Norman DeMeyer v. Township of Plympton, 1999 ONAFRAAT 18

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

O’Brien Drain Township of Plympton

O’Brien Drain (RE) 1999 ONAFRAAT 18

STATUTE:

Drainage Act

HEARING:

June 23, 1999

DATE OF DECISION:

July 7, 1999

1999-18

NEUTRAL CITATION:

1999 ONAFRAAT 18

O’Brien Drain Township of Plympton

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 Norman DeMeyer, on behalf of 1062010 Ontario Ltd. Camlachie, Ontario, under Sections 48 and 54 of the Drainage Act from the January 8, 1999 engineer’s report and from the decision of the Court of Revision with respect to the O’Brien Drain in the Township of Plympton.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Robert McKim, Member.

Appearances:

Paul Beaudet, counsel to the appellant, Mr. DeMeyer

Wm. Graham, P. Eng., on behalf of the respondent, the Township of Plympton

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Plympton at Reeces Corners, Ontario, on Wednesday, June 23^rd^, 1999. Norman DeMeyer, on behalf of 1062010 Ontario Ltd., appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the January 8, 1999 engineer’s report of T. Wm. Graham, P. Eng., and from the decision of the Court of Revision with respect to the O’Brien Drain in the Township of Plympton.

Section 48 of the Act states:

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.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1990, chap. D.17, s. 48.

Section 54 of the Act states:

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.

Archie McKinlay, Administrator-Clerk of the Township of Plympton (the Township), performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed in the January 8, 1999 report of T. Wm. Graham, P. Eng., on the O’Brien Drain, Township of Plympton, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

At the outset of the hearing Mr. Paul Beaudet, counsel to the appellant, clarified that the only issue before the Tribunal was that of assessment and the appeal under Section 48 was not being pursued.

The Background

The O’Brien Drain has its head at the junction of Hyslop Line and O’Brien Road. From there it runs north on the east side of O’Brien Road, within the road allowance, across County Road 7, across Egremont Road to its outfall into Lake Huron. The section of the O’Brien Drain south of Egremont Road was last repaired and improved under a report of J. C. Montieth dated August 1^st^, 1953. At that time, 5,700 feet of channel was repaired and improved with the excavated materials being cast along the road grade and levelled with a dozer unit or motor grader.

Under a report of J. A. Montieth dated January 17, 1986, the O’Brien Drain outfall was improved by the placement of pipe and a seawall at the outfall at Lake Huron. This work commenced north of the outfall of the culvert under Egremont Road (identified as Lakeshore Road in the 1986 report).

The Tribunal was not provided with a report for the construction of the culvert under Egremont Road so the status of this culvert relative to the Act is unclear.

Since 1953, there have been several changes in the watershed of the O’Brien Drain south of Egremont Road. The Council of the Township instructed Mr. Wm. Graham, P. Eng., President of MIG Engineering, to prepare a report under Section 76 of the Act to provide a schedule for assessing the future maintenance cost of this portion of the O’Brien Drain.

The Issue

The issue before the Tribunal is: whether or not the assessments proposed in the January 8, 1999 engineer’s report, as confirmed by the Court of Revision, are appropriate.

The Evidence and the Findings

Mr. Wm. Graham, P. Eng., President of MIG Engineering, told the Tribunal that in a document titled “Basis of Assessment” and filed as Exhibit 2, that the O'Brien Drain report, dated January 8^th^, 1999, as amended March 1^st^, 1999, is a review of the 1953 O'Brien Drain Report for the section of the drain upstream from the Egremont Road in Plympton Township, with respect to its application for future maintenance. He said he has attempted to apply the same assessment pattern as the 1953 report, taking into account:

1. the diversion of flow into the Whiting Drain;
2. sub-drainage directed to an outlet other than the above described section (Lot 11 North of County Road 7);
3. numerous severances since 1953;
4. the addition of County Road No. 7.

He emphasized that the report does not take into account the section of the O'Brien Drain north of the south limit of Egremont Road. The area that would be assessed for maintenance work in that section of the drain is set out in the 1986 O'Brien Drain report.

Mr. Graham explained his method of assessment as follows:

“We made the following adjustments to the 1953 report so that it could be used to pro-rate the 1999 schedule of assessment.

Total Assessment (1953 report) $1,735.00

Less assessment to the Side Road $ 316.00

Less assessment for the Railway Crossing $ 560.00

Less Outlet assessed to the DeMeyer Lot 10 $ 95.00

Less Outlets for Lots 12 & 13 North of County Road No. 7 (diverted to Whiting Drain) $ 90.00

Net Assessment for Pro-Rating $ 674.00

The result of pro-rating this $674.00 to the remaining 1953 report is as follows:

Benefit $290 43%

Cutoff $225 33%

Outlet $159 24%

Total $674 100%

In 1953, the ratio of lands to road assessment was approximately 2/3 : 1/3. This was adjusted in 1999 to reflect the construction of County Road No. 7, changing the ratio to approximately 58 : 42.

Based on a total expenditure for maintenance of $5,000, we have the following:

Total Assessment $5,000

Less Road Assessment $2,110

Net Assessment For Pro-Rating $2,890

Based on 1953 percentages, we calculated the following:

Trial #1 Adjusted Proportions

Benefit $1,243 $1,141

Cutoff $ 943 ^1)^ $1,188

Outlet $ 694 ^2)^ $ 561

1. Cutoff assessment was increased reflecting numerous severances and increased levels of protection required as a result of ongoing urbanization since 1953.

2. Outlet assessments decreased due to recognition of bush lands and recognition that sub-drainage on Lot 11 does not go to the portion of the O'Brien Drain under review.”

Mr. Graham explained that he assessed the benefit portion of the work on a per foot basis against the properties that abut the drain. The total frontage for benefit is 5290 feet at a cost of $1,141 or $0.2145 per foot. For Mr. DeMeyer, who has 4.020 feet of benefit frontage, this is $862. He did not assess the DeMeyer lot for outlet liability. He told the Tribunal that he treated this property as outletting its water into the drain at the downstream end of this section of drain and ,therefore, not eligible for an outlet assessment.

Mr. Norman DeMeyer told the Tribunal that he has owned Lot 10, Front Concession, abutting the east limit of O’Brien Road, since 1949. The land falls from the east to the west and also from the south to the north. There is five to six feet of fall from the south to the north ends of the property. The land was tiled east to west into a header tile that ran north parallel to O’Brien Road sometime before he purchased the property. In 1952, he re-tiled the land running the tiles south to north cutting the old tiles. He uses two header tile outlets into the O’Brien Drain. One outlet is a six inch tile just north of the midpoint of the lot draining about twenty acres of the south part of the lot. The second outlet is an eight inch tile near the north property limit behind (south of) his buildings.

He said that the water from Lot 11 to the east of his land flows across his land to the O’Brien Drain with sufficient volume that it washed out the bank of the O’Brien Drain. At this location he has constructed a French Catchbasin – a twelve inch pipe buried in stone at the inlet with the outlet through the bank of the O’Brien Drain. He said that this system has worked well since he installed it. This catchbasin is located between his six inch and eight inch tile outlets.

Mr. DeMeyer told the Tribunal that the ditch along the south side of Egremont Road, east of O’Brien Road, is not sufficient to carry all of the water at times. This overflow water from his land and from land to the east (Lots 11 and 12 J. Nauta) flows south across his land, behind his buildings and then west over the ditch bank into the O’Brien Drain.

He described a 16 inch tile that flows north westerly across the north end of Lot 11 to a catchbasin on Egremont Road at the north end of the boundary between Lot 10 and Lot 11, and from there along Egremont Road to enter in the side of the road culvert under Egremont Road between the O’Brien Drain (1953) and the O’Brien Outlet (1986), the Egremont Road Culvert. He told the Tribunal that he has two tiles four inch in diameter that outlet into this tile.

Mr. DeMeyer told the Tribunal that for Lot 11, Front Concession (Nauta property):

• the tile water from the north part flows east to the Whiting Drain.

• the tile water from the south part flows north, northwest and then west through the 16 inch tile to the Egremont Road Culvert.

• when the 16 inch outlet cannot handle the surface and tile water, the surface water from Lot 11 and part of Lot 12 flows south across his land to the O’Brien drain.

Mr. DeMeyer said that the north end of Lot 9, Front Concession, is occupied by eight houses plus a township park. He said these properties drain east to the O’Brien Drain but are not assessed in this report. These properties are labelled as Parcel 4 on the plan.

Mr. DeMeyer said his basic point is that everyone who uses the O’Brien Drain should be assessed for any maintenance work and the assessment on each parcel should be about the same amount as other parcels of similar size; that is, one 60 acre parcel should pay the same as any other 60 acre parcel.

Mr. Joe Nauta, owner of Lot 6, 7, 8, 9 South of the CN track, said he is assessed cutoff benefit and he has no problem with that assessment. He said that Mr. DeMeyer has a great benefit because he has direct access to the O’Brien Drain. He said that it cost him (Nauton) $16,000 to install a drain along the CN right-of-way to get an outlet for his lands.

In response to questions from the Tribunal, Mr. Nauta said:

• there is a tile across Lot 11 to the line between Lots 10 and 11,Front Concession at Egremont Road, to a catchbasin at the corner of the DeMeyer property. From there the water flows westerly in a 16 inch tile along Egremont Road outletting into the Egremont Road Culvert.

• there used to be an open drain between Lot 10 and 11 and there is still a deep furrow at the lot line. It takes the surface water to the catchbasin between the two property lines near Egremont Road, then to the Egremont Road Culvert. He has never seen this open drain overflow along the line between Lots 10 and 11.

• none of the tile drains from Lots 11 and 12 flow into the part of the O’Brien drain under discussion in the curent report.

• there is a possibility of spring runoff coming over the land from the catchbasin near Egremont Road and onto Lot 10, but he has not seen it.

Mr. Joe Nauta Sr. told the Tribunal that Lot 12, Front Concession, is tile drained to the Whiting Drain. About 500 feet from the road he has a catchbasin to take the surface water to the Whiting Drain as well. There was an open ditch on the line between Lot 11 and Lot 10, Front Concession, but Mr. DeMeyer filled it in with his permission, leaving a deep furrow. The surface water flows along the furrow to the north end of the property to the catchbasin, then to the Egremont Road Culvert. He said he supports the engineer’s report as it stands.

In his reply evidence, Mr. Graham told the Tribunal that:

• The land marked as Parcel 4 on the plan is assessed as a block assessment.

• The Whiting Drain is 400 feet of 18 inch tile providing outlet to Lots 12 and 13 Front Concession so these properties are not assessed under this report on the O.Brien Drain.

• The assessment on Lot 11 is based on the fact that the subsurface drainage does not use the section of the O’Brien Drain under review, but it is assessed for outlet only, based on the possibility of surface water flowing across Lot 10, the DeMeyer property, to the O’Brien Drain.

• every owner within the watershed of this section of the O’Brien Drain is assessed and even beyond the watershed for the cutoff benefit assessments.

• Lot 10, Front Concession, has the O’Brien Drain along the entire side of the property to take the surface water and it has two tile outlets into the O’Brien Drain; therefore, it has benefit from the work. All of the DeMeyer property is within 640 feet (the width of Lot 10) of the O’Brien Drain.

• While Lot 9 also has the O’Brien Drain alongside it, the property is smaller, has less frontage on the drain and is separated from it by the road, so that any outlet from the property to the drain would require a road crossing - hence the benefit assessment is much less than that on Lot 10.

When the Tribunal examined the evidence, it became clear that there was a fundamental misunderstanding of the project. It appears that Mr. DeMeyer is of the opinion that the O’Brien Drain is one continuous project from the Hyslop Line through to Lake Huron and cannot be broken into sections for maintenance purposes. In fact, that is what the Act requires. One of the basic principles of assessment of drainage projects is that land should not pay for work done upstream of the point where it outlets its water into the drain except for benefit by cutoff. In this case, if there is a bank failure on the drain opposite Lot 10 south of County Road 7 (the Sapeta property) and that is the only portion repaired, then the land of Mr. DeMeyer would not be assessed to repair that problem as it occurred upstream of the point where the DeMeyer land drains into the O’Brien Drain. In the circumstances of this case, the Tribunal agrees with the Township that partitioning of the drain at Egremont Road for maintenance purposes is appropriate.

The evidence shows that the tile in Lot 11 goes to the Egremont Road and does not get to the affected portion of the O’Brien Drain at all. The evidence is that the ditch at the Lot 11-Lot 10 property boundary has not overflowed to the west so not much water from Lot 11 can flow into the O’Brien Drain. At most, Lot 11 should be assessed a reduced rate for the possibility of surface water overflow to the west and that is what Mr. Graham has done.

The Tribunal is satisfied that the evidence does not show drainage from Lots 12 or 13 into this portion of the O’Brien drain.

In preparing an assessment for maintenance, it must be kept in mind that the work of maintenance is to restore the previous project. The purpose of the restored project will be similar, usually, to what it was at the time of construction. In view of this, it is reasonable to use the previous assessment as a guide while making adjustments to take into account the changes that have occurred since the previous work on the drain was carried out. This the engineer has done as demonstrated in his evidence in Exhibit 2 where he outlines the various changes he has taken into account and how he had dealt with them. The Tribunal concurs with this approach and the way he has handled it but notes that he does not appear to have considered the use the appellant has made of the drain as an outlet for his headers when he re-tiled the property. Because of this use, the engineer could properly have made an outlet assessment to the DeMeyer property but since this was not raised by the owners in the drainage area, the Tribunal has chosen not to interfere. On reviewing the benefit assessment and comparing it to all other assessments, the Tribunal was convinced that the total assessed to the DeMeyer property is a fair amount despite it being assessed totally as benefit.

The Tribunal is concerned that there may be some confusion in the future over the description of the work covered in this report. Therefore, the Tribunal is directing amendments to the wording of the report to clarify that the section of the drain covered by this schedule is that portion lying south of the south limit of Egremont Road.

The Tribunal also feels that inclusion of the information in Exhibit 2 prepared by the engineer for this hearing, will be beneficial to the report and therefore, will order this information included in the report prior to passing the by-law.

ORDER OF THE TRIBUNAL

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

1. The appeal of Norman DeMeyer is dismissed.

2. The first three paragraphs of the report be struck out and replaced with the following:

“In accordance with your instructions a review has been made of the current By-Law No. 25 of 1953 for the section of the O’Brien Drain upstream of the south limit of Egremont Road (formerly Lake Road) in your Township with respect to its applicability for future maintenance.

It is my opinion that the schedule for the By-Law is no longer appropriate for maintenance purposes and that a new schedule should be provided under Section 76 of the Drainage Act.

I submit herewith a schedule, which is based on an expenditure of $5,000, to establish more equitable proportions for the section of the drain under consideration. The schedule proposed in this report has no application to future maintenance of works downstream (north) of the south limit of Egremont Road.”

3. The first two pages of Exhibit 2 titled “Basis of Assessment” attached to this decision be added to the report after the covering letter and before the schedules.

4. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

The reason for this decision is that the Tribunal was satisfied that the process followed by the engineer was proper and the resulting assessments are fair,

Dated at Tilbury, Ontario this 7^th^ day of July, 1999.

O'BRIEN DRAIN EXHIBIT 2

APPEAL TO THE ONTARIO DRAINAGE TRIBUNAL by Norman DeMeyer

BASIS OF ASSESSMENT

The O'Brien Drain report, dated January 8^th^, 1999, as amended March 1^st^, 1999, is a review of the 1953 O'Brien Drain Report for the section upstream from the Lake Road in Plympton Township, with respect to its application for future maintenance.

We have attempted to apply the same assessment pattern as 1953, taking into account:

▶ the diversion of flow into the Whiting Drain

▶ sub-drainage directed to an outlet other than the above described section (Lot 11 North of County Road)

▶ numerous severances since 1953

▶ the addition of County Road No. 7

The report does not take into account the section of the O'Brien Drain north of the south limit of Lake Road. This area would be assessed for maintenance based on the 1986 O'Brien Drain report if work was carried out on this section.

The following adjustments were made to the 1953 report so that it could be used to pro-rate the 1999 schedule of assessment.

Total Assessment (1953 report) $1,735.00

Less Side Road $ 316.00

Less Railway Crossing $ 560.00

Less Outlet for DeMeyer (Lot 10) $ 95.00

Less Outlets for Lots 12 & 13 North of County Road No. 7 (diverted to Whiting Drain) $ 90.00

Net Assessment for Pro-Rating $ 674.00

This results in the following from the 1953 report.

Benefit $290 43%

Cutoff $225 33%

Outlet $159 24%

Total $674 100%

In 1953, the ratio of lands to road assessment was approximately 2/3 : 1/3. This was adjusted in 1999 to reflect the construction of County Road No. 7, changing the ratio to approximately 58 : 42. Based on a total expenditure for maintenance of $5,000, we have the following:

Total Assessment $5,000

Less Road Assessment $2,110

Net Assessment For Pro-Rating $2,890

Based on 1953 percentages, we calculated the following:

Trial #1 Adjusted Proportions

Benefit $1,243 $1,141

Cutoff $ 943 ^1)^ $1,188

Outlet $ 694 ^2)^ $ 561

1. Cutoff assessment was increased reflecting numerous severances and increased levels of protection required as a result of ongoing urbanization since 1953.

2. Outlet assessments decreased due to recognition of bush lands and recognition that sub-drainage on Lot 11 does not go to the portion of the O'Brien Drain under review.

The benefit assessment for Lot 10 (Mr. DeMeyer) was calculated as follows:

Frontage benefiting from maintenance of drain = 5,290 ft.

Costs relating to benefit = $1,141

Cost/ft. of frontage fronting drain = $1,141 = $0.2145 5,290

Benefit for Lot 10 (Mr. DeMeyer) = 4,020 ft. x $ .2145 = $862

References

Whiting Drain - 1974

Whiting Drain - 1984

Whiting Drain - 1961

Errol Road Drain - 1965

O'Brien Drain - 1953

O'Brien Drain - 1986

O'Brien Drain - 1999

T. Wm. Graham, P. Eng., P.E.

MIG Engineering Ltd.

Project No. 9578

99.06.23