Edward and Brenda Czerniawski v. Township of East Zorra-Tavistock, 1998 ONAFRAAT 25

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:

McLean Drain Township of East Zorra-Tavistock

McLean Drain (RE) 1998 ONAFRAAT 25

STATUTE:

Drainage Act

HEARING:

June 17, 1998

DATE OF DECISION:

July 2, 1998

1998-25

NEUTRAL CITATION:

1998 ONAFRAAT 25

McLean Drain Township of East Zorra-Tavistock

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

AND IN THE MATTER OF:

An appeal to the Ontario Drainage Tribunal by Edward and Brenda Czerniawski under Section 64 (quality of construction) of the Drainage Act concerning the McLean Drain 1996 and in the matter of an application by the Township of East Zorra-Tavistock under Section 51 of the Drainage Act requesting the by-law on the McLean Drain 1996 be amended to reflect the “as-built” conditions on the McLean Drain 1996.

Before:

Andrew Osyany, Vice-Chair; Herbert Todgham, Vice-Chair; James Rickard, Vice-Chair; Moira Connell, Member.

Appearances:

Edward and Brenda Czerniawski, appellants in person

Ken Smart, engineer, on behalf of the respondent, the township of East-Zorra Tavistock.

DECISION OF THE TRIBUNAL

This appeal was heard by the Ontario Drainage Tribunal (the Tribunal) on June 17, 1998 in the council chambers of the Township of East Zorra-Tavistock (the Township), Hickson, Ontario. Jeff Carswell, Clerk/Deputy-Treasurer of the Township, performed the duties of the Clerk of the Tribunal.

Two matters were before the Tribunal:

1. Edward and Brenda Czerniawski appealed to the Tribunal under Section 64 (quality of construction) of the Drainage Act (the Act) concerning the McLean Drain 1996, and

2. The Township of East Zorra-Tavistock made application under Section 51 of the Act requesting the by-law on the McLean Drain 1996 be amended to reflect the “as-built” conditions on the McLean Drain 1996.

Section 51 of the Act is as follows:

“(1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.

(2) The parties to an appeal or reference to the Tribunal under this Act shall be the person making the appeal or reference and such other persons as the Tribunal may specify.

R.S.O. 1980, c. 126, s. 51.”

Section 64 of the Act is as follows:

“Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1980, c. 126, s. 64.”

The Background

The watershed of the McLean Drain consists of two tile drains. The original drain was constructed in accordance with an award of F. Ure dated 1904. At that time, the drain is believed to have commenced in the west ditch of the road between Concessions 17 and 18 (18th Line) just north of the present culvert, to have run as an open channel for a short length and then to have been constructed as a 250 mm (10") tile in the west road ditch for a distance of 180m±. It was to have then run across the present Chesney farm (1010887 Ont. Ltd.) to the Vink line as a 175 mm to 200 mm tile.

In 1972, an Engineer's Report by H. Gibson, P. Eng., provided for the construction of a new tile drain generally following the route of the award drain. The tile commenced on the east side of the Concession Road, crossed the road and then ran across the east side of the field to the west of the tree line. The tile then ran up through the present Chesney farms to the Vink property and continued up and into the present Smith farm in the W ½, Lot 14, Concession 17. Two branch drains were constructed as well. Branch A is across part of Lot 13, Concession 17 and Branch B commenced in the Chesney farm in Lot 12, Concession 17, crossed the road and terminated in the Verouden farm. As well, the open channel downstream of the Concession Road was improved to the Thames River. The first 100 m of the channel downstream of the road were deepened and widened and then the remaining portion was to be brushed only.

A site meeting of landowners on the McLean Drain was completed on June 5, 1996. The majority of the work requested and discussed involved improving portions of the existing McLean Drain. The award drain had been incorporated as part of the drain by the 1972 by-law and it requires replacement. As well, improvements are required to control surface runoff and to avoid having to enlarge the tile significantly.

A petition signed by W. & C. Vink and 1010887 Ontario Ltd. for a new branch drain was submitted and Council authorized a new branch drain to be constructed with associated terracing.

Engineer’s Report

An Engineer’s Report, dated July 19, 1996, was prepared by Ken Smart, P.Eng., K. Smart Associates Limited, Kitchener. One of the main purposes of the July 1996 report was to implement storm water management in the McLean Drain watershed. This need for storm water management was evident from the severe surface erosion that was visible along the route of the McLean Drain tile and from the comments that the affected landowners and Township Drainage Superintendent made at the site meeting. The profile, as determined from the survey, indicated surface grades of up to 2% along the tile route.

Storm water management was provided for in the 1996 report by the recommendations that:

(a) a larger tile drain be constructed along part of the McLean Drain to provide more capacity;

(b) that a short length of new branch drain be built; and

(c) that six areas of terracing/surface regrading occur along the route of the McLean Drain with four of these six on the new tile and the other two on the existing unimproved tile portions. The terracing areas could retain portions of the run-off and allow it to enter the tile drains in a controlled fashion to reduce the amount of surface run-off and, thus, erosion.

The design goal of the 1996 report was to provide the most storm water management that could be reasonably provided and to allow this to work with a reasonably sized (25 mm drainage coefficient) enlargement of the tile in the hope that a more costly enlargement of the tile or more costly extent of terracing could be avoided.

At five of the six terracing areas, water retention was designed to be provided by the excavating of upstream soils and their reuse to create gentle downstream berms. Topsoils were to be separately stripped and replaced, slopes were designed to be in the range of 5% to 8% to allow cultivation over the excavated and bermed areas and berm heights were kept to 0.5m to 1.0m± to control flooding at retention periods to reasonable areas (0.5 acres± maximum). At the sixth area, surface grades were found to be much flatter and to build a similar berm as downstream would have been difficult. Accordingly, at this sixth area, (at the Vink/Czerniawski property boundary) excavation only was recommended so as to create a saucer-shaped retention area.

The five bermed terracing areas were designed to hold from 11,000 to 130,000 gallons of surface run-off each, while the excavated only area was estimated to be able to hold in excess of 66,000 gallons.

The recommendations of the report, on the properties at issue in this appeal are as follows:

“d) 1010877 Ontario Ltd. (Reid Chesney)

It is recommended that a new 350 mm, then 300 mm and then 250 mm diameter tile be

constructed to the east and then the north of the existing 1972 drain from the road crossing

upstream to the Vink property. It is recommended that all existing tile be relocated

including the old award drain. In the field areas, the old drain should be destroyed as part

of the work wherever possible. Where existing tile cross such are to be joined up or

carried by means of a header to the new tile. As a result of the petition, a new branch

drain using 200 mm concrete tile is to be constructed on the property. It will start at the

bend near the tree line in a new junction box and will run north to the Vink line.

It is also recommended that three earth berm terraces be constructed on the property. Two of these will be on the main drain. The earth portion of the terraces should be flat sloped and parabolic shaped so that equipment can work over them. Both terraces would be constructed with 600 to 850 mm of height and there would be a 200 mm diameter plastic hickenbottom constructed on the upstream side of each. A rock chute should be constructed at the upper terrace. Rock for the terrace is to be obtained from the rock pile along the Vink and Chesney (1010887 Ont. Ltd.) property line. The terrace will also be fully on the Chesney property. The existing catchbasin at the line will remain but it is to be lowered and a new birdcage grate is to be added to it.

The third terrace will be on the branch drain at the Vink line. It will be 500 mm in height and will have a stone spillway. A hickenbottom will be constructed on the upstream side.

e) W. & C. Vink (Part of Lots 12 & 13, Con. 17)

With respect to new tile drain work, the new 250 mm tile of the main drain will stop in the existing catchbasin at the 1010887 Ontario Ltd. property line. The new branch drain will extend 154 m into the Vink parcel north of the 1010887 Ontario Ltd. line.

There will be two terracing areas fully on the Vink farm and three others at the property lines of the Vink parcel. Three of these will be on the main drain and two will be on the branch drain. All will have new 200mm diameter hickenbottoms.

With respect to the main drain, the one at the south limits of the Vink parcel will be 850 mm in height and will have the catchbasin lowered. The one midway across the farm is presently called to be located at an existing catchbasin on the line between Lots 12 and 13. It will be 1 m in height. It may be relocated further downstream at the time of construction. The upper one will be at the Czerniawski line. It will be a graded saucer shaped depression rather than a bermed area. The depression will be 600 mm deep and the catchbasin will be lowered accordingly.

With respect to the branch drain one terrace will be at the 1010887 Ontario Ltd. line and will be as previously discussed. The other terrace will be at the top end of the new 200mm tile. It will be 700mm in height.

f) E. & B. Czerniawski (Part of Lot 13, Con. 17)

There will be a new saucer shaped retention area constructed at the Vink line. This has been discussed above.”

At the September 4, 1996 Township council meeting, by-law #1996-45 was passed to provide for the construction of the McLean Drain as per the Engineer’s Report. By-law #1997-75, prorating the costs of construction of the McLean Drain 1996, was passed at the December 3, 1997 council meeting.

Addendum No. 1

Alterations were implemented at the time of construction to four of the six terracing areas recommended by the report. Council is asking the Tribunal to authorize the Township to amend the by-law to incorporate Addendum Report No. 1, pursuant to Section 51 of the Act, to recognize these alterations.

At the time of construction, one of the more affected landowners, W. Vink, agreed to allow a significantly higher terrace to be built at his mid-farm location on the Main Drain (Station 1+359 on Drawing Nos. 1 and 2). The design terrace would have been 0.75 m above original grade and was estimated to provide 130,000 gallons of storage. The as-built terrace was constructed a further 0.45m higher and is now estimated to provide in excess of 350,000 gallons of storage.

Also, at the time of construction, Mr. Vink requested that the next upstream terracing area to be built (which was the one designed to have excavation only) be constructed differently on his farm. Specifically, Mr. Vink requested that the excavation be avoided on the Vink side of the line. It was also indicated that the excavated material from upstream side could be leveled on the Vink side to provide greater amounts of retention on the Czerniawski property. Due to the concerns of the upstream owner, Mr. Czerniawski, the final terracing here is such that only the originally intended retention on the upstream parcel occurs but as requested by Mr. Vink there is no retention on the downstream (Vink) side.

1010887 Ont. Ltd. (Chesney), requested that the two terracing areas along his fence with Vink be altered so that the crest of the berm would be kept close to the linefence in order that he would have to work on one slope only. Accordingly, terraces at Station 078, Branch C and Station 1+023, Main Drain were altered to provide changes in grading and to provide slightly more storage. The other two storage areas (Station 232, Branch C and Station 862, Main Drain) were built closely to the report requirements, but slightly more storage was provided.

Edward and Brenda Czerniawski filed an appeal concerning the construction of the drain as it was not constructed according to the Engineer’s Report.

By letter to the Tribunal dated March 24, 1998, the Township requested that the Tribunal approve Addendum Report No 1, pursuant to Section 51 of the Drainage Act, and authorize the Township to amend the by-law to incorporate the amendment.

A panel of the Tribunal considered the request and responded by letter dated April 8, 1998. The Tribunal directed the Township to discuss with the Czerniawskis’ the changes made to the original design, the reasons the changes were made and the advantages/disadvantages of the changes. The Tribunal also wanted to be assured that the Czerniawskis’ topsoil concerns were addressed. The Tribunal further stated that if the Czerniawskis’ concerns were satisfied and they withdrew their appeal and filed written consent with the Tribunal by April 30, 1998, the Tribunal would proceed to deal with the Township’s application in the usual manner.

The Czerniawskis’ concerns were not satisfied, thus a hearing was scheduled.

The Issue

Should the Tribunal approve the addendum to the Engineer’s Report and authorize the Township to amend the McLean Drain 1996 by-law to incorporate this addendum or should the Tribunal order reconstruction of the drain to the specifications in the report, at least insofar as the retention pond at the Czerniawski/Vink property line is concerned?

The Evidence and the Findings

Mr. Czerniawski said he and his wife are appealing the construction of terracing on the property line between himself and Mr. Vink. He said instead of a saucer that was to have been built straddling the Vink/Czerniawski property line, he has a half saucer on his property and Mr. Vink has a berm on his property and no pond. He is also concerned about the amount of topsoil he feels he lost. He said construction meetings were held with all land owners and an Engineer’s Report was filed that contained a plan that was agreed upon. Now it has been changed and it is affecting him as more water is sitting on his property than before. In his opinion, if the full saucer was built as agreed upon, it would have been more effective.

Mr. McCutcheon, drainage contractor, testified that after he completed construction on the first terrace on Mr. Vink’s property, some field tiles were exposed. He said he was concerned he would encounter the same problems elsewhere and thus he contacted the drainage superintendent, Mr. Jim Harmer, who called a site meeting. Mr. Chesney, Mr. Vink, Mr. Harmer and Mr. Smart attended that meeting to discuss changes they felt needed to be made to the Engineer’s Report before proceeding with the other terraces. Mr. McCutcheon said they built a half saucer on Mr. Czerniawski’s property, and the area that was altered on the Czerniawski property was about the same as on the original plan. No pond was excavated on the Vink side of the line. He said the earth material, that was left over after removing a rock pile on Mr. Czerniawski’s property, was used to build a berm along the Vink side of the property line, as well as the top soil from the saucer on the Czerniawski property. He said he also used some of the topsoil to do some grading on Mr. Czerniawski’s property to try to get a depression area to drain towards the catchbasin.

In response to a question of the Tribunal, Mr. McCutcheon said his office placed a call to the Czerniawski’s notifying them when construction would begin. He does not recall any notification being given to Mr. Czerniawski that changes were made to the original plan.

He said at the final inspection meeting it was brought to his attention that the hickenbottom had not been installed in the Czerniawski pond. He said it was an oversight but has now been installed.

Mr. Ken Smart told the Tribunal that he was appointed as the Engineer for this project under the Act. On June 6, 1996, he held an on-site meeting and a further meeting was held July 5, 1996. In the meantime a petition had been filed to construct Branch C. He was then appointed by council to incorporate Branch C into the project. He filed his report on July 19, 1996. On June 20, 1997 work on the drain commenced and the majority of work was done by July 8, 1997. Berm work did not start until October 10, 1997 when the crops had been removed. On October 15 he was called to a meeting about the berms. Final inspection was October 30 and on November 20, 1997 the project was certified completed. On December 23, 1997, the Township was advised that application should be made to the Tribunal under Section 51 to have the changes recognized. On January 8, 1998, council instructed him to proceed with the Section 51 application and on January 30, 1998 a Section 51 application was submitted.

Mr. Smart said the tile and ditchwork construction went as expected. Once the terracing work was started he was called out to the site by Mr. Harmer. Mr. Chesney and Mr. Vink also attended the meeting to address the concern of damaging field tile on the Chesney and Vink property if terraces were built as specified in the report. It was agreed to construct a berm on mid-location on the Vink property approximately 16 inches higher than what was required in the report. By creating a higher berm at that location more surface waters would be contained by that particular berm. He said he did not feel any changes were being made on the Czerniawski property, so no attempt was made to contact Mr. Czerniawski. Mr. Smart told the Tribunal that, in his opinion, it was an advantage to the drain to make the changes requested.

Mr. Smart said he had a final inspection meeting with the landowners. The Czerniawski’s informed him they were not satisfied due to the fact that no part of the saucer had been constructed on the Vink side and the hickenbottom inlet had not been installed. He said the water will overflow out of the constructed basin at about the same elevation as in the original report and by-law, so water will not pond into Mr. Czerniawski’s field any further than the original design.

He said Addendum Report No. 1, to his report, was submitted January 30, 1997 to recognize changes that were made and because an appeal had been filed. In his opinion, if anyone has suffered it is Mr. Vink because of the agreement to have the mid-farm terrace constructed higher. He said drainage should improve on the Czerniawski property as the area where waters used to pond has now been leveled.

In response to a question of the Tribunal, he said he did not charge for his time in preparing the Addendum Report. He admitted he should have done this prior to the Township completing the project and applying for grants. He said final costs to construct the drain were slightly lower than the estimate.

Mr. Harmer, Drainage Superintendent for the Township, said he arranged for the October 15 site meeting. He didn’t anticipate any changes on the Czerniawski property so did not invite Mr. Czerniawski to the meeting. The meeting was to discuss the berms on the Vink and Chesney properties. He said Mr. Vink participated in the discussion concerning changes made to the berm on the Czerniawski/Vink property line.

He said Mr. McCutcheon noticed some low spots on the Czerniawski property and, at his request, Mr. McCutcheon did some grading to allow that area to run back to the catchbasin rather than pond. The excess material from the rock pile was used to make the berm. Top soil from the saucer was used to top dress the berm. He said the saucer, as constructed, is approximately one foot deeper than the outlet notch and the berm is about 1 foot above the notch. The maximum height from ground elevation to top of berm in any direction would be 2 feet (from Czerniawski side). The depth of the top soil is approximately six inches at catchbasin and at 11 meters out from the berm the top soil is approximately 9 to 10 inches. He said normal depth of top soil in that area is six inches to one foot.

In response to a question of the Tribunal, Mr. Harmer said the decision to change the shape of the saucer was between Mr. Vink and Mr. McCutcheon as it meant better cropping practices for Mr. Vink. He said he was not part of the discussion. However, in his opinion, the changes were reasonable. He said if the Engineer was dissatisfied with the changes it was up to him to order them changed.

Mr. Vink said he has had over 400 acres systematically tile drained. In that area, there is about six to nine inches of topsoil. He said he was concerned when the first berm was built and some field tiles were uncovered. He said the mid-farm berm on his property was constructed 16 inches higher than required and now has a capacity of 350,000 gallons. He made the suggestion to make the change to the one-half saucer at the Czerniawski property line as it made it much easier for him to cultivate his land. In his opinion, this change would not mean more water would pond on the Czerniawski property, in fact, it could mean more overflow to his property.

In response to questions from the Tribunal as to who made the decision to change the edge of the berm, he said he doesn’t know for sure, but as a good drainage contractor Mr. McCutcheon likely saw it was better the way it was done. He said he did not contact Mr. Czerniawski to inform him of the change in construction. He said that from a working point of view what is constructed is better than what was proposed in the original report.

Mr. Chesney told the Tribunal that, in his opinion, the terraces should be an excellent benefit to the erosion problems. Mr. Vink agreeing to build the large berm and temporarily storing extra water is a further benefit to the drain. He said he attended the October 15, 1997 site meeting with Mr. Harmer, Mr. Smart and Mr. Vink and was in agreement with changes discussed.

The Tribunal summarised the evidence as follows. Shortly after the work began on the water retention features, it was discovered that the existing tiles would interfere with the construction as specified in the report. A meeting was called, attended by the Contractor, Drainage Superintendent, Engineer and two of the affected landowners, Vink and Chesney. Although no one had taken any objection to the report before, the landowners wanted the contours of the water terraces changed. It was also agreed to change the configuration somewhat and to increase the height of some of the terraces. The end result being that the water retention capacity of the whole drain would be greatly increased.

The Czerniawskis were not given notice of this mid-construction meeting as the saucer on their boundary was not expected to be affected. The report called for an excavated saucer, located one half on the Czerniawski property and the other half on the Vink property. However, before the meeting broke up, the party walked up to the Czerniawski/Vink location and discussed possible changes. The Vink property is tiled at that point and so it was decided that the bottom elevation of the excavated saucer would be raised. To make up for the lost capacity, a terrace was to be put in roughly following the perimeter location of the original proposed saucer on the Vink property. The Engineer was agreeable to this change so long as water retention capacity was not compromised and no water was trapped. The Czerniawskis were not told of this proposed change. In any event, Mr. Vink and the contractor did not carry through with the proposed changes. The half saucer on the Czerniawski property was excavated, but there was no half saucer excavated on the Vink property. Instead, almost all of the topsoil was spread out along the Vink/Czerniawski property line, on the Vink side. This resulted in a berm about one foot high extending for approximately 400 feet. The berm was graded back into the original surface on the Vink side over a strip about 18 feet wide. The Contractor and Mr. Vink had no permission from the Drainage Superintendent, the Engineer or the Czerniawskis for this change. The true situation was discovered only upon inspection.

The Czerniawskis wanted the work changed so that it conforms to the report. The engineer refused to order this. The Engineer considered that Mr. Vink took on a great amount of additional water storage further downstream which outweighed the loss of 19,000 gallons of storage capacity at this point. The storage capacity on the Czerniawski property has not changed from the original design, the outflow elevation is practically the same as called for in the report, and the cost of replacing the topsoil on the Czerniawski property would be expensive without any corresponding benefit.

The Tribunal first considered the technical aspects of the situation. The Tribunal accepts that overall the drain functions as well as the original design called for. The Tribunal accepts that at the Czerniawski/Vink boundary the water retention still works satisfactorily. There is no significant change in the volume of water to be stored on the Czerniawski property. Because there is less storage in the half saucer than there would have been in the whole saucer, in a run-off event the pond will overflow sooner and more often onto the downstream lands (Vink) but this will affect only Vink, who brought about the situation and not Czerniawski. Therefore, there is no need to order any changes to the work on the basis of technical considerations.

The Act sets out a complete code for involuntary, multi-party drainage schemes. There are important fairness safeguards built in. An independent Engineer is to design the scheme, exercising his best professional judgement, free of any favouritism. His report is subject to review - in different aspects - by independent outsiders, such as the Court of Revision, the Tribunal and the Drainage Referee. When an Engineer's Report is prepared and circulated, the basic assumption is that the burdens of the drain are spread around as fairly as possible. A good example of that is this very case where the water retention features are placed on the boundary lines whenever possible, so that both owners would be equally inconvenienced. The perception of this fairness is a factor in the acceptance of the report by the landowners, and the evaluation of the report by the Tribunal.

It is a fact, that in a number of instances changes are made to a drainage works departing from the original report. For the guidance of the parties, the Tribunal sets out what it considers to be appropriate procedures in making changes:

1. The Engineer must be involved in every change. No change is to be made without his express prior permission.

2. No change in construction can be made that would essentially change the purpose, capacity or functionality of the drain, as provided in the Report, without a prior Addendum Report, prepared by the Engineer and filed with the Township Council and referred to the Tribunal, with an application for its approval. The Tribunal then decides, under the authority of Section 51(1) of the Drainage Act, how the application is to be dealt with.

3. If the Engineer is to lift anyone's burden, the distribution and weight of the remaining burdens must still meet the initial fairness test of the report. As well, the remaining burden carriers must be afforded an opportunity to make representations to the Engineer before a decision is made.

4. Sometimes the need to change the work is not recognised until after the report is adopted and the project is underway. The Engineer must evaluate the relative costs associated with proceeding with the work or halting construction to seek a consensus on the drain or to seek the Tribunal’s permission in the case of major changes. The Engineer must consider all other relevant factors, too, such as the nature of any emergency and whether the changes are essentially irreversible.

5. Where the Engineer decides that the project cannot reasonably be delayed and allows it to proceed without following the process of an application to the Tribunal for its prior approval, he must realise that he will be accountable and may be held responsible for any adverse impact resulting from the changes. Upon completion of the work, the Engineer must prepare an Addendum Report. This is necessary to enable future maintenance of the drainage works “as-built”. The Addendum Report should also address any changes in allowances, assessments and other provisions that may be necessitated to reflect the "as-built" conditions. An application must be made to the Tribunal for approval of the Addendum Report in order that the work as altered may be confirmed. The Tribunal will determine how the application is to be dealt with.

The Tribunal finds that the action of Mr. Vink in suggesting changes in the work on his property at the Czerniawski/Vink property line is high-handed, totally in contravention of the spirit and proceedings of the Act, and cannot be condoned.

The Tribunal finds that the Engineer acted properly, up to the point where he was presented with the problem of the Vink/Czerniawski berm. At that point, the Engineer properly considered the overall

performance of the drain, the still satisfactory performance of water retention at the boundary location, and the contribution of Mr. Vink in taking on increased water retention capacity down-

stream. However, the Engineer failed to consider the essential unfairness to the Czerniawskis in that, at that location, the entire burden of water retention was cast on them and that they had no input when the decision was made.

The Engineer also failed to consider what other ameliorating measures could be taken. For instance, a short distance to the southwest there is a depressed area on the Czerniawski property. Upon noticing this, the contractor had done some grading to provide a swale from there to the water retention saucer. The Engineer could have ordered that the Czerniawski topsoil be removed from the Vink property and used to eliminate the depression on the Czerniawski property.

The Engineer also failed to deal with appropriate changes to the financial aspects of the original report. Under ss. 29 and 30 of the Act, the Czerniawskis were allowed $500 for the construction

of the saucer. The Vink property was allowed $2,100 in respect of the upper main drain work. We do not know how much of that amount was in respect of the Czerniawski-Vink saucer, but it is

highly unlikely that the whole $2,100 can be sustained when the saucer was not constructed on the Vink property. The result is, therefore, that Mr. and Mrs. Vink have received an allowance in

this respect that they are not entitled to. As well, if the berm remains, they may appropriately be assessed a benefit in that their lands are now rendered more productive with the water retention pond and the defined boundary of it both being located upstream of their property.

In fashioning the appropriate remedies, the Tribunal is taking into account the cost of implementing changes relative to the benefits that may be obtained from such changes. The Tribunal decided to do justice by way of monetary adjustments, rather than by ordering changes to the work or referring the Addendum Report back to the Engineer. The Engineer has not charged for the preparation of the Addendum Report. The Tribunal acknowledges this action and has taken it into account in its disposition of the matters.

ORDER OF THE TRIBUNAL

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

1. The appeal of Edward and Brenda Czerniawski against the quality of construction on the McLean Drain 1996, Township of East Zorra-Tavistock be dismissed.

2. The Township by-law no. 1996-45 be amended by adding Addendum No. 1 as a schedule to the by-law. Drawing number 2 of 3, Job 96037, dated July 19, 1996, is to be removed from the July 19, 1996 Engineer’s Report.

3. The Township send to each party to whom a copy of the by-law is required to be sent under Section 46 of the Act, a copy of the amended by-law no. 1996-45 (but not including the Engineer’s Report dated July 19, 1996) together with a copy of Addendum No. 1 (including the revised as-built drawing) and instructions to remove Drawing No. 2 of 3, Job 96037, dated July 19, 1996 from his/her copy of the July 19, 1996 Engineer’s Report.

4. Mr. & Mrs. William Vink pay the sum of $500 to the Township to cover costs incurred by Mr. & Mrs. Edward Czerniawski for this hearing. This $500 to be paid to the Township within 45 days of receipt of this decision. If unpaid within the 45 day period, council is directed to add $500 to the taxes in arrears for Property Roll No. 010-020-119, Part Lots 12 & 13, Con. 17, East Zorra-Tavistock (W. & C. Vink).

5. The Township pay Mr. & Mrs. Edward Czerniawski the sum of $500 to cover costs incurred to

attend this hearing. This $500 is not to form part of the cost of the work for the purposes of

calculating any provincial grants.

6. The Tribunal directs that no more than $1,000 of the Engineer's costs, incurred after the final

inspection certificate was signed, shall form part of the costs of the drainage works, pursuant to

Section 73 of the Act.

7. The Tribunal makes no other order as to costs.

The reasons for the Tribunal’s decision are:

The drain is working satisfactorily and the costs of making changes outweigh the benefits.

Mr. and Mrs. Czerniawski were entirely justified in bringing this appeal in that they were not treated fairly and in accordance with the spirit and procedures provided for in the Act.

The Engineer has failed to:

• recognise the injustice done to Mr. & Mrs. Czerniawski,

• recognise the benefits high-handedly appropriated by Mr. Vink, and to

• fashion a remedy for the situation.

Mr. Vink has gained physical benefits to his property from the change in the saucer beyond those that were anticipated when the assessment in the report was prepared and he has received an Allowance for Damages created by the half saucer on his property that was never constructed.

DATED at Chatham, Ontario THIS 2nd day of July, 1998.