Bruyn Municipal Drain Improvement (Re), 1997 ONAFRAAT 28

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:

Bruyn Municipal Drain Improvement Township of North Dorchester

Bruyn Municipal Drain Improvement (RE) 1997 ONAFRAAT 28

STATUTE:

Drainage Act

HEARING:

July 9, 1997

DATE OF DECISION:

July 14, 1997

1997-28

NEUTRAL CITATION:

1997 ONAFRAAT 28

Bruyn Municipal Drain Improvement Township of North Dorchester

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 Catherine and William Cocchio and Robert Jackson under Section 54 of the Drainage Act from a decision of the Court of Revision with respect to the Bruyn Municipal Drain Improvement 1997, in the Corporation of the Township of North Dorchester.

Before:

Mr. Andrew Wright, Vice Chair; Mr. Warren Jenner, Member; Mr. Russell Piper, Member

Appearances:

Mr. Robert Jackson, appellant

Ms. Catherine Cocchio, appellant

Paul Elston, P. Eng., on behalf of the respondent the Township of North Dorchester

DECISION OF THE TRIBUNAL

This appeal was heard in the Council chambers of the Township of North Dorchester (the Township), in Dorchester Ontario on Wednesday July 9, 1997. Florence Lindeboom, Deputy Clerk of the Township, performed the duties of the Clerk of the Tribunal.

Catherine and William Cocchio and Robert Jackson appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision with respect to the Bruyn Municipal Drain Improvement 1997.

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

The Bruyn Drain was originally constructed pursuant to a report dated Sept. 23, 1974 prepared by J. P. McIntyre Engineering Ltd. consisting of a closed Main Drain and a Branch Drain. The 1974 drain was designed using a design coefficient of approximately 12mm ( ½ ") per 24 hours.

The 1974 Main Drain portion commences at the southerly side of Highway No. 401 as a 300mm tile and follows a southeasterly course approximately 428m downstream to the junction of Branch 'A' on Lot 1, Concession 2. At this point, the Main Drain changes in size to a 400mm tile. The Main Drain then follows a southerly course approximately 459m downstream to an outlet in the North Branch of the Dingman Creek (open channel).

The 1974 Branch 'A' Drain commences at the downstream side of an existing stormwater pond on the Husky Oil Ltd. property (Part of the North Part of Lot 1, Concession 2) and follows a southerly course approximately 144m to an outlet in the Main Drain. The 1974 Branch 'A' Drain is a 300mm tile throughout its length.

The Bruyn Municipal Drain Improvement 1997 proposal was initiated under Section 78 of the Act upon the request of John Bruyn, owner of Bruynland Farm Inc., Part of Lot 1, Concession 2 (former Township of Westminster) in the Township of North Dorchester. The watershed is roughly triangular in shape and comprises approximately 100 hectares of land and roads. The watershed area is, for the majority, in agricultural use with a portion of the watershed in commercial use or under ownership for which necessitates a non-agricultural designation (eg. Ontario Hydro, MTO). The watershed area is bisected in an east/west direction by Highway No. 401.

The 100 hectares are comprised of the following land uses/ownership:

50.45 ha have been designated as agricultural

16.85 ha have been designated as non-agricultural

32.70 ha Highway 401 and ramps

100.00 ha TOTAL WATERSHED AREA

Of the 100 ha watershed area:

46.90 ha approximately are upstream of Highway No. 401,

20.40 ha approximately are downstream of Highway No. 401

32.70 ha approximately Highway No. 401

Since 1974, the characteristics of several of the properties within the watershed area have changed:

• Drainage facilities on Highway No. 401 have been upgraded, the interchange at Highway No. 74 has been reconstructed and the Highway has been widened from four to six lanes (i.e. the pavement and sealed areas have been increased in width from 14.6m to 46m.

• Husky Oil Ltd. has acquired an additional 1.6 ha on Lot 2, Concession 2 upon which a gravel parking lot has been constructed.

• Husky Oil Ltd. has altered the drainage pattern on their property by constructing a ponding area at the upstream limit of Branch 'A' Drain which buffers the stormwater between Highway No. 401 and the downstream farmland.

• The Bruynland Farm Inc. property on Part of Lot 1, Concession 2 has been systematically tiled.

• In or about 1975, Branch No. 4 of the Jackson Manning Drain on the R. Jackson property (Part of Lot 24, Concession 1 SRT) was repaired and improved. This drain was constructed with its outlet into the drainage system located on Highway No. 401.

The 1997 drainage proposal has been designed to provide an outlet for the runoff that would be generated from a storm event slightly smaller than a 2 year frequency. This resulted in a drainage coefficient of about 38mm/24 hours (1.5 inches/24 hours) across the watershed area.

The total estimated cost of the work is $60, 360.00

Main Drain

Est. Cost of Construction $31,150.00

Allowances $ 5,105.00

Administration $11,664.00

TOTAL $47,919.00

Branch 'A'

Est. Cost of Construction $ 8,385.00

Allowances $ 960.00

Administration $ 3,096.00

TOTAL $12,441.00

TOTAL COST of the DRAIN $60,360.00

The Issue

The issue before the Tribunal is whether or not the assessments, as proposed in the February 12, 1997 engineer’s report, are appropriate.

The Evidence and the Findings

Mr. Paul Elston, P. Eng., appeared before the Tribunal on behalf of Mr. W. Bartlett, P. Eng., the engineer who prepared and signed the February 12, 1997 engineer’s report on the Bruyn Drain. While it is customary for the engineer who prepared the report to present it to the Tribunal, Mr. Elston told the Tribunal that Mr. Bartlett was unavailable for the hearing, that they had fully discussed the report and that he had reviewed the watershed, the engineering design and assessments and was fully prepared to speak to any issue that would be raised at the hearing. The Tribunal accepted the evidence of Mr. Elston.

Mr. Elston told the Tribunal that the current design standard for tile drains that have open inlets to allow surface water direct entry into the tile is a rate of removal of 25mm/24 hours (1 inch/24 hours). He said that to achieve this design standard, not considering the changes in the watershed characteristics since 1974, would require that the Bruyn Drain Main Drain be augmented with a new 400mm (16") tile and the 1974 Bruyn Drain Branch 'A' Drain would be augmented with a new 350mm (14") tile.

He said the present report proposes to construct a new 600mm (24") tile to work in conjunction with the Main Drain and a new 525mm (21") tile to work in conjunction with the Branch Drain. This increase in size results in an increase in cost of approximately $14,000.

He said that the cost is assessed for Benefit and Outlet Liabilities in accordance with the provisions of the Act as follows:

Main Drain

Benefit Liability represents 25.6% of the total cost

Outlet Liability represents 74.4% of the total cost

Branch 'A'

Benefit Liability represents 21.7% of the total cost

Outlet Liability represents 78.3% of the total cost

He said the Outlet Liability was based upon the "volume and rate of flow of the water artificially caused to flow..."

He said that Outlet Liability against MTO for Highway 401 was assessed at a rate eight times (8X) that of farmland in both the Main Drain ( $864/ha vs. $109/ha) and the Branch Drain ($293/ha vs. $36/ha).

He said that Outlet Liability against Husky Oil Ltd. was assessed at a rate of two times (2X) that of adjacent farmland (i.e. 2 x $87/ha) using a similar length of drain for the Main Drain. No outlet assessment was levied against the Husky Oil property on Branch 'A' because the water from this property does not use Branch ‘A’. According to Mr. Elston, a portion of the Husky Oil Ltd. property is in commercial use while the balance is under cultivation. Hence the reduced factor of runoff from that which might be expected from a purely commercial property.

Mr. Robert Jackson told the Tribunal that he is asking for relief from the assessment because he does not have as much water entering the system as in 1994 because of reconstruction on the highway. He said that he lost three acres through this construction. He said that he had several drains installed before 1974 that are still working fine so he receives no benefit from the proposed work. Mr. Jackson filed photos with the Tribunal indicating that three days after a rain of 1.5 to 2 inches the water was gone and he questioned the need for the proposed work. He said that he has had Highway 401 and 2 power lines constructed on his land and he has paid his “share” of these projects already.

Catherine Cocchio told the Tribunal that her property was originally owned by her mother. She said her mother had a simple philosophy that she followed and that philosophy is: “If you break something you fix it”. Mrs. Cocchio said as she reads Page 2 of the report, the Highway 401 broke the property by widening the lanes and increasing the storm water runoff so the Highway should fix the problem. She said she objects to paying for something she did not cause. She said that if the project proceeds she would like at least an outlet.

Mr. Jackson told the Tribunal that he is Mrs. Cocchio’s uncle and that he is familiar with her property. He said there is a private tile that used to outlet into the Highway drainage system but it has been damaged and is not working. He said that he thinks the tile was broken when Bell Canada installed the fiber optics cable on the Highway property and it has not been repaired.

Mr. Elston explained that, before the Highway 401 road and drainage improvements, MTO's rate of outlet assessment on the Main Drain would have been at a rate of about five times (5X) that of agricultural lands. That is, their assessment would have been about 5 x $109/ha = $545/ha. For 32.7 ha, their assessment would then have been $17,800 or so. The report as proposed assesses $28,260. Therefore, MTO has been assessed an additional $10,460 for outlet on the Main Drain for the pavement widening and drainage improvements. Also MTO's assessment for Branch ‘A’ would have been about 5 x $36/ha = $180/ha. For 30 ha, their assessment would then have been $5,400 or so. The report as proposed assesses $8,780. Therefore, MTO has been assessed an additional $3,400 for outlet on the Branch Drain for the pavement widening and drainage improvements. He argued that MTO’s outlet assessment had been increased by a total of $13,860 or an amount about equal to the increased cost of raising the design standard from the 25mm/24 hour standard to the 38mm/24 hour used in this report.

Mr. Elston said that the C. & W. Cocchio assessment proposed in the report is $342.00 of $60,360.00, or 0.57%. He said the property is assessed at the same rate per hectare ($143/ha) as all other agricultural lands. Mr. Elston said that in the 1974 Bruyn Drain report, this property was assessed $108.00 of $9,475.00 or 1.14% of the total cost. He argued that the present report represents a fair assessment for the property for increasing the design from a ½” to 1½” drainage coefficient.

With respect to the problem of Mrs. Cocchio’s private tile outlet, Mr. Elston said that is beyond the scope of the present work and Mrs. Cocchio could either discuss solving this problem with the MTO or petition for a new Branch drain. Mr. Elston pointed out that since it is a private tile the Township’s drainage superintendent does not have jurisdiction but he could provide some advice on the situation.

Mr. Elston told the Tribunal that Mr. R. Jackson’s assessment under the proposed scheme is $1,299.00 of $60,360.00 or 2.15%. He said that this assessment was calculated at the same rates/ha ($145/ha) as all other agricultural land. He pointed out that in the 1974 Bruyn Drain report, this property was assessed $323.00 of $9,475.00 or 3.41%. Mr. Elston argued that the assessment proposed was fair considering the increase in size of the tile and therefore the increase in service provided to this property. He argued that three days of ponding, as indicated by Mr. Jackson’s photos, would cause crop damage had the storm occurred when there was crop on the land and therefore the project was justified. He also argued that the photos appear to show some erosion on the land which is one of the problems that Bruynland Farms Inc. is attempting to reduce through this project. Mr. Elston said that the first time he heard the argument about the smaller lot size due to MTO construction activities was at the hearing. He pointed out that the areas shown in the report are approximate and he recommended that no change in assessment be made.

In response to questions from the panel, Mr. Elston said that he assigned a runoff coefficient of 0.95 to the asphalt areas of MTO and 0.4 to the grassed and graded areas. He then calculated a coefficient weighted by the areas of these land uses and arrived at a coefficient of 0.68 for the total area owned by MTO. Based on this calculation, he reasoned that an eight times multiplier for MTO was appropriate for this project.

Mr. Elston said that Husky Oil Ltd. has 11.4 hectares in total of which 1 hectare is buildings and asphalt (runoff coefficient 0.6); 1.6 hectares is gravel parking (runoff coefficient of 0.5); and 9 hectares is grassed and agricultural land (runoff coefficient 0.1) giving a weighted runoff coefficient value of 0.2. He therefore used a multiplier of 2 times for the Husky Oil Ltd. property.

Also in response to questions from the panel, Mr. Elston told the Tribunal that a site meeting had been held and that prior to filing the report an informal meeting had been conducted with the landowners to explain the design and assessment principles that the engineer intended to follow in preparing the final report. Chronological information outlining the process followed is helpful to the Tribunal and the appellants and the Tribunal hopes that it will be provided as a matter of course during the hearing.

In response to questions from the panel, Mr. Jackson agreed that his property had received benefit from the 1974 construction and from the construction of tile drains. He agreed that three days ponding would cause problems on crop land and that the storm he had taken photos of did cause some erosion.

Mr. Elston told the Tribunal that there are two typographical errors in the report that he asked the Tribunal to order corrected. The Tribunal decided to order these changes.

On reviewing the evidence, the Tribunal came to the conclusion that the engineer has presented a reasonable proposal to improve the drain and has appropriately assessed the lands and roads for the cost of the work. The Tribunal notes that the MTO has been charged the cost of oversizing the outlet while the lands have been charged for the cost of bringing the drain to a 1997 design standard from the 1974 design standard.

The Tribunal wishes to complement the appellants for the concise straight forward manner in which they presented their evidence. Both appellants were quite clear in their request and their reasoning and this greatly assisted the Tribunal.

ORDER OF THE TRIBUNAL

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

1. The appeal of Robert Jackson under Section 54 of the Drainage Act is dismissed.

2. The appeal of Catherine and William Cocchio under Section 54 of the Drainage Act is dismissed.

3. On page 5 of the report between the lines which read “Survey, design, preparation …” and “Contingencies and allowances for G.S.T.” insert a line which reads “Tender Call, preparation of contract, supervision of construction and final inspection $3,200.00”.

4. On page 8 of the report in the schedule of assessment the outlet liability total shown in the column titled “Total Assessment Main Drain” is shown as $35,679.00. This figure is to be changed to read $35,669.00

5. 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 14^th^ day of July 1997.