John Babensky, Raymond Poort and Raymond Packet v. Township of Enniskillen, 1999 ONAFRAAT 20

Agriculture, Food and Rural Affairs Appeal Tribunal

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Stefanik Drain

Township of Enniskillen

Stefanik Drain (RE) 1999 ONAFRAAT 20

STATUTE:

Drainage Act

HEARING:

July 7, 1999

DATE OF DECISION:

July 30, 1999

1999-20

NEUTRAL CITATION:

1999 ONAFRAAT 20

Stefanik Drain

Township of Enniskillen

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 John Babensky, Raymond Poort and Raymond Packet under Section 54 of the Drainage Act from the decision of the Court of Revision for the Stefanik Drain in the Township of Enniskillen.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Moira Connell, Member

Appearances:

Ed Dries, P. Eng., on behalf of the appellants Mr. Packet, Mr. Poort and Mr. Babensky

Will Bartlett, P. Eng., on behalf of Mrs. Olga Woods, assessed owner.

Ray Dobbin, P. Eng., on behalf of the respondent the Township of Enniskillen

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Enniskillen at Petrolia, Ontario, commencing at 9:30 a.m. on Wednesday, July 7, 1999. John Babensky, Raymond Poort and Raymond Packet 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 for the Stefanik Drain in the Township of Enniskillen (the Township).

Barb Hunter, staff member of 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 or compensated in the March 9, 1999 engineer’s report, signed by Mr. Ray Dobbin, P. Eng., on the Stefanik Drain, Township of Enniskillen, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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.

The Background

The March 9, 1999 engineer’s report on the Stefanik Drain, signed by Mr. Ray Dobbin, P. Eng., was prepared in response to a petition under Sub-Section 4(1)(b) of the Act signed by the owner of the N½ Lot 19, Concession 13. The owner requested a covered drain with surface collection facilities to correct drainage problems occurring on the property.

Surface and subsurface water is collected on Lot 19, Concession 14, and outletted through a low run in the bush located in the southern portion of the W½ Lot 19, Concession 14. The water outlets through a tile ( 8 or 10 inch) in the N½ of Lot 19, Concession 13, then to the open channel which also provides outlet to the Plympton McLachlan Drain just east of Gypsie Flats Road (18/19 Sideroad). The N½ of Lot 19, Concession 13, is cultivated and erosion problems are occurring in the low area where the tile is installed. The outlet tile installed in the N½ Lot 19, Concession 13, by a previous owner is undersized by today’s standards and surface overflow occurs.

The current owner of the N½ Lot 19, Concession 13 (Woods property) has recently realigned the existing open channel outlet in the west portion of the property (the outlet of the Plympton McLachlan Drain) to the west property limit, so that it now runs southerly on the farm lands abutting the east side of the Gypsie Flats Road.

The report proposes installation of a new covered drain commencing at a point approximately 250 meters east of Gypsie Flats Road along the Concession 13/14 line in Lot 19, Concession 13, and proceeding downstream in a generally south-westerly direction following the low run in the area of the original outlet tile and thence generally westerly to outlet in the realigned channel beside the road allowance.

The tile is sized to accommodate 25 mm of run-off per 24 hours from the watershed. The total area assessed is 71.4 hectares. The length of the drain is 453 meters of 400mm to 450mm concrete tile along with inlet and outlet structures and 87 meters of open outlet. The total cost of the proposed work is $18,970.⁰⁰ of which $7,772. ⁰⁰ is assessed as outlet liability, $4,678. ⁰⁰ is benefit and $6,520. ⁰⁰ is special benefit.

The Issue

The issue before the Tribunal is:

Are the assessments for the Stefanik Drain, as proposed by the engineer in the March 9, 1999 report and confirmed by the Court of Revision, appropriate?

The Evidence and the Findings

Ray Dobbin P. Eng., the engineer who prepared the March 9, 1999 report on the proposed Stefanik Drain, told the Tribunal that there is a 14 inch tile outlet from the W½ Lot 19, Concession 14 (Raymond Packet) in the bush which is located at the south end of this property. A second 14 inch tile outlets in the bush located at the south end of the E½ Lot 19, Concession 14 (John Babensky). The land in the bush is shaped like a dish with a wide swale in the bottom with various paths through the swale for the water to flow. There has been some excavation immediately downstream of the tiles to allow the water to outlet from the tiles. He said that, in his opinion, this area is a water run or swale but is not a natural watercourse with riparian rights.

Water from these tiles, along with surface water from Lot 19 and part of Lot 20, Concession 14, follows the swale through the bush, crosses the Sun Canadian Pipeline right-of-way at the 13/14 concession line, then flows through the N½ Lot 19, Concession 13, to outlet into a watercourse that flows into Bear Creek. The Plympton McLachlan Drain also outlets into this watercourse in the N½ Lot 19, Concession 13.

He told the Tribunal that the project was initiated by a petition signed by the owner of the N ½ Lot 19, Concession 13 (Woods), asking for drainage. Some time during the 1970’s the previous owner of the Woods’ lot had installed a berm across the low area near the Concession 13/14 line with a tile drain placed in the swale running southerly to carry away the water from the upper watershed. The swale in the Woods’ lot was then backfilled and the area has been cropped each year since. The tile is undersized for today’s requirements and the owner wishes to increase the capacity of the outlet.

He has prepared three reports for the project and has considered alternative solutions including a diversion ditch along the Concession 13/14 line to the Plympton McLachlan Drain on the Sideroad. The proposal in his March 9, 1999 report is his preferred solution.

In his original report, he designed the tile outlet for a 19 mm drainage coefficient. This resulted in a project with a total cost of $12, 958.⁰⁰ including engineering, allowances and other overhead charges. He reasoned that, for the 8.4 hectares affected on the Woods property, the upstream natural water and the water collected on the Woods property could be handled in a tile drain beginning with a six inch tile increasing to an eight inch. He estimated this drain to cost $3,711.⁰⁰ and so assessed this amount to the Woods property as benefit. To this he added ½ of the cost of the berm and inlet catchbasin at the head of the drain. He reasoned that this structure served to provide outlet for the upper lands, as well as to protect the Woods property from the flow of water from the upper watershed, so he divided its cost 50% benefit and 50% outlet. He also added to the Woods assessment the amount of $717.⁰⁰ for, as he said, “the cost to accommodate water which would naturally flow if lands had not been improved for farming operations.” This brings the total assessment to the Woods property to $4,678.^00, all assessed as benefit.

He assessed $508 to Sun Canadian Pipelines for extra engineering work and for the installation of a four inch tile with a blind inlet across the pipeline right-of-way to drain an area ponded behind the right-if-way.

The balance of $7,772. ⁰⁰ he assessed to the three upstream owners, Packet, Babensky and Poort (W¾ Lot 20, Concession 14), as outlet liability prorated based on equivalent acreage.

To calculate the equivalent acreage of the various lots he used the following considerations:

1. The Poort property (W¾ Lot 20, Concession 14) is tile drained to the east to the Atkinson drain, so he used a factor of 0.5 on this area to calculate equivalent acreage since only surface water would flow to the new drain.

2. The Packet property has a section tiled from outside the watershed that is tile drained to the outlet in the bush and he used a factor of 0.5 on this area.

3. Bush land he factored at 0.5 on both Packet and Babensky.

4. Cropland, which has both surface and subsurface flows on Packet and Babensky, is factored

at 1.0.

Mr. Dobbin said that the report was referred back at the request of the Woods to increase the capacity of the tile. The cost of preparing the new report and increasing the tile size was assessed as a special benefit to the Woods property. Also, the outlet channel in the Woods property was realigned to the west by the Woods to parallel Gypsie Flats Road requiring an extension of the Stefanik Drain. The cost of this extension was assessed to the Woods property as special benefit. All together these items totalled $6,012. ^00.

The result of this assessment calculation is the following schedule of assessment:

Name

Hectares Affected

Benefit

Outlet

Special Benefit

Total

O. Woods

8.40

$4,678.00

$6,012.00

$10,690.00

R. Packet

21.05

$2,116

$2,116.00

J. Babensky

40.23

$4,963

$4,963.00

R Poort

10.12

$693

$693.00

Sun Canadian

$508.00

$508.00

Total

$4,678.00

$7,772.00

$6,520.00

$18,970.00

In response to questions from Mr. Dries, Mr. Dobbin said that the intention is to extend the Stefanik tile drain to an outlet into the realigned channel carrying the Plympton McLachlan Drain. A short section of this open drain will be excavated to get freeboard for the tile outlet. Mr. Dobbin agreed that the downstream terminus of the proposed work was unclear and asked the Tribunal to order a clarification of the report showing that the Stefanik Drain ends at Station 0+60. Mr. Dobbin also agreed that the plan attached to the March 9, 1999 report showed the watershed boundary on the Poort property incorrectly. He asked the Tribunal to order a modification to the plan in the report. He said the assessed area is correct but was drawn on the plan incorrectly.

Mr. John Babensky appellant, told the Tribunal that he purchased his property in 1960. He said the farm was tiled drain when he purchased it. It appeared that the land was tiled east and west off a main on the east property line. This tile was constructed sometime prior to 1950 and outletted before the front of the bush in the same area as the present tile outlet. He tiled the farm beginning in 1971 and continuing for five or six years to complete the job. The tiles are four inch in diameter on a 40 foot spacing grid on one half of the farm and a 35 foot spacing grid on the other half. The tile outlet was extended into the north part of the bush and a minor amount of excavation was done in the watercourse in the bush to provide outlet for these tile. Mr. Babensky told the Tribunal that the channel in the bush is a natural watercourse and is still in a natural state. The upstream owners are riparian to this natural watercourse and therefore should not be assessed as per the decision of Referee Johnston. In support of the statement, Mr. Babensky filed a copy of the 1992 decision of Referee Johnston in the Suter Drain, Town of Dunnville.

Mr. Babensky said that, in his opinion, Mr. Stefanik had no problems on the N½ Lot 19, Concession 13, until the 1970’s when he bulldozed the watercourse that existed on this lot and installed the eight inch tile outlet to replace the watercourse. He said that, in reclaiming the land of the natural watercourse, the owners created their own problem and the upstream riparian owners should not have to pay as a result.

According to Mr. Babensky, the upstream owners are not opposed to the tile installation on the Woods property and at the Court of Revision said that they were willing to pay a portion of the cost of the work - something in the range of 15% - just to keep good relations. However, the upstream owners feel the current report assesses them excessively and therefore are claiming their riparian rights and are asking for their assessments to be eliminated from the report.

In response to questions Mr. Babensky said that:

1. The channel used to be a natural watercourse from the north edge of the bush on his farm to its junction with the Plympton McLachlan Drain.

2. The natural watercourse on the Woods property has been filled and replaced with an eight inch tile.

3. The remaining natural watercourse runs from his tile outlet at the north side of the bush southerly to the Sun Canadian right-of-way.

Ed Dries, P. Eng., addressed the Tribunal as an expert witness for the appellants. He said that the validity of the assessment is the primary concern of the appellants. His position is that Babensky and Packet are riparian owners, abutting a natural watercourse and therefore not liable to assessment. In the case of the Poort property, there is no artificial drainage directed to the Stefanik Drain and therefore this lot is not assessable.

In support of his position that riparian owners are exempted from assessment under the Act, Mr. Dries quoted from the decision of Referee Johnston as follows:

"In McGillivray v. Township of Lochiel (1904), 8 O.L.R. 446 at pp. 449-50 (C.A.), Garrow J.A. quoted with approval from the case of Miller v. Lauback, 47 Pa. St. 154 (1864). In the case of Miller v. Lauback (1864) 47 St, 154, the law is in my opinion well stated as follows: "No doubt the owner of lands though which a stream flows may increase the volume of water by draining into it without any liability to damages to a lower owner. He must abide the contingency of increase or diminution of the flow in the channel of the stream because the upper owner has the right to all the advantages of drainage or irrigation reasonably used which the stream may give him."

To the same effect is the recent decision by this Court in Re Elma and Wallace (1903), 2 O.W.R. 198. And what is a "reasonable use" is defined in McCormich v. Horan (1880), 81 N.Y. 86, as a use up to the capacity of the banks of the stream. See also Gould on Waters, 3rd ed. (1900), sec. 274; Young v. Tucker (1899), 26 A.R. 162."

Mr. Dries quoted the following definition of “a natural watercourse” from a paper authored by Mr. Delbert O’Brien and presented to the Drainage Engineer’s Conference in 1982.

“The Courts have said in general that channel banks formed by the flowing of water must present to the eye on casual examination, the unmistakable evidence of the frequent action of running water. It is not essential that the supply should be continuous or form a perennial living source. It is enough if the water rises periodically from natural causes and reaches a plainly defined channel of permanent character. A natural watercourse may, at a certain point, spread over a level area, flow for a distance without defined banks before flowing again in a defining channel.”

Mr. Dries argued that riparian owners can collect the water that falls on their land and discharge it into the natural watercourse provided this is reasonable use of the watercourse. He said that riparian owners have the right to use the watercourse with no liability in outlet for their use.

Mr. Dries filed with the Tribunal a profile that he made of the natural watercourse in the Packet and Babensky property. He said that, in his opinion, the watercourse was obviously a channel that had been in place for a long period of time. He said it had a defined bed and banks and he measured the bottom width to average 1.4 meters. The depth of the channel shows on the profile. He began his survey at Station 0, the tile outlet on the Babensky property, ending at Station 360 being the Hickenbottom inlet on the Woods property. He said the channel depth varied from 0.7 m to 1.4 m with a consistent gradient having just about a meter of fall over the length of the channel. He said there are large trees on both banks throughout the length of the watercourse with no evidence of tree cutting or excavating except a short area immediately at the outlet of the tile pipe.

Mr. Dries argued that there is no artificial surface ditching on the Poort land directing water to the Babensky land and then to the Stefanik Drain. He said that the surface water from the Poort property does drain naturally toward the Stefanik Drain but there is no “artificially caused to flow” water and therefore this land is not assessable under the Act.

Mr. Dries further argued that, even if the Tribunal finds that there is no natural watercourse on the Babensky and Packet property, these lands are not receiving any improved outlet and therefore the assessment is not justified. He pointed out that the tile outlets from these properties are about one meter higher than the land surface at the head of the drain so there can be no improvement to the physical outlet no matter how big the tile across the Woods property is.

In response to questions Mr. Dries said:

1. Under the Common Law surface water has no right of drainage and an owner cannot collect surface water and discharge it onto the lands of another. Therefore each owner in a watershed affected by a project under the Act is generally assessed outlet to remove their common law liability.

2. The surface water that runs from the Poort property to Babensky to the Stefanik Drain is not collected; the natural grade of the ground directs it that way therefore the Poort property is not assessable under the Act.

3. To artificially cause water to flow means that it has to be confined to a channel or point by some means.

4. The mere clearing of the land does not constitute artificial collection and discharge. Clearing may impact on the volume of water but until it is collected in a facility and discharged, then it is not artificially caused to flow. In his view, to achieve artificial flow from the property, the owner would have to do physical work to collect water and bring it to a point.

5. If a better outlet is provided for a property then it is assessable under the Act however, in this case, no improved outlet is provided.

Mr. Ray Packet, appellant, told the Tribunal that his land is systematically tile drained in a north- south direction with 40 acres draining to the west to the Plympton McLachlan Drain and 40 acres draining to the natural watercourse. He said that he has owned the farm since 1984 and has had no drainage problems in that time.

In response to questions, Mr. Packet agreed that the watershed for his property, as shown on the plan, is accurate.

Mr. Ray Poort, appellant, told the Tribunal that his land is systematically tiled drain in a north-south direction. On the west side of the property the tiles are on a 40 foot spacing grid and outlet to the Atkinson Drain. On the east side of the farm the grid spacing is 32 feet and these tiles also outlet to the Atkinson. He said that the Stefanik Drain will not do him any good at all, and never will. In response to questions, Mr. Poort agreed that the drainage area shown on the modified plan that Mr. Dobbin provided at the hearing was accurate.

Mr. Will Bartlett, P. Eng., addressed the Tribunal as an expert witness for Mrs. Woods. He told the Tribunal that he has visited the site of the claimed natural watercourse and observed two tile outlets into a swale in the bush. He observed excavation immediately downstream of the tile outlets to provide an outlet for these structures. He said that, in his opinion, the channel downstream of the tile outlets has been excavated some time in the past to about half way through the bush. He sited visible spoil piles at points along the channel as proof of spot excavations. He said that, in his opinion, the watershed upstream of the bush was insufficient to support the formation of a natural watercourse.

Mr. Bartlett told the Tribunal that the previous owner of the Woods’ property, Mr. Stefanik, began to have drainage problems in 1975, just after Mr. Babensky tiled his land. Mr. Stefanik approached the upper owners to participate in a mutual agreement drain to solve this problem, but they refused. Mr. Stefanik then put in a drainage system to protect his lands from the upstream flows. Mr. Bartlett said that the artificial drainage upstream caused the problem on the Stefanik property, and the problem was made worse by the six hectares of tile drainage water brought in from outside the watershed on the Packet property.

Mr. Bartlett said that the Woods property had an obligation to accept natural flow from the upper lands. He argued that Mr. Dobbin’s testimony was that a tile of six inch diameter increasing to eight inch diameter would be adequate for this purpose. He said he had been told that Mr. Stefanik had installed a ten inch tile in 1975 to look after this problem.

Mr. Bartlett recommended to the Tribunal that the upper lands be assessed for benefit as well. He reasoned that the Stefanik Drain brings a sufficient legal outlet to the property boundary of these properties that do not now enjoy a legal outlet. He said these properties are obliged to take their tile drains to an adequate outlet and they have not done this.

In his reply evidence, Mr. Dobbin told the Tribunal that his practice is not to assess outlet liability to the lowest property on a drain. For this reason he has not assessed the Woods’ property for outlet. For the same reason he has not shown the hectares affected in the assessment schedule for this property.

Mr. Dobbin told the Tribunal that, in his opinion, the channel in the bush area is not a natural watercourse but is a low run that provides an outlet for tile drainage of the upper lands. He said:

1. His observation is that water does not flow in the low run through the bush or on the Woods property, except after heavy rains or during the snow melt period.

2. There is no defined channel within the bush lands and no natural source of flow.

3. The majority of flow through the bush is caused by water artificially caused to flow from subsurface drainage installed by upstream owners and excess surface water caused to flow by farming practices in the upper watershed. This water does not follow a regular channel but, rather, follows several paths over the surface of the ground in the swale, he said.

4. There has been excavation in the bush to increase the flow with the excavated materials placed adjacent to the swale in the bush.

5. The area of the Woods farm that is claimed by the appellants to be a natural watercourse has been cropped for 26 years and this is not likely to have happened if there is flow in this area for any period of time.

6. The area requiring drainage is 8.4 hectares on the N½ Lot 19 Concession 13.

7. The Babensky and Packet properties will obtain a legal outlet at the Concession 13/14 line and therefore should be assessed for outlet liability.

8. The Stefanik Drain is sized to accept the water from the Babensky and Packet tile drains.

The Tribunal decided that it was necessary to take a view of the site in order to make a decision on the issues of appeal. The Tribunal adjourned to the site and then walked the area in the Babensky bush property accompanied by the parties and their representatives and made the following observations:

1. Lot 19, Concession 14, falls from the North to South. On both halves of the Lot the south portion is low and left in bush. The natural drainage is to the bush area.

2. The low area in the bush was selected by the owners as an outlet for their tile drainage systems.

3. There was minor excavation completed from the outlet of the Babensky tile downstream for a distance of 30 meters or so to allow the water to flow from the tile. There was evidence of minor excavation from the outlet of the Packet tile nearly to the point where it joined the flow from the Babensky tile.

4. From the point where the two flows joined, the water flowed through a broad swale in a meandering course along and across the bottom of the swale, southerly through the bush. Once the water left the bush area it entered into a broad round bottomed swale on the Woods’ property and flowed into the outlet for the Plympton-McLachlan Drain. The evidence at the hearing was that a tile had been installed beneath the swale on the Woods’ property, but the Tribunal did not see any indication of this on the ground except for a Hickenbottom outlet at the Concession 13/14 line.

5. There were some piles of soil sporadically placed along the length of the upper half or so of the swale in the bush, but it was not clear whether these were naturally occurring or the result of excavation.

6. At some of the locations where the water turned in the swale in the bush, there was a bank or bluff a meter or less in height visible on the outside of the turn.

7. Except in locations where there was obvious excavation, there were no banks confining the flow of water inside the broad based swale or depression in the land surface.

The Tribunal reviewed the arguments and the extensive cases cited by the parties to the hearing. It appears to the Tribunal that the basic concept of a natural watercourse and riparian rights related originally to streams where the water was used by people for domestic and/or commercial purposes. The Common Law evolved in these streams as it became necessary to define the rights and obligations of the various adjacent or riparian owners. A number of rights accrued to the riparian owners on these watercourses and what is now known as the Doctrine of Riparian Rights evolved over time. These rights and obligations attach to the land adjacent to the natural watercourse and are not transferable or saleable by the landowner.

The swale on the Babensky property is at or beyond the extreme end of the spectrum of what might be considered to be a natural watercourse with riparian rights. Viewing the situation in today’s circumstances, it is very difficult for the Tribunal to determine how the flow area was formed. Today it is a wide, flat swale that does not carry much water and, even when it does, flow only occurs at snow-melt or after heavy rainfalls.

Having considered the evidence, the site view and the cases, the Tribunal concluded that the channel in the Babensky bush is not a natural watercourse with accompanying riparian rights.

Because of the lay of the land, the proposed Stefanik Drain will not provide any physical improvement to the outlet of the Babensky and Packet tiles. These tile outlets are a meter higher than the ground level at the head of the proposed drain. However, the proposed Stefanik Drain does provide a legal outlet for the water flowing artificially from the upper watershed at the Concession 13/14 lot line. In the opinion of the Tribunal, the upper properties should pay an outlet assessment for the provision of this legal outlet.

In making his assessments the engineer did not assess the Woods property for outlet. The evidence at the hearing is that the tile system on the Woods property is to be connected to the Stefanik Drain during construction. In the opinion of the Tribunal, the Woods’ property will use the drain to outlet its tiles and so should be assessed for outlet liability. Mr. Dobbin testified that the Woods’ property has 8.4 hectares in the watershed. Some of this land uses all of the drain and some none so the Tribunal sets the equivalent acreage rate at 0.5 or 4.2 hectares. Using the figures of Mr. Dobbin, the whole equivalent hectarage of the property, along with the other equivalent hectarage, gives a total of 60.94 equivalent hectares in the watershed.

The total assessed on private land is $12,450. ⁰⁰ in the first report. This amount is divided 62% as outlet and 38% benefit. In the opinion of the Tribunal, the main purpose of the project is to enclose the channel across the Woods’ property for the benefit of this property. The Tribunal feels this division of cost should be 60% benefit and 40% outlet. This would be $4,980. ⁰⁰ as outlet or $81.72 per equivalent hectare and $7,470. ⁰⁰ for benefit to the Woods’ property. Based on this analysis the assessments are set as follows.

Property Owner

Benefit

Outlet Liability

Special Benefit

Total

Woods

$7,470

$343

$6,012

13,825

Packet

$1,263

$1,263

Babensky

$2,961

$2,961

Poort

$413

$413

Sun Canadian

$508

$508

Totals

$7,470

$4,980

$6.520

$18,970

The engineer has assessed the cost of an additional report enlarging the tile at the request of the owner and extending the drain to an outlet as a Special Benefit against the Woods’ property. The Tribunal does not believe that these items properly fall within the definition of “Special Benefit” set out in the Act, but should nevertheless properly be included as part of the regular benefit assessment against the Woods’ property only, since they are all costs brought about by the owner of that parcel. However, trying to make the appropriate changes in the report would complicate this decision unduly and the Tribunal has therefore decided to leave the Special Benefit Assessment category in place, but deal with it as a regular benefit. The Tribunal recognizes that this approach will also affect the assessment to Sun Canadian, but feels that this is not unreasonable. In the circumstances.

Considering the circumstances of the appeal and the decision arrived at, the Tribunal decided not to award costs to any party to the appeal. In the opinion of the Tribunal, this hearing came about as a result of an honest difference in opinion among the parties and their advisors and was neither frivolous nor vexatious. Therefore, the Tribunal decided that the municipality’s cost of the appeal should be prorated against the assessment schedule, as modified by the Tribunal.

The Tribunal also decided to order housekeeping amendments to the report that were suggested at the hearing and agreed to by Mr. Dobbin. The Tribunal notes that most of these are matters that should have been dealt with by Mr. Dobbin in his report and should not have been left for the Tribunal to deal with. Therefore. the Tribunal feels that the cost of making these modifications, should not be charged to the Stefanik Drain.

ORDER OF THE TRIBUNAL

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

1. The appeal of John Babensky, Raymond Poort and Raymond Packet be allowed as hereinafter provided.

2. Before giving third reading and passing into effect By-law 29 of 1999 the Clerk of the Township of Enniskillen is to modify the assessment schedule by deleting the schedule in the provisional By-law and replacing it with the following schedule:

Property Owner

Benefit

Outlet Liability

Special Benefit

Total

Woods

$7,470

$343

$6,012

13,825

Packet

$1,263

$1,263

Babensky

$2,961

$2,961

Poort

$413

$413

Sun Canadian

$508

$508

Totals

$7,470

$4.980

$6,520

$18,970

3. The engineer is directed to modify his March 9, 1999 report by:

a. Including a statement to the effect that the area requiring drainage is the N½ lot 19 Concession 13, 8.4 hectares.

b. Replacing the plan with a new plan signed and sealed by the engineer and dated and marked as modified by order of the Tribunal, showing the location of the Atkinson Drain and the location of the watershed on the Poort property as indicated on the plan used by the engineer at the hearing and clearly showing the terminus of the Stefanik Drain to be at Station 0+60 which is 87 meters downstream from the outlet of the tile portion of the Stefanik Drain.

c. Replacing the profile in the March 9, 1999 report with a profile showing the Stefanik Drain terminating at Station 0+60 and showing the cross section, side slopes, grade and any other particulars necessary to control the construction and maintenance of the open portion of the Stefanik Drain from Station 0+60 to Station 1+47.

d. Adding a paragraph to the effect that the existing main tile on the Woods’ property in the same general location as the proposed Stefanik Drain is to remain as a private tile but all of the tiles intercepted by the Stefanik Drain on the Woods’ property are to be either reconnected to the private tile, or connected to the Stefanik Drain.

e. Amending the paragraph at the end of the report to the effect that future maintenance of the Stefanik Drain is to be assessed pro rata to the total assessment on each property shown in the schedule.

4. Any engineering fees for amending the report (other then the Schedule of Assessment) is not to be charged as part of the cost of the drain.

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

The reasons for this decision are that, in the opinion of the Tribunal:

1. The main purpose of the work is to reclaim the swale area on the Woods property and therefore should be assessed more as benefit than outlet.

2. The water run in the Babensky and Packet bush is not a natural watercourse with riparian rights.

3. This hearing came about as a result of a difference in opinion among the parties and their advisors and was neither frivolous nor vexatious, therefore no order of costs ought to be made in favour of any party.