Willford Road Municipal Drain (Re), 1997 ONAFRAAT 3

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:

Willford Road Municipal Drain Township of Wainfleet

Willford Road Municipal Drain (RE) 1997 ONAFRAAT 3

STATUTE:

Drainage Act

HEARING:

January 20, 1997

DATE OF DECISION:

February 3, 1997

1997-03

NEUTRAL CITATION:

1997 ONAFRAAT 3

Willford Road Municipal Drain Township of Wainfleet

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 under Section 54 of the Drainage Act by Graeme and Debra Ross from the May 13, 1996 decision of the Court of Revision and under Section 48 on grounds to be stated from the engineer's report on the WILLFORD ROAD MUNICIPAL DRAIN, TOWNSHIP OF WAINFLEET.

Before: Mr. Andrew Osyany, Vice-Chair; Mr. Andrew Wright, Vice-Chair; Mr. John Bacher, Member.

Appearances: Mr. Dean Webb, assessed ratepayer. Mr. Richard Abraham, assessed ratepayer. Mr. Callum Shedden, counsel to the appellant. Mr. Bryan Wiebe, P. Eng., on behalf of the respondent the Township of Wainfleet. Mr. George Banks, counsel to the respondent the Township of Wainfleet.

DECISION OF THE TRIBUNAL

This appeal was heard in Wainfleet, Ontario on January 20, 1997. Mr. Albert Guiler, Clerk-Treasurer of the Township of Wainfleet (the Township), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).

This appeal, originally scheduled for July 3, 1996, was postponed at the request of the appellant to allow time to obtain engineering evidence for a Section 48 appeal. At the beginning of the hearing Mr. Callum Shedden, solicitor for the appellant, told the Tribunal that no additional engineering evidence had been obtained and therefore the appellant was abandoning the appeal under Section 48 of the Drainage Act (the Act) and dealing only with the Section 54 appeal.

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.

55. (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.

56. (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. 1990, c. D. 17, s. 54.

At the start of the hearing, the Tribunal issued an order making all assessed owners parties to the appeal.

The Background

The proposed Willford Road Drain is detailed in an engineering report dated October 20, 1995 prepared by Wiebe Engineering Group Inc. and signed by J. Bryon Wiebe, P. Eng. The report was prepared pursuant to Section 4 of the Act in response to a petition of affected landowners.

The present drainage works is comprised of a portion of watercourse following the natural depression of the land from the Beaver Creek to Willford Road and portions of both the north and south roadside ditches of Willford Road. These watercourses presently have no status under the Act or any of its predecessors.

The watershed is generally oval in shape, measuring approximately 0.8 kilometres wide and 3.4 kilometres long encompassing a land area of 228 hectares (564 acres).

The proposed work consists of debris removal, cleaning of the existing open ditches, clearing and brushing of the working space, erosion protection, revegetation of disturbed areas and installation of road crossings and private crossings.

The total estimated cost of the work is $94,700.00.

The Issue

At the start of the hearing Mr. Shedden listed the three areas of concern to the appellant as follows:

1. The assessment for benefit is incorrect. In the opinion of the appellants, the benefit assessments against their lands should by reduced to $0.00.

2. The report provides no allowance under Section 31 for the existing drain on the appellants' lands that is being incorporated as part of this drainage works.

3. The apportionment of future maintenance costs for the lane culvert on the appellants' land should be modified from the ratio of 50% to the owner - 50% to the upstream watershed currently proposed in the report to 75% to the upstream watershed and 25% to the property owners.

In view of the appeal being against assessment, the Tribunal made an order adding all assessed owners as parties to the appeal. As a result of this order, several assessed owners participated in the appeal, and one assessed owner, Dean Webb, sought to have his assessment reduced.

The Evidence and the Findings

Mr. Bryon Wiebe, P. Eng., the engineer who prepared the report for the Willford Road drain, told the Tribunal that the appellants' land is located at the outlet of the proposed drain just upstream of where the channel empties into the Beaver Creek. The Beaver Creek then outlets into the Welland River. Mr. Wiebe said that at times of high flow the Welland River backs up into the Beaver Creek which backs up onto the lands of the appellant. At these times the appellants' lane is flooded to a depth of as much as two feet of water. Mr. Wiebe said that the existing 900 mm lane culvert is undersized and the lane overtops several times during the year. Two possible solutions for this problem were considered. The first solution was one large culvert - this required a deepening of the channel downstream of the lane to provide an outflow for the culvert. The second alterative was installation of an additional 900 mm culvert. Since the channel downstream of the lane was of sufficient dimensions it was not necessary to work on this portion of the drainage works if this option was chosen. The report recommends the installation of a second culvert under the appellants' lane to provide additional capacity and the incorporation of the existing channel as part of the drainage works.

Mr. Wiebe said he did not provide an allowance under Section 31 since there is no evidence that work had been done on this channel by the appellants. Mr. Wiebe argued that it was his understanding that:

a) if a landowner did some work on a drain and

b) this work makes the drain different from how it originally existed in nature and

c) the drain is improved and

d) that reduces the cost of a drainage works proposed under the Act

then that owner would get an allowance under Section 31.

Mr. Wiebe said the appellant had not done any work on the channel and therefore was not eligible for an allowance under Section 31.

With respect to the assessments, Mr. Wiebe told the Tribunal he first determines if there are any special assessments - that is assessments for increased costs due to roads and utilities. In this case, the township has a number of crossings that resulted in special benefit assessments totalling $33,100.00. In addition, he assessed a box culvert under Regional Road 24 for a special assessment of $1,850.00. The total for special benefit assessments against roads is $34,950.00. Mr. Wiebe said that, once the special assessments were taken into account the balance of the costs were assessed as benefit and outlet to the watershed. He said he assesses a benefit assessment for abutting benefit - any landowner abutting the drain was assessed benefit - in the range of $1.00 to $1.50 per meter. He also assessed for direct benefit - a specific item of work of benefit to a particular landowner but not the whole drain. In the case of culvert on the appellants' property, the culvert is assessed a direct benefit based on the construction cost. Mr. Wiebe said that he assessed the whole construction cost to the landowner as a direct benefit.

Mr. Wiebe told the Tribunal that he sometimes assesses for outlet benefit if the report provides a significant improvement to a drain to provide for a tile outlet. He said that did not apply to this project.

Once the benefit assessment has been set, the remainder of the cost is assessed as outlet assessments. Mr. Wiebe said that outlet assessment is based on land use, the amount of area and travel length.

Mr. Wiebe said that for the appellants' property the assessment was calculated as follows:

1. Direct benefit $1200.00.

2. Abutting benefit at $1.00 per meter for a total of $342.00.

3. Outlet of $66.00.

Mr. Shedden argued that Section 31 does not state that the owner of the drain has had to do work on the channel to be eligible for an allowance. He said that the section merely states that where an existing drain is incorporated as part of a drainage works the engineer shall allow in money to the owner of the drain the value of the existing drain to the drainage works. Mr. Shedden argued that since the existing channel on the appellants' property reduced the cost of the drain, the owner ought to have been provided an allowance for this drain.

Mr. Shedden also argued that the benefit assessment for the culvert across the appellant's lane was excessive. He said that the proposed drain would have no effect on the flooding of the lane when the water backed up from the Welland River. He said that the increased capacity would benefit the upper owners as their water would be able to flow across the appellants' lane faster when the Welland River was not in flood. He could find no benefit to the appellants from the installation of the additional culvert.

With respect to the abutting benefit, Mr. Shedden argued that the assessment was not in compliance with the requirements of the Act. Mr. Shedden pointed out that benefit is defined in the Act as "advantages to any lands, roads, buildings or other structures from the construction ... of a drainage works such will result in ... advantages relating to the betterment of lands...". Mr. Shedden argued that an assessment based on a uniform rate per length of drain could not take into account the various benefits that would be gained by the various properties. He said that the benefit assessment had to be based on a benefit to that particular property that could be attributed directly to the construction of the drain and therefore could not be captured in a uniform assessment per length of drain.

The Tribunal examined the evidence. The Tribunal agrees with Mr. Wiebe on the interpretation of Section 31. In the opinion of the Tribunal, Section 31 is intended to provide for costs that a landowner has incurred to maintain a drain where that maintenance work has a value to the current work. In this case, there is no evidence before the Tribunal that any work has been done to the channel on the appellants' property. Therefore Mr. Wiebe was correct in not providing an allowance for incorporation of this portion of the channel.

With respect to the assessments for future maintenance of the culvert on the appellant's property, the proposed division of assessment at 50/50 is within the normal range that the Tribunal has found in its hearings. The only argument that the appellants provided was that the assessment should be changed to a 75/25 split. No rationale to support this division was provided. The Tribunal was not convinced by the argument that the engineer's division of 50/50 ought to be altered in this case.

The benefit assessment against the appellants is a cause of concern to the Tribunal. The Tribunal agrees with Mr. Shedden that benefit assessment has to be based on a benefit that accrues to each specific property as a result of the work being done.

The Tribunal worked very hard to understand how Mr. Wiebe reached his conclusions about benefit assessment of the appellants' property in the context of what Mr. Wiebe had done about benefit assessment along the drain. As mentioned, the benefit was said to have two components - abutting and direct. With respect to the appellants' property, benefit assessment totals $1,542.00 ($1,200.00 for the culvert and $342.00 for abutting benefit at $1.00 per metre of channel). The Tribunal attempted to apply this approach on a spot-check basis to other assessed properties and had difficulty. For example, the Brown property, being roll no. 10-67 involved a clean-out of approximately 223 metres. Since there are no culverts or other work to generate a direct benefit assessment, the Tribunal would have expected a benefit assessment of about $223.00 at the rate of $1.00 per metre, whereas Mr. Wiebe's report assesses the property $781.00 or about $3.50 per metre. Again the Tribunal looked at the G & T Guarascio property being roll no.11-002. Again, this involves a clean out of 235 metres where, at $1.00 per metre, the Tribunal would have expected a benefit assessment of $235.00. In this case, the report shows an assessment of $1,300.00 or about $5.50 per metre. Clearly, there were other factors involved in the benefit assessments about which Mr. Wiebe did not inform the Tribunal.

As a result, the Tribunal was left unable to be satisfied about a basis of assessment.

In this case, it seemed to the tribunal that Mr. Wiebe's evidence proceeded upon the assumption that, absent expert engineering evidence to the contrary, the Tribunal had little choice but to adopt his expert testimony and opinion as to assessment. The Township's submissions were to the effect that the onus is upon the appellants, that the onus can only be discharged by adducing engineering evidence, and that, absent such evidence, the appellants have not discharged the onus uipon them and cannot therefore expect to be successful. Certinaly, the Tribunal has high regard for the expert testimony of the engineers that appear before it, but the Tribunal is not to be taken as automatically endorsing that evidence, even in the absence of contrary professional evidence. It has never been the practise of the Tribunal to require appellants to appear with engineers in order to challenge successfully municipalities' engineers' reports. In this panel's view, once an appellant has raised a cogent question or issue, it is incumbent upon the municipality and its engineer to provide a response that satisfies the Tribunal.

The Tribunal is of the opinion that the appellants have raised substantial questions about their assessment and the municipality through its engineer did not provide adequate explanations to the tribunal at the hearing. This leaves the Tribunal in a most difficult position. Since the Tribunal was unable to determine the basis of the benefit assessment, the tribunal was left with the option of either referring the report back for review and elaboration upon the benefit assessments or, alternatively, making an arbitrary decision about the apellants' assessment. Absent any appeal about the work itself, it would seem there is consensus that the drainage work should proceed at a cost of some $95,000.00, as a result the Tribunal is reluctant, over a $1,500.00 assessment, to delay the project and to add to its cost by referring the report back to the engineer for a review and explanation of the assessments. Instead, the Tribunal has chosen to look at the overall assessment to determine if, in its opinion, the resulting assessment is fair in the circumstances.

In the opinion of the Tribunal, the assessment against the appellants' (Ross) property is too large. As a result the Tribunal reduced the benefit assessment against the Ross property from $1,706.00 to $1,206.00 and increased the benefit assessment against the roads of the Township of Wainfleet by the sum of $500.00.

Mr. Dean Webb gave evidence regarding the assessment of his lands. He felt that his assessment was too high in that the majority of the work was really cleaning and that the road had not been maintained for the last ten years. There was no other evidence before the Tribunal regarding the assessment of the Webb property. Mr. Webb did not appeal his assessment to the Tribunal, and while the Tribunal is prepared, in appropriate circumstances, to give leave for a late appeal, there appeared to be no special circumstances in this case, calling for the exercise of the Tribunal's discretion. Bearing in mind the purpose of the drainage works, and all the evidence before the Tribunal, it did not appear to the Tribunal that the Webb property was over-assessed.

ORDER OF THE TRIBUNAL

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

1. The appeal of Graeme and Debra Ross respecting allowances under Section 31 of the Drainage Act is dismissed.

2. The appeal of Graeme and Debra Ross respecting the division of the cost of future maintenance on their lane crossing is dismissed.

3. The appeal of Graeme and Debra Ross respecting the assessment for benefit in October 20, 1995 report for the Willford Road is partially granted. The Clerk of the township is to reduce the benefit assessment against the lands of Graeme and Debra Ross by the sum of $500.00 and increase the benefit assessment against the roads of the township by $500.00.

4. In view of Mr. Wiebe not being able to provide adequate explanations at this hearing, his charges for preparation and attendance at the hearing shall not form part of or be added to the cost of the drainage works.

5. It is ordered that there be no other 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, the assessment against the lands of Graeme and Debra Ross was too high and the assessment against the roads of the township was too low.

2. The Tribunal was unable to understand the methodology used to calculate the benefit assessment.

Dated at Shelburne, Ontario this 3rd day of February, 1997.