Foster Drain 1997 and Addendum No. 1 (RE), 1998 ONAFRAAT 30

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:

Foster Drain 1997 and Addendum No. 1 Township of Zorra

Foster Drain 1997 and Addendum No. 1 (RE) 1998 ONAFRAAT 30

STATUTE:

Drainage Act

HEARING:

July 30, 1998

DATE OF DECISION:

August 8, 1998

1998-30

NEUTRAL CITATION:

1998 ONAFRAAT 30

Foster Drain 1997 and Addendum No. 1 Township of Zorra

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 Joseph Stephenson under Section 48(1,b) of the Drainage Act and under Section 54 of the Act by Joseph Stephenson and Jim and Mary Stephenson from the engineer’s report with respect to the Foster Drain 1997 and Addendum No. 1 in the Township of Zorra.

Before:

John Taylor, Vice Chair; Vernon Spencer, Chair; Russell Piper, Member; Karen Ratcliffe, Member.

Appearances:

Joseph Stephenson, appellant

Jim Stephenson, appellant

Mary Stephenson, appellant.

John Kuntze, P. Eng., on behalf of the respondent, the Township of Zorra.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Corporation of the Township of Zorra, 274620 27th Line, Ingersoll, Ontario on July 30, 1998.

Joseph Stephenson appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48(1,b) of the Drainage Act (the Act) and Joseph Stephenson and Jim and Mary Stephenson appealed to the Tribunal under Section 54 of the Act with respect to the October 7, 1997 engineer’s report on the Foster Drain 1997 and Addendum No. 1, in the Township of Zorra.

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. 1980, c. 126, s. 54.

The Background

The Foster Drain was originally constructed as per an award of F. J. Ure, P. Eng., dated July 27, 1907. At that time the drain was constructed as an open ditch in a northwesterly direction across Lot 6, Concession 4, from an outlet at 27th Line. From Road 62, a tile drain was constructed upstream to Highway 19 and along the south side of the highway for a distance of 2,252 feet (686 metres) in a westerly direction to the line between Lots 4 and 5 in Concession 3. A branch drain was also constructed on the south side of the highway running east of the junction for a distance of 700 feet (213 metres). A branch on the north side of the highway was also constructed, equal in length to the two drains running along the south side of the highway.

The Foster Award Drain was reconstructed in a report submitted by W. G. Ure, O. L. S. dated May 5, 1930. From Road 62 downstream (Jim and Mary Stephenson’s property) , the report provided for the construction of a new tile drain using 16 inch to 18 inch (400 to 450mm) tile to the east side of 27th Line. An open ditch was constructed downstream of the 27th Line (Joseph Stephenson’s property). A new branch drain, known as the Stephenson Branch, was constructed across Lot 6, Concession 4, to the north side of Road 62 using 10 inch (250mm) tile.

The lower portion of the Foster Drain was further reconstructed by a report of Ure and Smith, dated September 28, 1954. The report provided for replacing the open ditch on Joseph Stephenson’s property with 16 inch (400mm) tile from the east side of 27th Line to an outlet in a watercourse downstream, a distance of 1,023 feet (312 metres).

The Foster Drain was last reconstructed pursuant to a report titled Foster Drain 1978 by K. Smart, P. Eng., dated February 20, 1978. This report provided for placing a new tile along the route of the Main Drain from the existing junction of the Stephenson Branch, upstream to the north side of Highway 19 and then along the north side of the highway westerly to the line between Lots 4 and 5 with tile sizes varying from 525mm (21") to 150mm (6"). Also three new branch drains were constructed. Branch A was a short branch commencing in the Main Drain, approximately 432 feet (132 metres) south of Road 62 and continued northerly for 300 feet (91 metres) as a shallow ditch. Branches B and C were new tile drains. Branch B commenced at the Main Drain on the north side of Highway 19 and continued easterly along the north side of the highway for 940 feet (287 metres) and consisted of 8 to 10 inch (200 to 250mm) tile. Branch C commenced at the Main Drain on the south side of the highway for 843 feet (257 metres) and consisted of 6 inch (150mm) tile.

The October 7, 1997 engineer’s report on the Foster Drain 1997 was prepared pursuant to Sections 4 and 8 of the Act. The Township received a petition for drainage improvements in the Foster Drain 1978 watershed in Lots 6 and 7, Concession 4 (North Oxford).

The objectives of the report are to provide:

• Improved outlet for the southeast part of Lot 6, Concession 3, by reconstructing the Stephenson Branch as Branch E in the northeast part of Lot 6, Concession 4.

• Improved outlet for the northeast part of Lot 5, Concession 4, by constructing a new Branch D drain along the south side of Road 62 in the northwest part of Lot 6, Concession 4.

• Improved outlet for the Foster Drain 1978 by constructing a new tile drain alongside the 1930 and 1954 Foster Drain to the tile outlet in the south part of the north half of Lot 7, Concession 4.

At the meeting to consider the October 7, 1997 report concerns were raised by the Township Council and Road Authority which caused the engineer to reexamine the proposals. As a result Addendum Report No. 1 was prepared. The effect of the Addendum Report is to replace the proposed Branch E with a new Branch A to be constructed parallel to the existing Main Drain continuing north to the north side of Road 62 and then easterly to the east side of the 27th Line. The existing Stephenson Branch is to be abandoned of status under the Act. The 1978 Branch A is to be abandoned of status under the Act.

The total length of proposed drain construction is 1,387 metres (50 metres of ditch clean out and 1,337 metres of closed drain). The total estimated cost of the work is $91,400 ($52,415 Main Drain; $30,180 Branch A and $8,805 Branch D). The total drainage area affected is 192.3 hectares (475 acres).

Because the decision of the Tribunal on these appeals could affect other ratepayers assessed or compensated in the report, at the beginning of the hearing the Tribunal issued an order that all assessed or compensated landowners in the engineer’s report for the Foster Drain 1997 and Addendum No.1 are parties to the hearing.

The Issue

The issues before the Tribunal are:

1. Are the assessment proposed in the engineer’s Addendum No.1 Report as confirmed by the Court of Revision appropriate?

2. Should the work be modified by deleting the outlet pipe on the existing Foster Drain on the property of Mr. Joseph Stephenson?

The Evidence and the Findings

John Kuntze, P. Eng., the engineer who prepared and presented the reports on the Foster Drain 1997, told the Tribunal that the owner of Part Lot 5, Concession 2, in the west side of the watershed requested a new drain along the township road 62 connecting to the existing Foster Drain. The land is tile drained into a private drain located in the road ditch and the owner wants a secured outlet into the Foster Drain. This part of the Foster Drain 1997 is located on the land of Jim and Mary. Stephenson, but there does not appear to be any dispute over this portion of the work.

He said that the portion of the Foster Drain in the Jim and Mary Stephenson property constructed in 1930, was 16 and 18 inch tile outletting into an open ditch on the Joseph Stephenson property. In 1954 the open ditch on the Joseph Stephenson property was enclosed in an 18 inch tile. The Foster Drain 1978 brought a 21 inch tile from the upper watershed and continued on a constant grade in the Jim and Mary Stephenson property until it intersected the 1930 tile. A catchbasin was constructed at that point on the Jim and Mary Stephenson property allowing the 21 inch tile to outlet into the 16 inch tile constructed in 1930. To improve the outlet of the Foster Drain 1978 it is necessary to construct a second tile the rest of the way across the property of Jim and Mary Stephenson and through to an outlet in the farm of Joseph Stephenson. The assessment of this portion of the work is the basis of the appeal of Joseph Stephenson and part of the appeal of Jim and Mary Stephenson.

He said that the Stephenson Branch was constructed to provide an outlet for the Pubben lands in the south part Lot 6, Concession 3. This is a 10 inch tile just east of the woodlot on the Jim and Mary Stephenson property. The Stephenson Branch is east of the low area on the Stephenson property. The Addendum No.1 proposal abandons the Stephenson Branch and replaces it with a new Branch A installed in the low spot in the Stephenson woodlot. This location results in shallower depth for the tile (approximately 1 meter as opposed to 2.5) and less cost to cross the Stephenson land than replacing the Stephenson Branch. Once the branch crosses the Stephenson land and Road 62, it turns east and extends to the east side of the intersection of Road 62 and 27th Line. The assessment of this branch is the rest of the appeal of Jim and Mary Stephenson.

Mr. Kuntze explained that Joseph Stephenson’s outlet assessment is $200. The $9,600 benefit assessment was divided into two categories:

$9,000 for -

• Improved subsurface and surface drainage along the route of new drain

• Increased capacity of the system and the ability of new system to accommodate water from the upper watershed

He assessed benefit at $30 per meter for the length of the drain on the property. He increased this by $600 as a special benefit for crossing the lane on the Stephenson property. At this location, the cut is 3.5 meters while the normal cut is 1.5 meters, so the extra cost he charged to the landowner. The total benefit assessment to the property of Joseph Stephenson is $9,600. The cost of the work on the Stephenson property is estimated at $24,790 so Joseph Stephenson is assessed 39% of this cost as benefit. Mr. Kuntze argued that Joseph Stephenson was assessed 47% of the cost of enclosing the Foster Drain in 1954 and his percentage of the current work is less.

Mr. Kuntze said he used the same approach for the work on the main drain on the Jim and Mary Stephenson property. For Branch A, the property of Jim and Mary Stephenson, he assessed $3,000 benefit for improved direct outlet. He said the new drain was located in the low land and at a lower elevation than the existing Stephenson Branch and therefore would improve the drainage of the lands, including the drainage of the woodlot. He said he recognized that the Stephenson land was woodlot while the Pubben land was cultivated, when he made the assessments. The estimated cost of the work on the Stephenson property for Branch A is $12,275 and this property is assessed $3,000, or 25% of the cost of the work as benefit.

Joseph Stephenson told the Tribunal that, according to the report, there are 192.3 hectares affected and he has 3.5 hectares or 2% of the land involved. Based on the area, his assessment is too high and the other assessed lands are assessed too low. He pointed out that he had paid in 1954 to have the open ditch on his land enclosed in a tile, as he was going to eliminate the need for two small fields and improve the efficiency of his farm. He does not see any benefit from the present work. His land does not flood or overflow now and, in his opinion, the existing tile will carry all the water that is brought to his farm from the upstream watershed. He asked that his assessment be lowered. He emphasized that he was not in opposition to the project, or paying his fair share of the work, but he feels he is assessed too much in the current proposal.

Joseph Stephenson told the Tribunal that his only concern under Section 48 was that the report calls for 18 feet of the old drain to be removed and replaced with a corrugated metal outlet pipe with rodent grate. He said that, unless this is required by law, this work should be eliminated as an unnecessary expense. He said the current tiles are stable and not eroding.

Jim Stephenson told the Tribunal that he and his wife Mary operate a 100 acre dairy farm. They have no problem with the tile being installed to provide outlet for the upstream lands. They are all neighbors and there is a problem to fix, but he is assessed too much of the cost of the work. He said he has had no problems with the existing Foster Drain and if there is a problem they should experience it first since they are at the lower end.

He said that on Branch A, Mr. Pubben has several deep depressions but these holes do not drain across his land. On rare occasions these depressions would fill with water and eventually flow over his land. When the township referred the report back to the engineer to consider bringing an outlet to the Road 62 and 27th Line intersection to relieve problems at the intersection, he suggested the engineer look at relocating the Stephenson Branch into the woodlot to reduce the cost of the project. He said he values his woodlot and has no intention of clearing it and cropping the land. This suggestion reduced the cost of the work on his land by about $5000, yet he is assessed the same as he was in the original proposal. He said that the drain will provide a better outlet for Mr. Pubben but will not benefit his farmland at all.

Martin Pubben told the Tribunal that he supports the report as written. He said that, in his opinion, it was a mistake in 1978 not to take the drain to the outlet and this work is correcting that mistake. He said if the Stephensons looked at the assessment in the current report, combined with the 1978 report, it would be clear that the upstream lands paid a large share of the total project. He said that because the outlet through the Stephenson lands is too small the water backs up on his land and he has wet crops and siltation. He said the situation is getting worse.

Don Ling told the Tribunal that he agrees with the report as written. He also complained that his systematic tiles were not working as well as they did when first installed and he identified the restricted outlet through the Stephenson land as the likely cause of the problem.

In response, Mr. Kuntze told the Tribunal that, in his opinion, the reason that Jim and Mary Stephenson had not experienced a problem was that the 1930 outlet was only delivering to Joseph’s farm the water that it can carry. Any flow in excess of this is backing into the low land on the Pubben property and then drains out slowly as the 1930 tile drain permits. This problem of inadequate outlet to the upper watershed he is attempting to solve with the proposed work. He argued that the assessments as proposed are fair and the Tribunal should confirm the report.

John Kuntze pointed out that the Foster Drain report in 1954 had a headwall constructed at the outlet of the 18 inch tile on Joseph Stephenson’s land. This headwall is gone leaving the one foot long sections of tile exposed. The proposal to install an outlet pipe is in accordance with currently accepted good practices. He asked the Tribunal to confirm this construction. The Tribunal agrees with Mr. Kuntze in this aspect of the appeals.

The Tribunal examined the evidence and concluded that, in its opinion, the assessments as proposed are not fair and equitable to all of the landowners. The Tribunal notes that for Joseph Stephenson, the cost of the work on the property is estimated at $24,790 and of this $11,600 is assessed as benefit. In the opinion of the Tribunal, this division between benefit and outlet is weighted too high for benefit, considering the main reason for this work is to provide an improved outlet for the upper part of the watershed. Consequently, the Tribunal decided to reduce the benefit assessment against the lands of Joseph Stephenson.

The Tribunal examined the assessments as proposed for Branch A. It notes that the cost of the work on the land of Jim and Mary Stephenson was reduced by about $5,000 by abandoning the Stephenson Branch and replacing it with that portion of Branch A that runs through the woodlot. The proposed assessment against the Stephenson land remained the same despite this reduction in cost. The Tribunal recognizes Mr. Stephenson’s concern for his woodlot and the intangible values it brings to his family and the community. In the opinion of the Tribunal, the assessment to the Stephenson land should reflect somewhat the reduction in construction cost and provide more recognition to the fact that this land is woodlot and the Stephensons wish it to remain woodlot. In the opinion of the Tribunal, the road authority ought to have brought its concern about drainage of the Road 62 and 27th Line intersection to light earlier in the process and thus avoided the cost of the addendum report. In the opinion of the Tribunal, the road is under-assessed on Branch A.

ORDER OF THE TRIBUNAL

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

1. The benefit assessment against the lands of Joseph Stephenson, Roll No. 010-030-091, be reduced from the sum of $9,600 to the sum of $7,600 and the $2,000 removed be assessed as outlet pro rata according to the figures contained in Appendix A - calculation of assessment - dated April 17, 1998.

2. The benefit assessment against the lands of Jim and Mary Stephenson, Roll Number 010-030-087 for Branch A, be reduced from $3,000 to the sum of $2,000 and the benefit assessment against Road 62 be increased from the sum of $3,450 to the sum of $4,450.

3. The appeal of Joseph Stephenson under Section 48 is dismissed.

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.

The reasons for this decision is that, in the opinion of the Tribunal, the division of benefit and outlet was weighted too heavily in benefit.

Dated at Tilbury, Ontario this 8th day of August, 1998