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:
Garvey-Smith Drain Branches “B” and “C” Township of West Nissouri
Garvey-Smith Drain Branches “B” and “C” (RE) 1998 ONAFRAAT 22
STATUTE:
Drainage Act
HEARING:
June 16, 1998
June 23, 1998
1998-22
NEUTRAL CITATION:
1998 ONAFRAAT 22
Garvey-Smith Drain Branches “B” and “C” Township of West Nissouri
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 John Garvey under Section 54 of the Drainage Act from the decision of the Court of Revision on Branches “B” and “C” of the Garvey-Smith Drain in the Township of West Nissouri
Before:
Herb Todgham, Vice Chair; Andrew Wright, Vice-Chair, Russell Piper, Member.
Appearances:
Mr. John Garvey, appellant in person.
Mr. Mike DeVos, P. Eng., on behalf of the respondent, the Township of West Nissouri
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Township of West Nissouri (the Township) in Thorndale, Ontario on June 16th, 1998. Ms. Kenna McTeer, Acting Clerk of the Township, performed the duties of the Clerk of the Tribunal.
Mr. John Garvey appealed to the Ontario Drainage Tribunal under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on Branches “B” and “C” of the Garvey-Smith Drain in the Township of West Nissouri.
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.
At the beginning of the hearing the Tribunal issued an order that all assessed or compensated landowners in the engineers report on Branches "B" and "C" of the Garvey-Smith Drain dated September 30, 1997 having been served notice of this hearing are made parties to this hearing.
The Background
The report on the proposed Branches "B" and "C" of the Garvey-Smith Drain was prepared pursuant to Section 4 of the Drainage Act. The work was initiated by a petition signed by the owners whose lands contain over 60 percent of the area requiring drainage and a second petition signed by the Road Superintedent. The proposed drain serves parts of Lots 35 and 36, Concessions 3 and 4 in the Township of West Nissouri and part of Lot 27, South Boundary Concession in the Township of Blanshard.
The Garvey-Smith Drain was originally constructed pursuant to a report submitted by W. E. Kelly, P. Eng. dated February 20, 1979 and consists of a Main Drain and Branch "A".
The area requiring drainage for Branches "B" and "C" consists of the north-east part of Lot 35 and the east part of Lot 36, Concession 3, and the north and west part of Lot 35, Concession 4. This area is presently being served by private 200 mm (8") and 150 mm (6") main tiles constructed circa 1970. An existing 300 mm tile of unknown origin extends from the existing Garvey-Smith Main Drain, southerly across Highway No.7 to the south side of the right-of-way. The existing 200 mm (8") private main tile outlets in the manhole on the end of the 300 mm (12") tile and extends south-easterly across Lot 36, Concession 3 and across Fairview Road just south of the line between Lots 35 and 36, Concession 4, Township of West Nissouri.
The existing private 150 mm (6") main tile extends from a junction with the 200 mm (8") tile (60 meters west of Fairview Road), southerly into the south part of Lot 35, Concession 3, thence south-easterly across Fairview Road and into the W½ of Lot 35, Concession 4, Township of West Nissouri.
The engineer, in his report, states that he found that:
the existing 200 mm (8") and 150 mm (6") private main tiles through the east parts of the J. & C. Garvey (Roll No. 60-097) and the J. & L. Woodside (Roll No. 60-095) properties are in good working condition, but are considerably undersized by today's standards.
the invert of the existing 150 mm (6") private tile which provides outlet for the north-east corner of the J. & C. Garvey property (Roll No. 60-097) outlets into the existing manhole on the south side of Highway No.7, 80 mm (3") below the invert of the 300 mm (12") outgoing tile.
the existing 300 mm (12") tile and pipe under Highway No.7 are too shallow and undersized to provide a proper outlet for the proposed new drain.
To correct this situation the engineer recommended that:
A new closed drain, Branch "B", consisting of a new 350 mm (14") tile and 406 mm (16") smooth wall pipe, be constructed from the existing 400 mm (16") main tile of the Garvey-Smith Drain across Highway No.7 adjacent to the existing 300 mm (12") crossing, and that the existing tiles be disconnected from the existing south manhole and be connected into the new tile drain.
Branch "B" continue south-easterly with 350 mm (14") to 200 mm (8") tile, installed adjacent to the existing 200 mm (8") and 150 mm (6") private main tiles from the south side of Highway No. 7 to the east side of Fairview Road, and that the existing 200 mm (8") tile be incorporated as part of Branch "B" for future maintenance purposes.
A new closed drain, to be known as Branch "C", and consisting of 250 mm (10") tile be installed adjacent to the existing 200 mm (8") private main tile from its junction with Branch "B" easterly across Fairview Road, and that the existing 200 mm (8") tile be incorporated as part of Branch "C" for future maintenance purposes.
The capacity of the proposed new drain was designed to accommodate runoff of 23 mm per 24 hours from the watershed. This criteria coincides with the drainage coefficient of the existing 400 mm tile of the Garvey-Smith Drain.
The proposed work consists of approximately 750 lineal meters of 200 mm (8") to 400 mm (16") concrete field tile including related appurtenances and the incorporation of 447 lineal meters of 200 mm (8") tile. The total cost estimate of the proposed work is $ 41,300.00. The total watershed area contains approximately 41.2 hectares.
The Issue
The issue before the Tribunal is:
Are the assessments as proposed by the engineer and modified by the Court of Revision appropriate for the work proposed in the report?
The Evidence and the Findings
Mr. Mike DeVos, P. Eng., the engineer who prepared the report on Branches B and C of the Garvey-Smith Drain, explained to the Tribunal the background and his methodology of calculating the proposed assessments. He told the Tribunal that the Garvey-Smith drain is an existing 1979 drain consisting of a Main and Branch A. At present a private tile serves the area of the proposed Branch B and C. Mr. Garvey and Mr. Payton have systematically tiled their lands. In addition to tiling the lands in the watershed, Mr. Payton tiled 7.3 hectares from outside the watershed and brought the water into this watershed and discharged it into the existing 200 mm (8 inch) drain under Fairview Road.
Mr. DeVos told the Tribunal that he used a modified Todgham method of assessment. The outlet portion of the cost he distributed according to “equivalent acreage”. Equivalent acres he calculated using the actual acreage modified by a run off factor, location factor and a factor for parcels, with tile drainage water going to one watershed and the surface water running to a different watershed. Once the equivalent acreage was calculated he distributed the outlet assessment by dividing the total amount to be assessed as outlets by the total equivalent acres and then multiplying by the equivalent acreage of each parcel.
Mr. DeVos said the first calculation was the cost and size of tile needed to provide outlet without the additional 7.3 hectare brought into the watershed by Mr. Payton. He then calculated the cost and size of tile that he recommended to be installed to provide outlet for the watershed as he found it. The difference in cost of the two tiles he charged to Mr. Payton. He divided the A branch into four sections. The first section from Station 0 to Station 0+058 includes a road crossing. He charged the increased cost of the road crossing (boring and two catchbasins) to the road authority as special assessment under Section 26 of the Act. He deducted the special assessment against the road and the assessment against Mr. Payton for increasing the size of tile and the remainder he charged 45% as benefit against the abutting lands and 55% outlet. The second section (0+058 to 0+440) he deducted the increased tile size assessment charged to Mr. Payton and divided the remainder of the construction costs 50% benefit and 50% outlet. The third section (0+440 to 0+569) he divided 55% benefit and 45% outlet. The last section (0+569 to 0+660) he deducted the cost of the road crossing and then charged the balance 60% benefit and 40% outlet.
Mr. John Garvey told the Tribunal that he has lived in township for 34 years and has farmed his farm during that time as well as working on all the other land in the watershed. He said that the 6 inch drain into the Woodside property was installed in 1963. Additional outlet work was done in 1969. He tiled his land starting in the late 1970’s and finishing in 1980. Mr. Payton tiled his land in 1984. The tile was discharged into the existing private agreement drain. Mr. Garvey then explained to the Tribunal some difficulties he had draining other lands that abut Mr. Payton’s property, but outside of the watershed of this drain. He argued that these difficulties should be taken into account in the current project. He said he could not see any benefit to his lands from the current work and that the cost of the drain should be charged to Mr. Payton. He said that even after a heavy rain there is no water lying on his fields as the current tile takes it away in a matter of a few hours, certainly in less than a day. He said he should pay very little or none of the cost of this work.
Connie Miller told the Tribunal that she lives on the north side of Elginfield Road (Highway No.7) right across from where the proposed drain goes across the Garvey property. She said she has a good view of the affected fields and even though they can have the appearance of being flooded during a rain, the flooding does not last more than a day. She said that the whole front yard could be flooded on the property after a large rain, but once the rain stopped the water disappeared in a few hours, maybe six.
Mr. Payton said he sees this project as a benefit for all concerned. There is, in his opinion, an erosion problem on the Garvey land that can now be corrected with the installation of berms to slow the water down and force it into the larger tile that is being installed. The field tile on the Garvey land that will be intercepted by the new drain will be connected to it, thus providing additional outlet in the existing private agreement drain. He receives a better outlet for the tile on his lands. He pointed out that the slope of the land on the Garvey property near the road is such that the water will get away quickly, but near the property boundary with his lands the slope is not as steep and water does lay there long enough to cause crop damages. He argued that the assessments as modified by the Court of Revision should be modified since the acreage of Mr. Garvey was reduced during the consideration of the original Garvey-Smith report and should be restored. Mr. Payton objected to the cost of the hearing being charged to the project and urged the Tribunal to charge the cost of the hearing directly to Mr. Garvey.
Mr. Payton also brought up the factor used to calculate the equivalent acreage on the lands tile drained from outside the watershed. He argued that the engineer’s assessment that three quarters of the water would drain through the tile and only one quarter run off to the north out of the watershed was too high and ought to be reduced.
In his reply evidence Mr. DeVos listed the benefits to the Garvey property from the proposed work as better control of surface and subsurface water, reduced erosion, and a better outlet for both surface and subsurface water.
The Tribunal heard the evidence and concerns of Mr. Garvey that he was receiving substantial assessments for a project that was initiated to provide outlet for the Payton, Woodside and Township road properties. The topography is such that there is substantial surface water flow from the upper lands onto the Garvey property. Not only will the proposed drain provide outlet for the water being drained from these upper lands but will also do much to control the natural flow from the rather steep hillsides. Having been concerned about the assessments, the Tribunal considered in detail the engineer’s assessment calculations found in Exhibit 13. If the “special benefit for over-sizing” shown in Exhibit 13 were titled “outlet assessment”, then the division of the cost of the work between outlet and benefit falls within the normal range expected by the Tribunal. The Tribunal concurs with the division of the cost of the work for outlet using the equivalent acreage method. Minor adjustments could be made to the factors used in Branch C and for the proportion of the surface water that flows from the Payton lands into the adjacent watershed, but the resulting changes in the assessment schedule are so minor as to be not worth while making.
In the opinion of the Tribunal, this appeal arose primarily as a result of the animosity between Mr. Garvey and Mr. Payton. It was protracted by Mr. Payton for the same reason. The Tribunal gave serious consideration to an award of costs. However, they appear to both believe that they are right in their view of the issue. Mr. Garvey clearly felt he does not receive any benefit from the work and Mr. Payton believes that he has proposed a solution that will result in benefits to both himself and the Garvey property. Having considered all of these factors the Tribunal decided not to make an award of costs on this hearing.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The appeal of John Garvey from the decision of the Court of Revision on Branches “B” and “C” of the Garvey-Smith Drain is dismissed.
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 that, after reviewing the evidence and submissions the Tribunal is satisfied that the assessments on Branches “B” and “C” of the Garvey-Smith Drain as modified by the Court of Revision are appropriate.
Dated at London, Ontario this 23rd day of June, 1998