Joseph Malenfant and Stanley Hall v. Town of Essex (Edgar Sideroad Drain), 2000 ONAFRAAT 2

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:

Edgar Sideroad Drain Town of Essex

Edgar Sideroad Drain (RE) 2000 ONAFRAAT 2

STATUTE:

Drainage Act

HEARING:

January 11, 2000

DATE OF DECISION:

January 21, 2000

2000-02

NEUTRAL CITATION:

2000 ONAFRAAT 2

Edgar Sideroad Drain Town of Essex

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 Appeal Tribunal by Joseph Malenfant and Stanley Hall under Section 54 of the Drainage Act from the decision of the Court of Revision in respect of the Edgar Sideroad Drain in the Town of Essex.

Before:

John Taylor, Vice-Chair; Herb Todgham, Vice-Chair; Jack Young, Vice-Chair; Doug Flook, Member.

Appearances:

Stan Hall, appellant. Joe Malenfant, appellant. Bruce Smith, assessed owner. Margaret Balga, assessed owner Steve Chapo, assessed owner. Don Joudrey, P. Eng., on behalf of the respondent, the Town of Essex.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Town of Essex, at Essex, Ontario on Tuesday, January 11, 2000. Joseph Malenfant and Stanley Hall appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision in respect of the Edgar Sideroad Drain in the Town of Essex. Jerry Marion, Clerk of the Town of Essex, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the August 31, 1999 engineer’s report by Don Joudrey, P. Eng, on the Edgar Sideroad Drain, Town of Essex, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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.

The Background

The Edgar Sideroad Drain is a long-standing drain under the Act. The issue of assessment on this drain was before the Tribunal in 1979. At that hearing the appellant, Mr. Murray Hall, argued that the assessment for benefit by cut-off should be calculated on the basis of acreage not frontage on the drain. The engineer had based the assessments on the previous reports of 1951 and 1966 which distributed the assessment on a frontage basis. Two of the parcels in Lot 8 are irregular in shape. The Tribunal concluded that an existing schedule of assessment contained in a previous by-law can be presumed to be equitable for the purpose of a cleanout report unless circumstances have clearly changed so as to require a revision. (Decision of the Ontario Drainage Tribunal April 24, 1979).

The current report was prepared in response to a request for repair to the drain made by Francis Malenfant, S½ of S½ of F.L. 9 who complained that his field tiles no longer have a proper outlet to the drain because the bottom of the drain has been filled in with sediment and vegetation.

Inspection of the drain showed that:

1. Lateral tile outlets are buried and the drain is overgrown with cattails.
2. When it rains, the drain fills in quickly because of the sediment and vegetation.
3. There are significant washouts to be repaired. Gabion stone or other erosion protection will be required.
4. The report should include some provision for spraying cattails within 2 years of the completion of the works to reduce re-growth of the vegetation and ultimately reduce maintenance requirements.

The drain commences at the North Rear Road Drain and proceeds northerly approximately 1,700 metres. The estimated total cost of the work is $52,300 of which $6,200 is assessed as special benefit for replacing a culvert, $17,400 is assessed as outlet against private lands, $17,400 is assessed as benefit against private lands and $11,300 is assessed as benefit and outlet against municipal roads.

The Issue

The issue before the Tribunal is: “Are the assessments as proposed by the engineer and confirmed by the Court of Revision appropriate?”

The Evidence and the Findings

Don Joudrey, P. Eng., the engineer who prepared the August 31, 1999 report described the project as a cleanout of the existing Edgar Sideroad Drain. He told the Tribunal that he based his assessment for this work on the assessment schedule in the 1979 report. When his report was considered errors in certain property sizes were pointed out and he prepared a revised schedule of assessment dated October 12, 1999 and provided it to the Town prior to the Court of Revision. This revised schedule changed the assessment on almost every property. It is this schedule which the Tribunal should be considering at the hearing, although it appears that no steps were formally taken to make it part of the engineer’s report.

In this area the flow of surface water is generally in a south westerly direction. The drain is located on the east side of Edgar Sideroad and so cuts off the flow of water from reaching the properties on the west side of the road. Mr. Joudrey noted that some house properties had been severed and there was still concern about the assessment for cut-off benefit on the properties on the west side of Edgar Sideroad. On reviewing the situation, he determined that all of the properties on the west side of the road benefit equally, on an acreage basis, as a result of having the water flow cut off. In his October 12th assessment schedule he assessed each of these properties $40 per hectare with the affected areas based on the old reports. He also modified the plan of the drain in the report to reflect these changes. Mr. Joudrey told the Tribunal that he had walked the McKim property to confirm that part of this property drains away from the Edgar Sideroad Drain. However, no watershed boundary has been shown anywhere on the plan.

Stan Hall told the Tribunal that he owns the part of Lot 8 south of the railroad. Since water flows south west, he believes the further south a property is located the more water will be cut off. His question is “why is the west limit of the area assessed for cut-off not a straight line south of the 12th Concession that lines up with the west limit of the area to the north?” He said that since Edgar Sideroad was upgraded the owners on the west side of the road no longer got as much benefit from the drain as they used to get from it cutting off the water. He estimates that his property has 65 acres that may be affected by cut-off, that is the area between the Edgar Sideroad and the tree line, part way back on his property.

Mr. Joudrey responded that all the previous reports assessed this property for 85 acres, and that is what this report is based on. He did not survey the area.

Mr. Hall said that his request was that all lots on the west side of Edgar Sideroad be assessed for the same depth west from the road and then be assessed on a rate per acre basis.

Joe Malenfant filed with the Tribunal an analysis of the assessment schedules from the reports from 1929 to 1979. In each case his assessment was 1/5th of the assessment against the Hall property. He pointed out that his property abuts the North Rear Road Drain and he outlets his water there. His only assessment on the Edgar Sideroad is cut-off. He asked: “Why should the owners at the lower end of the work be charged the same as those at the upper end who benefit from the entire length of the drain?” He said that he bought his property in 1956 and not much has changed since then – a few lots have been divided off the farms, surface ditches cleaned up and some tiling added east of the road; otherwise the land is in about the same condition as it was when he first came. He asked the Tribunal to restore the assessments as shown in the original August 31, 1999 report.

Bruce Smith, assessed owner, told the Tribunal that he owns 19.08 acres in Lot 9 east of the Sideroad just south of the railway. He said that he does not have water flowing into the Edgar Sideroad Drain. There is a ditch along the east boundary of the property running south to the North Rear Road Drain. The ditch starts at the railroad about 1.5 feet deep and is about five feet deep at the 12th Concession Road. He said he would be satisfied if his property was split 50:50 with half being assessed to the Edgar Sideroad Drain and half to the North Rear Road Drain.

Margaret Balga, assessed owner, told the Tribunal that she could not understand why her property is charged more in the October 12 assessment schedule than it was in the original schedule in the August 31 report. . She compared her property in size and assessment to that of Mr. Malenfant, her neighbour to the south.

Mr. Jourdrey explained that upstream properties are charged more per acre because they are paying to have a longer piece of drain repaired. Also, in the original assessment schedule part of her property was incorrectly assessed to the owners of the residential lots. This has been corrected in the October 12 schedule.

Steve Chapo, assessed owner, told the Tribunal that part of the McKim property which lies in Lots 9 and 10 north of the railroad goes south westerly down the railroad to the Edgar Sideroad Drain. The railroad does not let the water flow southerly over the surface. The east part of Lot 10 is tiled northerly to a tank from which it is pumped across the 13th Concession Road and the west part flows toward the Edgar Sideroad.

In response to questions from the Tribunal, Mr. Joudrey said that there are items in the report that should be corrected and new issues on watershed area and drainage patterns that should be addressed and he would like to have his report referred back for further consideration.

In light of the evidence, the Tribunal agrees that the report should be referred back for re-consideration by the engineer. In making its order, the Tribunal points out that a report under Section 78 permits “a fresh look” and, while the older reports are a guide, the engineer should always exercise his own judgement on the matter of assessment for current work.

Without limiting the engineer’s obligations or discretion the Tribunal recommends that the engineer consider the following items:

• Revisit and confirm the limits of the watershed, in particular on those properties that are assessed only for outlet and benefit for surface drainage, and show the watershed boundary on the plan of the area.
• Re-examine the extent of the lands that will be affected by cut-off and delineate them on the plan of the area.
• Include in the report the rationale of how the area affected and amount assessed for benefit by cut-off is arrived at.
• Include on the plan and profiles the names of all assessed owners, as well as the scales at which they are presented.
• Identify on the plan features that have an effect on drainage of the area such as the McKim tile drainage sump, surface drainage swales, and private ditches watershed boundaries and the names and locations of the abutting drainage works under the Act.
• Show the elevations of culvert inverts and ditch-bottom at both the upstream and downstream ends of culverts.
• Adjust the print size etc. on the plan and profile so that they are legible when reduced to the size that is included in the report.
• Assess for outlet those lands west of Edgar Sideroad and north of the railway that drain through a culvert under Edgar Sideroad just south of the point where the road and railroad intersect, or explain why these lands should not be assessed for outlet.
• Amend the maintenance paragraphs on pages 6 and 7 of the report to provide that, in accordance with the Act (sec.74) the drain is to be maintained at the expense of the upstream lands and roads.
• Date, sign and seal the report, specifications and drawings.
• Define all items of work with sufficient clarity that the owners will know what to expect, the contractor will know what he has to do, and the municipality will know the standard to which the drain must be maintained.
• Any other items brought up at the hearing by the landowners or the Tribunal.

The report will be referred back under the authority of Section 51(1) of the Drainage Act which states:

51 (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.

The procedure to be followed will be the same as if the report were referred back by Council under Section 57 of the Act which states:

57. The council of the initiating municipality, at any time before passing the by‑law, if it appears that there are or may be errors in the report of the engineer or that for any other reason the report should be reconsidered, may refer the report back to the engineer for reconsideration, and the engineer shall thereupon reconsider the report and shall further report to the council, which report has the same effect and shall be dealt with in the same manner and the proceedings thereon shall be the same as upon the original report.

ORDER OF THE TRIBUNAL

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

1. The August 31, 1999 report on the Edgar Sideroad Drain be referred back to the engineer for further consideration.
2. The engineering costs of revising the report and attending at this Tribunal hearing are not to be charged as part of the cost of the Edgar Sideroad Drain.
3. The non-administrative costs of the Township, exclusive of engineering cost, 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:

1. The engineer asked that the report be referred back for further consideration and correction.
2. The concerns raised by the appellants were based in part on the deficiencies in the August 31, 1999 report and the Tribunal noted a number of other shortcomings in the report that ought to be addressed; furthermore, the Tribunal found that in the engineer’s report, the Total Cost of Construction is estimated to be $37, 430, while the part of the Incidental Costs related to engineering fees is estimated at $12,700, which is 34% of the estimated construction cost. No doubt, the engineering percentage will be even higher when the cost of preparing the revised assessment schedule of October 12, 1999 is included. Since the proposed work on the drain is essentially one of repair only, the Tribunal is of the opinion that, in the circumstances, a further increase in engineering fees cannot be justified and, therefore, the Tribunal ordered that the engineering costs for the hearing and for revising the report not be charged as part of the project.

Dated at Tilbury, Ontario this 21st day of January, 2000

Town of Essex Edgar Sideroad Drain