Brian Stewart and William Miller v. Township of Moore, 1999 ONAFRAAT 25

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Harkness Drain Township of Moore

Harkness Drain (RE) 1999 ONAFRAAT 25

STATUTE: Drainage Act

HEARING: September 2, 1999

DATE OF DECISION: September 16, 1999

1999-25

NEUTRAL CITATION: 1999 ONAFRAAT 25

Harkness Drain Township of Moore

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 Brian Stewart and William Miller, both of Mooretown, Ontario, under Section 48 of the Drainage Act from the engineer’s report dated March 30, 1999 on the Harkness Drain in the Township of Moore.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Warren Jenner, Member.

Appearances:

William Miller and Brian Stewart, appellants.

Peter Meharg, P. Eng., on behalf of the respondent the Township of Moore.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Moore in Mooretown, Ontario on September 2, 1999. Brian Stewart and William Miller appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the engineer’s report dated March 30, 1999 on the Harkness Drain in the Township of Moore.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the March 30, 1999 engineer’s report on the Harkness Drain, Township of Moore, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Sandra Brennan, Deputy Clerk of the Township of Moore (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.

The Background

The existing Harkness Drain lies within the Moore Line road allowance on the north side of the travelled portion of the road. It begins (Station 0+000) near the west limit of Lot 14, Concession 7 and flows east to near the east limit of Lot 12, Concession 7 where it turns north and runs along the line between Lots 11 and 12 in Concession 7. The drain consists of an open ditch, underlain by a tile drain. The tile drain is out of repair and lacks depth and capacity to properly accommodate the subdrainage flow from the tributary area. The Moore Township Road Authority feels that, along the Moore Line, the drain constitutes a traffic hazard and infringes on the road grade to the extent that the road cannot be brought up to current Township standards and therefore would like the drain moved off the road allowance when major work is being contemplated to repair the drain.

A preliminary report detailing alternative solutions was filed on February 2, 1997. Solutions ranged from repairing the drain in its present location to moving the drain entirely off the road allowance. After consideration of the alternatives, a decision was taken to relocate the drain only to the extent necessary to provide the Road Authority with sufficient space to rebuild the road to an acceptable standard.

The proposed work involves the replacement or upgrading of the access culverts along Moore Line Road, the Waubuno Road culverts and the occupation of varying widths of the abutting lands to the north of the Moore Line limits. The centerline of the new drain is 0.9 m north of the north limit of the right-of-way. This means that on average, there are 3.5 meters of open ditch on the private property with the maximum encroachment being 4.3 metres. The work also includes replacement of the tile in the centre of the open drain, with tile varying in size from 200 mm to 525 mm including appurtenances. Eight covered branch drains are to be installed under Moore Line Road to allow tile drainage water from the lands south of the road to be connected to the new tile drain.

Access culverts are provided as a normal part of the work. In addition to the access culverts, lawn piping has been provided for owners on the north side of Moore Line Road with the cost charged as a special benefit assessment.

For W ½ Lot 13,Concession 7 (Brian Stewart) 107 m of 1200 mm pipe is being installed:

• 10 m of this is for the access culvert,
• 30 m is lawn piping and assessed entirely to the owner
• 67 m is assessed to W ½ Lot 13, Concession 7 as a special benefit assessment not eligible for grant.

This pipe is offset four metres to the south, close to the location of the existing drain, in order to avoid trees on the Stewart property.

For E ½ Lot 13, Concession 7 (Chris Bogaert) 40 m of 1200 mm pipe is installed,

• 10 m of this is for the access culvert and
• 30 m is lawn piping assessed 90% as a special benefit to this lot and 10% to the Township road.

For W ½ Lot 12, Concession 7 ( Joseph Walsh) the existing eight metres long access culvert is being re-installed with a 32 m extension. Two metres are considered an extension to the access culvert and the remaining 30 m of lawn piping is charged 90% to W ½ Lot 12, Concession 7 as a special benefit assessment and 10% to the Township road.

For E ½ Lot 12, Concession 7 (William Miller) the existing 1070 mm access culvert is being removed and replaced with 40 m of 1200 mm pipe.

• 10 m of the new pipe provides an access culvert and
• 30 m is lawn piping assessed 90% as a special benefit to this property and 10% to the Township road.

In all cases the lawn pipe and the Stewart extended lawn pipe, allows the work to be done and avoid removing trees on the private land adjacent to the road right-of-way.

The estimated cost of the work including the nine branches under the road pavement is $270,000. The watershed consists of approximately 132.5 ha., of which 5.7 ha. are road allowances and small holdings with the balance being cleared agricultural lands. The soil type is Caistor clay and the landform is generally level and tends to slope gently to the east and north.

The Issues

The issues before the Tribunal are:

1. Are the allowances provided in the March 30, 1999 report appropriate?

2. Should the work be modified by requiring the drain to be reconstructed in its present location?

The Evidence and the Findings

Brian Stewart told the Tribunal that he is concerned with what is proposed in front of his property. He said he has a number of trees on his property along the road that are valuable to him, that he would like to save, but he cannot afford to pay the special assessment for the pipe necessary to save these trees. He agrees that the drain, as it now exists, constitutes a safety hazard for the road and feels the Township should be paying more to solve the road problem. He contacted a consulting tree expert who provided him with an estimate of the value of the trees that will be lost and potentially damaged as a result of the construction. The total of this estimate is some $18,000. Mr. Stewart asked the Tribunal to either:

1. leave the drain in its existing location and put a new tile in, or

2. follow the proposal in the report and charge the cost of the pipe in front of his property to the Township, or,

3. put the drain straight on his property rather than off-setting it, take down the trees and pay him the full value of the five trees removed as estimated by the tree expert ($6,961) and place a five year guarantee on the remaining trees. If during this five year period any or all of these trees dies, he is to be paid the amount shown by the tree expert ($8,809).

Mr. William Miller told the Tribunal that the amount of his allowance for damage and right-of-way was insufficient. He said the other owners receive about $990 for working in front of their properties for a distance of 60 rods. On his property he has the 60 rods that face the Moore Line Road and another 60 rods when the drain turns and runs along his line fence. This is the area where the repair will be done on the outlet. The contractor will have to cross his land with stone and trucks of fill to do the work and he is not provided enough payment for the damages that will occur. Mr. Millar also asked that the access route to the drain on his land be altered. There are shallow field tiles along the route suggested and he would prefer the trucks use his lane and go directly to the outlet so these tiles can be avoided.

Mr. Miller told the Tribunal that he is going to lose seven trees as a result of the construction. Three are old maple and not very valuable, two can be moved, but he will lose two good trees, one of which is an English Walnut that he has nurtured for the past 25 years and is now bearing fruit. He said he is not compensated sufficiently for this tree, but he cannot see paying the cost to install a pipe to bypass the tree, so he asked the Tribunal to eliminate the 30 m of pipe on his property and also to eliminate the special benefit assessment for this pipe.

Mr. Miller said that, in his opinion, the drain should be repaired in its present location and then moved off the road, if and when, the road is rebuilt.

Gary Hackett, Drainage Superintendent and Construction Coordinator for the Township, told the Tribunal that the Road Authority was asking for the drain relocation to allow the Authority to provide a rural standard road. He said the existing road has no shoulders or buffer between the ditch. He confirmed that since the 1960’s the Authority’s policy has been that when major work is proposed to be done on a drain on the road right-of-way the Authority requests the drain be moved off the road allowance. He said in this case, since the owners had objected so strenuously, the Authority compromised and just moved the drain the minimum necessary to provide for a 2:1 bank side slope on the road side of the drain.

Mr. Peter Meharg, P. Eng., the engineer who prepared and presented the March 30, 1999 Harkness Drain report, told the Tribunal that;

• He allowed a working easement of 12 m wide along the drain at a rate of $360/acre.
• He allowed a buffer of 1.5 m wide along the farm side of the drain at a rate of $1,000/acre.
• He allowed $2,000/acre for land taken for construction of the open ditch.
• He initially allowed $250 for the trees on the Miller property, and subsequently increased that to $400 to account for the English Walnut tree. He asked the Tribunal to order this increase in allowances as this amount was recommended after the report was prepared.
• In reviewing the allowances in preparation for the hearing, he now agrees that Mr. Miller was not compensated adequately for right-of-way and damages. He recommended that the Tribunal increase these allowances to $1,229 from the $990 shown in the report.
• He diverted the new drain in front of the Stewart property back to the existing location and provided for piping of the drain across 107 m of the frontage of the Stewart land. When he did this he neglected to delete the allowance for trees. Since the trees will be preserved by the construction of the diversion, he asked the Tribunal to delete the tree allowance for the Stewart land. He explained that the allowance was made up of $1,029 for fence replacement and $500 for trees. It is just the $500 for trees that he recommends be deleted from his report.
• He assessed the lawn pipe and other additional pipe beyond a 10 m access culvert partly to the adjacent owners as a special benefit and partly to the Township road.
• The project was initiated at the request of Mr. Russell Eyre who requested the tile portion of the drain be repaired, and owners on the south side of the road who wanted connections to the drain from their lands. When the Road Authority became aware of the proposal for drainage improvements, the Authority attended the site meeting to request the drain be moved off the road allowance.
• He assessed 100% of the 30 mm lawn pipe and the extra 67 m Stewart pipe to the adjacent owners. He then followed the Moore Township policy on cost sharing of lawn piping, and he reduced the special benefit assessment on the Walsh, Miller and Bogeart properties by 10% and increased the special benefit assessment to Moore Township by a like amount. He did not consider the 30 m lawn pipe on the Stewart property to be eligible for the Township cost sharing policy.

In response to questions from the panel Mr. Meharg said:

• The difference in cost if the work was done in the existing location without moving the drain, rather than in the proposed location, is approximately $96,000 including overhead.
• He calculated the allowances for right-of-way and for damage to crops separately, but did not show the amounts separately in his report.

The Tribunal examined the evidence and the submissions made. The appellants questioned the need to move the drain off the road allowance at this time. They requested that the Tribunal review the allowances provided for loss of trees, as well as the division of the cost of the pipes included in the report to protect the trees.

Mr. Miller asked that the Tribunal eliminate the lawn pipe on his property, as well as the special benefit assessment associated with this work. The Tribunal agrees with this request.

Mr. Miller asked to designate an alternate route for the heavy loads of material that will be necessary to repair the outlet of the drain on his property. He has in mind a route that will avoid the shallow field tiles on his property near the drain. The Tribunal feels this is a reasonable request and will issue an order designating an alternate access route, provided it is acceptable to the engineer, and an appropriate allowance for the damage that may occur on this new access route.

In the opinion of the Tribunal, the Road Authority has not been assessed enough for the advantage it is receiving from this work. Under Section 77 of the Act, the Road Authority has the ability to request that a drain be moved off the road allowance, but the entire cost of the work must be paid for by the Road Authority. In this case the increase in cost due to moving the drain partially off the road allowance is in the order of $96,000, but the road is assessed only $56,452 in special benefit. The Tribunal believes this amount should be increased.

The engineer in his report shows a chart for allowances under Sections 29 and 30. In the chart there is only one figure and there is no way for landowners to determine how much of the figure is for the land needed for the drain, the buffer strip that is now being required on this drain and for damage to lands and crops during the construction. In the opinion of the Tribunal, the use of land for a drain right-of-way and the damages to land that occur during construction are calculated on different principles. How are the assessed ratepayers to determine whether the allowances are reasonable unless the report indicates the principles upon which they are calculated and the amount of each type of allowance? In future the Tribunal expects the engineers to show the amount of each type of allowance under headings indicating the section of the Act that the allowances are provided under, along with sufficient detail for the landowners and the Tribunal to understand the basis of calculation of the allowances.

The Tribunal also wishes to note that more detailed specifications in the report would be useful to the property owners in providing them with a full understanding of the work to be done on their property. If the Ontario Provincial Standard Specification is quoted in the report, it should be included as part of the report so the landowners and their advisors can determine what is to be done and what the landowners are paying for.

In this case the drawings included in the report made available to the property owners and the Tribunal are illegible. Before issuing a report the engineer must satisfy himself that the attached drawings can be read.

The Tribunal notes that the drawings provided to it at the Hearing differ from those apparently forming part of the report, although they all bear the same Revision Date (99.03.26). This is not acceptable. Once a report is completed and filed, the report, plans and specifications are final and can be changed only by either referring the entire report back to the engineer, or by Order of the Tribunal. Should additional information (but not changes) be required for purposes of clarification, this can be done by way of additional drawings or specifications being prepared but they must be marked as such.

ORDER OF THE TRIBUNAL

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

1. The engineer is ordered to amend the report to include the following points:.

• In the Main Drain Portion of the Schedule of Assessment, the special benefit to the Township of Moore for the Moore Line Road is to be increased from $56,452 to the sum of $85,000 to reflect the increased cost of moving the drain off the road to the extent that the report does this. The outlet and benefit assessments of the other lands and roads assessed on the Main Drain in the report are to be reduced pro rata by $28,548 (all other special benefits are not affected by this part of the Tribunal decision).
• Mr. Miller is to be allowed to designate a temporary working area for reasonable access to the drain outlet on his property. This temporary access route is to be approved by the engineer. The allowance for damages along this route is fixed at $250.
• In addition the allowances to Mr. Miller for right-of-way and damages shown in the report are to be increased from $990 to $1,229.
• The lawn pipe in front of the Miller property is to be eliminated and the special benefit assessment levied against the Miller property is to be struck out and set at $0.
• The extent of the piping on the Stewart property is to be reduced to a total of 35 m with a corresponding reduction in the special benefit assessment ( i.e. the engineer is to follow the process used in preparing the report to calculate the reduction). Should Mr. Stewart request any additional pipe he must sign an agreement with the municipality that he is prepared to pay the entire cost of the excess pipe and he agrees that this cost is to be deemed to be a special benefit assessment under the Drainage Act.
• The engineer is directed to recalculate the allowances for trees affected by the work. Throughout the works, any live tree that is 6 inches or more in diameter, measured at chest height, that is adjacent to the entrance to or adjacent to the lawns of any of the properties and will be removed as part of the work, is deemed to be an ornamental tree and is to be allowed the sum of $200 (per tree). Other trees of this size are to be compensated at the rate of $75 per tree. The English Walnut tree on the Miller property is to be allowed at the rate of $250. Other trees removed as part of the work are not provided an allowance, however, smaller trees and bushes that the owner wishes to be moved as part of the work are to be moved, but no guarantee on the survival of these trees and bushes is to be made nor can the owner make any other claim for the removal of these trees.

2. Once the report has been amended it is to be clearly dated and marked “As Amended under order of the Drainage Tribunal” and substituted for the March 30, 1999 report in By-Law #9 of 1999. The Assessment Schedule in the By-Law is to be ammended accordingly. The By-Law can then be given third reading and passed into effect by the Council of the Township of Moore without further appeal to the Court of Revison or the Tribunal.

3. 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 Tilbury, Ontario this 16th day of September, 1999.