Lawrence Municipal Drain (Re), 1998 ONAFRAAT 53

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: Lawrence Municipal Drain, Township of Dawn-Euphemia Lawrence Municipal Drain (RE) 1998 ONAFRAAT 53

STATUTE: Drainage Act HEARING: November 30, 1998 DATE OF DECISION: December 15, 1998 1998-53 NEUTRAL CITATION: 1998 ONAFRAAT 53

Lawrence Municipal Drain

Township of Dawn-Euphemia

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 Elaine (Ritchie) Konecny, John & Evelyn Armstrong, R. Kuley on behalf of PPM Systems Inc., Phyllis and William Core, Gordon and Audrey Stinson, Gilbert DePorter, Robert Bourque and Charles Sullivan under Section 48 of the Drainage Act from the report of Dennis McCready, P. Eng., on the Lawrence Municipal Drain, Township of Dawn-Euphemia.

Before: Herbert Todgham, Vice-Chair; John Taylor, Vice-Chair; Douglas Flook, Member.

Appearances: Elaine Konency; John and Evelyn Armstrong; Gordon and Audrey Stinson; William and Phyllis Core; Cec Kuley on behalf of PPM Systems Inc.; Robert Bourque and Gilbert DePorter, appellants. Eugene Barnes and Wayne Leeson, assessed landowners. Dennis McCready, P. Eng., on behalf of the respondent, the Township of Dawn-Euphemia.

DECISION OF THE TRIBUNAL

This appeal was heard Monday, November 30, 1998 in the Council Chambers, Township of Dawn-Euphemia (the Township), Dresden, Ontario. Elaine Konecny, John and Evelyn Armstrong, R. Kuley on behalf of PPM Systems Inc., Phyllis and William Core, Audrey and Gordon Stinson, Gilbert DePorter, Robert Bourque and Charles Sullivan appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act from the report of Mr. Dennis McCready, P. Eng., on the Lawrence Municipal Drain, Township of Dawn-Euphemia.

Donna MacDougall, Clerk 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.

Section 78(1) of the Act reads as follows:

78. (1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the July 31, 1998 engineer’s report on the Lawrence Drain, Township of Dawn-Euphemia, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The tile portion of the Lawrence Municipal Drain (the Drain) was constructed under a report of G.A. McCubbin dated April 18, 1931. The tile was installed from the outlet of the Drain into the Jordan Tap Drain in Lot 20, upstream, to the line between Lots 24 and 25. The last repair and improvement of the open portion of the Drain was done under a report of H. H. Todgham dated August 8, 1968. Under that report 600 m of the open drain was cleaned out and 244 m of the tile portion of the Drain in Lot 20 was removed.

The existing covered portion of the Lawrence Drain when installed had a capacity to convey 2.5 mm (0.10 inch) of runoff from the watershed in a 24 hour period, assuming that the drain is clean and in a good state of repair. This is approximately 20% of the current recommended design standard for subsurface drainage.

The owners of the W½ of Lot 22, Concession 8, Eugene and Barbara Barnes, expressed to council their interest in upgrading the Lawrence Municipal Drain (the Drain) as their property has suffered from flooding problems.

The owner of the S½W½ of Lot 23, Concession 8, Mrs. Jean Weatherstone (now owned by Gregory Barnes), expressed an interest in having the Drain improvement extend upstream across her property. This property has experienced flooding on numerous occasions over the past 40 years, even after a normal rainfall.

The owners of the N½W½ of Lot 23, Concession 8, Wayne and Lena Leeson, indicated that they would be interested in having the Drain improvement extend upstream to their south property limit if the project proceeds upstream to a point close to their property.

In general, the property owners in Lots 24 and 25 indicated that they have no particular drainage problems at this time.

On August 16, 1996, under Section 78 of the Act, council instructed the firm of Todgham and Case Associates Inc. to prepare a report on the Drain. Mr. McCready, P.Eng., was designated by this firm as the engineer in charge of the project. Two preliminary reports setting out a variety of alternatives were prepared and considered. Mr. McCready then prepared and filed a final report dated July 31, 1998.

A plan showing the location of the Lawrence Drain, the location of the proposed improvement and the lands affected by it, is attached to and forms part of this decision.

The Evidence and the Findings

Mr. McCready told the Tribunal that the existing Drain is a combined shallow open drain to accommodate the surface water drainage, and a deeper tile drain to provide an outlet for subsurface drainage. The existing drain is located on road property running southerly from the line between Lots 24 and 25. The existing open drain is adequate to handle the surface water but more intensive use of the land now requires more intensive tile drainage and therefore the tile outlet needs to be enlarged.

He said when preparing his report he took into consideration the following:

• the existing tile portion of the Drain is 67 years old and needs some maintenance.
• the existing tile portion of the Drain is capable of handling .0.10 inch of runoff in 24 hours, if it was in good repair.. Current recommended design guidelines for tile drainage, in an area where mainly cash crops are grown, is one-half inch co-efficient in 24 hours, or five times the existing capacity.
• if it was in good repair, the current tile system is capable of handling 0.50 inches of runoff in 24 hours from 130 acres. The total watershed of the drain is 560 equivalent agricultural acres
• soils in this area are Brookston clay. This type of soil is classified as poorly drained, but it can produce good yields when properly drained.

Mr. McCready held an on-site meeting November 6, 1996. At that meeting, it was clear that there were two groups of ratepayers: those who wanted improvements to the drain and those who did not. Eugene Barnes, Jean Weatherstone (whose property is now owned by Gregory Barnes), and Wayne Leeson were in support of making improvements to the Drain. Other ratepayers present indicated they had pasture lands or were satisfied with present degree of drainage and did not want the work carried out. Consensus at the meeting was that a preliminary report be prepared.

Mr. McCready said he prepared two preliminary reports which were presented to Council and the affected ratepayers. The first preliminary report, dated July 4, 1997, outlined six alternatives for providing improved subsurface drainage. Three of the alternatives dealt with upgrading the tile portion of the Drain. One of the alternatives dealt with constructing a new covered drain to serve only the lands in Lots 20 to 23. Another alternative dealt with the installation of a private pumping station and the last alternative dealt with carrying out a detailed examination of the existing covered drain to see if it could be repaired. As well, the preliminary report dealt with the costs involved in abandoning the existing open drain and tile portion and constructing a new drainage works consisting of a deep open drain.

After the first preliminary report was reviewed, several of the property owners along the west side of County Road No. 21 indicated that their properties had tile drainage systems outletting entirely into the Seventh Concession Blind Line Drain. It was also clear that the owners of Lots 24 and 25 did not want improvements on the Drain at this time. As a result, Council requested that a second preliminary report be prepared updating the watershed and also to provide some additional options to the options contained in the first report. The second preliminary report, dated September 19, 1997 was presented to Council and the ratepayers. The consensus from that meeting was that the final report should provide for upgrading the tile portion of the drain from Station 910 to Station 2725 with the present open ditch being cleaned, where required.

Mr. McCready said to provide improved subsurface drainage and to improve the open portion of the Drain, he recommended:

• The reconstruction of the covered portion of the Drain onto the adjoining farm lands, with a new covered drain consisting of 525 mm, 600 mm and 675 mm diameter concrete tile from Station 910 to Station 2725 along with the necessary associated work. The existing tile portion of the drain from Station 890 to Station 2725 is to be abandoned for the purposes of future maintenance by the municipality. This abandoned tile will become the property of the Road Authority (County of Lambton).
• That the open Drain be excavated from Station 2725 to Station 2850 to provide an improved outlet for the covered portion of the Drain including the hauling and disposal of the excavated material off-site.
• That the bars and obstructions be removed from the open drain from Station 1300 to Station 2725.
• That there be new Schedules of Assessment for the future maintenance of the existing tile from Stations 0 to 890 and for the entire open drain from Station 0 to Station 2980.

Total Estimated Cost of the proposed work is $170,000.

In response to questions from the appellants, Mr. McCready said repairing the existing tile drain was one alternative presented in the first preliminary report. However, this was not an option that the Council wanted, as the capacity of the existing tile drain, even if repaired, would not provide the drainage required. Also, this tile drain was built 67 years ago and is old. In his experience, ratepayers find that maintenance costs are high on a tile drain when it becomes 60 to 80 years old. In his opinion, the proposed improved drainage works is the best long term solution.

In response to a question from the Tribunal, he said that the improved drain would include two separate systems. The existing open drain to take surface water from the roads and fields and a completely enclosed tile drain to handle sub-surface water, but relocated off the road allowance and on the private lands to the east.

Elaine Konecny, owner of NE½ Lot 24, Concession 7, told the Tribunal she does not believe a new drain is necessary. Ten acres of her property drain into the Drain. She has lived on the property since June 1976 and under normal conditions does not experience flooding. She believes the existing drain is adequate and just needs to be cleaned or repaired. She is concerned that if the abandoned subsurface tiles are smashed, and only the existing open ditch is to be maintained by the township in the future, she would have no drainage and thus her property would be devalued. She felt that her tile would not be connected to the new tile portion.

Mr. McCready told the Tribunal and Mrs. Konecny that the proposed new drain would not mean smashing the abandoned tile beneath the open ditch and furthermore, she would be connected to the new tile through the undisturbed part of the Drain across N½ Lot 24 and Lot 25..

John and Evelyn Armstrong, owners of N½ W\ ½ Lot 24, Concession 8, said they support the option of repairing the existing Drain. They have lived on this property for 28 years, their property is systematically tiled and they grow cash crops. In their opinion the new drain will not benefit them.

Cec Kuley, representing P.P.M. Systems Inc., owner of S½ W ½ Lot 24, Concession 8, stated that his son lives on this property. It is a pasture farm with some cattle and chickens. This property is not tile drained so he feels he would not benefit from the new drain.

William and Phyllis Core, owners of S½ Lot 21 object to having the proposed new drain put on private property. Surface water from approximately 30 acres of their untiled pasture land drains into the Drain. They do not feel the new drain would be a benefit to them. In their opinion, the existing drain just needs to be cleaned and repaired.

Gordon and Audrey Stinson, owners of N½, W½ Lot 21, Concession 8, said they want the new drain quashed. He stated that Brookston clay does not absorb water fast but it does absorb a lot of water. He would like to see the old tile repaired and the open drain cleaned out. Their property is systematically tiled and cash crops are grown on it.

Gilbert DePorter, owner of W\½ Lot 25, Concession 8, said the main drain on his farm has been there for 74 years and is still working good. His water drains into the top end of the Drain into a catchbasin. As far as he is concerned, the Drain is doing a good job. His land is systematically tiled and is cash cropped.

Robert R. Bourque, owner of S½, E½ Lot 25, Concession 7, said he feels the proposed new drain should be quashed. He would like to see the existing drain repaired and cleaned out. He does not feel he receives any benefit from the Drain. He tiled 25 acres of his property westerly, last year to an outlet into the Seventh Concession Blind Line Drain. He grows cash crops. Wayne Leeson, owner of N½, W½, Lot 23, Concession 8, said his farm is systematically tiled. He is in favor of the Drain as he has lost crops due to flooding. He urged the Tribunal to accept Council’s proposal and proceed. He expressed the concern that at the Council meeting property owners on the drain voted in favor of the present proposal and now have changed their minds.

Eugene Barnes, owner of W½ of Lot 22 and the house lot on Lot 23, Concession 8, said he is in favor of the proposed Drain improvement. He has systematically tiled this farm. He has been a licensed drainage contractor for 30 years. He said a few years ago he went to Council as he was experiencing flooding. As a result, Council hired his firm to repair broken tiles in the drain. However, he did not complete the job as he found that the tiles were too badly broken up. In his opinion, the drain is in poor condition. He expressed the concern that he is accommodating other property owners’ water and. as a result, is experiencing flooding on his property.

No one brought forward any suggestion of another method to imrpove the capacity of the drain, beyond what was provided in 1931, to meet today’s needs.

In summary, Mr. McCready said the trend in this part of the province is to more intensively drain to meet the needs of cash crop farming. If there is a change of ownership, land use of certain properties in this watershed may very well change and they will become more intensively drained. Eugene and Gregory Barnes’ properties are in a bit of a depression area which creates a bowl effect creating a heavy load on the drain at that location. The existing drain was sized to provide an outlet to 1931 standards. In his opinion, the proposed drainage works will not only meet the long-term drainage needs of the ratepayers in this watershed, but will deal with the present problem as well. Since the proposed work is an enclosed drain constructed of concrete tiles in stable soil and with good cover, it should function well for many years with very little maintenance cost to the owners in the watershed.

The Tribunal appreciates the fact that some property owners may not have any intention of changing land use or improving sub surface drainage to take advantage of this new drain. However, subsequent owners of these properties may well want to develop them and, therefore, be prepared to pay more for the property than they would have if the drainage outlet being provided was not available. In the opinion of the Tribunal, improved drainage improves the value of property.

While some of the landowners at the upper end of the watershed did not feel that the recommended works would provide any benefit to them, nevertheless, they have an obligation in law to contribute to the improvement of their outlet so that downstream owners will not be burdened with the water that is artificially discharged from the upper lands onto those further downstream.

The Tribunal noted that quite a number of the property owners seem to be opposed to the works recommended by the report. However, the Tribunal was convinced that given:

1. the potential of the land within the watershed,
2. the age, condition and capacity of the existing works (especially the tile), and
3. the lack of more suitable alternative remedies,

the works recommended in the engineer’s report should proceed. The report does not recommend excessive work but rather is confined to bringing relief to those properties most in need. Accordingly, the Tribunal was not convinced that the works should be abandoned or that any modification to the report is required.

Order of the Tribunal

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

1. The appeals of Elaine (Ritchie) Konecny, John and Evelyn Armstrong, R. Kuley on behalf of PPM Systems Inc., Phyllis and William Core, Gordon and Audrey Stinson, Gilbert DePorter, Robert Bourque and Charles Sullivan under Section 48 of the Drainage Act are dismissed.

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.

The reason for this decision is that the Tribunal was not persuaded by the evidence that there is a more appropriate solution to the problems in the area than the proposal contained in the July 31, 1998 engineer’s report.

DATED at Chatham, Ontario THIS 15th day of December 1998.