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:
Ipperwash Drain Town of Bosanquet
Ipperwash Drain (RE) 1999 ONAFRAAT 17
STATUTE:
Drainage Act
HEARING:
June 24, 1999
July 7, 1999
1999-17
NEUTRAL CITATION:
1999 ONAFRAAT 17
Ipperwash Drain Town of Bosanquet
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF:
An appeal to the Ontario Drainage Tribunal by Carolinian Forest Campground (Sandra Funk) under Section 54 of the Drainage Act from the decision of the Court of Revision on the Ipperwash Drain in the Town of Bosanquet.
Before:
John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Robert McKim, Member.
Appearances:
Fred and Sandra Funk, appellants.
P. K. Meharg, P. Eng., on behalf of the respondent, the Town of Bosanquet.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Town of Bosanquet, Thedford, Ontario, on Thursday June 24th, 1999. Sandra Funk, on behalf of the Carolinian Forest Campground, 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 on the Ipperwash Drain in the Town of Bosanquet.
Section 54 of the Act is as follows:
- (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.
Carol McKenzie, Clerk of the Town of Bosanquet (the Town) performed the duties of the Clerk of the Tribunal.
At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the August 28, 1998 report of P. K. Meharg, P. Eng., on the Ipperwash Drain, Town of Bosanquet, having been served notice of this hearing, are made parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing
The Background
There has been controversy in the Town around the Ipperwash Drain. The Council of the Town and the Kettle and Stoney Point First Nation agreed that the outlet of the drain should be diverted away from the First Nation Territory. On October 29, 1997 the Hon. Noble Villeneuve, Minister of Agriculture, Food and Rural Affairs, declared the diversion of the Ipperwash Drain in the Town as an emergency under the Act. Subsequently, the profile of the Ipperwash Drain was reversed and a diversion channel, pump, storage pond with a restricted outlet to the Duffus Drain were constructed. An engineer’s report detailing the above work was prepared and adopted by the Town. Grants for the project were received from the Government of Ontario and the Government of Canada reducing the local contribution from the total cost of $310,000 to $108,165. The owners of the property known as the Carolinian Forest Campground were aggrieved by the proportion of the cost of the work that was assessed against their land and appealed first to the Court of Revision and then from the decision of the Court of Revision to the Tribunal.
The Issue
The issue before the Tribunal is: are the assessments as proposed in the August 1998 report of Mr. Meharg and modified by the Court of Revision, appropriate?
The Evidence and the Findings
Fred and Sandra Funk are the owners of the property identified as Roll Number 40-217-01 known as the Carolinian Forest Campground. They appealed to the Tribunal for the following reasons:
They believe that each trailer or mobile home in the Carolinian Forest Campground (CFC) is assessed as a residential building when each is a seasonal recreational vehicle that can be moved out of the campground at any time.
The benefit assessment is too high ($8,464),
No outlet value is received from the Ipperwash Drain as there are no actual drains from CFC emptying into the Ipperwash Drain.
One of the CFC buildings was damaged as a result of the changes to the Ipperwash Drain and to this point in time, no repair has been made nor compensation paid.
Mr. Funk told the Tribunal that their total assessment is $10,637 (benefit $8,464, outlet $2,173) or about 10% of the total assessed cost of the project while they only own 8.98 hectares in a watershed area of about 310 hectares. In his opinion this assessment is too high and is not justified by the benefits provided to the property. He told the Tribunal that CFC is a recreational vehicle park. There are 145 developed lots in the campground with 69 units occupied April 15, 1999. He told the Tribunal that he understood the assessment on the property was based on each of these lots being equivalent to a residential lot. He pointed out that the trailers do not have eavestroughs on them and the runoff water from the buildings just runs onto the surface and seeps into the sandy soil. He compared his situation to that of another campground in the watershed known as Our Ponderosa. That lot is 11.33 hectares and is assessed for outlet only to a total assessment of $2,941. He said Our Ponderosa is a larger lot but pays less outlet.
Mr. Eugene Dorey, an assessed owner, told the Tribunal that his lot is on the beach three quarters of a mile from the drain. The water from his lot drains to the beach or the back of the lot and seeps into the ground which is entirely sand. He said there is no way that his water would get to the drain and he should not be assessed. In response to questions from the Tribunal, Mr. Dorey said he had appealed to the Court of Revision but did not appeal the decision of the Court of Revision to the Tribunal.
Mr. Melvin Scrimshaw, an assessed owner, told the Tribunal there is a high point on Richardson Drive. On one side of the high point the water runs to the Lake. On the other side it runs to the Ipperwash Drain. He said his land was on the side that drains to the Lake so he should not be charged for this work. He said he had not appealed to the Tribunal.
Mr. Stewart Smith, assessed owner, told the Tribunal that Richardson Drive, which runs south from the Lake and at right angles to it, has two high points. His property has been in his family’s possession since 1954 and has never been flooded. However, since the construction of the drain, the watertable has been lowered and his fruit trees now require watering where they did not before. He said he is six to nine hundred feet from the new ditch.
Mr. Jim DeZorzi, Councillor for the Town spoke on behalf of the residents of Foster Crescent. He told the Tribunal that the residents of Foster Crescent had suffered from a high watertable and petitioned for drainage in 1996. A drain was constructed in the subdivision to outlet into the Ipperwash Drain. This drain now appears to have been unnecessary since the improvement to the Ipperwash Drain, but the residents have already paid for it and therefore should not be assessed benefit for the work on the Ipperwash Drain. He said the residents recognize they will be assessed for outlet.
Mr. Meharg told the Tribunal that be broke the project into the following sections:
Upstream channel improvements $ 4,345
New cut open channel $ 8,026
Pump station $ 65,979
Outlet works downstream of pump station $ 29,815
TOTAL $108,165
He told the Tribunal that the lowering of the water level in the facility through the new cut open channel construction and the provision of a more reliable outlet through pumping was a benefit to most of the lower lands within the drainage area. It not only provided easier outlet access, but also lowered the ground watertable level, which historically has been fairly high. He said that the lands in general to the east (new downstream) benefit more than lands to the west. A weighting system (1 to 5 west to east) was devised to account for this difference in benefit. Lands above elevation 185.000 metres geodetic were deemed to not benefit from the improved outlet but were assessed for outlet. He used equivalent acreage based on runoff coefficient to assess the properties for both outlet and benefit.
Mr. Meharg told the Tribunal that:
The outlet works downstream of the pump station ($29,815) were assessed as outlet assessment.
The cost of the pump station ($65,979) was assessed as a benefit assessment.
The new cut open channel cost was assessed in the same manner and proportions as the pump station and outlet works. $2,498 was assessed to outlet and $5,528 was assessed to benefit (total of $8,026).
The upstream channel improvements cost ($4,345) were assessed 2/3 to benefit ($2,896) and 1/3 to outlet ($1,449).
The benefit assessments were weighted so that low lands to the east were charged a higher rate than the higher lands to the west. Outlet assessments were weighted to account for the length of the drain the assessed property used.
Property designated as special (wetlands) conservation land was not assessed any benefit assessment.
Mr. Meharg took the Tribunal through an assessment calculation for the CFC property and said that he had applied this same method consistently throughout the project. He told the Tribunal that he had established the watershed boundary for the project based on his best judgement. He said that some of the lots along the lakefront drained both to the Lake and to the Ipperwash Drain. He assessed only that portion of these lots that drain to the Ipperwash drain and none of these owners had appealed to the Tribunal as a result of this assessment.
The Tribunal examined the evidence presented and submissions made. The submissions of the assessed owners who did not appeal to the Tribunal were heard. The Tribunal notes that the engineer established the watershed boundary. The owners who spoke to the Tribunal agreed there was a height of land on Richardson Drive and some of the land would drain to the Ipperwash Drain and some to the Lake. The precise amount of land draining toward the Ipperwash Drain was not established other than by the engineer. The Tribunal accepts the engineer’s evidence on these issues. The Tribunal also notes that none of these other owners had appealed to the Tribunal, although advised of their opportunity to do so by the Clerk of the Town when the decision of the Court of Revision was mailed. Therefore, the Tribunal did not decide these issues.
Since the Tribunal has no authority to deal with consequent damages, it was unable to consider the appellants’ concern about damage to one of their buildings, as a result of the work being carried out. However, there are other avenues available to the appellants if this matter cannot be resolved directly between them and the Town.
The Tribunal commends the engineer for the detailed explanation of the method of assessment of this unique project. The Tribunal finds no fault in the assessment approach used by the engineer, However, when the Tribunal applied a “fairness test” it came to the conclusion that the proposed assessments against the appellant impose a substantially disproportionate burden in the form of a benefit assessment. The fact that this land borders on the altered drain did not bring additional new benefits over what the old drain provided commensurate with the amount of the benefit assessment levied against this property, although it will, in fact, lower the watertable on the property. In the opinion of the Tribunal, a share of the benefit charged on this lot should be charged as outlet to the watershed. The Tribunal directs that the benefit assessment against parcel 40-217-01, Fred and Sandra Funk, should be reduced by $3,000 and this sum added to the outlet assessment of all the land in the watershed including the land of the appellant on a pro rated basis.
Although the appellants gave evidence that they have no actual drains emptying into the Ipperwash Drain, the Tribunal is of the opinion that the work will provide a much improved outlet, should the appellants decide to improve the drainage of their property, and as a result, an outlet assessment on the property is entirely appropriate.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The appeal of Fred and Sandra Funk is granted as hereinafter set out.
Before passing By-law 65 of 1998 the Clerk of the Town of Bosanquet is directed to reduce the benefit assessment against parcel 40-217-01, Fred and Sandra Funk, by the sum of $3,000.00. The sum of $3000.00 is to be added to the outlet assessment of all the land and roads assessed for the Improvements to the Ipperwash Drain, including the land of the appellant, on a pro rated basis.
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, while the method used by the engineer in developing the schedule of assessment is appropriate in the circumstances, in the opinion of the Tribunal, the actual benefit assessment proposed to be levied against parcel 40-217-01, Fred and Sandra Funk, was too high and the proportion of the cost of the project charged to outlet over the watershed was somewhat too low.
Dated at Tilbury, Ontario this 7th day of July, 1999.