Peter Wang v. Township of Russell, 1998 ONAFRAAT 41

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

Pana Road Municipal Drain Township of Russell

Pana Road Municipal Drain (RE) 1998 ONAFRAAT 41

Drainage Act

September 29, 1998

DATE OF DECISION:

October 5, 1998

1998-41

1998 ONAFRAAT 41

Pana Road Municipal Drain Township of Russell

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

An appeal to the Ontario Drainage Tribunal by Mr. Peter Wang under Section 48 and Section 54 of the Drainage Act from the March 1998 engineer’s report on the Pana Road Municipal Drain in the Township of Russell.

Before:

Andrew Osyany, Vice-Chair; Stewart Hart, Member; Gertrude Levac. Member.

Appearances:

Denis Wang, on behalf of the appellant, Peter Wang

Andrew Robinson, P. Eng., on behalf of the respondent, the Township of Russell

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Russell located in Embrun, Ontario, on September 29, 1998. Mr. Peter Wang appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 and Section 54 of the Drainage Act (the Act) from the March 1998 engineer’s report on the Pana Road Municipal Drain in the Township of Russell (the Township).

Ginette Bertrand, Deputy Clerk of the Township, performed the duties of the Clerk of the Tribunal.

Section 48 of the Act is as follows:

(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;

(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.

(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:

(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.

The Background

The Engineer's Report for the Pana Road Municipal Drain provides for the construction of a drainage works by petition under Section 4 of the Act. It provides for improved surface drainage and outlet for tile drainage for the landowners within the drainage area that lies within Part of Lots 16, 17, 18, 19 and 20, Concession 1 in the Township of Russell and Part of Lots 14, 15, 16, 17 and 18, Concession 11 in the Township of Osgoode. The area requiring drainage is as follows:

Township of Russell

Township of Osgoode

Lot 19, Concession 1 Lot 18, Concession 1 The north part of Lot 17, Concession 1

The south east corner of Lot 15, Concession 11 Part of Lot 16, Concession 11 Lot 17, Concession 11 Part of north ½ of Lot 18, Concession 11

Mr. Peter Wang owns Lot 16 Concession 11 Township of Osgoode. This property has Pana Road to the north and Regional Road 41 (Boundary Road) to the east. There is a culvert under Regional Road 41 emptying into the south road ditch of Pana Road. From the culvert the water runs west along the road ditch for a short distance then across the Wang property in a south westerly direction continuing through the McIntyre-Behnke property, the Hall property and the Vedder property to outlet into the North Morrow Municipal Drain.

The existing channel in the drainage area was constructed approximately 80 years ago; apparently by the landowners. The Townships of Russell and Osgoode have no records indicating that this drain has any municipal status. In the summer of 1996 the downstream portion of the main drain in the Township of Osgoode was excavated from Lot 18, Concession II, to the property line between Lots 16 (Wang) and Lot 17 (McIntyre-Behnke). Two branches known as Branch #1 and Branch #2 in the Township of Osgoode, were also constructed in 1996. This work was done by agreement of the landowners. The construction alleviated surface drainage problems for the Regional Municipality of Ottawa Carlton (RMOC) Regional Road #41 (Boundary Road) and provided an outlet for tile drainage for some of the lands in the Township of Russell.

To provide outlet for properties in Russell the landowners upstream of the completed work presented a petition to the Township of Russell requesting the construction of drainage works under Section 4 of the Act. The owners that participated in the agreement also signed the petition to have the work they had completed included in the report and adopted as part of the drainage work under the Act.

The Main Drain is 1,928 meters long. Branch #1 is 581 meters. Branch #2 is 225.3 meters.

The Drainage area is approximately 245.89 hectares. The total estimated cost of the work is $89,571.92.

The Issue

There are two issues before the Tribunal:

I. Should the proposed drain be modified by relocating the channel away from the property of Mr. Wang, Lot 16 Concession 11, Osgoode?

I. Are the assessments as proposed by the engineer and confirmed by the Court of Revision appropriate?

The Evidence and the Findings

Andrew Robinson, P. Eng., told the Tribunal that he prepared the March 1998 report on the proposed Pana Road Drain. He confirmed that the petition was valid, and then outlined the work proposed in the report. He said that, in his opinion, 80.9% of the area involved is represented on the petition which was signed by 61.5% of the owners in the drainage basin. He said that the report proposed to do minor work on the ditch bottom and side slopes in the section of drain cleaned out in 1996. Starting at the downstream side of the Wang property, between 0.6 and 1.0 meters of materials is to be removed from the existing channel to provide surface drainage and tile outlet for the upstream lands. There are two Branch Drains. The majority of the work on these Branches was done in 1996 under an agreement amongst the landowners. The report proposes installation of appropriate rip rap, minor bank slope repair and seeding on the Branch Drains.

Mr. Robinson said he divided the assessment for this project as 60% for benefit and 40% for outlet liability. These terms he defined in the report so the owners would understand their obligations. The benefit assessment he assessed on a per hectare basis varying the rate so those near the upstream end that use the entire length of the drain pay a higher rate per hectare than those at the lower end. Mr. Robinson told the Tribunal that, in the case of Mr. Wang, his 20 hectares were assessed for benefit at the rate of $285.25 per hectare. Outlet for Mr. Wang was assessed at $132.25 per hectare on the same 20 hectares. Mr. Robinson said he used the same approach for all other property owners and verified this by calculating the assessment on several other properties.

Mr. Robinson said that he provided three types of allowances

Land and crop damage at the rate of $800 per hectare;
Land taken for the construction, based on a strip of land five meters wide, at a rate of $2,470 per hectare; and,
Allowances for drain already constructed based on the actual cost of the work in 1996.

He said he used these figures consistently throughout the project. In response to questions he said that he had allowed crop damage throughout the length of the channel whether or not the adjacent land was currently cropped. He said all of the lands had similar potential therefore he had not discounted any of the land for its current use.

Mr. Robinson said that he assessed benefit only to lands that directly abutted the channel. He said that, when reviewing the report in preparation for the hearing, he realized that the Wang property does not directly abut Branch 2 and therefore it should not be assessed for benefit. He recommended that the Tribunal revise the assessment schedule by deleting the Wang benefit assessment of $122.18 on Branch 2. He said this amount should be added to the benefit assessment of the other owners assessed for Branch 2 on a pro rata basis.

Denis Wang spoke on behalf of his father Peter Wang. He said that a ditch through the property is not a benefit. He said that they grow and market vegetables on about 12 hectares of the property and these vegetables need all of the moisture that is available. He said last year the shallow well used to irrigate the vegetables failed and he had to provide a new well that is 100 feet deep. He said that he had observed the drain after a large rain and there was very little water running in the drain downstream from his property through the McIntyre property. He said he was asking the Tribunal to explore other options for providing drainage and avoid the need to dig a ditch on his land.

In response to questions, Mr. Wang said that there was water standing in the ditch upstream of his land but water stands in all the local road ditches.

Mr. Wang told the Tribunal that he had been informed of the site meetings, the meeting to consider the report and the Court of Revision and had not attended any of the meetings. He said he did not think he should be placed in the position of defending his land from having a drain constructed on it.

Henry Staal, an assessed owner, told the Tribunal that he had not appealed his assessment but he felt he was assessed too much and the Wang property was under-assessed. He said that the land adjacent to the drain on the Wang property was covered in scrub bush and should not be paid an allowance for crop damage. He said that, in his opinion. Mr. Wang should be paying to have the scrub cleared. He requested that the assessment against the Wang land be increased and the assessment to the other owners be reduced on a pro rata share.

Emily Sheldrick, an assessed owner, told the Tribunal that she was unable to attend the Court of Revision but had filed a written appeal that had not been considered by the Court. Mrs. Sheldrick said they are hobby farmers who lease their land to others who take off a crop of hay. The land has been in hay for the last 20 years or so. She said that their assessment is $8,000 and they do not get a quarter of that in annual income from the land. She requested that her assessment be lowered and the reduction placed on other landowners.

Kevin Grace, Drainage Superintendent for the Township of Osgoode, told the Tribunal that, in 1995, landowners approached him expressing concerns about drainage in the area. He searched the records and found the present channel has no status. He recommended these owners talk to their neighbours to determine what should be done. He said the Regional Road authority said it would work on the road ditch when an outlet was provided. The owners attempted to proceed by way of mutual agreement. Mr. Grace said that he and Mr. Taillon, the Drainage Superintendent for the Township of Russell, surveyed the drain and prepared a cost estimate for the necessary work. This estimate was for excavation only, the owners would be required to level the spoil and clean up. No administration costs were included. The estimate was $6,700. This cost was divided amongst the owners whose land would benefit from the work. The cost of the work on the Wang property would have been just under $1000. The owners were advised that, if they paid the amounts assigned to them in advance of the work, the Township of Osgoode would administer the construction contract and pay the contractor. He said the design was basic. He took the bottom elevation of the existing road culverts and provided a uniform grade on the ditch bottom between the culverts. He said he assumed they would not be lowering road culverts under an agreement drain.

Mr. Grace said all the owners, except Mr. Wang, agreed to the proposal. When Mr. Wang refused the agreement he was advised that his neighbours could petition under the Act and a project could be built, probably at a higher cost. Most of the owners deposited the money with the Township to have the work done, and Mr. Grace believed that Mr. Wang had reconsidered so that the work could proceed. Mr. Wang, however, refused again. The neighbouring owners offered to absorb the cost of doing the work on the Wang property. Mr. Wang refused that offer, too. He did not want a drain across his property. After further discussion with the other owners, the work downstream of Mr. Wang’s property was completed in 1996, and a petition was signed in respect of the Pana Road Drain.

Mr. Grace told the Tribunal that he had investigated taking the water south along Regional Road 41 or west along Pana Road to avoid digging the ditch through the Wang property. He found that on both roads a height of land made these options unfeasible. He said that, in his opinion, the only viable option was to take the drain through the Wang property to outlet into the North Branch of the Morrison Municipal Drain.

The Tribunal examined the evidence and made the following conclusions.

In the experience of the Tribunal, engineers will normally assess for benefit based on the relationship of the cost of the project to the benefit the project is anticipated to provide to each particular property. Once the assessment for benefit has been decided, the remaining cost of the work is divided among all of the properties that use the drain as an outlet. Many engineers use the concept of equivalent acreage when making outlet assessments. Once the equivalent acreage is determined, then an adjustment is made to account for the length of the drain that water from each individual property will utilize and to account for the location of the property in the watershed. While each engineer has his own method of arriving at the division of the total cost between benefit and outlet, many assess 40% to 60% of the cost of work to the adjacent landowners as benefit. In certain circumstances this may be a higher percentage. In the experience of the Tribunal, the cost of a project is not assessed to the benefiting landowners on an acreage basis.

In this case the engineer stated that the primary purpose of the drain is to provide outlet for the upstream lands yet he assessed 60% of the cost as a benefit to the abutting owners. This benefit he assessed on an acreage basis. Had the engineer used the same rate for all the acreage, his assessment would be clearly not complying with existing case law, but the engineer used a sliding rate, which increases from the bottom of the drain to the top. While this is an unusual approach to assessments, when the Tribunal examined the result it concluded that the assessments were not so unreasonable that the cost of referring the report back for reconsideration of the assessment is warranted. By varying the acreage rate for both benefit and outlet according to location in the watershed the engineer has effectively assessed the majority of the cost of this work in a manner consistent with the Tribunal’s experience for calculating outlet assessments. The Tribunal notes that the engineer followed his pattern of assessment consistently throughout the watershed. The Tribunal concludes that the assessments are appropriate except for the minor adjustment in benefit assessment on Branch 2 requested by the engineer. The Tribunal could have referred the report back to the Engineer (at the Engineer’s own expense) to re-assess the cost of the work in accordance with prevailing engineering practice, however, this in the long run would have increased the costs to the owners. The Tribunal decided against doing that. The Tribunal does order, however, that because of the unorthodox method of preparation of the assessment schedule and the confusion that was caused, the Engineer absorb the costs of preparation for and attending at this hearing, except as specifically provided otherwise below.

The Tribunal is convinced by the evidence of Mr. Grace and Mr. Robinson that there is no practical alternative to constructing the drain through the Wang property. Therefore, the Tribunal decided to confirm the work as proposed in the March 1998 report.

The Tribunal considered the issue of the costs of this hearing. When a hearing is held the Township incurs the cost of serving the notices, providing the hearing room, and having its staff and consultants present to respond to the appeal. Someone must pay these costs. The administrative cost is paid by the Township from its general funds but the cost of consultants etc. are either charged to the project or, if so ordered by the Tribunal, is divided among the parties. These costs can amount to thousands of dollars and the Tribunal is obliged to decide whether it is appropriate for these costs to be charged to the project.

The Tribunal notes that Mr. Wang did not attend either site meeting, the meeting to consider the report or the Court of Revision. By refusing to participate in the agreement drain (which he was entirely justified in doing), Mr Wang effectively required his neighbours to proceed by way of petition. He did not participate in that process until this hearing nor did he inform himself of the procedures. Mr. Wang did not present any alternative solutions for the engineer to consider when the report was being prepared not did he bring any feasible alternatives to the Tribunal at the hearing. It appears to the Tribunal that Mr. Wang mistakenly believed that he could merely refuse to allow the construction of the drain and that would be that. Had Mr. Wang attended the meetings or informed himself he would know that this is a false expectation. In the opinion of the Tribunal, this hearing could have been avoided had Mr. Wang taken reasonable steps to understand the process. The Tribunal concludes that a fixed portion of the cost of the hearing ought to be charged to Mr. Wang and not to the project.

ORDER OF THE TRIBUNAL

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

The appeal of Peter Wang under Section 48 of the Drainage Act requesting that alternative solutions be examined is dismissed.
The appeal of Peter Wang under Section 54 of the Drainage Act requesting reduction in the assessment against his lands is dismissed.
The appeal of Emily Sheldrick against the assessment against her lands is dismissed.
Before giving third reading to the provisional By-law (By-law 39-98) the Clerk is to modify Schedule C (Assessment for Branch 2) of the March 1998 engineer’s report by deleting the benefit assessment of $122.18 charged to property roll number 000-055-21400 (P. Wang) and increasing the benefit assessment against all other lands charged for benefit for Branch 2 by $122.18 on a pro rated basis.
The cost of the engineer and his assistant for preparation for and attendance at the hearing to a sum not exceeding $2,000.00, shall be charged to Mr. P. Wang, the appellant. This sum to be paid to the Township of Osgoode within 45 days of receipt of this decision and is to be forwarded to the Township of Russell and credited to the account of the drain. If unpaid within the 45 day period, the Council of the Township of Osgoode is directed to add this sum to the taxes in arrears on property Roll Number 000-055-21400, part Lot 16, Concession 11, Township of Osgoode (P. Wang). This sum is not to be considered eligible for grants. Except for the $2,000.00 none of the additional costs (if any) of the engineer and his assistant for preparation for and attendance at the hearing shall form part of the costs of the drain.
It is ordered that there be no other 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:

The Tribunal was convinced by the evidence that there is no feasible alternative to the proposed work
While the engineer used an unusual method to calculate the assessments he was consistent in his application of the methodology and the final result is, in the opinion of the Tribunal, reasonable in the circumstances.
In the opinion of the Tribunal this hearing could have been avoided had Mr. Wang attended the meetings required to be held under the A t and informed himself of the processes of the Act.

Dated at Shelburne, Ontario this 5th day of October, 1998