Beaverdam Drain (Re), 1997 ONAFRAAT 45

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:

Beaverdam Drain City of Port Colborne

Beaverdam Drain (RE) 1997 ONAFRAAT 45

STATUTE:

Drainage Act

HEARING:

October 2, 1997

DATE OF DECISION:

October 17, 1997

1997-45

NEUTRAL CITATION:

1997 ONAFRAAT 45

Beaverdam Drain City of Port Colborne

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 Stewart McPherson, Dennis Buri, Richard Beauchamp, D. Goodwin, Marilyn Pirson, Philip McGarry, Muriel Daniels, Albertine Croft, Dorothy Dann and Carl Roy Peterson under Section 48, and by S. Phillips, Jessie Bearss, D. Toepp and Raymond Lord under Section 54 of the Drainage Act from the engineer’s report (Section 48) and the decision of the Court of Revision (Section 54) on the Beaverdam Drain, City of Port Colborne.

Before:

Andrew Osyany, Vice-Chair; Herb Todgham, Vice-Chair; Betty Lambert, Member; Russell Piper, Member.

Appearances:

Albertine Croft, assessed owner. Bernard Kordyjaka, assessed owner. Stewart McPherson, assessed owner. Sylvester. Philips, assessed owner. Louise Lord, assessed owner. Ray Lampman, assessed owner. Rodney McCabe, assessed owner. Doris Toepp, assessed owner. Chester Dann, assessed owner. James Railton, on behalf of Dale and Linda Kramer, assessed owners. Christopher Dann, on behalf of Joan Dann, assessed owner. Richard Beauchamp, assessed owner. Ronald J. Lampman, on behalf of Larry Lampman, assessed owner.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the City of Port Colborne, Ontario on October 2, 1997. Several assessed ratepayers appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the engineer’s report on the Beaverdam Drain, City of Port Colborne and under Section 54 of the Act from the decision of the Court of Revision. Patricia Premi, Deputy Clerk of the City, performed the duties of the Clerk of the Tribunal.

Section 48 of the Act is as follows

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1980, c. 126, s. 48.

Section 54 of the Act is as follows:

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

. (3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.

R.S.O. 1980, c. 126, s. 54.

The appeals under Section 48 of the Act are to the effect that the work is too extensive and ought to be reduced in scope and cost.

The Background

The head of the Beaverdam Drain is in Lot 13, Concession 3, in the City. It flows southerly across the Second Concession Road and through Lot 14, Concession 2, running parallel to White Road for a short distance before crossing the road at about the midpoint of the south half of Concession 2. From there it runs south westerly across Killaly Road and Miller Road where it turns south and runs along Miller Road to Concession 1 to about the midpoint of the concession. There the drain turns west to the lot line between Lots 17 and 18, south for a short distance then west again to its outlet at the Weaver Road culvert. There is one Branch drain - the West Branch - that begins at Miller Road in Lot 17, Concession 3, and runs easterly across White Road to join the main drain in Lot 14, Concession 3.

From the outlet of the drain at Weaver Road, the water runs south on the west side of Weaver Road in the Weaver Road ditch, through floodgates at the sand dune on the north shore of Lake Erie and then into the lake. The floodgates and outlet to the lake were built privately. There are two pumps at the floodgates that were installed by the City in the 1980’s. These pumps are low volume high lift pumps and they have no status under the Act.

The earliest record of the drain is as an award ditch in 1885. The outlet of the award drain is the present day culvert at Weaver Road. The most recent report on the drain is dated April 21, 1947.

The current report was initiated by a petition signed by owners along the Beaverdam Drain on Weaver Road complaining of flooding of land in the vicinity of the floodgate structure near the outlet to the lake.

The report proposes to put a new 150 mm thick concrete facing on the existing floodgate structure; place a 150 mm thick concrete floor on the downstream side of the structure between the existing steel retaining walls with a 3 meter wide depression in the floor to concentrate the flow into a channel to the lake; improve the gates by lowering the invert of the easterly opening and enlarging the easterly gate accordingly; install a locking device on the gates to hold them shut once they are lowered; construct a new pump reservoir and install a new high capacity low lift pump with a gearhead for an external power source; reinstallation of one of the existing pumps; install two Tideflex valves on the culverts crossing Weaver Road to prevent high water from the lake crossing the road to the lands on the east side of the road and incorporate the existing floodgate structure and gates and the road ditch from the lake to the Weaver Road crossing as part of the drain.

The total estimated cost of the project is $160,300. The watershed is 1,223 hectares or 3,022 acres.

The Issue

There are two issues before the Tribunal:

1. Should the work as proposed be modified by reducing the extent of the work?

2. Are the assessments as proposed by the engineer and modified by the Court of Revision appropriate?

The Evidence and the Findings

Mr. John Kuntze, P. Eng., the engineer who prepared the February 10, 1997 engineer’s report told the Tribunal that the objectives of the final report are to:

1. Recognise the channel along the west side of Weaver Road as part of the Beaverdam Drain including the floodgate structure and the pumping station.

2. Rehabilitate and improve the floodgate structure.

3. Improve the capacity of the pumping station.

4. Improve the backflow protection on culverts under Weaver Road.

5. Provide an assessment schedule for future maintenance of the entire drain.

Mr. Kuntze said that, as an additional benefit to the low lying agricultural land adjacent to Weaver Road, the report provided that the owner could use the drain as a conduit to transmit lake water to his property so he could pump it into his irrigation pond.

Mr. Kuntze reasoned that the outlet channel along Weaver Road is required to provide outlet from the upstream watershed and the floodgate structure protects the low lying lands north of the sand dune by blocking high water in the lake from backing up the channel and causing flooding. On this basis, he decided to assess the cost of the work 50% to benefit and 50% to outlet arguing that the low lands at the lake benefit from having protection of the floodgates and the high land in the watershed benefits from having a secure outlet by including the Weaver Road ditch as part of the drain.

Mr. Kuntze told the Tribunal that he assessed the benefit as follows:

• $50 to $500 per lot to the parcels on the dune as the work will maintain a public access to these lots by reducing the flooding potential on Weaver Road. The benefit varied depending on the location of the lot. Total of this assessment $11,000.

• $500 to $1,000 per lot to the residential properties north of the dune that benefit by reduced risk of flooding. The benefit varied depending on the location of the lot. The total of this assessment was $3,500.

• $30,000 to the roads (mainly Weaver Road) because the risk of flooding will be reduced.

• $500 to $8,000 per parcel of agricultural land north of the dune that is subject to flooding and will receive the benefit of the pumping capacity provided in the project. Lands to the east of Weaver Road benefit more since Weaver Road will act as a further berm to prevent lake water from backing up and causing flooding. The total of this assessment is $36,000.

Mr. Kuntze told the Tribunal that he divided the outlet assessment amongst the properties on an equivalent acreage basis. Since he was working at the outlet, all the watershed lands are affected so he used one rate per equivalent acre. He said that the small residential lots on the sand dune do not contribute much water to the drain, many slope to the lake and these lots are not assessed any outlet. He said the rest of the lands in the watershed were assessed as follows:

1. agricultural land with a runoff factor of 1,

2. small residential lots with a runoff factor of 2,

3. gravel roads with a runoff factor of 2.5,

4. paved roads with a runoff factor of 3,

5. highway 3 with a runoff factor of 4.

The industrial land occupied by Port Colborne Poultry has a large building with a waste water treatment facility and a runoff factor of 3 was assigned to this land to reflect its contribution to the water flow.

Albertine Croft withdrew her appeal.

Bernard Kordyjaka, owner of the land identified as roll #s 4-5-4, 4-5-3-1, 4-6-67, 4-6-57, 4-6-58, and 4-6-66, in the upper part of the watershed, told the Tribunal that his lands were assessed too much. He said that he has 50 acres of bush land that should not be classed as agricultural. He said the land was low and marshy and he did not think he could drain this land.

Marilyn Pirson, owner of the land identified as roll number 4-6-054 submitted a written appeal to the Tribunal. Ms. Pirson wrote that her land was assessed too much for the work. The drain through the bush had not been cleaned out and if it were cleaned the bush would dry so she could sell some trees.

Stewart McPherson told the Tribunal that he lives just north of the sand dune, about 1,000 feet from the floodgates on a property identified as roll # 4-3-111. He said that after Monday’s storm, his yard is still flooded therefore he does not see any benefit to his land from the project.

Mr. McPherson said that a system of some kind is needed to solve the drainage problems in the area but he does not agree that the present proposal is appropriate. Mr. McPherson listed his concerns as follows:

1. An alarm system needs to be installed at the floodgates so the City can react faster to high water levels.

2. One culvert under Weaver Road that is supposed to have a Tideflex valve installed should be eliminated rather than putting the valve on it.

3. The culvert used as a discharge pipe from the Groetelaars pump does not have a flap gate on it and will siphon water through the road embankment when the water level in the drain is high. This pipe should be fitted with a flap gate.

4. The pumps should be fitted to an electric motor. A tractor driven pump as proposed has a reaction time that is too slow to get the tractor placed and running. The tractor would be noisy beside his house.

5. The ditch on the Groetelaars property beside his lot line has eroded onto his land and needs to be fixed.

6. The clause in the report allowing Mr. Groetelaars to use the drain for irrigation water supply needs to be redefined to clarify that irrigation usage is a privilege not a right.

Sylvester Philips, owner of part of Lot 13, in the south part of Concession 2 identified as property roll # 4-2-522, told the Tribunal that there is 30 acres of bush in the center of his property. He said the soil is gravel and shale rock which does not retain moisture and he can only grow hay or clover. Any runoff that occurs goes to the bush. He said he does not benefit from the work and the Tribunal should eliminate his assessment.

Louise Lord, owner of the property identified as roll # 4-6-49 in Lot 12 in the north part of Concession 3, told the Tribunal that she owns 75 acres, 70 of which are wetland. The remaining 5 acres is where the house is built and it is wet as well. Of the 75 acres in the parcel, only the south 24.3 acres are assessed on the project. She said she should not be assessed because the drain will not drain her property. She said that she has a wetland agreement on the land and receives a conservation tax rebate on the property. In response to questions from the Tribunal, Mrs. Lord said she did not have a copy of the agreement to file with the Tribunal.

Ray Lampman, owner of the parcel identified as roll # 4-6-062, in Lot 14, Concession 3, told the Tribunal he should not be assessed at all. He said that the complaints have nothing to do with the water coming down the watershed but with the water coming up from the lake. He said the lakeshore owners and those along Weaver Road should pay the cost of fixing the problem.

Rodney McCabe, owner of parcel roll # 4-5-19, in Lot 17, Concession 3, told the Tribunal that his property should not be assessed at all. He said the problem has nothing to do with drainage from his land. It is due to the farming practices of Mr. Groetelaars who runs a market garden farm near the lake. Mr. McCabe told the Tribunal that his property drains very well into the Beaverdam Drain and once the water leaves his property, he considers it not to be his problem.

Doris Toepp, owner of parcel identified as roll # 4-3-101, said her property has been assessed $3,000 but she has no problems with the situation as it is now. She said drainage of her land was relieved when the ditch was cleaned 20 years ago. Now there is some garbage that has floated down to two curves on the property and has collected at these curves. She said there are some trees blocking the culvert and a truck cap in the ditch that should be removed but these will not be affected by the current proposal. Mrs. Toepp asked the Tribunal to eliminate or severely decrease the assessment on her land since it is greatly out of proportion to the income she derives from the property.

Chester Dann, one of the owners of parcel identified as roll # 4-3-136, told the Tribunal that his family has owned a seasonal cottage on the sand dune on Lake Erie near the outlet for a number of decades. Mr. Dann outlined four objections to the report.

First, he said that the construction being suggested goes beyond the relief sought by the petitioners. He quoted from the preliminary report which indicated that the main issue was backup of water from Lake Erie into the drain channel and also indicated that pumps would not be required. Mr. Dann argued that the pumps should be eliminated from the proposed work and that small steps should be taken to improve the current floodgates to solve the problem.

Mr. Dann said that the report did not contain sufficient data for the ratepayers to make an informed decision on the merits of the proposal to install pumps. There is no explanation of the purpose of the pump, the operating criteria or the use that is currently being made of the existing pumps. Mr. Dann questioned whether the pumps are needed at all.

Mr. Dann’s third objection is that the rationale for the assessment for the benefit is arbitrary.

Mr. Dann’s fourth objection was that the report is unclear as to whether the Tideflex valves are for public or private culverts and thus whether they should be a common expense to the project or assessed to individual landowners.

Mr. Dann said that, since 1966, there has been a tennis court on the back of his property and he has never seen water standing on the court. In the spring, there is some standing water on the back part of the property. He has access to the property from Weaver Road or Lorraine Road and he has never had an access problem but he uses the property seasonally.

James Railton spoke on behalf of Dale and Linda Kramer. Mr. Railton explained to the Tribunal that the Kramers owned the land on the west side of Weaver Road at the lake. He then read Mr. and Mrs. Kramer’s submission to the Tribunal.

The Kramers raised two concerns with the Tribunal. First, the width of the channel that the City maintained to the lake during 1996 was 8 to 10 meters wide and it was cleared when it was not needed. The second concern is that the report calls for spreading the excavated materials on the adjacent land. The Kramers are concerned that the materials contain gravel and small stones and this will detract from the value of their sandy beach. They requested that the Tribunal order a modification to the report to the effect that the materials could only be spread on their land with their permission.

Christopher Dann, speaking on behalf of Joan Dann, assessed owner of the lot identified as roll # 4-3-132 and known by Mr. Dann as “The Bog”, told the Tribunal that he did not feel the petition to start the project is valid and that the area requiring drainage is not shown in the report. The Tribunal informed Mr. Dann that it does not have jurisdiction on the validity of the petition and he would have to pursue this argument with the Drainage Referee. The Tribunal wishes to point out, however, that in the opinion of the Tribunal, the work proposed might be done under Section 78 without the need for a petition since the Beaverdam Drain is already a drain under the Act and the proposed work extends the current drain to an outlet.

Mr. Dann said that even with this work the drain will not dry completely. The ground water level in the area is high. He does not see any benefit to his property from the work.

He said he agrees that a high water level alarm on the outlet is necessary.

Mr. Dann told the Tribunal that he is not convinced that the proposal will address the flooding problem the people are experiencing and it will not make his land any drier than it currently is. He said that $166,000 is a lot to spend if the problem will not be solved.

Richard Beauchamp, owner of the parcel identified as roll # 4-6-61, in Lot 14, Concession 3, told the Tribunal that he objects to the assessment because his land does not drain into the Beaverdam Drain. He said that the City runs water onto his land from White Road and this water collects on his land and ponds there.

Ronald J. Lampman told the Tribunal he was speaking for Larry Lampman, owner of parcel roll # 4-5-22 in Lot 17, Concession 3. He said that the floodgates do not benefit any of the landowners on the north side of Kilally Street as the water from the lake cannot flood them and their water flows out to the lake now. He said these owners should not be assessed for the work.

René Landry, the Drainage Superintendent for the City since 1990, told the Tribunal that he agreed that a high water warning alarm should be installed at the outlet to advise the City staff when the water upstream of the outlet structure is too high. This will allow the City time to react. He said he believes the report will improve the gravity drainage in the Beaverdam Drain as the sill on the floodgates will be lower. He said this past summer sometimes the outlet was cleaned too wide but once the concrete pad is in place the staff will use it as a guide. He said the City is restricted on where to put the fill removed from the outlet. The City could possibly haul the material away but that will cost more. He said the present floodgate structure is deteriorating badly and needs to be recapped or removed. Mr. Landry told the Tribunal that during storms the lake level at the City can rise from 3 to 9 feet above normal levels and was up 9 feet twice this year.

Mr. Kuntze responded to the appeals as follows:

Several owners in the upper watershed appealed the assessment based on an argument that their lots are partially woodlot and no adjustment was made to the outlet rate for these properties. Mr. Kuntze argued that the woodlots in the watershed are changing. Some are in fact fields that have been abandoned for a few years and are grown up in scrub bush. These areas can easily be reclaimed into farm land by the current or future owners. The old surface drains in some of these abandoned agricultural lands are still there. Some of the lots have significant slope toward the drain. The land in the watershed tends to be heavy clays and he is not convinced that there will be a significant difference between the runoff from these bushlots and the runoff from agricultural land. He argued that no adjustment in the outlet assessment rate should be made for the bushlots on this drain.

Mr. Kuntze told the Tribunal that the conservation agreement that the Lords have for their tax rebate is not registered on title and therefore is not binding on future owners. He argued that this agreement should not be considered in arriving at the assessment unless it is binding on the future owners.

Mr. Kuntze pointed out that Mr. Lampman, Mr. McCabe and Mr. Beauchamp all have good drainage from their properties into the Beaverdam Drain and therefore they ought to be assessed for outlet liability.

Mr. Kuntze agreed that a simple high water alarm system is a good idea and requested the Tribunal to order a modification to the report to make an alarm part of the drainage works. He said the cost of such an alarm is minimal and should be pro rated over the entire drain.

Mr. Kuntze told the Tribunal that the culvert Mr. McPherson is concerned about is at about station 0+310. It is placed high in the road embankment and he is not sure what function it serves. He asked the Tribunal to order an amendment to the report to direct that this culvert be removed to prevent backflow from the Beaverdam Drain onto the land on the east side of Weaver Road.

He said that the pump discharge pipe at about station 0+250 is a private pipe and is not intended to serve the public in any way. It exists to allow discharge through the road of water pumped by Mr. Groetelaars. Mr. Kuntze said that this outlet has to be protected by a flap gate to prevent backflow from the Beaverdam Drain or it has to be removed. He asked the Tribunal to order a modification to the report to provide for installation of a flap gate at the expense of the landowner.

Mr. Kuntze said that the erosion problem Mr. McPherson spoke of is on a private ditch on Mr. Groetelaars property. Solving this problem is beyond the scope of the report as the private ditch does not form part of the Beaverdam Drain scheme. He said to solve this problem there needs to be an agreement between the owners or a petition to make the private drain a branch to the Beaverdam Drain.

With respect to Mr. Dann’s concern about the status of culverts, Mr. Kuntze clarified that, when the report is done, all that is part of the drain is the Tideflex valve on the culvert. The culvert under the road still belongs to the road authority and is not part of the drain.

Mr. Kuntze said that he was aware that the clause in the report allowing the drain to be used as a source of water for irrigation caused concern. He said that he intended the channel to be used only as a conveyance for water from the lake to a point adjacent to the land of Mr. Groetelaars where he could pump the water to supply his irrigation pond. It was not intended that Mr. Groetelaars use the Beaverdam Drain as a storage pond for irrigation water. Mr. Kuntze agreed with the appellants that the intended use of the drain for irrigation was not clear in the report and he asked the Tribunal to order a modification to the report to clarify this clause. He did not have a suggested wording for the Tribunal to use.

Mr. Kuntze pointed out that Mrs. Toepp has 150 acres in the watershed. This land is assessed for outlet only. He said the assessment is against the property not the owner, the property has been assessed in the same manner as all other properties and therefore the assessment should stand.

Mr. Kuntze agreed with the Kramers that the channel was cleaned wider than necessary sometimes during 1996 but he argued that the concrete channel will provide a template for the staff when it is necessary to clean the outlet. He also argued that the channel in the concrete floor will direct and concentrate the flow so the channel will be more self cleaning than in the past thus reducing the need to excavate materials. He pointed out that the Kramers were not assessed any cost for maintenance of the drain and would not bear any of the cost, if it was decided to haul the excavated materials. Mr. Kuntze said that, in his opinion, the City should be allowed the flexibility of spreading the excavated materials on the beach.

In response to Mr. Chester Dann, Mr. Kuntze said that he has been working on the project for four years and he does not think there are any other small steps to take. He said that, in his opinion, the floodgate structure needs to be protected. The people who benefit most from the pumps are assessed the majority of the cost and, even though these people did not appear before the Tribunal, they support the installation of the pumps. He said that conversion of the pump from the external power source provided in the report to an electric motor would be easy if the external power source proved to be unreliable. The only additional cost would be removing the gearhead that is provided for the tractor drive and the cost of the gear. He recommended to the Tribunal that this aspect of the report not be changed at this time.

The Tribunal examined the evidence of the appellants and the response by the engineer. When an engineer is appointed to prepare a report on a drainage project, the engineer has to address the problems that exist in the field. In the opinion of the Tribunal, the final report of the engineer ought to have a brief description of the problems identified, the alternatives considered by the engineer, the details of the solution recommended by the engineer and the engineer’s reasons why that particular solution is being recommended. In this case, if one reads both the preliminary and final reports it is possible to identify alternatives that were considered. However, the Tribunal agrees with Mr. Chester Dann that the engineer could have provided more explanation of why he recommended the work that he did so the assessed ratepayers would have a better understanding of his reasoning and the final report would stand on its own. The Tribunal is mindful that in many cases a detailed explanation is not required but in cases such as this where the issues are complex and the land use of the watershed so varied and the interests of the owners so diverse, more written explanation may have been helpful.

Once the engineer has decided which option to recommend and a cost estimate has been developed, the next decision that has to be made is how much of the estimated cost of the work is to be charged as benefit. In the experience of the Tribunal, engineers make this decision based on the purpose of the work. If the purpose is to prevent natural flooding of low lying land adjacent to the drain, then more of the cost is assessed as benefit. If the purpose is to provide an outlet for water collected and discharged from higher land more of the cost is assessed as outlet. The portion of the estimated cost assigned to benefit by the engineer is then divided among the properties in proportion to the anticipated benefits each will receive. It is important for owners to realize that the dollars assessed as benefit relate to sharing the cost of the project not to the actual benefit that will be derived by their property. A property may receive a benefit in the tens of thousands of dollars for an assessment of a few hundred dollars if there is a problem that is cheaply solved by a drain. Mr. Chester Dann correctly pointed out that this decision is an arbitrary decision of the engineer. Mr. Kuntze also correctly pointed out that the decision is based on the experience of the engineer. In the final analysis, the assessment on each property must be fair when compared with the assessment on other properties. In this case, the engineer argued that the appropriate division of cost is 50% benefit and 50% outlet. He argued that:

• the owners along the lakefront benefit by having a more secure access road;

• the owners adjacent to Weaver Road will receive less flooding and a lower water level in the drain with the sill of the floodgate lowered; and,

• the owners in the upper watershed will secure a legal outlet at the lake for their drainage water.

The Tribunal was not convinced by the evidence that it should interfere with this decision of the engineer. The Tribunal therefore decided to confirm the benefit assessments.

Chester Dann and Christopher Dann spoke against the inclusion of pumps in the report. The Tribunal was disappointed that, except for Mr. McPherson, the owners who favoured the pumps did not see fit to attend the hearing and express their views despite the fact that the Tribunal had made them parties to the hearing. In other circumstances, the Tribunal may well have agreed with the submissions and eliminated the pumps from the project since only one assessed owner spoke in favour of this part of the project. However, the Tribunal is of the opinion that it would be unwise to install floodgates to keep storm water from the lake out of the drain, without also providing some pumping capacity to pump storm water from the upper watershed in those instances where a rainstorm occurs during a period when the lake water levels are high and the floodgates have to be closed. The Tribunal accepts the position of Mr. Dann that small steps should be taken. The Tribunal accepts the position of Mr. Kuntze that it is relatively inexpensive to try the pumps with an external power source before expending significantly more dollars building a pump house and installing an electric motor. If operational problems occur this is an easy step in the future. Therefore, the Tribunal decided not to modify the report to eliminate or alter the proposed pump.

The Tribunal agrees that the report will not solve all of Mr. McPherson’s problems under maximum flows because his is the lowest land. In the opinion of the Tribunal, Mr. McPherson will benefit from the project in that:

• the floodgates and road ditch will be under the control of the Act and he will have assurance of these facilities continuing to exist and their operation will be the responsibility of the City.

• the water level in the drain can be lowered by gravity as a result of the lowering of the sill in the east gate on the floodgate and the larger capacity of the pump.

• the Tideflex valves will prevent water from crossing the Weaver Road embankment to flood his land thus providing a second line of defense from the storm water levels of the lake.

Therefore, the Tribunal decided not to alter the assessments levied against the lands of Mr. McPherson. In the opinion of the Tribunal, Joan Dann is similarly affected by the work and therefore the Tribunal decided not to alter the assessment against the lands of Joan Dann.

Mrs. Lord did not file with the Tribunal a copy of the conservation agreement on her property. Mr. Kuntze found nothing registered on title that bound future owners to use this land for conservation. Without a binding agreement the Tribunal agrees with the position of the engineer that future owners could alter the use of the land and therefore this land ought to be assessed using the same principles as any other land in the watershed that contributes water to the drain. The Tribunal decided to confirm the assessment against this property.

Several appellants argued that the assessment against their lands should be lower because of woodlots on the property. In the experience of the Tribunal, engineers normally use a lower runoff factor from woodlots than from agricultural land. Mr. Kuntze argued that the woodlots in this watershed may not significantly reduce the flow to the drain because of the soil types and the condition of the woodlots. The only evidence on the condition of the woodlots was that of Mr. Kuntze. He said that there were small sections of mature bush and larger areas of abandoned fields and scrub that could be easily reclaimed by the landowner. Based on this evidence. the Tribunal decided the existence of woodlots as described did not warrant an adjustment of the assessment when one considers the size of the watershed and the cost of examining each of the woodlots to determine an appropriate runoff factor. The cost of determining the adjustment would offset the amount of the adjustment that could reasonably be made.

The Kramers are concerned about the width of channel maintained between the floodgate and the lake and the disposal of the excavated materials. Mr. Kuntze told the Tribunal the 3 meter width of channel in the concrete floor downstream of the floodgates will be a template for the city staff controlling the width of the excavation. It will also concentrate the flow scouring the channel and reducing the need for excavation. Believing that the amount of materials will be reduced from the past experience, and without clear evidence that it is legal to haul the material away from the beach, the Tribunal is reluctant to make an order requiring the municipality to haul the excavated materials away. The Tribunal is also concerned that the adjacent landowners should be required to have the excavated materials spread on the beach if it contains undesirable materials. The Tribunal decided to leave the report as it is in this regard with the understanding that the Drainage Superintendent will utilize discretion in cleaning the channel and spreading the excavated materials.

In the opinion of the Tribunal, irrigation water supply is a proper use of this drain. However, the terms of the use of the drain for this purpose have to be better defined. The appellants and the engineer identified this problem but did not offer any suggested wording to the Tribunal that it could order. The Tribunal believes this is an important issue that needs careful consideration by all affected parties. The Tribunal decided to delete the current irrigation clause in the report and refer this question back to the City and the engineer for a definition of the terms and conditions to be attached to the use of the drain as a source of irrigation water supply. The engineer may file a letter report with the City detailing how the drain can be used for irrigation purposes. If filed, the City may, subject to any appeal that may be taken under the Act for the adoption of a report, adopt the letter report and proceed to implement it. The Tribunal directs that the cost of developing irrigation use criteria for this section of the Beaverdam Drain be assessed to the property identified as roll # 4-3-97 (Mr. Groetelaars).

The Tribunal questioned the engineer on some construction details for the project. Mr. Kuntze told the Tribunal that a more detailed specification would be provided at the time of tender to guide the contractor. The Tribunal wishes to remind engineers that the report adopted by By-law is likely the only document that will be available in the future to guide the municipality in the maintenance and repair of projects and therefore it is important that the report be complete in construction detail so there is no ambiguity as to what the municipality is required to do.

The Tribunal was requested to order several housekeeping amendments to the report that were requested by the parties and supported by the engineer. The Tribunal decided to order these changes.

ORDER OF THE TRIBUNAL

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

1. The appeal of Albertine Croft was withdrawn at the hearing so no order on this appeal will be issued.

2. Dorothy Dann, Jessie Bearss, Carl Roy Peterson, D. Goodwin, Philip McGarry, Muriel Daniels and Dennis Buri did not appear at the hearing and therefore their appeals are dismissed.

3. The assessment appeal of Stewart McPherson under Section 54 is dismissed. The Tribunal is ordering amendments to the report that Mr. McPherson requested in his appeal under Section 48.

4. The appeals of Richard Beauchamp, Marilyn Pirson, S. Phillips, D. Toepp and Raymond Lord are dismissed.

5. The Clerk of the City is to delete from the report the “irrigation clause” at page 18. The engineer may file a letter report with the City detailing how the drain can be used for irrigation purposes. If filed, the City may, subject to any appeal that may be taken under the Act for the adoption of a report, adopt the letter report by By-law and proceed to implement it as part of the Beaverdam Drain By-law. The cost of this report is to be assessed against the property identified at roll # 4-3-97 (Mr. Groetelaars).

6. A water level alarm system on the floodgate structure to warn of high water upstream of the floodgate structure is to be included in the report and the cost of this system is to be pro rated over the assessment schedule based on the total assessment against each property.

7. The culvert under Weaver Road at approximately station 0+310 is to be removed at the time of construction.

8. The discharge culvert under Weaver Road from the Groetelaars pump at approximately station 0+250 is to be equipped with a back flow flap gate and the cost of the flap gate is to be charged to the land of Mr. Groetelaars (roll # 4-3-97) as a special benefit.

9. The engineer’s report is to be amended as follows:

• Set out the exact location of each of the two Tideflex valves specified in the report.

• Set out the location of the Tideflex valve that is to be hinged.

• In the last paragraph on page 17, beginning with the second line delete the following: “bank slope protection using rip rap, grass seeding or other appropriate bank slope protection or channel lining. Bank slope protection placed by or with the approval of the Drainage Superintendent shall be maintained as part of the Beaverdam Drain.”.

10. 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.

Dated at Shelburne, Ontario this 17^TH^ day of October, 1997