Johnston-Dowson Drain (Re), 1998 ONAFRAAT 43

Agriculture, Food and Rural Affairs Appeal Tribunal

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:

Johnston-Dowson Drain Township of Stanley

Johnston-Dowson Drain (RE) 1998 ONAFRAAT 43

STATUTE:

Drainage Act

HEARING:

September 29, 1998

DATE OF DECISION:

October 9, 1998

1998-43

NEUTRAL CITATION:

1998 ONAFRAAT 43

Johnston-Dowson Drain Township of Stanley

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 John W. Dowson, Scott Consitt, Thomas Consitt and Barbara Consitt, Varna, Ontario, under Section 48 of the Drainage Act from the March 2, 1998 engineer’s report and by John W. Dowson and Scott Consitt, under Section 54 from the decision of the Court of Revision with respect to the Johnston-Dowson Drain, Township of Stanley.

Before:

Vernon Spencer, Chair; Andrew Wright, Vice-Chair; Doug Flook, Member.

Appearances:

John W. Dowson, appellant in person. Thomas Consitt, appellant in person. Scott Consitt, appellant in person. Bill Dowson, assessed landowner. Glen Hayter, assessed landowner. John Spriet, P. Eng., on behalf of the respondent, the Township of Stanley.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Stanley (the Township) at Varna, Ontario, on September 29, 1998.

John W. Dowson, Scott Consitt, Thomas Consitt and Barbara Consitt, appealed to the Ontario Drainage Tribunal (the Tribunal), under Section 48 of the Drainage Act (the Act) from the March 2, 1998 engineer’s report on the Johnston-Dowson Drain (the Drain). John W. Dowson and Scott Consitt appealed to the Tribunal under Section 54 of the Act from the decision of the Court of Revision.

Ansberth Willert, Clerk-Treasurer of the Township, performed the duties of the clerk of the Tribunal.

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. 1990, chap. 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, Township of Stanley, having been served notice of this hearing are made parties to this hearing.

The Background

The Johnston-Dowson Drain was originally constructed pursuant to a report of C. P. Corbett, P. Eng., dated October 6, 1958 and consisted of a main drain open ditch, 8600 feet in length, starting in Lot 15, Concession B.R.N. and proceeding west and south to the road allowance between Concessions 8 and 9. A tile portion consisted of 1420 feet of 12 in/ tile and 695 feet of 10 in. tile starting on the east side of Concession Road 8 and 9 and proceeding south-west across Lot 18 to the mid point of Lot 17, Concession 9.

The Drain was reconstructed under a report by C. P. Corbett, P. Eng., dated October 15, 1971 and consisted of 3700 feet of open ditch cleanout from Concession Road B.R.N.-B.R.S. to the lot line between Lots 19 and 20 in Concession 8. The open ditch across Lots 18 and 19 was replaced with 1000 feet of 18 in. tile and 1000 feet of 16 in. tile to the east side of Concession Road 8 and 9, where the existing tile from the 1958 Report was connected.

The owners of N½ Lot 17, Concession 9, Glen Hayter and Darlene Babych, requested an improved outlet for their property because they were experiencing ponding of water and needed an outlet for further systematic tiling, berming and other erosion control works. At its March 10, 1997 meeting, Township Council appointed John Spriet engineer. At council’s request, he prepared an engineer’s report, dated March 2, 1998, on the reconstruction and reassessment of the Drain serving parts of Lots 11 to 18, Concession B.R.S. and B.R.N. and Lots 17 to 21, Concession 8 to 10. That report was prepared under Section 78 of the Act.

A field investigation and survey revealed that the existing tile is not at the grades indicated on the 1971 engineer’s report while the 1971 report indicates a ½ in. design coefficient because of incorrect grades on the installed system, its performance is limited to a ¼ in. design coefficient, substantially below current accepted design standards.

The work proposed in the engineer’s report consists of approximately 1080 lineal meters of 350 mm (14 in.) and 450 mm (18 in.) concrete field tile including related appurtenances installed parallel to and interconnected to the existing Drain to supplement the existing capacity. The 1971 Drain is continued and maintained as a drain under the Act. The Drain as proposed in the engineer’s report will have a capacity of approximately ¾ in. in 24 hours.

The total estimated cost of the proposed work is $64,000.00 and the affected watershed area contains approximately 500 hectares.

The Issue

There were two issues before the Tribunal.

1. Are the benefits of the proposed work commensurate with the estimated cost of the work?

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

The Evidence and the Findings

John Spriet, P. Eng., told the Tribunal that he prepared the March 2, 1998 report on the Drain. He said the 1958 work installed tile drains to outlet into an open ditch in the Consitt properties. In 1971, a further report was obtained to eliminate the open ditch in the Consitt properties by putting in tile which outlet at the Taylor line. In 1971, Tom Consitt owned the two parcels of property that were affected. His son, Scott Consitt, now owns one of the parcels.

He said the gradient in this watershed is good for surface water flow, except for a portion of the Hayter/Babych property. He said where the existing 10 in. tile runs, about 10 acres, is a flat area. Since 1958 and 1971 some systematic and private tiling has been done.

The capacity of the existing and proposed upgraded drain was designed using the Drainage coefficient method contained in the Drainage Guide for Ontario. The drainage coefficient defines a depth of water that can be removed in a 24-hour period and is expressed in millimeters per 24 hours. The coefficient used for this report is 19 mm (¾ in.). Mr. Spriet said he reviewed the existing Schedules of Assessment for the Main Drain and Branch B open portions and found them to be out-of-date and unfair due to property splits and changes in the watershed and drainage conditions. Therefore, he said, he has recommended that new maintenance schedules for all portions of the Drain be included as part of his report for future maintenance purposes. He said he is not aware of any problem with the present tiles. Estimated cost of upgrading the Drain to 19 mm (3/4 in.) coefficient design is $64.000.00.

In response to questions of the Tribunal, John Spriet stated that he did not observe any crop damage or water laying on the Hayter/Babych property when he visited the property. However, he did observe low lying areas and service inlets and berms that had been installed.

John W. Dowson said he has lived in this community all of his life. He said he grows corn, soybeans, wheat and barley on his property. He said he is not having a water problem on his farm. He said his farm drains just fine and he has no wet spots where water lays. The existing Drain has never cost anything to maintain. He does not feel he should be responsible for the fact that the Drain was not installed properly in 1971. In response to questions of the Tribunal, he said that in the spring he has observed water laying on the Hayter/Babych property in an area that is ¼ to one acre in size. However, it does not delay spring planting. He said since Mr. Hayter put a berm at the bush he has not observed any water sitting on this land.

Tom Consitt told the Tribunal that in 1971 he owned Lot 19 and North 1/2 of Lot 18. Mr. Corbett was the engineer back in 1971 when the open ditch was closed in and tile was installed. He said the tile has worked satisfactorily. If he gets four or five inches of rain at once, water will lay in the field but it drains quickly and by the next day it will be gone. He said in 1971, when the upgrade was being completed, he telephoned the Drainage Commissioner as he thought it looked like it was being installed incorrectly. The Commissioner then called the Engineer who sent a representative to inspect the project. He said he does not feel he should be responsible for the incorrect way the tile was installed in 1971. He said he paid approximately $7,000.00 benefit less allowances in 1971.

Scott Consitt stated that he has no ponding on his property and, as far as he is concerned, the Drain is working to his satisfaction. In his opinion, the responsibility for ensuring the Drain was installed to specifications does not lie with him. He said the cost to upgrade this drain is too much for the benefit he will receive. Ratepayers on the Drain were assessed for an upgrade in 1971 and that Drain was not installed properly.

Bill Dowson said he has lived in this community all his life and has seen land change from wet to dry land through drainage. He said the present Drain is working satisfactorily. No maintenance has been done on this Drain since it was installed. He said there is a small pocket of land which holds water but with this soil type the water does not lie on the surface of the land very long. In his opinion, it is difficult to justify spending all this money for the small gains he anticipates. He said he has suffered minimal crop loss because of heavy rainfalls - about once in every five years. He said there is only about 1 to 1½ acres that has potential to flood.

In support of the project, Glen Hayter said this Drain was probably initiated by his grandfather back in 1958. He said the property was transferred to his father in 1959 and in 1995 it was transferred to himself and his sister. He said he also owns other property which he cash crops. He entered into evidence pictures taken of his property in the spring of 1996, November 1996 and April 1997 to demonstrate the ponding and erosion taking place on his property. He said he is experiencing declined yields because of the amount of ponding and erosion. In 1996, he replanted 15 acres of corn as there was a heavy rainfall that flooded out the first planting. He said the amount of water laying in his field precluded him from plowing that fall. He also entered into evidence soybean yield records taken from his farm in 1997. He said his custom operator installed a grain yield monitor on his combine and took the yields from ten different plots on this farm. Yields on the plots varied from 25 bu. per acre to 60 bu. per acre. Mr. Hayter said his lowest yields were in the parts of his field where ponding takes place. In his opinion, improving the Drain is cost beneficial as there should be an increase in crop yields as well as an increase in the value of the land to a prospective buyer. He said that in addition to the assessments on the Drain, he will also be incurring an additional $3,000.00 to $4,000.00 expense for header tile to get to the outlet. In his opinion, he is incurring additional cost and his assessment is much higher than farms on each side of him. He stated that the upgraded Drain will benefit every landowner on the watershed as they will be getting a 19 mm coefficient. He said he wants to be a good steward of the land and putting in the Drain is the only way to do that. He urged the Tribunal to accept the engineer’s report. He said it is not excessive in cost and is designed to meet today’s standards.

In response, John Dowson said he was able to plow in the fall of 1996. Mr. Hayter then admitted that he could have plowed that fall if he had waited until frost but didn’t have time at that point. Mr. Dowson also responded that he too has yield monitors on his harvester and the yield varies in different parts of his field. In his opinion, this has nothing to do with drainage.

Scott Consitt also responded that yields in all fields vary. In his opinion, nobody gets the exact same yield across a whole field.

Bill Dowson responded to evidence presented by Mr. Hayter stating that rains were big in 1995 and 1996 and the pictures Mr. Hayter presented were likely taken just after a rainfall. He said if he took pictures this summer, he would find no water laying in the fields. In his opinion, Mr. Hayter had trouble plowing in the fall of 1996 as he had planted narrow rows of corn and he had a bumper crop. In his opinion, the potential increase in crop yield does not justify the expenditure of upgrading the Drain.

In response to questions as to how he arrived at the assessments, Mr. Spriet stated that:

1. First of all he assessed the expenses to all ratepayers on the watershed using standard assessment methods.

2. Then he assessed the Township $4,000.00 ($1,000.00 towards tile drainage investigation, $3,000.00 additional engineering expenses) relating to the tile installed in 1971.

3. The $4,000.00 special assessment to the Township was shifted from the assessment that would otherwise have been assigned to Scott and Tom Consitt. This was done in an attempt to lighten the burden on two ratepayers who had already paid 80% of the cost of the 1971 Drain. $2,500.00 was shifted from John Dowson to the Hayter/Babych property. He said that because of “special design” features Mr. Hayter agreed to pay a higher assessment.

4. A new maintenance schedule is part of his report. The present maintenance schedule is not fair as it is based on the 1971 report that involved putting tile in the open portion on Lots 18 and 19, Con. 8 and assessed 60% of the costs to those lots. The new maintenance schedule now fairly distributes costs over all properties served by the Drain.

The Tribunal heard evidence from four landowners that they have adequate drainage for their own purposes and felt the cost to upgrade the Drain was not cost beneficial and wanted this upgraded drain project abandoned. The Tribunal also heard evidence from another landowner who wanted the Drain to proceed to allow him sufficient outlet to drain his land and install erosion control structures. The engineer also presented evidence about the benefits of upgrading this Drain.

It is the responsibility of the appellants to persuade the Tribunal of the merits of their case.

However, no concrete evidence was provided to the Tribunal, by the appellants, other than observations of minor crop reductions every 4 or 5 years, to support the position to abandon the Drain. Mr. Hayter did provide yield data for the 1997 crop year to support his claim of specific crop losses. On balance, the Tribunal having weighed the evidence presented to it was satisfied that the project had merit.

The Tribunal also heard evidence of how the project changed when the condition of the 1971 upgrades came to light. Four of the ratepayers stated they did not feel they should pay for mistakes made in 1971. The engineer presented evidence about adjustments made to assessments to reflect this. The evidence presented satisfied the Tribunal that the problem was recognized during the process and is not prepared to upset arrangements made amongst the parties in the course of the process.

ORDER OF THE TRIBUNAL

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

1. The appeals of John W. Dowson, Scott Consitt, Thomas Consitt and Barbara Consitt under section 48 are dismissed.

2. The appeals of John W. Dowson and Scott Consitt under Section 54 are dismissed.

3. 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:

1. Appeals under section 48: The appellants failed to bring forth any concrete evidence to convince the Tribunal that the upgrade to the Drain should be abandoned.

2. Appeals under section 54: No evidence was presented to the Tribunal that suggested the engineer had calculated the assessments in an inappropriate or unfair manner.

Dated at Guelph, Ontario this 9th day of October 1998.