Walker Drain, Branch “B” (Re), 1999 ONAFRAAT 26

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

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

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

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Walker Drain, Branch “B” Township of West Elgin

Walker Drain, Branch “B” (RE) 1999 ONAFRAAT 26

STATUTE:

Drainage Act

HEARING:

September 27, 1999

DATE OF DECISION:

October 7, 1999

1999-26

NEUTRAL CITATION:

1999 ONAFRAAT 26

Walker Drain, Branch “B” Township of West Elgin

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 R. Christensen under Section 48 of the Drainage Act from the engineer’s report and by Ronald Van Raes, H. V. Smith and Dennis Fischer (on behalf of Sanden Acres Ltd.), under Section 54 of the Drainage Act from the decision of the Court of Revision, for the Walker Drain, Branch “B”, in the Township of West Elgin.

Before: Vernon Spencer, Chair; John Taylor, Vice-Chair; Doug Flook, Member.

Appearances: H. Vern Smith, appellant. Thomas Christensen, on behalf of R. Christensen, appellant. Ronald Van Raes, appellant John Spriet, P. Eng., on behalf of the respondent, the Township of West Elgin. John Poole, Drainage Superintendent, Township of West Elgin.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of West Elgin near Rodney, Ontario on September 27, 1999. R. Christensen appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the engineer’s report and Ronald Van Raes, H. V. Smith and Dennis Fischer (on behalf of Sanden Acres Ltd.) appealed to the Tribunal under Section 54 of the Act from the decision of the Court of Revision, for the Walker Drain, Branch “B”, in the Township of West Elgin (the Township).

Joanne Groch, Administrator-Treasurer 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 February 27, 1998, revised May 18, 1999, engineer’s report on the Walker Drains, Township of West Elgin parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Prior to the commencement of the hearing, Mr. Dennis Fischer withdrew his appeal to the Tribunal.

Section 48 of the Act is as follows:

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

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

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

Section 54 of the Act is as follows:

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final.

R.S.O. 1990, chap. D17, s. 54.

The Background

The Walker Municipal Drains serve parts of Lots 10 to 13 in Concession 7 and Gore Concession in the Municipality of West Elgin. The total watershed area contains approximately 78 hectares.

The Walker Tile Drain was originally constructed pursuant to an engineer’s report, dated July 20, 1923, and consisted of 2800 feet of cleaning and relaying tile along the Downie Line right-of-way and the construction of 2200 feet of 12” to 14” tile across Lot 11, Concession 7 to outlet in the Wilton Drain open ditch.

The Walker Drain (westerly branch) was reconstructed under an engineer’s report, dated January 22, 1951, and consisted of repairing an existing tile and an overflow route and straightening the outlet portion. This drain outletted into the Wilton Drain and proceeded north-westerly along the 10 and 11 lot line and then north to the north side of Downie Line. After the construction of Highway No. 401, this drain was reconstructed under an engineer’s report, dated February 24, 1966, and consisted of a deeper and wider open ditch to replace the existing tile and overflow system which was no longer deep enough to provide outlet for Highway No. 401 ditches.

The Walker Tap Drain was constructed in 1964 to relieve the upper portion of the Walker Tile Drain and consisted of an open ditch from the Wilton Drain at Highway No. 401 proceeding north-westerly to the Downie Line in the east half of Lot 11. This drain was reconstructed under an engineer’s report, dated July 31, 1985, and consisted of replacing the open ditch across Lot 11, Concession 7 with an 18" tile to the north side of the Downie Line.

As a result of the above listed works, there is no satisfactory maintenance schedule for the Walker Drain. The purpose of the current report is to provide schedules for future maintenance of the Walker Drains, as well as, to provide an improved outlet for some of the land within the Walker Drain watershed on the north side of Downie Road.

The proposed construction work consists of two branch drains. The upper watershed area of the Walker Tile Drain in Lot 11, Gore Concession is to be removed from the Walker Tile Drain and taken to an outlet in the Walker Tap Main Drain tile with a 250mm diameter filtered tile to be called Branch "A" of the Walker Tap Drain. Branch "B" of the Walker Tap Drain consisting of 400mm and 350mm concrete tile on crushed stone bedding, is to start at the Walker Tap main drain tile in Lot 11, Concession 7 and proceed along the south side of the Downie Line to the centre of Lot 12, Concession 7. Two road crossings are proposed to serve the W½ and E½ of Lot 12, Gore Concession and the road allowance.

The total estimated cost of the work is $52,700. The total watershed area for construction contains approximately 48 hectares, and is described as part of Lots 11 and 12 in Concession 7, part of Lots 11 to 13 in the Gore Concession and the Downie Line road allowance.

The Issue

There are two issues before the Tribunal:

1. Are the anticipated benefits from the proposed work commensurate with the estimated cost of the work?

2. Are the assessments, as proposed by the engineer and approved by the Court of Revision, appropriate?

The Evidence and the Findings

Vern Smith, appellant, told the Tribunal that he agrees with the Engineer’s assessment of the problem and the recommended solution. He said he does suffer from flooding, however, since Mr. Van Raes constructed his pond the severity of flooding has been reduced. He said that, in his opinion, the Township should have been maintaining the Walker Tile Drain all along and that would have prevented the problem. As it now stands, there is a row of cedar trees along the Walker Tile Drain that makes it impractical to maintain the drain in its current location. Mr. Smith said that the work needs to be done. The escalating cost of the engineering studies and meetings has made the individual cost out of proportion to the benefits provided by the work. Mr. Smith said he needs the work done but the total cost is excessive.

Thomas Christensen spoke on behalf of R. Christensen, an appellant. Mr. Christensen told the Tribunal that:

1. The Christensen family has owned this property since 1978.

2. The property is a wetland and that is how the owner wishes to maintain it.

3. The drain is of no benefit to the property so cost vs. benefit does not exist.

4. There will be no financial benefit or increase in land value as a result of the work.

5. Over the past twenty years the land use has changed from agricultural to woodlot.

6. The owner is concerned that the proposed drain will lower the water level in the pond.

7. The morning of the hearing he checked the catchbasin on the south side of Downie Road and there is 1.5 feet of water in the catchbasin on the Tap Drain. He concluded that there must be a problem with the Tap Drain.

8. In his opinion, the cost of the work far exceeds the anticipated benefits.

9. He has seen flooding around Mr. Houghton’s house but no flooding of the house itself.

10. In his opinion, the drainage problems started when the Walker Tap Drain open ditch was replaced with a tile drain.

11. The pond on the property was constructed at the time Highway No. 401 was built.

Ronald Van Raes, appellant, told the Tribunal that he purchased his property two years ago. At that time, it was overgrown and covered in low wet spots. Over time he has:

1. Dug a pond.

2. Put a drain in from the pond to the Walker Drain.

3. Blocked the overflow from the Christensen property.

4. Developed 3 feet of fall across the property.

5. When it rains the water does flow from east to west in the Walker Tile Drain but does not flow as fast as it should. In his opinion, the drain may be partially blocked with tree roots.

He said he is not getting any benefit from the proposed work and asked the Tribunal to eliminate his assessment.

Charles Houghton, an assessed owner, told the Tribunal that his basement is flooded and the land around his house is also flooded. He said he and his father used to own the land now owned by Christensen and Oliveira. He has lived in the area for 92 years. The Christensen property used to be cropped and he grew tobacco on the Oliveira property. He said the excess surface water flows from the Oliveira and Christensen properties to the Downie Road and then down the Walker Drains. Both the Christensen and Oliveira properties are tile drained to the Downie Road. There are three tiles from the Oliveira property. He said that when the Walker Tile Drain was new, there was no problem, so the tile must be blocked now.

Rosa Oliveira, assessed owner, told the Tribunal that she and her husband purchased 49 acres after the project started. They were aware that they would be assessed for part of the cost of the work. She said she was not sure that the assessment was fair. She said that Mr. Houghton is having a problem with his drainage. The garden that is flooded is on her property. She is assessed $2,000 and Mr. Houghton is assessed only $1,100 but he gets the benefit from the work.

John Poole, Drainage Superintendent for the Township, took the Tribunal through the history of the project. He said that the project was initiated in March 1996 by request from Mr. Humphrey, the former owner of the Oliveira property, who wanted a new schedule for maintenance. Mr. Humphrey contended that the property was wetland and too heavily assessed for drainage charges. In June 1996, a request for repair and improvement to the Walker Drain, Walker Tap Drain and the Walker Drain (Tile) was received from Eileen and John Humphrey and Anna Christensen. In August 1996, a further request for improvement was received from Mr. Smith. Mr. Spriet was appointed by Council to respond to the requests. In March 1997, Mr. Houghton requested the improvement project be extended to his property. He listed several meetings with the landowners to discuss the project with the engineer. A report was filed and considered by Council and then returned for further consideration. The reconsidered report was filed and accepted by Council and is the engineer’s report under appeal. Mr. Poole filed with the Tribunal several photos showing the flooding in the area.

John Spriet, P. Eng., the engineer who prepared the report responded to the appeals.

The issues covered in this report are: a maintenance schedule for the drains and addressing of the flooding of the Houghton and Smith properties. He is recommending the construction of Branch A to divert the upper portion of the Walker Tile Drain to the Walker Tap Drain because the existing outlet across Mr. Durer’s property has no grade and it is more cost efficient to construct the diversion. This drain affects only the Ciparis, Van Raes, Downie Road and Durer properties. He said as a result of the surface modifications that Mr. Van Raes has made, it is possible for him to tile the back of his property through the knoll on his land to his pond and from there the tile water would flow into the Walker Tap Drain bypassing Branch A. However, the natural flow is to Branch A over the Ciparis property and through Branch A to the Walker Tap Drain.

He recommends the construction of Branch B on the south side of the road rather than replacing the existing Walker Tile Drain on the north side adjacent to the Christensen property, because there is a cedar hedge and woodlot on the north side of the road that would have to be removed to allow for the construction. He said that the Oliveira property has been reforested so the most logical location for the drain is on the south side of the road. Because the Road Authority asked that the drain be moved off the road allowance, the road is assessed a substantial amount of the cost of the work. On Branch B, a catchbasin is installed opposite the Christensen pond to take away the excess surface water. The entrance to the catchbasin is ground level so it will have little effect on the water level in the pond. He argued that the existing drain is closer to the pond than the proposed drain so the new drain should have less effect on the static water level in the pond than the existing drain. He has done this because Mrs. Christensen does not want to drain the pond. He told the Tribunal that he assessed these lands on the basis that the drain would take the excess water that runs off.

In response to Mr. Christensen’s concern about the water in the existing catchbasin on the south side of Downie Road he said this is an offset catchbasin and the static water is in the catchbasin sump. There is no way to tell from this observation if there is a problem in the outlet tile.

In response to Mr. Van Raes appeal on assessment Mr. Spriet said that he had reconsidered the assessment on this property and reduced it from $1,950 in the initial report to $1,050 in the revised report. He agreed that the property that Mr. Van Raes claims he can tile drain to his pond, thence to the Walker Tap Drain, can be drained in that direction by breaching the watershed boundary. However, this land should then be assessed into the Walker Tap Drain and it is not. He said he has no reason to change the assessment on Branch A if the engineer’s report was referred back.

In assessing Branch B, there is an assessment of $7,600 to the municipality for moving the drain off the road allowance. The remaining $36,000 is assessed 70% benefit and 30% outlet. He said that the normal benefit assessment is in the range of 50 to 55%. Oliveira, Christensen and Houghton were assessed $600 in benefit for direct access to the drain. Houghton was assessed another $400 benefit for a catchbasin and Christensen $300 benefit for catchbasins. Smith, Durer and Tadic were assessed benefit at a rate per metre for the length of the drain on their property.

He varied the outlet rate per acre depending on the length of the drain used by the property. The Christensen property uses the lower portion of the drain and is assessed at $110 per hectare, while the Oliveira property uses the entire length and is assessed $240 per hectare. The Houghton property is a small residential acreage and is assessed at $530 per hectare, while the Smith property is assessed at $200 per hectare. Downie Road is assessed outlet at a rate of $600 per hectare.

Mr. Spriet agreed that the costs of the project were high partially due to the overhead cost of $20,000 for reports, meetings and appeals. This means everyone assessed in the engineer’s report pays more.

In response to questions from the panel, Mr. Spriet said that the engineer’s report was referred back by Council, at the request of the owners, for more information, and for him to consider the petition to abandon the project that had been filed by some of the assessed owners. As a result of the referral, he took measurements at the Van Raes property and checked the watershed on the Smith and Tadic properties. In the end, the only change made to the report was in the Van Raes assessment.

The Tribunal examined the evidence. Both Mr. Smith and Mr. Christensen argued that the anticipated benefit from the project did not justify the estimated cost. Neither brought anything other than their own anecdotal evidence that the cost is high and the affected owners could protect themselves by other means. Mr. Smith admits that he has a drainage problem but his assessment for correcting this problem is too high due mainly to the cost of studies and meetings. Mr. Houghton has a drainage problem that needs to be addressed in some manner. The Tribunal agrees that the administrative cost of the project is higher than normal. Considering the history of the project and the numerous meetings the ratepayers had with the Engineer and Council, it is apparent that the main reason these costs are high is the requests made by the ratepayers in an attempt to arrive at a solution to the problems. In the circumstances of this case, the Tribunal has concluded that the project should proceed.

Mr. Van Raes has gone to considerable length to improve his property by filling in low spots, digging a pond and grading the land to facilitate drainage. The substance of his argument is that he has now shaped his land in such a manner that he can drain all of it toward his pond and from there directly into the Walker Tap Drain without any need for Branch A. He agreed that the back portion of his land slopes toward his neighbour and does naturally drain in that direction. This water flows across the neighbour to Branch A and from there to the Walker Tap Drain. Mr. Van Raes undertook the work on his property while the drainage report was in preparation and with the knowledge of the proposed work. The Tribunal accepts the evidence of the Engineer that the rear portion of Mr. Van Raes property drains toward the neighbour and thence to Branch A and therefore is assessable to Branch A.

Mr. Christensen argued that the water from his land all drains into the pond, or can be made to drain into the pond and therefore the property should not be assessed. Mr. Houghton, a long time resident of the area whose father owned and worked the land, testified that the excess surface water from the Christensen property flows toward the road and then to the Walker Drain. Mr. Spriet told the Tribunal that the drain will provide an outlet for the excess water from the Christensen property but will not drain the Christensen pond unless the owner takes action to connect the pond to the drain. The Tribunal accepts the evidence of the Engineer and Mr. Houghton that excess water that flows from the Christensen property will flow through Branch B to the Walker Tap Drain and, therefore, this property is assessable.

The Tribunal then reviewed the methodology the Engineer followed in making his assessments. The Tribunal would normally have assessed a smaller amount as benefit and then adjusted the run off factors for the various parcels of land to account for the varying land use. In the opinion of the Tribunal, the Engineer’s adjustment of the proportion assessed as benefit has resulted in an equivalent result. The Tribunal has decided to confirm the assessments proposed.

ORDER OF THE TRIBUNAL

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

1. The appeal of R. Christensen under Section 48 of the Drainage Act is dismissed.

2. The appeals of Ronald Van Raes and H. V. Smith under Section 54 of the Drainage Act are dismissed.

3. The non-administrative costs of the Township with 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:

The Tribunal was convinced by the evidence that, in the circumstances of this case, the project should proceed to construction.

The Tribunal was convinced by the evidence that the assessments as proposed are appropriate for this case.

Dated at Chatsworth, Ontario this 7th day of October, 1999