Baxter Drain (Re), 1997 ONAFRAAT 55

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Baxter Drain

Township of Moore

Baxter Drain (RE) 1997 ONAFRAAT 55

STATUTE:

Drainage Act

HEARING:

December 4, 1997

DATE OF DECISION:

December 17, 1997

1997-55

NEUTRAL CITATION:

1997 ONAFRAAT 55

Baxter Drain

Township of Moore

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 Douglas Selman and William Munday under Section 48(1) of the Drainage Act from the engineer’s report on the Baxter Drain in the Township of Moore on the basis that benefits are not commensurate with the estimated cost of the work.

Before:

Vernon Spencer Chair; Herb Todgham Vice Chair; John Taylor Vice Chair.

Appearances:

Doug Selman appellant.

Bill Munday appellant.

Bill Vietch P. Eng., on behalf of the respondent the township of Moore.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Moore in Mooretown, Ontario, on Thursday, December 4, 1997. Douglas Selman and William Munday appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48(1) of the Drainage Act (the Act) from the January 30, 1997 engineer’s report on the Baxter Drain in the Township of Moore (the Township) on the basis that benefits are not commensurate with the estimated cost of the work.

Ron Whitman, Clerk of the Township, 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.

The Background

The Baxter Drain runs parallel to Highway 80 (Courtright Line) on private land north of the road allowance. It starts as an open ditch in Lot 26 Concession 5 and runs westerly through lots 26, 27, 28 and 29 Concession 5 and lot 25 Front Concession to 8^th Street in the former Village of Courtright. Several sections of the open channel in the Front Concession have been enclosed by the township under various Bylaws. Whether or not these bylaws were dealt with under the Act is not clear. However, none of the cost of the work of enclosing the channel was charged to the upstream owners. The works of enclosing the channel extended downstream to the west limit of 3^rd Street. From just west of 3^rd Street to the easterly end of the road culvert under the St. Clair Parkway, a distance of approximately 262 meters, the present channel is an open ditch approximately four meters deep. The current proposal is to enclose this 262 meters of channel in a 2000mm aluminised Ultra Flow Pipe (corrugated exterior with a smooth wall interior), and to incorporate as part of the Baxter Drain the enclosed drain from the west limit of the CSX rail road to the west limit of 3^rd Street. The estimated cost of the work is $225,118.00 of which $33,118.00 is an allowance to the Township for the section of enclosed drain from the west limit of the CSX Railway to the west limit of 3^rd Street installed by the township from the general rate. The cost of the work was assessed by the engineer as follows:

Special assessment against Moore township for work from

3^rd Street to the CSX railroad $33,118.00

Benefit to Highway 80 now Lambton County Road 80 $54,555.00

Benefit to lands fronting the drain $36,199.00

Outlet to Privately owned non agricultural lands $40,290.00

Outlet to Privately owned agricultural lands $23,857.00

Outlet to Municipal owned lands $35,235.00

Outlet to Rail Road lands $ 263.00

Outlet to Provincial owned lands $ 1,601.00

The appellants are landowners in the agricultural area upstream of the proposed work.

The Issue

The issue before the Tribunal is are the estimated benefits of this project commensurate with the estimated costs?

The Evidence and the Findings

Mr. William Munday spoke on behalf of the appellants. He said they were appealing that this urban project was being made part of the Baxter Drain and they are concerned about the future liability for repair, maintenance and improvement of an urban project being charged to the agricultural lands. Mr. Munday said that he understood the Baxter Drain stopped at the watercourse on the easterly limit of Lot 25 Front Concession. He said that when the 5 foot pipe was installed in 1976 the highway was the only property assessed and the upper watershed was not notified of the change in the drain or that these owners would be responsible for future maintenance of this pipe. In 1977 the township installed a six foot diameter pipe in 2,050 feet of the ditch downstream of Lot 25 Front Concession with no assessment to the upper watershed. In 1978 the township then installed a further 750 feet of six foot diameter used pipe in the ditch at no cost to the upper watershed. Mr. Munday said the appellants were concerned that this pipe will have to be replaced sometime and the cost should not be assessed to the upper landowners since this is a project that essentially beautifies the township and benefits the urban area through which it runs. It does not provide any better drainage to the upper watershed.

Mr. Munday told the Tribunal that the existing pipe causes a flooding problem. At times of high flow the water backs up on the upstream side of the pipe and completely fills the open ditch and causes some flooding of basements. At the same time the water at the outlet of the pipe is only about half way up the pipe.

Mr. Munday told the Tribunal that the appellants were not appealing the amount of the assessment. He said they are assessed fairly on this project if the project proceeds. He said that the existing open ditch has not had money spent on it for twenty years and a clean out of the trees and brush is all that is needed to provide good outlet for the agricultural land. He said this should be done by the township from general funds or by assessing the urban lands but not by extending the Baxter Drain and assessing all the lands and roads in the Baxter Drain watershed. The main concern is the liability that the upper watershed is assuming from these long sections of pipe that are now 20 years old or older and will need to be replaced at great expense in the future.

Earl Clysdale , an assessed owner, told the Tribunal that he agreed with Mr. Munday and Mr. Selman that the Baxter Drain should not be extended below 8^th Street and any charges for work done between 8^th Street and the river should be paid for by the Township from general funds.

William Waybrant, an assessed owner in the former Village of Courtright, told the Tribunal that he was opposed to the project on the basis of the cost. He said he felt the problem could be addressed by clearing out the trees and debris from the drain and leaving it as an open channel. He said he has lived in the area for 55 years and cannot remember anyone being hurt in this channel.

Mr. Gerald Little, an assessed landowner in the agricultural area, told the Tribunal that he was concerned about the procedures used over the past 25 years. He pointed out that the Baxter Drain originally dumped into a natural ravine and had adequate outlet. The ravine had lots of fall to the St. Clair River. Over the years the Township has done work on the drain without informing the landowners in the upper watershed and now these owners are being asked to assume the liability for paying for improvements in this outlet primarily to accommodate the urban area of Courtright.

Harvey Brown, an assessed ratepayer, told the Tribunal that during a big storm two years ago the ditch in front of his property was level full and water backed up into his son’s basement and Bobby Taylor’s basement across the road. At his brother’s property the water was 6 feet above the culvert, at the other end of the culvert 550 feet away it was only ¼ full. All of a sudden it broke lose and what was plugging the culvert moved and the drain cleared in 3 hours.

Mr. Bill Veitch, P. Eng., told the Tribunal that he had prepared the January 30, 1997 engineer’s report. The project had been initiated in response to a petition from nearby landowners asking for the removal of trees and brush and indicating concerns over weed control, appearance and danger to children. A preliminary report had been prepared and filed with the township. At the consideration of the preliminary report the issue was the cost of the project and what should be done to address the problems of safety and maintenance of the channel. Three alternatives were considered:

Option 1

This design includes an improvement to the existing open ditch through the provision of gabion ladders to reduce the channel depth and velocity, slope stabilization, inlet and outlet works, and general channel grubbing and cleaning. The estimated cost for this alternative was $103,413.

Option 2

This design includes the installation of a low flow pipe (900 mm) and an overland flow swale suitable to convey up to the 10 Year Storm event. The channel would be shaped and graded for maintenance via Highway Mowing Equipment. The total cost of this option was estimated to be $138,880.

Option 3

This design, included the installation of a 2000 mm diameter CSP (smooth wall) along the entire length of the required works. The pipe would be the downstream extension of the existing 6 foot diameter pipe sections. The proposed drain would have the capacity to convey up to the 10 Year Storm. Inlet devices would be provided along the length to convey Highway 80 flows and side street and backyard outlets. The works would include necessary improvements to the outlet structure. The estimated cost for these works would be $192,000.

Mr. Veitch recommended Option 3. He assessed the cost of this option primarily as benefit to the adjacent owners. Outlet liability was distributed through the watershed using the equivalent acreage method. Outlet liability was calculated for the upstream rural lands on the basis of the equivalent cost which would be required to construct a sufficient covered drainage work to convey flows from these lands using typical rural drainage practices.

Mr. Vietch told the Tribunal that the proposed work finishes enclosing the section of the drain along the highway through the village to the outlet in the river. He said there would be minimal maintenance cost in future. The municipality would have ease of maintenance of the boulevard area that cannot be maintained presently. It is the one section in Courtright that is not enclosed yet it is the deepest section and is the closest to the outlet. He said these are the benefits from the Township and highway and community perspective and he established the proposed assessment to reflect these benefits. He noted that about 300 property owners are assessed for the project and only four have spoken against the proposal at the hearing.

In summation, Mr. Vietch asked the Tribunal to order several housekeeping amendments to the report prior to third reading of the Bylaw.

The Tribunal considered the evidence and was convinced that the intangible benefits of the project outweigh the cost of the project and the project should be allowed to proceed. In arriving at this conclusion the Tribunal took note of Mr. Vietch’s observations on the number of people assessed significant amounts for this project who were not complaining about either the assessment or the proposal. In fact the owners assessed for 85% of the cost of the project and all of the owners assessed for benefit appear to have agreed with the project. On this basis the appeal is denied.

Although it is not entirely certain whether the various works enclosing the drain in the Front Concession were carried out in accordance with the provisions of the Act, after considering the evidence the Tribunal was convinced that it was the clear intention of the township that:

1. The various works of enclosing the drain were to be carried out under the Act.

2. The drain along the north side of highway 80 from at least as far upstream as the east limit of the Front Concession down to the west limit of the CSX Railway has for some years been considered to be part of the drain known as the Baxter Drain.

3. Once Bylaw 10-1997 is passed and those things authorized by it have been carried out, the Baxter Drain will extend as a continuous municipal drain from at least as far upstream as the east limit of the Front Concession down to the east end of the culvert under County Road 33 (St. Clair Parkway).

The Tribunal finds that the enclosed drain from the east limit of the Front Concession down to the west limit of the CSX Railway is already part of the Baxter Drain, and once the provisions of the Engineer’s report dated January 30, 1997 have been carried out, the Baxter Drain will continue downstream to the east end of the culvert under County Road 33 (St. Clair Parkway).

However, the Tribunal shares the concern of the upstream landowners that the lands in the watershed are now being held responsible for the maintenance and repair of significant sections of large pipe in this drain without previously having had any notification of the work being done or any input into the cost sharing arrangements for this maintenance. The Tribunal believes that the assessment schedule prepared by Mr. Vietch, while appropriate for the section of drain being installed in this report, may not accurately reflect the proper assessment for the maintenance of the section of drain upstream of the proposed work that is being incorporated into the Baxter Drain by this report. Furthermore there appears to be no proper provision for maintaining the other sections of the Baxter Drain that have been enclosed in pipe over the years, or for assessing the cost of such maintenance. Therefore the Tribunal will order that, in time, a new assessment schedule must be prepared for the piped sections of the Baxter Drain (exclusive of the section constructed under this report) prior to any assessment being levied or work carried out for maintenance of the pipe sections of the Baxter Drain (not including maintenance of individual lane, road and farm crossing culverts). In the opinion of the Tribunal, this will allow input from all parties that are expected to pay toward the work and resolution of the concerns of the appellants over the agricultural lands being assessed for the maintenance of an urban drain project.

ORDER OF THE TRIBUNAL

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

1. The appeal of William Munday and Douglas Selman under section 48(1) of the Act is dismissed.

2. The status of the drain along the north side of Highway 80 from the east limit of the Front Concession to the west limit of the CSX Railway property is confirmed as a drain under the Drainage Act and is to be maintained and repaired by the Township of Moore as part of the Baxter Drain under the provisions of the Act, subject to Order 3 of this decision.

3. Prior to carrying out the maintenance or repair and the assessment of the maintenance and repair costs of the piped sections of the Baxter Drain, exclusive of the section installed under this report, lane, road and farm crossing culverts, the Township must obtain a report for the work and adopt it in accordance with the procedures of the Act.

4. Prior to giving third reading of Bylaw 10-1997 the Clerk is to amend the January 30, 1997 engineer’s report by:

a) Page 1

• Changing the third line of the first paragraph to read “Highway 80” not Highway #40 as is currently shown.

• Deleting the paragraph labelled as paragraph (a) and substituting therefore the following paragraph

Make an allowance for works previously undertaken by the Township to improve drainage facilities from the west limit of 3^rd Street upstream to the west limit of the CSX Railway and assess all cost of this allowance to the Municipality. The allowance and cost of recovering same are provided under Section 31 of the Drainage Act. Once the Bylaw adopting this report has been enacted by the Township the section of drain between the west limit of 3^rd Street and the west limit of the CSX Railway property is incorporated as part of the Baxter Drain and, once an assessment schedule for maintenance and repair of this section has been prepared and adopted in accordance with the Drainage Act, this section of the Baxter Drain will be maintained and repaired by the Township at the expense of the lands and roads assessed in that schedule.

• Changing the figure 600 hectares where it appears in the 6^th paragraph to 628 hectares.

b) Page 3

Changing the second and third lines of the 5^th paragraph to read “ completion of the work, the section of the Baxter Drain constructed under this report and bylaw shall be maintained in the same relative proportions as set out in the Maintenance Schedule unless otherwise altered under the provisions of the ”.

c) Maintenance Schedule for Expenditure of $2500.

This is to be amended so that the assessments in it will be in the same relative proportions as the assessment set out in the schedule of assessments for construction as amended by the Court of Revision, but not including the special assessment to the Township of Moore.

5. 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.