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:
Loach Municipal Drain Township of Norwich
Loach Municipal Drain (RE) 1999 ONAFRAAT 7
STATUTE:
Drainage Act
HEARING:
March 2, 1999
DATE OF DECISION:
March 9, 1999
1999-07
NEUTRAL CITATION:
1999 ONAFRAAT 7
Loach Municipal Drain Township of Norwich
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.
AND IN THE MATTER OF:
An appeal to the Ontario Drainage Tribunal by Frank and Jean Scott under Sections 48 and 54 of the Drainage Act from the September 30, 1998 engineer’s report and from the decision of the Court of Revision with respect to the Loach Municipal Drain in the Township of Norwich.
Before:
Andrew Osyany, Vice-Chair; Herbert Todgham, Vice-Chair; Russell Piper, Member.
Appearances:
Frank Scott, appellant.
John Kuntze, P. Eng., on behalf of the respondent, the Township of Norwich.
Anthony Nadalin, Newton Thomas, Fred Loach, assessed landowners.
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Township of Norwich, Otterville, Ontario, on Tuesday, March 2, 1999. Frank and Jean Scott appealed to the Ontario Drainage Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the September 30, 1998 report of John Kuntze, P. Eng., and from the decision of the Court of Revision with respect to the Loach Municipal Drain in the Township of Norwich (the Township).
John Innes, Administrator/Clerk-Treasurer for the Township, performed the duties of the Clerk of the Tribunal.
Section 48 of the Act is as follows:
- (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.
- (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:
- (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 30, 1998 report of John Kuntze, P. Eng., on the Loach Municipal Drain, Township of Norwich having been served notice of this hearing are made parties to this hearing.
The Background
The engineer’s report was prepared in accordance with Sections 4 and 8 of the Act, and a February 26, 1998 resolution of the Township. The resolution indicated that the Township had received a petition from Fred Loach and others in part of Lot 7, Concession 1 (East Oxford) and that the appointed engineer should prepare a report to address this petition.
The objective of the engineer’s report is to provide an improved drainage outlet for a low area in the northwest part of the Scott property along the rear of the residential lots on the south side of County Road 55 (formerly Highway 53) on the west side of Lot 7, Concession 1. The residential lot owners complained of a progressive worsening of flooding conditions on their lots.
The total estimated cost of the project is $16,600.
The total drainage area affected is 2.9 ha (7 acres).
The total drain length is 188m of tile drain work.
The residential lots that have petitioned are currently located within the watershed of the Eastwood West Drain which was constructed by a report of K. Smart Associates Ltd., dated September 10, 1986, and as revised by Addendum No.1, dated September 30, 1987. The Eastwood West Drain across Lot 7, Concession 1 consists of a 750mm (30") diameter concrete tile drain. This drain is located approximately 260m (850') south of the rear of the residential lots. The Eastwood West Drain drains easterly to an outlet in the Kipp Drain in Lot 6, Concession 1.
The Shelby Drain is located within the south side of the County Road 55 (formerly Highway 53) road allowance across the frontage of the residential lots. The Shelby Drain in this location is a 900mm (36") diameter concrete pipe drain that continues southeasterly along the south side of the road to an outlet into the Kipp Drain. The Shelby Drain was constructed primarily to drain the former Highway 53 where it crossed below the CNR right-of-way and lands to the north and west of the road/railroad intersection. Lands in Lot 7, Concession 1 were not assessed in the Shelby Drain report.
Frank Scott indicated that 15 or more years ago a 4" tile drain was constructed from what is now the Eastwood West Drain into the low hole behind the lots in an attempt to drain the hole. A catchbasin was installed in the low hole at the end of the drain. The route of the existing 4" (100mm) plastic tile from the low area south to the Eastwood West Drain was examined and a profile was completed. A second route, running parallel to and 10 metres south of the rear of the residential lots, with a proposed outlet into the Shelby Drain east of R. & L. Harris property, was also examined. The perimeter watershed for this proposed drain was established by field inspection and was compared to the watershed of the Shelby Drain and the Eastwood West Drain.
The area requiring drainage, as determined by the engineer, is described as the lands within the watershed of the proposed drain on the south side of the County Road in the west part of Lot 7, Concession 1 (East Oxford). There is a total of six parcels of land within this area requiring drainage with three of these parcels represented on the petition.
The location of the Loach Drain, the Shelby Drain and the affected lands and roads are shown on the watershed plan (attached). The heavy solid line indicates the location of the proposed Loach Drain. The heavy shaded broken line indicates the approximate watershed boundary for the lands in the Loach Drain watershed.
The Issue
The issues before the Tribunal are:
Are the assessments as proposed by the September 30, 1998 engineer’s report and revised by the Court of Revision appropriate?
Should the proposed works be modified to change the location of the drain?
The Evidence
Frank Scott told the Tribunal that the purpose of the drain is to help the three residential properties to get better drainage for their sewage beds. According to Mr. Scott, the water and sewage from the residential properties flows to a low area on his property. He said at one time the area near the pond was cleared but now is overgrown with brush, etc.
He told the Tribunal that last summer and fall he tiled his farm and at the same time fixed the four inch tile that drained the pond. Now that he has cleaned out the four inch tile, there is no water sitting in the pond. He said he has already addressed his drainage problem, is satisfied that the pond area is now adequately drained to suit his purposes, so feels his assessment for the Loach Drain should be reduced or eliminated. It is his opinion that, when the engineer calculates assessments, a run-off factor of four should be applied to the residential lots. He told the Tribunal that, in his opinion, he should only be assessed the cost of the 180 metres of tile that would be on his property. The cost of that pipe would be about $200.
Mr. Scott said that it is his opinion that the drain should be constructed on the residential properties. He said he does not object to the physical presence of the Loach Drain on his property. It is the monetary cost that he has an objection to. He admitted that there are some poplar and willow trees at the back of the residential lots that would be disrupted if the drain was moved there.
In response to questions of the Tribunal, he said the sub soil is a clay/clay loam and that is why the water lays for a while before draining away. He said the value of tiled land is about $2000/acre.
Mr. Kuntze, P. Eng., spoke on behalf of the Township. He told the Tribunal that when determining the assessment it is important to keep in mind that the primary purpose of this drain is to look after the needs of the residential properties. He said he determined the assessments on the project by first calculating the benefit assessments to the lands affected. The balance of the cost was then assessed as outlet liability on a per hectare basis to all the lands within the watershed. The benefit assessments to the various properties he calculated as follows:
Each parcel was assessed a base benefit assessment of $2,000 as follows:
$1,000 for improved direct outlet provided;
$1,000 for improvement to the low area behind the lots.
Additional direct benefit for improvement of the low area was assessed as follows:
F. & J. Loach $2,000
F. & J. Scott $1,500
R. & L. Harris $ 500
Mr. Kuntze said once he had applied the base benefit assessments, the amount left to be assessed as outlet was insignificant. He said he will often calculate the run-off factor for residential lots using a factor of two when completing the assessments. He does not support Mr. Scott’s reasoning of increasing the run-off factor from residential lots by a factor of four. Mr. Kuntze said that in the particular circumstances the appropriate factor would be two.
He told the Tribunal that a Court of Revision varied the assessments as proposed in the September 30, 1998 engineer’s report.
In response to questions of the Tribunal as to which Schedule of Assessment he supports, Mr. Kuntze said he supports the original assessment he made in his report with some minor revisions. Based on what he has learned in various discussions, he said he would revise his assessment schedule as follows:
◼ increase the assessment to the Nadalin property by $1,000 and the Harris property by $500 to recognize the benefit that the drain will provide for these properties;
◼ reduce the Scott property assessment by $500;
◼ reduce the Loach property assessment by $1,000.
Mr. Kuntze said he cannot support moving this drain on to the residential properties as suggested by Mr. Scott. He said that to solve the present problem a drain has to be put through the low hole and that hole is on the Scott property. He said the only reason Mr. Scott wants the drain moved off his property is that it is his opinion this would mean his assessment would be lowered. He said Mr. Scott has brought no evidence to warrant moving the drain.
He said it is his opinion that Mr. Scott should be assessed more than just the cost of the pipe. He will receive the advantage of having that area cleared, drained and available for agricultural purposes. He said he feels the original benefit assessment on the Scott property in his report was reasonable based on the advantages Mr. Scott would receive.
Mr. Kuntze told the Tribunal that he does not agree that the tile drainage Mr. Scott undertook will take care of the present problem. It is his opinion, that from an agricultural point of view, the tile drainage just installed may be adequate but it will not be adequate to handle all of the other water draining in that direction. He said that the properties in the watershed need an outlet and the proposed drain will ensure that an outlet is available to them.
In response to questions of the Tribunal, Mr. Kuntze agreed that the drain is designed to higher standards because of the residential lots. The standard for agricultural use would have meant recommending eight inch tubing instead of ten inch tubing. The approximate decrease in cost would be about $4 per meter (materials and installation).
Mr. Nadalin, an assessed landowner, told the Tribunal he was satisfied with the engineer’s first assessment. He objects to the assessment as varied by the Court of Revision as, in his opinion, the assessment is too high. He said the advantage of the drain to him is that it provides him with an outlet. The disadvantage is that there will no longer be a place for wild life to exist on this property since the drain will dry up the low wet area in the back corner. He admitted that since this property has now been rezoned for a single-family dwelling, a house could be built here. From that point of view, the drain could make the property more attractive to buyers.
Mr. Loach, an assessed landowner, told the Tribunal that he purchased the property in 1988. The house on this property was built 35 years ago. He said the former owner used to mow the lawn, etc., around the pond area and it had ducks on it. Since then brush has grown up around it. About ten years ago Mr. Scott put in a four inch tile to drain the pond. It worked well at first but gradually got worse. He said when he moved to this property the sump pump dumped water into the septic system. He spent about $1,000 so that the surface water and sump pump water could be drained to the Shelby Drain rather than to the back of the property. He said the proposed drain should keep water from encroaching on the residential properties and eliminate any crop damage on the agricultural properties. He said the drain will provide no direct drainage to residential properties but it will provide an outlet.
Mr. Loach said that when he, Mr. Thomas and Mr. Harris made a presentation to the Court of Revision, they were concerned that only $600 was assessed as outlet which, in his opinion, ignored the source of water. It is his opinion, that it is appropriate to charge ½ of the costs to outlet and ½ to benefit. He supports the assessment schedule from the Court of Revision. In his opinion, it is appropriate and fair to everyone and he agreed that the proposed drain ensures an outlet in the future for all the properties.
Newton Thomas, an assessed landowner, said that the standing water on the back of his property flows across the Nadalin property to the pond on the Scott property. He said he supports the assessment schedule from the Court of Revision.
The Findings
The evidence presented convinced the Tribunal that there is a need for a drain to address the problem of excess water lying in a depressional area on the Scott property.
Mr. Scott argued that the drain should be moved to the back of the residential properties. However, he failed to bring forth any evidence to suggest why, other than he felt if the drain was not on his property he would not be assessed any costs. Mr. Kuntze argued that the only way to correct the problem was to have the drain go through the depressional area. The Tribunal accepts the engineer’s argument that the drain should be constructed through the low area on the Scott property. Therefore, the appeal under Section 48 is dismissed.
The Tribunal accepts the argument of the engineer that for a “depression type” drainage situation of this size, it is appropriate to treat all landowners on a reasonably equal basis emphasizing benefit more than outlet. In this case, the engineer originally assessed $16,000 as benefit and $600 as outlet. At the Court of Revision proportions between benefit and outlet were changed to a 50:50 ratio. The Tribunal is of the opinion that, under these particular circumstances, a reasonable range is somewhere between these extremes. Therefore, the Tribunal has decided to order an amendment to the assessment schedule.
In the opinion of the Tribunal, it is appropriate to fix the benefit amount at $12,000 (or approximately 75%) leaving $4,600 for outlet. In allocating the $12,000 benefit, the Tribunal distinguishes between two types of landowners - residential and agricultural. In this case, the purpose of the drainage works is to deal with the problems of the residential lots but significant benefit is also accrued to the agricultural properties. The Tribunal assesses $7,500 of benefit to the residential owners and the remaining $4,500 benefit to the agricultural lands.
As a starting point in dealing with the benefit assessment, each residential property would be assessed $1,500. This basic benefit assessment should be varied by special circumstances, if any. The Harris property is very close to the lowest point and derives significantly greater advantage than some of the other lots. It should, therefore, be assessed an additional $500 for a total of $2,000 benefit. Of the residential properties, the Loach property is the greatest beneficiary of the drainage works and should be assessed an additional $1,000 for a total benefit assessment of $2,500. This leaves the Thomas and Kipp properties to be considered. The Tribunal is of the opinion that the Kipp property derives less than average benefit and, therefore, its benefit assessment should be reduced by $200 (i.e. $1,300 assessment) and this amount added to the Thomas property, making its benefit assessment $1,700.
The two agricultural properties derive quite different benefits from each other. On one hand, the Scott property benefits by:
◼ the grubbing and leveling;
◼ assured removal of water that collects in the low ground on this property;
◼ a legal outlet to the Shelby Drain.
The Nadalin property benefits from:
◼ acquiring a legal outlet for a substantial part of the property;
◼ the ability to bring into cultivation the lower portion of the lands;
These two benefits are close in value to each other but not the same. The majority of the Tribunal assesses $2,500 benefit to Nadalin and $2,000 to Scott.
In this particular case, the Tribunal agrees with the engineer that to calculate outlet assessments a run-off co-efficient of two should be used for the residential lots. This means the equivalent hectares to be used for calculating outlet assessments are as follows:
A. & J. Nadalin 1.3
W. & J. Kipp 1.2
N. & A. Thomas 0.4
F. & J. Loach 0.4
R. & L. Harris 0.4
F. & J. Scott 0.4
Total 4.1
The $4,600 assessment for outlet is to be divided equally among the six landowners based on the equivalent hectares.
The Tribunal recommends that engineers include only “total assessments” in their report. In the opinion of the Tribunal, engineers who include a schedule of “net assessments” in their report, create a source of much misunderstanding and discussion, when landowners begin to compare the "out of pocket" dollars to be paid by the various landowners, after allowances and grants, when the significant comparison is the division of the total assessment among the landowners.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made, the Tribunal orders that:
The appeal of Frank and Jean Scott under Section 48 is dismissed.
Before giving third reading, the Clerk of the Municipality shall delete the Schedule of Assessment in By-law No. 70-98 and replace it with the following Assessment Schedule:
Landowner Approx. Benefit Outlet Total ha. $ $ Assessment affected $
*A. & J. Nadalin 1.3 2,500 1,458 3,958
W. & J. Kipp 0.6 1,300 1,346 2,646
N. & A. Thomas 0.2 1,700 449 2,149
F. & J. Loach 0.2 2,500 449 2,949
R. & L. Harris 0.2 2,000 449 2,449
*F. & J. Scott 0.4 2,000 449 2,449
Total Assessments on Loach Drain 12,000 4,600 16,600
*The Nadalin and Scott properties are designated as used for agricultural purposes.
- The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the Drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
The reasons for this decision are:
The Tribunal was convinced by the evidence that the proposed location of the drain is appropriate and in the best interests of the property owners.
The Tribunal was convinced by the evidence that the assessments are more appropriately calculated using a ratio of approximately 75% benefit and 25% outlet.
Dated at Shelburne, Ontario this 9th day of March, 1999