only for underdrainage purposes, estimated at $68,500.
Extend the new drain upstream of Lot 2 for a length of 1500 metres, using the largest concrete tile possible estimated at $94,000.
Extend the new drain for a length of 1500 metres upstream of Lot 2, with the largest plastic tile possible estimated at $50,000.
From the on-site meeting with contractors in January 1994, a cost of $10,000 was estimated to construct a berm from the Sideroad westerly into Lot 2, using material imported to the site from Lot 1.
A berm-type of "detention option" was estimated at $39,000.

The report recommends:

the use of the existing 350 mm diameter tile at the concession road 10/11 for an outlet,
incorporation of a detention facility created by a low berm to prevent most of the flow from the upper watershed crossing the cleared land in Lots 1 and 2 Concession 11, and store the water in the low bush lot on Lot 1 and to a lesser degree on Lot 2. This berm would extend from Sideroad C to the line between Lots 1 and 2 and around the upstream end of the sound part of the tile that was installed in 1925.
An open ditch is to be constructed on the upstream side of the berm to collect the water from the low bush lot area and direct it into the tile outlet.

Mr. Lewis objects to the construction of the berm and the use of the woodlot as a water storage area.

The Issues

There are two issues before the Tribunal.

1/ Are the assessments in the engineer's report of March 1996 as confirmed by the Court of Revision, appropriate?

2/ Should the engineer's report be modified by the elimination of the berm and open ditch and installation of a ditch or tile across Lot I from C line to the existing tile that was installed in 1925?

The Evidence and the Findings

At the beginning of the hearing, Mr. Andrew McBride, P. Eng., the engineer who prepared the March 1996 report and spokesperson for the Township, told the Tribunal that only two of the appellants had filed appeals to the Court of Revision and asked the Tribunal to indicate which of the appeals would be heard. After hearing from those present, the Tribunal added all ratepayers assessed for the proposed Abraham Municipal Drain Improvement 1996 as parties to the hearing.

Mr. McBride outlined the history of the project, the alternatives considered and the rationale for the assessments in his report. Mrs. Hills then introduced Mr. Williams as a witness for Mr. Lewis.

Mr. Williams told the Tribunal that he is a forester with expertise on the effects of, urbanization on forest lands. Mr. Williams told the Tribunal that any change in soil water will impact on tree health. If the roots are covered with water for a period of time, then the trees die. If the water level drops, then the health of the trees will improve, but if it is too much of a drop, then the trees can get unstable. He said that, in his opinion, the current forest has developed over 30 or 50 years according to the water level in the drain. Over the past 50 years, there has been a deterioration in the rate of drainage, the water table came up, some trees began to die, the landowners harvested what trees they could while they still had value, and the existing trees adapted to the conditions. He said that, in his opinion, anything that forces longer inundation of the forested area will have an effect on tree health.

Mr. Williams said that the proposal would have a one-in-twenty-five-year storm detained for a period of five days, but shorter duration storms will also be detained. He said any saturation of the soil for a period different from what is currently experienced will have an effect on the forest.

According to Mr. Williams, a lowering of the water table in the area, up to one meter, will improve forest health in the area. He also said that, assuming the current condition was the desirable condition, any change in the water regime will have an effect on the current forest.

Mr. Abe Lewis, owner of Lot 1 Concession 11, told the Tribunal that he does not want to have anything done that will adversely affect his bush lot. He said that he preferred to have an open ditch across his lands because he knows what a ditch will do. He is not concerned about the type of construction on the other owners’ lands; they should be provided with whatever structure they prefer. Mr. Lewis said that he would like to eliminate the berm on his property, install a tile (or a ditch) running straight across his land from the C line to the existing 1925 tile on the St. Louis property. Mr. Lewis said that this proposal would provide an outlet for the lands upstream of the C line, as well as protect his bush block.

Mr. McBride introduced Mr. Marvin Smith, a forester formerly employed for 20 years in the Wingham district by the Ministry of Natural Resources. Mr. Smith told the Tribunal that, in his opinion, the proposed work would not have an adverse effect on the Lewis bush lot. He said that, in his opinion, when the proposed work was done, the bush lot would not flood for as long a duration as it currently does. He said that because of the climate of the area and the normal timing of the flooding, ponding in the bush should not affect tree health. He confirmed the opinion of Mr. Williams that the trees could tolerate a fluctuating water table as long as the fluctuations were not too extreme.

Mr. McBride told the Tribunal that he had experienced difficulty in trying to determine what Mr. Lewis wanted on his lands. He said that the proposal for a tile or ditch, without the berm storage of high flows, would not solve the problem. He said that the existing tile installed in 1925 was not deep enough or large enough to carry the flows without storage to meter the water into the tile. He said the owners of Lots 2, 3 and 4 did not want the open ditch reopened across their fields. The alternative of as large a tile drain as possible from the existing 350 mm tile at the Concession 10/11 road to Mr. St. Louis' property had been rejected by the owners as too costly. Mr. McBride told the Tribunal that he had concerns about the longevity of the 1925 tile; however, considering the wishes of the owners for a low-cost alternative, he had recommended using this tile/berm storage combination.

Mr. St. Louis told the Tribunal that he was prepared to allow an area of about seven acres of his land to be used as a storage pond for the water. He was emphatic that he wanted a project to proceed. He told the Tribunal that he preferred the construction of a large tile drain across his land and Lots 3 and 4, but was concerned about having to pay the cost in one payment. He suggested that if the Township would charge the cost over a five-year time period, his preference would be to abandon the current proposal and construct a new large, deeper tile drain.

Mr. Murray Mulvey, owner of Lot 5 Concession C, upstream of the Lewis property, told the Tribunal that in the last 15 years or so, the water has built up in the swamp. He said that the trees have died off. He blamed this increase in water level on the road being built higher so the water cannot go across in the spring. Mr. Mulvey said this was about the same time as the ditch on the St. Louis property was filled in by the owner prior to Mr. St. Louis. Mr. Mulvey told the Tribunal that his land drops quickly from the good land to the lower land, and so he has not had to abandon any of his worked land as a result of the increased water levels. Mr. Mulvey said that he would like to see Mr. St. Louis and Mr. Lewis both satisfied with the least possible expense. He also said that he was not in favour of using the road as a dam and detaining the water on his land.

Mr. Rick McPherson, owner of Lot 3 Concession 11, told the Tribunal that a big tile should be installed now, and the problem would be solved. He said that although it is a lot of money, the owners would not have to deal with this problem again for a long time. Mr. McPherson said that he was assessed at about $19,000 in the original estimate of the large tile. He is prepared to pay an assessment in this order of cost.

Mr. Chris Hoskin, owner of Lot 4 Concession 11, told the Tribunal that he preferred to install a big tile rather than the current proposal. He said he knew his assessment would be large, and it would help if the Township billed the cost over a few years.

At the conclusion of the evidence, Mr. McBride told the Tribunal that it appeared that the owners had changed their minds about the installation of a large tile drain from the Concession 10/11 road upstream onto the property of Mr. St. Louis. Based on the evidence of the owners at the hearing, Mr. McBride requested that the Tribunal refer the report back to the engineer for consideation of installation of a large diameter tile.

The Tribunal carefully examined the evidence. Since none of the parties raised any questions on the assessments in the report, all assessment appeals are dismissed.

Most of the ratepayers affected by the work were present at the hearing. Virtually everyone who spoke was in favour of installing the large tile drain rather than using the detention storage in Mr. Lewis' bush and the old existing tile.

In the opinion of the Tribunal, the current proposal is a cost-sensitive and environmentally sensitive solution, but none of the ratepayers complained about the cost of the large drain. The engineer expressed concern about future repairs to the existing old tile. The Tribunal shares these concerns and can visualize a significant expenditure in the next few years to replace the 70-year-old tile. The Tribunal concludes that a new, larger, deeper tile drain is the preferred engineering solution to this problem.

The Tribunal was influenced by the testimony of Mr. McPherson. He is assessed for $2,800 in the current proposal and $19,000 in the previous estimate for a new large-diameter tile, and he spoke in favour of the new tile.

Both woodlot experts basically said, if the drain was maintained properly, it would improve the woodlot. The historic lack of maintenance of this drain causes the Tribunal some concern.

No matter what solution is used, the drain should be maintained on a routine basis to control the impact on the Lewis bush lot.

The Tribunal has some concerns that, if the report is referred back to the engineer, some of the landowners may discover the cost of the large tile has risen beyond their expectations. The decision must take this possibility into account.

Decision and Reasons

After consideration of the evidence submitted at the hearing, the Tribunal decided to confirm the existing report. However, the Council of the Township is not to proceed to pass by-law No. 18/1996 and construct the work until after the Council has:

1/ Received a report detailing the construction of a large tile from the existing 350 mm tile at the Concession 10/11 road crossing at lot 4 Concession 11 to the St. Louis property as well as a detention pond on the St. Louis property and upstream drainage connected to the large tile utilizing this pond. The design of the drain on the Lewis property is to have due regard for the impact on wetlands. An outlet is to be provided for the Mulvey property at the upstream side of the township road. Bearing in mind that both forestry experts indicated that the species could tolerate as much as 1 meter of unsaturated soil, the drain on the Lewis property is to be an open ditch that flows into the detention pond and from that to the new tile drain on the St. Louis property, and

2/ Conducted a meeting to consider this report.

After consideration of this report, the Council is to decide which report to implement. The reasons for this decision are:

1/ None of the parties raised any concerns about the assessments in the report, therefore all assessment appeals were dismissed.

2/ In the opinion of the Tribunal, the proposed solution is a cost-sensitive, environmentally sensitive solution and can be proceeded with; however, based on the evidence at the hearing, the ratepayers may want to have another opportunity to review the option of a large tile outlet. The Tribunal wants to provide that opportunity while at the same time bringing a solution to the problem.

Order of the Tribunal

The Tribunal orders that:

1/ All appeals against the assessments contained in the March 1996 engineer's report on Abraham Municipal Drain Improvement 1996 are dismissed.

2/ The appeal of Mr. Abe Lewis under Section 48 is dismissed.

3/ The engineer is to prepare and file the report directed by the Tribunal on or before January 31, 1997.

4/ If the Council is unable to decide which of the two reports to implement or does not proceed with one or the other of them by April 30, 1997, then the Council is to proceed with the work specified in the report that was appealed to the Tribunal.

5/ The cost of both reports is to be included in the option that is constructed.

6/ There is 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 21st day of November 1996.