Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Bradley Drainage Works Lot 246 Lane Culvert Replacement Township of Melancthon

Bradley Drainage Works Lot 246 Lane Culvert Replacement (RE) 1998 ONAFRAAT 40

STATUTE:

Drainage Act

HEARING:

September 23, 1998

DATE OF DECISION:

September 25, 1998

1998-40

NEUTRAL CITATION:

1998 ONAFRAAT 40

Bradley Drainage Works Lot 246 Lane Culvert Replacement Township of Melancthon

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 several ratepayers under Sections 54 (assessment) and 48 (work should be modified), of the Drainage Act from the proposed Bradley Drainage Works Lot 246 Lane Culvert Replacement in the Township of Melancthon.

Before:

Andrew Wright, Vice-Chair; Denis O’Connor, Member; Russell Piper, Member.

Appearances:

Gunther Schacht, appellant. Patricia Salisbury, appellant. Norm Trudgeon, appellant. Dorn Patton, appellant. Harry Rowley, appellant. Edward Einboden, appellant. Ray Hunking, appellant. Tibor Ribi, appellant. Ernie Hawton, appellant. William Francis, appellant. Frank Otello, appellant. Erna Kuehn, appellant. Tom Pridham, P. Eng., on behalf of the respondent, the Township of Melancthon. Don McNalty, P. Eng., on behalf of the respondent, the Township of Melancthon.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Melancthon (the Township) located on the east side of Highway 10 between Dundalk and Shelburne, Ontario on Wednesday September 23, 1998. Denise Holmes, Clerk Treasurer of the Township performed the duties of the Clerk of the Tribunal.

Several assessed ratepayers appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 (assessment) and Section 48 (work should be modified), of the Drainage Act (the Act) from the proposed Bradley Drainage Works Lot 246 Lane Culvert Replacement in the Township.

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, chap. D17, s. 54.

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.

The Background

The Bradley Drain is an existing drain constructed under by-law under a predecessor of the Act. John and Barb Bany, the owners of Lots 245 and 246, Con. 1 N.E requested the replacement of an existing lane culvert located on Lot 246. This culvert is on the lane which provides access from the farm buildings to Highway 10.

On April 4, 1998, a site meeting was held at the lane culvert crossing on Lot 246, Con. 1 N.E. All of the owners within the watershed area upstream of the crossing were invited to attend the site meeting.

The existing structure is marginally sufficient to accommodate flows from upstream lands. The culvert is poorly aligned with the existing drain and does not provide sufficient lane width for modern farm machinery. The culvert structure is somewhat deflected out of shape, particularly at the downstream end, and the present amount of cover over the pipe does not meet current design criteria. In the opinion of the structural engineer, Mr. Don McNalty, the present culvert does not meet design standards for structural strength..

The watershed area above the crossing is comprised roughly of 1,718 hectares (4,242 ac.). The soils are primarily loam and silt loam with a small portion of fine sandy loam. Muck soils comprise roughly 25 percent of the total watershed. This soil type is primarily located adjacent to the extensive upstream drainage network. At the present time work is being proposed on the Bradley-French Drainage Works and Branch F of the Bradley Drain which are upstream of this culvert.

The Issue

There are two issues before the Tribunal:

2. Are the assessments as proposed by the engineer as upheld by the Court of Revision appropriate?

3. Should the work be modified by eliminating the culvert and replacing it with a new lane from Highway 10 to the farm buildings avoiding the drain and eliminating the need for the lane crossing?

The Evidence and the Findings

Mr. Tom Pridham, P. Eng., outlined the report and his method of assessment. The extent of the work is the replacement of the lane crossing on Lot 246 (the Bany culvert) and a minor clean out of the channel downstream of the crossing. He said that he determined that the cost should be assessed as 50% benefit to the adjacent owner and 50% as outlet. The outlet he charged on an equivalent acreage basis using a rate of $14.60 per equivalent hectare. Agricultural lands were assigned a multiplying factor of one per hectare while gravel roads were assigned a multiplying factor of five and paved roads a factor of ten. The resulting outlet assessment was approximately $590.00 per 40.5 hectare (100 acre) property. The watershed boundary was investigated on the ground by staff of the engineer and it was found that the boundary is close to that shown in the report. Mr. Pridham said that an owner adjacent to the northern watershed boundary, Mr. Trudgeon, and the road crew staff, have confirmed that the flow in the lands near the Melancthon Osprey boundary flow into Osprey as shown in the report not into the Bradley Drainage Works.

Gunther Schacht, appellant, told the Tribunal that, in his opinion, the Bany culvert could be repaired at less cost than replacement. He said he was concerned that this project would set a precedent for other projects on other drains in the municipality. If others ask for the same treatment and he is assessed for those as well, he would go bankrupt paying the assessments.

Patricia Salisbury, appellant, told the Tribunal that the township should only undertake minimal repairs for the present need. She said that it is not fair to expect upstream landowners to pay to put a new culvert on a property that does not need it. Mrs. Salisbury said one reason given for replacing the culvert is to avoid the possibility of a truck collapsing the bridge and dumping its cargo into the drain causing an environmental problem downstream. She said, if this is true, then the downstream owners should also be paying as they are the ones benefiting from avoiding this possibility.

Norm Trudgeon, appellant, told the Tribunal that he agreed with Mrs. Salisbury and only the minimum amount of work to repair the existing culvert should be undertaken. As an alternative, he suggested relocating the farm entrance to the south to avoid the need for a crossing. He said he would support this option, even if the cost is higher, because it provides a permanent solution to the problem by eliminating the crossing altogether. He confirmed that, in his opinion, the watershed boundary shown on the engineer’s report, for the part of the watershed near his property, is accurate.

Tibor Ribi, appellant, told the Tribunal that he had difficulty understanding why the Bany culvert is more important than the crossing on the township road. It needs to be repaired as well and nothing is being done. He should not have to pay for the repair of the private lane crossing.

Ernie Hawton, appellant, told the Tribunal that the culvert needs to be repaired. He suggested that the existing culvert be patched-up or a new driveway installed to fix the problem permanently. He said he was concerned that the drains in the upper part of the watershed have not been cleaned or repaired for some time. When these drain are improved the flow may increase to the point that the Bany culvert would need to be enlarged and the upper watershed asked to pay again. He also felt that the culvert, as proposed, may not be installed at a depth sufficient to provide drainage to the upper watershed.

Dorn Patton, appellant, told the Tribunal that he supported the construction of a new lane to the south eliminating the need for the Bany culvert. He also said that there is more water coming into the watershed from the north than shown in the report. He said that beaver dams in Osprey Township prevent this water from flowing north as it should.

Edward Einboden, appellant, told the Tribunal that he feels that he is a victim of the whims of others and he should not be assessed. He said his property is two farms removed from the drain; it is in hay and can stand to have ponded water for some time; he will not receive any benefit from the proposed work. He suggested that only minimal repairs be done at this time and then the lane should be maintained by the property owner.

William Francis, appellant, told the Tribunal that the existing culvert can be repaired for less cost than replacement. He suggested bringing the lane out through the next lot to the south to keep the cost to a minimum. He pointed out that this lot was owned by the Bany family so using it for an entrance should not cause a problem. As an alternative, he suggested that the existing culvert be reinforced with I-beams and left in place. When asked for his preference between replacing the culvert and installing a new lane Mr. Francis said he preferred that the new lane be constructed.

Frank Otello, appellant, told the Tribunal he should not be assessed for this work. He said when there was a problem on his property someone sent a machine to clear the drain and he paid the cost. That is what should happen here as well.

Erna Kuehn, appellant, told the Tribunal that the drain needs to be cleaned but she does not agree a new culvert should be installed. She said the price is too high and something simpler should be done.

John Bany, assessed landowner, told the Tribunal that he is in favor of the project as designed. He said he is prepared to accept an assessment of 50% of the cost even though he thinks that is high. He said a relocated lane would cause him concern for several reasons. The length would cause extra cost and work for maintenance and snow removal; the location and treatment at the highway would tend to cause snow to accumulate in the lane; and, a relocated lane would divide the field into small angular units. He said he opposes relocating the lane.

Mr. Don McNalty, P. Eng., a structural engineering specialist told the Tribunal that he had reviewed the existing culvert on the Bany lane and decided that it is structurally deficient. He said the culvert has insufficient cover; the headwalls are failing making the side slope of the lane unstable; and the end plates of this multi-plate pipe have been cut off weakening both ends of the pipe. Only the center two plates are complete and functioning as they should. He said that, in his opinion, there is no acceptable method of repairing the existing pipe. It is 30 years old; the profile of the pipe is no longer manufactured; and replacement plates for the plates that have been cut off are not available. He said that the repair options offered by the appellants might satisfy the needs of a landowner who is prepared to accept the risks involved, however, as a registered engineer he must recommend a work of repair that would bring this pipe to an acceptable design standard and no such option exists.

Mr. Pridham told the Tribunal that he has investigated the option of relocating the lane to the south. In his opinion, the lane would have to reach the highway within the boundaries of Lot 246. There are farm buildings on this lot and another set of buildings on the lot that the Bany family owns to the south. It is possible to sever and sell the south lot so an entrance is needed to Lot 246. He said that the MTO does not oppose the relocation of the entrance at the expense of the landowner as long as all of their design criteria can be met. He had completed a very preliminary estimate of the cost of relocating the lane and arrived at a cost that exceeded the culvert replacement estimate by about $30,000. He emphasised that, even with this design, he was not sure that the MTO would approve.

Mr. Pridham said that, in his design for the Bany culvert, he had accounted for possible upstream channel improvements. The culvert, as proposed, will be adequate in both size and depth to accommodate the flows from the upper watershed. He told the Tribunal that he has walked the watershed and determined the watershed boundary to normal standards. He said that Mr. Trudgeon agrees that the watershed boundary line shown on the plan is accurate near the Melancthon-Osprey townline.

In response to Mr. Otello, Mr. Pridham told the Tribunal that maintenance work had been done on the Otello property and had been assessed over the watershed upstream of the work in compliance with the last by-law on the drain. Mr. Otello was only charged for his portion of the work just as he will only be charged for his portion of the current work.

The Tribunal appreciates that the appellants provided clear statements of what they were seeking in advance of the hearing. These statements focused the issues for the Tribunal and the township engineer.

In the opinion of the Tribunal, the questions of whether to repair the Bany culvert or replace it comes down to the issue of what standard should be applied. The Tribunal understands that a landowner may accept a lower level of service from a culvert than what is required by engineering standards. However, the Tribunal supports the position that, since drains under the Act are public structures appropriate engineering standards must apply. Therefore the Tribunal accepts the opinion of the engineer that the option of repairing the Bany culvert to an acceptable standard is not possible.

This leaves the Tribunal with the option of replacing the culvert or directing that a new lane be constructed. The Tribunal is convinced that the culvert should be replaced. The preliminary design of a new lane indicates that this option will be at least as expensive as replacing the culvert. Also, there may not be a design that could satisfy all of the requirements of MTO for access to Highway 10.

The Tribunal is satisfied from the evidence that the watershed boundary is, for practical purposes, located correctly. In the opinion of the Tribunal, the division of the cost 50% benefit and 50% outlet is in an acceptable range. The Tribunal found no fault with the method used by the engineer in calculating the outlet assessments proposed in the report.

The Tribunal considered the issue of the costs of the hearing. The appellants suggested alternatives to the proposed work. Mr. Pridham acknowledged that, upon receiving Mr. McNalty’s opinion on the current state of the culvert, he had proceeded with dispatch to prepare his report and did not follow his normal procedures for involving the ratepayers in information meetings etc. Mr. Pridham provided a sufficiently thorough review of the alternatives at the hearing. Having considered all of this, the Tribunal decided not to make an award of costs for this case.

ORDER OF THE TRIBUNAL

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

All appeals concerning the Bradley Drainage Works Lot 246 Lane Culvert Replacement under Section 48 of the Act are dismissed.

All appeals concerning the Bradley Drainage Works Lot 246 Lane Culvert Replacement under Section 54 of the Act are 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 reasons for this decision are that:

The Tribunal was convinced by the evidence that, while the appellants raised many options, the engineer had considered the available options and recommended the most viable of the options.

The Tribunal found no errors in the methodology used by the engineer in calculating the proposed assessments for the project.

Dated at London, Ontario this 25^th^ day of September, 1998.