David & Margaret Vance et al. v. Township of Blandford-Blenheim, 1998 ONAFRAAT 18

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

Easton Drain Township of Blandford-Blenheim

Easton Drain (RE) 1998 ONAFRAAT 18

Drainage Act

April 14, 1998

DATE OF DECISION:

April 24, 1998

1998-18

1998 ONAFRAAT 18

Easton Drain

Township of Blandford-Blenheim

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

An appeal to the Ontario Drainage Tribunal by David & Margaret Vance, Bauke Wieringa, Thames Bend Farms and Medallion Holsteins under Section 54 of the Drainage Act from the decision of the Court of Revision on the Easton Drain in the Township of Blandford-Blenheim.

Before:

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

Appearances:

Margaret Vance, appellant, appearing in person.

Bob Wieringa, appellant, appearing in person.

Rosemary Stein, advocate for the appellant, Thames Bend Farms Ltd.

Jay Carter, advocate for the appellant, Medallion Holsteins Ltd.

Doug Vollmershausen, assessed landowner, appearing for 1060008 Ontario Ltd.

John Kuntze, P. Eng., appearing for the respondent, the Township of Blandford-Blenheim.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Blandford-Blenheim at Drumbo, Ontario on April 14, 1998. David & Margaret Vance, Bauke Wieringa, Thames Bend Farms Ltd. and Medallion Holsteins Ltd. 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 Easton Drain in the Township of Blandford-Blenheim (the Township).

Mr. Keith Reibling, Clerk-Administrator 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.

R.S.O. 1990, chap. D17, s. 54.

The Background

The Easton Drain was originally constructed in accordance with a report of F.J. Ure in 1912. The 1912 report provided for a tile drain extending from an outlet in the Trout Creek Drain in the N½ of Lot 6, Concession 8, upstream to the northwest part of the N½ of Lot 9, Concession 9. The drain varied from 350 mm (14") diameter at the outlet to an upstream size of 100 mm (4"). The 350 mm diameter tile was constructed across the Skillings property, the 300 mm (12") diameter tile was constructed across the balance of Skillings and Sebok and the east part of the 1060008 Ontario Ltd. properties. A 250 mm diameter tile was constructed across the west part of the 1060008 Ontario Ltd., Medallion Holsteins Ltd., Wieringa, Thames Bend Farms Ltd. and part of the Vance property. On the balance of the Vance property, 175 mm (7") to 100 mm (4") diameter tiles were constructed.

In a report by H. M. Gibson dated March 18, 1968, a 400 mm diameter tile was constructed beside the 1912 drain from an outlet near Trout Creek upstream to the east side of Blandford Road. The report suggested that there should be approximately 90 m of ditch from Trout Creek up to the tile outlet.

The current engineer’s report on the Easton Drain was prepared pursuant to Sections 76 and 78 of the Act. The Township had received a request from Doug Vollmershausen (1060008 Ontario Ltd.) in the E½ of Lot 7, Concession 9 (Blandford), for repairs and improvement to the Easton Drain.

The report provides for an improved drain for the E½ of Lot 7, Concession 9, commencing at the north side of Township Road 9 and continuing upstream to the west limits of the Vollmershausen property and minor repairs downstream of Township Road 9 and upstream of the Vollmershausen property.

The total estimated project cost is $71,250.

The total drainage area effected is 125.7 hectares (310 acres).

The total drain length is 889 m of new closed work.

The total fall over the length of the original Easton Drain from the 1912 Ure report is 67 feet 10 inches.

The Issue

The issue before the Tribunal is whether or not the proposed assessments for the Easton Drain, as calculated by the engineer in his November 17, 1997 report and modified by the Court of Revision, are appropriate.

The Evidence and the Findings

Mr. John Kuntze, the engineer who prepared the November 17, 1997 report on the Easton Drain, told the Tribunal that he divided the drain into sections and then separated the cost of the work for each section into benefit and outlet. Benefit he assigned to the adjacent lands and outlet he assessed to the upstream landowners on an acreage basis using standard methods. He detailed his calculations in Appendix A of the report. In each section, he divided the cost approximately 50% for benefit and 50% for outlet. Mr. Kuntze said that in his opinion, this project should be assessed on a 50:50 basis. He said this project is only replacing part of the existing Easton Drain. When the upper portion of the drain is replaced in the future, the landowners upstream from Mr. Vollmershausen will be paying the cost of that work. He said that the assessment for the current work may appear to be out of proportion to Mr. Vollmershausen because the upper watershed work is not being done at this time. Mr. Kuntze said that Mr. Vollmershausen was the only person who appealed to the Court of Revision. During that hearing, it became apparent that the Court of Revision felt sympathy for Mr. Vollmershausen and contemplated an adjustment to the assessment schedule. Mr. Kuntze said that he worked out an example of the change in assessment based on reducing the benefit assessment on Mr. Vollmershausen by $4,000 and putting that cost on the outlet assessment on the upper watershed. He said the $4,000 figure was just an example he used but the Court of Revision adopted it as its decision. In his summary, Mr. Kuntze told the Tribunal that he supports his original assessment of the project as being fair and reasonable for the work to be done.

Mrs. Margaret Vance, Rosemary Stein, on behalf Thames Bend Farms Ltd. and Jay Carter, on behalf of Medallion Holstein Ltd. told the Tribunal that:

They support the need for a drain and recognize the need for an outlet for their drainage.
Most of their lands in the watershed of the Easton Drain are tile drained and most of the land does not have surface ditches to direct water to the lower part of the watershed.
The engineer made a fair assessment of the cost in the report.
They support restoring the engineer’s assessments and reversing the decision of the Court of Revision.

Mr. Doug Vollmershausen told the Tribunal that he felt the upstream landowners should pay more of the cost of the project. He said they drain about 100 hectares through his property and he only has 14.7 hectares contributing to the drain. His land has a gravel bottom and so does not contribute that much to the water problem. He suggested the upstream owners should pay 75% of the cost of the work because the volume of water they contribute creates the need for the drain.

None of the assessed ratepayers suggested there was an error in the general methodology the engineer used to calculate his assessments. The evidence before the Tribunal is that Mr. Vollmershausen felt the division between benefit and outlet should be weighted more to outlet and the appellants felt the engineer had been fair in his original calculations of assessment. It appeared that the Court of Revision felt that an adjustment should be made to Mr. Vollmershausen’s assessment and adopted the $4,000 figure used by Mr. Kuntze as the adjustment. The Tribunal was not provided with reasons for the decision of the Court of Revision.

The Tribunal notes that there is considerable slope in this watershed. While Mr. Vollmershausen may feel that his property is subject to considerable flow from the upper watershed, the Act contemplates the owners of land being assessed based on the water artificially caused to flow from their property to the drain constructed under the Act. In the case of the Easton Drain, the natural topography dictates that a significant portion of runoff from the upper watershed would flow to the Vollmershausen lands even if the upper watershed was not tile drained. The Tribunal examined the assessment schedule and the calculations of the engineer and concluded that the assessments as calculated by the engineer are fair and equitable in this case.

The Tribunal, in establishing the hearing date, directed the Township to file documents with the Tribunal by April 7, 1998. The documents did not arrive at the Tribunal offices in time for normal delivery to the panel members and extraordinary delivery measures took place. Some of the members did not receive their documents until either the night before or the morning of the hearing and this is by no means satisfactory. The Tribunal has fixed the cost of the delay and special delivery arrangements at $200, to be paid by the Township. However, since the Tribunal has not previously assessed the type of cost to a municipality, it will waive payment in this instance. All municipalities are put on notice that, henceforth, if the appeal documents are not filed with the Tribunal office by the date if specifies, costs resulting from the delay will be fixed by the Tribunal and charged to the municipality.

ORDER OF THE TRIBUNAL

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

The decision of the Court of Revision on the Easton Drain, dated March 5, 1998, is revoked and the assessments as shown in the engineer’s report on the Easton Drain 1997, dated November 17, 1997, are restored.
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 reason for this decision is, in the opinion of the Tribunal, the assessments as calculated by the engineer are fair and equitable, given the nature and slope of this watershed.

Dated at Shelburne, Ontario this 24th day of April, 1998,