Agriculture, Food and Rural Affairs Appeal Tribunal
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
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: Leach West Drain Township of Norwich
Leach West Drain (RE) 1997 ONAFRAAT 5
STATUTE: Drainage Act
HEARING: March 13, 1997
DATE OF DECISION: March 19, 1997
1997-05
NEUTRAL CITATION: 1997 ONAFRAAT 5
Leach West Drain Township of Norwich
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 Mr. Richard Dwornikiewicz under Section 54 of the Drainage Act from the Decision of the Court of Revision concerning the Leach West Drain 1996, Township of Norwich.
Before: Mr. Andrew Osyany, Vice-Chair; Mr. Herb Todgham, Vice-Chair; Mr. Russell Piper, Member.
Appearances: Mr. Richard Dwornikiewicz, appellant. Mr. John Kuntze, P. Eng., on behalf of the respondent, the Township of Norwich.
DECISION OF THE TRIBUNAL
This appeal was heard in Otterville, Ontario on March 13, 1997. Mr. Robert Watkins, Clerk of the Township of Norwich, performed the duties of the clerk of the Tribunal.
Mr. Richard Dwornikiewicz 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 concerning the Leach West Drain 1996, Township of Norwich (the township).
Mr. John Kuntze, P. Eng., the engineer appointed to prepare the October 31, 1996 engineer's report on the Leach West Drain 1996 spoke on behalf of the township. Mr. Kuntze outlined the background of the drainage in the area and then outlined his method of assessment for this project.
The Background
The Township of Norwich received a petition for drainage improvements to the Leach West Drain in the north part of Lot 1, Concession 9 (South Norwich) in the township. A watershed of 197.2 ha (hectares) drains through this area. About mid-way through the lot there exists a low lying area of land consisting of between 5 and 10 acres that has no outlet for surface water. The water must build up in this "low hole" to a depth of about 1.2 metres before it will spill out and run overland to the Leach Drain open ditch at the County Road. A tile drain was designed and installed about 1961 to provide outlet for this low hole. The tile was a 16 inch diameter tile to be laid on a 0.05% grade. This tile is inadequate.
The engineer's report provides for drainage improvements for parts of the north parts of Lots 1 & 2, Concession 9. To achieve this objective a new tile drain is proposed from an outlet in the existing Leach Drain ditch, north of County Road 19, across the County Road, and across the Dwornikiewicz property in the north part of Lots 1 and 2, Concession 9 (former South Norwich) to the Dwornikiewicz‑Van Besien (formerly Durkee) property line. A widening and deepening of the existing Leach Drain ditch for approximately 145 metres north of the County Road is necessary.
The report also provides new maintenance schedules that can be used for all parts of the Leach Drain ‑ the east portion, the south portion, the outlet ditch portion plus the full west portion.
A summary of the proposed construction work is as follows:
‑ 145 m (metres) of deepening of Leach Drain ditch
‑ 20 m5 of riprap on filter at new outlet
‑19 m of 750 mm diameter solid plastic pipe (Big O Boss 2000)
‑25 m of 763 mm O.D. (outside diameter) steel pipe across County Road 19
‑ 439 m of 750 mm diameter concrete tile with joint wrap
‑ 479 m of 600 mm diameter concrete tile with joint wrap
‑3 concrete catchbasins
The total length of the drain construction is 1,107 m (145 m open, 962 m closed).
The total estimated cost of the construction work is $86,420 which when combined with Allowances, Engineering and Administration, brings the cost of the Leach West Drain to $116,555. The cost of preparing the maintenance schedules is $1,045 to make a total estimated project cost of $117,600.
The total drainage area for the Leach West Drain is 197.2 ha (hectares) or 487 acres.
The Issue
The issue before the Tribunal is whether or not the assessments proposed to be levied on the lands owned by Mr. Richard Dwornikiewicz are appropriate.
The Evidence and the Findings
Mr. John Kuntze told the Tribunal that in calculating the assessments for the project he looked at the drain in two parts. Mr. Kuntze described his assessment as follows.
The first part of the drain is the portion downstream from Mr. Dwornikiewicz which is on the County Road and the D.C.H. property. On this length of drain, the existing ditch is being deepened and larger pipe is being installed across the county road to give a better outlet for the lower area on the Dwornikiewicz property. The total estimated cost of this length of drain is $31,620. The County is assessed $15,685 as a special assessment for the increase in cost of boring under the road. Mr. Dwornikiewicz is assessed $2,000 for the benefit of improved direct outlet for his property. $500 is assessed as benefit to the abutting property of D.C.H. Corporation for direct benefit. (The ditch is eight feet deep on this property.) The balance of the cost, after deducting the benefit assessments, is charged as outlet.
The second portion of the drain is the part on the Dwornikiewicz property. This portion consists of 918 metres of tile drain. The total cost is $84,934. The total benefit assessment is $48,000. $37,500 is assessed as benefit to the Dwornikiewicz property. This is $5,500 for direct outlet benefit assessment, with the remaining $32,000 for improved control of surface and subsurface drainage. The drain is a physical improvement to the property.
Because of the nature of the project and the fact that it provides capacity for future upstream extensions, a lump sum benefit assessment is charged to the upstream lands. This is a somewhat unusual situation but warranted because of the ability to extend the drain in the future. This benefit assessment was set at $10,500. The Van Besien property is assessed $3,000 for a direct benefit. The two properties to the south that could get to the drain very easily, Huffman and Yee, are assessed $2,500 benefit each. The balance of the lands adjacent to the existing drain and upstream of the top end of the proposed work - 5 more parcels - are assessed $500 per parcel as benefit for direct outlet. This leaves $36,935 to be assessed as outlet.
When you get to the midpoint of the depression on the Dwornikiewicz property, you are still draining almost the entire watershed. The Dwornikiewicz property drains back to the low hole. In total, 184 "adjusted" hectares are assessed for outlet and of these, 33.1 hectares belong to Mr. Dwornikiewicz.
Mr. Kuntze summed up his testimony on assessments by saying that when the assessment is completed, the percentage of the cost assessed to Mr. Dwornikiewicz for the work done on his property is 52% of the cost of the work on his lands, with the remaining 48% assessed to the watershed as both benefit and outlet.
Mr. Richard Dwornikiewicz, the appellant, told the Tribunal that he came from another country as a young man and purchased the property in 1968-69. He has always had a problem with excess water on this farm. In the beginning, the area would flood two or three times per year and now it floods four or five times per year. Sometimes he can replant the crop so the damage is limited, but some years the crop is severely damaged. He said that the problem is not coming from his property, but from the land of other owners. He said that, in his opinion, a 50/50 split in the assessment, results in assessed costs to his land that are too high. He said that he recognized that the water has to go some place, but felt he should not have to pay so much to dispose of his neighbours' water.
Mr. Dwornikiewicz told the Tribunal that from 1968 on, the crop has been damaged in the low area. He said more than 5 or 6 acres are affected by the flooding. In 1996, he had to get a bulldozer to fill in the channels that had eroded from the former Durkee property to the low hole on his land. He said he manages the overflow runoff from the low hole to the County Road because he does not want to lose the topsoil in the area. Therefore, the erosion in this section of the field is minimal.
Mr. Dwornikiewicz pointed out that some of the upstream owners have businesses on their lands that contribute a great deal of runoff to the problem, and he feels they are assessed too low. He indicated lands that had extensive tile drainage and lands with ponds that overflow, would contribute water to the flooding problem on his land. He said that the problem on his land has worsened because of the trend to larger equipment and more land under cultivation and crop.
Mr. Dwornikiewicz said that he recognized that he should pay a significant portion because he receives a benefit from the work, but his cost should be in the order of $20,000 to $25,000. Mr. Dwornikiewicz told the Tribunal that he feels the project will solve his drainage problem and he wants to proceed with the work, but his cost should be reduced.
Mr. Dwayne Van Besien, an assessed landowner, told the Tribunal that he purchased the Durkee property on January 1, 1997. He said that from what he has seen, the pond on his property does overflow onto the lands of Mr. Dwornikiewicz. Mr. Van Besien said that, in his opinion, an assessment of $15,000 is plenty to cover the water flowing from his lands. He said that there is a big roll from north to south on his farm and the dip in the middle of the farm is full of water, so not all the land is sloping to Mr. Dwornikiewicz. He said some of the water lays on his land.
Mr. Peter Kuivenhoven, the landowner next to the owner on the upstream watershed boundary (Jaszczur), told the Tribunal that the 1961 drain comes to his downstream property boundary. It has not been changed, so the amount of water that flows from his property through the tile to Mr. Dwornikiewicz has not changed over the years. Mr. Kuivenhoven told the Tribunal that the water from Mr. Jaszczur's property has to flow over the surface to get across his lands to flow to the land of Mr. Dwornikiewicz. Mr. Kuivenhoven said that there is no evidence of any surface flow. He said the soils in the area are sandy and the water seeps into the ground quite quickly.
Mr. Kuntze questioned Mr. Dwornikiewicz on his proposed reduction in his assessment and clarified that Mr. Dwornikiewicz was looking at the assessment net of grants and allowances when he said that his assessment should be $20,000 to $25,000. This clarification was a great help to the Tribunal as a reduction in assessment from the $48,281 proposed in the report to $25,000, is a huge reduction and would mean that the engineer had made a large error in calculation. In the opinion of the Tribunal, this confusion arose because of the habit that a few engineers follow, of creating a schedule of "net" assessments. In the opinion of the Tribunal, the engineers ought not to include this schedule in their reports since it can be the source of much misunderstanding and discussion, when landowners begin to compare the "out of pocket" dollars to be paid by the various landowners, after allowances and grants, when the significant comparison is the division of the total assessment among the landowners.
The evidence before the Tribunal is that there is a low lying area on the Dwornikiewicz property that has flooded on an annual basis for at least the past 27 years. The area affected by the flooding is at least 5 or 6 acres and, depending on the water sensitivity of the crop grown, may be as large as 10 acres. In addition, there is erosion damage from the surface flow coming from the upper watershed onto this property. The proposed drain will reduce the extent, the frequency and the duration of the flooding. The new drain will have a capacity 7.5 times as large as the existing drain. The new drain begins at a catch basin at the Dwornikiewicz-Durkee line fence, just upstream of a berm designed to hold the surface water until it gets into the new drain. All of this will be of a significant benefit to the land of Mr. Dwornikiewicz. The Tribunal found no errors or inconsistencies in the assessment calculations made by the engineer. The evidence of the appellant was his personal opinion on what he ought to pay. Considering all of the circumstances, the Tribunal found no reason to alter the assessments proposed by the engineer.
The Tribunal heard several times during the hearing that the property of D. & B. Huffman (Roll Number 010-010-072) is undergoing an extensive landscaping modification. It appears to the Tribunal that this property may be in the process of being converted from agricultural use to residential and therefore may not be eligible for the agricultural grant. The use of this property should be verified at the time the grant application is filed with the Ministry to determine its continued eligibility.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence presented and submissions made, the Tribunal orders that:
The appeal by Mr. Richard Dwornikiewicz under Section 54 of the Drainage Act from the Decision of the Court of Revision concerning the Leach West Drain 1996 be dismissed.
The Engineer is to verify the land use on the Huffman property (Roll Number 010-010-072) at the time the drainage work is completed to determine whether it has been converted from agricultural use and therefore not eligible for grants.
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 that, in the opinion of the Tribunal, the engineer applied the appropriate calculation principles in a proper and consistent manner in arriving at the proposed assessments and the resulting assessments are fair.
Dated at Shelburne, Ontario this 19th day of March, 1997.