Spring-Water Evergreen Beach Drainage System (RE), 1997 ONAFRAAT 34

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:

Spring-Water Evergreen Beach Drainage System Township of Colchester South

Spring-Water Evergreen Beach Drainage System (RE) 1997 ONAFRAAT 34

STATUTE:

Drainage Act

HEARING:

August 6-7, 1997

DATE OF DECISION:

August 22, 1997

1997-34

NEUTRAL CITATION:

1997 ONAFRAAT 34

Spring-Water Evergreen Beach Drainage System Township of Colchester South

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 Stephen & Jean Fancsy, Donald Woodbridge, Allan Woodbridge, Fred Lawrence, Allan Laviolette, K. W. James, Louise James, John Fazekas, Murray Johnson, A. Versnel, Pauline Tar, Mary Crnec, Heidi Woodbridge, Cynthia Gorski, Ed Gorski, Joy L. Bloomfield, Ken R. Bloomfield, John Bloomfield, Laurie Bloomfield, Reg Clark, Lino Mori (Mori Nurseries) under Section 48 and 54 of the Drainage Act with respect to the Spring-Water Evergreen Beach Drainage System, Township of Colchester South.

Before:

Mr. Vernon Spencer, Chair; Mr. John Taylor, Vice-Chair ; Mr. Doug Flook, Member.

Appearances:

Mr. Paul Courey, counsel to the appellants, Mr. and Mrs. Fancsy.

Mr. E. Marshall, counsel to the respondent, the Township of Colchester South.

DECISION OF THE TRIBUNAL

This appeal was heard in The Council Chambers of the Township of Colchester South (the Township) in Harrow Ontario on August 6 and 7, 1997. Mr. Mike Gerard, Administrator, Clerk Treasurer of the Township performed the duties of the clerk of the Ontario Drainage Tribunal (the Tribunal).

Several assessed ratepayers appealed to the Tribunal under Sections 48 and 54 of the Drainage Act (the Act) from the engineer’s report and the decision of the Court of Revision regarding the Springwater-Evergreen Beach Drainage System, Township of Colchester South.

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.

Section 25 of the Act is as follows:

25. (1) The council of the local municipality may direct the engineer to assess as a block, a built‑up area designated by the council, and the sum assessed therefor may be levied against all the rateable properties in the designated area proportionately on the basis of the assessed value of the land and buildings.

(2) Where the engineer makes a block assessment under subsection (1), the engineer shall designate the proportion of the assessment to be charged against the public roads in the designated area.

R.S.O. 1980, c. 126, s. 25.

Section 26 of the Act is as follows:

26. In addition to all other sums lawfully assessed against the property of a public utility or road authority under this Act, and despite the fact that the public utility or road authority is not otherwise assessable under this Act, the public utility or road authority shall be assessed for and shall pay all the increase of cost of such drainage works caused by the existence of the works of the public utility or road authority. R.S.O. 1980, c. 126, s. 26.

The Background

Country Road 50 runs in a generally east-west direction in the Front Concession of the Township a short distance north of the shoreline of Lake Erie. At some time during the past, the owners of lots 47, 48 and 49 in the Front Concession developed the shoreline into cottage lots.

In general terms, the owner of Lot 49 developed the shoreline into a beach known as Springwater Beach with road access down an easement provided from County Road 50 along the easterly boundary of Lot 49. This easement is known as Springwater Beach Road and it is privately owned with the road being maintained by the Springwater Beach Association. The owner of Lot 48 developed the westerly shoreline into Evergreen Beach with access down an easement from County Road 50 along the westerly boundary of Lot 48. This easement parallels the Springwater Beach Road and is known as the Evergreen Beach Road. This road is also privately owned and is maintained by the Evergreen Beach Association. The two roads run parallel to each other a short distance apart. The easterly shoreline of Lot 48 and part of Lot 47 is developed into Cloverdale Beach. Access to Cloverdale Beach is by a road known as Pacific Avenue running from County Road 50 south to the back of the lots and then west to the last beach lot along the back lot line. This road is maintained by the Cloverdale Beach Association. Stephen and Jean Fancsy own (parcel number 02-108) that portion of Lot 48 lying between County Road 50 and the back of the lots on Evergreen and Cloverdale beach including a 50 foot wide strip of land extending to the Lake. Golda Woodbridge owns (parcel number 02-106) the balance of Lot 47 lying between County Road 50 and the back of the North side of Pacific Avenue, there is no lake access for this property. The Woodbridge Drain is a tile drain that commences at County Road 50 and runs southerly across the land of Golda Woodbridge approximately 2/3 of the distance to the lake and then it turns in a westerly direction and flows south westerly across the Fancsy lot to a pond on the Fancsy land just north of the back of the beach lots and then in a tile drain through the 50 foot wide strip to an outlet into Lake Erie. The outlet is through a concrete seawall that was constructed in the 1970’s by the beach associations to protect the shoreline from the high water levels in the lake.

There is a culvert under County Road 50 at the west boundary of the Fancsy lot.

This culvert runs water from the north side of the road to the south side. There is an existing tile drain, thought to be a 200mm (eight inch) tile, running across the Evergreen Beach Road Easement from the culvert under County Road 50 to and across the Fancsy lot to the pond on the Fancsy property. This tile is in a poor state of repair.

The Township Council appointed N. J. Peralta Engineering Ltd. to prepare an engineer’s report for the Spring-Water Evergreen Beach Drainage System in response to a petition filed by the Engineer and Road Superintendent of the County of Essex requesting an outlet for the culvert under County Road 50 in the Township. The engineer, after careful review of the issues, prepared a report outlining four alternative solutions to the problem and his recommendation for a work to provide an outlet for the road culvert. This report was appealed to the Tribunal and a hearing was held in July of 1993. The decision from this hearing is reported at page 4040 of the 1993 edition of the decisions of the Tribunal. The reasons for the decision contain a detailed explanation of the problem and the background of the report. At the conclusion of that hearing, the Tribunal ordered that the report be referred back to the engineer to provide an outlet for the road way culvert under County Road 50, in the Township of Colchester South, within the Woodbridge Drain Watershed. The engineer has completed his report as ordered by the Tribunal, the township has proceeded to adopt that report by provisional By-law Number 2389. This is the report that is now being appealed to the Tribunal.

In the original report, the engineer established four (4) alternatives for providing the necessary drainage requested in the petition submitted by the County Engineer.

The four (4) alternatives are summarized as follows:

a) Alternative No. 1

Construction of an open drain and berm north of County Road 50 together with a new covered drainage outlet from the north side of County Road 50 southerly along the Springwater and Evergreen Beach Roads to the Fraser D&W main drain, and along that main drain to an outlet in Lake Erie.

Total Estimated Cost $118,833.00

b) Alternative No. 2

Installation of a storm water retention pond at the north side of County Road 50 together with all ancillary vee-ditches, berms, inlet and outlet control systems including a covered drain, to handle the reduced flows, from the north side of County Road 50 south in a similar fashion to the covered drain outlet for Alternative No. 1.

Total Estimated Cost $255,000.00

c) Alternative No. 3

Construction of the open drain and berm on the properties north of County Road 50 together with a new covered drainage outlet system extending across County Road 50 and then in a general southeasterly direction across the Evergreen Beach Road and through the lands of Stephen & Jean Fancsy (020-108), following the general alignment of an existing 200mm diameter clay tile main extending to the existing pond on the property, together with a covered Branch Drain along the west side of Springwater Beach Road outletting in a general southeasterly direction across both the Springwater Beach Road and Evergreen Beach Roads and the lands of Stephen & Jean Fancsy (020-108) to the Fancsy pond together with a new ancillary outlet pipe from the pond southerly to Lake Erie.

Total Estimated Cost $176,000.00

d) Alternative No. 4

Construction of the open drain and berm north of County Road 50, together with a covered drain along the north side of the County Road easterly to the north end of the roadway culvert under County Road 50, at the upper end of the Woodbridge Drain, together with a new covered drain along and paralleling the Woodbridge Drain across the lands of Golda Woodbridge (020-106) and Stephen & Jean Fancsy (020-108) into the Fancsy pond, together with a new covered Branch Drain along the west side of Springwater Beach Road to outlet to the Fancsy pond, as well as a new ancillary outlet pipe from the pond southerly to Lake Erie.

Total Estimated $405,000.00

At the July 1993 hearing, the Tribunal determined that utilizing a portion of the Fraser D&W Drain for the outlet is not acceptable. In its “Reasons for Decision” the Tribunal comments that it appears that Alternative No. 3, without the Branch Drain along the west side of Springwater Beach Road, would provide for the drainage required as set out in the petition. The Tribunal also commented that the Alternative No. 3 improvements, downstream of the pond, to the outlet into Lake Erie is required to accommodate the added waters. The August 15, 1996 report of the engineer, now under appeal, recommends construction of Alternative 3, minus the branch and including a new outlet from the Fancsy pond to Lake Erie.

The cost of the proposed work is summarized as follows:

Total for incidentals 66,022.00

Total for land taken for open drain and berm 1,961.00

Total for land taken for covered drain 1,076.00

Total for damages 240.00

Total for construction 129,152.00

Total estimate $198,451.00

The Issue

There are three issues before the Tribunal at this hearing:

1. Are the allowances as provided in the report appropriate?

2. Are the assessments as provided in the report appropriate?

3. Should the drain be modified by taking an alternate route to the Lake?

The Evidence and the Findings

Mr. Alan Woodbridge, speaking on behalf of Lakeside Packing Company and others, presented the following nine points to the Tribunal.

1. There is a great deal of local opposition to the proposed project. The landowners object to the cost, location design and assessment of the project and have petitioned the Council not to construct the drain.

2. The petition of the County Engineer is faulty and therefore the proceedings are illegal.

3. The engineer has exceeded his jurisdiction by providing for drainage of lands other than the County Road. Since the owners of these lands have not signed the petition, the engineer cannot make provision for drainage of these lands.

4. The engineer has added the cost of the original engineer’s report and the July 1993 hearing to the project now proposed. According to Mr. Woodbridge, these costs cannot be added to the project since the Tribunal had made no order on costs and each party was made responsible for their own costs.

5. The landowners have a prescriptive right to outlet drainage through the Fancsy land and therefore do not need an outlet.

6. The engineer did not follow the proper protocol for the reconsidered report. This report is a new report and therefore there should have been a site meeting, preliminary report, etc.

7. A 200mm (eight inch) tile from County Road 50 to the Lake will provide sufficient outlet for the road and that is all that should be done.

8. The 200 mm tile would comply with the 1993 Tribunal order, satisfy the petitioners’ request to drain the roadway only, be most reasonable in cost, is desirable, efficient and entirely within the Woodbridge drain watershed.

9. The assessment against the lot owned by Lakeside Packing is too high. Lakeside Packing Company has undertaken several drainage improvements over the years and takes its water to the Lake through the Fraser D&W drain (a Ditches and Watercourses Act drain) leaving only about 1.28 acres to drain through the Woodbridge Drain watershed.

In the opinion of the Tribunal, the issue of the validity of a petition and the issue of the proper procedure to follow for a reconsidered report are the jurisdiction of the Drainage Referee under Sub-Section 106 (1) (b) of the Act. If Mr. Woodbridge wishes to pursue this line of objection to the project, he must carry these appeals to the Referee. The issue of prescriptive rights is an issue that must be established in a court of competent jurisdiction and if Mr. Woodbridge wishes to pursue this point, he must seek a court order. In the opinion of the Tribunal, it lacks jurisdiction to deal with prescriptive rights.

Mr. Fred Lawrence, President of the Evergreen Beach Association, told the Tribunal that the residents from Evergreen Beach are 100% against the drain. He said that the owners have no drainage problem and that he has never seen water over the road for the 50 years he has been there.

Mr. Murray Johnston, President of the Springwater Beach Association, told the Tribunal that the Springwater residents are 100% against the project. He said he believed that the need for the project was the County’s concern about paying for repairs to the existing tile drain on the Fancsy lot. Mr. Johnston told the Tribunal that on August 19, 1991 the County was hit with a one in one hundred year storm. At that time, the drains in the County were in a poor state of repair but this has been corrected to the extent that when a storm hits the water gets away quickly without buildup and this has lessened the need for drainage improvement. He argued that the Springwater Beach people are against the drain as it is too costly.

Mr. James Orr, a landowner on Springwater Beach at the outlet to the Fraser D&W drain, told the Tribunal that he had been in the area for 70 years. He said that through the years there was an open ditch across Fancsy’s property all the way to the Lake. This creek followed about the location of the existing eight inch tile on Fancsy’s property. The problem is that the creek has been filled in.

Mr. Frank Duransky, a Township Councilor, told the Tribunal that he remembers that in 1934 - 35 there was a ditch from the County road. He said that sometime in the 1940’s it was filled in by the landowner so the entire area could be farmed.

Mr. Edward Dries, President of Todgham and Case Associates, spoke to the Tribunal as a witness for Mr. and Mrs. Fancsy.

Mr. Dries made the following arguments to the Tribunal.

• There are no restrictions in the Act to prevent an engineer from taking a drainage works through a watershed boundary to a different drain, or incorporating an existing drain, or portions of it, in a drainage proposal to solve a drainage problem.

• He believes that the original recommended alignment in the first report making use of a portion of the Fraser D & W Drain is an appropriate and legal solution to the problem of providing outlet for the County Road.

• In his opinion, the cost estimates contained in the report under appeal are low. For example, it appears that the tile installation cost ( obtained by deducting the material list price from the unit cost price contained in the estimate) appears to go down as the size of pipe goes up and this is the opposite to what he expected.

• The allowances provided in the report are too low.

• The recommended works include an increase from a 2 foot diameter outlet to a 4 foot diameter outlet connecting the pond on the Woodbridge Drain on the Fancsy property to the new drainage outlet. In his opinion, this does not need to be done considering the mandate of improving the drainage of the County Road. The grades are relatively steep and the upstream land served by the drain are so much higher than the pond that drainage of the upper watershed is not affected by what happens in the pond.

• The special benefit assessment for lowering the water main should include both crossings of the water main and be the increase in cost to the drain caused by the existence of the water main.

• The special benefit for the outlet on the Fancsy property should be modified. He said that the engineer estimated the cost of an outlet with stone protection and compared it to the cost of installing the outlet pipe in a sheet pile wall with concrete cap and had assessed 80% of the extra cost of providing the increased level of protection for the outlet to the Fancsy property. According to Mr. Dries, the “pipe in stone protection” outlet is inappropriate at this location - ice moves the rock and waves cause sedimentation of the pipe-and therefore there should not be a special benefit assessment to the Fancsy property on this account.

• He had difficulty understanding the outlet liability assessment in the report. He expected that properties close to the outlet would be assessed at a lesser rate for outlet liability than those farther away. This does not appear to be the case in this report.

• Dividing the assessment schedules into subsets by sub watershed would have made the schedules more understandable but the watershed is not shown on the plan.

• With the development along the lake, the opportunities for natural discharge to the lake are limited.

• He recommends the route of the drain be changed to flow south, in a 600 mm pipe, straight along the beach roads to the Orr property and then through the Orr property replacing the outlet to the Fraser D&W drain to the Lake. This is a shorter route and, at an estimate of $90,783 for construction, should be less costly than the route proposed in the report which is estimated at $129,152 for construction. The owners would have to repair the existing outlet to the Fraser D & W drain some time. Therefore, constructing a new larger outlet at this time will avoid this future expenditure.

• An alternative route would use a 600 mm pipe down the beach roads to the back of the cottage lots then turn east to the Fancsy lot then to the lake without connecting to the existing Woodbridge drain or the pond on the Fancsy land. ($124,792 for construction)

• He would not assess the property owners on Springwater Beach even though the new outlet for the Fraser drain affects their land arguing that they have an existing drain that is effective and improvement is only required because of drainage of upstream lands and therefore the Springwater Beach lands should not be assessed for the construction of the drain.

Mrs. Jean Fancy told the Tribunal that she and her husband have lived at the property since 1979. Since buying the land they have improved the pond area, installed extensive tiling of the farm area, improved the buildings, raised the barn, fenced the barn yard, planted three rows of trees around the farm and an apple orchard. She said that during storms they get a lot of water across the road. Three times a year the side yard is flooded from water coming over the beach road from the west. She said there is no water crossing County Road 50 at their house but to the west it crosses the road often; three times this spring and summer. The pond overflows sometimes during a heavy rainfall. When it overflows it goes onto the surrounding land and eventually goes away. The area is grassed so this flooding does no damage.

Mr. Steve Fancy Jr. told the Tribunal that during storms the water comes out of the junction box in the yard and floods. He said the junction box connects a tile from the west (4 inch) and one from the north west (6 inch) to a tile running to his pond. In severe storms the water flows overland along the proposed route of the drain. The water comes from the Evergreen Beach Road flowing to the east across the road at three locations and also out of the junction box.

Mr. Gerard Rood, P. Eng., the engineer who prepared the August 15, 1996 engineer’s report, told the Tribunal that he still felt that the original route proposed in the 1992 report was appropriate but he had prepared this report as instructed by the Tribunal.

In preparing the report he allowed a 25% easement rate on a value of $5,000.00 per acre for a 6.0m wide strip of land along the full length of the proposed drain through the Fancsy property. Damages of $500.00 per acre were paid for the drain sections which are to be located in cropped areas. Any other areas are to be fully restored, and accordingly, no compensation for damages were provided. The Court of Revision had reviewed the allowances provided and had increased the allowance to the Fancsy property by $4,753, bringing the allowances for this property under Section 29 of the Act to a total of $5,767 and increasing the total cost of the project by $4,753.

Mr. Rood used the Todgham method of calculating assessments.

Mr. Rood explained that the special benefit charge on the Fancsy property relates to the additional cost of providing a sheet pile wall with a concrete cap to protect the outlet pipe versus a less costly armour stone protection which is his standard treatment recommended for other projects in Essex County. This additional cost was shared by Mr. Fancsy and affected upstream land on an 80% - 20% ratio. Mr. Fancsy's 80% share was assessed as a Special Benefit and the 20% share to all upstream affected lands in the drainage system was assessed as an outlet advantage based on anticipated cost savings relative to the future maintenance of the outlet.

Lakeside Packing Company was assessed four (4) acres; two (2) acres at a one times factor and two (2) acres at a six (6) times factor for buildings and parking lot. The Heaton and Fazekas properties have bush and swamp areas. Mr. Rood said he allowed a reduction for bush lots to 1/3 of agricultural runoff. The Fazekas property only drains approximately two (2) acres through the proposed upper part of the drain. This reduced equivalent acreage is why the Heaton and Fazekas outlet liability assessments appear to be lower when the full assessed acreage is used to calculate the rate per acre. The calculation of outlet liability was broken down so that all lands using the outlet portion of the drain from the pond (Station 0+752) to the lake (Station 0+870) were assessed their share of those costs. The remainder of the drain upstream of the pond had outlet liability assessed based on the acreage using that portion of the drain.

Mr. Rood told the Tribunal that, using equivalent acres, Lakeside Packing Company is assessed the equivalent of fourteen (14) acres and the County Road is fifteen (15) acres.

Mr. Rood told the Tribunal that the drain has to accommodate the water that arrives at the County Road not just the water from the roadway. He said that the grades are steep and the flow from the watershed is rapid and these factors result in the runoff from a 2 year return storm being very close to the runoff from a 5 year return storm. In Mr. Rood’s opinion, the drain is not over sized and a 200mm (8 inch) tile from County Road 50 to the Lake is not of sufficient capacity to carry the runoff water.

What the Tribunal found was a simple situation made complex by the activities of past and present landowners. Originally, the westerly portion of the Woodbridge drain watershed, fed by some springs, migrated and meandered down through the low spot or swale on the Fancsy property. At the shoreline it entered a low swampy or marshy area and migrated into the Lake.

As the area developed every action of the land owners had some impact on the flow of water but four are seen by the Tribunal as significant:

1. The road, now designated as County Road 50, formed an artificial barrier to the flow of water and collected water from the northwest portion of the watershed. Over the years, the development of the road has been accompanied by some ditching or other drainage improvement efforts on both sides of the roadway and the adjacent properties. The petition sought “a sufficient outlet” for this water which was being discharged on the south side of the road at the boundary between the two beach roads.

2. The development of the beaches, their private roads and their shore protection is also significant. The location of the roads interfered with the traditional south easterly migration and flow of water and various efforts to control that water were made using culverts, tile and shallow ditches. Further, at the shore, filling, ditching, tiling and finally shore protection were used to protect the cottages and improve sanitation. This development changed the location of “a sufficient outlet”. It was no longer at the south edge of County Road 50. It was no longer the marshy area near the shore. The only “sufficient outlet” to be found was in the lake beyond the shore protection.

3. The intensive development of the Fancsy property has had a significant effect on the flow of water. Originally, migration and surface flow was satisfactory. Now, however, the property has been systematically tiled, the buildings and yards in the upper area of the swale have been improved and the property extensively landscaped. Near the shore, any marshy area that remained has been reclaimed by constructing a pond, land grading, tiling, landscaping and improving the Woodbridge Drain outlet. A significant portion of the property in this area has also been afforded protection by the shoreline protection system. All of the development has meant that an open ditch in the swale on the Fancsy property is not acceptable to the owner. Neither is a small tile with overland flow in a grassed waterway. The only solution that is acceptable to the owner is a tile of sufficient size to handle the flow from most storms.

4. Finally, the actions of all landowners in the watershed, some to a greater degree than others, has changed the characteristics of the watershed and caused the water to gather and flow very quickly.

Each of these actions has influenced the drainage system which must now be designed. Consequently, each landowner, to the extent they, or their predecessor in title, is responsible for the various actions, must now be responsible for the costs of the features required in the drainage system.

In summary, a large expenditure is now required to get from the former marshy area, through the shore protection to a “sufficient outlet”. The shore protection is there to protect the cottages, their roads and a significant portion of the Fancsy property. In the opinion of the Tribunal, a significant portion of the cost of getting through the shore protection is the responsibility of these properties.

A large portion of the cost of upgrading the system across the Fancsy farm - from a small tile and grassed waterway that at one time would have been sufficient - is, in the opinion of the Tribunal, the responsibility of that landowner.

Because County Road 50 has collected and discharged water and must seek a “sufficient outlet”, a major portion of the total cost of the project is, in the opinion of the Tribunal, the responsibility of the road authority.

Finally, because each landowner, or their predecessor in title, has made improvements, or will have the opportunity to make improvements when this project is completed, each landowner must accept their share of the costs.

In the opinion of the Tribunal, gathering the necessary information, doing the design and fairly assessing the costs using presently accepted or required standards and methodologies in compliance with the legal constraints of the legislation and common law is the responsibility of the engineer.

After two days of testimony and reviewing the exhibits entered, the Tribunal found nothing to convince it to make significant changes in the report. Two technical changes are required; the assessment of the costs for the lowering of the water main at the shoreline and the assessment of the costs to the beach roads.

The Tribunal considered the recommendation of the solicitors and engineers that an alternative alignment and outlet be chosen, however, from among the landowners there was no indication of general support for that or any other alternative. County Road 50 needs, and is entitled to obtain, a sufficient outlet for the water which it is discharging. With no consensus agreement on an alternate route, the Tribunal believes the traditional flow route, as recommended in the report, is the proper choice for this project.

The Tribunal also considered the possibility of adding facilities in the neighbourhood of the beach roads to control water migrating and flowing from the west to the east onto the Fancsy property along its boundary with the Evergreen Beach Road. The Tribunal decision, however, is to allow the property owners involved, that is, Lakeside Packing Company, the two Beach Associations and Mr. Fancsy an opportunity to resolve that problem themselves.

When the Tribunal does not order costs and draws attention to Section 73 of the Act that means that each party to the appeal is responsible for paying their cost and the municipality is allowed to charge its cost - for legal advice, engineering advice and like items - to the account for the project. In the opinion of the Tribunal, the municipality and the engineer acted in accordance with the 1993 order in the Tribunal decision by including the cost of that Tribunal hearing in the estimates contained in the report currently under appeal.

ORDER OF THE TRIBUNAL

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

1. All appeals under Section 54 of the Act are dismissed.

2. All appeals under Section 48 of the Act are dismissed.

3. The parcels of land designated as roll numbers 02-119 through 02-131 inclusive, including parcel 02-13101 are designated as a built up area within the meaning of Section 25(1) of the Act and the assessment shown in the report against the Springwater Beach Association - $559.00 - is to be assessed against the properties in this built up area as provided in Section 25(1). In accordance with Section 25(2) of the Act, none of this cost is chargeable to public roads in the designated area.

4. The parcels of land designated as roll numbers 02-109 through 02-117 inclusive are designated as a built up area within the meaning of Section 25(1) of the Act and the assessment shown in the report against the Evergreen Beach Association - $3,114.00 - is to be assessed against the properties in this built up area as provided in Section 25(1). In accordance with Section 25(2) of the Act, none of this cost is chargeable to public roads in the designated area.

5. The parcels of land designated as roll numbers 02-099 through 02-105 inclusive are designated as a built up area within the meaning of Section 25(1) of the Act and the assessment shown in the report against the Cloverdale Beach Association - $596.00 - is to be assessed against the properties in this built up area as provided in Section 25(1). In accordance with Section 25(2) of the Act, none of this cost is chargeable to public roads in the designated area.

6. The decision of the Court of Revision respecting the allowances to the Fancsy property (Roll Number 02-108) is confirmed, consequently the allowances to this property under Section 29 of the Act are set at $5,767.00 and the total estimated cost of the project is increased by $4,753.00. This $4,753.00 increase is to be levied against all properties in the watershed pro rated against the total assessment shown for each property.

7. The special benefit of $3,500.00, shown in the assessment schedule against the Township of Colchester South, for lowering the water main is deleted and replaced by an assessment equal to the actual cost of the two crossings of the Colchester South water main plus 25% as a portion of overhead costs as an assessment under Section 26 of the Act. The difference between the $3,500.00 assessed in the report and the assessment calculated as directed above is to be prorated against the total assessment of all properties shown on the assessment schedule except the line shown as special benefit for lowering the waterline assessed to Colchester South. It will be necessary to tender these crossings as an individual item in order to determine this assessment and the engineer is directed to modify the tender documents accordingly.

8. 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 reason for this decision is, after careful review of the testimony and exhibits, the Tribunal found nothing to convince it to make significant changes in the report. Two technical changes are required; the assessment of the costs for the lowering of the water main at the shoreline and the assessment of the costs to the beach roads and these changes are ordered.

Dated at Chatsworth, Ontario this 22nd day of August, 1997.