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: Johnston Drain Township of East Wawanosh

Johnston Drain (RE) 1999 ONAFRAAT 21

STATUTE: Drainage Act

HEARING: July 28, 1999

DATE OF DECISION: August 12, 1999

1999-21

NEUTRAL CITATION: 1999 ONAFRAAT 21

Johnston Drain Township of East Wawanosh

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 Wilfred Haines, John Haines, Keith Montgomery and Margaret Montgomery under Section 54 (assessments) of the Drainage Act and by Wilfred Haines and John Haines under Section 48 (modification of work) concerning the Johnston Drain in the Township of East Wawanosh.

Before:

Andrew Osyany, Vice-Chair; Jim Rickard, Vice-Chair; Herb Todgham, Vice-Chair; Karen Ratcliffe, Member.

Appearances:

Mr. Wilfred Haines, appellant. Mr. Keith Montgomery, appellant. Mr. Paul Montgomery, appellant. Mr. Andrew McBride, P. Eng., on behalf of Mr. Haines. Mr. Tom Pridham, on behalf of the respondent, the Township of East Wawanosh.

DECISION OF THE TRIBUNAL

This appeal was heard in the East Wawanosh Community Centre at Belgrave, Ontario on Wednesday, July 28^th, 1999. Wilfred Haines, John Haines, Keith Montgomery and Margaret Montgomery appealed to the Ontario Drainage Tribunal (the Tribunal) from the decision of the Court of Revision for the Johnston Drain, Township of East Wawanosh (the Township). Wilfred Haines and John Haines appealed to the Tribunal under Section 48 of the Drainage Act (the Act) from the April 20, 1999 report of Tom Pridham on the Johnston Drain in the Township.

Winona Thompson, Clerk-Treasurer of the Township, performed the duties of the Clerk of the Tribunal.

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.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the April 20, 1999 engineer,s report of Tom Pridham, P. Eng., on the Johnston Drain, Township of East Wawanosh parties to this hearing. Affidavit of proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The Johnston Municipal Drain was constructed under a report of James Howes dated January 18, 1956. The drain had its head at about the mid point of Lot 42, Concession 13, Township of East Wawanosh just south of the line between Concessions 13 and 14. From there it ran in a tile drain varying in size from six inches to ten inches in an easterly direction to the boundary road between East Wawanosh and Morris Townships (now County Road 4, formerly Highway 4). It crossed the road through an existing 18 inch pipe and continued easterly in a 12 inch tile across Lot 1 to about the centre of Lot 2, Concession 1, Morris Township, where the tile emptied into an open ditch. From there it continued as an open ditch with a three foot bottom on its south-easterly course across the remainder of Lot 2 turning easterly across Lot 3 and Lot 4 before turning northerly generally along the line between Lot 4 and Lot 5 to outlet in the flats of the Maitland River. There is one branch drain. “A” Drain is a tile drain commencing in a 24 inch diameter road crossing pipe opposite Lot 42, Concession 13, Township of East Wawanosh and flowing easterly across the boundary road (now County Road 4) into an eight inch tile drain that flows north-easterly across Lot 1 and part of Lot 2, Concession 1, Township of Morris to join the main tile drain where it empties into the open ditch outlet near the centre of Lot 2.

In 1982, Mr. Wilfred Haines, the owner of Lot 2, Concession 1, Morris Township, after consulting with the Council of Morris Township installed about 200 m of 16 inch diameter tile drain parallel to the Johnston Drain open ditch in Lot 2, Concession 1. This tile was adopted as part of the Johnston Drain and the open ditch portion of the Johnston Drain in Lot 2 was abandoned and filled under a report prepared by Art Clark, P. Eng., dated September 9, 1982.

In 1983, Mr. Wilfred Haines, the owner of Lot 3, Concession 1, Morris Township, after consulting with the Council of Morris Township installed a further 400 m of 16 inch diameter tile drain parallel to the Johnston Drain open ditch across Lot 3, and most of Lot 4, Concession 1. This tile was adopted as part of the Johnston Drain and the open ditch portion of the Johnston Drain in Lot 3 and Lot 4 beside the tile was abandoned and filled under a report prepared by Art Clark, P. Eng., dated October 28, 1983. Thus, as of 1983, the Johnston Drain consisted of a tile drain starting near the centre of Lot 42, in East Wawanosh Township, flowing easterly to and across County Road 4 and then continuing through Lots 1, 2, 3 and most of Lot 4, Concession 1, Morris Township. It then became an open ditch to the line between Lots 4 and 5, Morris Township, where it turned northerly and continued as an open drain outletting into the river flats of the Maitland River in Lot 4.

“A” Drain remained as it had been since 1956 - a tile drain running easterly and north-easterly from the west limit of County Road 4 and joining the Main Drain near the centre of Lot 2, Township of Morris.

Mr. Tom Pridham, P. Eng., was appointed by the Council of the Township of East Wawanosh to prepare a preliminary report in response to a request for the repair and improvement of the Johnston Municipal Drain under Section 78 of the Act submitted by Paul Montgomery, dated January 26, 1998

At the site meeting on April 18, 1998, the owners expressed interest in diverting the northerly part of the upper watershed west of County Road 4 to outlet into the Maitland River flats in East Wawanosh Township. A preliminary report was completed in March, 1999. The preliminary report outlined three alternatives. Option 1 and 2 being tile options following the alignment of the existing Johnston Drain and Option 3 being the option exploring diverting the upper part of the watershed to the north. The difference in Option 1 and Option 2 was the design standard adopted for the work with Option 2 having a higher runoff coefficient. After considering the preliminary report, a decision was made to prepare a final report based on Option 2.

The proposed work is comprised of a Main Drain and 'A' Drain and includes the following:

175 metres of open drain bottom cleanout,

1198 metres of closed drain installation on the Main Drain and 333 metres of closed drain installation on “A” Drain (including a road boring at each road crossing),

1 road boring of a new flood culvert (overflow culvert),

Appurtenances associated with the work which include the installation of three junction boxes and seven catchbasins.

The proposed drain will incorporate the 16 inch tile installed in 1982 and 1983, repairing the 1982 tile as required. The tile installed in 1956 is to be abandoned.

The drain has been designed for the following coefficients:

Land Upstream of Crawford Street – 1”/24 hours,

Land Downstream of Crawford Street to junction with “A” Drain – 3”/24 hours,

Land using “A” Drain – 2”/24 hours,

Land from junction to tile open outlet – 1”/24 hours,

The combination of existing and new tile will provide an overall coefficient for the entire watershed on the outlet section of the tile of approximately 1”/24 hours,

There is also provision for excess surface flow in places when the tile capacity is exceeded.

The watershed comprises roughly 65 hectares (160 ac.) of which roughly ten percent is residential and commercial. A large area of Huron County Road No. 4 is also within the watershed.

The soils in the watershed are primarily Harriston loam, Dumfries loam, Donneybrook sandy loam, and Teeswater silt loam with the majority being Harriston loam.

The total estimated cost for the work is $132,500 which includes a Special Assessment to the County of Huron of $26,500 for the increased cost of the work on County Road No. 4 due to the presence of the road.

Allowances were based on a rate of $1,500 per hectare ($600 per acre). The working space allowed was 10 metres for the open work and 20 metres for the tile work.

For assessment purposes, the drain was assessed in the usual manner over five sections based on a hypothetical 1"/24 hours design. The costs of oversizing the proposed design beyond 1”/24 hours were assessed to the County of Huron and Township of East Wawanosh roads.

The Issue

There are three issues before the Tribunal:

1. Should the proposed work be modified by diverting the upper portion of the watershed to the north and abandoning the proposed tile improvements on the Johnston Main Drain in Lots 1, 2, 3 and 4, Concession 1, Morris Township?

2. Are the allowances for damages to crops provided in the April 20, 1999 engineer’s report adequate?

3. Are the assessments, as proposed in the April 20, 1999 engineer’s report and approved by the Court of Revision, appropriate?

The Evidence and the Findings

Mr. Wilfred Haines, appellant, told the Tribunal that he owns Lots 3 and 4, Concession 1, Morris Township. He and his son John, own Lots 1 and 2, Concession 1, Morris Township. He is speaking on behalf of both himself and his son. He filed with the Tribunal a sketch plan of the lots showing the locations of the existing tile drainage system. He said that the land is completely tiled to his satisfaction and no more tiles are needed.

He said that since their land is sufficiently tiled:

• there is no benefit to their land for the work,

• the land does not need any additional outlet,

• the proposed concrete tile just serves to carry the upstream water across his properties and there is no way water from his properties can get into the tile.

He is asking the Tribunal to reduce the assessment on his properties to $0.

Mr. Haines then talked about the allowances. He said that the engineer had provided an

allowance of $600 per acre for crop damage. He said this only covers the value of one crop. He said that the construction will result in compaction of the working area. The effects of compaction can last for ten years, according to Mr. Haines. He asked the Tribunal to provide crop damages according to a formula which is:

Year 1 60% crop reduction

Year 2 54% crop reduction

Year 3 48% crop reduction

and so on for ten years.

He said using a figure of $600 for the value of the crop, this formula produces an allowance of $1,980 per acre over the ten year period for a total allowance for crop damage of $12,129 for the 6.126 acres affected by the working width of the drain. The total allowances provided under Section 30 in the Report on Lots 1 to 5, including Morris Township, is $3,675.

Mr. Haines told the Tribunal that he had installed 16 inch tile across part of Lot 2 and Lot 3 in 1982 and 1983 and so should be paid for the use of this tile. The Tribunal pointed out that he already had been paid for this tile in the Clark Reports of 1982 and 1983. These tiles are now legally a portion of the Johnston Drainage Works not Mr. Haines” private tile.

Mr. Haines said that he intends to extend the tile drain further across the property when finances permit. Since the tile is now a 24 inch tile it will be very expensive for him to complete this drain on his own. He asked the Tribunal to direct that the Township of East Wawanosh pay a share of the cost of extending the 24 inch tile when he feels it is time to do that work. Mr. Haines did not know how much the work would cost and therefore did not have a dollar figure that he was requesting.

The Tribunal wishes to bring to Mr. Haines attention that this open ditch on his property is part of the Johnston Drainage Works. If he wishes to enclose the open ditch portion of the drain, he must request an improvement to the drain under Section 78 of the Act. At that time, if the township council accepts the request, an engineer will be appointed to prepare a report on the work. At that time, the cost of extending the tile drain will be apportioned among the affected property owners in accordance with the Act.

Mr. Haines argued that the presence of the drain on his property would adversely affect the real estate value of the land. He filed a letter from a real estate agent expressing the opinion that the drain would have a detrimental impact to the selling price of the land but the agent would not estimate how much impact the drain would have. Mr. Haines set the reduction in real estate value at $12,000 for Lot 1 and $6,000 each for Lots 2, 3 and 4 for a total impact of $30,000.

In summary, Mr. Haines asked the Tribunal to provide allowances totaling $42,129 ($12,129 crop damage and $30,000 adverse real estate impact) plus a portion of the cost of closing the open ditch across the rest of Lot 4 to outlet into a 24 inch tile.

Mr. Haines filed with the Tribunal a quotation from a tile drainage contractor stating that a tile drain could be constructed northerly along the line between the Hutton and Beldman properties in Lot 42, Concession 14, Township of East Wawanosh to outlet in the Maitland River in East Wawanosh. The result of the work would be a diversion of the upper watershed out of the watershed directly to the river and elimination of the need to construct the new tile on his lands. The total quotation for the construction cost for the diversion is $61,950 + G.S.T. He said this would provide a benefit to the houses and lands designated for development in East Wawanosh and would be a better solution for the drainage problems of the watershed.

In response to questions, Mr. Haines said that:

1. The “A” Drain does cause problems. The 24 inch road culvert is outletting into an eight inch tile that does not have sufficient capacity.

2. The outlet for the open ditch on the north part of Lot 4, Morris Township, is known as “the prairie”. The land is level and the water definitely finds its way into the low land and flows straight west to the river. It does not go north as the map in the report shows. The land used to be pasture but is not used at all now.

3. He bought Lot 1 and Lot 2 about 20 years ago. Lot 3 was obtained in 1960. His grandfather was the owner of Lot 4.

4. The Johnston Drain was in existence on Lot 1 when he purchased it and the benefit of the tile drain was greater than the problems so it did not adversely affect the price he paid for the land. The ditch was dug in the 1940's starting in Lot 3.

5. He has not had crop loss on his land due to compaction.

6. There was a gas line installed on the other side of the boundary road but he was not aware of crop loss on that land due to compaction from the construction equipment.

Mr. Paul Montgomery, assessed owner, told the Tribunal that he had suffered from flooding and had requested improvements to the drainage outlet. He explained that it has taken a long time to get to the report under consideration. He purchased subdivision Lot A by tender from the municipality in 1980. Water ponded naturally in Lot A and he filled the lot and built his home. He said that, in his opinion, the problem was caused by negligence of the municipality. He asked the Tribunal to discard the current report, order the engineering costs to be paid by the engineer and direct that a new report be prepared to take the water on a diversion route to the north at a reasonable cost. He complained that Mr. Pridham had been hired in March of 1998 to prepare a report on the project and the report was not completed until April 1999. This is longer than the six-month time frame in the Act and should not be allowed.

In response to questions, Mr. Montgomery said that:

1. A drain is needed but not the drain proposed by Mr. Pridham.

2. In his previous attempt to get a culvert under the boundary road, the Ontario Ministry of Transportation and Communications said the drainage problem was not a highway responsibility and the Township did not do anything to force a culvert under the highway.

3. There is a problem of excess water on his property as well as Keith Montgomery’s property in Lot 42, Concession 13, and on subdivision Lot 1. At times, Crawford Street at Lot 1 is under a foot of water.

4. He bought the property from the Township, received a building permit from the Township and had his construction inspected by the Township. The present drainage problem is the responsibility of the Township.

Mr. Allan Cunningham, assessed owner, told the Tribunal that he had appealed his assessment to the Court of Revision but not to the Tribunal. The Court of Revision denied his appeal. He said before Paul Montgomery bought Lot A, water used to pond there. The purpose of the low ground was to pond and let the water drain away as the drain could handle it. Since the lot was filled, the water does not back up onto his property as his land is at a higher elevation. In his opinion, the benefit of the proposed work falls to the residential lots and this benefit is more than what these lots have been assessed. Without the drain, the lots will continue to flood. He said he has changed the farming practices on his land to pasture and hay from cash crop. This should result in less runoff than before. He said he would accept his assessment but could not afford to pay more. He asked the Tribunal to increase the assessment on the residential lots as that is where the benefit of the project would be noticed.

In response to questions from the panel, Mr. Cunningham said that:

1. An outlet assessment of $5,000 on his land would be more appropriate than the $8,718 he is currently assessed.

2. At the head of “A” Drain, the grading for the catchbasin comes into the field. This needs to be fixed.

3. Now that the residential lots are filled, the rest of the owners have to pay to get rid of the water that would have lain there.

Mr. John Beldman, assessed owner in Lot 42, Concession 14, told the Tribunal that he prefers that the water be diverted north since the contractor’s estimate of the cost of the work is less than the proposal in Mr. Pridham’s report. He pointed out that some of the existing houses have their foundation drains connected to field tile on his land. When he builds on his lots, these connections are likely to be severed so the diversion drain would be better as these lots could connect their drainage to it.

Mrs. Charmian Hills spoke on behalf of Mr. Hutton. She said that Mr. Hutton was ill and unable to attend the hearing but he wanted the Tribunal to know that he cannot afford the diversion drain to the north. He believes that the proposal in the Pridham Report benefits more people at less cost.

Mr. Andrew McBride, P. Eng. spoke on behalf of Mr. Haines. Mr. McBride told the Tribunal that Mr. Haines, along with Mr. Allan Hayter and Mr. Dale Batram, both from Hayter Contracting, came to his office on Monday, July 26 asking for advice on the size of a tile to divert the upper watershed to the north. Mr. McBride said he reviewed the report of Mr. Pridham and calculated the capacity of the tile that was proposed. He then provided Mr. Haines with the size of tile needed to provide the same capacity to the north. He said he was able to perform the calculations as he already had on file topographic information on the Beldman property that was obtained from the survey crew that had taken the profile for the Johnston Drain for Mr. Pridham. He said Mr. Hayter has the largest wheel trenching machine in this part of the province, it can dig a trench four feet wide and 10 feet deep. Using the topographic information, he identified those areas where the cut to install the diversion would be more that 8.5 feet so Mr. Hayter could estimate the cost of installing the tile.

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

1. He told Mr. Hayter that he would have to use extra strength field tile.

2. He is using 3 ft. x 4 ft. catchbasins instead of manholes on the drain.

3. The diversion option is similar to Option 3 in the preliminary report but this is an agricultural drain, not a storm sewer as proposed in Option 3.

4. He has not made contact with the Department of Fisheries and Oceans about diverting water out of the open ditch in Lots 4 and 5, Morris Township.

5. Most of the Hutton property does not drain to the Johnston Drain and the diversion tile is not designed to accommodate the water from the Hutton property.

6. This alternative design is only intended to take care of the existing Main Drain watershed upstream of the boundary road but not the land outside of the watershed or the land in the watershed of “A” Drain

7. He has not reviewed the engineer’s report or preliminary report in detail.

8. In his opinion, there are advantages to go north. Mr. Beldman’s proposal to develop the property on the east side of the diversion drain would be of value to that property. Mr. Haines has no drainage problems and is not opposed to excess surface water running across his property. If there is more benefit to the diversion to the north and not a detriment to Mr. Haines, then the diversion route is the preferable alternative.

9. The diversion proposal does not address the “A” Drain watershed nor any possible problems with the Johnston Drain on the Haines property.

10. In his opinion, crop damage allowances in the area should be based on a figure of $500 per acre for first year, 2/3 of this in the second year and 1/3 in the third year for a total of $1,000 per acre. He based this opinion on crop statistics that he obtained from the Ontario Ministry of Agriculture Food and Rural Affairs.

11. In his opinion, the property owned by Mr. Beldman can be developed now and there is a possibility that the property owned by Mr. Hutton could be developed.

12. The northerly diversion price of $62,000 does not include any work on the upper portion of the Johnston Drain, or on “A” Drain of the Johnston Drain. It only eliminates the work on the Main Drain from the confluence with “A” Drain to the west corner of the Beldmans. The other work in the report will have to continue in order to address the rest of the problems in the watershed.

In his reply evidence, Mr. Pridham told the Tribunal that the northerly diversion, as proposed by Mr. Haines, is not viable for the following reasons:

1. It is designed as an agricultural drain for the part of the watershed it will serve whereas it is expected that the watershed will be developed. The diversion, to be acceptable, should be designed as a storm sewer.

2. The diversion, as proposed, will not service the Hutton property although it would run through it.

3. The proposal is to be constructed using butt joint tile. These tiles are not suitable for use in areas where there are trees likely to be planted as they fill with tree roots.

4. The cost of all of the tile work on the drain he recommends in his report going easterly, he estimates at $65,000. The cost of the north diversion tile work, proposed by Mr. Haines, is $61,950 + G.S.T. There is no saving in the proposal and it does not address the issues on “A” Drain or the maintenance problems with the tile installed in 1982 on the Johnston Drain.

5. The water-table in the area is high and the diversion estimate does not include any price for stone bedding that may be required.

He said that there is no doubt that work is needed to solve the drainage problems of the area.

On the issue of allowances, he told the Tribunal that in December the Tribunal had set the allowances for crop damages on a nearby drain at $600 per acre, the figure he used. The report provides for topsoil stripping and replacement in the section where tile work is done. The open ditch work is minor and the sediments to be removed are silt and topsoil. He said the allowance of $600 per acre covers the crop value and compensates for some reduced crop in the future. He argued that the allowances, as provided, are adequate and appropriate for the project proposed.

Mr. Pridham filed with the Tribunal a detailed breakdown of how the assessments were calculated. He assessed the drain based on what it would cost to construct an agricultural drain with a one inch drainage coefficient. Part of the drain is designed to that standard but the outlet portion in Morris Township is at a two inch drainage coefficient standard because of the need to dispose of water collected on the roads. The total increase in cost of increasing the tile from the one inch coefficient to a two inch coefficient he charged to the roads. He took the remaining estimated cost and deducted the Special Assessment (Section 26) to the road. He then broke the project into five lengths, decided on a portion to be assessed as benefit and the remainder he assessed as outlet according to the equivalent hectares of each parcel. He varied the benefit portion from 15% at the outlet, to 70% at the head of the drain.

In response to questions from the Tribunal, Mr. Pridham said there were two minor errors in the report that he would like the Tribunal to order corrected. Firstly on Page 11 in the Schedule of Construction Assessments the property of D & E. Conley is shown as roll number 1-005-00 and should be Roll Number 1-055-00. Secondly, on Page 13, in the first and second paragraphs the Maintenance Assessment Schedule is identified as Appendix F, but the correct reference is Appendix G.

The Tribunal reviewed the evidence and submissions.

Proposed modification of the drainage works

This was the major issue at this hearing. Before disposing of this issue, this panel of the Tribunal wishes to provide some background and assistance to the appellants in this case and those similarly situated in subsequent appeals.

Almost without exception, appellants file notices of appeal that have a series of check boxes, and appellants merely tick the ones that they rely on. These notices of appeal do not give any particulars. In the case of an appeal under Section 48, they merely state: “drainage works should be modified on grounds to be stated”. In an effort to make the appeals more useful by focusing the attention of the appellants on the issues to be presented and to allow the other parties and the Tribunal to prepare for the appeals, appellants have been requested in recent times to fill out an appellant’s statement. The Tribunal is grateful to those appellants who take the trouble to provide a well-rounded statement. From these statements, the Tribunal is able to determine if a relatively minor modification or a major change is to be sought. Presumably, the engineer would already be aware of these issues from the site meetings and discussions brought about by the preliminary and final reports.

Generally speaking, minor variations can be accommodated within the overall framework of the existing engineer’s report. In the case of these minor variations, the parties are able to deal with the matter in a reasonably thorough fashion and the Tribunal can make an appropriate decision.

Where a major change is sought, which in effect is an alternative engineering project, there is a heavier burden on the proponents. The proponents must convince the Tribunal that the alternative is preferable. The Tribunal must be able to come to a decision on the relative merits of the project as designed by the engineer, and the alternative placed before it. The Tribunal can only do this if the proponents bring to the Tribunal a fully worked out proposal. Unquestionably, this means that the proponents must retain the services of a drainage engineer well ahead of the hearing, so that the report can be prepared and provided to the engineer appointed by Council. The Tribunal recognizes that this places a financial burden on the proponents, and the Tribunal would be prepared, in the appropriate circumstances, to make an order that the cost of the engineer preparing the alternative proposal be a cost to the drain, so that all assessed owners on the drain share in the cost.

A different procedure for the Tribunal in dealing with a request for a major change is to refer the report back to the engineer (or another engineer) to bring back a fully worked out alternative. However, this procedure undoubtedly results in extra costs because of the additional hearing that is required, and the Tribunal would normally expect the proponents to absorb these extra costs.

What happened here? The engineer designed and prepared preliminary costing for three alternatives: two of them follow the existing drain and are designed as farm drains, providing five and eight times the existing capacity respectively. The third alternative diverts the waters from the watershed northerly and is designed as a storm sewer, with 30 times the existing capacity. The third alternative is the costliest and Council accepted the engineer’s recommendation to go with the second alternative.

As mentioned above, two days prior to this hearing, one of the appellants attended on J. A. McBride, a well-qualified and locally knowledgeable drainage engineer, asked him to work out the design parameters for the northerly diversion that would provide the equivalent capacity of the alternative chosen by Council. With him was a locally known and reputable drainage contractor. Based on the McBride figures, the contractor prepared a one page estimate. Based on this estimate, the Tribunal was asked by all appellants to discard the engineer’s report and to go with this alternative proposal.

In this case, the appellants have known since March 23, 1999 when the Township Council directed the final report be prepared that the engineer preferred a route following the existing Johnston Drain. There is no reason why they could not have had Mr. McBride conduct a thorough study of the diversion and provide a design that he is prepared to stamp and sign as being appropriate rather than just saying: “here is the size of a drain that will carry as much water in a diversion as the township engineer is providing in his design”. The Tribunal notes that Mr. McBride did not recommend the diversion tile work, he merely said here is a tile size that will carry the same water as the drain Mr. Pridham designed. He also acknowledged that the alternative does not include all the work that Mr. Pridham’s report calls for.

The evidence shows that the construction estimate for a northerly diversion, designed to an agricultural drain standard, serving only a portion of the watershed was almost the same as the construction cost of the tile work proposed in the report under appeal. The engineer’s report under appeal served the whole watershed. When all factors are considered and the cost of the work on “A” Drain is included it appears that the north diversion, even at an agricultural design, will be more costly than the proposal in the report. The Tribunal sees no cost advantage in the northern diversion and has insufficient engineering information to conclude that it is preferable to the proposed work.

The Tribunal will deny this portion of the appeal for two reasons: procedurally the alternative proposal could not be considered at this hearing fully and fairly to the engineer and the non-appellant assessed owners; and substantively, what was shown of the alternative proposal failed to show any design or cost advantage. Therefore, the question of referring the costing of the alternative proposal back to the engineer or Mr. J. A. McBride did not arise. Had it arisen, the Tribunal would have dealt with the additional costs occasioned by the cost of the extra hearing.

Allowances

On the issue of allowances, in the Tribunal’s experience, the allowance for crop damage accounts for some reduction in future years as a result of a number of factors including compaction. Mr. McBride’s evidence is that the allowance should be in the order of $1,000 per acre, while Mr. Pridham used $600 per acre. In the opinion of the Tribunal, there was not enough evidence presented in this case to vary from the normal practice of accounting for all crop effects of construction in one allowance of $600 per acre.

Assessments

The Drainage Act places a high professional duty on engineers. This duty extends to the preparation of the preliminary and final reports. The Tribunal has been concerned that a large number of the engineer’s reports are deficient in a number of particulars. Over the years, the Tribunal has commented on these deficiencies and has given practice directions. Engineers ignore these directions at their own peril. The Tribunal wishes to call the attention of the profession and the parties to the following principles, which have already been publicised in several cases:

1. In the event that the Tribunal is persuaded that the appeal was caused by the deficiencies in the report, the Tribunal would not hesitate to assess part or all of the costs of the appeal against the engineer. This is because the Tribunal regards such an occurrence as a major failing in the engineer’s statutory duty.

2. In the event that the Tribunal is persuaded that the deficiencies in the report, while not the principal cause, contributed to the existence and length of the appeal process, the Tribunal would not hesitate to disallow some of the engineer’s costs being assessed to the drain.

3. The engineer’s duty encompasses the inclusion in the report of a description of how the engineer arrived at his assessments. Normally this includes a narrative of the overall concept of the drainage work and the relative allocation of benefit and outlet. In the event that the engineer breaks the assessment of the project into segments, his treatment of the various segments would also be described.

The Tribunal has not hesitated to criticize, and in appropriate cases penalize, engineers who have not kept to the required standards. The Tribunal has also complimented engineers in appropriate cases for their thorough and clear treatment in their reports of their methods of determining the assessments.

In this case, although there is a Main Drain and an “A” Drain, there is a single assessment schedule, and no description of how the engineer arrived at his assessments. In the view of the Tribunal, it is appropriate to have separate assessment schedules for the Main Drain and each branch. As well, the Tribunal reiterates (again) that the practice of including “net assessments” is neither based on the statute nor is it appropriate and it will therefore order that these be removed from the report.

At the hearing, Mr. Pridham provided satisfactory materials as to how he worked out the assessments. The Tribunal is of the opinion that generally these details ought to be in the report. The engineer has to do the work in order to arrive at the figures. The assessed owners pay the cost of this work and are entitled to have it for review. How else can the owners determine if the engineer has been reasonable and fair in allotting the costs? As demonstrated at the hearing, people have different memories of the events that transpire at the meetings and at the Court of Revision. If the information is in the report, there is no question of what the engineer has done. In the opinion of the Tribunal, the details of the assessment calculation should in included in this report for the benefit of the owners and the engineers in the future who will be required to review the project when maintenance or improvements are calculated.

Because the Tribunal is of the view that the appeals in this case were occasioned by the request for the diversion alternative, the Tribunal is not imposing any penalty on the engineer, except the requirement to have the additional assessment information inserted in the report at his own expense.

Mr. Pridham has followed the preferred model of taking out the special assessments first, then breaking the work into sections, and then dividing the assessments on each section into outlet and benefit and assessing benefit to the benefiting properties and outlet to the upstream properties based on equivalent areas. In addition, he also charged the municipalities for the increase in size from the normal one inch coefficient to a two inch coefficient. On review of the details of the calculations, the Tribunal found no reason to interfere with the judgment of the engineer.

Concern was expressed by one of the appellants that the preparation of the preliminary report took more than six months to complete. The Tribunal is satisfied that this is not at all unreasonable in the circumstances, when there were three options to be considered, designed and reported on, and it sees no reason for it to take any action in this regard.

ORDER OF THE TRIBUNAL

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

1. The appeals of Wilfred Haines, John Haines, Keith Montgomery and Margaret Montgomery under Section 54 of the Act are dismissed.

2. The appeals of Wilfred Haines and John Haines under Section 48 of the Act are dismissed.

3. Before passing By-law number 6, 1999, the Clerk of the Township is to amend Page 11 in the Schedule of Construction Assessments by changing the Roll Number for the property of D & E. Conley from 1-005-00 to 1-055-00.

4. Before passing By-law number 6, 1999, the Clerk of the Township is to amend Page 13 of the report by deleting the words “Appendix F” where it appears in the third line of the first paragraph and the third line of the second paragraph and substituting therefore the words “Appendix G".

5. Before passing By-law number 6, 1999, the engineer is to amend the report at his own expense by deleting from the Assessment Schedule the two columns headed “Est. Grant” (if applicable) and “Est. Net Cost”.

6. Before passing By-law number 6, 1999, the engineer is to amend the report at his own expense by inserting the details of how the assessments were calculated as per Exhibit 21 (Assessment Considerations) and Exhibit 22 (Assessment Breakdown for Hypothetical 1” Design - 5 Sections) as Appendix “H”.

For the sake of clarity, he may properly choose to consolidate this information into a single chart that still provides the breakdown given in Exhibits 21 and 22.

7. 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 reasons for this decision are:

1. The Tribunal was not convinced by the evidence that the northern diversion option, as proposed, was superior to the work proposed in the report.

2. The Tribunal was convinced by the evidence that the assessments for this project are fair and reasonable considering all of the circumstances of the project.

3. The Tribunal was convinced by the evidence that the allowances provided in the report are fair and reasonable considering all of the circumstances of the project.

Dated at Shelburne, Ontario this 12th, day of August, 1999.