Somerville Drain (Re), 1997 ONAFRAAT 56

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

Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Somerville Drain

Township of Oxford On Rideau

Somerville Drain (RE)

1997 ONAFRAAT 56

STATUTE:

Drainage Act

HEARING:

March 18, 1997

DATE OF DECISION:

April 15, 1997

1997-56

NEUTRAL CITATION:

1997 ONAFRAAT 56

TOWNSHIP OF OXFORD ON RIDEAU.

SOMERVILLE DRAIN

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 under Sections 48 and 54 of the Drainage Act by: 3A and Associates Investments Ltd.; Anda Rungis and Dennis O'Grady; Charles, Donald and Michael O'Neil; Keith, Donald and Kenneth Armstrong and under Section 54 by Keith MacLennan from the November 12, 1996 decision of the Court of Revision and the engineer's report on the SOMERVILLE DRAIN, TOWNSHIP OF OXFORD ON RIDEAU.

Before:

Mr. Herb Todgham, Vice-Chair; Mr. John Taylor, Vice-Chair; Mrs. Gertrude Levac, Member.

DECISION OF THE TRIBUNAL

This appeal was heard in Oxford Mills, Ontario on March 18, 1997. Several landowners appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the engineer's report on the proposed Somerville Municipal drain.

Mrs. Martha Sladek, Clerk Treasurer of the Township of Oxford-on-Rideau (the township), performed the duties of the Clerk of the Tribunal.

At the start of the hearing, Mr. W. Johnston requested permission of the Tribunal to extend the time for filing an appeal under Section 54 on behalf of Mr. William Henderson. Mr. Jim McIntosh, P. Eng., the engineer who prepared the August 20, 1996 engineer's report on the Somerville Municipal Drain, told the Tribunal that he was aware of the concerns of Mr. Henderson and was prepared to speak to these concerns at the hearing. Mr. Vice, counsel to the township, advised the Tribunal that the township objected to the late filing of the appeal. Mrs. M. Bergman, counsel to 3A and Associates Investments Limited (3A) and Mr. Douglas Hewson, counsel to Mr. Keith MacLennan indicated they did not object to the late filing of the Henderson appeal. The Tribunal agreed to listen to the evidence but reserved its decision on whether or not it would extend the time for filing the appeal until after more evidence was heard.

The Tribunal issued an order that, since the assessments in the report are subject to appeal, all assessed owners are parties to the hearing and were invited to make representations to the Tribunal.

Mr. Denis O'Grady requested and was granted a short recess to confer with Mr. McIntosh. Mr. O'Grady told the Tribunal that, based on his discussion with Mr. McIntosh, he wished to withdraw his appeal. The Tribunal accepted the withdrawal of Mr. O'Grady's appeal and therefore did not make any decision with respect to this appeal.

Section 48 of the Act is as follows:

48(1) Any owner of land or any public utility affected by the drainage works, if dissatisfied with the report of the engineer on the grounds that, the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

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

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

(c) 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.

(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 Background

The proposed drainage works were initiated by a petition of the Road Superintendent in accordance with Section 4(c) of the Act. The area requiring drainage is said to be an area extending from and including Somerville Road downstream past the Kemptville Building Centre and along Highway No. 43. A number of owners have expressed concerns to Council about the ponded areas and poor drainage capabilities of the present watercourse. Somerville Road requires a drainage outlet.

The report states that the proposed drain commences at the lot line between the Henderson (04025300) and the Somerville property (04027400) on the West side of Somerville Road in Lot 24, Concession 3 in the township. The report describes the alignment of the drain as follows:

"The drain follows a course through Somerville Road and the yard of the MacLennan property, around the perimeter of the Kemptville Building Centre and northerly to Highway No. 43. The drain then crosses through the Highway and turns easterly, following along the northerly side of the right-of-way limit of Highway No. 43 and turns North in Lot 25, Concession 2 for approximately 230 meters within an unopened road allowance. The drain then turns east across Lot 26, Concession 2, ending at the upstream end of the twin pipes at the Van Berlo Subdivision. At the Van Berlo twin pipes the drain outlets into an existing mutual agreement drain across the property owned by Land Traders of America. At County Road 44 the channel turns north along the west side of the County Road property for a distance of about 250 m before passing through a culvert under County Road 44 and continuing north easterly to Kemptville Creek."

The drainage area for the Somerville Municipal Drain encompasses 107.5 hectares (266 acres). The total length of construction on the drain is 1354 meters, and the total estimated cost is $98,067.11. The average slope of the drain is 0.15%.

The Issue

The issues before the Tribunal are:

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

2. Are the allowances provided by the engineer in the report adequate?

3. Is the proposed outlet for the work a sufficient outlet?

4. Should the design be modified by following a different alignment or taking the drain to an alternate outlet?

The Evidence and the Findings

Mr. Todd Perry, P. Eng., who had worked with Mr. Jim McIntosh P. Eng., on the preparation of the report outlined the proposed work and the assessment of cost.

Mr. Charles O'Neil, speaking on behalf of the O'Neil appellants, told the Tribunal that their concern was with the acreage assessed. He said that, in his opinion, the watershed boundary was incorrect and further that no water flowed from this property. A ridge exists near the south end of the property and water beyond this ridge does not flow into the proposed drain. Mr. O'Neil also told the Tribunal that the property was reforested with pine trees and the water soaks into the ground and does not contribute flow to the proposed drain. Mr. O'Neil requested that the assessment against this property be $0.00.

Mrs. Bergman addressed the Tribunal on behalf of 3A. She said that 3A is appealing the report on the grounds that the outlet provided is not a sufficient outlet. She said that 3A preferred that the work be modified so the outlet is sufficient. In the alternative, then 3A should receive compensation for flooding that will occur on the property as a result of the lowering of the culvert under Highway 43. Mrs. Bergman also stated that the allowance ought to be increased because no allowance was made for the existing ditch on the property. Also, the assessment for outlet ought to be eliminated because the present proposal does not improve the outlet to the property. The property already has all the outlet that the twin pipes provide.

Mrs. Bergman called Mr. John N. Sawarna, P. Eng., as an expert witness for 3A. Mr. Sawarna told the Tribunal that he has conducted a review of the engineer's report and believes that the proposal does not take the water to a sufficient outlet. He said that there will be flooding on the 3A property when the work is completed. Mr. Sawarna has calculated the flows from the 1 in 25-year storm that the drain is supposedly designed to carry and designed a cross section that would carry this flow without causing flooding. This cross-section has a depth of flow of just over four feet at the design flow. Mr Sawarna added two feet of freeboard and arrived at a cross-section with a six-foot depth of drain.

Mr. Sawarna filed photographs of the area and told the Tribunal that the lands of 3A and the adjoining lands are flat and currently subject to flooding. He said that these lands are served by a mutual agreement drain from the Van Berlo twin culverts to County Road 44. This mutual agreement drain does not have capacity to carry the existing water. Mr. Sawarna offered two alternative alignments to take the water to the outlet where the water flow crosses at County Road 44. The first option was to follow the alignment of the mutual agreement drain and thence along the west side of County Road 44. Mr. Sawarna estimated the cost of this proposal at $100,000. The second alternative relocates the mutual agreement drain away from the County Road along the back of the lots adjacent to the road and then to the outlet at the County Road culvert. The cost of this alternative Mr. Sawarna estimated to be $50,000.

In response to questions from the panel, Mr. Sawarna said that he had not conducted any field work but relied on the information provided in the McIntosh report.

Mr. Donald Armstrong, speaking on behalf of the Armstrong appellants, told the Tribunal that their concern was with the location of the proposed drain, the assessment made and the compensation for land taken for the drain. Mr. Armstrong said that the land is zoned Highway Commercial and, as such, has significant value. Placing an open drain along the front of the property will decrease this value. Mr. Armstrong argued that the drain be relocated to run along the west property boundary, then easterly along the back of the parcel of land that is zoned Highway Commercial to join the proposed alignment on the 3A property. Mr. Armstrong said that he felt the allowance for land taken was dramatically low and should be increased, but offered no evidence as to what the increase should be. He argued that a fair assessment for the proposed drain, if it is constructed, would be about $500.

Mr. Douglas Hewson spoke on behalf of Mr. Keith MacLennan. Mr. Hewson said his client has three concerns: the location of the drain ought to be moved to the south between the Johnston and O'Grady properties; the allowances provided are inadequate; there ought to be an assessment made for injuring liability.

Mr. Hewson introduced Mr. Daniel Jobin P. Eng., as an expert witness. Mr. Jobin reviewed the historical air photos of the area showing the Tribunal that the lands of the area were drained by surface drains and farmed in the 1950's. Over time, the lands were abandoned from agriculture and reverted to trees. The photos show some small knolls of higher ground that were drier and therefore did not reforest as quickly as the surrounding areas. Mr. Keith MacLennan has his house built on one of these knolls. As time progressed, the lands to the south of Mr. MacLennan were filled, houses were built, and the previous drainage pattern was disrupted. There are mutual agreement drains and drainage easements to try to alleviate the drainage problems of the area but these are not working satisfactorily. The result is the land owned by Mr. MacLennan has become more and more wet over time.

Mr. Jobin pointed out that the McIntosh proposal will provide a ditch with a uniform slope from Mr. MacLennan to Highway 43 but the invert of the ditch is the same as the invert of the current ditch at the back comer of the MacLennan property. Mr. Jobin said that this would not improve the drainage of Mr. MacLennan's land. He suggested an alternative alignment, moving the ditch south to line up with the Somerville Road culvert and then following the lot line between the Johnston and O'Grady properties. He argued that this would shorten the length of the drain, thus providing a better grade.

Mr. MacLennan told the Tribunal that he currently has sufficient frontage that he could sever the property and sell a lot on the south side. If the drain goes through as proposed, he will not have enough land left to sever the lot, and this is a major impact on his property.

On behalf of Mr. Henderson, Mr. Johnston told the Tribunal that the benefit assessment against the Henderson land is inappropriate. The construction begins 65 meters downstream of the Henderson lands on the east side of Somerville Road. To get to the drain, Mr. Henderson has to cross land owned by Mr. E. Somerville and the road so no direct benefit is provided by the proposed drain. Mr. Johnston also pointed out that the report states that the drain by-law is continued to the Henderson property boundary, but no cross section or specification has been provided, and Mr. Henderson is not a petitioner for the project. For all of these reasons Mr. Johnston argued that the benefit assessment against Mr. Henderson should be eliminated.

In response to the appeals Mr. Jim McIntosh P. Eng., the engineer who sign the report, told the Tribunal:

1. The watershed boundary on the O'Neil property, as shown on the report, is incorrect and should be modified showing a slightly smaller area of land draining into the Somerville Drain. The Court of Revision has altered the assessment for this property accordingly. This property was assessed on the basis of the lowest runoff coefficient, and therefore, the assessment ought to be left as modified by the Court of Revision.

2. The 3A appeal deals with the sufficiency of the outlet. Mr. McIntosh said that, in his opinion, the outlet provided is sufficient for the drainage waters being brought from the upper watershed. The outlet of the drain is the mutual agreement drain between the developer of the property and the township, and therefore, the township has control over the maintenance of this channel.

3. In his opinion, the Armstrong allowance is reasonable. He reviewed the possibility of locating the drain at the back of the Highway Commercial zoning, but the cost is higher than that of the work proposed in the report, and since the setback requirements render the land along the highway unavailable for development anyway, this is the appropriate location of the drain. In addition, if the drain were to be relocated as Mr. Armstrong requested, there is still a need to dig a ditch across the front of the property to bring the water from the properties to the east to the new drain.

4. The area around Somerville Road needs drainage. There has been infilling and an outlet needs to be established. Mr. MacLennan has two concerns: the ditch is not deep enough and he would like to see the location changed. The route proposed in the report follows the existing dug ditch. There are trees removed through this section. The location proposed by Mr. MacLennan does have some improved hydraulic characteristics, but the Johnston house is built close to the property line, and the O'Grady house is close to the property line, so there is very little to screen the two properties. Mr. MacLennan's proposed alignment is close to the driveway. The petition is to provide outlet for the Somerville road. No other petitioners asked for a deeper outlet. No field tile are involved in this area. The purpose of the work is to accommodate surface water only. The existing ditch at this location ponds water now and the profile will be smoothed by the proposed work but was not made deeper because Mr. McIntosh believes there is no authority in the petition to do so since Mr. MacLennan did not sign the petition.

5. He did not provide any property owners with an allowance for existing ditch (Section 31). All of the property owners have a ditch on their property and therefore would have to receive an allowance. Also there were no allowances made for damage to lands under Section 30.

6. There are lands in the Town of Kemptville that contribute water to the drain and could have been assessed, but were not. The reasons for this are that the amount of the assessment would be less than the cost of including these lands in the report and conducting the required meetings with these landowners.

7. There are several adjustments to the watershed boundary and the proposed assessments that have come to light since the Court of Revision and the Tribunal should order these changes be made in its decision.

In response to questions from the panel, Mr. McIntosh indicated that he has the data but did not show the top of the existing ground on the profile. He has not shown in the report a typical cross section of the drain. The section of drain that extends to the Henderson property boundary has not been designed but was included in the report because the development of this property is likely in the near future and he wanted to avoid the necessity of the township having to obtain another engineer's report and pass another by-law to provide drainage outlet for this property when development takes place.

The Tribunal examined the evidence and concluded:

1. If Mr. MacLennan expects the report to address the drainage problems on his property, he should consider adding his name to the petition to authorize the engineer to consider fully the drainage requirements of his lands.

2. The Tribunal has not been persuaded that the present channel downstream of the west end of the Van Berlo twin culverts at the outlet of the proposed work is indeed a sufficient and secure outlet for the water that will flow in the Somerville Drain.

3. Alternative alignments were proposed by qualified engineers. The Tribunal understands that these alignments had been discussed with Mr. McIntosh or the Council prior to the hearing, but insufficient information was presented to the Tribunal to allow the Tribunal to make a decision on the alternatives. The Tribunal is of the opinion that if some of these alternatives were considered by the Engineer and discussed with Council and the owners prior to preparing this latest engineering report, these alternatives should have been adequately addressed by the engineer in the report so that information on them would be available to the owners and the Tribunal. During more than four years from the date of the petition to the date of the latest report, the engineer prepared two preliminary reports and three final reports all at a very substantial cost in engineering fees, either because the engineer was uncertain of what he considered was required, or because of lack of direction from Council. In any event, it is the opinion of the Tribunal that a proper solution should be obtainable by the property owners for the amount of fees shown in the estimate of cost in the August 1996 report and that no further engineering fees should be charged to the property owners unless additional alternative solutions that were not brought to the Tribunal are identified or additional owners sign the petition. In either of these cases, additional engineering fees may be charged, but only the costs relating to dealing with these two circumstances.

In the opinion of the Tribunal, there are several adjustments that need to be made in the report.

The Tribunal decided to refer the report back to the engineer for modification.

ORDER OF THE TRIBUNAL

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

1. The engineer's report for the Somerville Drain is referred back to the engineer for consideration of the following items:

(a) Review of the sufficiency and security of the proposed outlet at the twin pipes on the Van Berlo property in light of the fact that 3A is concerned that their property will flood and there is no mechanism for the upstream owners on the drain to enforce maintenance of the agreement drain to the County Road or of the ditch along the County Road.

(b) Investigate the alternate routes suggested by Mr. Sawarna and Mr. Armstrong as well as the proposed route, to determine which route is the best long-term solution to the drainage needs of the whole area and the individual properties.

(c) Review of the watershed boundary and modification of the assessment appropriately. "Net-Assessments" are not to be shown in the revised report.

(d) There is no provision under the Act for carrying out work on a drain at some future time, upstream from the work that is presently being authorized, without a proper petition and report at that time. In view of this, the upstream limit of construction will determine the upstream end of the Somerville Drain and reference to a different "Limit of By-Law" is to be deleted from the report. If an upstream extension is required later, it will have to be dealt with on its own merits and under a new petition.

(e) Considerable engineering time was spent in calculating the appropriate size and specifications for the Highway 43 crossing however, it appears that the appropriate depth of the culvert may not have had as much consideration. While the MacLennan property is not a petitioner it is downstream of the Somerville road and it does currently flood. It is reasonable to expect that this property owner may wish to improve the drainage of this property in the near future; similarly the owner of the Henderson property may also decide to proceed to develop this property within the foreseeable future. In the opinion of the Tribunal, the engineer has a responsibility to ensure the public money spent on the highway crossing is done so wisely and to ensure that the culvert under Highway 43 is installed at a depth that will be sufficient for the upper watershed for the foreseeable future.

(f) Specifying the allowances provided and the Section under which each allowance is given.

(g) Inclusion of complete plans, profiles, typical cross sections and a construction specification to control the work.

2. Except as it relates to dealing with additional alternative solutions that were not brought to the Tribunal or additional owners signing the petition, no further engineering costs for the preparation of the revised report and attendance at meetings up to the meeting to finally pass the by-law may be charged to the drain.

3. None of the costs of this hearing may be charged to the drain.

4. It is ordered that there be no other order as to costs and all parties are responsible for their own costs.

The reasons for this decision are:

1. Alternative drainage proposals were presented to the Tribunal by qualified professional engineers, but insufficient information was presented to allow the Tribunal to decide which of the alternatives is the most appropriate.

2. There are changes that must be made to the report so that it will conform with the requirements of the Act, and to modify the assessment as determined by the engineer and this should not have to be done at the expense of the owners.