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:

Branch A Grasby Municipal Drain Repair, Improvement and Extension Township of Morris

Branch A Grasby Municipal Drain Repair, Improvement and Extension (RE) 1998 ONAFRAAT 56

STATUTE:

Drainage Act

HEARING:

December 7, 1998

DATE OF DECISION:

December 24, 1998

1998-56

NEUTRAL CITATION:

1998 ONAFRAAT 56

Branch A Grasby Municipal Drain Repair, Improvement and Extension Township of Morris

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 Glenn and Arlyn Montgomery under Sections 48 and 54 of the Drainage Act from the February 1998 report and the June 25, 1998 amended report of Andrew McBride, P. Eng., and from the decision of the Court of Revision with respect to the Branch A Grasby Municipal Drain Repair, Improvement and Extension - 1998, Township of Morris.

Before:

Vernon Spencer, Chair; Andrew Wright, Vice-Chair; Karen Ratcliffe, Member.

Appearances:

Glenn and Arlyn Montgomery, appellants.

Jim Hunter, Fred Meier, Ken Marks, assessed landowners.

Andrew McBride, P. Eng., on behalf of the respondents, the Township of Morris.

Bert Elliott, Reeve of the Township of Morris.

Jim Campbell, Councillor for the Township of East Wawanosh.

DECISION OF THE TRIBUNAL

This appeal was heard Monday, December 7, 1998 in the Council Chambers, the Township of Morris (the Township), Brussels, Ontario. Glenn and Arlyn Montgomery appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act from the February 1998 report and the June 25, 1998 amended report of Andrew McBride, P. Eng., and from the decision of the Court of Revision with respect to the Branch A Grasby Municipal Drain Repair, Improvement and Extension - 1998 (Branch A Grasby Drain), Township of Morris.

Nancy Michie, Clerk-Treasurer of the Township, performed the duties of the Clerk of the Tribunal.

Section 48 of the Act is as follows:

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

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 parties to this hearing all landowners assessed or compensated in the February 1998 engineer’s report and the amended June 25, 1998 engineer’s report on the Branch A Grasby Drain, Township of Morris. Proof was filed with the Tribunal that all parties had been served with notice of this hearing.

The Background

The Township received a petition from James and Mary Hunter, owners of Lot 42, Concession 7, East Wawanosh Township in June 1996. This petition requested an improvement and extension of the closed portion of Branch A Grasby Drain. Upon receipt of this petition, council instructed the preparation of an engineer’s report.

The firm of Maitland Engineering Services Ltd. was requested to prepare a report on the drain under Sections 4 and 78 of the Drainage Act (the Act). Andrew McBride, P.Eng., was designated by this firm as the engineer in charge of the project.

Branch A of the Grasby Municipal Drain was created in 1908. This drain has been the subject of three further reports since that time and a major repair in 1982. The drain now consists of an open portion from its confluence with the main drain at the midpoint of Lot 3, Concession 6. From that point upstream to the east side of Highway #4, the drain consists of a portion of twin eight inch tiles for approximately 167 metres and a single eight inch tile for approximately 244 metres.

A preliminary report was completed in late February 1997. Three options were proposed as follows:

1. the construction of an upstream extension of the open drain across Lot 1 to Highway #4;

2. the construction of a grassed waterway and small tile solution; or

3. the construction of a large tile solution (five-year design).

These options were designed to accommodate the runoff from a five-year storm event and provide underdrainage outlet. Option 2 was selected, by council, at the meeting to consider the Preliminary Report, with the provision that the grassed waterways be consolidated and shortened as much as possible across Lot 1. A final report, dated February 1998, was then prepared.

The contributing drainage area of the closed portion of Branch A was originally established in the 1908 engineer’s report. The February 1998 report recognises a larger drainage area in Lot 42, Concession 7 of East Wawanosh Township than was identified in the 1908 original report. The contributing area increased from 19.4 hectares, or 48 acres, to 26.3 hectares, or 65 acres, based on detailed topographic mapping. The Branch A drainage area is further adjusted under this report to include surface water only from the upstream portion of the Hunter Municipal Drain area. The topography within this enlarged area varies from gently to moderately sloping with actual ground surface slopes ranging from less than 0.5% to more than 3%.

The entire area consists of Harriston Loam, a medium textured till with good natural drainage. The land in this area is used for agricultural purposes, mainly the production of cash crops.

The existing drainage situation is as follows:

1. the flow of surface water across Lot 1, Concession 6, Morris Township from the west is of major concern to the current owners;

2. a berm, constructed when Highway #4 (now Huron County Road #4) was reconstructed in 1992, causes backup of water onto the Highway property and the lands upstream thereof;

3. the berm obstructs at least 75% of the end area of the surface culvert near the intersection of Huron County Rd. #4 and the road allowance between the 6^th and 7^th concession of East Wawanosh Township;

4. the berm obstructs 100% of the end area of the culvert located northerly of that intersection;

5. as a result of the berm, the outlet for surface water from the upstream lands is restricted to the original 1908 eight inch tile and the six inch private tile located along the east Highway ditch line;

6. a significant portion of the surface water flow originates from the lands in the upstream part of the Hunter Municipal Drain watershed;

7. the upstream 210 metres of the open portion of this drain, in Lot 2, Concession 6, requires a bottom-only cleanout to provide good outlet for the existing tile drain;

8. Huron County Road #4 (formerly Highway #4) which passes through this drainage area was reconstructed in 1992 creating significant changes to the road drainage facilities.

The plan of the proposed new drain is attached to and forms part of this decision.

The Issue

There are three issues before the Tribunal:

1. Are the assessments as proposed in the amended June 1998 engineer’s report on the Branch A Grasby Drain, Township of Morris and confirmed by the Court of Revision appropriate?

2. Should the Tribunal confirm the allowances as proposed in the amended June 25, 1998 report?

3. Should the Tribunal order that Glenn and Arlyn Montgomery receive compensation for repairs made by them to the drain and for damages that occurred when the Township repaired the drain in 1982?

The Evidence and the Findings

Andrew McBride, P. Eng., told the Tribunal that design considerations were: capacity of the existing tile; underdrainage outlet requirements; surface water quantities and flow routes; the berm; consolidation of surface flow at the middle culvert; channel(s) required for surface water flow across Lot 1; and possible detention in Lot 42, Concession 7. A drainage co-efficient of 12.7 mm or ½ inch in 24 hours was used to determine the minimum underdrainage outlet requirements for the new tile drains proposed in this report. In addition, the Goderich five-year return period rainfall event was used for calculations relating to surface water flows.

He said he designed a grassed waterway that would conduct the surface water from the middle culvert to the open drain. However, these design procedures were abandoned when Mr. Montgomery, subsequent to the meeting to consider the preliminary report, made it very clear he was adamantly opposed to the construction of a grassed waterway on his property. He said Mr. Montgomery indicated he was prepared to allow surface water to flow across his property from the middle culvert to the open drain but would not accept the construction of a grassed waterway.

Mr. McBride said the proposed work:

1. redirects the increased flow of surface water to the middle culvert under the highway;

2. lowers a portion of the berm to allow better surface drainage, and

3. provides for the installation of tile and culvert pipe with appropriate catchbasins and junction boxes.

Mr. McBride said that due to Mr. Montgomery’s adamant objection, the construction of grassed waterways has not been included in the report. Surface waterways are created as part of Branch A of the Grasby Municipal Drain. These waterways are to be monitored by the Township of Morris. Major maintenance of the surface waterways across Lot 1 is considered as maintenance of the drain.

Council and landowners considered the February 1998 engineer’s report at a meeting on April 14, 1998. By letter dated May 13, 1998, council gave Mr. McBride instructions about the report. As a result, he made amendments to the location of some features of the proposed drain and to the length of tile to be constructed in an amended report dated June 25, 1998.

Mr. McBride said the amended report was considered by council and landowners on July 14, 1998. The Court of Revision was held August 13, 1998. The Montgomerys appealed to the Court of Revision.

The Court of Revision denied their appeal. He said the Montgomerys then proceeded to file an appeal to the Tribunal. In an effort to avoid a Tribunal hearing, the Reeve of Morris Township, and a Councillor, met with the Montgomerys to see if they could negotiate an agreement. On September 10, 1998, an agreement was signed between the Montgomerys and the Township. Mr. McBride said on that basis council instructed him to put the project out to tender. The lowest bidder proposed to do the work in early summer of 1999. This was of concern to the Montgomerys as they understood the work would be done in 1998. This is consistent with the Township’s understanding of the settlement agreement as described by Reeve Bert Elliott in his evidence later in the hearing.

On October 13, 1998, council invited all of the affected landowners to a meeting to consider this matter. Only one of the contractors was prepared to guarantee completion of the project in 1998 and that contractor’s price was over $5,000 more than the lowest bidder. Council made the decision to accept the lowest bid despite it being at odds with the settlement agreement. The Montgomerys then proceeded with their appeal to the Tribunal.

Mr. McBride said the Township completed some repairs to the drain in 1982 under Section 77 of the Act. The last assessment schedule that had been completed for this drain was in 1908. The Township followed that assessment schedule in assessing costs for the 1982 repairs. Mr. Montgomery objected to the assessment - an objection that has continued for 16 years and still causes him concern. He said that Mr. Montgomery is also concerned about the old section of the drain that wasn’t replaced during the 1982 repair, which he says also means he now has no outlet for some of his tiles. Thus Mr. Montgomery feels he should receive some compensation for the mistakes made in 1982.

In response to questions of the Tribunal, Mr. McBride said that:

1. the main difference between a “grassed waterway” and a “natural surface waterway” is that the surface waterway is not vegetated nor is it constructed to a certain width and depth, it is just a natural low area running through a property;

2. originally he proposed that maintenance of the waterway be the responsibility of Mr. Montgomery. However, in the June 25, 1998 amendment he provided that any major maintenance of the surface waterways across Lot 1 be considered as maintenance of the drain under the terms of the Act, with the Township Drainage Superintendent’s opinion being final;

3. the changes made to the drain in 1982 commenced at Station 0+000 and continued to Station 0+248.

In his opinion, this was an improvement without an engineer’s report as opposed to maintenance or repair.

In response to questions of the Tribunal concerning his assessment reasoning for the proposed new 600 mm culvert which the County is going to install, Mr. McBride said:

1. if the road was not there, in order to bring water from the north to the middle culvert, he would have been able to construct a ditch. The estimated cost of the ditch is $6,600. He said in his view if the ditch diverted water it would provide benefit by “cut off” to Lot 1, the Montgomery property;

2. Lot 42, the Hunter property, would benefit as water would be carried away from this property to an

area where it could be conducted away more readily.

Thus he assessed 1/3 of the cost of the hypothetical ditch to Lot 1 as “cut off” benefit, 1/3 of that cost to Lot 42 as benefit and the last 1/3 of the $6,600 ditch costs was assessed to upstream landowners as outlet assessment. The balance of the $19,000 actual cost, he considered extra costs of supply and installation of the culvert due to the existence of the road. Thus these costs he charged to the road authority under Sections 24 and 26 of the Act.

Arlyn Montgomery, appellant, said she and her husband, Glenn, are the owners of Lot 1. They are asking the Tribunal to issue an order directing the Township to:

1. assess the lands in the Hunter Municipal Drain watershed for a portion of the cost of the 1982 work on the Branch A Grasby Drain;

2. compensate them for the lack (since 1982) of an outlet for their private drains;

3. pay their assessed cost for the 1998/99 repair of the Branch A Grasby Drain from Station 0+000 to Station 0+248;

4. compensate them at a rate of $600 per acre for crop damage;

5. compensate them for reduced crop yields (because of soil compaction, stones and subsoil) in the three years following the drain installation; and

6. remove their assessment for any of the cost of the 600 mm steel culvert to be installed on the west side of County Road #4.

She said their farm has never been compensated for surface water which flows from the Hunter Drain watershed across their farm by way of the Wightman Drain and culverts under County Road #4. She said that in 1982, the plugged portion of the Branch A Grasby Drain on their farm was supposed to have been repaired but the stakes were put in the wrong place (the appointed Township representative was not present at the site until all of the tiles were in the ground), thus the drainage contractor installed a new portion of 16 inch and 18 inch tile further south than where the drain should have gone, cutting off a portion of the easterly end of the Branch B Grasby Drain, cutting off the private drains between the new portion and the existing plugged Branch A Grasby Drain and still not providing an outlet for their private drains flowing from the north into the plugged portion of Branch A Grasby Drain. The original plugged twin eight inch tile rows were cut off so that all the water from the upper portion of the drain was diverted into the new or repaired portion. She said the surface water from the upper watershed ends up in the repaired portion of the Branch A Grasby Drain and those properties were not assessed for having their water go through that drain, and did not pay for any of the costs of the 1982 installation or of any repairs since then.

She said now the engineer’s report proposes that the original twin eight inch portion of the Branch A Grasby Drain (Station 0+000 to 0+248) drain be replaced by 300 mm tile with their farm paying 1/3 of the cost, Morris Township paying 1/3 and the final 1/3 being split amongst other landowners in the watershed. Since the surface water for these properties enters the Branch A Grasby Drain through the Wightman Drain, and since those farms were not assessed for the 1982 repair, the Montgomerys feel that the 1998 apportioning of cost for the Branch A Grasby Drain is unfair. In the Montgomerys’ opinion, the five other landowners plus East Wawanosh Township should be assessed retroactively for the 1982 drain repair and that they should bear the total cost of the 1998/99 repair of the drain from Station 0+000 to 0+248. In their view, they are having to pay twice - once in 1982 and now for the same acres which would not now need to be tiled if the 1982 work had been properly installed. She said that since 1982, they have not had a proper outlet for their private drains. She said in 1982, they tried to repair the blowouts, at their own expense, along the twin eight inch tiles to try to get some of the water away from their private drains. They also had to install additional private drains near the east part of the property to try to drain that land. She told the Tribunal that they approached Morris Township council numerous times at meetings but with no success. In their opinion, if the 1982 tiles had been installed correctly, they would not have had to do all this repair work. Therefore, they feel they should be compensated for not having a proper outlet for their private drains since 1982. It is their opinion they should be compensated $1,400 for costs they have incurred.

She said it is also their opinion that they should receive an allowance of at least $600 per acre for crop damage. The June 25, 1998 amended engineer’s report only allows them $400 per acre for damage to existing crops. They feel there will be significant crop damage as the drain will be installed during the summer of 1999, when crop is on the field. If there are specialty beans, the crop could easily be worth $700 to $800 per acre. She said that soil compaction from heavy machinery and trucks will also reduce crop yields in the drain working area for at least the next three years. She said that severe compaction along the access route used by trucks and machines to travel from their laneway to the drain working area will adversely affect crop yields along that route as well. She said that subsoil and stones mixed with the topsoil along the drain will also cut crop yields in later years. Therefore, they feel that the allowance per acre for soil damage should be at least $600 as in the February 1998 engineer’s report, with additional allowances for the next three years for crop loss due to soil compaction and soil damage for the full working area and access route.

Mrs. Montgomery stated that their private tiles could be damaged by the heavy equipment during construction. This damage may not show up for some years. She wishes such anticipated damage to be taken into account.

She said they are being assessed $2,200 toward the cost of the 600 mm steel culvert to be installed on County property on the west side of Huron County Road #4. She said the engineer estimates that this culvert will divert the flow of half of the surface water from where it presently goes to a point further south. However, this means that at least half of the surface water will still flow across their property from the north culvert. She said that since the north culvert is larger than the proposed 600 mm steel culvert, during times of heavy runoff, more water will flow to their property. In fact, if the berm is lowered, there should be even more water coming onto their property than there is now. She said that since the 600 mm steel culvert is upstream from their property they will have no water going into that culvert and since that culvert will not stop surface water from flowing across their property they do not feel they should be assessed for any of the cost of that culvert.

Mr. Montgomery said they did not want the open ditch solution as it would leave them with two small pieces of land that could not easily be tilled. He said he rents his land to a tenant farmer who wants to plant beans in 1999. He said the berm was built at the fence line when the road was reconstructed. It was an agreement between themselves and MTO. They did not do anything with the south berm however he did admit that the north part of the berm may be raised a little higher.

In response to questions of Mr. McBride, the Montgomerys responded they have repaired a number of tiles over the years as they felt they could do the repairs for less money than the Township.

Mr. McBride asked questions about the settlement agreement and then asked the Montgomerys if they thought it was fair that they should be allowed damages for crops having negotiated a settlement that involved completion of the project after the 1998 crop was off when there would be no crop damage. Mr. Montgomery explained that the settlement agreement was a comprehensive negotiated settlement of all of his issues and concerns and that if Mr. McBride chose to focus only on the allowances he was ignoring the many other issues that were part of the compromise and the settlement.

In response to questions from the Tribunal, Mr. Montgomery stated that when they purchased this property they were aware that there were some drainage problems. He said when they signed the agreement with the Township on September 10, 1998 the drain was to be put in this year while no crops were on the field. He does not understand why the Township backed out of the deal. Council could have chosen to take the second bid which was only $3,500 more than the lowest bid and the drain would have been installed this December. If the drain is installed next summer, they would have more crop losses.

He said there are two issues concerning him about the flooding occurring on his property. First, the

16-year old problem they have is related to the 1982 repair. Instead of a repair, it was a new line of tile with lack of proper outlet, blow outs, etc. Second, the flooding problems have accelerated since the reconstruction of the highway. Mr. Montgomery said that at the on-site meeting he did not agree to being assessed for 1/3 of the cost of the repair of the Branch A Grasby Drain from Station 0+000 to 0+248.

Mr. McBride responded to the Montgomerys’ concerns by stating that:

1. The cost of the work done in 1982 was assessed in accordance with the then current By-law, being the 1908 assessment schedule. He said he had no authority to change assessments 16 years after the work has been done on a municipal drain, especially when the assessments were properly imposed at the time in accordance with the Act.

2. At the on-site meeting on April 23, 1998, Mr. McBride believed it had been agreed by all affected parties that the cost of the work on the repair of the Branch A Grasby Drain from Station 0+000 to 0+248 would be distributed as follows: 33.3% to Lot 1 as a benefit and 66.7% to all upstream lands and roads as an outlet assessment. He said in his opinion this assessment is fair and reasonable to all parties.

3. He said his February 1998 engineer’s report had an allowance for crop damage of $600 per acre to the Montgomerys. Upon reviewing crop values in May and June 1998, it is his opinion that $400 per acre is more than adequate to cover crop input costs for 1998, therefore this is the allowance given in the June 25, 1998 amended engineer’s report.

4. Despite the Montgomerys assertion that the settlement took into account a number of issues, in his opinion, requesting excessive crop damage allowances and then demanding that the work be done when no crop will be damaged is unfair.

5. He said the damage allowances provided in the report include an amount for reduced production in the two years after construction for a four metre wide working space, where the more intensive construction activity will take place. This allowance has been provided at a rate of 2/3 of the initial amount, that is $266.67 for the first year after construction and at a rate of 1/3, or $133.33, for the second year after construction.

6. He said the Montgomerys’ property is being assessed a “cut off benefit” for the 600 mm steel culvert to be installed on the west side of County Road #4. The culvert will conduct surface water from the west side of County Road #4 southerly to the Hunter Branch. Diverting this flow will protect that portion of the Montgomery property between Stations 0+658 and 0+408 on Branch A and will allow it to access the larger tile on the Hunter Branch. The assessments made to the lands in the drainage area were based on the cost of an open drain, rather than a pipe, as follows: $2,225 to Lot 1; $2,225 to Lot 42, Concession 7; and $2,230 to the lands upstream of the road within the north sub-drainage area. The balance of $19,035 was assessed to the County Road in accordance with Sections 22 and 26 of the Act.

7. He said he is unable to compensate the Montgomerys in the engineer’s report for the lack, since 1982, of an outlet for their private drains.

In response to questions of the Tribunal as to how he arrived at the $400 per acre crop damage figure, Mr. McBride said he contacted Brian Hall, OMAFRA soils & crops specialist and was provided with input costs for corn, soybeans and black beans. He said with fluctuating markets it is difficult to estimate the value of a crop at harvest. For example, last fall corn was $4 per bushel; now it is $2.80 per bushel. He said he considered the “input cost” information and rounded the figures up to $400 per acre.

Bert Elliott, Reeve of Morris Township, told the Tribunal that when council was presented with Mr. & Mrs. Montgomery’s appeal at their September 8, 1998 meeting, it was the feeling of council that due to costs involved with a Tribunal hearing that council would meet with the Montgomerys. He said that he and Councillor McLellan met with the Montgomerys on September 10, 1998 and they came to an agreement and the Montgomerys were to withdraw their appeal to the Tribunal. He said when the agreement was signed, it was the Montgomerys’ and the Township’s intention that the drain be completed in 1998.

In response to a question from Mr. Montgomery as to why council did not choose the contractor who could construct the drain this year, Mr. Elliott said it was council’s opinion that all landowners would benefit financially by accepting the lowest tender. One contractor said he could construct the drain in December for $3,500 more than the lowest tender but normally weather conditions in December would not be suitable.

In response to questions of the Tribunal, Mr. McBride admitted that the proposal for a “surface waterway” instead of a grassed waterway is not as good but is workable. He said that Mr. Montgomery was adamant that a grassed waterway not be placed on his property.

Jim Hunter, assessed landowner, said he has owned the 100-acre parcel of property since July 1965 and purchased an additional 50 acres in 1974. He said he experiences flooding, especially in the spring. He did not have a problem before the highway reconstruction when the berm was built. He said the berm causes water to back up on his property. At the April 23, 1998 on-site meeting, he thought the assessed landowners had an agreement to replace the tile and share the cost three ways. He said he is in agreement with the June 25, 1998 amended engineer’s report.

Fred Meier, assessed landowner, said he has owned the north part of Lot 42, Concession 6, since 1979. He said he does not experience flooding on his property. He said he is satisfied with the June 25, 1998 amended engineer’s report. His recollection of the discussion with Mr. Montgomery concerning costs for the repair from Station 0+000 to 0+248 was that Mr. Montgomery did not think it was fair but that he would agree to a 1/3 assessment, the Township 1/3 and upstream owners paying 1/3.

Ken Marks, assessed landowner, said he is in agreement with the June 25, 1998 amended engineer’s report. He does not believe he should pay for something that happened in 1982.

Jim Campbell, Councillor for East Wawanosh Township, spoke on behalf of East Wawanosh ratepayers. They are in agreement with the June 25, 1998 engineer’s report and do not feel the Tribunal hearing was necessary. In his opinion, ratepayers in East Wawanosh should not be assessed any of the costs associated with the Tribunal hearing.

In summation, the Montgomerys said that they agree with the drain design. Their dissatisfaction lies with the division of costs and their assessment in particular. In their view, the 1982 mess was and remains the responsibility of Morris Township and its engineer.

In his summation, Mr. McBride suggested that the Tribunal may not be able to rule on issues pertaining to the 1982 repair. He asked the Tribunal to uphold the June 25, 1998 amended engineer’s report. He has some concerns about the proposed drain but given the circumstances this is the best solution that could be reached. With respect to costs, he asked the Tribunal to bear in mind that considerable costs have been incurred by having this hearing.

The Findings

The Montgomerys have asked the Tribunal for relief concerning issues related to the 1982 repair of the drain. The Tribunal has sympathy for the problems the Montgomerys have experienced, however, the Tribunal finds itself with no authority within the Act to deal with these matters. The Tribunal noted, however, that there were other remedies which the Montgomerys could have pursued at that time.

Of concern to the Montgomerys is the value of crop damages allowed in the June 25, 1998 amended engineer’s report. In the February 1998 engineer’s report, an allowance figure based on crop values of $600 per acre was used. This appears to have created expectations in the minds of the appellants. In the June 25, 1998 amended report, the allowance figure was reduced to $400 per acre. Evidence presented to the Tribunal was that the engineer changed the allowance figure to $400 per acre based on input costs. In the opinion of the Tribunal, the method used by the engineer in arriving at his June 25, 1998 allowance per acre is unusual. In the experience of the Tribunal, the common practice is to use “crop value” as an allowance figure rather than “input costs” for a crop. The Tribunal was not presented with any evidence on average crop values in Huron County. In the absence of any evidence to dispute this figure, the Tribunal accepts the allowance of $600 per acre, a figure arrived at by the engineer in the February 1998 report based on crop value.

When considering damage allowances under Section 30 of the Act, the Tribunal wishes to give some general guidance as to an approach.

Section 30 of the Act reads as follows:

30. The engineer shall determine the amount to be paid to persons entitled thereto for damage, if any, to ornamental trees, lawns, fences, lands and crops occasioned by the disposal of material removed from a drainage works and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1980, c. 126, s. 30.

The Tribunal recommends that the following principles be used by the engineer when approaching an issue of allowances under Section 30 of the Act::

1. Damage allowances are allowances provided to property owners for impacts to lands and crops related to drainage construction projects. The allowances for damages to lands and crops occasioned by the disposal of material is not related to the permanent loss of land but rather the temporary disruption in the productivity or use of the affected lands.

2. The first factor an engineer should consider when estimating the rate per hectare is the value of the type of crops planted and what the loss of the value of the crop will be in the first year.

3. The second factor is what type of long-term damage may be caused to the land and what effect the drainage construction work will have on crop production over the next few years. During the first year, the actual loss to the property owner will depend on the time of the year that the construction is carried out. If the property owners knew exactly when the work would be carried out they could take efforts to minimise their losses. This is difficult to do since no one can predict exactly when the work will be carried out due to delays caused by processing the report under the Act, appeals and weather conditions. Therefore, in the opinion of the Tribunal, it is best to assume a total loss of crop on the affected area at the time of construction, when calculating the allowances.

4. For tile drain installations, depending on the soil type, the damages to the lands and crops are generally limited to the construction year except for the trench area where there may be some long-term damage. For tile drains installed by a trenching machine the longer-term damage at the trench is not significant. In unstable soils or deep cut conditions, where the trench will be wide, some additional allowance for long-term damage may be warranted.

5. The engineer’s report should specify the width of the working corridor and based upon it, an allowance per metre length of drain can be developed.

With respect to assessment for the cost for the 1998/99 repair of the Branch A Grasby Drain from Station 0+000 to 0+248, the Tribunal relies on the opinion evidence of the engineer rather than an on-site agreement. At the on-site meeting, there was a suggestion of 1/3 benefit assessment to the Montgomerys, 1/3 to the roads and 1/3 to upstream landowners as outlet assessment. In the opinion of the engineer this is a fair assessment. The Tribunal accepts the explanation of the engineer.

The Tribunal was convinced by the evidence presented that the 600 mm steel culvert to be installed on the west side of County Road #4 will provide a “cut off” benefit to the Montgomerys. In the opinion of the Tribunal this is a classical case of benefit by cut off. The Tribunal agrees with the assessment of the engineer.

The Tribunal applauds the Township for negotiating with the Montgomerys and arriving at a settlement in order to avoid a hearing. However, the Tribunal does not understand why the Township then reneged on that agreement. Evidence before the Tribunal was that the agreement between the Township and the Montgomerys was that the construction work was to be completed in 1998, after the Montgomerys’ crop had been harvested. In keeping with this agreement, the Township could have called for tenders from contractors with the stipulation that the construction work was to have been completed in 1998, sometime after the Montgomerys’ crop had been harvested. In the opinion of the Tribunal, the cause of this hearing was council’s failure to accept the tender that guaranteed the work would be done in 1998 or to stipulate in the tender call that the work had to be done in 1998 so council could comply with its agreement with the Montgomerys. It is the Tribunal’s opinion that this hearing could have been avoided. The drainage works, in the opinion of the Tribunal, should not bear the cost of this hearing. Therefore the Tribunal directs that the non-administrative costs of this hearing be borne by the Township of Morris.

Order of the Tribunal

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

1. The crop damage allowance in the amended June 25, 1998 report be adjusted to $600 per acre and the additional cost resulting from this adjustment is to be prorated over the assessment schedule using the total assessment against each property as shown in Appendix A.

2. The appeal of Glenn and Arlyn Montgomery, under Section 54 of the Drainage Act, be dismissed.

3. The request of the appellants that the Tribunal order that they receive compensation for repairs made to the drain in 1982 be dismissed as the Tribunal finds itself without authority to deal with these issues.

4. Charges for preparation and attendance at the hearing by Mr. McBride shall not form part of, or be added to, the cost of the drainage works. The Township’s costs for this hearing shall be borne by the Township of Morris and be paid out of the general fund of the Township.

5. It is ordered that there be no other order as to costs and all parties are responsible for and should pay their own costs.

The reasons for this decision are:

1. The Tribunal was convinced that the engineer did not use commonly accepted practices when calculating the allowances per acre for crop damage.

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

3. The Tribunal does not have any authority to order changes to the repairs made to the drain in 1982 or the subsequent assessment of costs.

4. In the opinion of the Tribunal, this hearing should have and could have been avoided if the Township had not reneged on the agreement reached with the Montgomerys. Therefore, the ratepayers on the Branch A Grasby Drain should not have to bear the Township’s cost of the hearing.

DATED at Chatsworth, Ontario THIS 24^th day of December 1998.