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: Foreman Municipal Drain Improvement 1999 City of London

Foreman Municipal Drain Improvement 1999 1999 ONAFRAAT 30

STATUTE: Drainage Act

HEARING: November 26, 1999

DATE OF DECISION: December 13, 1999

1999-30

NEUTRAL CITATION: 1999 ONAFRAAT 30

Foreman Municipal Drain Improvement 1999 City of London

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 Francesco and Rosetta Iannialice, Willey McLellan and Green Lane Environmental under Section 48 of the Drainage Act and by Green Lane Environmental under Section 54 of the Drainage Act from the May 1999 report of Stantec Consulting Ltd. on the Foreman Municipal Drain Improvement 1999 in the City of London.

Before: Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Herb Todgham, Vice-Chair.

Appearances: Anne Hiscock & Ed Dries P. Eng.. On behalf of Green Lane Environmental, appellant. Jack Davis, on behalf of Francesco and Rosetta Iannialice, appellants. Willey McLellan, appellant. Bob Carrier, on behalf of Lana Hicks and George Boothe, assessed owners. Don Simpson, Drainage Technologist, on behalf of the respondent, the City of London. Phillip McNeely P. Eng., the engineer who prepared the report on behalf of the respondent, the City of London.

DECISION OF THE TRIBUNAL

This appeal was heard in Committee Room 2, London City Hall, 300 Dufferin Ave., London, Ontario on Friday, November 26th, 1999. Francesco and Rosetta Iannialice, Willey McLellan and Green Lane Environmental appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 48 (allowances and design of the work) of the Drainage Act (the Act). Green Lane Environmental also appealed to the Tribunal under Section 54 (assessment of the cost of the work) of the Act. All appeals are from the May 1999 report of Stantec Consulting Ltd., signed by Mr. Philip McNeely, on the Foreman Municipal Drain Improvement 1999 in the City of London.

Nancy Irving, employee of the City of London (the City) 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 May 1999 engineer’s report, signed by Philip McNeely, on the Foreman Municipal Drain Improvement 1999 in the City of London, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The Foreman Municipal Drain, an existing drainage works, was originally an award drain but was reconstructed as a municipal drain under a 1967 report of Donald Haughton; part of the drain in the north half of Lot 16 was realigned in 1989 under a report by John Spriet. The watershed area of approximately 230 ha. is located in the south end of the City of London within a rectangular contributing watershed area bounded to the north and south, generally by Dingman Creek and Scotland Drive respectively and within the limits of lots 15 to 17 of Concessions 4 and 5. The existing drainage works include a main drain, consisting of 2,374 m of open channel and 248 m of covered drain and a Branch “A”, consisting of 700 m of open channel.

The existing drain is blocked with trees, sediment and has numerous undersized culverts that impede the flow of floodwater. As a result low-lying residential lots are subject to periodic flooding by water flowing from higher lands in the watershed. The report recommends:

• Redirecting water from the east side of Wellington Road, from the head of the Main Drain northerly to Branch “A”,
• cleaning of the open portions of the drain, (except for the downstream 300 m of the Main Drain),
• flattening side slopes,
• relocating part of the drain on the existing residential lots onto the Iannialice property, and widening it,
• replacement of culverts and,
• increasing the capacity of the covered portion of the drain.

The recommended works will be performed on 2,774 m of open drain and 248 m of covered drain. The affected area is 230 ha. The total estimated cost of the work is $256,563.48.

The Issue

The issues before the Tribunal are:

1. Should the report be modified by changing the alignment of the drain and diverting part of the watershed into a different watershed and from there into Dingman Creek at an alternate outlet point?

2. Should the report be modified by increasing the allowances for land used for construction of the drain?

3. Are the assessments as proposed by the engineer and Court of Revision appropriate for the work?

The Evidence and the Findings

Anne Hiscock, Manager of Environmental Affairs for Green Lane, told the Tribunal that in 1989 John Spriet prepared a report to relocate part of the drain on the Green Lane property entirely at the cost of Green Lane. Since that time Green Lane has maintained this portion of the drain by removing brush and mowing grass etcetera. In 1993 the business was expanded and a composting facility was built on the property. As part of the requirements for approvals, a storm water detention pond was built on the southwest corner of the property. The outlet from this pond is to the Foreman Drain. She emphasized that Green Lane has had no capacity problems at all with the Foreman Drain and Green Lane sees no need for repairs to the drain on their property or downstream. Green Lane does recognize that its neighbours may be having problems with the water flow in the drain so is not opposing the work but is objecting to the amount of its assessment.

Ed Dries, P. Eng., told the Tribunal that Green Lane is concerned with the working width as specified in the report. He said that the report includes a working area on Drawing 4, consisting of a 20 meter corridor along the west and south sides of the Green Lane property. This working corridor extends into the building on the property. Stantec has agreed to Green Lane’s request to reduce this working area along the north and east banks of the drain from 20 meters to a maximum of 10 meters. Green Lane agrees with this recommendation and asks the Tribunal to issue an order modifying the General Notes on Aug 23/99 revised Drawing No. 4 for Item 14 to read as follows:

Station 0+390 to Station 0 +660 East Side 10 m maximum

Station 0+660 to Station 0+950 North Side 10 m maximum

Another issue of concern to Green Lane is the extent of the drain referred to as Branch “A”. The issue for Green Lane is responsibility for future maintenance cost on the drain. Mr. Dries asked the Tribunal to clarify that the uppermost end of Branch “A” is the southerly limit of the Westminster Drive road allowance at the northwest corner of Lot 15, Concession 5. Mr. McNeely agreed with this recommendation.

Mr. Dries filed with the Tribunal a site plan for the Green Lane property. He said the property is a grassed area with development in the west corner of the site. The plan references the buildings, road and storm water management. Storm water runoff from the developed portion of the property has to be contained in the facility and the outlet is controlled by a 2'x2' catchbasin with a 50 mm outlet. There have been no difficulties with the operation of the pond on site as a result of flows in the Foreman Drain. The works are not a concern to Green Lane and it did not request the work. He pointed out that the profile to the report shows a significant gradient in the drain. The difference in elevation from the outlet to Westminster Drive is in excess of four meters. With that extent of gradient the flow has to get to Green Lane and Green Lane has no difficulty in containing the flow through their lands.

Mr. Dries compared the assessment proposed for Green Lane to the assessment on adjacent properties. He pointed out that there is an error in the acreage attributed to Green Lane. Since a portion of the Green Lane property flows through the detention pond this part of the property will contribute less runoff. He argued that the corrected outlet rate should be $84.19/ha. for farmland not $149.67 and the assessed area for Green Lane should be 6 hectares not 8.76 as shown in the report. He argued that this area should be assessed $505.14 for outlet, not the $1,311.15 shown in the report.

He pointed out that the area draining from the property in Lot 15, Concession 4, owned by 774401 Ontario Ltd. (Devlon Group Ltd.) was underestimated and should be 3.80 hectares not the 0.50 assessed in the report. Using the rate per hectare used by Mr. McNeely ($124.73) the outlet assessment on this property should be increased from $62.36 shown in the report to $473.97.

He also pointed out that the outlet assessment on Westminster Drive should be increased. He argued that a portion of the road drains into the main drain and a portion into Branch “A”. The portion that drains into the main drain should be assessed akin to the agricultural lands that abut it and the portion that enters Branch “A” should be assessed akin to the lands that abut it. Using a factor of four as suggested by Mr. McNeely he calculated an increase in the outlet assessment to Westminster Drive from $2,247.71 as shown in the report to $3,236.44.

Mr. Dries suggested that the benefit vs. outlet split for the work on the Green Lane property downstream to the outlet was too heavily weighted to benefit. He pointed out that in 1989 the Spriet report assessed 29% for benefit while the McNeely report has assessed 57.4% of the cost of the work as benefit to the affected properties. He said that the respective benefit of the work as between the Tim-Dan Holdings, Green Lane and Johnston properties is similar. The length of drain is similar, the impact is similar, there are no significant problems that the various owners want addressed by the work. He said the Green Lane property benefit assessment should be more akin to the Johnston property benefit assessment but slightly more because there is slightly more channel, but in the report it is assessed three times as much for benefit. He asked the Tribunal to reduce the benefit assessment to Green Lane to $1,500 which is still over $400 more that the Johnston benefit assessment. He suggested that Westminster Drive had not been assessed for benefit in the report. He acknowledged that Westminster Drive was charged the cost of installation of a new pipe crossing but this is an assessment under Section 26 for the increased cost of the work due to the existence of the road, not a regular benefit assessment, and he said that Westminster Drive will receive a substantial “regular” benefit to its drainage and should be assessed for it.

Jack Davis spoke to the Tribunal on behalf of Mr. and Mrs. Iannialice, the owners of the land immediately west of the Shaver Subdivision. He told the Tribunal that their preference was to leave the drain in its present location on the subdivision lots and not move it onto their property. However, if the drain is moved onto their property then the compensation for land taken and damages should be increased. In support of this position he filed with the Tribunal photos of recent developments in the general neighbourhood of the Iannialice property arguing that the owners had a reasonable expectation that their property could be developed. This indicates that the allowance for land used for the drain should be at a value of residential lots rather than the agricultural land values used in the report.

Mr. Davis also said that the owners are concerned about their responsibility for blockages in the drain and that they are to discharge only unpolluted drainage water into the drain. This is a change from the present responsibilities of the owners and they are not compensated for this increased responsibility nor do they wish to assume this responsibility.

Mr. Davis argued that the drain with the berm and swale on the Iannialice side of the drain will consume a swath of land 18 meters in width. This will leave a narrow strip of useable land of diminished value to the owners. He argued that the working width across the property from Westminster Drive to the drain leaves an unencumbered frontage on Westminster Drive insufficient for a lot to be severed. Mr. Davis said the drain would remove about half of the property value and therefore an allowance in the order of $100,000 is appropriate.

Mr. Willey McLellan told the Tribunal that he owns two adjacent parcels of land abutting Wellington Street in the south east 1/4 of Lot 16, Concession 4 near the lower end of the watershed. He purchased these properties in 1958 and 1963. At the time of purchase there were shallow ditches on the land in the location where the present Foreman Drain is located. He said at the time the ditch was dug it was about twelve feet wide and it is now 33 feet across. He said he would like to fill in the ditch on his property. He asked the Tribunal to order that Branch “A” be extended along Wellington Road, on the east side of the road, to an outlet in Dingman Creek. This would cut off the water from the upper watershed and allow him to fill in Branch “A” on his land.

Bob Carrier spoke to the Tribunal on behalf of Lana Hicks and George Boothe. Mr. Carrier explained that in May 1999 his clients purchased the property identified on the plan as the V & L Jensen property, roll number 040-114 in the south east 1/4 of Lot 16, Concession 4. They are not appellants at the hearing but they request that the drain be relocated so that it runs on their land along the property boundary between them and the Johnston property to the west. This route will be easier construction and eliminate the need for a culvert on the property thus reducing the cost of the work. The owners are asking for this change so that the drain will be moved farther from their home and garage thus improving the property and eliminating the contamination of their well.

Mr McNeely in response to the appellants told the Tribunal:

• He agrees that the working width on the Green Lane property should be specified at 10 meters.
• He agrees that there is an error in drawing the private road on the Green Lane property and that he did not account for the detention pond on the Green Lane property when making his assessment. The correct acreage for assessment for Green Lane is 6 hectares. He recalculated the outlet assessment as $654 and asked the Tribunal to modify his report showing this revised outlet assessment.
• He agrees that part of the Devlon Group Ltd. property was missed and the area should be increased to 3.80 hectares and the outlet assessment increased to $473.97.
• He disagrees with Mr. Dries on the issue of benefit assessment to Green Lane. He pointed out that there is no work on the lower 300 meters on the Tim-Dan Holdings property and that part of the Johnston land is woodlot and high and dry for the most part. While the Johnston land will receive some benefit Green Lane receives more. The outlet for the Green Lane property is submerged by water in the drain and he is deepening the drain to provide freeboard for the outlet. In response to questions from the panel, Mr. McNeely agreed that there are no high points on the profile downstream of Green Lane but the removal of the grass etcetera in the bottom will improve the flow and thus the outlet for Green Lane. He asked the Tribunal to confirm his benefit assessment to Green Lane.
• At the Iannialice property the first four meters width in the proposed drain is the existing drain. He is taking a nine meter width from the Iannialice property to construct the new channel, with flattened sideslopes and the surface water control berm. He is also specifying a 15 meter working width along the drain for construction and maintenance. He calculated the land taken on the basis of a 10 meter wide strip along the 240 meter length of the drain for an area of 0.24 hectares. He used a rate of $12,350 per hectare to calculate the allowance of $2,964. He then considered the narrowness of the land and added another $2,000 for this factor making the allowance for land used at $4,964. For calculating the allowance for access and crop damages from construction and spreading the spoil materials he used a figure of $3,675 per hectare to arrive at the figure of $3,418. The total allowance provided is $8,382 which he feels is appropriate for the work being done. He said that he looked at this property as being agricultural land not development property.
• For Mr. McLellan the present drain follows the existing alignment. The soils are easily eroded but the ditch appears to be stable now so all the report proposes is a bottom clean out. The alternative of digging a new ditch along Wellington Road is not preferable as it would result in diverting water outside the watershed. He told the Tribunal that it is generally not wise to change watersheds and he recommends staying with the existing alignment. Two new culvert crossings much larger than the existing one will be installed on this property.
• The present proposal for work on the Jensen property was developed with Mr. Jensen, a long time resident of the area. He has examined the proposal of Hicks & Boothe and feels that the alignment change can be made for close to the same cost as the work proposed in the report. He noted that the new owners have made improvements to the property and are making a reasonable request. He said that his only concern was a cement block building on the property close to the Johnston property boundary. In this location he proposes to pipe the drain for a total of 24 meters to bypass this building. He said he could prepare the necessary documentation for this change and estimated an engineering cost of $1,500 for this work. He recommended this change be ordered by the Tribunal.

The Tribunal examined the evidence presented and submissions made. For the Green Lane property Mr. Dries made a compelling argument that the assessments to Green Lane as proposed are unfair. The Tribunal accepts the position of Mr. Dries on both the outlet and benefit assessments for Green Lane. Mr. Dries argument is that the reduction in the benefit assessment against Green Lane can be moved to Westminster Drive as a benefit assessment. But, this property is outside of the area that would be assessed benefit for work in this area of the drain so the assessment to Westminster Drive should properly be characterized as outlet assessment. Accepting the changes as Mr. Dries proposed, while not strictly following general practices, makes the end result fair. The Tribunal notes that the problems involved in trying to adjust all of the assessments to make everything absolutely correct are more costly than the adjustment justifies. By accepting the Dries proposal the owners end up with a reasonable assessment for this part of the work.

The Tribunal accepts the request of Hicks & Boothe to relocate the drain to their westerly boundary with the channel passing the Hicks barn enclosed in a culvert pipe. Any cost of the work on the Hicks property, including engineering for the changes, that is in excess of the estimated cost of the work on the Hicks property as shown in the current report, is to be assessed against the Hicks property as a special benefit. Engineering charges for this change are not to exceed the sum of $1,500. The special benefit assessment, if any, is not to be used in the distribution of future maintenance costs.

The Tribunal carefully considered the request of Mr. McLellan. While the Tribunal is impressed with the sincerity of Mr. McLellan and his desire to improve his property, it was not convinced that diverting Branch “A” water out of the watershed on the east side of Wellington Road is in the best interests of the affected lands. Therefore the Tribunal must deny Mr. McLellan’s request.

The Tribunal accepts the evidence of Mr. McNeely that, in the present circumstances, the drain should be constructed as an open ditch, and the only reasonable way to do this is to widen it onto the Iannialice property. The Tribunal understands that the top of the east bank of the drain is to remain in its present location. The upper part of the east side slope is to be 10:1 and the lower side slope is to be 2:1. Most of the existing ditch will be filled and the new cut for the channel will be on the Iannialice property. The final result will be a channel and berm starting at the top of the present east bank of the Foreman Drain and running westerly a total of 13 meters – 4 m on the existing subdivision lots and 9 m on the Iannialice property. The issue to resolve is the appropriateness of the allowance for the land used. Mr. McNeely argued that the land is agricultural and therefore should be compensated at agricultural values. He provided an allowance of $4,964 for an area taken of 0.24 hectares or $20,675 per hectare. This appears to the Tribunal to be mid way between an agricultural and residential land value and in the circumstances is a reasonable figure. Therefore the Tribunal decided to deny the appeal of Mr. Iannialice for an increased allowance. However, the Tribunal wishes to clarify that access from Westminster Drive to the drain is to be from Westminster Drive at the point where the drain crosses the road and then along the route of the drain, as specified in note 13 on Drawing 4 as revised August 23, 1999. The working corridor on the Iannialice property starts at 15 meters north of Station 1+865 (South West corner of property roll number 040-067 – D. White) and runs on the west side of the drain to the south end of the property. There is no restriction on the frontage of the Iannialice property on Westminster Drive as a result of this report on the Foreman Drain.

Based on the evidence before it, the Tribunal finds that even though infilling of vacant lots is being allowed, there is no reason to believe that residential development of the area is imminent. For this reason, it concluded that the work now required on the Foreman Drain must be such as to accommodate the water from upstream in much the same manner as it has been doing, but without flooding or erosion. Installing a closed drain at this time, capable of handling increased flows in an urban setting is not appropriate and the drain should therefore be dealt with as economically as possible, and remain as an open ditch. The Tribunal believes that when this area is eventually developed for subdivision purposes, this will be by way of a land assembly because of the relatively small size of the individual parcels. When this is done, proper storm sewers will have to be installed and although the location of these cannot be predicted at this time, it is almost a certainty that they are likely to follow the future street pattern. They may very well not follow the present route of the Foreman Drain. In the meantime, the Iannialices will retain ownership of the land occupied by the Forman Drain since the allowance paid under Section 29 of the Act is only for the use of the land by the drain, not for the ownership or title. In future, when storm sewers are installed, the ditch will be redundant and it will be filled in. The Iannialices will then regain the use of this area and it will be available for development along with the rest of their property. For these reasons the Tribunal finds that the drain should be improved as set out in the report, and the allowance determined by the engineer is fair.

For quite some time now, the Tribunal has been encouraging the drainage engineers to provide more detail in their reports so that all those who deal with the reports (owners, their advisors, municipal officials and the Tribunal, for example) will be better able to understand exactly what is proposed to be done, how much the various items are expected to cost, how the Allowances have been calculated and how the Assessments have been determined. The members of the Tribunal are therefore greatly disappointed that in preparing this report on the Foreman Drain, Mr. McNeely has not seen fit to do this. He has not shown for instance, the costs of the various culverts, or the catchbasin at the head of the drain, or the cost of the tile itself. Neither has he shown the rates per hectare nor the areas used in calculating the Allowances. The Tribunal believes that the owners require all of this information when they try to evaluate the proposed work. The Tribunal also notes that the accepted practice among engineers in the Province is to assess a substantial part of the cost of farm culverts as a Special Benefit Assessment against the adjoining property, so that this sum can be excluded from the calculation in distributing future maintenance costs, but this practice has not been followed here. Although the Tribunal has decided not to order the report to be amended to incorporate these details, it feels that it has a duty to point out that they should have been included.

The Tribunal notes that while the engineer has properly estimated the increase in the cost of the project as a result of the crossing of Westminster Road, he has assessed this estimated increase in cost as a Special Benefit against Westminster Drive. The Tribunals understanding of Section 26 of the Act is that all of the increase in cost (i.e. the actual increase, not the estimated increase) is to be paid by the road authority and the report should therefore provide for this. The Tribunal will therefore order that the report is to be amended to require that the actual increase in the cost of the project resulting from the presence of Westminster Drive is to be charged to the City of London and sufficient data is to be provided regarding increased engineering costs, etc. to permit this to be done.

ORDER OF THE TRIBUNAL

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

1. The appeal of Willey McLellan under Section 48 of the Drainage Act is dismissed.

2. The appeal of Green Lane Environmental under Section 54 of the Act is granted. The schedule of assessment pages 14 and 15 of the report are to be modified by:

• deleting the area affected, outlet and benefit assessment shown opposite Roll Number 040-154 (Green Lane Environmental) and inserting area affected 6.0, outlet assessment $505.14, Benefit Assessment $1,500.
• deleting the area affected and the outlet assessment shown opposite Roll Number 040-153 (774401 Ontario Ltd. c/o Devlon Group Ltd.) and inserting area affected 3.80, outlet assessment $473.97.
• deleting the outlet assessment opposite Westminster Drive (page 16) and inserting outlet assessment $3,236.44 and a benefit assessment of $1,670.47

3. The appeal of Green Lane environmental under Section 48 of the Act concerning the width of the working corridor is granted. The General Notes on Drawing Number 4 are to be amended by making the following changes to Item 14:

• Station 0 + 390 to Station 0 + 660 East Side – 10 meter maximum width
• Station 0 + 660 to Station 0+ 950 North Side – 10 meter maximum width.

4. The request of Green Lane Environmental that the upstream end of Branch “A” of the Foreman Drain is to be defined as the south limit of the Road Allowance between Concessions 4 and 5 in the geographical Township of Westminster (now known as Westminster Drive), is granted. A note to this effect is to be added to Branch “A” Profile on Drawing Number 4 and to the Plan on Drawing Number 1.

5. The appeal of F. and R. Iannialice under Section 48 of the Drainage Act is dismissed.

6. The engineer is directed to modify the report to relocate the drain on parcel 040-114 (Hicks & Boothe) to the westerly boundary of the parcel with the channel passing the building enclosed in a culvert pipe. Any cost of the work on the property, including engineering for the changes, that is in excess of the estimated cost of the work on this parcel, as shown in the current report, is to be assessed against the Hicks & Boothe property as a special benefit assessment. Engineering charges for this change are not to exceed the sum of $1,500. The special benefit assessment, if any, is not to be used in the distribution of future maintenance costs.

7. The engineer is directed to amend Section 9 of the report to provide that in accordance with Section 26 of the Drainage Act, the City of London as owner of Westminster Drive is to pay the actual increase in the cost of the project due to the presence of the road, including an appropriate share of the engineering fees. After deducting the amount paid by the City for this, from the total project cost, the remainder of the project cost is to be assessed pro rata against the lands and roads in the Assessment Schedule exclusive of the Special Benefit Assessment against Westminster Drive.

8. Once the engineer has made the required changes to the report and drawings, he is to clearly mark the Report and drawings as modified under order of the Tribunal and clearly mark the revision date on both. The Clerk of the City of London is to replace, in by-law DR-61, the Report and drawings originally dated January 20, 1999 with the revised Report and drawings.

The non-administrative costs of the City 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 Chatsworth, Ontario this 13th day of December, 1999.

FOREMAN DRAIN, CITY OF LONDON