VanBuuren Municipal Drain (Re), 1997 ONAFRAAT 15

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

VanBuuren Municipal Drain Township of West Lincoln

VanBuuren Municipal Drain (RE) 1997 ONAFRAAT 15

STATUTE:

Drainage Act

HEARING:

April 21, 1997

DATE OF DECISION:

May 13, 1997

1997-15

NEUTRAL CITATION:

1997 ONAFRAAT 15

VanBuuren Municipal Drain Township of West Lincoln

IN THE MATTER OF: THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An Appeal to the Ontario Drainage Tribunal by Mr. Derek Crolla under Section 48 of the Drainage Act and under Section 54 from the decision of the Court of Revision on the VanBuuren Municipal Drain in the Township of West Lincoln

Before: Mr. John Taylor, Vice-Chair; Mr. Herb Todgham, Vice-Chair; Mrs. Betty Lambert, Member.

Appearances: Thomas Allen Richardson, counsel to the appellant, Mr. Derek Crolla. Mr. John Spriet, P. Eng., on behalf of the respondent, the Township of West Lincoln.

DECISION OF THE TRIBUNAL

This appeal was heard in the council chambers of the Township of West Lincoln (the township) Smithville, Ontario on April 21, 1997. Mr. Salter Hayden, Clerk of the Township, performed the duties of the Clerk of the Tribunal.

Mr. Derek Crolla appealed to the Ontario Drainage Tribunal, (the tribunal) under Sections 48 and 54 of the Drainage Act (the Act) concerning the VanBuuren Municipal Drain in the Township.

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.

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.

At the beginning of the hearing the Tribunal ordered that all of the people assessed or compensated in the October 15, 1996 engineer's report for the VanBuuren drain be made parties to the hearing.

During the hearing Mr. Richardson, counsel to Mr. Crolla, advised the Tribunal that Mr. Crolla had no concerns with the proposed work and would not be pursuing an appeal under Section 48, therefore the Tribunal addressed the Section 54 appeal on assessments only.

The Background

The VanBuuren drain was constructed under a report prepared by Byron Wiebe in 1985. At that time it was a new drain constructed under petition. The drain consists of 5,000 meters of open ditch work involving land in both the Town of Grimsby and the Township. The drain outlets at Forty Mile Creek in Grimsby and flows through 2700 meters of open ditch in the Town of Grimsby with the balance in the Township. The 585 hectare watershed affected by the current report is all in the Township and is mainly farmland upstream of the Crolla property. The Crolla property is a residential lot upstream of Region Road 73, or Mud Street. The ditch running past the Crolla property is designed with a bottom width of 2.6 meters, side slopes of 2:1 and varying depth. The land is undulating.

The centreline of the VanBuuren drain runs along the property boundary between Mr. Crolla and Mr. Dixon. When the ditch was dug in 1985 or 1986 Mr. Crolla did not own the property. Since that date he has bought the property and constructed a house on the lot. Mr. Crolla is concerned about erosion of the ditch bank along his property boundary and flooding of his property.

The report proposes:

• a layer of rip-rap be placed on the west ditch bank (Crolla) for 93 meters as detailed in the plans.

• Rip-rap be placed at the edge of the trees for a further 21 meters on the Crolla property as detailed.

• An earthen berm be constructed along the top of the west bank for 41 meters as detailed to prevent flooding out of the ditch onto the Crolla property.

The estimated cost of the work is $10,200.00. Of this amount Mr. Crolla is assessed under the report $4,350.00 for benefit and $20.00 for outlet liability for a total assessment of $4,370.00. The Court of Revision reduced the benefit assessment by the sum of $1500.00 and placed this amount of assessment on the roads of the township. The resulting assessment against the property of Mr. Crolla therefore is $2,850.00 for benefit and $20.00 for outlet liability for a total assessment of $2,870.00. This assessment Mr. Crolla is appealing to the Tribunal.

The Issue

The issue before the Tribunal is whether or not the proposed assessment, as amended by the Court of Revision, against the property owned by Mr. Crolla (Roll Number 11-199) is appropriate.

The Evidence and the Findings

Mr. John Spriet, P. Eng., spoke on behalf of the Township. Mr. Spriet told the Tribunal that he was appointed by the township to prepare a report under Section 78 of the Act to repair and improve the section of the VanBuuren drain that flows past the Crolla property. At the on site meeting it was clear that there was erosion of the ditch bank along the property from behind the house to the pond area. Mr. Crolla had put erosion protection on the bank in the area adjacent to the buildings but there is still a length that is not protected and is eroding. Mr. Spriet told the Tribunal that the drain is quite full of water and the erosion appeared to be occurring at the waterline. He said he believes that the erosion is the result of saturation of the ditch bank and wave action at the water line as opposed to erosion of the toe of the ditch bank slope and subsequent slumping of the bank. Mr. Spriet said that he feels the high water levels were the result of a lack of maintenance of the outlet of the drain in Grimsby. The outlet was maintained in the fall of 1996 and the high water problem should now be reduced.

To address the erosion problem Mr. Spriet proposed a rock lining of quarry stone for two meters up the bank along the drain from Station 2+799 to Station 2+890, a distance of 93 meters.

Mr. Spriet told the Tribunal that he had conducted a total station survey of the property and then superimposed the original design on the present day drain cross sections. He said that despite the fact that bank erosion has been occurring it appears the depth of the existing ditch is close to or slightly below the original design, the width is close to original design and the present cross-section meets the cross-section of the 1985 design.

Mr. Spriet said there is a culvert outletting from a pond on the property. He proposed to put rip rap around this culvert to protect this outlet. At the site meeting Mr. Crolla expressed concern about flooding of the property to the west, in the area of the pond. To address this problem Mr. Spriet said he proposed to construct an earth berm, using imported top soil, for a distance of 40 meters.

Mr. Spriet said that he assessed the cost of constructing the berm at a rate of 75% benefit to Mr. Crolla and 25% outlet. The cost of protecting the culvert he assessed at 90% benefit to Mr. Crolla and 10% outlet. The cost of protecting the ditch bank with rip rap and seeding he assessed at 50% benefit to Mr. Crolla and 50% outlet. The administration costs were charged as 40% benefit to Mr. Crolla and 60% as outlet. The outlet assessment amounted to $8± per hectare with a minimum assessment of $20.00 per parcel.

Mr. Crolla told the Tribunal that the drain was in existence when he purchased the property and built his house. He said that, when he built the house, he could drive his riding lawn mower between the row of trees planted adjacent to the drain and the top of the drain bank. This row of trees is now at the edge of the drain bank. He said that, at the time he bought the land, the drain was about 16 feet wide and the side slope were steep. He said he had no concerns with the drain when he moved in but started to have problems in 1992. He said that the edge of the bank began to fall in. A couple of feet of the bank broke off and fell down and was washed away. He approached the township to see what to do to get the drain repaired and has approached the township several times since without success.

Mr. Crolla filed with the Tribunal a letter dated January 22, 1992 signed by J. Bryon Wiebe, P. Eng., Consulting Engineer. In this letter Mr. Wiebe says:

“In regards to the bank erosion adjacent to Mr. Crolla’s property, it appears that erosion is of a typical nature encountered on ditches in the area. It was noted that roadside ditches in the area are suffering from the same type of erosion, due to the sandy soils in the area. We recommend that in order to reduce the extent of future erosion, the municipality may wish to undertake the following works.

A row of rip rap, preferably 250 to 300mm in diameter minimum, be placed along the toe of the eroded bank, and extending up the bank approximately 600 to 750mm. This rip rap material must be underlain with filter fabric material to limit the migration of fine soil material through the rip rap and into the drain. The remaining bank should be seeded as soon as practical in the spring with a hand cyclone spreader from the ditch bottom. The bank should be moist when the seed mixture is applied, preferably with no rain in the forecast for the next few days after seeding. A recommended seed mixture is …..

The previously described work falls under the definition of maintenance, and therefore, according to Section 74 of the Drainage Act, the costs of such are to be assessed to all upstream lands and roads in the proportion determined by the current bylaw, and as indicated in the assessment schedule of the Engineer’s Report, dated February 28, 1985.”

Mr. Crolla also filed a June 10, 1993 letter from Mr. L. J. Hodge, P. Eng., Director of Public Works for the Township which states:

“I have now however, reviewed the report and recommendations on maintenance of the Drain along your property prepared in January 1992 by Wiebe Engineering Group acting as drainage engineers on behalf of the township. We hope to carry out the recommended maintenance work by the end of June.

Based on review of Wiebe’s report and discussions with the Engineer, the work to be done will consist of the placement of 8-12” rip rap (including geotechnical filter) along the west bank of the drain from Mud St. to the rear limit of your property. The rip rap will be laid from the toe of the ditch to approximately 2.5 feet up the side slope of the ditch. The remaining bank area will be prepared and seeded when the weather is suitable to allow catch to occur. This could be as late as early fall.

These works will be carried out under Section 74 of the Drainage Act and costs estimated at approximately $3000.00 will be assessed to all upstream land owners in the proportion determined by the VanBuuren Drain By-law and as indicated in the Engineer’s Report initiating this drain dated February 28, 1985. For your information, your proportional share of the final cost of these maintenance works is 0.3% (ie approximately $10.00).”

Mr. Crolla told the Tribunal that no work was done. He subsequently received a letter from the Township dated October 4, 1994 indicating that the Township had received a letter from Mr. Wray Ramsay of Spriet Associates indicting that the Township could clean out the ditch and reshape and compact the ditch bank as maintenance but could not install rip rap without a new report authorising improvements to the drain under Section 78 of the Act . By letter dated October 31, 1994 Mr. Crolla requested that the township proceed with the maintenance work and the installation of rip rap on the bank.

Mr. Keith Hodges, P. Eng., of Frontier Engineering, testified on behalf of Mr. Crolla. Mr. Hodges said that he was engaged by Mr. Crolla in August 1993 to investigate the ditch bank erosion that was taking place on the Crolla property. Mr. Hodges said he conducted a survey of the ditch in 1993 and again in 1994 and found that the banks had eroded at a rate varying from 0.2 feet to 1.8 feet over the period. He also said that he had measured the velocity of flow, using floats on the water surface, during a period of high flow and found the water flowing at a rate of 3.5 feet per second. Mr. Hodges said that he believed this to be the upper limit of velocity for grassed channels and that the drain bank required rip rap for stability. Mr. Hodges agreed that the present dimensions of the drain are close to the design dimensions but are considerably wider than those measured in 1993. He concluded that the amount of erosion, that both he and Mr. Spriet agree is taking place, indicates that the drain could not have been constructed to the design specifications in the 1985 Wiebe report.

In summation, Mr. Richardson argued that Mr. Crolla has been doing everything he can to effect repairs to the drain bank. He argued that if the work recommended by Bryon Wiebe had been done as promised by the Township in 1992 it would have cost considerably less. While the drain may be close to the design specifications it is considerably wider than existed at the time Mr. Crolla purchased the property and therefore Mr. Crolla’s expectation of the usefulness of the property has been reduced. Mr. Richardson said that, considering all of the circumstances, the assessment against Mr. Crolla to rectify this problem was excessive and unjust and ought to be reduced.

Mr. Spriet, in summation, said that he believes that it is not possible to line a channel bank as a matter of maintenance on a project and therefore a report under Section 78 is necessary. He argued that he had made a reasonable division of the assessment of cost on the project and that the Tribunal should dismiss the appeal.

The Tribunal examined the evidence. It is agreed that erosion is occurring on the ditch bank adjacent to the Crolla property. The Tribunal is convinced by the evidence that the ditch cross section as it now exists is close to the ditch cross section as designed in the 1985 Wiebe report.

In the opinion of the Tribunal, Mr. Spriet is correct in his statement that channel lining is not a work of maintenance but a work of improvement requiring a report under Section 78 of the Act. In the opinion of the Tribunal, the discretion to specify additional rip rap provided to the engineer in the 1985 Wiebe report for construction cannot be exercised at a later date. Therefore, in the opinion of the Tribunal, the township followed the correct course of action in appointing Mr. Spriet and obtaining a report for this work of improvement of the drain. In the opinion of the Tribunal, the construction cost of this project is not significantly different that it would have been in 1992 since the same work is required and the construction costs have not significantly changed. There is no dispute on the necessity of the work or the design of the work. The dispute is only on who pays.

In the opinion of the Tribunal, the Township has mislead Mr. Crolla concerning the cost and timing of the repair and improvement of this drain. The Township wrote to Mr. Crolla and told him rip rap would be installed and he would be charged based on a pro rated calculation of the cost. In one letter he was told the cost would be about $10.00. Clearly this is unrealistic for the value of the improvement but, Mr. Crolla was led to believe the cost would be modest and he was encouraged by the Township to request a report for improvement of the drain. The evidence clearly suggests that the drain may not have been constructed as specified in the 1985 report and this may have misled Mr. Crolla when he considered the placement of buildings and landscaping on his land. The Township is responsible for supervision of the construction of the drain. For all of these reasons the majority of the Tribunal is of the opinion that the Township ought to bear more of the cost of the work proposed in this report. Therefore the Tribunal decided to reduce the benefit assessment against the property of Mr. Crolla by a further $850 and to increase the assessment against the roads of the Township by a like amount.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeal of Derek Crolla under Section 48 of the Drainage Act is dismissed.

2. The benefit assessment on property roll number 110199 (D. Crolla) shown in the assessment schedule page 7 of the October 15, 1996 engineer’s report be reduced from $4,350.00 to the sum of $2,000.00.

3. The outlet assessment against the roads of the Township of West Lincoln shown on page 8 of the October 18, 1996 engineer’s report be increased pro rata by the sum of $2,350.00.

4. 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.

The reason for this decision is the Township has not been diligent in responding to the complaints of Mr. Crolla and, in the opinion of the Tribunal, has misled Mr. Crolla with respect to the cost he ought to expect to pay for addressing the problems in the drain adjacent to his land.

Dated at Tilbury, Ontario this 13th day of May, 1997.