Philip Emerick and Mary Emerick v. Lambertus (Bert) Huys and Township of Dawn-Euphemia, 1998 ONAFRAAT 55

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:

Huys Drain Township of Dawn-Euphemia

Huys Drain (RE) 1998 ONAFRAAT55

STATUTE:

Drainage Act

HEARING:

December 1, 1998

DATE OF DECISION:

December 18, 1998

1998-55

NEUTRAL CITATION:

1998 ONAFRAAT55

Huys 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 Philip Emerick and Mary Emerick under Section 54 of the Drainage Act from the decision of the Court of Revision and under Section 48 from the August 14, 1998 report of Dennis McCready, P. Eng., on the Huys Drain, Township of Dawn-Euphemia.

Before:

John Taylor, Vice-Chair; Herbert Todgham, Vice-Chair; Ed Mailloux, Vice-Chair.

Appearances:

Philip and Mary Emerick, appellants.

Lambertus (Bert) Huys, assessed landowner.

Dennis McCready, P. Eng., on behalf of the respondent, the Township of Dawn-Euphemia.

Paul Dalton, Road Superintendent, on behalf of the respondent, the Township of Dawn-Euphemia.

DECISION OF THE TRIBUNAL

This appeal was heard Tuesday, December 1, 1998 in the Council Chambers, Township of Dawn-Euphemia (the Township), Dresden, Ontario. Philip Emerick and Mary Emerick 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 and under Section 48 from the August 14, 1998 report of Dennis McCready, P. Eng., on the Huys 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 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 August 14, 1998 engineer’s report on the Huys 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

In 1996, the former Township of Dawn received a petition signed by Bert and Julienne Huys, Philip and Mary Emerick and the Dawn Township Road Superintendent. The purpose of that petition was to construct a drain under the provisions of the Act, which would provide drainage to lands in Lots 13 and 14, Concession 14. Two potential routes for the proposed drain were surveyed and examined. A preliminary report was prepared outlining various alternatives. Two final reports were prepared in 1997. The private landowners could not agree on the alternatives. After the second report, all of the property owners withdrew their names from the petition and the process under the Act was terminated.

The Township of Dawn-Euphemia had a legal survey carried out to establish the road property limits and to consider the construction of an open ditch along the west side of the Mawlam Road to take care of the road drainage needs. At some point during this process, a second petition, signed by Bert and Julienne Huys, was filed with the municipality. The purpose of the petition was to construct a drain under the provisions of the Act, which would provide drainage to lands in Lots 13 and 14, Concession 14.

As a result of the second petition, council appointed the firm of Todgham & Case Associates Inc., to prepare a further report. Dennis McCready, P. Eng., was designated by his firm as the engineer in charge of the project.

The Issue

The issues before the Tribunal are:

1. Should the drainage works as proposed in the August 14, 1998 engineer’s report be modified?

2. If the drainage works as proposed in the August 14, 1998 engineer’s report are not to be modified and the work as set out therein is to be carried out, are the assessments proposed in the August 14, 1998 engineer’s report on the Huys Municipal Drain and confirmed by the Court of Revision appropriate?

The Evidence and the Findings

Mr. McCready told the Tribunal he had prepared a final report dated January 27, 1997 (Exhibit No. 3). On March 6, 1997, he filed an information report (Exhibit No. 4) setting out an alternative for consideration. A second final report (Exhibit No. 5) was filed on April 18, 1997 but this report was also abandoned as all of the landowners withdrew their names from the petition.

He said a second petition, signed by Bert and Julienne Huys was filed with council and council instructed him to prepare a further report under Section 4 of the Act. He said that after the on-site meeting, he surveyed an additional route along the south side of the existing swale and prepared the August 14, 1998 report (Exhibit No. 2).

The area requiring drainage consists of approximately one-half acre of the Mawlam Road allowance in the S½ of Lot 14, approximately 1.5 acres of the Mawlam Road allowance in the N½ of Lot 13, as well as some agricultural lands on both sides of the road. On the west side of Mawlam Road, approximately 2.5 acres of agricultural land in the S½ of Lot 14 and 8.5 acres of agricultural land in the N½ of Lot 13 are within the area requiring drainage. On the east side of Mawlam Road, approximately 0.25 acres of agricultural land in the S½ of Lot 14 and 0.25 acres of agricultural land in the N½ of Lot 13 are within the area requiring drainage.

A map showing the plan of the Huys Municipal Drain, as proposed in the current engineer’s report (Exhibit No. 2) together with the watershed affected, is attached to and forms part of this decision.

Mr. McCready told the Tribunal that, at the on site meeting Mr. Emerick, the owner of the lands on the east side of Mawlam Road in the N½ of Lot 13, Concession 14, indicated that:

1. There is an existing 300 mm diameter road pipe opposite the center of his property which permits runoff from the road and the lands west of the road, to cross beneath the traveled portion of Mawlam Road and discharge along an existing ravine or gully on his property.

2. Erosion has occurred along the gully and he has placed a lot of rock, broken concrete and fill, in the gully over the years.

3. There is a 200 mm tile drain located in this gully for approximately one-half of its length on his property.

4. He did not want to have a covered drain installed along this gully because of the rock and broken concrete that has been placed in it.

5. He would prefer to see a drain constructed along the west side of Mawlam Road.

6. Approximately four times per year, water overtops Mawlam Road and flows easterly along the existing ravine.

Mr. Huys, owner of the agricultural lands along the west side of the road in the N½ of Lot 13 and the S½ of Lot 14, Concession 14, indicated that:

1. He did not want a deep ditch constructed on his property along the west side of the road and would prefer to see a tile drain installed either on the Emerick property or along the west side of the road.

2. His property on the west side of Mawlam Road already has subsurface drainage systems installed on it which flow in a westerly direction to outlet into the Jones Drain.

Mr. McCready told the Tribunal that part of the work under the 1996 petition included surveying two potential routes for the proposed drain. The first route surveyed commences at the existing road crossing near the center of the N½ of Lot 13 and proceeded easterly, to outlet into the Sydenham River. The second route was along the west side of Mawlam Road, commencing at the center of the N½ of Lot 13 at the existing road crossing and proceeding southerly, along the west side of the road to an outlet into an existing natural watercourse in the S½ of Lot 13. This watercourse outlets into the Sydenham River.

He said his report of January 27, 1997 proposed a covered drain running directly from west to east along the shortest route across the Emerick property to an outlet into the river. Over the winter of 1996/1997, the river bank exhibited signs of slippage at the outlet of the proposed drain. At the meeting to consider the January 27, 1997 report, council instructed him to prepare a supplementary information report to examine the alternative of an open ditch along the west side of the river road property. After reviewing that report, dated March 6, 1997, with council and the ratepayers, he proceeded with the preparation of a report for the construction of the covered drain along the west side of the river road property. On April 18, 1997, that report was presented to the municipality for the construction of a covered drain along the west side of the river road property. That report was abandoned when all petitioners withdrew their names from the petition.

Subsequently, a second petition was filed with council and Mr. McCready was again instructed to make a further examination and report to council.

Mr. McCready said that after having examined all of the alternatives investigated under the 1996 petition, and having re-examined the existing gully on the Emerick property, he surveyed a third route for the proposed drain. This third route follows along the south side of the existing gully on the Emerick property. The proposed route across the Emerick property has a total length of 160 m compared to a total length of 447 m if the drain were constructed along the west side of the road. He stated it is his opinion that the proposed route, along the south side of the existing gully, is the most practical, effective and is the natural course for the proposed drain. The proposed drain will outlet where the river bank is much lower. This should alleviate most of the concerns that Mr. Emerick had about bank failure due to the height of the bank and the bend in the river.

Mr. McCready said that in order to provide improved drainage to the area requiring drainage, he recommends:

◼ that a 381 mm covered drain be constructed commencing on the west side of the traveled portion of Mawlam Road at the location of the existing road crossing near the center of the N½ Lot 13, Concession 14, and proceeding downstream, south-easterly, along the south side of the filled-in gully on the Emerick property to outlet into the Sydenham River. The covered drain will have a total length of 178 m including the road crossing and will be known as the Huys Drain.

◼ that a new 600 mm x 600 mm concrete catch basin be constructed on each side of the road. The existing 300 mm diameter road crossing will be removed and be replaced by the new covered drain.

He said he designed the drainage works to convey the runoff generated by a storm event having a return period of 1 in 10 years in order to reduce to the greatest extent possible, the flow of surface water in the gully.

The estimated cost to construct the drain is $19,145.33 plus $5,354.67 (costs to prepare reports and meeting relating to 1996 petition) for a total of $24,500.00.

Philip Emerick said he and his wife purchased the property in 1986. There is 12 acres in total, nine of which are pasture land. He said he rents the pasture land for cattle. The property has been fenced to keep cattle from getting close to the river and the fragile part of the river-bank. He said he has planted trees on the property to help reduce erosion. He is concerned that the proposed construction will damage some of these trees. Crown vetch has also been planted to stabilize the top surface. Pieces of rock and concrete have been placed in the gully to cut down on erosion.

Mr. Emerick told the Tribunal that he is not in favor of the drain as proposed. He said he signed the original petition on April 26, 1996 as there was not a proper drainage outlet from the roadside ditch in front of his property. This caused surface water from the east side of the road to drain across the surface of his property. This condition degenerated when the Township placed a culvert under the road surface and provided access for additional surface water from the west side of the road. The frequent flow of surface water from the road ditch across his property not only reduced the use of the property but also contributed to an erosion problem.

Mr. Emerick entered into evidence pictures taken in June 1996 (Exhibit No. 8), July 2, 1997 (Exhibit No. 9) and July 8, 1997 (Exhibit No. 10) showing evidence of flooding over the road. He also entered into evidence photos showing riverbank slippage (Exhibit No. 11) but the Tribunal found it impossible to identify their locations. He said he had concerns about the first engineer’s proposal as it went across his property direct to an outlet on the bend in the river where the bank is susceptible to shearing. This would likely mean a high cost to maintain the bank. He was also concerned that the proposed 15 inch pipe would not be able to accept all of the water. He said he and his wife then withdrew their names from the petition.

He said a second petition was filed which resulted in the August 14, 1998 report. He said he has the following concerns about this proposal:

1. it will still leave him with damaged land, and

2. his water well is down to shale rock and water stands 55 to 60 inches above this in the well. He believes the outlet structure will be 1 to 1.5 feet below the level of the well water. He feels this will put his well in jeopardy.

3. in his opinion there will be erosion problems where the pipe enters the river. He entered into evidence excerpts from a study on erosion on the Thames River. This study expresses views on what happens with regards to unstable banks and recommendations for stabilizing them.

4. he suggested that the magnitude of water cannot be contained by the 15 inch structure specified in the report. He said he does know that an open ditch along the west side of the road with one meter wide bottom will handle all of the water.

5. he suggested there may be soft-shelled turtles inhabiting the area where the proposed outlet will enter the river. He entered into evidence a letter, dated November 30, 1998, from a Biologist with the Upper Thames River Conservation Authority (Exhibit No. 13). Michelle Fletcher is a member of the Eastern Spiny Softshell Recovery Team. In her letter she states that in 1991 the eastern spiny softshell turtle was given provincial and national designation as a threatened species. She also stated that during her visit to Mr. Emerick’s property, November 25, 1998, there was some evidence of a suitable basking habitat for turtles along this section of the river

Mr. Emerick said he does not understand why his assessment is so high when he only has ¼ acre in the watershed; Mr. Huys has 11.25 acres and the roads have 2 acres (or 6 equivalent acres) in the watershed. He does not believe he should be assessed a cut off benefit as other property owners are directing water to his property. He said the drain will not increase the value of his property. In his opinion, those who benefit from the drain should pay more. He feels the property owners should be assessed for benefit and outlet liability in accordance with the acreage drained to the respective drains.

Mr. Emerick called Calvin Lampman as a witness. Mr. Lampman said he has lived on this road for

60 years. He said every time there is a 2 ½ inch rain there is a flooding problem. Natural flow of

the water is from north to south. He said in his area the landowners agreed to let the Township

make thw road ditches deeper, it didn’t cost anyone a lot of money and it does the job. He said he has seen turtles along the Sydenham River and they inhabit the rocks where the river is

shallow.

Bert Huys told the Tribunal he purchased this property in the NE½ Lot 13 in 1995 and has lived on a property in Lot 14, just to the north of Mr. Emerick, since 1970. He is not in favor of an open ditch along the west side of the road. He said he does not presently have a drainage problem. His property has been tiled and outlets into the Jones Drain to the west. Only surface water flows to the road. He said the pictures showing flooding that were put into evidence by Mr. Emerick were taken when the pipe across the road was blocked. The pipe is open now. He has only seen the water flow over the road twice. Mr. Huys said he filed the second petition as he was concerned that an open ditch was going to be put on his property.

In response to questions of the Tribunal, he said he knows there are snapping turtles in the river but he does not know what a softshell turtle looks like. He also said that where the drain will outlet into the river, beside the present gully, the riverbank is low whereas it is higher further north.

Paul Dalton, Road/Drainage/Water Superintendent for the Township, said he became aware of the drainage problem when he had to fix washouts on the road. He said the Road Department made efforts to try to solve the problem but neither landowner wanted the drain on his property. He said he felt the only option was a municipal drain and thus he initiated the first petition which was signed by the Road Department as well as the Emericks and the Huys. He said the Road Department would like to collect the water and take it to an outlet. After the initial petition was abandoned, council had a survey completed to determine the exact extent of the Township property and to investigate which options the Road Department had in diverting its own water.

In response to questions of the Tribunal, he admitted that the Township did consider acquiring extra space and widening the road. However, Mr. Huys and Mrs. Beattie were adamant that they do not want to sell any of their land for that purpose. He also said that if the Road Department is going to collect water, it must handle the water from both sides of the road and take it to a legal outlet.

In response, Mr. Cready told the Tribunal that:

◼ the present outlet tile on Mr. Emerick’s property is buried by broken concrete and fill. In his opinion, capacity of the present drainage system is at least partially blocked.

◼ water coming off the Huys side of the road is essentially sheet flow, as he saw no ditching there.

◼ he does not expect the proposed sealed drain will affect the Emerick well.

◼ increased erosion should not be an issue as the proposed outlet would enter the river at the same section where the present open ditch outlets. The adjoining river bank is only five feet high.

◼ MNR and the Conservation Authority have received copies of the proposed drainage works and notices of meetings. They have not attended nor called with any concerns.

◼ in his opinion, the Thames River study is not directly applicable to this river.

◼ if landowners on the west side drained only their water, landowners on the east side would not have a legal outlet.

◼ he is convinced that a 15 inch pipe will provide adequate capacity for the water, since it will be able to handle the runoff from a 1 in 10 year storm

◼ the proposed drain is a covered drain which will mean reducing sediments in the river, because it will reduce or eliminate erosion of the gully.

◼ construction should not have an impact on the bank of the river so that, if there are soft-shelled turtles in this area, they will not be disturbed by the construction.

◼ in his opinion, construction can be completed without damaging any trees.

◼ he assessed the Huys property 23% of the cost of the drain, the Emerick property 28% and the road property 49%.

◼ the Emerick property receives a definite cutoff benefit in that they will no longer have water

running down the gully thus preventing further erosion on their property.

◼ the proposed drain will provide an improved outlet for both the water that flows there naturally, as well as for whatever water is artificially collected and brought to this location.

◼ the proposal will give the Huys and road properties a legal outlet. The Huys property has tile drains flowing westerly into a different drainage system. Only surface water from his property will flow through the proposed drain.

The evidence presented convinced the Tribunal that the design of the drain is appropriate given the circumstances. Alternative designs were addressed in great detail and considered by council at open meetings with ratepayers. The designs previously considered were discarded for one reason or another in favor of the most direct route as well as the natural route of the water. The proposal is also the one that will require the least maintenance. The Tribunal is satisfied that this is in fact a good solution to the problem.

In addition to his concerns about the proposed drain itself, the appellant also brought forward three additional matters. One of these related to the possible destruction or damage to trees in the course of construction on the Emerick property. The Tribunal urges the engineer to include in his tender documents, a provision that the contractor will be responsible for replacing any damaged or injured trees or providing for an allowance for any trees that are destroyed but cannot be replaced.

The second issue brought forth by the appellant related to the possible presence of eastern spiny softshell turtles in the area of the Sydenham River where the outlet of this drain is proposed to be located. These softshell turtles have been on the threatened species list since 1991. It appears that evidence has been found that these turtles may have laid eggs in the immediate vicinity of the proposed works. The Tribunal recommends to the Township officials that they give two weeks prior notice of the intention of works to the Eastern Spiny Softshell Turtle Recovery Team that has been addressing the concerns of this threatened species. The purpose of this is to give an opportunity to that group to examine the area of proposed construction to ascertain the presence of any turtles or nests with a view of assisting in their relocation to a nearby safe area.

The third issue expressed by the appellant was a concern about the effects that the drainage works would have on the level of water standing in his well. The appellant’s well is within 153 feet or so of the proposed works and his concern is that over the course of time the level of the water in the well would be reduced because of it escaping to the excavation where the outlet pipe from the works comes down to the river. The engineer noted that the pipe is made of high density materials that do not permit entry or escape of water through its walls or connections. Also, he said that over the short term, the areas of excavation around the pipe would solidify and would not provide a means for water from the well to escape into the river. The appellant provided no substantiating evidence either by witness or report that his concerns were valid.

Mr. Emerick took exception to the amount of “cut off” benefit, $6,700, that he was being assessed. The appellants had difficulty in accepting the fact that they were receiving a benefit from this works when they felt that they were not discharging any significant volumes of water into the system and that the works was principally to secure a more efficient outlet for upstream lands. The Tribunal, however, believes that a “cut off” benefit is warranted in this particular situation. It was admitted that there has been substantial erosion on the Emerick property over the years which necessitated the Emericks, and the previous owners of the property, depositing stone and concrete materials in the gully through which the water passed to reach its ultimate outlet in the Sydenham River. While part of this flow of water is certainly artificial, a large part of it is water that would flow naturally in any event. The proposed works include a 15 inch high density polyethylene pipe which is designed to accommodate waters from storms in a 1:10 year return period. This is substantially above the provincial criteria for agricultural drainage works and should provide substantial protection from further washouts on the Emerick property in the event of such storms. The Tribunal also believes that by providing this protection to the Emerick property, it enables the Emericks to partially restore the previously damaged areas and make better use of their property. It should be noted that $1,200 of the assessment against the Emerick property relates to the cost of preparing and dealing with the three earlier reports that were considered and then abandoned. Accordingly, the Tribunal is of the view that the engineer has approached the apportionment of the assessments in an appropriate way. The Tribunal agrees with the rationale that the engineer adopted for calculating assessments.

Order of the Tribunal

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

1. The appeal of Philip and Mary Emerick, under Section 48 of the Drainage Act, be dismissed.

2. The appeal of Philip and Mary Emerick, under Section 54 of the Drainage Act, be dismissed.

3. 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 not persuaded by the evidence that there is a more appropriate solution to the problems in the area than the proposal contained in the August 14, 1998 engineer’s report.

2. the Tribunal was convinced that the engineer calculated the assessments in a fair and appropriate manner.

DATED at Tilbury, Ontario THIS 18th day of December 1998.