Fekete Drain (Re), 1999 ONAFRAAT 19

Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: Fekete Drain Township of North Dorchester Fekete Drain (RE) 1999 ONAFRAAT 19

STATUTE: Drainage Act

HEARING: July 14, 1999

DATE OF DECISION: July 23, 1999

1999-19

NEUTRAL CITATION: 1999 ONAFRAAT 19

Fekete Drain Township of North Dorchester

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 M. & N. Sauro under Section 54 (assessment) and Section 48 (allowances) of the Drainage Act from the decision of the Court of Revision and the March 9, 1999 report of John Spriet on the Fekete Drain in the Township of North Dorchester.

Before: Andrew Wright, Vice-Chair; Herb Todgham, Vice Chair; Nick Doelman, Member

Appearances: Don Pletch, P. Eng., on behalf of the appellant M. and N. Sauro. M. Sauro, appellant. John Spriet, P. Eng., on behalf of the respondent, the Township of North Dorchester.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of North Dorchester (the Township) in Dorchester, Ontario, on July 14, 1999. M. & N. Sauro appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 (assessment) and Section 48 (allowances) of the Drainage Act (the Act) from the decision of the Court of Revision and the March 9, 1999 report of John Spriet on the Fekete Drain in the Township.

Michelle Smibert, Acting Clerk of the Township, 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 March 9, 1999 report of John Spriet on the Fekete Drain in the Township of North Dorchester, 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.

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.

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 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.

The Background

The Fekete Municipal Drain serves parts of Lots 1 and 2, Concession 1, in the Township of North Dorchester and Lots 3-5, Concession 1, in the City of London. The work was initiated by two petitions signed by the majority of the owners of the lands in the area requiring drainage.

The total watershed contains approximately 225 hectares. The area requiring drainage is described as part of Lots 1 and 2, Concession 1, in the Township of North Dorchester and Lots 3 and 4 in Concession 1, in the City of London.

The outlet for the Fekete Drain is the Airport/Hamilton Road Municipal Drain, an open channel in Lot 5, Concession 1, (A. Giouroukus property) constructed under a drainage report prepared by D.W. Pletch, P. Eng., dated December 6, 1996.

The proposed work involves a main drain of 1590 lineal metres of open ditch and 246 lineal metres of 525 mm field tile with appurtenances and four tile branches. The main drain open portion has a fall of 7.3 metres. The fall of the branch drains varies from 2-15 metres. The proposed work will provide a sub-drainage outlet for benefiting lands in the watershed area and will help control soil erosion by the control of surface water flows through tiles and catchbasins. The tile portions of the work are designed to a 25 mm/day drainage coefficient.

The estimated cost of the work is $149,000.00

Allowances, under Section 30 of the Act, for damage to lands and crops are based on $1,250.00/ha. for tile drains. These base rates are multiplied by the hectares derived from the working widths shown on the plans and the applicable lengths to obtain the amount provided to each affected property. No allowances are provided for damage to lands and crops along the open ditch as there are no crops grown in this area and the land is currently either woodlot or scrub brush.

Allowances, under Section 29 of the Act, for land used for the construction, repair, or future maintenance of a drainage works were calculated based on:

• For tile drains where the owners will be able to continue to use the land, the allowance is based on 20% of value of the land designated for future maintenance. Therefore, the amounts are based on $1,250.00/ha. multiplied by the hectares derived from the width granted for future maintenance and the applicable lengths.

• For open ditches, the allowance provides for the loss of land due to the construction provided for in the report. The amount is based on the value of the land, and the rate used was $6,200.00/ha. When any buffer strip is incorporated and/or created, the allowance granted is for any cultivated or potentially cultivated lands beyond a 1.8 metre width deemed to have always been part of the waterway.

The Issue

There are three issues before the Tribunal relative to the lands of the appellants:

1. Are the assessments for the proposed Fekete Drain, as proposed by the engineer and reviewed by the Court of Revision, appropriate?

2. Are the allowances provided in the report for the proposed Fekete Drain appropriate?

3. Should the report be amended to provide for other concerns raised by the appellants?

The Evidence and the Findings

Mr. Mario Sauro, appellant, told the Tribunal that he did not and still does not fully understand the proposed work. He attended most of the public meetings on the project and the engineer met with him at his home to discuss the proposed work. He said he purchased his land in 1980 and occupied the house in 1983. Since then he has built an addition to the house with the foundation drain outletting into a shallow drain on his property. He has cleaned this open drain out two or three times. He said he was concerned that his foundation drain might not be connected to the Fekete Drain.

Mr. Sauro told the Tribunal his main concerns with the current report relate only to the open portion of the main drain and the amount of his assessment and the fact that there is no compensation for damage to the trees in his woodlot. He filed with the Tribunal photos showing the size of trees involved and told the Tribunal that he counted 42 trees that would have to be cut to allow the drain to be constructed in the alignment staked in the bush in one 50 metre long section of drain.

He said that he told the engineer he was concerned about the assessment to his property and was told that he could reduce his cost by sharing a farm crossing with his neighbour but he wanted a culvert of his own. They initially agreed that a short culvert would be sufficient and then he wondered if he needed a culvert at all. He has not been to the back of the property with any equipment in many years.

Mr. Mykola Wasylko told the Tribunal that he has known Mr. Sauro for 20 years and had identified Mr. Sauro’s four concerns with the project. These concerns are:

1. Foundation drain. Mr. Sauro wants assurance that his foundation drain that currently outlets into the shallow ditch near Bradley Ave. will be positively connected to the tile in the Fekete Drain.

2. At Station 0+509 on the Bradley Branch of the Fekete Drain, Mr. Sauro would like to be able to connect a drainage pipe to the Fekete Drain and would like a connector installed at the time of construction. He suggested a Hickenbottom inlet be installed at this point to allow for a future connection

3. Mr. Sauro feels he should receive an allowance for damage to the trees in his woodlot.

4. Note 4 on the drawings says that all owners along the course of the drain shall make an access route from the nearest road to the drain available. The average width shall not exceed 8 metres. That note is a concern to Mr. Sauro because the nearest road is Bradley Ave. and an access route from there to the drain will result in substantial drainage to his tenant’s alfalfa crop.

Donald Pletch, P. Eng., testified as an expert witness for Mr. Sauro. Mr. Pletch told the Tribunal that he has reviewed the report, plans and specifications and is raising the following concerns:

1. The report provides an allowance for only the land in the ditch from top of bank to top of bank, at the rate of $6,200.00 per hectare. The specifications require the stripping of top soil, spreading of the excavated materials and replacement of the top soil. This will require a total width of 33 metres to accommodate the work. Many more trees in the Sauro woodlot will be affected by this work and there is no allowance for the damage to the soil or the crop of trees and there should be. Page 8 of the report should be modified by providing an allowance under Section 30 for damage to the spoil area (22 m x 303 m) @ $4,500.00 per hectare. This would amount to $3,000.00.

2. Mr. Sauro recognizes a benefit in controlling the surface water in his woodlot. A shallow swale one or two feet deep will concentrate the flow and provide the surface water control necessary for this property. Such a swale would cost about $3.00 per metre while the report assessed benefit to this property at $11.00 per metre. The benefit assessment should be reduced, especially when compared to the downstream owners who can crop to the drain edge while Mr. Sauro cannot.

3. The benefit assessment of $1,200.00 for the culvert crossing the drain should be eliminated. He could cross a 1 to 2 foot swale anywhere in the bush. The reason for the deep ditch is to pass the water from the upstream watershed, so the upstream watershed should pay all of the cost of the culvert.

4. The top width of the Sauro culvert as proposed is only 1.7 metres or 5½ feet. This is narrow and the culvert should be extended by an additional 2 metres to provide a more suitable top width on this crossing.

Mr. John Spriet, P. Eng., the engineer who prepared the March 9, 1999 report on the Fekete drain, told the Tribunal that Mr. Sauro had requested the shorter culvert as a cost saving measure. Mr. Fekete had made differing requests relative to the culvert as the report was being written and the final request was for a short culvert and that is what the report provided. He does not object to the Tribunal ordering the culvert lengthened by two metres as this will only add about $250.00 to the project and this can be covered by the contingency item in the report.

Mr. Spriet said that, in his opinion, the Sauro property does obtain benefit from the work. The water runs in a broad swale through the bush now and confining this flow to a channel is a benefit to the woodlot. The existing trees are reflective of a wet soil – swamp white oak, silver maple, green ash. He said that his experience indicates that once the woodlot canopy is opened and the water table lowered more valuable tress will begin to grow and that is a benefit to Mr. Sauro. He said he assessed this section of the drain at 30% benefit and feels this division is appropriate. In response to questions, Mr. Spriet agreed that the total benefit assessment against the Sauro property may be slightly high and a reduction of $900.00 may make the benefit assessment fair compared to the downstream properties.

The report gives a general location for the drain. In the case of work through the Sauro woodlot area, the final location of the drain will be established in the field in consultation with Mr. Sauro and the contractor. It is the intention to locate the drain in such a manner that there will be a minimum of damage to valuable trees. It is not intended that top soil be stripped on this project. The intention is to spread the excavated materials to a depth of 0.3 metres. If this depth is increased to a maximum of 0.6 metres in the Sauro woodlot then less area would be affected. Mr. Spriet said that he had not allowed any owners damage for crops. There is no crop adjacent to the open drain downstream of the Sauro property. In his opinion, the trees on the Sauro property have no commercial value, not even for firewood. He said that his experience is that landowners cannot give standing timber away for firewood. So he placed a value of $0 on the crop damage allowance on the open drain portion of this project.

Mr. Denis Shand, Drainage Superintendent of the Township, told the Tribunal that he has walked through the Sauro woodlot in the past week and located an alignment for the drain where the drain could be located and affect only 40 or so trees that are six or more inches in diameter at breast height. This alignment is about 10 to 15 metres north of the line of stakes placed at the time of the survey. He said there is a pond excavated in the bush and it appears that an access route was cleared to allow construction of the pond. This clearing is the alignment he proposes to follow for the Fekete drain. He said the Township and its contractor will work around the valuable trees and spread the excavated materials so as to do a minimum of damage to valuable timber.

During the course of the hearing, it became clear to the Tribunal that the appellant did not fully understand just what was to be done or how the work was to be carried out. The evidence also disclosed that when copies of the report were sent to the owners, the specification was not included, although the specification is an essential part of every report [Section 8(1)(a)]. The Tribunal wishes to point out that although it understands the reasons put forward for not attaching the specification to the copies of the report mailed to the owners, it firmly believes that the owners are entitled to receive all pertinent information and, in future, where it can be shown that failure to include the specification has contributed to the need for a Tribunal hearing, cost may well be awarded against the engineer and/or the municipality for failing to provide the information to the assessed landowners.

The Tribunal reviewed the evidence and argument relative to the assessment of culverts on this new drain. In this case, all of the owners are consistently assessed for part of the cost of their farm crossing culverts. The Tribunal is satisfied that the benefit assessment for the culvert proposed for Mr. Sauro is fair and appropriate.

The benefit for the open ditch on the Sauro property is not as great as that for the other properties abutting the open ditch. In the opinion of the Tribunal, considering the existing and likely future use of the lands, the benefit provided on the Sauro property would be about half of the benefit received on the lands in the City of London. The Tribunal therefore will order a reduction in the benefit assessed to the Sauro property and a pro rata increase to the outlet assessment to the land upstream of Sauro (including Sauro). This will reflect the main purpose of the open drain through the Sauro property as an outlet for the water flowing from the upper watershed.

The Tribunal accepts the submissions of the engineer on the matter of allowances for damages from the spread of excavated materials. All of the owners abutting the open ditch were treated the same. The engineer and Drainage Superintendent committed to spread the spoil in such a fashion that damage to valuable trees on the Sauro land is minimised. In the circumstances of this case, the Tribunal is satisfied this is equitable treatment once the commitments on alignment and spreading are incorporated into the report.

It appears to the Tribunal that the parties at the hearing agreed to:

1. Lengthen the Sauro access culvert by two metres and,

2. Provide working access to the drain from the road crossings with the equipment operating along the alignment of the drain within the working corridor specified in the report.

The Tribunal will order appropriate changes to the report to reflect these two items.

The Tribunal understands that, except for his concerns about two tile connections near Bradley Ave. (both of which were dealt with and explained at the hearing), the appellant is satisfied both with the proposed work and the assessments on the covered section of the project.

The Tribunal considered the issue of costs of the hearing. In this case the appellant has retained advisors to represent him at the hearing and these advisors did an admirable job of putting forth his position. On the other hand, Mr. Spriet argued that the project has incurred additional cost in extra meetings and, in the case of Mr. Sauro, special meetings to explain the project and obtain directions. All things considered, the Tribunal decided this was not a case where costs should be awarded, and therefore, there will be no order of costs.

ORDER OF THE TRIBUNAL

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

1. The appeal of M. and N. Sauro is partially granted as set out in the following orders.

2. The March 9, 1999 report of the engineer is ordered to be amended as follows:

• Page 9, sixth item on cost estimate delete “One 6 metre length of 1200 mm dia.” and replace with “One 8 metre length of 1200 mm dia.” The profile is to be changed to indicate the crossing at approximately Station 1+300 is 8 metres in length not 6 metres as indicated.

• Note 4 on Drawing 1 of the report is deleted and replaced with the following “Access for equipment will not run over cropland. Equipment will enter the project at the area of the road crossings and travel the length of the project from these access points within the working corridor specified in the report.”

• Note 13 on Drawing 1 of the report is deleted as it is a duplicate of Note 6.

• A new note is to be added to Drawing 1 as follows: “The alignment of the open ditch on property Roll Number 55-087 (Sauro) is to be determined in the field in consultation with the owner and is to go through an optimum location to preserve as many trees as reasonably possible in the Sauro bush.”

• A new note is to be added to Drawing 1 as follows: “On property Roll Number 55-087 (Sauro), the excavated material is to be spread to a maximum width of 18 metres from the top of bank and to a maximum depth of 0.6 metres preserving as many as possible of the large trees.”

3. Before passing By-Law 13-99 the Clerk of the Township is directed to amend the part of Schedule C headed Main Drain Open Portion by:

• Reducing the benefit assessment to property roll number 55-087 (Sauro) from $4,530.00 to $3630.00 and

• Increasing the outlet assessments against all of the lands and road assessed for outlet on the main drain open portion, upstream of the Sauro property, including the Sauro property, on a pro rata basis, by a total of $900.00

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.

Dated at London, Ontario this 23rd day of July, 1999.