Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: MacLaren Municipal Drain Township of West Carleton

MacLaren Municipal Drain (RE) 1997 ONAFRAAT 43

STATUTE: Drainage Act

HEARING: September 23, 1997

DATE OF DECISION: October 3, 1997

1997-43

NEUTRAL CITATION: 1997 ONAFRAAT 43

MacLaren Municipal Drain Township of West Carleton

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 Pat Smith, Edward and Caroline Day, Dave and Mary Forsyth, Al and Jean Yagminas under Section 54 of the Drainage Act with respect to the MacLaren Municipal Drain, Township of West Carleton.

Before: Mr. Vernon Spencer, Chair; Mr. Andrew Osyany, Vice-Chair; Mrs. Gertrude Levac, Member; Mr. Ron MacDonnell, Member.

Appearances: Mr. Patrick Smith, appellant. Mr. Edward and Mrs. Caroline Day, appellant. Mr. Dave Forsyth, appellant. Mr. Al Yagminas, appellant. Mrs. Jayne Munro, assessed landowner. Mr. Paul Carrier, assessed landowner. Mr. Brian Carry, Works Superintendent, on behalf of the Township of West Carleton. Mr. Glen Gordon, Drainage Superintendent, on behalf of the Township of West Carleton. Mr. Todd Perry, P. Eng., on behalf of the Township of West Carleton. Mr. Jim McIntosh, P. Eng., on behalf of the Township of West Carleton.

DECISION OF THE TRIBUNAL

This appeal was heard by the Ontario Drainage Tribunal (the Tribunal) in the Council Chambers at the Township of West Carleton (the township) near Kinburn, Ontario on Tuesday, September 23, 1997. Several assessed landowners appealed to the Tribunal under Section 54 of the Drainage Act (the Act) from the engineer’s report on the MacLaren Drain in the township.

Monica Ceschia, Clerk/Manager of the Township of West Carleton performed the duties of the Clerk of the Tribunal.

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 MacLaren Drain was constructed under a report from Graham-Bergman dated October 31, 1969. The drain outlets near the lot line between lot 6 and lot 7 Concession 3 Torbolton. The watershed starts near the crest of the Carp Ridge in Concession XI Fitzroy. The water drains from lots 4 and 5 in Concessions XII Fitzroy, across Stonecrest Road into Torbolton and then drains from lots 4, 5, and 6 Concession I, across Ridgetop Road into Concession II, and drains from lots 5 and 6 across Woodkilton Road into Concession III in Torbolton to the outlet. The land in Torbolton Concession III and the east part of Concession II is mainly open, flat farmland. In the west part of Concession II the land rises steeply and changes to rock out crop undulating terrain with much of the land in forest cover.

In 1992, the firm of McIntosh Hill was appointed to prepare a report under Section 78 of the Act to make recommendations to repair a section of the MacLaren Drain that was experiencing erosion. This area is directly downstream of Vances Sideroad. At the site meeting, assessed ratepayers complained that the drainage watershed had been enlarged from the area assessed in the previous report and this needed to be addressed. On March 22, 1994, McIntosh Hill was appointed to prepare a report under Section 76 of the Act to address the issue of assessment for the revised watershed.

Throughout 1994 and 1995, a series of reports were filed with the Township and for various reasons, the Township Council elected to return the reports for modification.

A report dated January 28, 1997 was filed with the township and adopted by By-law. This is the report being appealed to the Tribunal.

The report indicates that bank failures downstream of Vances Sideroad are a result of a number of factors, including: unstable soils, excess erosion from farming operations and an influx of water at this point in the drain. The recommendations in the report to address the erosion problem are regrading the ditch banks to a 2:1 sideslope ratio instead of the current 1.5:1 sideslopes and the addition of a 5 metre wide buffer strip along the top of the bank on both sides of the drain.

The second focus of the report is the revisions to the assessment schedule necessitated by a change in the watershed boundary. Mr. Pat Smith has tiled some of his land that was not assessed into the original MacLaren Drain. Several landowners whose property drain into the various township road ditches and thence to the MacLaren Drain are included in the expanded watershed as determined in this report. All of the appeals are from landowners in the expanded watershed.

The Issue

The issue before the Tribunal is: Are the assessments contained in the engineer’s report as modified by the Court of Revision appropriate?

The Evidence and the Findings

Mr. Todd Perry, P. Eng., spoke on behalf of McIntosh Hill. Mr. Perry explained that the total value of construction to repair the slope failures immediately downstream of Vances Sideroad is estimated at $4,000.00. The engineering related costs, which include field work, report preparation, design, public meetings and inspection total $7,500.00. The repair work consists of flattening sideslopes and establishing a buffer strip along the top of the ditch bank. Given the soil types in the area, the engineer believes it will eventually be necessary to flatten slopes along the entire length of the drain. Mr. Perry said that it is his opinion that the proper design of the repairs is essential to those owners benefiting from the drain. This $11,500.00 cost he assessed to all benefiting landowners in the watershed on an equivalent acre basis.

The balance of engineering costs ($9,602.50) for revisions to the watershed boundary was assessed to all outletting landowners within the watershed on an equivalent acre basis. The work involved included field visits, private and public meetings, report preparation, attendance at meetings and preparation of a new watershed plan. Mr. Perry said that revising the watershed boundary is advantageous to the existing assessed owners, as it allows for a more equitable distribution of future maintenance costs. He said that newly assessed owners also gain a legal outlet for their water.

Mr. Perry said that a special assessment was levied under this report for the “subsequent connection” made by Mr. Pat Smith. Pat Smith wanted to tile his property. He drained the land by tile drains outletted through the road allowance and thence through the rail road embankment and down the Vances Sideroad road ditch to the MacLaren Drain. There is no record of an engineer being appointed to assess Mr. Smith under Section 66 of the Act. Mr. Perry said that, in his opinion, both parties bore some responsibility in the costs associated with this subsequent connection, and as such, Mr. Smith and the Township were each assessed 50% of the costs under the January 28 report. Each assessment was $1,680.00. At the Court of Revision the special assessment against Mr. Smith was removed and placed against the township roads.

Mr. Perry told the Tribunal that he assessed owners based on equivalent acres. He used Charts B2-1 and 2 of the M.T.O. Drainage Manual to determine the runoff coefficients.

He said that when he looked at the agricultural lands near the drain, he saw flat cultivated land with a clay loam composition. The accepted range of runoff coefficient is between 0.35 and 0.55 and he used the mid-point value of 0.45. On the top of the ridge the terrain varies and he characterized it as either rolling woodlands or pasture. The accepted coefficient range for wood lots is 0.30 to 0.42 and he used 0.36. The coefficient for pasture he set at 0.34, the middle of the range of 0.28 to 0.40. In assessing equivalent acres, he did not adjust each property to account for the distance from the drain or the relative elevation of the property.

Mr. Pat Smith told the Tribunal that he believes the original area of the map in 1969 was proper and the drainage watershed should go back to the one described in that report. He said that the township changed the course of the water on the roads and so the township should pay the cost related to these changes.

Mr. Smith told the Tribunal that he was not informed of the meetings on the drain until the engineer’s report was prepared. He said he felt there is an onus on the engineer and the township to keep the landowners informed.

Mr. Smith said that he connected his tile drains to the drain with Council’s permission. To make the connection he had to cross Woodkilton Road and the rail road track where it crosses Vances sideroad. He said he could have just as easily deepened the road ditch to take the water north to the Barr Drain. This is a shorter distance and therefore a much cheaper route to go but the township told him he had to go to the MacLaren Drain.

Mr. Smith said that the township re-routed water in the upper portion of the watershed. He said that water on the west side of the Ridgetop Road always went into a big swamp area then flowed north to the Barr Drain. He said when the township rebuilt the Ridgetop Road the water was redirected through his farm. There is a building lot severed off the farm and the township repaired the lane culvert for the owner every year and then finally replaced it with a larger culvert. He said this re-routing of the water affects everyone above the ridge. These owners were not in the original drain in 1969 because they did not drain into the ditch until the township constructed the road.

Mr. Smith argued that he had permission to connect to the MacLaren Drain as demonstrated by the requirement to install two culverts, one crossing the township road and one crossing the railroad. He was also required to clean the road ditch between the two culverts. He said that since he had permission he should not be assessed anything for this project. He said no one told him he was connecting to a municipal drain and would be required to pay for maintenance of the drain. He asked the Tribunal to eliminate his assessment and return the report and By-law to the 1969 assessment.

In response to questions, Mr. Smith agreed that today the water from his farm flows into the MacLaren Drain and in his opinion, the watershed shown in the report is an accurate reflection of the area that contributes water to the drain. Mr. Smith said that there is considerable water that crosses Ridgetop Road and flows to the MacLaren Drain as a result of township road ditching operations. He said this water used to flow to the Barr Drain.

Mr. Edward Day and Mrs. Caroline Day told the Tribunal that their property is located on Stonecrest Road in part lot 5 Concession 12, Fitzroy. They said they derive no benefit from the drain, nor can they hold water by artificial means on their land. The trickle of water from their property could not have caused the problem in the drain. They said that most of their land is wooded and absorbs and uses the water so there is little run-off from the property. They said they did not think the topography of the land was given sufficient consideration by the engineer.

Mrs. Day read to the Tribunal what is now subsection 3(5) of the Act. She said that the engineer exceeded his authority by assessing more land than is allowed by this section.

Mr. David Forsyth and Mr. Al Yagminas gave a detailed presentation to the Tribunal on the soils, land use and flow patterns in the upper watershed. They had a series of photographs taken during the spring of 1997 showing where the water was flowing.

Mr. Forsyth told the Tribunal that:

• He is concerned about the extension of the watershed into Concession 1 Torbolton.
• The difference in effective run-off between Fitzroy-Torbolton Concession 1 and the area of the MacLaren Drain is greater than the 30% suggested by the coefficients used in the report.
• Municipal ditching along Ridgetop Road and increasing the culvert size on private land to the north appears to have locally diverted a small amount of water from the Barr Drain watershed to the MacLaren Drain mainly during the spring run-off. In his opinion, the liability for the diversion clearly lies with the municipality.
• The land in the upper watershed slopes naturally to the north not south to the MacLaren Drain.
• The land east of Ridgetop Road is served by ditches, road and railroad, and tile and has direct run-off into the drain, while the land in Fitzroy is separated from the drain channel.
• 11% of the land in Fitzroy that is assessed is in pasture.
• The fields and topography in Fitzroy is depressional and contributes nothing to run-off.
• Only nine acres of his land drains toward the MacLaren Drain and that is all that should be assessed in the report.

Mr. Yagminas told the Tribunal that:

• Water from the upper watershed identified in the report does not naturally enter the MacLaren Drain except during the spring and then only because of ditching on the township roads. He estimates about 20% of the peak run-off. The bulk of the water flows to the Barr Drain.
• Water from his land does flow to the MacLaren Drain but only a small portion compared to what is flowing to the Barr Drain. At least 90% of the water, if not more, is going to the Barr Drain.
• After spring run-off the rain is retained on the land.
• The Tribunal should exclude his land from assessment.

Mrs. Jayne Munro told the Tribunal that she is concerned that she has to give up 5 meters on either side of the drain across her property with no compensation and no guarantee that the drain will not continue to erode and get wider. She told the Tribunal that 60 acres of her land was tile drained in the early 1980’s and the land has been in cultivation since she purchased it. She said there was a buffer strip along the original drain and it has eroded away and she is concerned that the current buffer strip will disappear to erosion as well. She said perhaps the drain should be enclosed in a culvert across her land to stop the erosion. She asked the Tribunal to provide an allowance for the land used for the drain.

Mr. Paul Carrier told the Tribunal that he owns land at the intersection of Woodkilton Road and Vances Sideroad. He said he was not appealing anything about the report but did not want the decision of the Tribunal to increase his share of the cost of the project. He said that, in his opinion, the problem on the MacLaren Drain was caused by “new” water flowing down Vances Sideroad road ditch. He pointed out that the damaged area was downstream of that confluence of the road ditch and the MacLaren Drain. He said that he went to the area during spring run-off and observed water flowing down the road ditch to the access culvert for the Munro property where it overflowed and ran overland to the MacLaren Drain eroding a channel where it entered the drain. He said this is the location where the MacLaren Drain is in need of repair.

Mr. Carrier said that when drainage from the new area was added, the people should have been charged to connect to the drain. The original owners should not bear more cost.

Mr. Brian Carry, the township manager of public works since 1985, told the Tribunal that:

• In 1987 the township widened the intersection of Vances Sideroad and the railroad track. At that time there was a 48 inch culvert in the road ditch with a 12 inch culvert about 1.5 feet lower in the ditch. When the intersection was improved, the 48 inch culvert was lowered and the 12 inch culvert removed.
• In the early 1980’s the Ridgetop Road was not open to the north of Vances Sideroad. With development it became necessary to open the Ridgetop Road and raise the level of the driving surface. At that time the water flowed from the bush lot to the west, through the road culvert and many times over the road surface onto the property of Mr. Nesrallah then south, eventually ending up in the MacLaren Drain. In 1990 the road culvert was increased from a 900mm pipe to a 1000mm pipe because the road was still experiencing flooding.
• Mr. Nesrallah requested that the township take the water south along the road ditch rather than allowing it to cross onto his property and flooding out his lane culvert.
• The township investigated this alternative but decided it was cheaper to replace the Nesrallah lane culvert than blast the rock to allow the water to flow down the road ditch. In 1995 the township replaced the Nesrallah lane culvert. The water flowing through this culvert flows south to the MacLaren Drain.

The Tribunal examined the evidence. Section 66 of the Act covers the subsequent connection of land that was not assessed for a drainage work. Section 66 is as follows:

66. (1) Where an owner of land that is not assessed for a drainage works subsequently connects the land with the drainage works for the purpose of drainage or where the nature or extent of the use of a drainage works by land assessed for the drainage works is subsequently altered, an engineer appointed by the initiating municipality for the purpose shall make an inspection and assess the land for a just proportion of the drainage works, regard being had to any compensation paid to the owner of such land in respect of the drainage works, but no person shall connect such land to the drainage works without the approval of the council of the municipality.

(2) The clerk of the initiating municipality shall forthwith send a copy of the assessment to the owners of land assessed under subsection (1), and any owner who is so assessed for a sum greater than $500 and is dissatisfied with the assessment may appeal to the Tribunal within forty days after the date the notice is sent to the owner by the clerk.

(3) The amount collected under subsection (1) shall be credited to the account of the drainage works and shall be used only for the improvement, maintenance or repair of the whole or any part of the drainage works.

R.S.O. 1980, c. 126, s. 66.

The evidence is clear that Mr. Smith connected his lands to the MacLaren Drain and that his lands were not assessed for the original construction of the MacLaren Drain. Clearly, Mr. Smith’s lands ought to be assessed in the current report.

Mrs. Day quoted to the Tribunal subsection 3(5) of the Act. Subsection 3(5) is as follows:

3 (5) Only lands lying within 750 metres from the sides of the drainage works and land lying within 750 metres from the upstream point of commencement of the drainage works may be assessed under this section.

The Tribunal points out that the last three words of the subsection are “under this section”. In the opinion of the Tribunal, this subsection applies only to works constructed in accordance with the procedures set out in Section 3 and does not apply to reports under Section 78 and Section 76 which is the authority for the report under appeal.

The evidence of the appellants and the engineer are consistent in that all agree that the land outlined in the report contributes water to the MacLaren Drain. While some appellants take issue with the exact location of the watershed boundary line shown in the report, the Tribunal was not convinced by the evidence presented that a major modification of the line is warranted. In the opinion of the Tribunal, the evidence of flooding at the Ridgetop Road and just downstream of the road crossing indicates a significant easterly flow of water from the land in Fitzroy Concession XII and Torbolton Concession I. While this flow may come mainly during the spring freshet or during major storm events, the channel of the MacLaren Drain must accommodate this flow in order to avoid damage to the lands adjacent to the drain. In the opinion of the Tribunal, it is appropriate to assess these lands for the MacLaren Drain. The issue is how much the assessment should be.

In the experience of the Tribunal, engineers will normally assess for benefit based on the relationship of the cost of the project to the benefit the project is anticipated to provide to each particular property. Once the assessment for benefit has been decided, the remaining cost of the work is divided among all of the properties that use the drain as an outlet. Many engineers use the concept of equivalent acreage when making outlet assessments. Once the equivalent acreage is determined, then an adjustment is made to account for the length of the drain that water from each individual property will utilize and to account for the location of the property in the watershed. While each engineer has their own method of arriving at the division of the total cost between benefit and outlet, many assess 40% to 60% of the cost of work to the adjacent landowners as benefit. In certain circumstances this may be a higher percentage. In the experience of the Tribunal, the total cost of a project has not been assessed to the benefiting landowners on an equivalent acreage basis.

Mr. Perry indicated that he assessed the total estimated cost of the repair on the MacLaren Drain to the benefiting landowners on an equivalent acreage basis and he assessed the outlet assessment on an equivalent acreage basis without adjustments for the length of drain the water from the property uses or the location of the property in the watershed.

Mr. McIntosh told the Tribunal that he provided for a 5 metre wide buffer strip on either side of the drain throughout the length of the drain but did not provide an allowance under Section 29 of the Act. He argued that to provide the allowance to the benefiting landowners and then assess these same owners for the allowance on an equivalent acreage basis only increases the cost of the work.

Section 29 of the Act is as follows:

29. The engineer in the report shall estimate and allow in money to the owner of any land that is necessary to use,

(a) for the construction or improvement of a drainage works,

In the opinion of the Tribunal, Section 29 is mandatory. If the engineer determines that a buffer strip is required on the drain then he must provide an allowance for the land used in the buffer strip. The amount of the allowance can then be appealed by the landowners if they are dissatisfied.

The Tribunal is concerned with the basis of calculation of the assessment and allowances in the report. However, when the Tribunal examined the final assessments, as adjusted by the Court of Revision, it was satisfied that, had allowances been provided for the buffer strip, the final assessment would not be significantly different for any of the landowners. Bearing in mind the overwhelming desire of the appellants to keep the cost of this project as reasonable as possible, the Tribunal decided not to refer the report back to the engineer to include allowances under Section 29 and recalculation of the assessments.

During the hearing, two minor items in the report were brought to the attention of the Tribunal. Firstly, there is a typographical error made in Schedule "A". The correct cost for seeding the buffer strip should be $1000.00, and not $1500.00 as shown.

Secondly, at the top of page 16 the paragraph reads as follows:

“All private crossings (culverts) are the responsibility of the individual owners.”

During the hearing Mr. McIntosh agreed that the meaning of this paragraph was unclear when it is read in conjunction with Section 18 of the Act. Mr. McIntosh told the Tribunal that this section is meant to say that the crossings are part of the drainage works but the cost of constructing and maintaining all private crossings is to be assessed to the abutting landowner.

The Tribunal decided to order amendments to the report to correct these two points.

ORDER OF THE TRIBUNAL

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

1. The appeals of Pat Smith, Edward and Caroline Day, Dave and Mary Forsyth, Al and Jean Yagminas under Section 54 of the Drainage Act are dismissed.

2. The Clerk is to amend Schedule "A" of the report by striking out $1500.00 where it is shown as the estimated cost of seeding the buffer strip and inserting therefor $1000.00.

3. The Clerk is to strike out the first paragraph on page 16 of the report and insert therefor the following paragraph: “All private crossings are part of the drainage works and the cost of constructing, maintaining and repairing all private crossings is to be assessed to the abutting landowner(s).”

4. The schedules for assessing drain maintenance as shown in the report are confirmed.

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.

The reasons for this decision are as follows:

• The Tribunal is satisfied that the boundaries of the watershed are appropriately established by the Report.
• In the opinion of the Tribunal, the methodology the engineer used in arriving at the assessment in the report is not in accordance with prevailing practices. Nevertheless, when all factors are considered, the assessments, as modified by the Court of Revision, are within the appropriate range for this project. The desire of all the parties to keep the costs down is valid. The costs of referring the Report back outweigh the advantages to be gained by the project or any assessed ratepayer.

Dated at Chatsworth, Ontario this 3rd day of October, 1997.