Lamb Drain (Re), 1998 ONAFRAAT 27

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

Lamb Drain Township of Malahide

Lamb Drain (RE) 1998 ONAFRAAT 27

Drainage Act

July 13, 1998

DATE OF DECISION:

July 16, 1998

1998-27

1998 ONAFRAAT 27

Lamb Drain Township of Malahide

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

An appeal to the Ontario Drainage Tribunal by Hallstead Farms Limited under Section 54 of the Drainage Act from the decision of the Court of Revision with respect to the Lamb Drain in the Township of Malahide

Before:

Andrew Wright, Vice-Chair; Vern Spencer, Chair; Warren Jenner, Member.

Appearances:

Gerald Newell, on behalf of the appellant, Hallstead Farms Ltd.

John Spriet P. Eng., on behalf of the respondent, the Township of Malahide.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Malahide (the Township) in Aylmer, Ontario on July 13, 1998. Hallstead Farms Limited (Hallstead) 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 with respect to the Lamb Drain in the Township.

Mr. Randy Millard, Clerk 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.

At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the engineer’s report on the Lamb Drain, dated March 23, 1998, having been served notice of this hearing, are made parties to this hearing.

The Background

The Lamb Drain is an existing drain located in the geographic Township of South Dorchester. As of January 1, 1998, that township amalgamated with other municipalities to become part of the Corporation of the Township of Malahide. The March 23, 1998 report, addressed to Malahide Township, was initiated by a request signed by the owner of part of Lots 8 and 9 Concession 12 (Lamb) and filed with the Township of South Dorchester. The report was prepared under Section 78 of the Act.

The Lamb Drain was originally constructed in two stages. The main drain, Branches 'A' and 'B', were constructed pursuant to a report of Fred A. Bell dated November 17, 1920. The main drain consisted of 5200 feet of 6" to 16" tile. Branch 'A' was 2100 feet of 10 to 12 inch tile and Branch 'B' was 350 feet of 8" tile. The Branch 'A' drain was later extended into Lot 8, Concession 11 pursuant to a report submitted by Wm. D. Colby dated March 5, 1957. It consisted of 4700 feet of 6 to 10 inch tile and a 1600 foot branch drain, both ending in the north half of Lot 8.

The owners present at the site meeting with respect to the project, held on September 15, 1997, indicated that all the tile of the 1920 report from the north side of Century Line (the road between Concession 11 and Concession 12) to the outlet needs to be replaced. The old tile is collapsing in places. The owner of the north half of Lot 8, Concession 12 (Lamb) has constructed earth berms along the drain to help stabilize the ground over the tile and prevent further erosion. The old drain passes through a reforested area in the north-east corner of W½ Lot 9 Con. 12, property Roll No. 10-238 (Hallstead). This owner requested that the new tile be installed east of the woods in the farmland thereby avoiding the need for clearing of the woods.

The Main Drain in the 1920 report commences near the north limit of the S½ Lot 9 Con. 11 (Zimmer) and flows in a southerly direction across Century Line cutting across the NE corner of W½ Lot 9 Con. 12 ( the wood land on Hallstead) flowing in a south east direction into E½ Lot 9 Con. 12 (Lamb) and continuing in a south east direction to just past the lot line between Lot 9 and Lot 8 Con. 12 where it turns south in Lot 8 (Lamb) to outlet into the Simpson Drain.

To avoid the Hallstead reforestation, the proposed work diverts the 1920 main tile along the north side of Century line to a new road crossing at the line between the W½ and the E½ of Lot 9 Con. 12, where it turns south in the E½ Lot 9 Con. 12 and flows south until it intercepts the existing 1920 tile and then flow parallel to the 1920 Main Drain. This is designated as Branch C until it reaches the point where the 1920 drain turns south in Lot 8 where it is designated as the Main Drain. Branch C is 698 meters long and is estimated to cost $24,000.00 and affects 57.9 hectares.

Branch D commences near the south end of the woodland in the W½ Lot 9 Con. 12 and flows in a north easterly direction to join Branch C in the E½ Lot 9 Con. 12. Branch D is 100 meters long and is estimated to cost $3,300.00 and affects 8 hectares.

The total proposed work consists of approximately 2907 lineal meters of 200 mm (8") to 750 mm (30") concrete field tile including related appurtenances, grassed waterway and erosion protection. The tiles are designated as Main Drain and Branches A through E. Hallstead is affected by the Main Drain and Branches C and D.

The total estimated cost of the work is $161,000. The affected watershed area is 191.2 hectares including 2.5 hectares of road allowance with the remainder being agricultural.

The Issue

The issue before the Tribunal is:

Are the assessments proposed in the March 23, 1998 engineer’s report as confirmed by the Court of Revision appropriate?

The Evidence and the Findings

Mr. Gerald Newell told the Tribunal that he is the spokesman for the appellant Hallstead. He said that the area currently wooded on the NE corner of the property was an open field 20 years ago. As a result of work done by the Township water began to run through this area resulting in erosion of the field. He said he finally reforested the area in an effort to control the problem. The remainder of the land in the Lamb drain watershed he has systematically tiled through the watershed boundary and connected into the Newell Drain ( a tile drain running through the E½ Lot 8 Con. 12) and which outlets into the Simpson Drain.

Mr. Newell told the Tribunal that the forest area is no longer in the lowest spot in the field. The sediments from erosion of the upper watershed has been caught in the bush and the land is now level with the field. He said that half of the water from the upper watershed now flows down through the Lamb property and half down flows through the woodland. Other than the location of the proposed Branch D, there is one spot where an relatively small amount of water goes through the fence from his land to the Lamb property.

Mr. Newell said he was told that the assessment against Hallstead on Branch C for benefit was for “benefit by cut off”. He said he did not understand that assessment. In his opinion the proposed drain is going in the lowest spot on the Lamb property where it now belongs. He no longer has anything to do with this drain and therefore he should not be charged for it. He has no intention of connecting his systematic tile drainage system into Branch C and therefore his assessment for Branch C should be reduced to reflect the fact that his tile system empties into the Newell Drain.

Mr. Newell said that both he and Ernest Lamb, the representative of F. Lamb the owner of the property, agree that the area where the proposed Branch D is located is highly eroded. He said they feel the area needs a grassed waterway there not a tile. He requested that Branch D be eliminated. He said that his water will run over top of the proposed tile and not use it so he should not be assessed for Branch D.

Mr. Ernest Lamb, told the Tribunal that he is the representative of the owner of the E½ Lot 9 Con. 12 and the W½ Lot 8 Con. 12 identified as F. Lamb. He said he recognizes that the work needs to be done but requested that the work be delayed one year to allow him to arrange finances to pay the assessment. He said he has no particular expertise in drainage and so does not wish to comment on the report but is concerned as to how the assessments were calculated.

Mr. Spriet told the Tribunal that he had examined the Newell Drain report before making a decision on the assessments for the Lamb Drain. He said the Newell Drain was built in 1958 and is designed for a ¼ inch drainage coefficient. By today’s standard it is undersized and the additional acreage from Hallstead reduces this capacity further. In view of:

the age of the Newell Drain,
the capacity of the Newell Drain, and
the lack of any record of Hallstead paying an assessment to the Newell Drain for the connection of the land from the Lamb Drain watershed,

Mr. Spriet said he decided that the assessment against Hallstead should not be reduced to account for the tile drainage outlet currently being directed to the Newell Drain. Mr. Spriet said that his experience was that once an outlet within the watershed is improved the owners connect tile to it rather than continue to outlet outside of the watershed. Mr. Spriet emphasized that he was not contesting that Mr. Newell believes he has permission from the Township to make the connection to the Newell Drain, nor is he contesting Mr. Newell’s statement that he currently has no intention of redirecting his tile from the Newell Drain to the Lamb Drain. However, he said, once a problem exists on the Newell Drain it is only a matter of installing about 50 feet of tile drain to the connection provided in the Lamb Drain and this land will drain once more into the Lamb Drain.

Mr. Spriet said that he assessed Hallstead for $1665.00 for benefit on Branch C. He pointed out that there are two low areas where the water currently flows, one through the Hallstead reforestation, where he believes the original Lamb drain is located, and the other through the Lamb property. He said that he had diverted the existing drain around the reforestation on the Hallstead property at the owners request. This increased the length of the drain by 64 meters and added a new road crossing. Mr. Spriet reasoned that the neighbours who now have the drain when they did not before should not bear all of the cost of the work since the drain was relocated to accommodate Hallstead. Therefore Hallstead is properly assessed a benefit for this work. The drain has been relocated and the existing drain in the woodlot has been abandoned.

Mr. Spriet said that Branch C is a 12”, 14” and 16” tile. Branch D is a 10” tile. He assessed the properties through which the tile runs benefit at the rate of 50% of the cost of the work. In the Lamb property the 16” tile is assessed at $17 per meter for benefit. Upstream of Branch D the 14” tile is assessed at $15 per meter. Where the drain turns and goes north the size changes to a 12” and it is assessed at $13 per meter. There is 120 meters of 12” tile avoided on Hallstead. This is replaced by the tile on the north side of Century Line and extra length on the Lamb property. Mr. Spriet assessed $1 per meter to the Lamb property as benefit and $12 per meter to the Hallstead property as a benefit for relocation or cut off. This totals $1430 to Hallstead. Mr. Spriet increased this sum to $1665.00 to account for part of the additional cost to the Zimmer and road properties for the relocation.

Mr. Spriet said that he increased the size of tile on Branch D from an 8” to a 10” as this caused minimal increase in cost for the increase in capacity. He argued that if Branch D were deleted then Hallstead would have no outlet for the water coming through the wood lot. He requested that the Tribunal confirm both the report and the assessments.

The Tribunal examined the evidence and drew the following conclusions.

Mr. Newell explained why he had missed some of the meetings and was at the hearing requesting the abandonment of Branch D. The Tribunal accepts that it is not always possible for all of the landowners to attend all of the meetings. However, in the opinion of the Tribunal, there is onus on the landowners to inform themselves of what transpired at the meetings and to provide information to the engineer if they have a particular concern with a project. Mr. Newell did attend the Council meeting to consider the report and did not suggest that Branch D be eliminated or replaced with a grassed waterway nor did he appeal to the Tribunal within the prescribed time limits to have the report modified. He only appealed his assessment. While the Tribunal attempts to be liberal in its consideration of appeals where landowners are not represented by counsel, in the circumstances the Tribunal decided it is without authority to consider Mr. Newell’s request to delete Branch D. In the opinion of the Tribunal it is inappropriate for an appellant to bring to the Tribunal a proposal to modify the report when the engineer and other parties have not had an opportunity to consider the request and do not have an opportunity to consider the implications to the project of the proposed modification.

While the Tribunal has sympathy for the situation Mr. Ernest Lamb finds himself in regarding payment for the drain, the Tribunal is of the opinion that the timing of the construction and assessment of drainage projects are in the hands of the municipal council. The Tribunal suggests that Mr. Lamb approach Council with his unique situation and see if he can negotiate a solution to what is, essentially, a timing problem for the billing of this project.

The Tribunal examined the assessments on Branch D and Branch C, the areas of appeal from Hallstead. The Tribunal agrees with Mr. Spriet that the Hallstead lands ought to be assessed for benefit for Branch C. This property bears the obligation of the 1920 report to have the Lamb drain run through it. The present report relieves the property of this obligation. In the opinion of the Tribunal the assessment proposed for benefit is fair.

The Tribunal notes that the tile drainage water from the Hallstead property uses a municipal drain for outlet and therefore ought to be assessed part of the cost of a municipal drain for this privilege. The land lies within the watershed of the Lamb Drain. It has not been assessed part of the cost of the Newell Drain. Considering the age and capacity of the Newell Drain, in the opinion of the Tribunal it is appropriate that these lands continue to be assessed for tile drainage outlet into the Lamb Drain.

ORDER OF THE TRIBUNAL

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

The appeal of Hallstead Farms Ltd. from the decision of the Court of Revision on the Lamb 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 the Tribunal was convinced by the evidence that the engineer had calculated the proposed assessments for the Lamb Drain using accepted principles and in a consistent manner.

Dated at London, Ontario this 16th day of July, 1998.