May Municipal Drain (Re), 1996 ONAFRAAT 3

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

MAY MUNICIPAL DRAIN (RE) Township of Murray Georgina May Rosalind May Loffredo Jasper Keizer Arie Voskamp Andy Klemencic Stan Klemencic and 818743 Ontario Ltd. Pat and Ann Hutchinson

MAY MUNICIPAL DRAIN (RE), 1996 ONAFRAAT 03

STATUTE:

Drainage Act

HEARING:

January 16, 1996

DATE OF DECISION:

January 31, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 03

MAY MUNICIPAL DRAIN

TOWNSHIP OF MURRAY

IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal concerning the MAY MUNICIPAL DRAIN, TOWNSHIP OF MURRAY from the September 11, 1995 decision of the Court of Revision and the Report of the Engineer under the following:

a) Section 54 of the Drainage Act by E. Georgina May and Rosalind May Loffredo

b) Section 54 and 48 of the Drainage Act by Jasper Keizer, Andy Peter Klemencic, Stan Klemencic and 818743 Ontario Ltd.

c) Sections 54, 48, 65 (5) of the Drainage Act by Pat and Ann Hutchinson

d) Sections 48 and 65 (5) of the Drainage Act by Arie (Harry) M. Voskamp

e) Section 48 of the Drainage Act by Mike Voskamp

Before:

Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Stewart Hart, Member.

Appearances:

Mr. Ed Dries, on behalf of the appellants, Georgina May and Rosalind May Loffredo;

Mr. Jasper Keizer, appellant;

Mr. Brian Voskamp, on behalf of the appellant, Arie Voskamp;

Mr. Mark Klemencic, on behalf of the appellants, Andy Klemencic, Stan Klemencic and 818743 Ontario Ltd.;

Ms. T. Hutchinson, on behalf of the appellants, Pat and Ann Hutchinson;

Mr. John Spriet, on behalf of the respondent, the Township of Murray.

DECISION OF THE TRIBUNAL

This appeal was heard in the Township of Murray (the Township) municipal offices on January 16, 1996. Mr. Ken Rose, Chief Administrative Officer of the Township, was the Clerk of the Tribunal.

Several landowners appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the June 25, 1995 report of the engineer for the May Municipal Drain.

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.

(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 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.

(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.

(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

Mr. May has lived on the north part of Lot 14, Concession B since at least 1911. During this time, the west side of the property has been used for pasture land. Owners in the upper watershed have improved their lands by the installation of tile drains and surface water swales. These drains outlet into the roadside ditches. In 1992, Mr. May filed a petition with the Township asking that his land be drained by a drainage works under the Act. The Township did not act on the petition and the petitioner asked for a hearing before the Tribunal. Later in 1992, the owners of the May property undertook to construct a dyke on the north and east sides of the property. The result was flooding of the Powerline Road. The Township sought and obtained a Court Order requiring the dyke be breached to allow the drainage of the road for public safety. The Tribunal held a hearing and instructed the Township to accept the petition and proceed under the Act. An engineer was appointed by the Township. A report dated June 25, 1995 was prepared and filed with the Township. This report has been appealed to the Tribunal under Section 48 and 54 of the Drainage Act.

The report was prepared pursuant to Section 4 of the Drainage Act. The total watershed area contains approximately 120 hectares. The area requiring drainage, and subject to flooding from upstream lands, is described as the north part of Lot 14, Concession B and consists of approximately 25 hectares.

A site meeting with respect to the petition was held on October 21, 1993 and many of the owners of lands in the drainage area were present. The drainage area upstream of the May property consists of approximately 70 hectares and is owned by approximately 15 different owners with acreage large and small. The agricultural properties have either tile drains or swale ditches running through them. These outlet water directly on the May property by means of surface water culverts under the Hennessey and Powerline Roads.

When drainage flows from upstream lands onto the May property, they cause flooding in the old pasture land and the woodland to the south. At times of low flow, the excess water flows south out of the May property and into the Struss property and eventually to Hutchinson Creek. In the spring of the year, with the snowpack still in, the overflow water from the May and Struss woodlots follows an overflow route through the Keizer and Hutchinson properties. The Hutchinson Creek elevation is approximately 9 meters lower than the May land adjacent to the Powerline Road.

In past years, Mr. May periodically cleaned out the "40-rod ditch" which extended south from the Powerline Road into the old pasture field near the work land in his property. Forty rods is a distance of 200 meters. Over this distance, there is an elevation drop of approximately 1.2 meters or 4 feet. This is the difference between the existing south road ditch elevation and the end point of the 40-rod ditch. There is a further elevation drop of 0.9 meters or 3 feet between the end of the 40-rod ditch and the old railway crossing in the May property which is an approximate distance of 330 meters or 1,100 feet. There is a large area of severe flooding in the May property just north of the old railway.

The proposed solution to the drainage problem is to construct a new shallow open drain within the limits of the unopened road allowance south of the Powerline Road. At the Powerline Road, the road ditch would be improved for approximately 160 meters to the east and collect water which flows through three existing culverts under the roadway.

The proposed work consists of approximately 1,623 lineal meters of open drain construction including quarry stone rip-rap erosion protection, silt fence, bank seeding, construction of an entrance culvert and sediment basins.

The Issues

The issues before the Tribunal are:

1. Should the assessment schedule shown in the report be modified?

2. Should the design of the drain be modified?

The Evidence and the Findings

Mr. John Spriet, P. Eng., told the Tribunal that he was appointed by the Township to prepare a report in response to the petition of Mr. May. He said that alternative solutions were considered. One alternative was to clean out the "40-rod ditch" on the May property. In order to take the water to a sufficient outlet, this ditch had to be extended downstream through the May and Struss woodlots. A significant amount of woodlot would be destroyed. The engineer reported, under Section 40 of the Act, that this route was impractical due to cost and destruction of forest.

A second alternative was to construct a drain on the May property along the perimeter of the May property, along the south side of Powerline Road and the east side of the unopened Hennessey Road allowance, then across the road through the Keizer and Hutchinson properties to the Hutchinson Creek.

A third alternative was to construct the drain on the road allowance on the south side of Powerline Road and then down the unopened Hennessey Road allowance to Hutchinson Creek.

The engineer has recommended the third alternative be constructed based on his estimate of the cost.

All of the appellants, except the owners of the May property, objected to the drain being constructed. Most of the appellants believe that they have the right to deposit water from their lands into the roadside ditches without incurring any obligations to ensure the water is taken to a sufficient outlet. Ms. T. Hutchinson, speaking on behalf of her parents, urged the Tribunal to require more information to prove that Hutchinson Creek was a sufficient outlet for this drain. When the Tribunal asked the appellants for information on their perception of the benefits of the project, they all indicated they could see NO benefit to the project.

The Tribunal notes that the engineer fulfilled his responsibility under Section 40 to report that the first option considered was impractical. The engineer is aware of his Section 40 obligations and, since he has filed a report recommending a drain be constructed, the Tribunal concludes that the engineer is satisfied that the benefits are commensurate with the costs. The appellants did not provide any supporting data, other than their personal opinion, on the project benefits. Therefore, the Tribunal concludes that the project should proceed.

Mr. Ed Dries, P. Eng., speaking for the owners of the May property, said that they support the alignment of the drain as proposed by the engineer. The remaining appellants offered no arguments for an alternative alignment. The Tribunal notes that, the main reason that the proposed alignment on the road allowance is less expensive than the alignment on the May property parallel to the road allowance is the fact that the engineer made no allowances for the value of the land used for the construction of the drain on the road allowance.

In the opinion of the Tribunal, an allowance should be provided for the following reason. If the road authority wishes, at some time in the future to move the drain off the road allowance, then the road authority under Section 77(2) pays the cost. At that time, the road authority will have to pay for the land upon which the drain is located. In this case, it appears to the Tribunal that the main difference between the proposed route and the perimeter drain on the May property is the allowances provided in the perimeter drain option. Without these allowances, the perimeter drain is less costly than the proposal. However, in this case, the Township has not appealed. Therefore, the Tribunal will not interfere with the allowances in the report.

The Tribunal notes that the alignment on the Powerline Road allowance and the unopened Hennessey Road allowance does collect the water from the watershed and deliver it to an outlet. The Tribunal believes that there will be a benefit for the road authority if the road is opened. Therefore, the Tribunal concludes that the project, as proposed, should proceed as recommended in the report.

The Tribunal then turned to the matter of assessments.

Mr. Spriet told the Tribunal that he treated this drain as one block of work costing an estimated $29,000. Of this cost, $16,800 is for administration.

Mr. Spriet said that he broke the watershed about 600 meters upstream of Hutchinson Creek at the height of land on the unopened road allowance. He assessed a "token" benefit assessment of $500 each against the Hutchinson and Struss lands which abut this 600-meter stretch. He reasoned that he was taking the water down a course where it would not normally flow and therefore the abutting lands should be assessed a minimal amount.

He said that he assessed the May property a benefit assessment for removing the surface and subsurface water that would have found its way across the property if the drain was not built. He set the assessment at $7,800.

Mr. Spriet said that, because the Keizer property south of the railroad slopes away from the drain but has some flooding, he assessed it $500 benefit for better control of surface water. He assessed $100 to the Keizer property (the railroad) for better control of surface water. He assessed $1,100 as a benefit to the Keizer property north of the railway as it has a swale with a direct outlet into the drain.

The Hennessey Road has 1,465 meters constructed along the road allowance. There are four places where the water crosses the road. He fixed the benefit assessment against Hennessey Road at $1,700. He charged no benefit assessment for the Hennessey Road north of the Powerline Road.

On the Powerline Road, there is a new access culvert for the May property and the excavated materials must be hauled away and disposed of at an extra cost. Mr. Spriet said he calculated the benefit assessment to the Powerline Road at $1,500.

Mr. Spriet said that the outlet assessment was divided amongst all of the properties in the watershed, upstream of the 600-meter break, on the basis of equivalent acres.

Mr. Dries argued that the owners of the May property were over-assessed. He pointed out that the amount of land on the west side of the unopened road allowance was about the same size as the May lands on the east side. He said that both properties are similar in potential use, but the west side of the road is assessed a benefit of $1,700 and the east side a benefit of $7,800. He said that while the owners of the May property accept that some charge should be levied for cutting off the water that would have flowed over their property, the discrepancy in benefit assessment is excessive.

The assessment arguments of the remaining appellants can be summed up by saying that they felt they should not have to pay any assessment. These appellants told the Tribunal that the custom in this area is that each person looks after their own drainage by taking the water to a creek or the road ditch.

The Tribunal recognizes that local customs do develop over a period of time. However, these customs may not fully take into account all of the legal requirements. It is the understanding of the Tribunal that once water has been collected - as it has in this case by swales, tiles and roadside ditches, the landowner is required to take that water to a sufficient outlet. This requirement is recognized in the Act. In the opinion of the Tribunal, the appellants are properly charged an assessment under the Act. The question remains as to how much the assessment should be.

The Tribunal calculated the cost of the work in front of the Hutchinson and Struss property to be about $3,000. This work is about one quarter of the work and so should be assigned one-quarter of the overhead or $4,000. In the opinion of the Tribunal, the benefit assessment for this area should be 30% of the cost of the work or about $2,100. Since the properties are similar in nature, the Tribunal feels the benefit assessment on the Hutchinson and Struss properties should be increased to $1,000 each.

The Tribunal accepts the arguments of Mr. Dries that there is too great a difference in the benefit assessments on the properties on the west side of the unopened Hennessey Road allowance and the east side. Mr. Dries accepted that the May property should have a higher benefit assessed to it than the properties across the road because the May property also fronts along the drain on Powerline Road. The Tribunal feels that the benefit assessment on the May property should be reduced by $1,000 and the benefit assessment on the 30-183-05 (J. Keizer), 30-183-06 (J. Keizer Associates Limited) and 30-183 (M. Keizer) should be increased by $1,000 in proportion to the benefit assessments as shown in the report.

The Tribunal feels there should be a special benefit assessment against the May property of $3,000. In the opinion of the Tribunal, the evidence shows that there was excessive consultation and demands on the engineer by the owners of the May property. In the opinion of the Tribunal, $3,000 of this increase in administration cost should be charged to the May property.

The Tribunal examined the outlet assessments in the report. The Tribunal could find no error in the methodology used by the engineer in calculating the outlet assessment and therefore confirms these assessments. Similarly, the Tribunal confirms Schedule C, Assessment for Maintenance.

There are additional costs to this project since the engineer filed his June 25, 1995 report. The Tribunal has increased the total benefit assessments by $4,000. The Tribunal decided to increase the total of the assessment schedule from $29,900, as shown in the report, to $33,900. The actual cost of the project is to be prorated to this total assessment.

In response to questions from Mr. Dries, Mr. Spriet agreed that there are three areas of the report that require clarification.

1. Note 7 on the profile states that the excavated materials are to be levelled on the east side of the drain from station 0+020 to Station 1+383, but should read Station 0+020 to Station 1+217.

2. The specifications include a drawing for a low-flow crossing, but no low-flow crossing is to be constructed.

3. The specification for a typical farm culvert specifies sacked concrete headwalls, but the May lane culvert is not to have headwalls. The engineer provided for extra length on the culvert instead of headwalls.

Decision and Reasons

After carefully considering all of the evidence submitted and submissions made, the Tribunal decided to deny the appeals made under Section 48 and to adjust the benefit assessments in the report. The reasons for this decision are:

1. In the opinion of the Tribunal, no persuasive arguments were presented that the benefits of the proposed work were not commensurate with the cost or that the works should be modified.

2. In the opinion of the Tribunal, the engineer did not charge a high enough portion of the work as benefit assessment.

ORDER OF THE TRIBUNAL

1. The appeals under Section 48 of the Drainage by J. Kasper Keizer, Andy Klemencic, Stan Klemencic, 818743 Ontario Ltd., Pat and Ann Hutchinson, Arie Voskamp and Mike Voskamp are denied.

2. The benefit assessment against N. & D. Struss, Roll No. 30-197-01 is increased from $500.00 to $1,000.00.

3. The benefit assessment against P. & A. Hutchinson, Roll No. 30-198 is increased from $500.00 to $1,000.00.

4. The benefit assessment against J. Keizer, Roll No. 30-183-05 is increased from $500.00 to $794.00.

5. The benefit assessment against J. Keizer Associates Ltd., Roll No. 30-183-06 is increased from $100.00 to $159.00.

6. The benefit assessment against M. Keizer, Roll No. 30-183 is increased from $1,100.00 to $1,747.00.

7. The benefit assessment against H. May, Roll No. 30-182 is decreased from $7,800.00 to $6,800.00.

8. A special benefit assessment of $3,000.00 is assessed against the property of H. May, Roll No. 30-182.

9. The report of the engineer is modified by changing Note 7 on the plan to read that the excavated materials are to be levelled on the east side of the drain from Station 0+020 to Station 1+217, not Station 1+383.

10. The report of the engineer is clarified by adding the following clause:

"No low-flow crossings are required in the work specified in the report. The lane culvert for the access from Powerline Road to the May property does not have endwalls. The longer pipe required to be installed as part of this project offsets the requirement for sack concrete headwalls specified on drawing Number 2 - Typical Farm Culvert."

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 31st day of January 1996.