Basilla Grubbe v. Township of Turnberry, 1998 ONAFRAAT 39

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: Jermyn Municipal Drain Township of Turnberry

Jermyn Municipal Drain (RE) 1998 ONAFRAAT 39

STATUTE: Drainage Act

HEARING: September 15, 1998

DATE OF DECISION: September 24, 1998

1998-39

NEUTRAL CITATION: 1998 ONAFRAAT 39

Jermyn Municipal Drain Township of Turnberry

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 Basilla Grubbe under Section 54 of the Drainage Act from the decision of the Court of Revision on the Jermyn Municipal Drain in the Township of Turnberry.

Before: Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Nick Doelman, Member; Gordon Hill, Member.

Appearances: Basilla Grubbe, appellant in person Lane Gardner, spokesperson for the appellant Andrew McBride, P. Eng., on behalf of the respondent, the Township of Turnberry.

DECISION OF THE TRIBUNAL

This appeal was heard in the Bluevale Community Hall, Bluevale, Ontario, Township of Turnberry (the Township) on Tuesday, September 15, 1998. Basilla Grubbe 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 on the Jermyn Municipal Drain (the Drain) in the Township. Mrs. Grubbe requested that all assessment for benefit and outlet be removed from her property and that no drain be installed.

Dorothy Kelly, Clerk of the Township, performed the duties of the Clerk of the Tribunal.

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, c. D17, s. 54.

At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the June 1998 engineer’s report on the Drain, Townships of Turnberry and Morris, having been served notice of this hearing are made parties to this hearing.

The Background

The Township of Turnberry is located at the north end of the County of Huron surrounding the Town of Wingham on three sides (east, west, and north) and including the Hamlet of Bluevale. It is bounded by County Road No. 86 on the south and County Road No. 12 on the east. The Drain is located approx. 2 km west of Bluevale in Concession 1 of Turnberry and Concession 1-N of Morris.

The area of the affected portion of this watershed is approximately 173 ha.

The original request for improvement to this Drain was made to the Township of Turnberry in late 1996 by J. A. Walker and Wm. de Vos. Shortly thereafter, Mrs. B. Grubbe, Mr. J. Armstrong (on behalf of his wife) and Mr. R. Huber indicated their desire for improvement investigations for the Main Drain, up to and including their properties. The Township commissioned a report under Section 78 of the Act. Andrew McBride, P. Eng., of Maitland Engineering Services Limited in Wingham, was appointed by the Township to prepare an engineer’s report.

A preliminary engineer’s report, dated April 18, 1997, was completed and filed with the Township. Then a Woodlands Assessment, dated June 19, 1997, and a Hydrogeological Assessment were also completed. A second preliminary engineer’s report, dated March 13, 1998, was then prepared and filed with the Township. A final engineeer’s report, dated June 1998, was adopted by the Township by provisional By-Law Number 26/1998 and a Court of Revision was held on August 4, 1998. Basilla Grubbe, Jim & Carol Armstrong and Jack & Laura Jenkins filed appeals concerning their assessments with the Court of Revision. No appeals were filed against the proposed work on this Drain.

The Issue

The issue for the Tribunal to decide is whether or not the assessments as proposed by the engineer and confirmed by the Court of Revision are appropriate and fair?

The Evidence and the Findings

Mr. McBride, P. Eng., presented evidence on behalf of the Township. He said the first preliminary report proposed reconstruction of both the East Branch and the Turnberry portion of the Main Drain as open drains. Review of that report by the Maitland Valley Conservation Authority (MVCA) and the Ministry of Natural Resources (MNR) resulted in both agencies requesting a hydrogeological assessment to determine the effect of the proposed improved drain on the identified wetland within this drainage area. This first preliminary report was considered and adopted at a Turnberry Township Council meeting on May 6, 1997. A concern regarding the effect of the proposal on the forested land was raised at this meeting and it was agreed that a professional forester’s report would be obtained to address this concern.

Mr. McBride said that as a result of the subsoil conditions found while undertaking the hydrogeological assessment, the open drain improvement concept had to be abandoned and the preparation of a second preliminary report became necessary. The second preliminary report was completed March 13, 1998 and referred to the conclusions and recommendations of the Hydrogeological and Woodlands Assessments, both indicating that a closed drain, with slightly greater depth than the existing Drain, could proceed without harm to the wetland or the woodland. The Drain installation cost increased substantially because a closed drain rather than the originally proposed open drain was required to deal with these poor soil conditions. The final report was considered at a Council Meeting on April 7, 1998 and adopted.

Mr. McBride told the Tribunal that the environmental concerns with respect to the wetland area and the wooded lands were addressed by the Hydrogeological and Woodlands Assessments which were completed for this project. Both the MVCA and the MNR reviewed these Assessments and both indicated that their concerns had been adequately addressed.

Mr. McBride said the total estimated assessments for this project are: $172,300.00. Section 24 of the Act allows assessments for special benefits to any lands affected by the drainage work. In this case, he assessed three properties with a special assessment to reflect the actual cost of specific works completed on these properties. The remainder of the costs were assessed in the normal manner using the “Todgham Method” of assessing a certain portion of the estimated cost of the work on each property as benefit under Section 22 of the Act, and assessing the balance of the cost on that property to the upstream lands as outlet in accordance with Section 23 of the Act, all on an equivalent area basis. He said that administrative costs for this project were substantial in the amount of $29,245.00. When he completed the assessments, he prorated these costs over the entire drain on an equivalent area basis. He said the total equivalent area in the watershed is 133 ha. The Grubbe property has an equivalent area of 5.7 ha. He said he calculated the Grubbe property assessment as follows: $1,260.00 administrative component, $3,435.00 benefit and $2,180.00 for outlet.

Mr. Gardner spoke on behalf of Mrs. Grubbe. He said the north 15 acres of the Grubbe property is full of thick thorns and wild apple trees. He said that Mrs. Grubbe will never clear this land for agricultural purposes. It is of no practical value and should not be assessed for benefit. In his opinion, only 4 or 5 acres of the Grubbe property will benefit from the drain and so feels Mrs. Grubbe’s assessment is too high. He said Mrs. Grubbe would like to have her property eliminated from the drainage works and be left as wild life environment.

Mr. Aart de Vos, an assessed landowner, suggested that a future landowner could clear that 15-acre area on the Grubbe property and make use of that land just as he has done on his property.

In response, Mr. Gardner suggested that this is a financial burden for Mrs. Grubbe and that she should not be called upon to pay for drainage for future generations.

Mrs. Laura Jenkins, assessed landowner, spoke on behalf of herself and her husband. She said that since their land is stony and gravely with plenty of tree roots, the drain pipe going through their property has no holes in it. Since none of their water goes into the Drain, the Jenkins feel they should not be assessed a benefit. In her opinion, their property does not receive a benefit from this Drain.

The Tribunal considered the responsibilities of landowners under the Act concerning benefit and outlet assessment. In the opinion of the Tribunal, both the Grubbe and Jenkins properties will receive a benefit from the Drain because it provides for positive control of water flow. The Grubbe property value may increase as there is potential for increased productive land. Even though 15 acres of the Grubbe property may not ever be cleared by Mrs. Grubbe, a new owner may choose to drain and develop this land because of the outlet available in the Drain.

The Tribunal does have sympathy for Mrs. Grubbe in that the proposed reconstruction of this Drain is a heavy financial burden for her. The Tribunal also appreciates Mrs. Grubbe’s wishes to keep some of her land as a habitat for wildlife. However, this is an existing legal drain that needs to be maintained to provide outlet for assessed parties.

The Tribunal reviewed the method the engineer used to arrive at the proposed assessment. In the opinion of the Tribunal, the engineer used proper methodology in accordance with accepted practices. In the Tribunal’s opinion, Mrs. Grubbe has been treated fairly in relation to other landowners in the watershed.

ORDER OF THE TRIBUNAL

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

1. The appeal of Basilla Grubbe concerning the assessments on the Jermyn Municipal Drain is dismissed.

2. 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 presented that the engineer had calculated the proposed assessments for the Jermyn Municipal Drain using accepted principles and in a reasonable and consistent manner for all assessed landowners.

Dated at Chatsworth, Ontario this 24th day of September, 1998.