Sheahan Drain (Re), 1996 ONAFRAAT 6

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

SHEAHAN DRAIN (RE) Township of South-West Oxford Ivan Hammond

SHEAHAN DRAIN (RE), 1996 ONAFRAAT 06

STATUTE:

Drainage Act

HEARING:

March 19, 1996

DATE OF DECISION:

March 28, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 06

SHEAHAN MUNICIPAL DRAIN TOWNSHIP OF SOUTH-WEST OXFORD

IN THE MATTER OF:

Appeals to the Ontario Drainage Tribunal by Mr. Ivan Hammond concerning the SHEAHAN MUNICIPAL DRAIN, TOWNSHIP OF SOUTH-WEST OXFORD:

(a) under Section 54(1) of the Drainage Act from the decision of the Court of Revision held on December 5, 1995 and

(b) under Section 48(1) of the Drainage Act on the grounds that the drainage works, set out in the engineer's report dated August 31, 1995, should be modified.

Before:

Mr. Herb Todgham, Vice-Chair; Mr. Andrew Osyany, Vice-Chair; Mr. Russell Piper, Member.

Appearances:

Mr. Ivan Hammond, appellant.

Mr. John Kuntze, P. Eng., on behalf of the respondent the Township of South-West Oxford.

DECISION OF THE TRIBUNAL

This appeal was heard in Dereham Centre, Ontario on March 19, 1996. Irma Priester, Deputy Clerk-Treasurer, Township of South-West Oxford (the Township) performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).

Mr. Ivan Hammond appealed to the Tribunal under Section 48 and Section 54 of the Drainage Act (the Act), stating that his assessment was too high and that the drainage works should be modified.

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.

Section 48 (1) 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.

At the outset of the hearing the Tribunal ordered that, in accordance with Section 51(2) of the Drainage Act, all owners of property within the watershed are to be made parties to the appeal.

The Background

The Sheahan Drain was constructed as an award drain in 1889 and 1891. It was incorporated under the Act in 1949, and part of the drain in the Township of Norwich was repaired under report in 1968.

The Sheahan Drain 1995 report was prepared pursuant to Sections 4 and 8 of the Act. The Township accepted a petition for drainage from the owner of Lot 2, Concession 5. The objective of the report is to provide improved drainage for parts of Lots 1 to 3, Concession 5 in the Township of South-West Oxford and part of Lot 28, Concession 5 of Norwich Township (Norwich).

The proposed drain commences at an outlet into the Cranberry Marsh Drain in the south part of Lot 28, Concession 5 in Norwich, then runs generally in a northwesterly direction crossing Lot 28, Concession 5 in Norwich, then across the road dividing the Townships of Norwich and South-West Oxford and continues across Lot 1, Concession 5, terminating at the boundary between Lots 1 and 2 in the Township of South-West Oxford. The new drain follows the route of the existing Sheahan Drain. The new drain would completely replace the old drain on the above lots, except for approximately the downstream 260m, where the new drain will act as a helper to the existing drain. The old drain across Lot 2 will remain as it exists.

The total length of closed drain construction is 1131 metres. The total estimated cost of the work is $65,600. The total drainage area affected is 93.1 hectares (230 acres).

Konstanty Hamulecki, representing Sunrise Equipment Auctions Inc. (Sunrise), owner of N Pt Lots 2 & 3, Con. 5, Roll No. 010-030-125 & 127, South-West Oxford, signed the petition requesting improvements to the existing drain. About 3 years ago, the property was systematically tile drained with approximately 70 acres going to the Sheahan Drain. This includes both the watershed parts for Lots 2 and 3. Mr. Hamulecki indicated that they are having considerable drainage problems with flooding and crop loss, especially on Lot 2.

In this report, for purposes of calculating assessments against the individual properties, the drain is divided into individual lengths for each of the properties or road allowances that are crossed. The estimated cost for each of these lengths is then determined. The first step in the assessment calculation is then to apply benefit assessments to the affected lands and roads in each of the drain lengths identified. Next the special assessments are calculated and applied to the appropriate length. After deducting the total benefit and special assessments from the unit length cost, the balance of the cost is then assessed as outlet liability on a per-hectare basis to all lands and roads in the watershed. The hectares affected are adjusted prior to calculating the outlet liability. The basis for this adjustment is 1 hectare of cleared agricultural land. Areas which generate greater runoff, such as gravel roads, are increased by a factor of 2.5, and those which generate less runoff, such as woodlots, are reduced by a factor of 0.5.

The benefit assessments in the report are as follows:

L. & E. Miles (010-030-124) - $5,500

• $15 per metre for improved control of surface water - $3,000
• $10 per metre for increased cost for sealed drain - $2,000
• $500 for improved direct outlet

Sunrise Equipment Auctions Inc. (010-030-125 & 127) - $6,000

• $6,000 for improved direct outlet

G. & L. Hammond (010-030-138) - $5,300

• $15 per metre for improved control of surface water - $2,200
• $10 per metre for increased cost for sealed drain - $1,500
• $10 per metre for improved control of surface water where tile is on Ypma - $1,100
• $500 for improved direct outlet

Ypma Farms Ltd. (010-030-138) - $8,200

• $25 per metre ($15/m where tile is parallel to Hammond) for improved surface & subsurface drainage - $7,200
• $1,000 for improved direct outlet

Townline Road - $2,000

• for improved control of surface & subsurface drainage and improved direct outlet

R. Learn (030-040-058 - Norwich) - $8,100

• $25 per metre for improved surface & subsurface drainage

The Issue

There are two issues before the Tribunal.

1. Is the property of Ivan Hammond assessed too high?

2. Should the drain as proposed be modified by moving the location of the drain in the Hammond property and saving the existing tile and by relocating the catchbasin on the Hammond property?

The Evidence and the Findings

At the outset of the hearing, Mr. Hammond told the Tribunal that he had the following complaints with the report:

1. He is assessed too high for a bush lot.

2. The watershed boundary is incorrect, and a larger area should be assessed.

3. He wanted to save the existing 10-inch drain through his bush.

4. He wanted to move the drain in the bush so it is straight and on the right side of the swale in the bush.

5. The catchbasin at Station 710 should be moved and relocated on the existing 10-inch tile.

At the conclusion of the evidence Mr. Hammond told the Tribunal that all of his concerns, except that of assessment, had been dealt with to his satisfaction. The Tribunal acknowledges that Mr. Hammond effectively abandoned his appeal under Section 48(1) because the issues were resolved, and no recital of the evidence or discussion is required in the decision.

The Tribunal then turned to the issue of assessment. Since Mr. Hammond's concern about the watershed boundary was settled during the hearing, the Tribunal accepted that the watershed boundary, as determined by the engineer, is correct.

Mr. John Kuntze, P. Eng., the engineer appointed by the Township to prepare the report, told the Tribunal that he had proposed to install a standard agricultural concrete tile drain through the Hammond and Miles bush lots. He said that this required clearing a strip 100 feet wide to prevent entry of tree roots into the drain. Mr. Hammond objected to clearing such a wide strip and requested sealed-joint pipe be installed to permit a narrower clearing width. Mr. Kuntze said that he has provided for the installation of a sealed joint corrugated pipe with a smooth inside wall (Big 'O' Boss 2000) through the Miles and Hammond bush lots. Most of the increase in cost of this proposal, above the cost of a standard concrete drain, Mr. Kuntze assessed against the two bush lots prorated on the length of drain in each bush.

Mr. Kuntze told the Tribunal that he assessed 50% of the cost of tile installation in open agricultural land as a benefit assessment to the adjacent lands for improved surface and sub-surface drainage. He established this assessment at $25/m of drain. He reduced this benefit to $15/m through the bush lots. He also assessed a benefit assessment to each parcel for improved direct outlet. The balance of the assessment he charged to outlet based on the equivalent acreage of the various lots.

Mr. Kuntze said that where the drain is relocated from the Hammond property onto the Ypma property adjacent to the bush, he split the $25/m between Ypma ($15) and Hammond ($10).

He also assessed the Hammond property $500 for having an improved direct outlet. Sunrise Equipment Auctions Inc. (Sunrise) is assessed $6,000 for improved direct outlet.

In the opinion of the Tribunal, Sunrise is underassessed for benefit. The Tribunal feels that the benefit assessment of Sunrise should be increased by $4,000 to a total of $10,000.00. In the opinion of the Tribunal, this property is the major beneficiary of the proposed work and ought to pay a higher portion of the cost of providing it with a direct outlet for drainage waters.

In the opinion of the Tribunal, the placement of a sealed joint pipe through the bush lots is a substantial benefit to the drain through reduced maintenance costs as well as a benefit to the wood lots through reduced clearing widths. Therefore, the drain should pay, as a benefit assessment, a larger part of the increased cost of this part of the work. The Tribunal redistributes $2,000 of the increased benefit assessment to Sunrise to reduce the benefit assessment to the Miles property by $1,180 and the Hammond property by $820. This redistribution is a pro-rated reduction to the benefit assessment according to the length of drain on these properties. The remaining $2,000 of the increased benefit assessment to Sunrise is to be redistributed by reducing the benefit assessment to all properties assessed benefit, except Sunrise, on a pro rata basis and is to be applied to the Hammond and Miles properties after the reductions previously ordered.

The schedule of assessment for future maintenance is to be adjusted to account for these changes, by the engineer, using the same principles as he used in the original report.

During the hearing, the Tribunal asked about the status of the existing tile drain. Mr Kuntze assured the Tribunal that the report abandoned the existing drain from a point 260 m upstream of the outlet to the line between lots 1 and 2. It took some time to find the section of the report where this paragraph was located. Since the issue of the status of the existing drain will come up when maintenance work is required, the Tribunal recommends to the engineers that they place abandonment recommendations in the maintenance section of the report so their instructions can be easily found in the future.

Decision and Reasons

After careful examination of the evidence and consideration of the submissions made the Tribunal decided that:

1. The section 48(1) appeal of Mr. Hammond was withdrawn by the appellant during the hearing.

2. The property of Mr. Hammond was assessed too high.

3. The property of Mr. Miles was assessed too high.

4. The property of Sunrise is underassessed for benefit relative to all other lands and the road in the watershed and especially relative to the Hammond and Miles properties.

The reasons for these decisions are as follows:

In the Engineer's report, the total benefit assessment for the drain is $35,100. Of this, $5,500 is assessed against Mr. Miles, $5,300 against Mr. Hammond and only $6,000 against Sunrise. Regardless of the various rates per metre that were applied in arriving at the benefit assessment, the Tribunal is of the opinion that, in view of Sunrise's substantial need for drainage, the relative benefit to Sunrise from the proposed work is a much greater proportion of the cost than that indicated by the benefit assessment in the engineer's report. In the opinion of the Tribunal, Sunrise should be assessed for between 25% and 30% of the total benefit assessment, or $10,000.00.

In the opinion of the Tribunal, the assessments against Mr. Miles and Mr. Hammond, as set out in the report, are much too high, comparatively speaking, considering:

1. the area of each parcel within the watershed,

2. the current land use of each parcel,

3. and the relative benefit that will accrue to each.

Furthermore, the Tribunal believes that neither Mr. Miles nor Mr. Hammond should be assessed for such a large portion of the increased cost of the sealed-joint pipe.

ORDER OF TRIBUNAL

It is ordered that:

1. Section 48(1) appeals of Mr. Ivan Hammond are withdrawn.

2. The benefit assessment against property roll number 010-030-125 & 127, Sunrise Equipment Auctions Inc. is increased by the sum of $4000.00.

3. The benefit assessment against property roll number 010-030-124, L. & E. Miles is reduced by the sum of $1180.00.

4. The benefit assessment against property roll number 010-030-138, G. & L. Hammond is reduced by the sum of $820.00.

5. The benefit assessments against all properties assessed benefit except property roll number 010-030-125 & 127, Sunrise Equipment Auctions Inc., are reduced pro rata by the sum of $2000.00, this reduction to be applied after the reductions ordered in Order 3 and Order 4.

6. Schedule B for future maintenance is to be adjusted to reflect these changes in assessment.

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 Chatham, Ontario this 28th day of March 1996