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:
Cranberry Lake Drain Township of Blandford-Blenheim
Cranberry Lake Drain (RE) 1998 ONAFRAAT 44
STATUTE:
Drainage Act
HEARING:
October 14, 1998
October 23, 1998
1998-44
NEUTRAL CITATION:
1998 ONAFRAAT 44
Cranberry Lake Drain Township of Blandford-Blenheim
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 Edward Down and George P. Wells under Section 54 of the Drainage Act from the decision of the Court of Revision on the Cranberry Lake Drain in the Township of Blandford-Blenheim.
Before:
Vernon Spencer, Chair; Charles Broadwell, Vice-Chair, Andrew Osyany, Vice-Chair.
Appearances:
Edward Down, appellant.
George Wells, appellant.
John Kuntze, P. Eng., on behalf of the respondent, the Corporation of the Township of Blandford-Blenheim.
DECISION OF THE TRIBUNAL
This appeal was heard in the office of the Township of Blandford-Blenheim (the Township) in Drumbo, Ontario on Wednesday, October 14, 1998. Edward Down and George Wells 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 Cranberry Lake Drain in the Township. Keith Reibling, Clerk-Administrator of the Township, performed the duties of the Clerk of the Tribunal.
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.
At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the May 29, 1998 engineer’s report on the Cranberry Lake Drain, Township of Blandford-Blenheim, having been served notice of this hearing are made parties to this hearing.
The Background
Blandford Road is a north-south road lying between Lots 6 and 7. Township Road 5 is an east-west road between Concessions 4 and 5. Township Road 4 is an east-west road between Concessions 3 and 4.
Cranberry Lake Drain is an existing drain running westerly from Cranberry Lake in Lots 4 and 5, Concession 4, to an outlet in Scott Creek in Lot 7, Concession 4. From the head of the drain to Blandford Road, Cranberry Lake Drain is a tile. From the west side of Blandford Road to the Scott Creek, the drain is an open ditch. The current report proposes minor maintenance of the Cranberry Lake Drain (the Main drain) and the construction of two new tile branch drains.
Branch A outlets in the Main drain at the west side of Blandford Road and then runs south on the west side of the road in the Down property a distance of 550 meters. The drain then turns east across Blandford Road and then runs south on the east side of the road in Lot 6, Concession 4 (the Ede property) a distance of 238 meters, then crosses Township Road 4 and to its head in a catchbasin on the south side of Township Road 4. The last 85 meters of Branch A is an existing tile drain and catchbasin that is being incorporated as part of the work. The purpose of Branch A is to provide an outlet for low lying land along Blandford Road as well as providing an outlet for the existing tile on the east side of Blandford Road just north of the intersection with Township Road 4. This existing tile is the outlet for a systematic tile drainage system installed on part of Lot 6, Concession 3 (Nemeth property).
Branch B outlets into Branch A in Lot 7, Concession 4 (Down property). From there it runs south westerly a distance of 291 meters then turns south for a distance of 64 meters, all in the Down property. The drain continues across Township Road 4 to its head in a catchbasin on the south side of the road. The purpose of Branch B is to provide outlet for low lying areas on Lot 7, Concession 3 (Clark property) and Lot 7, Concession 4 (Down property) as well as for a portion of Township Road 4.
The total drainage area affected is 348.4 hectares. The total length of the new drainage work is 1,220 meters. The total estimated cost of the work is $75,100 of which Branch A is estimated to cost $41,345 and Branch B is estimated to cost $16,975, with the remainder for work on the Main Drain.
The Issue
The issue before the Tribunal is whether or not the assessments proposed in the May 29, 1998 engineer’s report on the Cranberry Lake Drain 1998 and confirmed by the Court of Revision are appropriate.
The Evidence and the Findings
John Kuntze, P. Eng., the engineer who prepared the May 29, 1998 report on the Cranberry Lake Drain 1998, told the Tribunal that the portion of the report dealing with the construction of Branches A and B was initiated by petition of the road superintendent. It is this part of the report that is under appeal. He said that the site examination revealed depressional areas along Blandford Road with no natural drainage outlet. There is also a depressional area on the Clark property that flows through a culvert under Township Road 4 onto the Down property, then overland to Scott Creek. Scott Creek was maintained while this report was being prepared and Mr. Down obtained fill from this work and partially filled one of the depressional areas on his farm.
Mr. Kuntze explained that his survey indicated that an outlet for the lands in Lots 6 and 7, adjacent to Blandford Road, could be achieved by constructing a drain flowing north along the west side of the road. There are no trees, residential entrances, fences, etc. that would impede the construction.
He said that the other problem area is on Lot 7, Concession 4. Water collects in a depression on the south side of Road 4 (Clark Property) and overflows across the road into the Down property. This makes the Down property wet and causes some erosion of the field. It is possible to take this water west to an outlet in the Laister Drain but that route is longer and this land is not in the watershed for the Laister Drain.
The depth of Branch A is irregular. At the Blandford Road, the depth is slightly less than one meter, the maximum depth 2.2 meters and it averages about 1.5 meters on the lower portion of the Down property. The pipeline across the Down property has increased the depth from the pipeline to the outlet about 0.6 meters. Branch B is 1.0 to 1.5 meters in depth.
Mr. Kuntze said that on the east side of Blandford Road starting at the main drain crossing there are three residential lots. All of these residences have problems with wet basements. Branch A is below the basement elevation of these houses and should help with the drainage problems. He said there is no direct connection to Branch A but these houses are assessed benefit to Branch A as it offers a better outlet than present and the drain will lower the water level reducing the need and frequency of operation of the sump pumps.
Mr. Kuntze explained that he assessed the Down property for two categories of benefit on Branch A. He assessed $2,000 in benefit because Branch A provides a direct outlet into a drain under the Act for portions of the Down property. He also assessed $8,250 for improved drainage and better control of surface and subsurface water along the outlet of the drain. He arrived at this figure by assessing $15 per meter times the length of the drain (550 m) on the property. He said the estimated cost of the work on the Down property is $28,000 and Mr. Down is assessed at 37% of this amount for benefit. He said that as a general rule of thumb he uses a 50:50 benefit:outlet split to start and adjusts from there. He assessed Blandford Road $6,050 as benefit since the drain is parallel to the road and will provide better drainage for the road. He assessed benefit to the residential lots of $500 to Wells and Terpstra and $250 to Kellestine who has a smaller lot. He also charged a special assessment of $2,780 to Imperial Oil for the increased cost of crossing the pipeline for the increased depth of the drain. He said that since the water table is high in the area, lowering the drain 0.6 meters to be under the oil pipeline means construction under the water table with the associated increase in cost.
Mr. Kuntze explained that, for Branch B, he assessed benefit for better control of surface and subsurface drainage. He assessed the Down property at the rate of $15 per meter of drain times the length (345 m) for a total of $5,000, plus $500 in benefit for extension of Branch B to provide direct outlet for portions of the Down property that did not have outlet before.
Mr. Kuntze said that he designated the Wells property as non-agricultural, based on the size of the property. Since the report was filed, he has had discussions with Mr. Wells and others and is now convinced that this property should be designated agricultural and he asked the Tribunal to order the designation changed.
Edward Down told the Tribunal that he was happy with the proposed work but thinks his property is assessed too high. He said that his land is a Fox Sandy Loam, it is smooth with good natural drainage. He acknowledged there are wet areas where Branch A and B join and where Branch A crosses the road. He argued that the main point of the construction is to deal with water from the Nemeth and Clark properties. He said that his property, other than the two small wet pockets, does not need improved drainage and therefore will not benefit greatly from the drain.
In response to questions from the Tribunal, Mr. Down said that he agrees with the watershed shown in the report and the amount of the Nemeth and Clark properties assessed into the branches. He said that the water from the Nemeth property migrates to the north onto the Ede property and continues north to the main drain and does not flow west across Blandford Road, but it does raise the water table in the area thus causing problems. Mr. Down noted that because the areas that require drainage are so far from the outlet the cost of the project is high. He said he is willing to pay his fair share of the work but he is assessed too much.
George P. Wells told the Tribunal that his only issue was the designation of his land as agricultural. The Tribunal told Mr. Wells that it is willing to accept the recommendation of the engineer on that issue.
Joseph Kovacs, assessed landowner, told the Tribunal that he has lived in the area for 37 years. He said he remembers when the north part of the Nemeth field was a lake until July. About five acres of the Nemeth field flooded before it was tile drained. He said the tile was installed under Road 4 to the Ede property and discharged into the Blandford Road road ditch and since then has created many problems. He said the current issue is to correct the situation of someone just dumping water with no outlet.
Calix Terpstra, assessed landowner, told the Tribunal that he owns one of the residential lots. He has retired on a fixed income and cannot afford to pay more for the work.
Mr. Kuntze, in response to the evidence of the appellants, told the Tribunal that this project is not easy to assess because of the size of the area and conditions of the land. He said the Down land is reasonably well drained naturally and is only subject to water problems when the water table rises. He chose the shortest route for the drain and the most economical construction given the type of soils and land slope. He said the amount of the benefit assessment relates to the cost of the work and since the cost is high the assessment is high. He noted that the division between outlet and benefit is subjective and he applied his judgment to the issue to arrive at the benefit assessment. The outlet he assessed in the normal method on equivalent acreage weighting woodlots by a factor of 0.5, paved roads by a factor of 3.0 and gravel roads with a factor of 2.5. He said that in his opinion, the assessment is fair and should be confirmed.
In response to questions from the Tribunal, Mr. Kuntze said that:
He assessed benefit for Branch A on the Down property at a rate of $15 per meter and on the Ede property at a rate of $8 per meter. He noted that the cost of the work on the Ede property was less so the benefit assessment per meter is less.
He said he used $15 per meter as a benefit assessment on Branch B.
The per meter cost of the work on Branch B was close to the per meter cost of the work on Branch A on the Ede property. He had not compared the two sections of drain on a benefit cost per meter basis and was not aware of the difference in the proposed per meter rates.
The most expensive part of the job is assessed to the small area that drains through Branch A and Branch B.
The roads are not suffering from excess water. The problem to solve is the tile water from the Nemeth property discharging into the road ditch and the road culvert between the Down and Clark properties that need an outlet. Both the Nemeth and Clark properties need a legal outlet for their drainage water.
Blandford Road is assessed an average of $8.50 per meter throughout.
The Tribunal examined the evidence and concluded that the assessments as proposed ought to be modified in the circumstances of this case. In the opinion of the Tribunal, the purpose of constructing Branch A and Branch B is to provide outlet for upstream lands as opposed to providing a direct benefit to the adjacent lands. If the special benefit assessments are removed from the calculation, the proposed assessment is 63% benefit on Branch A and 65% benefit on Branch B. In the opinion of the Tribunal, this is not consistent with the view that this is an outlet problem.
Branch A is parallel to Blandford Road throughout its length partly on the Down property and partly on the Ede property. The cost of construction on the Down property is approximately $32.90 per meter. Down is assessed $15 per meter for work on his land, or 45% of the cost. The cost of construction on the Ede property is approximately $25 per meter. Ede is assessed $8 per meter for work on his land, or 32% of the cost. In the opinion of the Tribunal, these two percentages should be approximately the same. This means that along the length of the Down property the benefit assessment on Blandford Road is too low.
The private drain on Blandford Road from the Nemeth property is incorporated as part of the work, thereby providing a legal outlet for the tile drains on the Nemeth property, as well as the road ditches at the intersection of Blandford Road and Road 4. However, Road 4 is not assessed a benefit for this work.
The Tribunal wishes to point out that the division between outlet and benefit is a judgment decision and the final result will depend on who is making the judgment. In the opinion of the Tribunal, the benefit:outlet ratio on this project ought to be 40% benefit and 60% outlet. The engineer is correct in his conclusion that the residential lots will benefit from the proposed work and should be assessed their fair portion of the benefit assessment. The report is ordered referred back to the engineer for further consideration of the assessments based on the information provided at the hearing. In making his calculations, the engineer is directed to subtract from the estimated cost of the work the Section 26 special assessments against the roads and the pipeline. The balance is to be divided in the ratio of 40% benefit and 60% outlet and assessed to the lands and roads at the engineer’s discretion in accordance with the directions provided in this decision. The reconsidered report is to be processed by the Township following the normal proceedures under the Act,
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made, the Tribunal orders:
The Council of the Township of Blandford-Blenheim is directed to refer the May 29, 1998 engineer’s report on the Cranberry Lake Drain 1998 back to the engineer for further consideration of the assessments in light of the information provided at the hearing and the decision of the Tribunal respecting the division between benefit and outlet and the equitable treatment of similarly situated properties.
In the reconsidered report, the property currently owned by George P. Wells is to be designated as agricultural if the current use is still in place at the time the report is filed.
The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and 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 reason for this decision is that, in the opinion of the Tribunal, the assessments as proposed in the May 29, 1998 engineer’s report should be modified on the grounds that the main purpose of the work is to provide an outlet for upstream lands and so as to provide for the equitable treatment of similarly situated lands.
Dated at Guelph, Ontario this 23rd day of October, 1998.