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:
Mud Creek and Sutherland Drain Township of Adelaide
Mud Creek and Sutherland Drain (RE) 1997 ONAFRAAT 49
STATUTE:
Drainage Act
HEARING:
November 6, 1997
November 18, 1997
1997-49
NEUTRAL CITATION:
1997 ONAFRAAT 49
Mud Creek and Sutherland Drain Township of Adelaide
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 Martin Van Geffen under Section 54 of the Drainage Act from the decision of the Court of Revision on the Mud Creek and Sutherland Drain in the Township of Adelaide.
Before:
Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Russell Piper, Member.
Appearances:
Mr. Paul Courey, counsel to the appellant Mr. Martin Van Geffen.
Mr. Mike DeVos, P. Eng., on behalf of the respondent the Township of Adelaide.
DECISION OF THE TRIBUNAL
This appeal was heard in the township offices of the Township of Adelaide (the Township) on Thursday, November 6, 1997. Martin Van Geffen appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on the Mud Creek and Sutherland Drain in the Township. Mr. Van Geffen argued that the portion of the cost of the work assigned to his property under the heading of benefit ought to be assigned to the lands in the watershed above his property under the heading of injuring liability.
Sylvia Hammer, Clerk of the Township, performed the duties of the clerk of the Tribunal.
Section 54 of the Act is as follows:
- (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.
The Background
The Township commissioned a report under Section 78 of the Act combining requests to work on the Mud Creek Drain and on the Sutherland Drain into one engineer’s report. The township appointed Mike DeVos, P. Eng., of Spriet Associates in London to prepare the report. A report dated July 4, 1997 was prepared and filed with the township. The report was adopted by the township by provisional By-law number 18-97 and a Court of Revision was held on September 15, 1997. Mr. Martin Van Geffen Jr. appealed his assessment to the Court of Revision. No other appeals were filed and no appeals were filed against the proposed work on either the Mud Creek Drain or the Sutherland Drain.
The Sutherland Drain was originally constructed pursuant to a report submitted by A. J. DeVos, P. Eng., dated May 12, 1967 and was last reconstructed and extended downstream pursuant to a further report by A. J. DeVos, dated October 28, 1983. The work in the 1983 report included minor repairs to the existing drain and a downstream extension across the land of the appellant and others to incorporate the natural watercourse that had just been improved by the owners using their own forces. The watercourse was deepened and the vegetation removed from the banks to allow a freer flow of water. In portions of the private work the bank side slopes were too steep for acceptance by the engineer and these were flattened in 1983. In other locations the side slopes, while steeper than 1.5:1 were accepted by the engineer. The erosion that is currently taking place appears to be primarily in those sections of the drain where the side slopes are steeper than 1.5:1.
In 1996, at the on-site meeting, the owner of the south-east quarter of Lot 18, Concession 3 N.E.R. reported that the Sutherland Drain was eroding into his field and requested those areas be reconstructed and protected with rip-rap. The owner of the south half of Lot 19, Concession 3 N.E.R. reported there was bank erosion on the Sutherland Drain near the Robotham Drain outlet and requested that a rock chute be installed. Field work by the engineer confirmed that there is a considerable amount of bank erosion occurring on the Sutherland Drain in Lots 18 and 19, Concession 3 N.E.R
With regard to the Sutherland Drain, the engineer recommended:
that existing eroded ditch banks be resloped and seeded.
that the existing eroded ditch banks around the outside of severe bends be backfilled to flatten slopes and then be protected with quarry stone rip-rap.
that excess excavated material be hauled away.
The total estimated cost of the work including a share of the administration related to the Sutherland Drain is $15,850. The engineer assessed this cost against the affected lands under the headings of benefit and outlet. He assessed a total of $8,800 as benefit, $6,276 as outlet against lands and $774 as outlet against roads. He assessed $8,350 benefit on SE 1/4 of Lot 18, Concession 3 N.E.R. and $450 benefit on S1/2 Lot 19 Concession 3 N.E.R.
The Issue
The issue before the Tribunal is whether or not the $8,350 assessed as benefit against the SE 1/4 Lot 18, Concession 3 N.E.R. ought to be eliminated and that sum assessed to the upstream owners in the watershed as an injuring liability assessment.
The Evidence and the Findings
Mr. Mike DeVos, P. Eng., the engineer who wrote the July 4, 1997 report on the Mud Creek and Sutherland Drain, told the Tribunal that the channel bank of the Sutherland Drain in Lot 18 was eroding. There is one bend in the drain that has migrated about 20 feet and two or three other minor spots where erosion has taken place and the banks need to be reshaped and stabilized. He said this was not an unusual situation and he would normally leave the channel where it currently exists, reslope the channel banks and install appropriate rip-rap on the bank to stabilize the bank. He said that the property owner requested that the bank be replaced at the location it was in the 1983 report and stabilized at that location. This meant moving the current channel bank and placing appropriate rip-rap. Mr. DeVos told the Tribunal that the cost of the earth work was about the same as reshaping the bank in its current location but the rip-rap was more extensive. He said that his usual practice of leaving the channel in its current location would require 30 lineal metres of rip-rap but moving and stabilizing the channel will require 82 lineal metres of rip-rap. The engineer detailed his assessment of costs on the Martin Van Geffen property as follows:
Total cost of the work on this property is $15,250.
Mr. De Vos indicated that Mr. Van Geffen requested that excess excavated material be hauled away so he was charged a special benefit for the increased cost of this versus levelling that material ($650 out of a total estimated cost of $800).
As well, Mr. Van Geffen requested that the outlet pipe at Sta.0+281 be replaced. The existing pipe was old and had bent down. This is a private tile and therefore assessed entirely to him as a special benefit ($370).
At Mr. Van Geffen's specific request rip-rap is to be installed at all the bends. At the large bend at Sta.0+300+, he requested the ditch banks be backfilled and the rip-rap put in where the old bank was so he would not lose any land. Normally, Mr. DeVos would only rip-rap approximately a 30 metre length of the large bend closer to the banks present location. The remaining area would have the banks resloped. Therefore, 52 metres of the 82 metre total length of rip-rap was assessed at a higher benefit rate of 60% (as opposed to the 48% benefit 52% outlet ratio used for other costs) to account for this ($2,730 out of a total additional rip-rap cost of $4,550).
Then the remainder of the hauling cost which is $150 and the remainder of the previously mentioned rip-rap cost which is $1,820 were charged to the upstream owners as outlet.
The construction costs that would normally have been incurred for repairing the ditch banks in their current location, including allowances and administration and engineering were left to be $9,530 This was assessed at the same rate as the last report which was 48% benefit which is $4,600 and the remainder as outlet, i.e. $4,930.
Therefore, the total benefit charged to Mr. Van Geffen was $8,350 and the total as outlet distributed to upstream lands was $6,900.
Martin Van Geffen told the Tribunal that he has farmed in Adelaide Township all his life. He has lived in the Township since 1953. Over the years, the Township has transformed from mainly pasture and hay uses to the point where much of the land is now intensively cropped. He said that, in the 1960’s in particular, there was a push on clearing ground and a lot of bush and thorn tree ground was cleared. Cropping became prevalent. In the 1950’s there were a few covered drains in the watershed maybe, one or two. Presently, there are 15 covered drains and two open drains in the watershed. Today, most of the crop land is systematically tile drained. The end result of this work is that a large rain that in the 1950’s and 1960’s would run off over a period of days, now runs off in a period of hours. He said the present drain overflows its banks several times each year but he is not complaining about that. He said now the water gets through the drain faster and causes erosion. The water has to flow around a 90 degree bend and the amount of erosion at that bend is a direct result of how fast the water gets there.
He said erosion is taking place at all bends in the channel but this 90 degree bend on his property happens to be suffering the worst erosion and it is the sharpest bend. This bend in the channel has moved 20 to 30 feet into the field. Mr. Van Geffen said he asked the engineer to put the drain into the condition it was before and protect it. He told the Tribunal that there is no erosion at the places where the surface water from his farm enters the drain. He said the erosion is caused by the flow of water in the channel.
Mr. Van Geffen told the Tribunal that the outlet pipe that is being repaired was installed when the farm was tiled in 1981 right after he purchased the property. He said the pipe is ruined because of the erosion on the west bank of the drain and the heavy flow of water running in the channel bent the pipe. He said part of the issue for consideration is whether the pipe aged or is the damage to the pipe caused by the water in the creek? He claimed that the damage was caused by the water because the other three outlet pipes installed at the same time are in perfect shape and do not require replacement.
Mr. Van Geffen said that this was a natural watercourse. The bank erosion is caused by taking the water from Point A to Point B faster. Water goes off the land into tile drains and moves through the channel in hours instead of days. Since this rapid movement of the water is a result of changes made in the upper watershed he should not be responsible for the cost of repairing the drain when his water contributed to only a very minor amount of the problem.
Mr. Van Geffen told the Tribunal that when the work is done, his parcel of land is not made better. He will not be able to grow more crops, it will not be more easily maintained, it will not command a higher market price. All he asked for and is receiving is the land returned to the state it was in with the drain built to the specifications of the original 1983 drain report. He said he receives no betterment as a result of this work just a return to what he had in 1983.
Mr. Van Geffen requested that the Tribunal eliminate the benefit assessment against his property except the $650 assessed for hauling the spoil materials and charge this amount of money to the owners in the upper watershed as injuring liability since this water originates on their property. He said he has no concerns about paying for the water that originates on his property but feels others should do the same.
In response to Mr. Van Geffen, Mr. DeVos told the Tribunal that he identified the following benefits to the property that are a direct result of the proposed work:
the original incorporated ditch in 1983 had fairly steep bank slopes with a grade and cross-section which over time would be susceptible to erosion the same as many open ditch municipal drains in this Province. By installing rip-rap and resloping of the banks to a 2 to 1 side slope, the ditch will be less susceptible to erosion. This will provide better control of surface water and other advantages in reduced maintenance. If most of this work had been done in 1983 then it would have been assessed in the same manner as the other work in1983 and therefore should be assessed at 48% benefit.
the rip-rap which was included by special request was done so that Mr. Van Geffen would not lose any land which would have been necessary had the banks been resloped to stabilize the erosion. This will result in increased crop production and higher market value.
at some time in the past the natural watercourse which existed was deepened, straightened and had trees cleared from its banks to take away from this land more quickly the water from upstream lands and water which falls upon it. This work was also to confine the water from upstream lands to a channel which might otherwise spread over low parts of the property in question and take up much more space with a shallower, wider cross-section and meandering pattern. Unfortunately, this also increases the ditches' susceptibility to erosion and therefore future repairs are to be anticipated. There is a benefit to this property to maintain the improvements to the ditch so the area does not revert to its original condition.
Mr. DeVos aruged that the Tribunal should approve the assessments as shown in his report.
The Tribunal examined the evidence and the appropriate sections of the Act as follows:
The engineer in the report shall assess for benefit, outlet liability and injuring liability, and shall insert in an assessment schedule, in separate columns, the sums assessed for each opposite each parcel of land and road liable therefor. R.S.O. 1990, c. D17, s. 21.
Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit. R.S.O. 1990, c. D17, s. 22.
(1) Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability.
(2) If, from any land or road, water is artificially caused by any means to flow upon and injure any other land or road, the land or road from which the water is caused to flow may be assessed for injuring liability with respect to a drainage works to relieve the injury so caused to such other land or road.
(3) The assessment for outlet liability and injuring liability provided for in subsections (1) and (2) shall be based upon the volume and rate of flow of the water artificially caused to flow upon the injured land or road or into the drainage works from the lands and roads liable for such assessments.
(4) The owners of the lands and roads made liable to assessment only under subsection (1) or (2) shall neither count for nor against the petition required by section 4 unless within the area therein described.
- The engineer may assess for special benefit any lands for which special benefits have been provided by the drainage works. R.S.O. 1990, c. D17, s. 24.
The parties agreed that the channel of the Sutherland Drain in the location where work is proposed was, at one time, a natural watercourse. It is the understanding of the Tribunal that the owners of land that abut a natural watercourse (riparian owners) have certain rights and obligations arising from the ownership of these lands. They have the right to receive the water that naturally flows in the watercourse but they also have the obligation to accept the water. Riparian owners have the right to drain their riparian lands into the natural watercourse so long as this right is exercised in a reasonable fashion. Lower riparian owners have the obligation to accept this water. The result is that there are situations where riparian owners suffer from increased flows generated by upstream riparian owners legally exercising their rights. All of this is said to indicate that, in the opinion of the Tribunal, it is a difficult task to determine the extent of the erosion on the Sutherland Drain that is natural, that is caused by upstream riparian owners and that is caused by the actions of other landowners that perhaps could result in an assessment for injuring liability. The Tribunal also notes the practical difficulty of reviewing each property to determine how injuring liability could be charged, if in fact injuring liability could be determined.
The Tribunal notes that the basis of assessment for injuring liability and outlet liability is the same - the rate and volume of water artificially caused to flow to the drain. The evidence before the Tribunal in this case does not indicate any particular land in the upper watershed that is significantly different in use from the others and therefore contributing to the flow in the channel in a manner significantly different from all of the other lands. Lands in the watershed appear to be used for agricultural purposes in a manner that can be accounted for in the “equivalent acreage” process of assessing for outlet liability. In the opinion of the Tribunal, whether the column is headed injuring liability or outlet liability has no practical difference in this case.
In examining the amount assessed as benefit the Tribunal notes the division between outlet and benefit is in the normal expected range. The Tribunal does note that in his explanation of the benefit assessment the engineer has identified special benefit and benefit but in the report he only assesses benefit. How are the landowners to determine the appropriateness of the assessment if the basis upon which it is calculated is not shown in the report? In this case the appellant acknowledged that he had received the explanation of how his assessment was calculated prior to the hearing. He did not agree with the methodology used.
The engineer in his report shows a chart for allowances under Sections 29 and 30. In the chart there is only one figure and there is no way for landowners to determine how much of the figure is for the land needed for the drain, the buffer strip that is now being required on this drain and for damage to lands and crops during the construction. In the opinion of the Tribunal, the use of land for a drain right-of-way and the damages to land that occur during construction are calculated on different principles. How are the assessed ratepayers to determine whether the allowances are reasonable unless the report indicates the principles upon which they are calculated and the amount of each type of allowance? In this case the appellant indicated that he was unaware that he was receiving an allowance for the land used as a buffer strip along the drain, but he was not appealing to the Tribunal to provide an allowance for land taken. The engineer told the Tribunal that his calculations for allowances included land used as the buffer.
The Drainage Act places a high professional duty on engineers. This duty extends to the preparation of the preliminary and final reports. The Tribunal has been concerned that a large number of the reports are deficient in a number of particulars. Over the years, the Tribunal has commented on these deficiencies and had given practice directions. Engineers ignore these directions at their own peril. The attention of the profession is drawn to the following two principles:
In the event that the Tribunal is persuaded that the appeal was caused by the deficiencies in the report, the Tribunal would not hesitate to assess part or all of the costs of the appeal against the engineer. This is because the Tribunal regards such an occurrence as a major failing in the Engineer’s statutory duty. In this instance, while the Tribunal has made some criticisms of the report, the Tribunal is satisfied that there would have been an appeal, even if the report had been exemplary in every respect, and therefore no costs are assessed against the engineer.
In the event that the Tribunal is persuaded that the deficiencies in the report, while not the principal cause, contributed to the existence and length of the appeal process, the Tribunal would not hesitate to disallow some of the engineer’s costs being assessed to the drain. Since the Tribunal has not previously implemented this policy, the Tribunal will apply this policy to reports filed after the date of this decision. Had this policy been implemented prior to this hearing, the engineer in this case would have been asked for submissions as to why some of the engineer’s costs should not be assessed to the drain.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made, the Tribunal orders that:
The appeal of Mr. Martin Van Geffen against the decision of the Court of Revision on the Mud Creek Drain and Sutherland Drain be dismissed.
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 reasons for this decision are:
The Tribunal was not convinced by the evidence that the benefit assessment levied against the lands of the appellant ought to be charged to the upper watershed as an injuring liability assessment.
Given the nature of the watershed and the proposed work, the Tribunal is convinced that the assessments in the report are fair.
Dated at Chatsworth, Ontario this 18th day of November, 1997.