Grant Drain (Re), 1997 ONAFRAAT 2

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:

Grant Drain Township of Orford

Grant Drain (RE) 1997 ONAFRAAT 2

STATUTE:

Drainage Act

HEARING:

January 9, 1997

DATE OF DECISION:

January 29, 1997

1997-02

NEUTRAL CITATION:

1997 ONAFRAAT 2

Grant Drain

Township of Orford

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. Gerry DeBruyn under Section 54 of the Drainage Act from the decision of the Court of Revision and under Section 48 of the Drainage Act on the grounds that the work should be modified by increasing the capacity from a 2/3" to a 1" drainage coefficient concerning the Grant Drain, Township of Orford.

Before: Mr. Vernon Spencer, Chair; Mr,. John Taylor, Vice-Chair; Mr. Douglas Flook, Member.

Appearances: Mr. Gerry DeBruyn, appellant. Mr. Ted Scott, assessed ratepayer, party to the hearing. Mr. C. Teezel, assessed ratepayer, party to the hearing. Mr. Roger Clark, on behalf of Clarkview Farms Ltd., party to the hearing. Mr. A. VanHaren, assessed ratepayer, party to the hearing. Mr. Enio Sullo P. Eng., on behalf of the appellant, Mr. DeBruyn. Mr. Ed Dries, P. Eng., on behalf of the respondent, the Township of Orford.

DECISION OF THE TRIBUNAL

This appeal was heard in Highgate, Ontario on January 9, 1997. Jane Smith, Clerk of the Township of Orford (the Township), performed the duties of the clerk of the Ontario Drainage Tribunal (the Tribunal).

Mr. Gerry DeBruyn appealed to the Tribunal under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on the Grant Drain and under Section 48 of the Drainage Act on the grounds that the work should be modified by increasing the capacity from a 2/3" to a 1" drainage coefficient.

At the beginning of the hearing the Tribunal identified several assessed ratepayers present at the hearing. After considering the matters under appeal the Tribunal issued an order that all assessed ratepayers be made party to the hearing and be provided an opportunity to present evidence and cross examine witnesses.

The Background

The Grant drain was constructed pursuant to the report of George McCubbin dated March 9, 1929. Various works of maintenance have been done over the years but no major works of repair or improvement have been carried out since its construction.

The Grant Drain has its outlet at the north limit of the Gosnell Line (County Road 19). From the outlet the drain is constructed southeasterly, across County Road 19, and then easterly, as an open ditch, on the north side of the Mazan Line, then across the Mazan Line a 400 mm (16 inch) tile runs in an easterly direction to the junction with the branch drain, then a 300 mm (12 inch) tile continues crossing lot 17, the CNR tracks, then easterly, parallel to the CNR tracks in the median between the CNR and the CSX railway embankments, then south easterly across the CSX tracks the Ontario Hydro right of way to its head at approximately the lot line between lot 16 and 15 NMR.

The owners complain that the drain is shallow and has insufficient capacity resulting in surface runoff that causes erosion. The land between the rail road embankments is infested with a heavy growth of brush and the tile has required continual maintenance.

The report states that the proposed work has been designed to remove 16 mm (2/3 inch) of runoff per 24 hours from the drainage area.

The report recommends:

1. The existing open drain along the north side of the Mazan Line be repaired and improved by deepening and widening and extending for 65 m to the east. The existing drain and the proposed extension exist wholly within the road allowance.

2. Construction of a new 600 mm covered drain for 16 m length, southerly, across Mazan Line, along with a catchbasin near the southerly limit of the road allowance.

3. A new covered drain be constructed along the approximate alignment of the existing Grant Drain. This new drain to be 600 mm for the first 126 m to the junction with the East Branch. A junction box is constructed at the junction and a 450 mm (18 inch) drain constructed from the catch basin to the northerly limit of the CNR right of way in Lot 17, Concession NMR.

4. A new 600 mm (24 inch) steel pipe be constructed under the CNR track.

5. A new 450 mm (18 inch) plastic pipe be constructed under the CSX right of way.

6. Construction of a new drain parallel to the tracks on the Ontario Hydro Right of Way joining to the existing Grant Drain in Lot 16. This tile is to replace the existing tile that lies between the two rail way rights of way.

7. Seven precast catchbasins at various locations along the drain.

The Issue

There are two issues before the Tribunal.

1/ Should the drain be designed to convey 25 mm (1 inch) of runoff from the drainage area rather than 16 mm?

2/ Are the assessments as recommended by the engineer appropriate?

The Findings

Mr. Enio Sullo, P. Eng., spoke to the Tribunal on behalf of the appellant DeBruyn. Mr. Sullo told the Tribunal that the basis of the appeal is:

1/ That The level of protection is inadequate and does not meet a reasonable design standard, and

2/ That the assessment against the appellant DeBruyn is too high.

With respect to the first issue Mr. Sullo argued that the Drainage Guide for Ontario (Publication 29) defines a reasonable standard of design for tile drainage system that provided for surface inflow as a drainage coefficient (the rate of removal from the watershed per 24 hours) of 25 mm (1 inch). Mr. Sullo said that:

1/ this standard has been in place for more than 25 years,

2/ this area of the province is a high producing area and if the standard ought to be applied at any location it ought to be applied here,

3/ there was not sufficient reason to vary from the standard in this case especially in light of the erosion currently taking place.

4/ while the present upstream landowners have agreed to the design based on a 16 mm drainage coefficient there is nothing to prevent these owners from requesting an increased level of drainage in the future and Mr. DeBruyn would be subjected to additional assessment to provide the 25 mm drainage coefficient that Mr. Sullo believes he is entitled to receive at this time.

5/ the upstream owners interest in the size of the drain relates to costs while the downstream owners interest is in controlling the erosion and therefore the downstream owners interests should carry more weight.

With respect to the assessment against the DeBruyn property, Mr. Sullo argued that the purpose of the work was to handle the water artificially caused to flow from the upper watershed across Mr. DeBruyn's property. He said that since the water from the upper watershed flowed either through the CNR culvert or the Grant Drain, all of the water from the upper watershed was artificially caused to flow and therefore none of the water was naturally flowing. He argued that to provide for the water naturally flowing (none) and the water from Mr. DeBruyn's land at a 16 mm drainage coefficient, Mr. DeBruyn would have to construct a ten inch tile at a cost of approximately $8,500.00. Mr. Sullo stated that the assessment against Mr. DeBruyn should be in the order of $8,500 in total. Mr. Sullo said at a 25 mm drainage coefficient this cost would increase to $10,000.

Mr. Sullo also drew the Tribunal's attention to the fact that historically the area of the DeBruyn farm assessed into the Grant Drain was approximately 21 acres not the 45 acres assessed in the current report. Mr. Sullo requested that the assessment be reduced to reflect the reduced acreage. Mr. Sullo told the Tribunal that he has made no measurements to confirm the acreage but merely analyzed the previous engineering reports.

Mr. Gerry DeBruyn told the Tribunal that he was concerned about the erosion on his land and he felt the tile should be large enough to handle a two inch rain. Mr. DeBruyn told the Tribunal that at time of heavy rainfall the water boils out of the catchbasin at the railway embankments and then flows through the culvert in the CNR embankment and flows overland across his field eroding a channel as deep as two feet. He said that he does not know if water also flows out of the catchbasin on the north side of the CNR embankment as this area is covered by the water that flows through the CNR culvert. He said that, in his opinion, 20 to 25 acres of his land drains through the Grant Drain. Mr. DeBruyn told the Tribunal that he is not in favour of a grassed water way across his farm to accommodate the surface water flows. He said that, in his opinion, the slope was too steep and the soils to sandy to establish a grass cover.

Mr. Ed Dries, P. Eng., told the Tribunal that he is the engineer appointed to prepare the report on the Grant Drain. He said that the soils in the watershed are varied from clay to sandy loam. In particular, the soils on the appellants lands are lighter in texture and provide some natural drainage. Mr. Dries said that, to his knowledge, there is very little systematic tile drainage in the watershed. Mr. Dries said that he prepared a preliminary design for the project and discussed the findings with the landowners at a meeting. The preliminary report considered two design options a 12 mm and a 25 mm drainage coefficient. Mr. Dries said that, in his opinion, the consensus of the landowners was that a 12 mm coefficient did not provide sufficient relief from the flooding and a 25 mm coefficient was too large and too expensive. Mr. Dries said that, because of the soil type in the watershed, he is of the opinion that a drainage coefficient of 16 mm is sufficient for the area. Mr. Dries said that the proposed tile is at the same grade as the existing tile therefore the flow capacity is directly related to the size of the tile. He said that the proposed tile will provide 2.25 times as much tile capacity as the existing tile. To provide for a 25 mm drainage coefficient increases the cost of the project significantly while only changing the capacity from 2.25 times to 2.9 times as much as the existing tile capacity. He said that, in his opinion, the proposed work is both technically and financially reasonable for this watershed.

Mr. Dries said that, in this watershed the flow paths are broad and shallow so a grassed waterway would be difficult to construct and maintain. He said that he had not explored a grass waterway design because of the opposition of Mr. DeBruyn and his belief that the proposed design would provide an adequate solution.

With respect to the issue of assessments Mr. Dries said that this hearing was the first time that Mr. DeBruyn has raised the issue of the area of his farm assessed for the project. Mr. Dries said that he used the watershed of the adjacent drain report that was prepared in 1993. Mr. Dries said he took the total area of the DeBruyn property from the assessment map, deducted the area assessed into the Spring Creek drain and arrived at the 45 acres assessed to the Grant Drain. Mr. Dries said that, in his practice, he uses the area from the most recent reports because these areas are most likely more accurate than those in older reports. He pointed out that the area assessed for the previous reports on the Grant Drain originated in the 1929 McCubbin report. Mr. Dries said that he, like Mr. Sullo, had not made any field measurements of the area draining from the DeBruyn property into the Grant Drain.

Mr. Dries said that the estimated cost of the work is $83,000.00. He said that he assessed the entire increase in cost of the work - obtained by taking the total estimated cost and deducting the cost of installing a drain equivalent for the length of the right of way - to the owner of the roads and railroads in the watershed as a special benefit. This amounted to $38,640.00 leaving $44,360.00 to be assessed as outlet and benefit liability. Mr. Dries told the Tribunal that the division of cost between outlet and benefit was a judgement decision and there is no "formula" for making that decision. He said that he split the cost as $26,360.00 for benefit - larger capacity, deeper drain so less interference with farming practices and better structural stability - and $18,000 as outlet. That is he assessed the project at 60% benefit and 40% outlet. He said that the 1929 McCubbin report had split the cost at 83% benefit and 17% outlet but he felt there had been sufficient changes in the watershed to warrant a change in the benefit/outlet ratio of the assessments.

Mr. Dries said that the benefit he assessed to the lands adjacent to the drain in accordance with the length of the drain on the property. The outlet he assessed to the drain based on the area and use of the property and the portion of the drain the water from a property used to outlet. For example the lands that flow to the Branch Drain are not assessed any cost of the work done upstream of the junction of the main and branch drains.

Mr. Cardwell Teezel told the Tribunal that he owned the farm at the top end of the watershed and is assessed into the Grant Drain. He said the original drain was installed with a pick axe, in blue clay, and has functioned well for many years. He said that only once was maintenance work done on the drain that he could recall. The other work was done on the section lying between the railroad embankments. Mr. Teezel said that he has no tile on his farm. He said that the day after a three inch rainfall he can go anywhere on the farm with a truck and he can work the land so it has good natural drainage. Mr. Teezel filed photos that he took in 1996 showing a berm placed on the DeBruyn farm running parallel to the railway embankment. He said that, at the point where the Grant Drain crosses the railway the berm is twelve feet high and prevents water from flowing from the railway across the DeBruyn property at that point. Mr. Teezel told the Tribunal that despite this berm allowing no upstream water to flow onto the DeBruyn property there were still areas of ponded water on the DeBruyn property. Mr. Teezel said that, in his opinion, the drain should remain at the same size as it was in 1929 but should be lowered.

The Tribunal examined the evidence and came to the following conclusions.

The Tribunal decided to deny the appeal under section 48 that the drain capacity should be increased. In the opinion of the Tribunal, there will be surface flow across the DeBruyn property regardless of the design criteria used. The Tribunal was influenced by the testimony of Mr. Teezel that after a three inch rain he can work his fields within twenty four hours despite the fact that he has no tile drainage because this particular soil has good natural drainage. The Tribunal accepted the argument of Mr. Dries that the proposed drain is technically and financially reasonable given the soils and slope of this particular watershed.

The Tribunal recognizes that Mr. DeBruyn has the opportunity to maintain the existing tile to supplement the capacity of the drain if he wishes and has constructed a berm to limit the flow of surface water.

The Tribunal was told that the land use in the watershed has changed from the 1929 report to the current report. These changes mean there is less pasture land and more land dedicated to row crop production. The evidence given was that there is a similar pattern of land use over the entire watershed. It is undisputed that the owners in the upper watershed will receive some advantages because the new larger outlet is provided on the upstream side of the railway embankments and they will therefore receive an improved outlet. The evidence is also undisputed that Mr. DeBruyn's choice of cropping practices (less pasture more row cropping) has resulted in more opportunity for erosion damage on his lands than had occurred previously. The Act provides no guidance on how to divide the assessment between outlet and benefit. Two experienced drainage engineers expressed their opinions to the Tribunal and the Tribunal applied its experience and decided that, in this case, an appropriate division between outlet and benefit is a 50/50 split as opposed to the 60% benefit, 40% outlet split proposed in the report. In arriving at this decision the Tribunal recognizes the uniqueness of this watershed in that the only way for surface water to flow from the upper watershed - both natural surface drainage and water artificially collected - is through the Grant Drain or the culvert under the railway embankment. Because of this fact, the Tribunal is of the opinion that the portion of the assessment charged under outlet should be higher than proposed.

The Tribunal is disturbed that the argument on the area draining from the DeBruyn property had not been raised earlier in the proceedings. Clearly if this was a major issue for the appellant he ought to have brought it to the attention of the engineer and the Court of Revision so local knowledge could have been applied to addressing the issue and more information would have been brought to the Tribunal to make a decision. As it is, the evidence placed before the Tribunal is that one engineer used figures from one set of reports to calculate 21 acres draining from the DeBruyn property, another engineer used the figures from another report and calculated 45 acres, and the property owner stated the area should be 25 acres. None of the evidence was clear as to whether this was the total area draining into the Grant Drain, that is, the area draining into the Grant drain and the Branch drain or just the area draining into the Grant drain with an additional acreage draining to the Branch drain. The Tribunal finds that 25 acres of the DeBruyn property drain into the Grant Drain and an additional 5 acres drain into the Branch Drain so the total area draining into the Grant Drain from Pt Lot 17 and 18, Concession NMR, roll number 4-19010 is 30 acres. The Clerk is to place a notation to this effect into the file for the Spring Creek Drain and notify the Clerk of the adjacent municipality (Howard Township) so the next time a report is prepared on the Spring Creek Drain the appropriate area of this lot will be assessed to the Spring Creek drain. If the owner of the property identified as roll number 4-19010, Pt Lot 17 and 18, Concession NMR, provides information to convince an engineer in the future that this division of the property is incorrect and a different area drains to Spring Creek or the Grant Drain, that engineer may modify the areas in both reports. The Tribunal makes this determination reluctantly as it would have preferred this information had been presented to the engineer and the Court of Revision for consideration prior to being presented to the Tribunal.

Two minor items were also raised at the hearing. It appears that:

1/ the ownership of Lot 4 and pt Lot 5, concession 4 has changed from C. Johnston to T. Scott, and

2/ the roll number for the property owned by Mr. William Long may be incorrect.

When the assessment schedule is being revised to reflect the decision of the Tribunal these two items should be verified by the Clerk of the township and corrected, if necessary.

ORDER OF THE TRIBUNAL

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

1. The appeal of Mr. DeBruyn under section 48 requesting the drain be modified by increasing the size of the drain to accommodate a 25 mm drainage coefficient is dismissed.

2. The appeal of Mr. DeBruyn under section 54 from the Court of Revision is granted in that the engineer is instructed to recalculate the benefit and outlet assessments using the same principles and methods used in calculating the proposed assessment schedule but utilizing a division of 50% for benefit and 50% for outlet rather than a 60/40 split and an area draining from the DeBruyn property of 25 acres to the Grant Drain directly and 5 acres to the Branch Drain directly.

3. 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.

The reasons for this decision are:

1/ In the opinion of the Tribunal, a greater emphasis than indicated in the report ought to be placed on the outlet assessment for this particular work.

2/ In the opinion of the Tribunal, the design proposed by Mr. Dries is a reasonable design from both a technical and cost viewpoint given the soils and land use in this watershed.

Dated at Chatsworth, Ontario this 29th day of January, 1997