Knudsen Municipal Drain Improvement (Re), 1998 ONAFRAAT 46

Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: Knudsen Municipal Drain Improvement Township of Plympton

Knudsen Municipal Drain Improvement (RE) 1998 ONAFRAAT 46

STATUTE: Drainage Act

HEARING: October 27, 1998

DATE OF DECISION: November 9, 1998

1998-46

NEUTRAL CITATION: 1998 ONAFRAAT 46

Knudsen Municipal Drain Improvement Township of Plympton

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 Vivian De Jong under Section 54 of the Drainage Act from the decision of the Court of Revision with respect to the Knudsen Municipal Drain Improvement - 1998, Township of Plympton.

Before:

John Taylor, Vice-Chair; Ed Mailloux, Vice-Chair; Herb Todgham, Vice-Chair; Armand Bechard, Member.

Appearances:

Klaus DeJong, on behalf of the appellant V. DeJong

Anton Noorloos, on behalf of Just Beginning Inc., assessed owner.

Sandy Bunker, assessed owner.

Ernie Derbyshire, assessed owner

Everett DeJong, on behalf of the DeJong Farm (Petrolia) Ltd., assessed owner

Wayne Donald, assessed owner.

Paul Elston, P. Eng., on behalf of the respondent, the Township of Plympton

DECISION OF THE TRIBUNAL

This appeal was heard on October 27, 1998 in the Council Chambers, Township of Plympton, 4486 London Line, Wyoming, Ontario. Vivian De Jong 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 with respect to the report of Paul Elston, P. Eng., on the Knudsen Municipal Drain Improvement - 1998, Township of Plympton (the Township). Mr. Archie McKinlay, Clerk-Tax Collector of the Township, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the June 8, 1998 engineer’s report on the Knudsen Municipal Drain Improvement - 1998, Township of Enniskillen parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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.

The Background

The Knudsen Award Drain was converted to a municipal drain under the provisions of the Municipal Drainage Act pursuant to a report dated July 7, 1952, prepared by J. C. Monteith. The drain was 1820 feet or 555 meters of open ditch from its outlet in the Paul-Park Drain in the E½ Lot 6, Concession 2, Plympton (A & C Wilson) running in a generally south-easterly direction, to a point just north of the line between Concessions 1 and 2 on the easterly side of the Township Road between Lots 6 and 7. An outlet for an existing “covered drain” was located at the upstream end of the open ditch. This existing covered drain does not have status under the Act but provides outlet for the upper part of the watershed including Plowing Match Road and the Townline Road between Plympton and Enniskillen Townships (Road 14). The open ditch was replaced by a tile system under engineering reports dated April 14, 1972 and January 13, 1977, prepared by J. A. Monteith, P. Eng.

The land owners and Drainage Superintendent for the Township of Plympton indicated that portions of the affected lands are currently subject to periodic flooding and erosion of the lands across which the surface drainage waters flow. Some of the owners have also installed private systematic farm drainage facilities while others are considering the construction of similar systems in the future. The present tile, while still working, is undersized and is not providing the required drainage outlet. The current report is in response to a petition from owners in the upper watershed seeking a proper surface and subsurface drainage outlet for the affected watershed area together with the necessary upgrading of the existing Knudsen Drain.

Mr. K. DeJong indicated that he had systematically tile drained his farm and he felt that the present outlet drainage system (exact origin unconfirmed) across his farm is adequate for his purposes.

In his report the engineer concluded that:

1. The existing Knudsen Municipal Drain is working to its capacity and is no longer providing a sufficient outlet for the affected watershed area.

2. The existing drain, of unconfirmed origin, in the southern (upstream) portion of the watershed is no longer providing a sufficient outlet for the affected watershed.

3. It is necessary to construct a new drain, designed to work in conjunction with the existing Knudsen Municipal Drain as improved in 1972 and 1977. The new drain is to replace the existing outlet drainage system of unconfirmed origin. The new drain is designed with sufficient capacity ( 24 mm or one inch drainage coefficient) to allow the entrance of additional surface drainage water to reduce the present extent and duration of local flooding.

4. The existing Knudsen Drain is to remain in effect and is to work in conjunction with the drain proposed in the report and is to be maintained in accordance with the maintenance schedule contained in the report.

The watershed area is 70.18 hectares in size of which 65.7 hectares are agricultural, 0.65 hectares are non-agricultural, and 3.83 hectares are roads. The upper 1,020 meters of the proposed work has a fall of 1.65 meters while the lower 1,410 meters falls 7.73 meters. The work is 2,430 meters in total length. The estimated cost $192,300 of which $114,200 is for construction $39,015 is for allowances, $34,115 is for engineering and $4,970 is for contingencies. $167,616 is assessed to lands and roads in the Township of Plympton and $24,684 is assessed to lands and roads in the Township of Enniskillen.

The Issue

The issue before the Tribunal is:

Are the assessments as proposed by the engineer and modified by the Court of Revision appropriate?

The Evidence and the Findings

Paul Elston, P. Eng., the engineer who prepared the June 8, 1998 report on the Knudsen Drain Improvement 1998, told the Tribunal that there are two preliminary matters that he would like the Tribunal to address. Firstly, the introductory paragraph of the report is in error as the work was undertaken under Section 4 of the Act rather than under Section 78. Mr. Elston filed with the Tribunal as exhibit 2(a) the proposed wording of a new introductory paragraph. Secondly there is a typographic error in the first item of the cost estimate. The cost of the outlet pipe should be $700 not the $600 shown on page 8 of the report. Mr. Elston requested that the Tribunal order these two corrections to the report and the Tribunal granted that request.

Mr. Elston then proceeded to outline the history of the report and his assessment methodology.

Mr. Elston told the Tribunal that the existing Knudsen drain is a tile drain from its outlet into the Paul Park Drain running upstream in a southerly direction to the line between Concessions 1 and 2 in the W ½ of Lot 7. A tile drain of unknown origin connects to the inlet of the Knudsen Drain and courses in a southerly direction, The land is rolling and depressional and parts of the watershed lack a surface water outlet. He said there are two low areas on the Just Beginning Inc. property and a low area in the DeJong Farm (Petrolia) Ltd. property in Enniskillen. The south part (upstream) of the watershed has a slope of 0.1 to 0.15%. Once the drain reaches the V. DeJong property in the centre part of the watershed the fall increases to 0.55%. The north part (downstream) of the watershed in Concession 2 has gradients from 0.3 to 0.8%. The portion of the watershed area from the north boundary of the V. DeJong property south relies on the ten inch tile drain of unknown origin for outlet. North of that line the outlet is in the existing Knudsen Drain. In addition to the three low spots identified above there is an erosion problem across the Wilson property in Concession 2 from the road crossing to the outlet in the Paul-Park Drain. The area requiring drainage includes the land owned by Just Beginning Inc. (Anton Noorloos), E. & M. Derbyshire and DeJong Farm (Petrolia) Ltd.

Mr. Elston told the Tribunal that the purpose of the project is three fold:

1. To provide drainage to those areas without surface outlet, that have to rely on under-drainage for all water discharge.

2. To provide an outlet for the upper watershed.

3. To reduce the erosion on the Wilson property caused by overflow of the Knudsen Drain.

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.

Mr. Elston told the Tribunal that, for purpose of calculating assessments, he divided the project into eleven sections relating to property boundaries or reaches where significant sub-watershed areas enter the drain. He then determined the cost of each section, subtracted any special assessments under Section 26 (if any), and then determined the split between benefit and outlet for that section. For calculating outlet assessment he weighted the area of each property depending on its use. Agricultural land was weighted by a factor of one, the cemetery was weighted by a factor of two, the gravel township road by a factor of three and the paved county road by a factor of four.

Mr. Elston said that for the first section at the outlet from Station 000 to Station. 0+150 (Wilson property) he assessed 55% benefit, 45% outlet. The outlet was pro rated to the equivalent acreage of each property. Similarly he assessed each section up to the V. DeJong property at a ratio of 55% benefit and 45% outlet. When he reached the downstream end of the V. DeJong property he changed to a ratio of 60% benefit and 40% outlet. In the upper reaches this ratio changed to 85% benefit and 15% outlet and then to 80% benefit and 20% outlet.

For the drain on the V. DeJong property he has two sections. The first section is from the downstream (North) property boundary with Park at Station 0+598.3 to Station 1+190 where the water from the Bunker farm enters the drain. The estimated cost of this section is $39,800 which he assessed 60% benefit and 40% outlet. The drain is a 450 mm pipe throughout this property. Mr. Elston said that the flat grade on the Just Beginning Inc. property dictated this size of pipe. Because the grade is steeper on the DeJong property he could have reduced the size of the pipe and saved about $2,000 in cost but he considers reducing pipe sizes mid-drain to be undesirable. Therefore he assessed this increase in cost as a benefit to Just Beginning Inc. and the County Road for the increased size of the pipe across the DeJong property. Since there are two sections on the DeJong property he divided this assessment and charged each section half. Therefore the benefit assessment of this section is:

$39,800 x 0.6 = $23,880

County Road $ 250

Just Beginning Inc. $ 750

Special Reduction $ 550

V. DeJong $22,330

The next section is Station 1+190 to Station 1+410 the upstream (South) boundary of the V. DeJong property.

The cost of this section is $14,125 which he assessed 60% as benefit. Again he charged Just Beginning Inc. and the County their portion of the benefit for the increased pipe size.

The benefit assessment of this section is:

$14,125 x 0.6 = $8,475

County Road $ 250

Just Beginning Inc. $ 750

V. DeJong $7,475

The total benefit assessment on the V. DeJong property is $22,330 + $7,475 = $29,805.

Outlet rates for both sections were calculated using the equivalent hectares that flow through each section of the drain.

Klaus DeJong, spoke on behalf of the appellant V. DeJong. Mr. DeJong told the Tribunal that they purchased this 50 acre farm in 1986. It was tiled every 34 feet and connected to a 10 inch clay main tile. He said this new drain is of no use to the property. He said he does not have any ponding or erosion on this farm and normally, no surface water flows onto the property from the upstream Just Beginning Inc. and Bunker properties. He said in 1997, the end of the 10 inch tile was dug up where it connects to the Knudsen Drain and was found to be half collapsed. Repairs were made under the supervision of the Township Drainage Superintendent. He said this repair should increase the capacity of the 10 inch tile and provide him with even better drainage.

Mr. DeJong said that his benefit assessment is too high. He also questioned the schedule for maintenance. He pointed out that their farm is assessed for 24.33% of the maintenance cost while the Bunker property, which is almost as large as his, is assessed for only 5.96%. Mr. DeJong told the Tribunal that they would be better to sell the farm rather than pay these assessments. He said that land in the area sells for $2,500 to $3,000 per acre and the value of his farm will not increase by $36,000 (his assessment) as a result of this work.

Wayne Donald, assessed owner, told the Tribunal that he is an owner of Lot 6, Concession 1, on the west side of the Plowing Match Road. He said he wanted to be assured that when the old ten inch drain he uses for outlet needs to be replaced the proposed new drain would handle this water. Mr. Elston told the Tribunal that the proposed new drain is designed to take the water from the watershed and when the existing tile fails the new outlet will be able to accommodate the drainage water from the Donald property.

Anton Noorloos, spoke on behalf of the Just Beginning Inc. property and told the Tribunal that the cost of the project is high but there is no other outlet for his property. He said he has four or five acres that he cannot crop unless the drain is installed.

Everett DeJong, spoke on behalf of the DeJong Farm (Petrolia) Ltd. property and told the Tribunal that his property is at the top of the watershed and the water goes in several directions. Each time a drain is cleaned or built he pays the highest rate per acre of all the land assessed. He urged the Tribunal to assess all the land at the same rate per acre.

Ernie Derbyshire told the Tribunal that part of his front field gets drowned out each year. He wants the drain constructed as there is no other way for the water to go.

Sandy Bunker told the Tribunal that he has no problem with drainage. His land is rolling and receives water from the property of Just Beginning Inc. and DeJong. He is not sure if there is a natural outlet over the surface of the DeJong property. Mr. Bunker told the Tribunal that the tile from his property to the ten inch tile on the DeJong property may have been placed some time ago by the Public Utilities Commission. He said he has only owned the property for three years so he is not certain of this.

The Tribunal examined the evidence and made the following conclusions.

The V. DeJong property is assessed $29,805 for benefit and $6,646 for outlet liability on 17.2 hectares in the watershed. This amounts to $883 per acre. The Tribunal was told the land values are currently $2,500 to $3,000 per acre. No one appealed the cost vs. benefit of the project but the Tribunal has to wonder if there will be an economic return to the land from this proposal. Since cost vs. benefit was not appealed the Tribunal feels it cannot deal with the issue.

The evidence is that there is no ponding of water on the DeJong property and no spillage of surface water from the upstream property onto the DeJong farm. The existing 10 inch tile main in the property appears to be functioning satisfactorily for outlet. There is no erosion or surface flow on the property. A ridge nearly one-half metre high separates DeJong from Just Beginning Inc. making it unlikely for surface water to flow onto DeJong in ordinary circumstances. The fence row and land elevation along the Bunker-DeJong property line prevents surface flow from that property onto the DeJong property.

The proposed work goes through both the DeJong and Just Beginning Inc. farms. The Just Beginning Inc. property is 19.9 hectares, but it is assessed only $3,800 more for benefit than DeJong despite the fact that this property has land along the road that will not drain, has Hickenbottom inlets into the existing tile to assist in drainage of low spots and has a ridge that restricts surface flow from leaving the property. $1500 of this benefit is for the over sized tile that has to be placed on the DeJong property.

The evidence is that the Just Beginning Inc. property is experiencing ponding, poor drainage and crop loss while the DeJong property does not appear to be suffering similar damages. Similarly, the A. & C. Wilson property suffers damage from surface water flowing and tile surcharging water to flow on the surface. No such problems are reported on the DeJong property.

In the opinion of the Tribunal, the DeJong property is assessed too much for benefit compared to the benefit the property is expected to receive. In the opinion of the Tribunal, the purpose of constructing the southerly portion of the drain is to provide outlet for those lands in the upper part of the watershed that do not have outlet and to take the drainage water from these lands to a sufficient outlet. The assessments at 60% benefit currently do not reflect this purpose. The Tribunal accepts that the purpose of construction over the Wilson property is to reduce the soil erosion and therefore should be more heavily weighted to benefit.

In the opinion of the Tribunal, the benefit to outlet ratio for the two sections of work on the DeJong property ought to be reversed. The engineer is directed to recalculate the benefit and outlet assessments for these two sections of drain maintaining the principles used in the original calculation but using a benefit assessment of 40% of the cost and an outlet assessment of 60% of the cost. The Tribunal agrees that the $2000 increase in cost due to over-sizing the tile on the DeJong property is properly assessed to Just Beginning Inc. and the County and this amount is to remain.

The maintenance schedule is to be amended to reflect the changes in construction assessments ordered by the Tribunal.

ORDER OF THE TRIBUNAL

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

1. Before the passing of the provisional by-law for the Knudsen Municipal Drain Improvement 1998 the June 8, 1998 report be amended as follows:

• The opening paragraph of the June 8, 1998 report on the Knudsen Municipal Drain Improvement 1998 is struck out and replaced by the following paragraph:

“Further to your instructions to report on an area which requires drainage as requested under Section 4 of the Drainage Act, R.S.O., 1990, Chapter D.17, an onsite meeting has been held to which the area ratepayers and other affected agencies were invited. An examination and survey of the area have been made. As a result of our review of this matter, we have prepared the enclosed report, plan, profile, specifications and schedules of assessment for a drainage works to be known as the Knudsen Municipal Drain Improvement-1998.

The area requiring drainage is defined as parts of the Southwest Part of Lot 7, Concession 1, Township of Plympton and part of the Northwest Part of Lot 7, Concession 14 and part of the Northeast Part of Lot 7, Concession 14, Township of Enniskillen. The petition is sufficiently signed and complies with Section 4(1)(a) and 4(1)(b) of the Drainage Act, R.S.O. 1990 Chapter D.17”

• On page 8 of the June 8, 1998 report the first item of work in the cost estimate from Sta. 0+000 to Sta. 0+006 is struck out and replaced with the following paragraph:

“Supply and install 700 mm dia., 1.6 mm wall, riveted outlet pipe 6 lin. metres $700.00”

• The assessment of the two sections of drain on the V. DeJong property are to be recalculated using the same principles as set out in Exhibit 5 Item IV (0+593.8 to 1+190) and Item V (1+190 to 1+410). The benefit is to be 40% of the estimated cost and the outlet is to be 60% of the estimated cost. The over-sizing benefit assessments against Just Beginning Inc. and the County Road are to be maintained at total of $1500 for Just Beginning and $500 for the County for the two sections.

• The schedule for future maintenance is to be adjusted to reflect the changes in the construction assessment schedule indicated above.

1. The decision of the Court of Revision concerning the assessment of E. and M. Derbyshire (Roll No.150-017) Township of Enniskillen is confirmed.

2. 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.

Dated at Tilbury, Ontario this 9th, day of November, 1998.