Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: Hayter Municipal Drain, Township of Goderich Hayter Municipal Drain (RE) 1998 ONAFRAAT 50

STATUTE: Drainage Act HEARING: October 29, 1998 DATE OF DECISION: November 24, 1998 1998-50 NEUTRAL CITATION: 1998 ONAFRAAT 50

Hayter Municipal Drain Township of Goderich

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

AND IN THE MATTER OF: An appeal to the Ontario Drainage Tribunal by Joseph F. Farnsworth, Brent Hillier, Michelle Hillier, W. J. Millar, Edith Millar, Doris M^cArthur, Mary Jane M^cArthur, Peggy Willigar, John M^cGibbon, Ann M^cGibbon and Joyce Shack under Section 54 of the Drainage Act from the decision of the Court of Revision for the Hayter Municipal Drain in the Township of Goderich.

Before: Andrew Osyany, Vice-Chair; Herb Todgham, Vice-Chair; Moira Connell, Member.

Appearances: Joyce Shack, Joseph Farnsworth, W. J. Millar, Doris M^cArthur, John & Ann M^cGibbon; appellants in person. Greg Hood, Allan & Marjorie Hayter, assessed landowners. Laurie Cox, reeve, on behalf of the Township Andrew M^cBride, P. Eng., on behalf of the respondent, the Corporation of the Township of Goderich.

DECISION OF THE TRIBUNAL

This appeal was heard in the office of the Township of Goderich (the Township) in Homesville, Ontario on Thursday, October 29, 1998. Joseph F. Farnsworth, Brent Hillier, Michelle Hillier, W. J. Millar, Edith Millar, Doris M^cArthur, Mary Jane M^cArthur, Peggy Willigar, John M^cGibbon, Ann M^cGibbon, and Joyce Shack 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 for the Hayter Municipal Drain in the Township of Goderich.

Linda Cranston, Clerk of the Township, performed the duties of the Clerk of the Tribunal.

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 July 1998 engineer’s report on the Hayter Municipal 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

In early 1996, Allan and Marjorie Hayter of Varna purchased the agricultural portion of Lot 16, Conc. 1, the westerly portion of the Lot having been subdivided, by the previous owner, for residential use. In the Spring of 1996, the Hayters had approximately 15 hectares of the property systematically underdrained for agricultural purposes, using a natural watercourse, which passes through the southeast part of the property, as an outlet. In the Spring of 1997, the Hayters wished to undertake further underdrainage of this property, but found that a legal outlet did not exist for the remaining approximately 32 hectares. After discussions with Township officials and neighbours, Mr. and Mrs. Hayter decided to circulate a drainage petition. In early April 1997, this petition, bearing the signatures of Mr. and Mrs. Hayter and nine residents in the residential area at the west end of the Lot, was submitted to the Township.

The Township authorized the preparation of the engineer’s report in accordance with Section 4 of The Drainage Act, in a letter of instruction dated April 25, 1997, appointing Maitland Engineering Inc. to respond to the petition. Andrew M^cBride, P. Eng., is the engineer assigned to the project.

The site of this proposed new Drain is at the west end of Union Sideroad, which is approximately 5.6 km south of the Town of Goderich, off King’s Highway No. 21. According to paragraph 3.2 of the engineer’s report, the total watershed area for which this Drain has been designed is 34.5 hectares and consists of approximately 25 ha of agricultural land requiring surface water and underdrainage outlet, 8 ha of agricultural land requiring underdrainage outlet only, and 2.4 ha of roadway.

The largest portion of this watershed is cleared, worked agricultural land used for the production of cash crops. Also included are two Township roads, Union Sideroad and Fuller Drive. As well, all of the residential area at the west end of Lot 16 has been included within this watershed due to the "cut-off benefit" it will receive from the Drain. This entire residential area, including the lake bluff, is approximately 5.7 ha, excluding Fuller Drive.

A copy of the Hayter Drain Plan showing the Drainage area is attached to and forms part of this decision.

The Issue

The issue before the Tribunal is whether or not the assessments proposed in the July 1998 engineer’s report on the Hayter Municipal Drain and confirmed by the Court of Revision are appropriate.

The Evidence and the Findings

Andrew M^cBride, P. Eng., the engineer who prepared the July 1998 engineer’s report, told the Tribunal that an on-site meeting was held on the evening of June 10th , 1997 with all owners of Lot 16 being invited. Nineteen of the thirty owners attended, as well as Township representatives.

Mr. M^cBride said the present conditions and problems within this area requiring drainage can best be described as follows:

1. Hayter Property requires two outlets for agricultural underdrainage at the west end of the property; one in line with Block A of Plan 562 for the larger (25ha) northern portion, and the second at the southwest corner of their property for the smaller (8ha) southerly portion. The Hayters also recognize the problems associated with the surface runoff from their property.

2. The majority of owners in the North Part of Reg. Plan 562 indicated that these properties suffer occasional flooding due to surface water runoff from the east (Hayter property and Union Sideroad). While there is a shallow swale through Block A, presumably to conduct some of this flow to the east side of Fuller Drive, there is nothing to direct the flow to this point, plus the swale is not adequate to handle this flow. The same situation exists along the south side of Union Sideroad. Furthermore, drainage facilities on Fuller Drive are poor. This results in occasional serious flooding of the north section of the Plan, from Lot 1 to Lot 10. A periodic high water table was also reported as a problem throughout the residential/cottage lots.

3. Owners in the South Part of Reg. Plan 562 (Lots 10 to 15) have similar but less severe problems. While the contributing drainage area is much smaller here and while overland flow relief is available to the south, the majority of owners in this section of the Plan also requested some drainage improvements.

4. Union Sideroad - a suitable outlet currently does not exist for this Road; some flow spills to the north across private property to a gully outlet in Lot 15, while the balance (likely the majority) adds to the problems in the north part of Plan 562. The Township would like to reconstruct this Road and direct drainage to a suitable adequate outlet.

5. Residential Lots West of Fuller Drive - None of these owners indicated that they have any current problems; all of them are seasonal residents. Presumably these properties would have the same drainage problems as those on the east side of Fuller Drive (excess surface water and high water table) but not as severe due to the protection provided by the roadway and its drainage system. The two owners of the natural gully, located in the north section of this area, Messrs. Acheson and Easton, advised that they have had serious erosion problems with the gully in the past, but have undertaken significant private capital works to control this erosion and provide a conduit for surface water from the west side of Fuller Drive to the toe of the bluff. Neither of these owners indicated any desire to have this drainage facility used as the primary outlet for all of the surface water and underdrainage from the east, nor did the owners east of Fuller Drive indicate a desire to use this as the primary outlet.

Mr. M^cBride also told the Tribunal that the firm of Duncan & Rutherford was retained in August 1997 to address the environmental concerns of the residents. The analyses indicate bacterial contamination of surface water flowing from the area. The levels of E. coli exceeded the MOE objectives at all three sample times. It is their opinion that flows from the proposed new drainage system would not result in degradation of the quality of water draining into Lake Huron.

He said a proposal for the Drainage works was circulated in April 1998 to Township Council, the Hayters and some of the permanent residents. The proposal provided an outlet for the agricultural land, an outlet for runoff from Union Rd. and to some degree from Fuller Rd.; and a berm and large outlet that would protect the area from flooding. He said the total cost of the proposed drainage works is $117,000.

Ms. Shack spoke on behalf of the seven assessed landowners who filed appeals concerning their assessments. Ms. Shack said she is the owner of Lots 1 & 2, Registered Plan 562, which she has owned since 1970. She said she has been a permanent resident of that community since 1989. According to Ms. Shack, some of the residents receive run off from the Hayter property when there are heavy rains. She told the Tribunal that some residents experience flooding two or three times a year if there is a quick thaw or heavy rain. She said that a drain already exists between the Acheson and Easton properties. She stated that most of the properties have no water problems. In the spring, when water table is high, her sump pump runs dumping the water in the ditch on the west side of her properties.

She said when Mr. Hayter approached the residents to sign a petition enabling him to drain his property, they did not realize they were signing for a Municipal Drain or that their signatures might result in some financial liability. She said that in June 1997 a hostile site meeting was held with 35 to 40 people present. She said Mr. M^cBride assured them that more meetings would be held and they would be privy to other considerations. In July 1998 some residents received a copy of the proposed engineer’s report and were informed that a meeting would be held August 17, 1998 to review the report.

She told the Tribunal that since Mr. Hayter initiated the petition and 87% of the land being drained is his property, he should be assessed 87% of the cost. In her opinion, all of the residential landowners should pay an equal assessment. She also stated that if the present culvert on Union Road is to be plugged or closed, property owners on the north side will be recipients of a benefit as water currently there will remain on the south side of the road. She does not understand why they have not been assessed a benefit. She said the proposed Drain will mean the Acheson and Easton properties will also have less water draining through their property which results in a cut-off benefit for them. On behalf of the landowners, she requested that they be given the option of putting the assessed cost of the Drain on their tax bill and paying for it over a period of time rather than in one lump sum.

Ms. Shack expressed the residents’ concerns about the uncertainty of the wording concerning maintenance of the Drain as contained in the engineer’s report. She said she presently has three catchbasins near her property which she unplugs herself. Mr. Acheson also has a catchbasin which he unplugs.

She said the residents have major concerns about what this Drain will do to the environment. She is concerned that this new Drain means they will have two sources of pollutants draining into Lake Huron. She said they need to be assured that this Drain will not make environmental conditions deteriorate further.

In response to questions of Mr. M^cBride, Ms. Shack admitted that when they experience heavy rains water runs through the ditches around her property. She said normal run off to a ditch in her opinion is not flooding.

In response to questions of the Tribunal, Ms. Shack did admit that the Drain will likely lower the water table and that would be a benefit to the residents.

Joe Farnsworth, an assessed landowner, expressed concerns about the amount he was being assessed for the Drain. In his opinion, Mr. Hayter should be paying a larger portion of the costs as he is the only landowner who will reap benefits from this Drain. Mr. Farnsworth said the value of his property will not go up because of the Drain. In response to questions from Mr. M^cBride he did admit he would receive a benefit from the Drain and should have a small assessment. In his opinion, assessment should not be the same for all residential lots - those who receive greater benefit should pay more than others. He said he thought his assessment should be about $800.

Mr. Millar, an assessed landowner, said he presently has no water problems and as such would like to see his assessment reduced.

Doris M^cArthur, assessed landowner, said she has owned her property (with another person) for 35 years. She is concerned that this Drain will affect their trees and septic system. She said they have no water problems and thus feels they should not have any assessment.

John M^cGibbon, an assessed landowner, told the Tribunal that he has lived on Lot 12 for 13 years and has not had a water problem so does not know why his assessment is so high. In his opinion, this Drain will not increase the value of his property.

Anne M^cGibbon, an assessed landowner, said this Drain will not benefit her property and thus in her opinion she should not be assessed for benefit.

Mr. M^cBride responded by telling the Tribunal that the Drain will provide some protection to each of the properties in the event of a heavy waterfall and thus a benefit has been assessed to each landowner. He also stated that neighbours on both sides of the M^cGibbons’ signed the petition indicating they have a water problem. He does not understand how it is that the M^cGibbons say they do not have a water problem.

Greg Hood, an assessed landowner, entered into evidence pictures showing flooding in the residential area after a heavy rainfall in 1992. He said in 1995 he observed water going over Fuller Drive seven times. He is in support of the Drain and feels his assessment is fair.

Laurie Cox, Township Reeve, said council has received several calls from landowners in the residential area complaining of water problems. He said he chaired the Court of Revision and in his opinion, costs were assessed in a fair and satisfactory manner.

Allan Hayter, owner of the agricultural land, said he acquired this property in 1996. That year he tile drained the easterly portion. He said when he purchased this property he knew it needed drainage. In the spring of 1997, he decided to tile drain more of his property but he did not have a legal outlet. So he circulated a petition for a Municipal Drain and nine other landowners, as well as himself, signed the petition. In his opinion, the berm that will be placed on his property will give the residential landowners protection in the event of a heavy rainfall. In his opinion, he is paying a fair share of the cost of the Drain. He said the reasoning for the assessments appeared fair to him.

At the hearing, the engineer explained his assessment of the cost of the Drainage works in the following way. He dealt with the project in different sections. Section 1 is the directional drilled tiling down the slope of the bluff. Section 2 is the tile drain along the south side of the travelled part of Union Sideroad. Section 3 is the tile crossing under Union Sideroad to the north side to pick up drainage on that side of the road. Section 4 is the berm and 525mm tile between the Hayter property and the subdivision. Section 5 is the 300mm tile and berm between the Hayter property and the subdivision.

In the following description, as in the engineer's evidence, it is to be recognized that figures are commonly rounded and that exact percentages are not expected to work out to the penny. For each of the sections the engineer established the cost of construction, the engineering costs and overhead. Then, for each section he deducted from this total the special Section 26 assessment against the road (if any), where the construction cost is increased by the existence of the road. The engineer showed these deductions separated out for construction, engineering and overhead. After making the deduction (if any), the engineer then assessed out a certain percentage to the owner on whose property the work was being done as a benefit, and then the balance he left to be dealt with as "other assessment". The simplified table below sets out the figures used by the engineer. This table combines the two portions of the Section 26 assessments.

Section	Total cost	Section 26 assessment to road	Benefit assessment to owner	Other assessment
1	$ 50,590	$0	0% $0	100% $50,590
2	$ 14,825	$7,000	35% $2,738	65% $5,086
3	$ 2,905	$2,905	0% $0	0% $0
4	$ 33,265	$0	45% $14,969	55% $18,296
5	$ 15,415	$0	55% $8,478	45% $6,937
Total	$117,000	$9,905	$26,115	$80,980

Initially the engineer considered that there were essentially three parties to this project, namely the Hayter farm, the subdivision and the roads and divided the "other assessment" into three portions of approximately $27,000 each. However, when applying the "fairness test" the engineer was of the opinion that the subdivision was not carrying its share and added $5,000 to the subdivision share (making it approximately $32,000), reduced the roads by $4,000 (making it approximately $23,000) and the Hayter property by $1,000 (making it approximately $26,000). The Hayter and road figures thus obtained he assessed as outlet. (This précis is based on the engineer's evidence at the hearing and his written statement, but the summary of assessments in the report only shows the construction part of the Section 26 assessment against Union Sideroad, excluding the overhead portion).

This left the problem of how to distribute the assessments within the subdivision. The engineer divided the subdivision into four sectors because he was of the opinion that the different sectors derived different degrees of protection from the Drainage works. Some benefited from four degrees of protection, namely the berm, the storage facility, the large pipe outlet and the lower water table, but some only benefited from one degree of protection. He divided the subdivision assessment on the basis of the size of the lots, weighted by the appropriate multiplier from one to four based on the degree of protection (one degree, two, three or four).

In response to questions of the Tribunal, Mr. M^cBride said:

• that in the event of a heavy rainfall, the berm will hold water on the Hayter property and will keep the residential lots from flooding.
• when the new Drain is constructed, waterflow though the ravine (Acheson and Easton) will be substantially reduced.
• when arriving at his assessment schedule, he did not take an overall look and determine that a certain percentage would be assessed to outlet and certain percentage to benefit.
• when developing the maintenance schedule, he felt it was unreasonable to include outlet which would have heavily weighted the maintenance to the Hayters and the Roads in the future. In his opinion, normal maintenance was more fairly reflected in the benefits assessments. He said storm water management was not considered in the past when the residential lots were developed. In his opinion, it is not the responsibility of the upstream owner to pay for storm water management now. He said if the property was developed properly in the first place, the property would have cost more.
• Landowners as well as the municipality have responsibilities to ensure that a Municipal Drain is property maintained and not abused. The Township is responsible for the maintenance and repair of this Drain. He said he used the word “caretaker” in his report to allow the Drainage superintendent the flexibility to delegate some authority for preventive maintenance of this Drain and it was his intention that that person(s) be compensated for performing this duty.

DECISION OF THE TRIBUNAL

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

The municipality failed to forward the required documents to the Tribunal office in accordance with the written directives. The municipality also failed to circulate the "Appellant's Statement" forms to the parties. These procedures are established by the Tribunal to allow the panel a reasonable length of time for preparation and also to help the appellants and the other parties focus on the real issues in question. The Tribunal has, in the past, imposed a penalty on the defaulting municipality. Due to local inexperience, however, in this case, the Tribunal has been persuaded not to impose a penalty.

The proposed project appears to the Tribunal to be well designed and should accomplish its intended purposes, which are very clearly explained in the report. The engineer's report has an excellent description of the work to be carried out. There is a general description of the work, the nature of the work is detailed as to each segment and the design criteria are set out. The engineer also set out in detail how he worked out the allowances for the land taken for the Drain. The Tribunal compliments the engineer on these parts of the report. The report does not provide any information about the engineer's reasoning in working out the assessment, however. 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. Such a practice assists the property owners in comprehending the assessment of the project and it discourages frivolous appeals. Also, in the event of frivolous appeals, the Tribunal is more able to assess costs against frivolous appellants.

The Tribunal is not in agreement with the method used by the engineer in arriving at the assessment schedule. It does not comply with the requirements of the Act and Common Law. For instance, the Act is quite specific on how outlet assessments are to be calculated, and the engineer did not comply with the statutory requirements. The engineer's approach is also not in accordance with prevailing accepted engineering practice. The Tribunal has decided to refer the report back to the engineer to re-work the assessments in the light of the principles set out in this Decision.

The very first thing that the engineer should consider is why the project is undertaken. This will provide guidance in how the costs should be assessed out.

Although the assessment of costs must follow the purposes of the project, in this case one of the purposes is rather unusual. Usually, the purposes of the project all relate to the removal of water from the lands and roads affected, but here, in addition to that purpose insofar as the farmlands and roads are concerned, the residential lots are only concerned with the cut-off of water flowing from the adjoining farmlands. As the Tribunal understands the evidence, the purposes of the project, as set out in Section 1.2 of the engineer’s report, are as follows:

1. To provide a suitable and sufficient outlet for a proposed underdrainage system to be installed in the farmlands in Lot 16, Concession 1 (Hayter lands).
2. To remove surface water that flows westerly from the Hayter lands.
3. To provide a sufficient outlet for the surface water that collects in the roadside ditches on Union Sideroad.
4. To cut off the flow of surface water into the residential subdivision between the farmlands and the lake.

In addition to accomplishing these purposes, it appears the project will also:

1. Lower the groundwater table in the residential subdivision.
2. Improve the general drainage of Union Sideroad and Fuller Drive.

The Hayter lands need an outlet for surface and subsurface drainage. The roads need an outlet for surface drainage. However, the subdivision lands essentially only need to have the Hayter surface waters cut off. In making an assessment for cut-off, one must go back to first principles and consider the fact that under the Common Law that relates to surface water, when surface water flows from higher land to lower land, the owner of the lower land may protect himself by either raising the level of his land or damming back the flow and, as long as he does not divert the flow onto a neighbour, he is not responsible for the damages that may result to the high land from his actions of protecting himself. To apply this principle to the situation at hand, the owners of the lots in the subdivision (and the road there) are quite within their rights in having a berm constructed to protect their lands from the flow of surface water from the east and they are not responsible for any damages to the farmlands due to flooding that may result (i.e. the payment for damages for ponding to the east) nor are they responsible for the cost of removing the water that may be dammed back by the berm.

On the basis of the above considerations, the following principles should be employed by the engineer in assessing out various sections of the project.

Sections 4 and 5 - berm and tiling

The subdivision lands and Fuller Drive alone should bear the cost of the berm. This includes construction, allowances for land taken for the berm, damages for its construction and administration. The tiling along the berm is needed to take away the Hayter waters, and the Hayter property should bear the lion's share of the cost as well as the entire allowance for ponding damages. However, since the tile will lower the water table for the benefit of the subdivision and Fuller Drive, they should share a small percentage (say 8-15%) of the cost of the tile.

In the various Sections of the work where the engineer assessed a benefit to the owner of the property, he ranged from 35% toward the outlet end of the Drain to 55% at the top of the Drain. In these two Sections the benefit assessments were 45% and 55% respectively. In general terms, the Tribunal agrees with applying varying percentages. The percentages would be different from project to project, depending upon the purpose of the work and the nature of the work. In this instance, the split between benefit and outlet along these Sections is academic since only the Hayter lands will pay for the tile drain along Sections 4 and 5 after the small percentage referred to has been assessed to the subdivision and Fuller Drive.

Section 3 - road crossing under Union Sideroad

This is a road crossing and is correctly assessed by the engineer entirely to the municipality.

Sections 2 and 1 - 525mm tile along Union Sideroad and directionally drilled tile on bluff

In accordance with the prevailing practice of many engineers, no allowance was provided to the municipality for the Drain being located on the road. In the view of the Tribunal there is no reason in principle for this practice. The municipality is assessed under Section 26 for any extra costs because of the existence of the road. Landowners are given an allowance for land taken for the Drain, and the Act does not distinguish between private and municipal owners, so it is only fair that the municipality be given an allowance for the Drain being placed on municipal property. The Tribunal recognizes that the allowance to the municipality would be different along Section 2 of the Drain from what the municipality should get along Section 1 of the Drain. The Tribunal also recognizes that the Drain will not interfere with the use of the road, and the engineer might reasonably take this into account in making an allowance to the municipality.

Since Section 1 is purely for the purpose of providing an outlet for the rest of the system, the engineer is correct in assessing its entire cost as an outlet assessment against all of the area that will drain water through it. If there is capacity in the tile for future connection of a drain on Fuller Drive to drain the streets and adjoining lots, then the engineer should include that area in his outlet assessment.

While Section 2 is primarily for the purpose of providing an outlet for Union Sideroad and the Section 4 and 5 parts of this drain, it will also provide through the catchbasins some local drainage to the adjoining streets, lots and farmlands, so a small proportion (say 5-10%) should be assessed to them for benefit. As well, the work on this Section will increase the desirability of the area of subdivision (both the residential lots and Fuller Drive) so the engineer could again assess a relatively small percentage of the cost of the west part of Section 2 (say 3-8%) to them as an indirect drainage benefit. Further, if the west part of Section 2 has capacity to provide outlet in the future for a drain on Fuller Drive, there should be an additional assessment for outlet on this part of Section 2.

Distribution of costs in the subdivision

After allocating the outlet assessment, if any, on the lots and street in the subdivision in the usual way the Tribunal believes that differentiating between the various lots on the basis of size and location is largely inappropriate in this case. With two exceptions, each residential lot essentially receives the same benefit. The two exceptions refer to the Easton and Acheson properties which are located in the gully that naturally takes the surface flow runoff. In protecting the properties, the owners have spent very substantial amounts of money. The Drain does not take advantage of this gully because the opinion of the engineer is that the current system is already failing and the municipal drain should not take on the responsibility of this unstable gully. The design of the Drainage works protects these properties from surface water runoff in all situations that are less severe than ten-year storms, except for the water from the subdivision itself, of course, which will continue to drain through the gully. Even when there is a ten year storm, these properties will only get the overflow from the farmland. This is a very significant cutoff benefit, and the properties should be assessed a fair value for it. In the view of the Tribunal, any amounts between $2,000 and $4,000 per property would be a fair assessment.

As for the rest of the lots, if some lots were so large that they could be subdivided, it would be appropriate to make an exception for those lots, but here there is no evidence of any of the lots being capable of being subdivided. The Tribunal's analysis also does not recognize the different degrees of protection that the engineer considered. In the Tribunal's view, in this case there is a community of interest in the subdivision, in that all of the parcels and their owners will benefit in much the same way and, generally, to a similar extent from having the flow of surface water from the east cut-off, the water table lowered and the whole area of the subdivision made into a more desirable place to live, regardless of the particular, individual characteristics of each property.

After deducting the extra cut-off benefit assessments on the Acheson and Easton properties, the balance of the moneys should be distributed equally among all the residential lots as benefit. The engineer correctly assessed the lettered blocks in the subdivision (used for drainage, water system and road reserve) for only nominal amounts.

Maintenance

The engineer's report is unclear with regard to maintenance of the catchbasins in regard to the removal of debris and sediment. The report is also using the benefit part of the assessment schedule as the maintenance schedule. There appears to be no good reason, in the Tribunal's view, to ignore the outlet part of the assessment in establishing the maintenance schedule. Since maintaining the outlet aspects of the Drain is just as important as maintaining its benefit aspects. Furthermore, Section 1 is purely an outlet pipe and should be maintained as such.

ORDER OF THE TRIBUNAL

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

1. The Council of the Township of Stanley is directed to refer the July, 1998 engineer’s report on the Hayter Municipal Drain back to the engineer, under Section 57 of the Act, for further consideration of the assessments in light of the decision of the Tribunal respecting the principles to be applied in assessing the costs of this project.

2. The engineer's report is amended by deleting the last two sentences of section 11.1 and inserting the following:

"The Drainage superintendent should appoint one or more local residents to be catchbasin supervisors­ to keep the catchbasins clear of debris and sediment when possible to do with manual labour and otherwise to alert the Drainage superintendent to have the work done. The cost of the catchbasin supervisors is a cost of maintaining the Drain."

3. The engineer's report is amended by deleting section 11.2 of the report and inserting the following:

"The Township of Goderich will maintain the road crossings at the expense of the road authority. The remainder of the proposed work is to be maintained by the Township of Goderich at the expense of the lands and roads herein assessed in Appendix C and in the same relative proportions, subject to any amendments made under the authority of the Drainage Act."

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. In the opinion of the Tribunal, the assessments as proposed in the July 1998 engineer’s report should be modified to comply with the requirements of the Drainage Act, Common Law and prevailing engineering practice.

2. In the opinion of the Tribunal, the maintenance responsibilities needed clarification and the maintenance schedule should reflect both the benefit and outlet parts of the assessment.

Dated at Guelph, Ontario this 24^th day of November, 1998.