Scotchmer Drain (Re), 1998 ONAFRAAT 45

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:

Scotchmer Drain Township of Stanley

Scotchmer Drain (RE) 1998 ONAFRAAT 45

STATUTE:

Drainage Act

HEARING:

October 20, 1998

DATE OF DECISION:

November 5, 1998

1998-45

NEUTRAL CITATION:

1998 ONAFRAAT 45

Scotchmer 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 several ratepayers under both Sections 48 and 54 of the Drainage Act from the June 1998 engineer’s report and from the decision of the Court of Revision with respect to the Scotchmer Drain, Township of Stanley.

Before:

Vernon Spencer Chair; Andrew Osyany, Vice-Chair; Gordon Hill, Member.

Appearances:

Jack Deleplanque, on behalf of himself and several other appellants.

John and Anne Coyne, appellants.

John and Margaret Evans, appellants.

Frank and Anna Haas, appellants.

Ruth Mann, appellant.

John Rau, appellant.

Stephen Scotchmer, assessed owner.

Josh Fullan, assessed owner.

Rob Walton, P. Eng., on behalf of the respondent the Corporation of the Township of Stanley.

Jack Coleman, Reeve, Township of Stanley, assessed owner.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Stanley (the Township) near Varna, Ontario, on Wednesday October 20, 1998. Several ratepayers appealed to the Ontario Drainage Tribunal (the Tribunal) under both Sections 48 and 54 of the Drainage Act (the Act) from the June 1998 engineer’s report and from the decision of the Court of Revision with respect to the Scotchmer Drain, Township of Stanley.

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.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the June 1998 engineer’s report on the Scotchmer Drain, Township of Stanley, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

Along the shore of Lake Huron in Lot 16, Lake Road Concession West, Township of Stanley, in or about 1960, a cottage subdivision known as Homestead Heights was started. The remainder of Lot 16 is agricultural. The agricultural land is systematically tile drained on a 35 foot grid running from the south side of the lot in a north westerly direction to outlet outside the surface water watershed into the Grainger Drain. The easterly three hectares of this land is very flat and could flow north to the Grainger Drain or west to the Lake depending on the land surface conditions resulting from cultivation.

The access road from Highway 21 to the subdivision is known as Homestead Road, it runs in an east-west orientation at the south end of the agricultural land owned by Mr. Rau. Driftwood Drive runs in a north-south orientation and is the center of the subdivision. The north part of Homestead Heights consists of 24 cottage lots. Most lots have cottages. There is one row of cottage lots on each side of Driftwood Drive. The western edge of the western lot is the shoreline of the Lake. There is a pedestrian access easement from Driftwood Drive to the Lake between lots 29-47 (Verbeek) and 29-48 (D. & M. Evans) as well as on the north side of lot 29-53 (Scotchmer). The Township is the owner of both roads, but has not assumed either Homestead Road or Driftwood Drive and both roads are maintained by the cottage owners association.

Surface water from nineteen hectares of the agricultural land flows westerly to a low area between lots 29-60 (De Pasqua) and lot 29-61 (Simm), from there it flows between the cottages to two catchbasins on the east side of Driftwood Drive. Once the water enters the catchbasins it flows under Driftwood Drive and across the Scotchmer and Fullan properties to outlets at the Lake. It is thought that the pipes joining the catchbasins to the Lake outlets are twelve and fifteen inches in diameter. When the volume of water exceeds the capacity of the eastern catchbasins the water flows over the road and into the pipes through catchbasins in the west road ditch or overland through the Scotchmer and Fullan lots to the Lake. There is about forty feet of fall from east to west across the Scotchmer property. The overland flows have caused erosion on the Scotchmer and Fullan properties in the past. The owners of the Scotchmer and Fullan properties petitioned the Township to construct a drainage works to safely conduct the drainage water from the upper watershed across their land to a sufficient outlet at the Lake.

The report proposes to construct a new sealed drain with three large catchbasins from Driftwood Drive to the Lake Huron shore. An outlet structure protected by armour stone is proposed at the outlet at the lake. There are 23.66 hectares in the watershed. The length of the proposed drain is 113 meters. The estimated cost of the project is $37,900 of which the engineer assessed $28,000 as benefit and $9,900 as outlet.

The Issue

There are two issues before the Tribunal:

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

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

The Evidence and the Findings

Early in the hearing Mr. Jack Deleplanque, appellant, raised issues of the validity of the petition and the procedures followed by the Township in processing the report and provisional by-law. The Tribunal advised Mr. Deleplanque that it does not have jurisdiction to deal with the validity of the petition or the procedures and, if he wishes to pursue these arguments, he should apply to the Drainage Referee to seek relief.

Mr. Robert Walton, P. Eng., told the Tribunal that the firm of R. J. Burnside and Associates was appointed by the Council of the Township to respond to a petition for drainage signed by the owners of lot 29-53 (Scotchmer) and 29-53-02 (Fullan). Mr. Walton is the engineer assigned to this project. The first petition was determined not sufficient and was returned to the petitioners. A subsequent petition, which Mr. Walton determined to be sufficient, was filed with the Township and Mr. Walton proceeded to prepare a report.

Mr. Walton told the Tribunal that he held an information meeting with the landowners to discuss the proposed project on May 15, 1998. At this meeting three options were reviewed. After the meeting the report, dated June 1998, was finalized and filed with the Township. He said that the consideration of the report was on July 13, 1998. At the consideration of the report several of the upstream owners stated that the watershed shown in the report was incorrect. They felt that lands within the Grainger Drain watershed to the north also contributed water in the 1995 rainfall event. After the consideration meeting the watershed was further investigated and found to be accurate. The provisional Bylaw was passed on July 27, 1998. The Court of Revision was held on August 31, 1998.

The report has the usual assessment schedules, but there is no narrative setting out the engineer's reasoning that led to the development of the schedules. The explanation provided to the Tribunal at the hearing was informative and helpful to the Tribunal and also the assessed owners. The Tribunal is of the opinion that engineers' reports should set out the principles and criteria applied by the engineers in developing the assessment schedules. The Tribunal also wishes to commend the practice of using consistent round numbers for the assumed maintenance costs in developing the maintenance schedules, as this enables everyone to see what percentage of the maintenance cost is charged against each property.

Mr. Walton explained his assessment procedure as follows:

For the purpose of calculating assessments the drain was broken into 2 lengths:

Station 000 to 085 (outlet to west side of road) estimated cost $28,324.00

Station 085 to 113 (west side of road upstream) estimated cost $ 9,576.00

Total estimated Cost $37,900.00

Benefit Assessments were made as follows:

Scotchmer 75m @ $100/m of drain + $500.00 for an improved outlet $ 8,000.00

Fullan 30m @ $100/m of drain + $500.00 for an improved outlet $ 3,500.00

Township Roads $2,500.00 for improved outlet + $3,000.00 for road crossing $ 5,500.00

All other lots in the subdivision $500.00 each for improved outlet ( 22 lots) $11,000.00

Total assessed as benefits $28,000.00

Outlet Assessments in the amount of $9,900.00 were calculated as follows:

Station 000 to 085 $3,023.71 / 16.78 adjusted hectares = $180.20/ ha

Station 085 to 113 $6,876.29 / 16.76 adjusted hectares = $410.28/ ha

The following adjustments were made to reflect different rates and volume of flow for outlet calculations:

Roads were assessed at 3x the actual area. Cottage lots were assessed at 1.5x the actual area. To recognize that the farm land was tiled out of the watershed it was assessed as though it were 8 hectares (50% +/-). For the length from Stations 085 to 113 the farm land was also assessed at a reduced rate since the project is an urban type storm pipe (i.e. more costly than a normal agricultural drain). The reduced rate of farm land outlet on this section was $220.00/ha. The remaining outlet costs for the section from 085 to 113 were redistributed to all the cottage lots on a per hectare rate of $800.00/ha.

Jack Deleplanque, appellant, told the Tribunal that he was speaking on behalf of several appellants as well as himself. He said that the development of the subdivision began in 1959. At that time water that used to run off the farm land had a natural channel over the lots of Bedard and Sim and flowed across the land towards the lake through the Scotchmer and Fullan land. Mr. Lloyd Etue (father-in-law of Mr. Scotchmer), the owner of the farmland, knew this and installed a large drainage pipe from the farm land east of the subdivision through to the gully on the Scotchmer property. Surface water went into this large drain and then into the gully to the beach. There was an easement on the Sim and Bedard properties for this pipe. When John Rau took over the farm he tiled the field (1987) and drained it so the tile water would go to the Grainger drain to the north. After tiling the field, the original outlet through the Sim/Bedard easement was not necessary. The drain stayed in the ground but was not used.

Mr. Delaplanque said that when Mr. Etue developed the subdivision he put in drainage ditches and catchbasins along Driftwood Drive to take the subdivision water to the beach through pipes. The drainage system was a catchbasin in front of the Sim property that went into the pipe from the farmers field and continued down the hill. A second catchbasin in front of the De Pasqua property used a separate pipe for outlet. Where the pipes cross the road two catchbasins in the west ditch take the water from the west side of the road. This drainage system served the subdivision well until 1990.

1990 and 1992 were very wet, the ground was saturated and there was ponding in much of the subdivision. When the ground was wet, more rain came. The catchbasins were not maintained and as the inlets are small and flat to the ground they are easily plugged. Once the inlets were plugged the water built up and flowed across the road, through the drainage gully on the Scotchmer and Fullan properties. This water washed out the gravel drive to the Scotchmer cottage and eroded the bank at the beach. This happened in 1990 and again in 1992. As a result Mr. Scotchmer installed two large catchbasins with bird cage covers on the east side of Driftwood Drive. This work was paid for by the cottage owners association. He said that in June 1995 a severe storm hit with about seven inches of rain falling in 12 hours. This storm caused damage to the Scotchmer property and Fullan property but others as well. The flow of water was so severe that it crossed Highway 21 in several places then across the Lake Road West Concession to the Lake. He said that putting in a drain to serve two properties is inappropriate considering all of the other properties that were also damaged.

Mr. Deleplanque said that the cottage on the Scotchmer property was built before a building permit was required and it is built in a gully. The Fullan cottage was built later. These cottages would not be allowed by today’s standards. He said the original Scotchmer cottage has been greatly enlarged to about four times the original size so it now is a two storey building with paved drive, a large patio, holding tank and double garage. He said the fifteen inch pipe was exposed when the holding tank was being installed and it appeared to be in good condition at that time. He claimed that the surface drainage structures on the Scotchmer lot have been removed so Mr. Scotchmer may have created the drainage problems he now wants to solve.

Mr. Deleplanque argued that the appellant cottage owners believe the present system works well during normal conditions. If the new work only provides drainage for two properties and only two properties benefit, then these two properties should be the only ones assessed benefit. No one else benefits from the drain as proposed.

Mr. Deleplanque agreed that there should be some limited outlet assessment considering the subdivision already has a working drainage system. Since the other owners are satisfied with the current level of service and the proposal will destroy their existing drainage system they should be compensated for the value of that system. He said that the compensation for the existing system should offset the outlet assessment for the proposed project. He said the drain serves no useful purpose for the appellants.

Mr. Deleplanque questioned why, when the farmland has 19 hectares in the watershed, is the area reduced to eight hectares and then the assessment reduced by half again with the difference assessed to the cottages. He said this is not fair to the cottage owners. He asked the Tribunal to stop the project and/or reduce the assessment against the appellants to $100 or less.

Mr. Frank Haas told the Tribunal that, after the 1995 flood, during a rain storm he noticed that the catchbasin inlets were plugged with debris. He asked his wife to go to the outlet and see what happened when he cleared the grates. Once the grates were cleared both pipe outlets flowed full. He said that, in his opinion, the new drain will have the same problem if the grate is not kept clear. He argued that the project is too expensive and should be an open drain above ground. He feels an open drain will work better than the current proposal and cost less.

Mr. John Evans told the Tribunal that his lot does not drain toward the proposed Scotchmer Drain. He said that, in the 1995 storm, the water ran across the road to the Lake. He also suggested that a per lot assessment of $500 is difficult to justify when the lots are of different size and in some cases only part of the lot drains to the proposed Scotchmer Drain.

Jack Mann told the Tribunal that his wife owns the vacant lot at the corner of Driftwood Drive and Homestead Road. He said many properties have suffered from flooding and erosion in the past and solved the problems themselves and Mr. Scotchmer should do the same. He argued that by building the berm, paving the driveway, constructing the concrete walls, patios and redirecting the water flow Mr. Scotchmer is the author of his own problems and he should not expect his neighbours to solve his problem. He said that there are no properly constructed drainage ditches for the south section of Driftwood Drive. It would cost a lot to construct ditches and lower the culverts to make a proper system but he cannot see spending this money when the cottage owners do not have an ongoing problem that warrants the expense. He said that he believes that the property owners in the south end of Driftwood Drive cannot contribute to the runoff, the assessments are out of line and there is no need for the drain as proposed.

John Paul Rau told the Tribunal that he owns the agricultural land to the east of Driftwood Drive. This land is all systematically tile drained on a 35 foot grid with the outlet taken through the watershed boundary to the Grainger Drain. He had to remove three to four feet of material with a bulldozer in order to get the tiling machine deep enough to install this outlet. He said the only water coming from the property through Driftwood Drive is during flash floods. He said he receives no benefit from the proposed work and so should not be assessed. He argued that those who benefit from the work should pay the cost.

Jack Coleman, Reeve of the Township, told the Tribunal that the Council has taken the steps and done the things it is supposed to do in response to this petition. The Council did appoint the engineer and process this report in accordance with the procedures of the Act. He also told the Tribunal that, in the opinion of the Council, the assessment on the township property (the unassumed roads) appears excessive at the present time and he urged the Tribunal not to increase this assessment.

Stephen Scotchmer told the Tribunal that, in his opinion, the current system is failing even for a two to five year storm. The 12 inch outlet has been installed for 40 years. When he installed the new two foot square catchbasin the pipe was rotten and had to be repaired. The pipe under the road was replaced but the pipe that continued across the property under the concrete drive and concrete wall to the beach is original. He said he expects that the rest of the pipe will give out and he cannot afford to risk the damage to the house when that happens. The lower 60 foot section of the fifteen inch pipe was replaced 8 or 9 years ago because the concrete came apart at the joints and earth was washed in. The outlet for the pipe was stone and rip rap that has been washed away. The fifteen inch pipe from the wall to the lake is failing, it is sucking dirt through the pipe. He said that the current system is in the process of failing and there is no legal or financial mechanism to repair it. He told the Tribunal that he tried to encourage others to join the petition because he believes there is a better system than the one proposed but he did not get support from the other cottage owners so he is addressing part of the problem now. He said he is prepared to accept the drain as proposed and believes it is the best possible solution given the situation. He said that, if this project does not proceed, he needs to protect his property and he is prepared to cap the existing underground pipes, which are without legal status. With the berm that he has established, this would force surface water over the 20 foot wide right of way adjacent to his property. This 20 foot right of way is actually owned by him, but is used by the area residents for Lake access. The surface flow of water would eventually destroy the usefulness of this right of way.

Josh Fullan told the Tribunal that only a small portion of his land is affected by the proposed drainage works. He is interested in establishing long term stability of the landscape of the subdivision. He said that, in his opinion, the proposed assessment is fair and he is prepared to pay a portion of the cost for the updated drainage system. He noted that bank stability has been absent for the last eight years.

In his reply evidence, Mr. Walton told the Tribunal that he has had a topographic map of the watershed prepared and the boundaries shown in the report are essentially correct. He filed a copy of the topographic survey with the Tribunal pointing out that the south corner of the subdivision does drain to the north once the water level rises to the point where water will flow from this very flat area.

He reaffirmed his opinion that the current pipe is in the process of failing and noted that even in poor condition a pipe will flow water especially on a 10% grade.

He said that at the site meeting he had asked each owner if they had drainage problems and if they wanted improvement. All except the petitioners said no to both questions. He was also told that the association would fix the road ditches on their schedule. The majority of the cottages are high and dry and drain to the existing pipes. That is why they have no problem. He said he needed another petition if the owners wanted to address the issue of the whole area but the discussion to date has indicated the owners do not want to pay for improved drainage. He said that he designed the system to accommodate future improvements to the road drainage that he was told would happen. That will result in each lot having a direct connection to the new outlet and that is why all the lots are charged a benefit assessment of $500.

Mr. Walton requested that the Tribunal confirm the report with the following two minor revisions.

1. Change the grate on the 3’ x 4’ catchbasin at station 085 to a bird cage style grate instead of a flat grate.

2. Change the heading on the last column on Page 8, Schedule for Maintenance, to read 085 to 113 instead of 085 to 100.

The Tribunal examined the evidence and submissions and came to the following conclusions.

During the hearing Mr. Deleplanque told the Tribunal and the other parties that he is aware of a water pipeline along Driftwood Drive and asked the engineer how he was going to handle construction around this facility. Mr. Walton said that he was not aware that the pipeline was there and asked why he was not told of this before. Mr. Deleplanque said the petitioners knew about the pipeline and the engineer should find this information out from them and it was not his responsibility to inform the engineer. The Tribunal finds such an attitude totally unacceptable. This is a project that is supposed to provide an improvement for landowners in the area. All affected landowners are invited to several meetings, as required under the Act, to ensure there is communication between the design engineer, the landowners and the municipal council. During these meetings is the time for full disclosure by all participants, petitioners, Council and other affected landowners, of all information that could impact on the work. Withholding from the engineer information that has the potential to affect the design and the cost of the project is an unacceptable behavior. In this case, the engineer was able to review the as-built drawings of the water pipeline and decide he could make any necessary adjustment in the field without significant change in cost. However the Tribunal wants it known that, in a situation where a party withholds information which impacts design or costs, the Tribunal would not hesitate to refer the report back for reconsideration and assess the cost of the reconsideration work, to the land of the offending party.

The evidence clearly shows a problem caused by flow of water across the Scotchmer and Fullan properties. Mr. Scotchmer has made several changes to his lot in an attempt to protect his property. The appellants brought no evidence on the issue of benefit vs. cost of this project other than their statement that they are satisfied with their current level of service. The evidence is that there has been at least three occasions since 1990 that significant erosion damage has occurred on the Scotchmer property. The only figures on the cost of the damage was hearsay provided by the engineer that the repair cost on one occasion was $10,000. Given the magnitude of this repair cost and the frequency of damage and the lack of evidence from the appellants, the Tribunal concludes that the project is cost beneficial and the appeals made on this basis must fail.

From the evidence presented it is clear that the facilities to provide drainage for Driftwood Drive and the properties in the watershed are haphazard, undersized and deteriorating resulting in ponding on several occasions and flooding and erosion during severe storms. The evidence shows that the appellants are prepared to “live with” this situation. While the Tribunal can identify with and has sympathy for this position, it is clear that the drainage facilities in the watershed need improvement and that all properties will benefit substantially. The implementation of this proposal will provide the legal outlet necessary for the current situation. Once the legal outlet is in place the improvement of the drainage in the rest of the watershed can be undertaken by the Cottage Owners’ Association or by private agreement or by petition under the Act. In the opinion of the Tribunal, it would have been preferable to include all such improvement in the current project but that clearly is not the view of the appellant landowners.

In the opinion of the majority of this panel of the Tribunal, one of the important advantages of this project is the provision of a legal outlet for the drainage water from each of the assessed properties and the consequent removal of the potential liability for damages. This is a major advantage or “benefit” which makes these properties more attractive to informed potential purchasers and the $500 benefit assessment to each of the lots appears to the Tribunal to be quite low. However, the Tribunal decided not to interfere with the assessment. While the Tribunal would have charged more of the cost as outlet assessment, it took note of the fact that additional work will have to be undertaken upstream of the Scotchmer property in order for the area to take full advantage of the improved outlet. When the cost of this work is considered the lands assessed outlet in this project will incur additional costs so the Tribunal decided not to change the assessments in the current report.

ORDER OF THE TRIBUNAL

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

1. All appeals under Section 48 of the Act are dismissed.

2. All appeals under Section 54 of the Act are dismissed.

3. Before giving third reading to provisional By-law 26-1998, the engineer and the Clerk of the Township of Stanley are directed to modify the June 1998 report on the Scotchmer Drain by:

• Changing the grate on the 3’ x 4’ catchbasin at station 085 to a bird cage style grate instead of a flat grate.

• Changing the heading on the last column on Page 8, Schedule for Maintenance, to read 085 to 113 instead of 085 to 100.

• Inserting the following on page 3 of the report as the third sentence of the first paragraph of item 6.0, Requirements of the Drainage Act:

“The area requiring drainage consists of the lots identified as 29-53-02 and 29-53”.

4. 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 reasons for this decision are:

1. The Tribunal was convinced by the evidence that the project is cost beneficial and necessary.

2. The Tribunal was convinced by the evidence that the assessments as proposed by the engineer and confirmed by the Court of Revision, are appropriate in the circumstances.

Dated at Chatsworth, Ontario this 5th day of November, 1998.