South Hutchinson Municipal Drain (Re), 1999 ONAFRAAT 5

Agriculture, Food and Rural Affairs Appeal Tribunal

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

APPEAL: South Hutchinson Municipal Drain Town of Dunnville

South Hutchinson Municipal Drain (RE) 1999 ONAFRAAT 5

STATUTE: Drainage Act

HEARING: January 19, 1999

DATE OF DECISION: February 5, 1999

1999-05

NEUTRAL CITATION: 1999 ONAFRAAT 5

South Hutchinson Municipal Drain Town of Dunnville

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 Barbara and Ernest Puhl under Section 54 of the Drainage Act from the decision of the Court of Revision on the South Hutchinson Municipal Drain in the Town of Dunnville.

Before: Vernon Spencer, Chair; Andrew Osyany, Vice-Chair; Anna Andres, Member; Andy Koopal, Member.

Appearances: Ernest Puhl, appellant Barbara Puhl, appellant. John Kuntze, P. Eng., on behalf of the respondent, the Town of Dunnville.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Town of Dunnville (the Town), Ontario, on Tuesday, January 19th, 1999. Barbara and Ernest Puhl appealed to the Ontario Drainage Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on the report of John Kuntze dated July 27, 1998 for the South Hutchinson Municipal Drain in the Town of Dunnville. William J. Kolasa, Deputy Clerk of the Town, performed the duties of the Clerk of the Tribunal.

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.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the July 27, 1998 engineer’s report, prepared by John Kuntze, P. Eng., on the South Hutchinson Drain 1998, Town of Dunnville, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The existing South Hutchinson Municipal Drain (the Drain) is located along the west side of Regional Road 65 (Hutchinson Road). From the abandoned Welland Canal Feeder it runs northerly across Concession 3 Lake Erie (LE) and Lots 1 to 3, Cross Concession 3 (Moulton) in the Town. The work proposed in the report is in response to a petition requesting an improved outlet for lands in the south half of Lot 8, Concession 3LE and Lot 9, Concession 3LE, the north part of Lots 6 to 8, Concession 3LE and Lot 1, Cross Concession 2 in the Town (see attached plan labeled South HutchiNson Drain).

The report proposes cleaning out and extending the Drain to a new outlet into the abandoned Welland Canal Feeder so that the Drain continues due south across the North Canal Bank Road from its present location along the west side of Regional Road 65, rather than turning at the road and then flowing westerly then turning southerly and crossing the North Canal Bank Road to outlet into the Welland Feeder Canal. The report provides for the construction of:

1. The Givens Branch to provide improved outlet for lands in the south part of Lots 7 and 8, Concession 3LE,
2. The Poth Road Branch to provide improved outlet for lands in the north part of Lots 6 to 8, Concession 3LE, and
3. The Keholme Branch to provide improved outlet for Lot 1, Cross Concession 2.

The report also makes provision for the use of the Drain as a supply source for irrigation water by allowing for pumping of water from the Welland Canal Feeder into the Drain.

The total cost of the work is $71,500 of which $42,255 is for the main Drain and the remainder is for three branch drains. Including special benefit and special assessments on the main Drain, the $42,255 is assessed at $29,815 (or 70%) as benefit and $12,440 (or 30%) as outlet.

The watershed area is 240.8 hectares.

The Issue

The issue before the Tribunal is:

Are the assessments as proposed in the July 27, 1998 engineer’s report and modified by the Court of Revision, appropriate?

The Evidence and the Findings

John Kuntze, P. Eng., the engineer who prepared the July 27, 1998 report on the South Hutchinson Drain 1998, appeared on behalf of the Town. Mr. Kuntze told the Tribunal that the report proposed to:

• clean out the existing Drain,
• build a new outlet for the Drain following a straight line into the Welland Canal Feeder,
• build three branch drains, two of which were just the width of the road, in order to provide outlet into the Drain for lands on the east side of Regional Road 65,
• replace the access culvert to the Puhl property with reclaimed concrete sewer pipe,
• replace the access and lawn culvert on the Young Sod property with reclaimed sewer pipe,
• build a new outlet under the North Canal Bank Road,
• replace the necessary road culverts,
• make provision for the use of the Drain as a conduit for irrigation water supply by Young Sod Farm with the Welland Canal Feeder as a source of water supply.

Mr. Kuntze said that the land in the area is flat and one other aspect of the report is to determine the watershed for the Drain. He said that the Poth Road Branch replaces the existing Chrysler Drain which formerly drained to the South Consolidated Drain in the Township of Wainfleet. A blockage is being placed in the channel of the Chrysler Drain to define the watershed boundary for these drains. He said the land is flat and he determined the watershed boundary in some places by observing how the landowners had constructed their surface drainage systems.

With respect to the use of the Drain for irrigation, the report provides the performance specifications for a structure that is intended to be built and operated by Young Sod Farm - the landowner who wants to use the channel for irrigation. The cost of this structure is assessed to Young Sod Farm.

Mr. Kuntze said that the only appeal was on assessment so he would concentrate on that aspect of the project. He said the appellant’s property was assessed only for the main Drain. In making his assessment on the main Drain, he broke the work into five sections as shown in Appendix A in his report.

He said that he assessed the Puhl residential lot $500 benefit for improved access. He noted that this lot is currently cut off from all road access by ditches.

For the Puhl farm land, he assessed two types of benefit assessments. The first related to the clean out of the ditch. He calculated 660 meters of ditch @ $2.50 per meter for benefit assessment. This is 50% of the estimated cost of the work and is the same rate per meter as other lands on the Drain. The second benefit assessment was for the access culvert which he assessed 50% to the Puhl property and 50% to the upstream owners. The culvert materials are salvaged concrete pipe which have been delivered to the site at no cost to the owners. This benefit assessment is $1,500.

Mr. Kuntze said that he adjusted the 14.5 hectares in the watershed to 13.4 equivalent hectares to account for 2.3 hectares of woodlot on the farm. He assessed this area outlet on the first two lengths of the Drain only. The first length is the crossing under the North Canal Bank Road and the second length is the channel adjacent to the Puhl property to the upstream property limit.

The total outlet assessment for Mr. Puhl is $274.

Ernest Puhl told the Tribunal that he is not happy with the proposed assessment. He pointed out that his 14.5 hectares is assessed $1,650 of the clean out of the ditch while the 40.5 hectare lot upstream is assessed only $1,500. He said he only has so much water draining into the channel and he is willing to pay his share but not at three times the rate per hectare of his upstream neighbours. He suggested the assessment should be based on number of hectares in the property.

Mr. Puhl said that the Drain is not located on his land but on the adjacent road allowance. He said that the policy of the Region is that the road authority replaces access culverts, so he does not understand why he has to pay for his access culvert. He said this should be paid for by the Region.

Mr. Puhl also appealed the assessment schedule for future maintenance of the Drain. He said as he reads the schedule his land is assessed 40% of the cost of future maintenance on the Drain and this is unfair since he only owns a small part of the affected watershed.

In response to questions from the Tribunal, Mr. Puhl said that he was not concerned with the $500 benefit assessment against the residential property or the amount of the outlet assessment. He said his concern was the benefit assessment levied against his farm land.

In response to Mr. Puhl’s submission, Mr. Kuntze told the Tribunal that the benefit assessment has to relate to the work done, not the size of the property. He said that he starts at a division of 50% benefit to 50% outlet and adjusts from there. He said it is his practice to base benefit on the length of the Drain on the property because that determines the cost of the work on the property. He then applies the benefit assessment on a reasonably uniform rate for all the lands through which the Drain is constructed. He said in this case he assessed the Puhl property and Young Sod property at the same rate per meter for benefit.

Mr. Kuntze told the Tribunal that when the Drain is on a property boundary there should be some sharing of the benefit assessment. In this case, the Drain is in the road allowance so he assessed benefit of approximately $1.50 per meter ($900) to the road and $2.50 per meter to the Puhl property. He said he believes this division to be equitable since the road has been built up and will not flood. He pointed out that if the ditch was blocked, the land to the west of the road would flood but the road would be unaffected.

Mr. Kuntze said that since this work was under the Act, the policy of the Region on replacement of access culverts is irrelevant. Under the Act, he has to make provision for access culverts and these culverts must form part of the Drain. He assessed 50% of the construction cost of the culvert to the adjacent owner (Puhl) and 50% to the watershed. He assessed maintenance of this culvert in the same proportion.

Regarding Mr. Puhl’s concern over the maintenance provisions of the report, Mr. Kuntze stated that the schedule should have a total column. As it stands, the schedule shows the assessments for maintenance of the sections of the Drain. If the entire length of the Drain is maintained at once, then the columns have to be summed to obtain the ratios to assess the maintenance cost. He said that when the entire drain is maintained, Mr. Puhl will be assessed 9.8% of the total cost. If the only maintenance is from the culvert under the North Canal Bank Road across the Puhl property, then the second column in the schedule would be used for assessments and Mr. Puhl would be assessed 32% of the cost of the work.

In response to questions from the Tribunal, Mr. Kuntze said that:

• The primary objective of the work is to maintain the Drain that is already there.
• If the lower part of the Drain were filled in, almost all of the farm lands would flood.
• His assessment of this drain is equally weighted between benefit and outlet.
• The design grade on the channel is 0.04%.
• The maintenance schedule is based on the construction schedule with the benefit assessment reduced to reflect the cost of culverts and other special features.
• If the Drain is not working, the land flooded would be close to the watershed especially south of Poth Road.
• Perhaps the $2.50 per meter benefit assessment he assessed for the channel on the bottom (outlet section) 200 meters of the Puhl property should not apply. The work on this length is primarily to provide outlet for the entire watershed. He suggested this $500 be transferred to outlet assessment.

The Tribunal examined the evidence. Firstly, the Tribunal wishes to compliment Mr. Kuntze on his report. The Tribunal found the report to be easily read and understood. The inclusion of the reasoning used to calculate the assessment and the details of the assessment in Schedule A are very helpful to the Tribunal and to the landowners who have to pay for this work.

The Tribunal examined in detail the second reach of the Drain - the channel adjacent to the Puhl property. The total cost of this reach is $8,965 including:

1/ Allowances $1,000 2/ Construction $6,295 which includes $2,500 for the estimated cost of construction of the Puhl access culvert and headwalls (9th item on Page 12 of the report). 3/ Engineering $1,545 4/ Administration $ 125

Of this figure $5,750 or 64% is assessed for benefit. If one eliminates the $3,000 of construction and overhead costs assigned to the Puhl culvert from the benefit ($1,500) and outlet ($1,500) assessments and consider only the cost of cleaning the channel in this section, then this ratio is ($4,250/$5,985) 71% benefit.

The Tribunal recognises that the division between outlet and benefit on any project is a judgement call by the engineer. Each engineer may arrive at a different ratio and the Tribunal may prefer an even different ratio. In this case, since the land is nearly flat and the drainage of the entire area depends on this outlet, in the opinion of the Tribunal, the work on the channel should be more heavily weighted to outlet than benefit.

In the opinion of the Tribunal, the assessment for the channel work on the main Drain should be divided in the ratio of 40% benefit and 60% for outlet to reflect the purpose of the Drain. The Tribunal expects that the ratio on each section of the main Drain should be 40% benefit and 60% outlet, but the engineer is free to vary from this ratio if the circumstances of any particular section warrant a deviation. The Tribunal recommends that the engineer prorate the revised assessments to the figures for benefit and outlet as now contained in the table in Schedule A as revised by the decision of the Court of Revision. The engineer should assess the structural work in the revised schedule in a manner similar to what he has done in the July 27, 1998 report. Once the new construction schedule is calculated, the maintenance schedule should be revised accordingly and a column showing assessments when the entire length of the channel is maintained should be added.

ORDER OF THE TRIBUNAL

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

1. The engineer is to prepare a new schedule of assessment for the South Hutchinson Drain 1998 using a ratio of 40% benefit and 60% outlet for the work of channel maintenance. The assessment for structural work is at the discretion of the engineer but should be similar to the ratios in the July 27, 1998 report.

2. The engineer is to prepare a revised schedule for maintenance of the South Hutchinson Drain 1998 to reflect the modified schedule for construction. The maintenance schedule is to include columns similar to those shown in Schedule B of the July 27, 1998 report with an additional column to indicate the assessment to be used if the entire length of the channel is to be maintained as one project.

3. Once the schedules have been prepared, the engineer is to file the revised schedules with the Town of Dunnville.

4. The Town of Dunnville is directed to circulate the revised assessment schedules to each person or body entitled to notice under section 41, along with:

• a notice of the time and place of the sitting of a Court of Revision to hear appeals on the revised schedules, and
• directions that the assessment schedules dated July 27, 1998 and the revised assessment schedules dated October 21, 1998 are to be removed from the July 27, 1998 engineer’s report and replaced by these revised schedules.

5. 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 Town of Dunnville, 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

6. The non-administrative costs of the Town of Dunnville in respect of 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 reason for this decision is that, in the opinion of the Tribunal, the primary purpose of the main Drain is to provide outlet for the entire watershed as opposed to providing a direct benefit to those landowners that abut the Drain.

Dated at Chatsworth this 5th day of February, 1999