Rein Minnema v. Township of Ekfrid, 1996 ONAFRAAT 7

ONTARIO DRAINAGE TRIBUNAL

APPEAL:

MINNEMA DRAIN (RE) Township of Ekfrid Rein Minnema

MINNEMA DRAIN (RE), 1996 ONAFRAAT 07

STATUTE:

Drainage Act

HEARING:

March 28, 1996

DATE OF DECISION:

April 12, 1996

NEUTRAL CITATION:

1996 ONAFRAAT 07

MINNEMA DRAIN TOWNSHIP OF EKFRID

IN THE MATTER OF:

An Appeal to the Ontario Drainage Tribunal by Rein Minnema from the decision of the Court of Revision held on November 6, 1995 on the MINNEMA DRAIN, TOWNSHIP OF EKFRID and an appeal from the report of the engineer on the Minnema Drain dated July 31, 1995.

Before:

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

Appearances:

Mr. Rein Minnema, appellant. Mr. John Spriet, P. Eng., on behalf of the respondent the Township of Ekfrid. Mr. Michael DeVos, P. Eng., on behalf of the respondent the Township of Ekfrid.

DECISION OF THE TRIBUNAL

This appeal was heard in Appin, Ontario on March 28, 1996. Janneke Newitt, Clerk of the Township of Ekfrid (Ekfrid), performed the duties of the clerk of the Tribunal. Mr. Rein Minnema appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48(1) of the Drainage Act (the Act) from the July 31, 1995 report of the engineer on the Minnema Drain and under Section 54 of the Act from decision of the Court of Revision held on November 6, 1995 for the MINNEMA DRAIN, TOWNSHIP OF EKFRID.

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.

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.

(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.

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

The Background

The engineer's July 31, 1995 report on the Minnema Drain was prepared pursuant to Section 4 of the Drainage Act in response to a petition signed by the landowners.

A Preliminary Report on the Minnema Drain was originally submitted by D.W. Pletch, P. Eng. dated December 19, 1988 which had proposed 750 meters of concrete tile, 2 junction boxes, 3 catchbasins, 100 meters of open channel excavation and 750 meters of grassed waterway. This preliminary report was considered by Council and at that time the petitioner withdrew from the petition. Thus, the petition became no longer valid under Section 4 of the Act and no further action was taken at that time.

The evidence before the Tribunal is that it was Mr. Minnema, the Appellant, that had signed the petition that resulted in the Preliminary Report by D.W. Pletch, and he withdrew from it because he felt his costs would be too high. However, in 1992, he and his upstream neighbours, the Kouwenbergs, submitted a new petition and Council directed Spriet Associates to prepare a second Preliminary Report. A new Preliminary Report on the Minnema Drain was submitted by J.R. Spriet, P. Eng., dated June 7, 1993 which proposed approximately 830 meters of 200mm to 350mm tile and 50 meters of open ditch cleanout and 700m± of grassed waterway. A new Main Drain was to run roughly in the same location as the existing private tile, and a new Branch 'A' was proposed for 230 meters from the line fence between Lots 21-22 west to the Main Drain. The drain proposed in this report was to have its outlet into a gully on the Minnema property where his existing tile system already had its outlet. Based on continuing requests from Mr. Minnema, Council deferred the formal consideration of this preliminary report well into 1994 and in June 1994 Mr. Minnema installed, on his own, 324 m of 300 mm (12") concrete and 375 mm (15") plastic tile in the gully that served as an outlet for his existing tile system and which was to be the outlet for the drain proposed by Mr. Spriet in his Preliminary Report. At the same time, he partially filled the same length of the gully. When the Preliminary Report was considered by Council later that month, Mr. Minnema withdrew his name from the petition because he then felt that he had all the drainage he needed. This would have made the petition invalid and the project would have been abandoned, but Mrs. DeVries, another owner, added her name to the petition, thereby keeping it valid. Council then instructed Spriet Associates to prepare a final report, and this resulted in the report dated July 31, 1995.

The total watershed area contains approximately 74 hectares. The area requiring drainage for the Minnema Drain is described as parts of Lots 21 and 22, Concession Range 3 south.

At the site meeting with respect to the project, the owners of the upstream lands indicated they did not have a proper outlet due to restrictors installed on private tiles on the property located on the south half of Lot 22 (Minnema). The owners of the north half of Lot 22 (Kouwenberg) indicated their land experienced flooding.

The report recommends construction of a new tile drain, known as the Main Drain, from the property line between Lots 21 and 22 in the north half of Concession Range 3 south in a westerly and southerly direction into the south half of Concession Range 3 south. From there it will travel southerly and westerly to the point of the old outlet of the private tile. From this point, a new tile will twin the recently installed private tile in a south-easterly direction to its outlet in a gulley. The open ditch in the gulley will be cleaned out for 50 meters downstream of the tile outlet. A new grassed waterway is proposed along the Main Drain in the south half of Lot 22. Also, a new tile drain known as Branch 'A' is proposed from the lot line between Lots 21 and 22 in the south half of Concession Range 3 South, running in a westerly direction to the Main Drain.

The design includes erosion control measures such as tile outlet protection, surface inlets at strategic locations to reduce surface water flow and the construction of a grassed waterway. The design capacity of the proposed tile drain is based on a drainage coefficient of 19mm (¾") per 24 hours.

In summary the proposed work consists of approximately 50 lineal meters of open ditch cleanout including bank seeding, approximately 1596 lineal meters of 200mm (8") to 350mm (14") concrete field tile including related appurtenances, and the incorporation of 324 lineal meters of 300mm (12") and 375mm (15") tile.

The Issue

There are two issues before the Tribunal:

1. Should the drain as proposed be modified by:

a) taking an alternate route running from the junction of the Main Drain and Branch A, through the height of land and connecting to the proposed outlet gully rather than following the natural flow path as proposed in the report?

b) deleting the incorporation of the privately installed 324 lineal meters of 300mm (12") and 375mm (15") tile and requiring the installation of an appropriately sized tile to independently carry the water from the upstream watershed through the 324 meters of drain from Station 0+00 to station 0+324.

c) increasing the allowances, if the work is not changed.

2. Is the assessment levied against the lands of Mr. Minnema too high?

The Evidence and the Findings

Mr. Minnema told the Tribunal that he has two concerns with the design of the drain. His main concern was the incorporation of his private tile from Station 0+00 to Station 0+324 as part of the drain. He said that he installed a large tile, so he was sure he had sufficient capacity in his system for a large rainfall on his own land, and he did not want to lose that extra capacity. He said he was not opposed to the construction of a drain but wanted the municipal drain serving his neighbours to be separate from his private system.

During the hearing, Mr. Minnema suggested that the cost of the project may be reduced by taking the main drain straight across the height of land to the outlet, thus reducing its length. He said that this was the first time he had made that suggestion, as it had just occurred to him while reviewing the plan. In the opinion of the Tribunal, this suggestion was not helpful.

There was no opportunity for the engineer to investigate this possible solution. There was no evidence to show if this solution is physically possible or less costly than the current proposal of the engineer. The Tribunal gave no weight to the proposal. Mr. Spriet told the Tribunal that Station 0+00 in the final report was 342 meters downstream of the point shown as Station 0+00 in the preliminary report. In the time between the preliminary report and the instructions to the engineer to prepare a final report, Mr. Minnema had installed his own drain and backfilled and graded the gully that was to be the outlet in the preliminary report. Mr. Spriet said that because this work was done, it was necessary to extend the drain downstream and to install a second tile since the tile installed by Mr. Minnema was not large enough to provide outlet for the watershed using a 3/4 inch drainage coefficient. Mr. Spriet indicated he had the choice of installing a parallel tile of sufficient capacity to handle the entire watershed or to utilize the tile installed by Mr. Minnema and put in an additional parallel tile, so the combined system had capacity to handle the watershed.

He chose to install the smaller additional tile and incorporate the Minnema private tile because:

• The tile installed by Mr. Minnema was new and satisfactory to the engineer to incorporate into the work.

• If a municipal tile is alongside a private tile of about the same size, there is potential for confusion as to who maintains what in the future. Incorporation of the Minnema tile into the drainage works will eliminate this confusion.

• Less cost to Mr. Minnema.

The Tribunal accepts the arguments of the engineer and agrees that incorporation of this portion of tile drain into the drainage works is a reasonable solution to the problem of providing adequate capacity in the drainage works.

Mr. Minnema told the Tribunal that he has practiced no-till farming for the past five years. As a result, he feels that the grassed waterway along the drain on his property could be eliminated, reducing the cost of the project. He also said he was not opposed to leaving the grassed waterway in the project.

Mr. Spriet urged the Tribunal not to eliminate the grassed waterway on the lower 324 meters of the drain. He felt that the fall in the land (1.15% to 1.5%) in this section of the drain required a grassed waterway to properly control the surface water, especially where the gully has been filled in.

Mr. Cliff Manchester, road and drainage superintendent for Ekfrid, told the Tribunal that he had toured the property in the spring of 1994 accompanied by a representative of Mr. Minnema. He said that he observed erosion at the fence lines where the Main Drain and Branch A enter the Minnema property.

Based on the evidence, the Tribunal was not convinced that the savings generated warranted the elimination of the proposed grassed waterway. The fact that erosion was observed in the fields, and the slope of the watershed over much of the Minnema property is 0.6% or greater, leads the Tribunal to conclude that the grassed waterway is desirable for this project.

Having concluded that the project as proposed should stand, the Tribunal turned its attention to the matter of assessments.

Mr. John Spriet, P. Eng., told the Tribunal that the allowances for damages and right-of-way were established on a per-meter basis. These allowances are $3/meter for the length of drain on the property. The allowance for incorporating the existing tile - $10,200 - was established from the invoices provided by Mr. Minnema for the construction. Mr. Spriet accepted the cost of materials and installation of the tile as paid by Mr. Minnema, but he had to interpret the bill for backfilling the ditch and shaping the gully. He said that he allowed what he thought was a reasonable amount for the work required for this. He allowed full value for this work since it is almost brand new, having just been completed in 1994.

Mr. Minnema told the Tribunal that he understood the methodology used by the engineer in arriving at the allowance figure, and he did not dispute the amount of the allowance. In the opinion of the Tribunal, the engineer properly calculated the allowance for the private drain to be incorporated into the drainage works.

Mr. Michael DeVos, P. Eng., told the Tribunal that he calculated the assessments as follows:

First he divided the drain into four sections.

The first section runs from Station 0-50, at the outlet, to Station 0+324 - twinning the existing tile. This section had an estimated cost, including overhead, of $22,040. He assessed the grassed waterway separately. 65% of the cost of the grassed waterway was assessed to the owner as a special benefit - $1,050. He then assessed the owner, as a special benefit, the extra costs incurred for having to put in twin pipes rather than one large pipe. This he set at $4,050. (The cost of a 14 and 16-inch would have been $7,000, but the two pipes cost $11,050). There was also an extra administration cost of $1,500 for finding the existing tile, and he assessed this as a special benefit to the owner. The remaining cost of this section he divided 55% as benefit (normally would have used 40%) and 45% outlet. The reason for this increased benefit assessment is that the property will benefit from the filling of the gully. The outlet he assessed on the basis of equivalent acreage and amount of drain being used. To calculate equivalent acres, he reduced the runoff factor to 0.5 for bushland.

Mr. DeVos provided his calculations for the other three sections in similar detail. When Mr. DeVos was finished explaining the method of assessment, the Tribunal asked Mr. Minnema to comment. Mr. Minnema said that he now understood the way the assessments were calculated, and he could offer no comment other than he felt he was assessed too high for the benefit he would receive. He again said that he had adequate drainage for his land through the tile he installed, and the proposed work would not benefit him. However, other than this opinion, Mr. Minnema introduced no evidence or calculations to support his position.

The Tribunal examined the methodology used by Mr. DeVos in calculating the assessments and found no major discrepancies. The Tribunal examined the final assessments and found them to be reasonable in light of all the circumstances. The Tribunal notes that the assessment against Mr. Minnema would have been less if the lower 324 meters of tile could have been installed as one large pipe rather than the two smaller pipes that will now result.

By proceeding on his own rather than cooperating with his neighbours, especially when he had petitioned for a drain to be constructed under the Act and had himself delayed the consideration of the Preliminary Report for a year, Mr. Minnema has caused a considerable increase in the cost of the project. Moreover, knowing that the Preliminary Report recommended using the entire existing gully as an outlet for the proposed drain, Mr. Minnema proceeded to enclose, with tile sufficient only for his own purposes, and then fill 324 m of the gully before the Township Council was able to initiate a final report. Mr. Spriet estimated that the cost of this 324 m section of the work will now be $22,040, whereas, if the project had been allowed to proceed as in his Preliminary Report, the cost would have been only a few hundred dollars. In view of what he has done, Mr. Minnema should not be surprised that he has been assessed a large share of the cost of this 324 m section, with a resulting high overall assessment on his property.

Decision and Reasons

After careful consideration of all of the evidence and submissions made, the Tribunal decided to deny the appeals for the following reasons:

1. The Tribunal is not convinced that there were errors in the method used by the engineer in developing the assessments.

2. The Tribunal feels that incorporation of the 324 meters of private drain into the drainage works is a reasonable solution to the drainage problem, given all of the circumstances.

3. The allowances provided by the engineer are reasonable and were not disputed by any evidence of the Appellant.

4. There was no evidence to support an alternative route.

ORDER OF THE TRIBUNAL

It is ordered that:

1. The appeal of Mr. Minnema under Section 48(1) of the Drainage Act is dismissed.

2. The appeal of Mr. Minnema under Section 54 of the Drainage Act is dismissed.

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 12th day of April, 1996.