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:

Lewis and Maple Avenue South Drains County of Brant

Lewis and Maple Avenue South Drains (RE) 2000 ONAFRAAT 19

STATUTE:

Drainage Act

HEARING:

June 20-21, 2000

DATE OF DECISION:

September 1, 2000

2000-19

NEUTRAL CITATION:

2000 ONAFRAAT 19

AMENDED

Lewis and Maple Avenue South Drains County of Brant

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 Agriculture, Food and Rural Affairs Tribunal by Russell Wilson and Peter VanKruistum under Section 48 of the Drainage Act (the Act) and by John Porr, Russell Wilson and Peter VanKruistum under Section 54 of the Act from the decision of the Court of Revision and from the report of Wm. Kelly on the Lewis and Maple Avenue South Drains in the County of Brant.

Before:

Andrew Osyany, Vice-Chair; Bill Sears, Vice-Chair; Armand Bechard, Member; Doug Flook, Member.

Appearances:

Valerie M’Garry, counsel for the respondent, the County of Brant.

Bill Kelly, P. Eng., consulting engineer for the respondent, the County of Brant.

Bradley Stone, counsel for Peter VanKruistum, appellant.

Peter VanKruistum, appellant.

John Porr, appellant.

Maurice Vanhoucke, assessed owner

John Oosterveld, assessed owner.

DECISION OF THE TRIBUNAL

This appeal was heard the Council Chambers of the County of Brant in Paris, Ontario, commencing on June 20, 2000 and continuing on June 21, 2000. Russell Wilson and Peter VanKruistum appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) and John Porr appealed under Section 54 of the Act from the decision of the Court of Revision and from the report of Wm. Kelly on the Lewis and Maple Avenue South Drains in the County of Brant.

Jayne Carman, Deputy Clerk of the County of Brant, 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 the drainage works are not commensurate with the estimated cost thereof;

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

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

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

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

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

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

Section 54 of the Act is as follows:

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

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

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

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

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the October 15, 1998 report of Wm. Kelley on the Lewis and Maple Avenue South Drain, County of Brant, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Prior to the commencement of the hearing, the Tribunal was informed that Mr. Wilson, through his solicitor, had verbally advised the municipality and the Tribunal office that he was withdrawing his appeal. He has sold his land to Mr. John Oosterveld and will not pursue his appeal. Mr. John Oosterveld appeared at the hearing and informed the Tribunal that, as the new owner of the property, he wished to purse the appeal filed by Mr. Wilson.

At the close of the hearing the Tribunal provided an opportunity for counsel to submit case law in support of their respective positions. Counsel did submit legal briefs to the Tribunal and the Tribunal assembled in Guelph on August 17, 2000 to consider the evidence and make its decision.

The Background

The watershed of the Lewis drain is comprised of those lands lying in Parts of Lots 3 to 5, Concession 6, Parts of Lots 3 to 7, Concession 7, Parts of Lots 2 to 6, Concession 8 and Parts of Lots 2 to 5, Concession 9. In general the present Lewis Drain provides drainage and outlet for the lands and roads within the watershed.

The Lewis Drain was originally constructed in 1894 under report of John Fair. It was repaired and improved under reports in 1916, 1941, 1955 and 1969. Other known maintenance work was carried out in 1928, 1939 and 1940.

In his report Mr. Kelley makes the following comments:

The grade on the drain is 0.02% and the drain has a poor outlet into Whiteman’s Creek. The outlet elevation of the Lewis Municipal Drain is controlled by the existing depth of Whiteman’s Creek at the point of juncture. The lower area of the Lewis Municipal Drain is flooded at certain times of the year when the water level on Whiteman’s Creek is high.

The cost of deepening Whiteman’s Creek downstream of where the Lewis Municipal Drain outlets would be high for any benefits gained, and in all probability it would have negligible effect on the periodic flooding which occurs in this low lying area.

It is evident that the Lewis Municipal Drain is so flat, that it needs periodic maintenance on a continuing basis for it to remain functional.

The Court of Revision for the 1969 report on the Lewis Drain altered the proposed assessment schedule. The effect of this change was that a portion of the land near the east watershed boundary was not assessed to the Lewis Drain. Part of the instruction to the engineer was to establish the watershed of the Lewis Drain and an assessment schedule for the maintenance work that is now necessary on this drain.

Mr. Peter VanKruistum purchased the south part of Lot 4, Concession 8. The Lewis Drain flows through this property. Mr. VanKruistum is in the process of developing this property as a fish farm containing four large ponds. To prevent surface water from flowing into and contaminating his ponds, Mr. VanKruistum raised the level of portions of his property, built berms on the boundary lines and built dams across the Lewis Drain near both his upstream and downstream property boundaries. The dams on the Lewis Drain have been opened to the full cross-section of the Lewis Drain and no longer restrict flow in the drain. The perimeter berms remain functional.

The Lewis Drain is currently overgrown with vegetation and requires a clean out for its entire length. The proposed work in the report consists of the clearing, grubbing, cleanout and leveling of spoil of some 3,400 meters of open drain including the cleanout of culverts, lowering of two culverts and the placement of rip-rap at various locations. The length of the Lewis Drain is 3,400 meters. The area assessed is 437.8 hectares. The total estimated cost of the proposed work is $65,000.00 of which the engineer assessed $39,800 as statutory benefit, $22,200 as outlet liability and $3,000 as special benefit to Highway No. 53. The Court of Revision reduced the statutory benefit assessment against the lands of Mr. VanKruistum by $2,000 and increased the assessment against the County Road system by $1,000, the assessment against the lands of J & A Porr by $250, G & A Voogd by $250 and L. Cadman by $500.

The berm along the east property line of the VanKruistum property prevents surface water from the east side of the watershed, including Maple Avenue, from flowing over the VanKruistum property to the Lewis Drain – its natural outlet. At times the water backs up to cover Maple Avenue. The Road Superintendent signed a petition in 1993 to provide an outlet for this water. In 1996 the municipality installed dry wells on the east side of Maple Avenue to assist the water to enter the sand and gravel substrata to become part of the subsurface flow. While this system provides some relief for the road flooding it is not a solution at times when the ground is frozen and the water cannot infiltrate fast enough. The petition of the Road Superintendent is the authority for the part of the report designated as the Maple Avenue South Drain 1997.

The proposed Maple Avenue South Drain is a tile drain system constructed from the road allowance between Lots 3 and 4 (Maple Avenue) in Concession 8 west across the south part of Lot 4 Concession 8 outletting into the Lewis Drain in the South part of Lot 5, Concession 8. (See attached plan). The total length of the drain is 674 meters. The watershed area affected is 42.4 hectares of which one hectare is road. The total estimated cost of the work is $50,300 of which $39,900 is assessed as statutory benefit and $4,400 is assessed as outlet liability and $6,000 is assessed to Maple Avenue for the increased cost of the road crossing. Of the $39,900 assessed as statutory benefit, $29,200 is assessed against the road authority. The Court of Revision reduced the assessment on the road authority by 25% and added the corresponding amount to the assessment on Mr. VanKruistum’s land.

The Issue

The issues before the Tribunal are:

1. Is the assessment for the Lewis Drain, as modified by the Court of Revision appropriate?

2. Is the assessment for the Maple Avenue South Drain, as modified by the Court of Revision appropriate?

3. Should the Maple Avenue South Drain be modified by changing the alignment so that it crosses the 8-9 Concession Road and empties into the road ditch on the south side of the road? From the outlet of the tile in the south road ditch the water would flow west, along the road ditch, to the head of the Lewis Drain where the drain crosses this road.

The Evidence and the Findings

Mr. Kelley summarized the history of the project and told the Tribunal that, in preparing the report on the Lewis Drain and the Maple Avenue South Drain he considered several different options including diverting the water out of the watershed south to the Kent Drain. He said that, in his opinion, the project proposed in the report is the most desirable alternative.

He said that the work on the Lewis Drain involves a cleanout from end to end, lowering some culverts and excavating the ditch. It is basically a work of maintenance and could have been done without a report had the assessment schedule been up to date. He said he divided the cost as 34% outlet liability, $2,000 special benefit and the remainder as statutory benefit. In assessing for statutory benefit he felt that the drain only benefited those lands that directly abut the drain. He assessed statutory benefit based on the length of drain on the property. A property with 100 meters of drain received ten times the statutory benefit of a property with 10 meters of drain.

He did not assess statutory benefit for the land of Cadman, Porr or Voogd. These properties are upstream of the end of the Lewis Drain. The muck on the Cadman property has been excavated below the grade of the Lewis Drain. The Lewis Drain will not lower the water on this land so the drain is of limited benefit to the property. The Porr and Voogd properties are removed from the drain so no statutory benefit was assessed. Mr. Kelley told the Tribunal that he supports his original assessment of the cost of this work.

Mr. Kelley told the Tribunal that the Maple Avenue South Drain is contained within the watershed of the Lewis Drain. Before the berm was constructed on the east side of the VanKruistum property the water flowed west across the land surface to the Lewis Drain. He said that, in his opinion, there was no defined watercourse for this water - the water just flowed according to gravity following the lowest path in the fields. The berm blocks this flow and floods the upstream Maple Avenue roadway and the lands formerly owned by Mr. Wilson. He said that the dry wells constructed by the municipality to allow the surface water to infiltrate to the sand and gravel substrate do not work all the time with the result that Maple Avenue has been closed at various times. He had considered several options for the construction materials and route of this drain and the one contained in his report is the most desirable solution to carry the flood water from Maple Avenue to the Lewis Drain.

Mr. Kelley said that he viewed this project as a benefit project and therefore had assessed the bulk of the cost to the municipality. The drain takes water off the road allowance where it is now trapped and removes potential liability from the municipality. 68% of the total cost is assessed to the municipality. He said that he does not support the decision of the Court of Revision and suggested that the Tribunal reinstate the assessments in the report.

In response to questions Mr. Kelley said that:

• He supports his report and cannot support the decision of the Court of Revision on the Lewis Drain or on the Maple Avenue Drain.

• He based his allowances on a dollar rate per meter of drain. In this case there is pasture, scrub bush and trees along the drain so there were no crops to consider.

• The watershed was different in this report than the previous report and that is why he could not use the old assessment schedule as a basis for assessing the cost of the current work.

• Municipalities object to having drains placed on the road allowance. Drains on the road tend to be a traffic hazard, restrict the options for road alignment and improvement and restrict placement of utilities on the road allowance.

• Most of the properties were agricultural and he used a run off factor of one. For roads he used a runoff factor of five or six. For Urban Area 2 he used a run off factor of five. For Urban Area 1 he used a run off factor of three. He said he did not have his assessment notes with him but to the best of his recollection that these are the factors used.

• To account for the length of drain each property used (the length factor) he divided the channel into 300 meter lengths and assessed the land flowing into each section. Using this method the further the property was from the outlet the larger the length of drain factor. The length of drain is 3,400 meters so properties at the head of the drain had a length factor ten times that of the properties at the outlet.

John Kuntze, P. Eng., spoke to the Tribunal on behalf of Mr. VanKruistum. Mr. Kuntze told the Tribunal that Mr. VanKruistum is developing his property along the Lewis Drain with the ultimate plan being the construction and operation of four large fish ponds. He said the Lewis Drain needs to be cleaned out and as long as the decisions of the Court of Revision are upheld by the Tribunal, Mr. VanKruistum is content with the proposed work and the proposed assessment against his land.

Mr. Kuntze said he had several concerns with the Maple Avenue South Drain proposed by Mr. Kelley. He said that, in his opinion:

• The Maple Avenue Drain is not required. Mr. VanKruistum does not need it. Mr. Oosterveld does not want it. The road flooding problem could be addressed by raising the road surface.

• The portion of the proposed drain from approximately Station 674 to about Station 200 is on the land of Mr. VanKruistum. The tile from Station 674 to Station 475 is at a 0.33% grade and then it flattens to a 0.1% grade and continues on the land of Mr. VanKruistum to outlet into the Lewis Drain. The report calls for imported fill to provide sufficient cover over the tile. He said that, at times when the Maple Avenue South Drain is flowing, it is highly probable that the water in the Lewis Drain will be high due to back up from Whiteman’s Creek and the volume of flow coming into the drain. This will cause the outlet of the Maple Avenue South Drain to be restricted, the drain will begin to flow under pressure and will “blow out” at the point where the tile changes size. This would cause water to flow across Mr. VanKruistum’s land, and enter his fish ponds causing extensive damage.

• The current conditions on Mr. VanKruistum’s land make the building of the drain impossible as there is a huge pile of gravel and a utility pole line in the location where the work would be done.

• He said that the preferred route of the Maple Avenue South Drain is to run from the low spot on Maple Avenue diagonally across the lands of Mr. VanKruistum and cross the 8-9 Concession Road just west of the property known as the “old school house”, to outlet into the south road ditch. From there the water can flow in an open channel west to the Lewis Drain. The added advantage of this route is that, in the event of an accidental spill on Maple Avenue, the materials can be held on the south side of the 8-9 Concession Road and be prevented from entering the fish ponds.

• An improved roadside ditch is required on the south side of the 8-9 Concession road whether the Maple Avenue Drain outlets there or not. The maximum cut in the south road ditch that would be needed to accommodate his proposal is eighteen inches. The road ditch is now about one foot deep.

• His proposed route will have a cost savings of about $7,000 over the Kelley proposal.

In response to questions Mr. Kuntze said that:

• Maple Avenue only needs overflow relief and the tile will only drain periodically.

• The berm on the property of Mr. VanKruistum along Maple Avenue is about five feet in height at its lowest point and about 1500 feet long.

• The water ponding on Maple Avenue is from the upstream lands. Before the berm the water flowed across the VanKruistum land.

• The Maple Avenue South Drain provides no benefit to Mr. VanKruistum since he does not have any drainage problem. The drain will provide an outlet for a small portion of his land. The most that should be assessed for benefit is $2,500, which is the equivalent cost of constructing a six inch tile along the south boundary of the property if Mr. VanKruistum decided that he wanted to drain this portion of the property.

• There has been flow into the pond from water flowing across the 8-9 Concession road.

• He agrees that the watershed boundary shown in the Kelley report is correct.

• The work on the Lewis Drain is a work of maintenance and, in his opinion, should be assessed on an outlet liability basis not a statutory benefit basis.

Mr. Peter VanKruistum told the Tribunal that he has been developing a new fish farm adjacent to Maple Avenue on land that be bought in 1987 or 1988. He already has one fish farm in operation on the third concession. When the project is finished he will have four ponds each 40 feet wide, 40 feet deep and 1000 feet long. He plans on growing salmonoid fish in cages placed in these ponds. These fish require high quality water to survive. Even silt getting into the water in the pond could cause bacteria gill disease and his fish would die. He is concerned about the possibility of a truck turning over on Maple Avenue and dumping its load into the road ditch and from there to the Maple Avenue South Drain to his ponds. He prefers the route on the south side of the 8-9 Concession Road as this will allow any contaminated water to be held on the south side of the road and not interfere with his pond. He estimated that he would have a million dollars worth of fish in his ponds this summer. The potential liability if the pond becomes contaminated is large.

He said that the purpose of the berms on his property boundaries is to control pollution and protect his pond. In 1999 water spilled out of the north road ditch on the 8-9 Concession road and spilled into his pond carrying silt. If there was a blow out of the tile proposed in the Kelley report the water would run along the same route to his pond and cause problems.

Mr. John Porr told the Tribunal that is land is south of the 8-9 Concession Road. The drain has been blocked on the north side of the concession road for years and it is time something was done. He urged the Tribunal to direct work be done as six years of meetings have done little other than increase the cost. He said he did not want the water from the Maple Avenue South Drain diverted to the south side of the 8-9 Concession road. This water does not currently run past his property and he does not want to accept any more water. He asked the Tribunal to stay with the Kelley report and not accept the recommendations of Mr. Kuntze.

John Oosterveld told the Tribunal that in 1994 he bought Bowview farms, just north of the problem area. Bowview is assessed $200 for cleaning out the Lewis Drain and $100 for construction of the Maple Avenue South Drain. He does not receive any benefit from either project as his water cannot get to either drain but it was not worth the trouble to appeal until June 1. On June 1, 2000, he bought the Wilson farm. There is a depression on the Wilson farm adjacent to Maple Avenue and it fills quickly with water when the ground is frozen. Now that he has both properties, he wants to appeal his assessment. He believes his property should not be assessed for either drain.

Mr. Oosterveld said he grows corn and potatoes on his farm. Ponding on the Wilson land is not a problem for agricultural use of the land. If the pond becomes more permanent he will excavate an irrigation pond at that location. Therefore he does not need the Maple Avenue South Drain constructed. If the Maple Avenue South Drain is not constructed he should not be assessed on the Lewis Drain as the water from his land cannot get across the VanKruistum berms to the Lewis Drain. Mr. VanKruistum has berms parallel to Maple Avenue and, since 1994 along the north property boundary.

He told the Tribunal that he is part of a group that is studying the water supply for Burford. As a farmer he wants to hold as much water as possible locally.

In response to questions Mr. Oosterveld said:

• Mr. Wilson felt that the Maple Avenue South Drain was required and that the pond of water on the property was a problem for him,

• His land drained across the VanKruistum land prior to the construction of the berms.

Reginald Glass, Patrol Superintendent, County of Brant, told the Tribunal that he was the road superintendent Township of Burford at the time the petition was filed. He has been employed for 18 years with the municipality. He was involved in the installation of the dry wells on the east side of Maple Avenue. It is his responsibility to patrol this road and erect road closed sings when flooding occurs. He said his notes indicate the road has been closed occasionally since 1996. There are Bell Canada cables on the south side of the 8-9 Concession Road at the present time. He is not certain if Union Gas has a pipeline on that road allowance or not.

Lewis Drain

The Tribunal examined the evidence before it. The Tribunal does not agree with the method used for assessment of statutory benefit based on a per meter rate. In the opinion of the Tribunal, the benefit conferred on a property may have much more to do with the soil type, location in the watershed, increased property value due to drainage provided, shape of the parcel that is affected by excess moisture and other like matters rather than the length of the drain on a property.

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 greatly disappointed that in preparing this report on the Lewis Drain and Maple Avenue South Drain, Mr. Kelley has not seen fit to provide these details. He has not shown for instance the rates per hectare nor the areas used in calculating the allowances or the assessments. The issue of allowances for the right of way for the Maple Avenue South Drain was completely overlooked in the report. The Tribunal believes that the owners require all of this information when they try to evaluate the proposed work.

With respect to the Lewis Drain, the Tribunal could not duplicate the assessment calculations even with the assistance of the engineer at the hearing. However, the Tribunal noted that:

1. The majority of those assessed did not complain to either the Court of Revision or the Tribunal.

2. The cost of revising the assessments at this late date outweigh the likely benefit that can be obtained by fine tuning the assessments.

3. Mr. Porr said get on with the work and stop adding to the cost with more meetings.

While the Tribunal questions the revisions to the assessment made by the Court of Revision, none of the assessed owners complained about the decision of the Court. Both Mr. Porr and Mr. VanKruistum supported the decision of the Court. In order to salvage as much as possible of the money spent to date, the Tribunal decided not to order that individual statutory benefit assessments for the Lewis Drain be amended or to order revisions to the allowances in the Lewis Drain report. The Tribunal also decided not to revise the Lewis Drain construction assessments as modified by the Court of Revision.

On the issue of assessment for maintenance of the Lewis Drain, the Tribunal recommends that before major maintenance work is undertaken a new assessment for the work be prepared. Such an assessment schedule should recognize that maintenance of the Lewis Drain is an outlet liability work not a statutory benefit work.

The assessments for the Lewis Drain, as modified by the Court of Revision are confirmed.

Maple Avenue South Drain

On the issue of the Maple Avenue South Drain the Tribunal is faced with Mr. VanKruistum and Mr. Oosterveld both saying the work is not required while the Road Superintendent says that he still supports the petition. The Tribunal understands that circumstances have changed since Mr. Kelley filed his report. Mr. Wilson is no longer a property owner. Mr. Oosterveld has indicated a desire to retain as much water as possible on his land and is prepared to construct an irrigation pond at the location where the Wilson land floods when the surface flow cannot get away across the VanKruistum land. Both Mr. Kelley and Mr. Kuntze testified that an overflow is needed to provide for those occasions when the ground is frozen and the water cannot seep away. It appears to the Tribunal that there may be other alternatives to solve this flooding problem. Short duration flooding of rural roads does happen. However, the engineer did not report under Section 40 that the work was not required or could not be constructed under the Act. The Road Superintendent did not withdraw from the petition. The majority of the panel decided that the Maple Avenue South Drain is required. The Tribunal finds no justification for moving the water to the south side of the 8-9Concession Road. The arguments for moving the drain were not persuasive. The Tribunal decided to confirm the proposed construction as prepared by Mr. Kelley.

The Tribunal then turned to the matter of assessment of the Maple Avenue South Drain. Since this is a difficult case the Tribunal looked first to the general principles that apply.

General principles

The Drainage Act, through the engineer's report, creates a legal drainage community where one has already existed in fact, but was unrecognized by the common law system. The concept of the Act is that the engineer is to study the area and devise a solution that addresses the present and immediately foreseeable drainage needs of the community. Once a physical solution has been devised and the cost of the work estimated, the division of this cost among the affected properties takes into account the reason the project is being done, the statutory benefits and outlet liabilities. Common law rights and obligations are also considered as part of the design and assessment process and are applied as circumstances and the engineer’s judgment direct. If there are existing man-made features that are incorporated into the design of the drain, the engineer is required to provide an allowance for the value these features provide to the work being done under the Act.

Over the years incremental changes are invariably made within the drainage community. Usually these changes can be easily accommodated by the original design and do not complicate either the design or the assessment of the project. At some point the accumulation of incremental changes will require repair or redesign of the work and a distribution of the cost. Incremental changes tend to be very pervasive in the community so the distribution of the costs is normally not a very difficult matter.

A major immediate change in the drainage community can also triggers repair or redesign. This also involves a distribution of the cost of repair or redesign. One cost is that a new engineer’s report is immediately required. It is fair that the majority of the cost of the process (as opposed to the construction) should be borne by the persons who caused the change to the drainage community. With regard to the rest of the costs, the usual tests would apply (purpose of the project, statutory benefit and outlet liability). There is the question of whether the common law rights of the owners persist and should be factored into the calculations. This question is not easy and the facts here do not require this panel to provide a comprehensive answer. The panel does note that in Bayus v. Flamborough Referee Clunis clearly held that where owners are assessed statutory benefit or outlet liability on a drain, they acquire the right to demand and retain a drainage facility comparable to that first constructed under the report.

Application of Principles to Maple Avenue South Drain

The Maple Avenue Drain is really a part of the Lewis drain. Had the VanKruistum berms been in place when the Lewis Drain was first established, there is no reason to think that the original design would have been any different than the current combination of the Lewis and Maple Avenue South drains. The Maple Avenue South portion of the drain takes away the water from the East part of the VanKruistum property, Maple Avenue and properties Northeast of the Maple Avenue intersection with Ninth Concession Road. In distributing the cost recognition would have been given to the common law right of the then owner of the VanKruistum property, with the result the most of the cost would have been assessed to the other owners and the road authority.

The Lewis Drain was constructed in the last century and the design functioned until Mr. VanKruistum built his berms and dams. The dams are gone, but his berms still prevent surface water runoff upstream from his property from entering the drain. The owners of those properties had been assessed in the previous engineers’ reports for outlet liability. They therefore acquired a right to an outlet, and they cannot be deprived of it except through due process under the Drainage Act. (Bayus v. Flamborough)

When Mr. VanKruistum erected the berms Maple Avenue became flooded on a periodic basis. The road authority installed private drainage works in the form of dry wells, which ameliorated the problem but did not solve it. The road authority had no obligation to construct the dry well. The engineer has chosen not to incorporate the dry wells in his design and therefore the road authority can remove them at any time.

Mr. Oosterveld does not think his lands need the Maple Avenue South drain. His immediate predecessor in title did. This demonstrates why engineers design for, and assess, lands and not owners. The most substantial quantity of water is coming from the Oosterveld lands and it is appropriate that there should be a substantial assessment for outlet liability and statutory benefit.

Having considered the facts of this case the Tribunal decided that:

1. The benefit vs. outlet division proposed by Mr. Kelly is correct and will be maintained by the Tribunal.

2. In the exceptional circumstances of this case Mr. VanKruistum ought to be charged the cost of the “process” up to this hearing as a special benefit. The panel notes that the Maple Avenue Drain has already been relocated once at Mr. VanKruistum’s request. Therefore $13,300 will be added in the special benefit column.

3. The Tribunal accepts the evidence of Mr. Kuntze that the statutory benefit assessment on the VanKruistum property for the construction should be $2,500.

4. The statutory benefit assessment for the Wilson property should be $1,000 to reflect the fact that this property now has a direct connection to the Maple Avenue South Drain and from there to the Lewis Drain and Whiteman’s Creek.

5. The statutory benefit assessment to the road should remain at $29,200

6. The outlet liability assessments as proposed by Mr. Kelly remain unchanged.

The result of these changes is that the total assessed under the heading of “benefit” becomes (1000 + 2500 + 13,300 + 29,200) $46,700. To make the assessment schedule balance with the estimated cost the total assessed under “statutory benefit” should be $39,900. Therefore it is necessary to prorate the figures from $46,700 down to $39,900.

The special benefit to Mr. VanKruistum becomes [(39900/46700)*13300] $11,363.38 (rounded to $11,365). The other assessments are calculated in a similar fashion and detailed in the Tribunal order below.

ORDER OF THE TRIBUNAL

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

1. The appeal of John Poor on the assessment for the Lewis Drain is dismissed.

2. The decisions of the Court of Revision on the Lewis drain are confirmed.

3. Before passing the by-law authorising the Maple Avenue South Drain the Clerk of the Municipality is to replace the assessment schedule, as modified by the Court of Revision, with the following assessment schedule.

Lot	Con	Hec	Owner	Statutory Benefit	Outlet Liability	Special Benefit	Special Assessment	Total
Pt. 2	8	4	R. Wilson	$581				$581
Pt. 3	8	28	R. Wilson	$860	$4,060			$4,920
Pt. 3	8	0.9	Bowview	$139				$139
Pt 4	8	8.5	VanKruistum	$2,140	$633	$11,365		$14,138
Pt 4	8		VanKruistum	$590				$590
Road		1		$24,950	$582		$4,400	$29,932
Total				$28,540	$5,995	$11,365		$50,300

4. 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 these decisions are:

1. The Tribunal was convinced by the evidence that the assessments on the Lewis Drain, as modified by the Court of Revision, while unorthodox, are acceptable.

2. The Tribunal was convinced by the evidence that the assessment on the Maple Avenue South Drain required adjustment to reflect that the major factor contributing to the need for the work is the VanKruistum berms and the proposed assessment by the engineer did not adequately reflect this point while the decision of the Court of Revision overly reflected this point.

Dated at Shelburne, Ontario this 1^st^ day of September 2000

AMENDED Dated at Guelph, Ontario this 27^th^ day of August 2020