Watson Drain (Re), 1998 ONAFRAAT 2

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:

Watson Drain Township of Gosfield North

Watson Drain (RE) 1998 ONAFRAAT 2

STATUTE:

Drainage Act

HEARING:

December 18, 1997

DATE OF DECISION:

January 6, 1998

1998-02

NEUTRAL CITATION:

1998 ONAFRAAT 2

Watson Drain Township of Gosfield North

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 Robert Watson under Sections 48 and 54 of the Drainage Act from the engineer’s report and the decision of the Court of Revision on the Watson Drain, Township of Gosfield North.

Before:

Vernon Spencer, Chair; Ed Mailloux, Vice Chair; John Taylor, Vice Chair

Appearances:

Ron Reaume, solicitor for the appellant, Mr. Watson

Terrence Sims Solicitor for the respondent, the Township of Gosfield North.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Gosfield North (the Township) in Cottam, Ontario on December 18, 1997. Mr Robert Watson appealed to the Ontario drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the engineer’s report and the decision of the Court of Revision on the Watson Drain, Township of Gosfield North. Mr. Watson claimed the benefits were not commensurate with the estimated cost of the proposed Watson drain, the proposed work should be modified and that he is assessed too high for the proposed work.

Mr. Brian Weaver, Clerk- Treasurer 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. 1990, chap. D.17, 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. 1990, chap. D17, s. 54.

The Background

In June of 1985 Mr. Watson had requested and received permission from Council to deepen and relocate a portion of the roadside ditch situated along the south side of the 7th concession road (this is the ditch subject to this drain requisition request). The work was to be approximately 1000 feet in length. Mr. Watson was granted approval by Council to do this work at his own cost and on the condition that future maintenance work would be at his own cost. Mr. Watson subsequently undertook to perform the ditching work by hiring a contractor and completed the work in 1986. In addition to deepening the existing roadside ditch (fronting the north side of the Woelk lands) Mr. Watson also filled in approximately 550 feet of roadside ditch fronting the north side of the Watson lands. This work was totally paid for by Mr. Watson. Council had not given permission to fill the road ditch fronting the Watson lands.

On December 1, 1986 Mr. Watson presented a petition to Council to establish the above noted roadside ditch as a drain under the Act. In addition, an existing private ditch situated along the easterly limit of lands owned by Mr. Watson was also requested to be made part of the Drain.

An engineer was appointed to respond to this petition and a report was prepared and filed with the Council but was not acted upon. On November 6th, 1995 Mr. Watson filed a Requisition for Drainage Works with the Township Clerk, in accordance with Section 3 of the Act. The requisition sought to establish a drain under the Act similar to the one petitioned in 1986.

On November 29, 1995 a site meeting was held for this project and on May 2, 1996 a preliminary report was filed with the Council. The requisition was not withdrawn so Council instructed the engineer to prepare a final report. There was considerable disagreement among the landowners as to how much land from each property drained into the roadside ditch. To establish the drainage area the engineer conducted a topographic survey of the two main properties affected (Woelk and Watson) and included this survey with the documentation for this project.

The proposed drain affects lot 24Concession 6 in the Township. The lands are bordered on the north by the 7th Concession road and on the east by County Road 31 (Mersea Townline). Mr. Watson owns the west half of lot 24 and Mr. Woelk owns the east half, less a residential lot that is own by Anita Chritchlow. The roadside ditch dug by Mr. Watson commences at his easterly property boundary and runs, on the road allowance, easterly across the front of the Woelk property to outlet into the East Townline Drain on the west side of County Road 31. Approximately 500 feet south of the road there are two tile running easterly across the Woelk property to outlet into the East Townline Road drain. These tiles provide outlet for the Watson property. The general slope on the land is to the north east so the Watson lands flow over the Woelk lands and into the East Townline Drain.

There is an open ditch about 900 feet long, on the Watson property parallel to the lot line that has been dug in such a fashion that the water flows to the north to the roadside ditch and then east in the roadside ditch to the East Townline Drain. This is a private drain, dug by Mr. Watson, to reduce the pressure on the tile drains mentioned above by providing an additional outlet for the Watson land. This ditch flows from the south to the north. The two tile drain outlets running to the east are connected to the ditch at a catchbasin. The catchbasin is constructed in such a fashion that the water from the south flows into the catchbasin and when the flow is such that the tiles cannot take all of the water the overflow goes north through the ditch to the roadside ditch. The proposed drain incorporates the roadside ditch as a drain under the Act and leaves the private ditch on the Watson property to continue in its current status.

After the preparation of the final report and before the Court of Revision, Mr. Watson placed a concrete dam in the private ditch at the catchbasin. The purpose of this dam was to restrict the flow of water from the south part of the property to the north in the open ditch. This reduces the area of the Watson land that flows to the roadside ditch until such time as the flow is greater than the capacity of the tiles and, once the available storage is full, the dam/catchbasin over tops and the water will flow to the north to the proposed Watson Drain.

The report provides for a minor clean out (40 cubic yards of material) of 1015 feet of open ditch at a total estimated cost of $7,040.00. In the report this cost is assessed $4900.00 benefit and $1,469.00 outlet for a total of $6,369.00 to the land of Robert Watson. $10.00 benefit and $259.00 outlet for a total of $269.00 to the lands of Robert Woelk. $10.00 benefit and $68.00 outlet for a total of $78.00 to the land of Anita Chritchlow. $10.00 benefit and $314.00 outlet for a total of $324.00 to the 7th Concession road. The Court of Revision altered the number of acres assessed for outlet on the Watson land and decreased the assessments to Mr. Watson and increased the assessment for Mr. Woelk. This change was made as a result of the dam in the private ditch.

The Issue

There are three issues before the Tribunal.

1. Are the benefits of the proposed work commensurate with the estimated cost of the work?

2. Should the proposed work be modified?

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

The Evidence and the Findings

This is an unusual situation in that the report has been filed under Section 3 of the Act. Under Section 3 the municipality has no options. The process is controlled by the person who filed the requisition, in this case, by Mr. Watson. The municipality must accept the requisition and appoint an engineer to prepare a preliminary report. Once the preliminary report has been filed and considered, unless the requisition is withdrawn, the municipality must appoint the engineer.

In response to a direct question from the panel, Mr. Watson said he still wants the drain constructed. Since he is in control of the project proceeding or not, and he is the only one who is complaining about the benefits vs. the cost of the project, and no evidence on the issue of benefit cost was presented to the Tribunal the appeal of Robert Watson under Section 48 (1) (a) of the Act is dismissed.

Mr. Watson provided no evidence on how the proposed work should be modified to meet his purposes. No other assessed ratepayer offered any proposals for changes in the proposed work. Therefore, the appeal of Robert Watson under Section 48(1) (b) of the Act is dismissed.

Several witnesses offered evidence on the flow patterns in the watershed and the acreage that drains to the East Townline Drain from the Watson and Woelk properties. Mr. Watson offered into evidence a survey that he had obtained from an Ontario Land Surveyor which purported to show that only 8 to 10 acres of his land flowed to the proposed Watson drain and that the rest of his land in the watershed to the East Townline Drain flowed through the two private tile drains crossing the Woelk property. Mr. Watson’s son, an engineer working with Ontario Hydro on construction projects, put the acreage at just under 9 acres. Mr. Epp, the tenant for the past 25 years on the Watson land, indicated acreage between 10 and 15. He pointed out the flat ditches that he installs each year to provide for surface water runoff and where the water runs from these ditches into the private drain on the Watson land. Mr. Watson claims that only 6 acres of his land outlets through the proposed Watson Drain while 10 acres of the Woelk property uses the Watson Drain. He requested the Tribunal divide the cost 50% to Watson and 50% to Woelk.

Mr. Woelk told the Tribunal that his drainage was adequate until Mr. Watson installed the dam in the private drain. After this work he complains that the water backs up and floods his lands.

To the Tribunal the best evidence in the issue came from Mr. Watson. In response to direct questions Mr. Watson agreed that his land is properly assessed to the Mills Drain to the west (11.47 acres) and the Marten Drain to the south (3.0 acres). He said the remainder of the property (32.93 acres) outlets to the East Townline Drain and his only dispute on this is how much of his property outlets through the proposed Watson Drain and how much outlets through the two private tile drains. These are the figures as shown in the engineer’s report.

It appears to the Tribunal that when the flows are low it is likely that the south portion of the Watson land can find outlet to the East Townline drain through the two private tiles while the north portion of the property drains directly into the private ditch then flows through the proposed Watson drain. But, this is true for only a portion of the time. It is also clear to the Tribunal that, at times of high flow, once the two private tile drains have reached their capacity, the water will over top the dam/catchbasin in the Watson private ditch and flow to the proposed Watson drain. The flat ditches constructed by Mr. Epp are located in such a fashion that once the field inlets reach capacity these flat ditches take water to the private ditch. In the opinion of the Tribunal the engineer was correct in assessing outlet assessment against 32.93 acres of the Watson land to the Watson Drain.

The Tribunal finds that, based on the acreage noted above, and the Todgham fairness test, that the final total assessment figures revised by the Court of Revision and shown in the revised schedules dated April 25, 1997 are fair and appropriate. That is, Mr. Watson is assessed 84% of the construction cost and 63.3% of the future maintenance costs. Therefore the Tribunal will order the figures in the acreage affected column changed from 13.76 acres (5.568 hectares) to 32.93 acres (11.326 hectares). All other figures in the revised schedule are confirmed.

The Tribunal carefully considered the request of the municipality for an order of costs in this hearing. It appears to the Tribunal that this is one of those unfortunate situations where, because of disagreement and work done in an attempt to reach agreement, the overhead cost of the project has got out of hand and is increasing. The cost of this hearing is just additional cost to resolve what should be a minor variation. This is a project involving a minor clean out of only 1015 feet of ditch. The engineer estimates 40 cubic yards of materials need to be moved. The Tribunal notes that Mr. Watson will be charged with 84% of the total cost of this work including the cost of appeals. Bearing this fact in mind, the Tribunal decided not to issue an order of costs.

ORDER OF THE TRIBUNAL

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

1. The appeal of Robert Watson under section 48(1) (a) is dismissed

2. The appeal of Robert Watson under Section 48(1)(b) is dismissed

3. The appeal of Robert Watson under Section 54 is dismissed and the assessments for both construction and maintenance of the Watson Drain as modified by the Court of Revision are confirmed. The Clerk of the Township of Gosfield North is to amend the schedule of assessment by deleting the figure 13.76 acres in the acres affected column and substituting therefore the figures 32.93 acres.

4. 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.

Dated at Chatsworth, Ontario this 6th day of January 1998.