Shaw Drain (Re), 1997 ONAFRAAT 23

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:

Shaw Drain Township of Anderdon

Shaw Drain (RE) 1997 ONAFRAAT 23

STATUTE:

Drainage Act

HEARING:

June 6, 1997

DATE OF DECISION:

June 18, 1997

1997-23

NEUTRAL CITATION:

1997 ONAFRAAT 23

Shaw Drain Township of Anderdon

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 Brian and Elizabeth Keenan and 823850 Ontario Ltd. under Section 48 and Section 54 of the Drainage Act from the design and assessments in the engineer’s report for the Shaw Drain, Township of Anderdon.

Before:

Mr. Andrew Wright, Vice-Chair; Mr. Herb Todgham, Vice-Chair; Mr. Warren Jenner, Member.

Appearances:

Mr. Paul Courey, on behalf of the appellants Brian and Elizabeth Keenan and 823850 Ltd.

Mr. Gerard Rood, P. Eng., on behalf of the respondent, the Township of Anderdon.

DECISION OF THE TRIBUNAL

This appeal was heard on June 6, 1997 in the Council Chambers of the Township of Anderdon (the Township) 3400 Middle Sideroad, Amherstburg, Ontario. Mr. David Mailloux, Clerk- Administrator of the Township, performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal). Brian and Elizabeth Keenan appealed to the Tribunal on behalf of 823850 Ontario Ltd. under Section 48 and Section 54 of the Drainage Act (the Act) from the design and assessments in the engineer’s report for the Shaw 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.

48. (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 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.

The Background

Peralta Engineering Ltd. was appointed by the Township on March 28, 1994 to prepare a report to provide for the repair and improvement of the complete length of the Shaw Drain. Mr. Nick Peralta, P. Eng., attended some of the early meetings but Mr. Gerard Rood, P. Eng., was the engineer in charge of the project.

The Shaw Drain is an open Municipal Drain which extends in a general northerly direction from its upper end near the mid-point of Field Lot 8, Concession 4, downstream along the westerly side of the 5th Concession Road to approximately the mid-point of Field Lot 11, Concession 4, where it turns easterly and proceeds under the 5th Concession Road and downstream to an outlet in the Canard River, all within the Township.

The complete length of the Shaw Drain was last improved under an engineer's report prepared by C. G. R. Armstrong, P. Eng., dated November 21, 1969.

Improvements to the outlet portion of the Shaw Drain extending from the 5th Concession Road to the Canard River were also carried out under an engineer's report prepared by E. O. Lafontaine, P. Eng., dated February 24, 1983. In addition to the lands assessed under the 1969 Armstrong report, this report includes assessments to lands lying along the easterly side of the 5th Concession Road. These lands utilize an existing ditch along the east side of the 5th Concession Road that is locally known as the Grondin D&W Drain and said ditch outlets through the portion of the Shaw Drain extending from the 5th Concession Road to the Canard River.

A site meeting was held on April 26, 1994. Mr. Peralta advised that he was aware of two bridges out of repair including one where the owner requested that the bridge be extended.

The engineer conducted a detailed survey, investigations, examinations, discussions and filed a report with the following recommendations:

• The complete length of the drain should be excavated to restore the design cross-section and grade and the existing culverts should be repaired or replaced.

• The drain, at the locations where it is of insufficient width for bank stability, should be widened. Capacity of the drain is not an issue.

• The west bank of the drain from approximately Station 0+580 to Station 0+732 should be improved where it is eroded and very irregular.

• The brush and trees should be completely cut and removed along the drain where brush and trees exist. Vegetation should be close cut and the stumps should be left in place.

• A gabion weir should be constructed at the bridge through the 5th Concession Road Bridge to provide a drop structure. The work includes the installation of compacted clay fill upstream and quarried limestone rip rap on filter cloth erosion protection upstream and downstream of the weir.

• Tile outlets should be protected by the installation of Standard Tile Outlets.

• Rock chute spillways should be constructed at the various locations throughout at surface water inlet locations.

• Removal of the Puryk bridge and enlargement of the bridge for the Payne property.

This report dated March 22, 1996 was circulated by the Council of the Township. After consideration of the report, Council gave direction not to allow individual work on bridges in circumstances where there is a report available to provide for such work and, as a result, on June 12, 1996, an addendum to the original report was issued. The report and addendum were adopted by By-law Number 3063 and a Court of Revision held. After the decisions of the Court of Revision were announced, the Keenans appealed to the Tribunal requesting that the report be modified by taking the drain to an alternate outlet to the Canard River at the North Sideroad, or at the 5th Concession Road, or to the Lafferty-Bezaire Drain. They also appealed that the allowances were inadequate and the assessment was too high.

The Issue

There are two issues before the Tribunal:

Should the report before the Tribunal be altered as it pertains to some part or all of the proposed works or, alternatively, should the report be referred back to the engineer for reconsideration in view of the evidence and submissions presented to the Tribunal?

Should the assessments and allowances as proposed in the report be adjusted or, alternatively, should they be referred back to the engineer for reconsideration on the basis of some error identified by the Tribunal?

The Evidence and the Findings

Mr. Gerard Rood, P. Eng., the engineer who signed the March 22, 1996 engineer’s report outlined the report, the history of the project and then told the Tribunal that he used the Lafontaine and Armstrong reports as the basis of preparing his assessments.

The work downstream of the 5th Concession Road was estimated at $4,030.00 of which $3,865.00 was assessed as outlet to the upstream watershed and the remainder as benefit - a 96%/4% outlet to benefit split. This was assessed according to the schedule in the Lafontaine report.

Mr. Rood said that $17,920.00 or 47% of the cost upstream of the 5th Concession Road was charged as outlet. The benefit was charged in the same proportions as established in the Armstrong and Lafontaine reports.

Mr. Rood assessed 50% of the cost of the drop structure at the 5th Concession Road to the road as a special benefit and the balance to the drain upstream of the road as outlet.

Mr. Rood said that he provided allowances for land damages on the basis of $300.00 per acre and for land taken to widen the drain at $3,000.00 per acre for agricultural land upstream of the 5th Concession Road and $24,000.00 per acre for the residential land downstream of the 5th Concession Road. He said that the Keenan property received allowances at the $24,000.00 rate even though it is used for agricultural purposes (equestrian stables).

Mr. Rood said that the proposed grade line closely follows the original grade. It has been deepened just slightly through the middle portion to provide a more uniform grade. The portion immediately east of the 5th Concession Road is lower than the original grade - he matched the existing grade at this point - then flattened from the road to the Canard River to a grade of 0.49%. He said the original grade was 0.7%. The result is that at the Canard River outlet the drain is 249 mm higher than the grade line in the 1969 Armstrong report while at the 5th Concession Road, it is about 250 mm lower at the east side of the road crossing than the Armstrong report. Mr. Rood said this flatter grade will help to reduce erosion on the outlet section of the Shaw Drain.

Mr. Paul Courey, speaking on behalf of the Keenans, told the Tribunal that the appellants are at the bottom end of the drain and bear the brunt of the project. He said an enormous amount of water is brought down from a large upstream watershed. He agreed that the drain bottom is irregular and has sediment and causes problems upstream. This sediment acts as an effective protection structure for the Keenan land by impeding the flow and slowing the water. He said that the major problem is that the outlet is insufficient.

He said that the drain outlets immediately upstream of a sharp bend in the Canard River. The Keenans contend that the velocity of the water in the Shaw Drain entering the river causes an eddy current in the river water that scours the bank downstream of the outlet causing damage to their property. Mr. Courey said that the remedy requested is to have the outlet at a different place or protected so the erosion is controlled. If a sufficient outlet is not or cannot be provided, then the Keenan property should be compensated for the insufficient outlet. Mr. Courey argued that a sufficient outlet cannot be obtained because of the variation in the water level in the river.

Mr. Brian Keenan told the Tribunal that he is a shareholder and a member of the board of directors of 823859 Ontario Ltd. and has authority to speak for the company. He said that the company has owned the land for eight years and operates a riding center on the land as the primary use. He said it is a recreational facility. There is a field in the front for hay that is the only crop raised.

Mr. Keenan said the drain is about four feet wide at the base, six to ten feet deep, depending on where you are on the property, and about 14 feet across at the top. He said there is a strip of land between the drain and the property boundary that is about 80 feet wide at the road and narrows to five to ten feet at the outlet.

Mr. Keenan said that the field adjacent to the outlet was used when the property was purchased but that it cannot now be so used as it is covered in silt, the grass is killed and the surface is wet rendering the land unusable. Mr. Keenan also complained that there were unauthorized tile outlets for lands to the south on his land and a ditch from the Laframboise property that he objected to. Mr. Keenan said that he recognized this issue was not part of this appeal but was an indication of the problems he was having on the property.

Mr. Keenan filed photos with the Tribunal indicating the tile outlets, a log that had been deposited on his land by the flow of water and a large tree that was on the bank of the Canard River when he came to the property eight years ago but is now surrounded by flood water. Mr. Keenan said that he anticipated the tree was going to wash out and then the river will break through its bank and come straight across the land to his house. He said that the river level varies significantly, perhaps as much as 12 to 15 feet.

Mr. Keenan told the Tribunal that long after the significant volume stops flowing down the Shaw Drain, the river water backs up the Shaw Drain channel and floods and deposits silt across his field and causes erosion. He said the log in the photo must have come up the drain from the Canard. He said there is no way he can block the flow of the Shaw Drain so he has no way to prevent the river from backing up the channel. He said the flow from the Shaw Drain causes eddies in the river water and causes the river to scour its bank in front of his property.

Mr. Keenan said that, in his opinion, the grade should be diminished to prevent intrusion of the river and slow the flow in the drain. He said the ditch is not the bottleneck in the Shaw Drain, the bottleneck is the culverts under the lane ways. The trees and brush should not be removed from the Shaw Drain since drainage is not the issue, the issue is protection from erosion.

Mr. Keenan told the Tribunal that starting just downstream from the confluence of the Canard River and the Shaw Drain, the bank of the Canard should be protected from erosion for a distance of about one hundred feet.

In response to questions from Mr. Rood, Mr. Keenan said that:

• The field south of the Shaw Drain outlet is open and grassed.

• He did not know if water from the Shaw Drain floods this field but the river overflows the bank there and floods.

• There is a line of trees north of the Shaw Drain that protects the river bank at the confluence of the Canard River and the Shaw Drain but the river erodes downstream of that point.

• He has not taken steps to investigate protecting the bank of the Canard River.

• The flood waters from the Canard River cause erosion in the Shaw Drain.

• The flow in the Shaw Drain has stopped at the 5th Concession Road long before the Canard River water goes back into its banks.

• He wants the drain left alone on his property, or perhaps filled in, to allow the fall of the drain to diminish so less river water can back up the drain when the river is in flood.

Mrs. Elizabeth Keenan told the Tribunal that she manages the equestrian center, maintains horses and coaches riding. She said she in on the property most days and she used to get around more on the land but it is too wet now. She said the constant wetness on the low area limits the training she can do. Mrs. Keenan indicated that when they first moved to the property, they held cross country competitions along the drain bank and they had a lovely bridle path and now it is exposed clay so they cannot ride there. She said they have lost the use of that nine acres altogether.

Mrs. Keenan told the Tribunal that, on June 5, she took a reed and put it into the Shaw Drain water 15 feet upstream of the outlet. She said the reed went downstream at a good clip to the outlet where it stopped and then circulated for ten minutes. She said that this indicated to her that the water from the drain did not flow into the river. She said that at that time, the river water level was rapidly falling from the height of the day before and it was two feet below the bank.

Mr. Robert Souchereau, an assessed owner on the west side of 5th Concession Road at the deepest section of the ditch, told the Tribunal that he has lived there for more than 25 years. He said that the ditch has been cleaned twice. He said that all the properties south of the drain have water that is restricted by the culverts and during floods have flooded basements.

Mr. Rood told the Tribunal that the Shaw Drain outlet has a well defined channel with well defined banks from the road to the river but the upstream portion has some slumping banks. The removal of the brush and trees reduces the possibility of blockage by flotsam coming down from the upper watershed. He said he intends to preserve as much of the vegetation on the top of the bank as possible but remove the vegetation from the channel cross section. He said the recommended excavation is dipping the bottom where there is little vegetation because of the steep grade and the water velocity. Mr. Rood argued that taking the brush and the trees out will enhance the flow to the center of the channel and reduce the chance of water being directed to the bank and causing erosion.

Mr. Rood indicated that the drain work would be from the south bank of the Shaw Drain. This is because there are no trees on this side just an open grassed field. He said that the Shaw Drain has a wide open channel for the last 150 feet before the River so there is no need for brushing or tree removal at this location.

Mr. Rood told the Tribunal that he had conducted an analysis of the flow in the outlet section of the Shaw Drain. He said his calculations indicated that the drain channel could pass the 100-year storm with a depth of flow of 1.75 feet. He said that the lowest part of the drain bank is more than two feet so the channel is of sufficient capacity to hold even this flow within the banks. Mr. Rood said that the channel floods when the Canard River backs up the drain and this happens each year. At times of high flow in the Canard River, there is no distinguishable flow of water in the Shaw Drain approaching the outlet into the river. He said that the Canard River overflows its banks during a two-year storm event.

Mr. Rood argued that he has properly addressed putting the Shaw Drain to its previous condition established under past reports. He said the proposed work will not aggravate conditions on the drain. He argued that the problems Mr. Keenan was facing are from the water of the Canard River and are not part of the proposed project.

Mr. Rood indicated that he had advised Mr. Keenan to submit a petition to the Council if he wished to have the alternative outlets he suggested be examined in detail. He said that he has done a cursory examination of the proposals using topographic mapping and concluded that the cost of the projects and the size of the required diversion channels made them impractical when compared to the cost of cleaning the current Shaw Drain outlet. He said that Mr. Keenan had not filed a petition with the Council to have the suggested alternate routes examined in further detail.

The Tribunal examined the evidence. The appellants ask for an allowance under Section 32 of the Act. Section 32 states:

32. Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low-lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low‑lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low‑lying lands in respect of such injuries. R.S.O. 1980, c. 126, s. 32. (emphasis added by the Tribunal)

The evidence of the engineer was that there is sufficient capacity in the Shaw Drain to carry off the water of the drain. Mr. Keenan brought photos indicating damage to his lands from flooding and hypothesized that the Shaw Drain was a contributing factor to this damage. He brought no evidence as to how much of the damage was attributable to the drain as opposed to the Canard River. In the Tribunal’s view, the Shaw Drain watershed is a relatively small area with a short distance to flow to the Canard River. In the normal course of events, the Shaw Drain will have drained its watershed before the Canard River rises and backs into the Shaw Drain channel and causes the damage that is the focus of concern on this appeal. In the opinion of the Tribunal, there is no damage that arises to the Keenan property from the water flowing from the Shaw Drain watershed in the drain. The damage that the Tribunal heard about comes from the rising water in the Canard River, backing into the low lands, including the low lands on both sides of the Shaw Drain back up toward the 5th Concession Road. This is Canard River water and has nothing to do with the Shaw Drain. The appellants are asking for an allowance under Section 32 for an insufficient outlet. In the opinion of the Tribunal, it is not appropriate to pay an allowance under Section 32 when the damage does not arise from the water flowing in the drain.

The appellants asked that the report be referred back for reconsideration to decrease the velocities of water flowing in the upper reaches of the Shaw drain. The velocity of water in the upper reaches is not causing the problem. In fact, the water flowing quickly out of the upper reaches ensures that it gets to the Canard River before it begins to rise. In the opinion of the Tribunal, the restoration of the 1969 grades with the modest flattening of the grade provided is an appropriate approach to a section 78 project such as was authorized by the municipality.

The Tribunal was also asked to refer the report back for a more thorough consideration of the Grondin Drain to determine whether or not the assessment of those involved with the Grondin Drain were being properly assessed into the Shaw Drain. The Tribunal’s view of the evidence was that this exercise was undertaken by Mr. Lafontaine in his work reported in 1983 and no further study is warranted on this report at this stage in the proceedings.

The Tribunal was asked to refer the report back for reconsideration of the water flowing to the Shaw Drain out of the Laframboise property lying to the south of the Keenan property. The Tribunal heard speculation but little evidence about whether the assessments prepared by Mr. Lafontaine in that respect were incorrect and it heard nothing that would warrant delaying this project for a reconsideration of that issue.

The appellants asked that the report be referred back to investigate alternative outlets. The engineer indicated that he had made a cursory examination of the alternatives suggested and concluded that the alternatives were impractical as compared to following the existing channel. The appellants brought no compelling evidence to convince the Tribunal that the engineer should be directed to conduct further investigations.

If the appellants had presented reasonable evidence that another specific route would provide as good (or better) outlet for the Shaw Drain, while at the same time reducing his problem with the Canard River water, and if he had offered to pay at least part of the cost of the work to accomplish this outlet, the Tribunal might well have entertained referring the report back to the engineer for consideration of the proposed alternative. However, the appellants presented no such evidence. Mr. Keenan merely stated that he wants to rid his property of the Shaw Drain but other than asking to “relocate it”, he presented no facts as to how this might be accomplished. Without some evidence that there may be a better alternative route than the existing one, the Tribunal believes it would be completely unreasonable to incur the delay and expense of referring the report back to the engineer to investigate further the possibility of relocating the drain.

Decision and Reasons

After examining the evidence and the submissions, the Tribunal decided to deny the appeals.

The reasons for this decision are:

1. In the opinion of the Tribunal, it is not appropriate to pay an allowance under Section 32 when the damage does not arise from the water flowing in the drain.

2. In the opinion of the Tribunal, the restoration of the 1969 grades with the modest flattening of the grade provided is an appropriate approach to a section 78 project such as was authorized by the municipality.

3. In the opinion of the Tribunal, there was no evidence to justify the delay and expense involved in ordering further investigation of relocating the existing drain.

4. The Tribunal was not convinced by the evidence that the assessments proposed by the engineer contained any error in principle or calculation.

ORDER OF THE TRIBUNAL

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

1. The appeal of 823850 Ontario Ltd. and Brian and Elizabeth Keenan under Section 48 of the Drainage Act is dismissed.

2. The appeal of 823850 Ontario Ltd. and Brian and Elizabeth Keenan under Section 54 of the Drainage Act is dismissed.

3. 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.

Dated at London, Ontario this 18th day of June, 1997.