Bridges Over the Hicks Drain (Re), 1999 ONAFRAAT 4

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:

Bridges Over the Hicks Drain Township of Colchester South

Bridges Over the Hicks Drain (RE) 1999 ONAFRAAT 4

STATUTE:

Drainage Act

HEARING:

January 26, 1999

DATE OF DECISION:

February 5, 1999

1999-04

NEUTRAL CITATION:

1999 ONAFRAAT 4

Bridges Over the Hicks Drain Township of Colchester South

IN THE MATTER OF AGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF:

An appeal to the Ontario Drainage Tribunal by Robert and Debra Rivait and Rose Mary Linder under Sections 48 and 54 of the Drainage Act from the September 3, 1998 engineer’s report and from the decision of the Court of Revision with respect to the Bridges Over the Hicks Drain in the Township of Colchester South.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Robert McKim, Member.

Appearances:

Robert Rivait, appellant.

Rose Mary Linder, appellant

Nick Peralta, P. Eng., on behalf of the Town of Essex.

DECISION OF THE TRIBUNAL

This appeal was heard on Tuesday, January 26, 1999 commencing at 9:30 a.m. in the Council Chambers of the former Corporation of the Township of Colchester South, now the Town of Essex, 44 King Street East, Harrow, Ontario. Robert and Debra Rivait and Rose Mary Linder appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the September 3, 1998 report of Nick Peralta, P. Eng., and from the decision of the Court of Revision with respect to the Bridges Over the Hicks Drain (the Hicks Drain) in the former Township of Colchester South, now the Town of Essex.

Jerry Marion, Clerk of the Town of Essex (the Town), performed the duties of the Clerk of 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 age works are not commensurate with the estimated cost thereof;

(b) age 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 age 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 age 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.

At the beginning of the hearing, the Tribunal issued an order that all landowners assessed or compensated in the September 3, 1998 engineer’s report on the Bridges Over the Hicks Drain, in the former Township of Colchester South, now the Town of Essex, having been served notice of this hearing are made parties to this hearing.

The Background

The Hicks Drain was last repaired and improved, for almost its entire length from its upper end at the blind line of Concession 6 opposite Lot 19, Concession 6, southwesterly and downstream through Concession 5, Concession 4, to a point approximately 240 metres south of the Fourth Concession Road in Lot 16, Concession 3 of the Township of Colchester South, under an engineer's report prepared by C. G .R. Armstrong, P. Eng., dated November 21st, 1969. Among other things, this report provided for lowering two existing access culverts on the 6th Concession Road, one in front of the SW¼ of Lot 19, Concession 6 and one in front of the W½ of SE¼ of Lot 18, Concession 6. It also indicated the presence of a third access culvert in front of the E½ of SE¼ of Lot 18, Concession 6.

The September 3, 1998 engineer’s report provides for the removal and replacement of three (3) existing access bridges in the Hicks Drain. The existing bridges provide access to the agricultural properties of Robert Rivait, Deborah Clarke and Rose Mary Linder (Roll # 240-008), in part of Lot 18, Concession 6; to Dana and Doris Willis (Roll # 240-007), in part of Lot 18, Concession 6; and to William and Rose Mary Glass (Roll # 240-006), in part of Lot 19, Concession 6. The bridges are denoted as Bridge No. 1, Bridge No. 2, and Bridge No. 3 respectively. A plan showing part of the Hicks Drain alignment as well as the location of the above mentioned bridges is attached to and forms part of this decision.

The construction cost of each of the culverts is estimated at $8,800,00 for a total of $26,400.00. The cost of preparing the report, tender and other overhead costs is estimated at $3,547.00 for a total estimated cost of $29,947.00. Of this total, $20,250.00 (approximately 2/3 of the total cost) is assessed as Special Benefit to the owners who are receiving the culverts and $9,697.00 is assessed as outlet.

The Issue

The issue before the Tribunal is:

Should the September 3, 1998 engineer’s report be modified by:

• eliminating the work opposite the property of Robert Rivait, Deborah Clarke and Rose Mary Linder (Roll # 240-008), and

• making the appropriate changes in the estimate of cost and the assessment schedule to reflect the elimination of this work from the report?

The Evidence and the Findings

At the start of the hearing, the Tribunal Chair, Mr. Taylor, advised the parties that the Tribunal had received a letter from the solicitor for Mr. Rivait at 11:00 o’clock on Monday morning requesting an adjournment of the hearing because the lawyer could not be in attendance Tuesday. This is extremely short notice to the Tribunal and the other parties. However, the Tribunal is willing to entertain a request for adjournment on the condition that Mr. Rivait is prepared to pay the cost of assembling the parties and Tribunal for this hearing. This cost was estimated to be in the order of $3,000.00. Mr. Rivait told the Tribunal that his lawyer could not be present but, in light of the cost involved, he was abandoning his request for an adjournment.

Nick Peralta, P. Eng., the engineer who prepared the September 3, 1998 report on the Hicks Drain, told the Tribunal that he was instructed by the Town to prepare a report dealing with the bridges on the Hicks Drain as well as a new assessment schedule for maintenance of the Hicks Drain pursuant to Section 76 of the Act. He said that the appellants had begun the replacement of the east rubble headwall on their access culvert with a poured concrete wall. This work was undertaken by the appellants at their own cost. When the work began, it was brought to the Drainage Superintendent’s attention and the Superintendent visited the site to advise the owners they were working on a municipal drain and he needed some time to investigate the ownership of the culvert. Subsequently, the Superintendent advised the owners that the culvert was part of the Hicks Drain under By-law and should be maintained by the municipality as a work of maintenance. The Superintendent called a site meeting with the owners on the Hicks Drain to discuss maintenance of the culvert by replacing the rubble headwall with a poured concrete wall. At the site meeting, two other nearby owners requested their access culverts be inspected and maintained if required, as well. At this point, the Superintendent recommended to Council that an engineer be engaged to conduct the inspection of all three pipes and make a recommendation.

Mr. Peralta told the Tribunal that he conducted a site meeting and inspected the culverts. At the time of his inspection, the appellants’ culvert had one end wall removed. The pipes in the two upstream culverts had corroded and he could penetrate these pipes with his steel probe. The culvert pipe at the appellants’ access culvert could not be penetrated and he concluded that there was still some life in this culvert. He examined the last engineer’s report on the project from 1969 and found reference to all three culverts and concluded that the pipes were at least 29 years old and therefore the appellants’ culvert, although not completely rusted through, was nearing the end of its useful life. He also felt that all three culverts were deficient in their top width and posed a safety hazard for vehicles using them. Based on his investigation, he prepared his report recommending replacement of the three culverts to current standards.

He said that there were a number of questions on the extent of the watershed that he investigated as part of preparing a new schedule for maintenance. He did not include his maintenance schedule in this report because he felt time was of the essence in replacing the appellants’ culvert. He was concerned that the culvert was a safety hazard as the east end-wall had been partly removed by the owner in carrying out his repairs and not replaced and it therefore required immediate attention.

Mr. Peralta told the Tribunal that he had estimated the cost of the culverts as individual works, so the estimate is on the high side if all three are replaced at the same time as one project. All three bridges are similar, so he assumed all three would cost the same. He estimated $9,982.33 per culvert including overhead but not grants.

He said that these culverts are closer to the upper end of the Hicks Drain so have a smaller percentage of the total drainage area draining through than is usually the case. For this reason, he assessed 67.5% as special benefit to the adjacent owners where he would normally have assessed the culverts at a rate of 50% for special benefit. He said he took each culvert and did a separate assessment schedule since each bridge has a different watershed area. He then combined the three schedules to get the assessment schedule shown in the report.

Mr. Peralta gave extensive evidence on his recollection of the site meetings and his understanding that the appellants desired to have their culvert properly attended to at this time. He pointed out that, as the engineer appointed under the Act, he has a duty to not only address the desires of the adjacent landowners but also the interests of the upstream owners. He said, in his opinion, it is unwise to spend money repairing or improving the end wall on the appellants’ culvert when the pipe is so old and near the end of its useful life.

Robert Rivait told the Tribunal that he had very recently constructed a house on this property. During the construction, he had several tri-axle truck loads of materials brought across the access culvert. Sometime during this work a few stones were loosened on the eastern headwall of the culvert. When he was preparing to replace this headwall with a poured concrete wall, the Drainage Superintendent came to the property and ordered him to stop work. He said he was convinced by the safe passage of the large trucks that the culvert was still sound and just needed the end wall repaired. He was prepared to do this work himself and at his own cost but the Superintendent would not allow him to pour the wall. He told the Tribunal that it was his understanding that the work contemplated was a work of maintenance and not a replacement requiring an engineer’s report. He objected to the engineer being brought in to review his culvert. He told the Tribunal that he had not attended at the site meetings because the notices were sent to him at his mother’s address rather than to his address at the site. Mr. Rivait said that his culvert still has life and he does not want an expensive project for something that does not need replacement at this time. He said the culvert may last another five years. He has repaired the east headwall using his own materials (stacked concrete slabs) and his own time at no cost to the Town or the Hicks Drain and he is satisfied with the culvert as it now stands.

Rose Mary Linder, co-owner of the property with Mr. Rivait, told the Tribunal that they did not receive the notices of the site meetings because they were sent to Mr. Rivait’s previous address. She said that they had always understood that what was happening was a work of maintenance of the existing culvert, not a new culvert. She told the Tribunal that they feel it is unfair for the Town to appoint an engineer and propose a new culvert, spending their money, without consulting them. She said that they objected to the proposed work as soon as they received the engineer’s report and have maintained that objection. She said all they wanted was maintenance of the existing culvert.

Leo Mailloux, spoke on behalf of Mr. Rivait. He told the Tribunal that he has been in the contracting business for 23 years and had worked on the construction of Mr. Rivait’s house. He said that Mr. Rivait asked him to rebuild the culvert headwall. He removed the existing rubble material and was going to pour a concrete wall to replace it but was stopped by the Town staff. He said during this work he hit the culvert pipe with the bucket of the excavator and then bent it back into place. He said this action indicated to him that there is still life in the culvert pipe. He said the culvert had supported his 38 ton truck loads and that culvert pipe is still circular in shape.

Veronica Symonds, an assessed upstream owner, told the Tribunal that she understood the work proposed on the Hicks Drain was a work of maintenance as that is what the first two notices from the Town indicated. When she received the engineer’s report indicating she was expected to pay about $1,000.00 towards the culvert replacement it was the first she knew that an engineer had been engaged and the work expanded beyond maintenance. She said that she felt it was unfair that she had to pay for the culverts but was willing to pay her share of maintenance of the channel.

The Chair of the Tribunal panel explained that the culverts were part of the drainage works and all properties that send water though the culverts are assessed part of the cost of maintenance of the culverts and culvert pipes when this work is necessary. The issue is what is the appropriate share for the upstream lands to pay.

Tony DiCiocco, Drainage Superintendent for the former Township of Colchester South, provided the Tribunal with a chronology of events in the process of this project. He said Mr. Mailloux was working on the culvert end wall when he first became aware that something was happening in the Hicks Drain. He confirmed that he had halted work on the proposed poured concrete headwall. After he confirmed that the culverts were part of the drainage works, he discussed the situation with Mr. Rivait, obtained quotes on replacement of the headwall with either a poured concrete wall or a jute bag concrete headwall and after that he called a site meeting to discuss the maintenance of the culvert. Mr. Willis and Mr. Glass attended at the meeting but Mr. Rivait did not attend. Both Mr. Willis and Mr. Glass requested work on their culverts. He decided that the best course of action was to recommend to Council that an engineer be engaged to review all of the culverts since the project had escalated from working on one headwall to consideration of the structural soundness of two and perhaps three culverts. Mr. DiCiocco said that the day after the meeting, he phoned Mr. Rivait at work and explained what had happened at the site meeting. Mr. DiCiocco said that as Superintendent he is required to make judgments on when it is appropriate to perform work as maintenance and when an engineering report should be obtained. He said it was his judgement that, in the circumstances where three culvert may have to be replaced, an engineer should be engaged to look at the project. He recommended this to Council. The Council appointed Mr. Peralta and a report was prepared and processed under the procedures of the Act.

In the testimony of the witnesses, the Tribunal heard complaints of notices not being received and a lack of communication between the parties involved. In the opinion of the Tribunal, the problem on this project is that both parties were talking but neither side was listening to the other.

In the opinion of the Tribunal, maintenance of the Hicks Drain, including the access culverts, is the responsibility of the municipality. The evidence was that the culvert needed repair and Mr. Rivait had started to improve the headwall without knowing that the municipality was responsible. In the opinion of the Tribunal, the Superintendent followed appropriate procedure and conducted a maintenance meeting because he thought that one headwall was all that would be involved. When two other owners requested improvement to their access culverts, the Superintendent made a judgement call that, given three culverts required work, it would be best that an engineer be consulted for a decision on the proper course of action. On inspection of the culverts, it was determined that the pipe for two of the crossings had served its lifetime and the third culvert was installed about the same time so could be expected to fail sometime in the reasonably near future.

The present condition of the Rivait crossing is not a hindrance to the operation of age works.

There was evidence given to the effect that the notice of the site meetings did not reach the appellants in time to attend. The mailing address was their former address in Tecumseh. Despite this lack of notice, they had the opportunity to discuss with the engineer and tell him they did not want a new culvert. In the opinion of the Tribunal, given the age of the pipes, repair of the existing crossings is not the wisest solution. The net cost after the grant of replacing the culverts under the tendered price is little more than the cost quoted by two local contractors for repairing one headwall. Whatever is spent on the headwall just buys a little time before the culvert pipe has to be replaced in any event.

Mrs. Symonds expressed concern about the cost assessed against her land. The engineer explained that he had deviated from his usual allocation for bridge construction at 50% benefit to 50% outlet because these culverts were high in the watershed. The Tribunal feels that the resulting assessment is a fair division of the cost in this case.

Once Mr. Rivait initiated improvements to the headwall on the access culvert, he initiated the process of the Act and therefore has some responsibly for the overhead costs incurred in response to his actions. However, Mr. Rivait is insistent that he only wants the culvert maintained and does not want the culvert replaced at this time

Given that Mr. Rivait believes that his culvert has some life to it and he has made repairs to the headwalls and wants to be excluded from the present proposed work, the Tribunal is prepared to accommodate him on terms.

ORDER OF THE TRIBUNAL

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

1. The appellants have the option of filing, in writing, delivered to the Clerk of the Town of Essex before 4:00 p.m., February 26, 1999, their refusal to have a new access culvert constructed for their property as proposed in the engineer’s report. If such refusal, signed by all the owners of the parcel, is provided then:

• All future maintenance, repair, improvement or replacement work on the culvert providing access to the property presently owned by the appellants (W½ of SE¼ Lot 18, Concession 6), which is necessary from the present until February 1, 2004, shall be carried out only with the approval of the Town Drainage Superintendent and under his supervision. The cost of the work shall be borne solely by the property of the appellants.

• After February 1, 2004, all future maintenance, repair, improvement or replacement work on the culvert providing access to the property presently owned by the appellants (W½ of SE¼ Lot 18, Concession 6) is to be carried out by the Town of Essex in accordance with the provisions of the applicable by-laws and the Act.

• This decision and the appellants’ notice of refusal shall be registered in the appropriate land registry office against the land of the appellants, by the municipality, at the cost of age works.

• The report is ordered amended by striking out the work opposite the property of the appellants with the appropriate adjustments in the estimated cost of the work and the assessment schedule as described by the engineer at the hearing.

• The lands of the appellants are to be assessed the sum of $1,250.00 as a special benefit toward the overhead costs of the project, including the cost of this hearing. This assessment is likened to an order of costs of the hearing but is to be considered part of the work eligible for any grants that are paid on agricultural lands at the time the project is completed and grants applied for.

• The report is to be further amended as set out in Item 3 of this Order.

2. If the appellants fail to file the notice described above, then the Tribunal orders that the report, as prepared by the engineer and adopted by the Town, is approved, subject to Item 3 of this Order.

3. Whether the report is amended as in Item 1 above, or approved as prepared by the engineer, as in Item 2 above, the report is to be amended by striking out Paragraph 1 of the Section headed “VIII Future Maintenance” on page 9 and substituting therefore the following paragraph: “We recommend that the access culverts being replaced and improved under this report be maintained by the municipality of the Town of Essex at the expense of the lands and roads assessed. Two thirds of the maintenance cost is to be assessed against the parcel to which the culvert provides access and the remaining one third is to be assessed against all the lands and roads upstream of the parcel served at a uniform rate per hectare using the area affected of each parcel as shown in the attached Schedule of Assessment.” Paragraph 2 of this Section is to remain unchanged. The engineer is required to include the area of the roads affected by the project in the Schedule of Assessment in his report.

4. The non-administrative costs of the Town in respect to this appeal shall form part of the cost of age 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 reason for this decision is that while the Tribunal believes that replacement of the culvert is the prudent course of action at this time, the appellants were adamant that all they require is a work of maintenance. The Tribunal is of the opinion that care must be exercised in forcing work and the attendant expense upon an unwilling owner even though it may actually be in his or her best interests, as long as avoiding the work will not adversely affect the lands of other owners in the watershed either physically or financially. Sometimes, though it may be perfectly clear that doing certain work now will save the owner from greater cost in the future, the owner may choose to accept the risk of greater future cost if he or she can avoid having to pay today. These owners should be heard, so long at this does not place other owners on the Hicks Drain at a disadvantage. Accordingly, the Tribunal is prepared to acquiesce to this request not to replace their access culvert now as long as the appellants accept the responsibility for the cost of any work that may be required on their access culvert for a reasonable length of time.

Dated at Chatham, Ontario this 5th day of February, 1999.