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
1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Outlet of the North Marsh Drain Municipality of Chatham-Kent
Outlet of the North Marsh Drain (RE) 2000 ONAFRAAT 27
STATUTE: Drainage Act
HEARING: July 21 and September 25, 2000
DATE OF DECISION: October 16, 2000
2000-27
NEUTRAL CITATION: 2000 ONAFRAAT 27
Outlet of the North Marsh Drain Municipality of Chatham-Kent
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 Ralph and Shirley Clayton under Section 48 of the Drainage Act from the June 5th, 1998 Report and under Section 54 of the Drainage Act from the decision of the Court of Revision on the Outlet of the North Marsh Drain in the Municipality of Chatham-Kent.
Before: Andrew Wright, Vice-Chair; Ed Mailloux, Vice-Chair: Jack Young, Vice-Chair.
Appearances:
Ronald Robertson, Counsel for the respondent the Municipality of Chatham-Kent.
Enio P. Sullo, P. Eng., on behalf of the respondent the Municipality of Chatham-Kent.
Ralph Clayton for the appellants, Ralph & Shirley Clayton
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Municipality of Chatham-Kent in Chatham-Kent, Ontario commencing on Friday, July 21st, 2000. The hearing occupied most of the day on the 21st. A second day of hearing was required. The Tribunal sat on Monday, September 25th and was engaged all day hearing the balance of the evidence and final submissions.
Ralph and Shirley Clayton 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 on the Outlet of the North Marsh Drain in the Municipality of Chatham-Kent (the Municipality).
Prior to the hearing, the Tribunal issued an Order making all landowners assessed or compensated in the June 5th, 1998 engineer’s Report (the “Report”) on the Outlet North Marsh Drain, Municipality of Chatham-Kent, parties to this hearing. Affidavit proof was filed with the Tribunal to the effect that all parties have been served with notice of the hearing.
Section 54 of the Act states:
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.
54(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.
54(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.
During the first day of the hearing on July 21st, it became apparent that much of the evidence from the appellants and from those parties who supported the appellants’ position was directed to the issue of whether the work contemplated by the engineer’s Report should proceed at all. Absent an appeal under subsection 48(1) of the Act, the Tribunal would have no jurisdiction in that connection.
Subsection 48(1) of the Act provides 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,
48(1)(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
48(1)(b) the drainage works should be modified on grounds to be stated;
48(1)(c) the compensation or allowances provided by the engineer are inadequate or excessive;
48(1)(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.
Needless to say, the forty day limitation period contemplated by subsection 48(1) had long since expired by the time of the Tribunal’s sitting on July 21st, 2000. Section 100 of the Act, however, gives the Tribunal some latitude about extending time periods as follows:
- The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference.
On July 21st, at the end of the evidence of the appellants, and of those who associated themselves with the appellants, the Tribunal told the appellants and the Municipality that, in this case, the Tribunal would entertain, at the resumption of the hearing on September 25th, an application under Section 100 by the appellants to extend the time for launching a subsection 48(1) appeal, if by then the appellants had submitted such an appeal.
By September 25th there was a subsection 48(1) appeal by Ralph and Shirley Clayton. Mr. Clayton told the Tribunal that in support of the subsection 48(1) appeal he and his wife would rely upon the evidence from July 21st and would be calling no new evidence. On the basis that the Municipality was not prejudiced because there had been ample opportunity, between July 21st and September 25th, to prepare to deal with the subsection 48(1) appeal and to respond to the evidence in that connection heard on July 21st, the Tribunal extended the time for the Claytons’ appeal under sub-section 48(1) of the Act.
The Background
A petition to have the Outlet North Marsh Drain repaired and improved was filed with the Township of Howard on October 27th, 1997. Council accepted the petition under Section 78 of the Act and appointed Sullo Associates Ltd. to prepare a report.
Since then, the Township of Howard has amalgamated with all other local municipalities in the former County of Kent and is now The Corporation of the Municipality of Chatham-Kent.
The watershed for the North Marsh Drain comprises approximately 6,942 hectares (17,153 acres). This area includes land and roads in the former Townships of Howard and Orford, the former Village of Highgate and the Moravian Indian Reserve. The Outlet Drain previously stretched a distance of 1,080 meters from Fysh Line to Victoria Road. The last repair and improvement was undertaken under a 1972 report signed by W. D. Colby. There is no record of work done downstream of Victoria Road.
The Outlet North Marsh Drain has become densely overgrown with brush and trees. At many locations the Drain is obstructed by both live and dead trees. The grade is at or close to the design grade. On average, the Drain is a half metre below the design grade as established in the 1972 Colby report. The bottom of the Drain has narrowed and contains many meanders, bars and irregularities resulting is frequent bank slippage. At several locations downstream of Victoria Road the banks of the natural water course into which the 1972 Colby Outlet Drain flows have failed and a nearby house and ancillary buildings are threatened. The portion of the of the natural watercourse downstream of Victoria Road to its outlet into the Thames River is also overgrown with brush and trees but the bottom is relatively deep and unobstructed.
The Report recommends the extension of the Outlet North March Drain downstream of Victoria Road. In general terms the work entails brushing, widening and reshaping of the Drain bottom and banks, as well as the installation of stone erosion protection. The stone erosion protection is to be installed below Victoria Road.
The total estimated cost of the work is $160,000 of which $13,628 is assessed as benefit and the remainder as outlet. Of the $160,000, $61,000 is for clearing and brushing, $38,000 is for overhead, $1,000 is for cleaning the culvert under Victoria Road and $60,000 is for the rock rip-rap downstream of Victoria Road.
The Issues
The first issue is whether the work proposed in the engineer’s Report should proceed at all and, if so, with what, if any, modifications from the work set out in the Report.
The second issue depends upon a determination by the Tribunal that the drainage project contemplated by the Report should proceed in some form. If it is to proceed, then the issue is whether the assessment of the cost of the project, as found in the schedules to the engineer’s Report, as adjusted by the Court of Revision, should be confirmed or revised.
The Evidence and the Findings
In accordance with Section 55 of the Act, the engineer gave evidence first. As is the practice of this panel of the Tribunal, this evidence was limited to providing an overview of the Report and background.
Mr. Sullo told the Tribunal that he was a Professional Engineer and had been for 25 years. He did his post graduate work at the University of Windsor in soil mechanics and groundwater seepage. He said he has undertaken over 200 municipal drain reports and has been before the Tribunal 10 times in the past.
In connection with this project, he was appointed by Council resolution on November 17th, 1997 in response to a request for repair and, as well a request for an improvement. The request was made by Jerry Mallett, Elbo Estrogard, and Ron Guilderland as Road Superintendent for Howard Township.
A Site meeting was held on December 23rd, 1997. The names of the parties who attended and a summary of the notes taken during the meeting are found on page 4 of the Report. At that time, Mr. Sullo told the Tribunal, the concerns were that the Outlet North Marsh Drain was overgrown with brush and trees and that the channel had experienced wash-ins and erosion and generally required attention. At the Site meeting the request for improvement was signed by E.L. Van Heule.
Mr. Sullo told the Tribunal that, prior to this December 23rd Site meeting, he had been to the area of the Drain to get a feel for what the issues were and what the concerns were likely to be. He reported finding that the Drain had many trees and brush in the channel and that there were major bank failures. He particularly noted that those failures and brush were in the water course downstream of the previous limit of the Drain, that is downstream of Victoria Road.
After the Site meeting, Mr. Sullo prepared and presented the Report. The Report includes the plan and profile.
The watershed for the North Marsh Drain is large, comprising 7,200 hectares or 18,000 acres in the former Townships of Howard and Orford. As previously mentioned, both are now part of Chatham-Kent. The ultimate outlet for the Drain is the Thames River west of Victoria Road, formerly Highway 21, between Thamesville and Ridgetown.
The watershed is predominantly agricultural but includes Highgate Village. The Moravian Indian reserve also drains through the North Marsh Drain.
Mr. Sullo indicated, by way of example, that, given an inch of rain on the watershed, 11,000 litres per second will flow through the Outlet North Marsh Drain.
The North Marsh Drain downstream of Fysh Line is the Outlet North Marsh Drain, the upper Drain is the North Marsh Drain. The last report on the Outlet North Marsh Drain was prepared by the late William Colby in 1972. Prior to 1972 the North Marsh Drain stopped at Fysh Line, that is upstream from Victoria Road. The 1972 report extended the North Marsh Drain from Fysh Line to Victoria Road and involved mainly brushing and shaping but also included some excavation.
Mr. Sullo said that he undertook his the survey in April of 1998. He started at Fysh Line and continued downstream to the Thames River. The length of this survey was 1,920 meters or 6,300 feet. He found the Drain densely overgrown with brush and trees. At many locations it was obstructed with live and dead trees in the bottom and along the bank. He found that the grade was at or near elevation stipulated by Colby for the bottom of the channel but that it had narrowed and had developed meanders. He also found there had been frequent slippages and erosion of the banks. In his background evidence on July 21st Mr. Sullo said that grade was at or near elevation stipulated by Colby. In the course of his reply to the appellants subsection 48(1) appeal on September 25th, Mr. Sullo clarified that, on average, the elevation of the bottom of the Drain was half a metre below that specified in the 1972 Colby report.
Mr. Sullo observed that the Drain was deep, in the order of 15 to 20 feet in depth. The bottom width was 24 feet, or 7.3 meters, which is the design in the 1972 Colby report.
Mr. Sullo also observed severe erosion and slippage of the banks of the natural watercourse downstream from the section that had been completed under the 1972 Colby report. In that downstream area a house and outbuildings were located next to the Drain. The property where this house and other buildings are located is owned by Gerald and Corrine O’Neill.
Mr. Sullo recommended in the Report the extension of the Drain below Victoria Road. The Report specifies the removal of brush and trees, the straightening of the Drain and the repair of major erosion areas throughout the length of the channel but particularly below Victoria Road. The Report contains details of the estimated cost of the work. It is estimated that the brushing will cost $38,000, that the widening and reshaping of the Drain will cost $23,000 and that the balance of the cost is attributed to restoration and repair of erosion and slippage of the banks. Combined with overhead, the cost is estimated to be $160,000 for 1,080 metres of Drain. 500 metres of the Drain contemplated by the Report involves the downstream extension and the rest is in the portion of the channel covered in the previous 1972 Colby report. There is $14,320 in allowances to compensate adjacent owners for a 2 metre buffer strip on either side of the Drain and for crop damages.
The issue of assessments was then addressed by Mr. Sullo by way of a general overview.
He said that, despite the large watershed, the work is done in a small section of the Drain. When he assessed the project, the first decision he made was to settle the amount of the cost that should be charged to benefit and the amount to outlet. Mr. Sullo concluded that the benefit was lower than the outlet. The 1972 report of Colby had benefit at 2% with outlet at 98%. Generally, Mr. Sullo said he agreed with Mr. Colby’s analysis but, having extended the work downstream, he decided that the allocation to benefit should be increased to 10%. That allocation to benefit and outlet was done after removing special benefit. The only special benefit in the Report was to Victoria Road for road culvert cleaning.
Outlet was assessed, in large part, to the land owners upstream of the area where the work was to be done. It was assessed on an acreage rate across the watershed because the distance to the work being done is not a factor in that it is all the same. Those immediately adjacent to the work paid a lower rate of outlet because they use less of the work. From Fysh Line upstream, all land was treated equally for distance factor. Farmland paid the same rate throughout based on area. Homes on small lots paid two times the farm rate; commercial properties or unusual residential properties where most of the land was impervious were assessed at three times the farm rate; and roads were assessed at five times the farm rate. There was a minimum assessment of $50 regardless of the size of the property in order to cover the cost of the Report printing and distribution.
Benefit assessment, being in the amount of about $16,000, was charged to the lands which abut the Drain in the area where work was done. The seven private landowners’ assessments for benefit are to be found page 5 of the Report on the first page of the assessment schedule.
Victoria Road is the only other benefit assessment. Mr. Sullo’s allocation of benefit assessment was based on the frontage the property had on the Drain and on the elevation of the land relative to neighbours.
Mr. Sullo told the Tribunal that he then brought his judgement to the results and made adjustments to the numbers as thus calculated. He looked at the entire schedule and tested it for fairness. In this case Mr. Sullo made no changes to any of the outlet assessments but he did exercise judgement in the assessment for benefit.
Having thus reviewed the Report, Mr. Sullo told the Tribunal of the proceedings before the Court of Revision. There were several appeals. While there was a technical correction made to the assessment schedule, the only change of substance which the Court of Revision made was to the assessment to the O’Neill property.
As mentioned, the O’Neill property is the one located downstream from Victoria Road where the house and outbuildings are so close the bank of the Drain. These buildings are located in the area of stations 1+185 to 1+401 where much of the stone protection is to be installed. Mr. Sullo said the house is located at approximately station 1+200. The house is 50 feet or so from the top of the bank of the channel and the patio located to the rear of the house is closer than that.
Mr. Sullo reported that the Court of Revision increased the benefit assessment to the O’Neill property, being roll # 1-106, from $2,371 to $7,500.
The Court of Revision made its decisions on September 10th and December 7th, 1998. As a result, the schedule dated December 7th, 2000 was redistributed and the assessed owners were given an opportunity to appeal. The only appeal filed was that of Mr. and Mrs. Clayton.
The appellant, Mr. Clayton, then presented his case.
It is to be recalled that the evidence of Mr. Clayton was received on July 21st and is to be taken as evidence not only with respect to the Section 54 appeal but also in support of his subsequently received appeal under subsection 48(1).
Mr. Clayton told the Tribunal that the assessment does not reflect the reason for the Report. The work proposed on the Drain from Fysh Line to Victoria Road could have been done as maintenance and repair without a report. The only thing the Report adds for this part of the Drain is a working right-of-way.
The real purpose of the Report, according to Mr. Clayton, is to extend the Drain downstream from Victoria Road and the real reason for the proposed work in that downstream location is for the special benefit of the properties downstream of Victoria road. The particular beneficiaries of the proposed drainage works are Mr. and Mrs. O’Neill because their lands and buildings are at risk from erosion. Mr. Clayton’s point is that there should be special assessment for this special benefit. He particularly pointed to the stone rip-rap proposed downstream of Victoria Road. Mr. Clayton told the Tribunal that the Drain had worked perfectly well and would continue to work perfectly well without the stone work and that it was entirely for the benefit Mr. and Mrs. O’Neill who have found that their house is at risk because, as claimed by Mr. Clayton, it is located in the Thames River flood plain,.
Mr. Clayton referred to the definition of Special Benefit as found in section 1 of the Act as follows:
"special benefit" means any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the functioning of the drainage works;
Mr. Clayton rejects the notion that the extension of the Drain downstream is required to provide a sufficient outlet for the North Marsh Drain. He points to the definition of “sufficient outlet” in section 1 of the Act as follows:
"sufficient outlet" means a point at which water can be discharged safely so that it will do no damage to lands or roads;
Mr. Clayton told the Tribunal that any risk of damage to the O’Neill property and buildings because of erosion downstream from Victoria Road is the result of back-flow from the Thames River, rather than flow out of the North Marsh Drain. He says that the properties below Victoria Road are within the Thames River flood plain and that the erosion is a function of exposure to the ebbs and flows of the regular flooding of the Thames River at this location. His position was that there is sufficient outlet at Victoria Road so the cost of what is essentially erosion protection work below Victoria Road should be assessed to the downstream owners and not to the upstream owners on the Drain.
Mr. Clayton provided evidence to support his opinion that the erosion problems below Victoria Road are the result of flooding and back-up of the Thames River. He produced a flood hydrograph, correspondence from the Lower Thames River Conservation Authority, charts, calculations and photographs, including air photos, to show that flow from the North Marsh Drain remains within its banks upstream of Victoria Road when the North Marsh Drain is in peak flow, and that the problem downstream of Victoria Road is the Thames River saturating the Brookston silt loam adjacent to the O’Neill buildings.
In his opinion the cost of the work below Victoria Road, as called for in the Report, is entirely the result of the lands being in the Thames River flood plain and is entirely for the benefit of the O’Neill property. Because the flows from the North Marsh Drain contribute nothing to the problem, the Drain should bear no part of those costs. The work above Victoria Road should be undertaken as a repair or maintenance matter and should be assessed to the Drain in accordance with the 1972 report signed by W. D. Colby.
On cross-examination, Mr. Clayton was pressed for an allocation, as between benefit and outlet, of the cost of the project as proposed by the Report. Mr. Clayton suggested 84% of the cost should be charged as benefit.
In response to questions from the Tribunal about the causal connection between the back flow from a flooding Thames River and the bank instability below Victoria Road, Mr. Clayton was not able to assist by reference to geotechnical or hydrogeological studies or information.
Mr. Clayton then called Mr. Les Hogg a long time resident of the area. Mr. Hogg offered a video presentation but, after some discussion with the Tribunal, it was decided that the most efficient way to receive his evidence was to have Mr. Hogg speak of his observations. The Tribunal was told of a flooding event from July 11th, 2000 to July 14th, 2000. At the peak of the flooding, the flow in the Drain, as measured by the movement of an inflated inner tube, was away from the Thames River at Victoria Road and farther upstream at Fysh Line.
Mr. Gord Woods told the Tribunal that after work done under the 1972 Colby report, the O’Neill buildings were expanded. He wondered if the extra weight of the additional buildings were contributing the problem.
Mr. Ken McAllister spoke of minimum tillage practices and told the Tribunal that, if anything, there was less run-off in the North Marsh Drain since the1972 report. If there was no problem downstream from Victoria Road in 1972, there is less of a problem now.
Mr. Chuck Guyitt gave evidence. His view is that, if the erosion problem for O’Neill lands had been a problem connected to the Drain, the 1972 Colby report would have dealt with it. He also expressed concern that the removal of vegetation downstream from Victoria Road would create more of a problem than the proposed rip-rap would cure.
Mr. Don McLaren associated himself with the general submissions made by Mr. Clayton, however, his suggestion to the Tribunal was that there should be an assessment to all those contributing water to the Thames River. If, as Mr. Clayton thought, the erosion problem at the O’Neill property is largely the result of the periodic flooding of the Thames River, then the engineer’s Report should assess part of the cost of dealing with the erosion to the Thames River watershed.
Mr. Roger Clark told the Tribunal that, in his opinion, the work should stop at Victoria Road.
Mr. Pat Van Heule told the Tribunal that he was one of those who requested the improvement of the North Marsh Drain Outlet. His purpose was to obtain a major clean out of the existing Drain. He said he was shocked when he understood the extent of the work that was being proposed and its cost. On cross-examination, Mr. VanHeule was asked if he agreed with Mr. Clayton’s view that 84% of the cost of the project should be charged to benefit. His reply, as one of those benefitting land owners who would bear the brunt of such a re-allocation, was that the Report should be thrown out and the work should be as he originally intended. He told the Tribunal that the proposed erosion control stone and rip-rap would provide no benefit to him and he added that, knowing what he does now, he should have simply asked the Drainage Superintendent to do the work as maintenance.
It was at this point in the evidence that the hearing on July 21st adjourned to resume on September 25th. At the resumption of the hearing Mr. Sullo gave his evidence in defense of his Report. He summarized what he said by way of background at the beginning of the hearing. He mentioned the watershed comprising 17,000 acres in the geographic Townships of Howard and Orford. He referred to the 1972 Colby report and how it did not extend below Victoria Road (formerly Highway 21) and that below Victoria Road was a natural watercourse that outlet to the Thames River.
He told the Tribunal about the dense overgrowth in the Drain with mature trees and brush on the banks and in the bottom. He referred to obstructions by both live and dead trees. He said that the current Drain bottom is, on average, one half metre lower than the design specified by in the 1972 Colby Report. He talked about the erosion around the bridge at Fysh Line which has needed some protection by the road authority. He spoke of the blockage of one of the two culverts under Fysh Line and the consequent acceleration of flow through the one that remained clear and the erosion arising in consequence of accelerated flow rates.
Mr. Sullo said that he found the slopes of the banks on either side of the Drain were steeper than specified in the 1972 Colby report. He also reported compete bank failures downstream from Victoria Road as a result of the existing sharp bends and meanders.
Mr. Sullo told the Tribunal that his Report was intended to restore the Drain channel to some semblance of what it was in 1972. With respect to the suggestion that the work between Fysh Line and Victoria Road could be done as maintenance and repair, Mr. Sullo told the Tribunal that such an exercise would involve restoring the bottom elevation to that specified by Colby. Because that portion of the Drain was, on average, half a metre below the elevation specified by Colby, it would involve filling in the channel. For economic reasons he had given no serious thought to backfilling the channel to raise it to the elevation specified in the 1972 Colby report. Soil placed in the channel would simply wash away and to put stone in the bottom to raise the elevation between Fysh Line and Victoria Road would be too expensive.
His design was to widen and straighten the Drain, to restore the 24 foot bottom and to install measures to control erosion of the banks.
Insofar as extending the Drain below Victoria Road is concerned, Mr. Sullo told the Tribunal that he was satisfied that it was necessary to secure a sufficient outlet. He referred the Tribunal to Section 15 of the Act which provides as follows:
- Subject to section 32, every drainage works constructed under this Act shall be continued to a sufficient outlet.
The definition of sufficient outlet was referred to by the appellant and is reproduced earlier in this decision.
Section 15 contemplates the extension of a Drain downstream into the natural water course to ensure there is a good and sufficient outlet so there is no damage to property. In this case, Mr. Sullo determined that a sufficient outlet existed 500 metres down from Victoria Road. From that point down to the Thames River, in Mr. Sullo’s view, there is an adequate channel.
Mr. Sullo referred the Tribunal to the provisions in the Report for compensation to adjacent owners under Section 29 of the Act. This compensation was allowed for land taken for the buffer and for damages resulting to crops as trees and brush are remove and as soil from the excavation of the Drain channel is applied in the working corridor. He told the Tribunal that the $14,023 allowance for land taken and for damages to crops is found on page 4 of the Report. He said the basis for the allowance for buffer land was $6,500 per hectare and the allowanced for crop loss was$1,200 per hectare, based on one years crop loss.
He then summarized the work required for the project and the cost of the various aspects of it, all as found in the Report, for a total cost $160,000.
Mr. Sullo then directed his evidence to the Section 48 appeal.
To the suggestion that the Drain between Fysh Line and Victoria Road could be dealt with as a repair, Mr. Sullo said that the Drain in this location was, on average, half a metre below the elevation called for by the 1972 Colby report. A repair would require restoration of the Drain to the 1972 configuration. That would involve backfilling the Drain. Filling it with native soil would be impractical because it would simply erode and wash away; using stone would not only be new work but it would be too expensive.
The section of the proposed work downstream from Victoria Road could not have been done as maintenance because it was not part of a municipal drain. Including the water course below Victoria Road as part of the Drain gives the Municipality the opportunity to deal with it in a way that the adjacent land owners cannot.
With respect to some of the issues raised by some of the owners about the O’Neill residence being in a flood plain, Mr. Sullo said that the floor elevation of the O’Neill house was above the largest flood recorded in the area, that being the flood of 1947. He said the O’Neill house cannot be regarded as being in the flood plain.
Mr. Sullo said that the O’Neill house is 35 feet from the top of the bank with a patio that is slightly closer. He responded to the suggestion of one of the witnesses that the weight of the building had some bearing on the bank failures. Mr. Sullo said that, in his opinion, the structure of the building had no effect on the bank stability. It was a wood frame house of light construction.
Mr. Sullo than described the Drain by reference to a number of photographs.
He went on to address the issue raise by Mr. Clayton that the backup of water from the Thames River into the Drain caused or contributed in a significant way to the erosion of the banks, particularly in the vicinity of the O’Neill residence.
Mr. Sullo agreed that water does back up into the Drain channel from the Thames River during flood situations but he urged the Tribunal to keep in mind the reason why the channel is there. In Mr. Sullo’s mind the channel is there because the upstream land owners need it. If they did not need it, the channel would not be there or it would be much smaller and not nearly the threat to the O’Neill house it now is. If the back up is the natural consequence of having the channel there in the first place, and if the need for the channel is attributed to the need of the upstream land owners for an outlet to the Thames River, then the backing up and its consequences are the natural consequence of the upstream owners requiring the connection to the Thames River. In Mr. Sullo’s opinion the natural consequences, i.e. erosion, of having the outlet in this location is the responsibility of those upstream owners who need the outlet.
In any case, in Mr. Sullo’s view, the major problem leading to erosion is the water from upstream not the back-up from the Thames River. There are numerous other sub-causes, including back-up from Thames, but it is a minor contributor to the problem. The real problem, the overwhelming cause of the erosion, in his opinion, is the flow of water from the North Marsh Drain en route to the Thames River.
In conclusion, Mr. Sullo reflected upon the decision of the Court of Revision to make adjustments and told the Tribunal that, in his opinion his original assessment, as found in the Report, is what he would recommend.
Mr. Sullo was then questioned by Mr. Clayton and several assessed owners at length. While Mr. Sullo provided a great deal of information and elaboration under this questioning, his opinions did not change nor, in the opinion of the Tribunal, was his credibility eroded.
In defense of the Report the Municipality also called Mr. Ivan Lorant, P.Eng. to give evidence. Mr. Lorant was qualified as an expert witness with expertise as an hydraulic engineer with over 30 years of experience. The purpose of his evidence was to respond to the evidence given by Mr. Clayton on July 21st in support of his theory that the erosion of the banks downstream of Victoria Road was a function of the back-flow from the Thames River when it is in flood.
After an explanation of the approach he had taken to the issue and the numerous potential causes of erosion he had considered, Mr. Lorant told the Tribunal that, in his opinion, the backing of the Thames River into the Drain had no effect upon erosion in either the low flow or the high flow channel of the Drain above Victoria Road nor of the natural water course below Victoria Road.
Mr. Clayton cross-examined Mr. Lorant at length. This questioning did not focus upon nor begin to challenge Mr. Lorant’s opinion that back-flow from the Thames River into Drain area had no effect upon erosion along the Drain.
Mr. O’Neil then gave evidence. The told the Tribunal that his house is in danger if the erosion behind his house persists. He showed photographs of an area behind his house where 12 feet of his property fell into the channel in the previous 5 or 6 weeks.
He said the outlet for the North Marsh Drain is in need of repair. He wants the work specified in the Report to be done as soon as possible.
He told the Tribunal that he is “not looking for a free lunch”. He is prepared to pay his fair share and told the Tribunal that it was the Tribunal’s function to determine what that fair share is to be.
He told the Tribunal that his land was not in a flood plain as some had suggested during the hearing. He purchased his property 20 years ago and confirmed the engineering evidence that he has never seen his house flooded.
Mr. O’Neill told the Tribunal that the house was there when he purchased in 1982 but that he had added to it since he purchased.
He concluded his evidence by emphasizing that the outlet is in need of repair and urged the Tribunal to “get on with it”.
Mr. Clayton called no reply evidence.
Decision and Reasons
The Tribunal has decided to dismiss the appeal under subsection 48(1) and to allow, in part, the appeal under Section 54 of the Act.
Dealing first with the subsection 48(1) appeal, the Tribunal is satisfied that the erosion problem associated with the O’Neill residence needs to be addressed and that the most effective way of dealing with that erosion problem is the extension of the Drain downstream from Victoria Road some 500 metres to a point beyond the O’Neill residence in the manner proposed in the Report.
With respect to the Section 54 appeal, based on the evidence before it, the Tribunal is persuaded that the problematic erosion is not caused by the back-flow into the Drain of the Thames River when in flood.
Continuing with the question of benefit, the Tribunal is satisfied that the O’Niell property will receive more benefit than the $2,370.00 assessed to that property for benefit. From the Report it appears that about $60,000.00 will be spent on stone immediately behind the O’Neill home to prevent further erosion and the inevitable loss of the house if the erosion is not controlled. The Tribunal has determined that, because of its special circumstances, the O’Neills should bear a greater share of the expense that is being put into their property.
The Tribunal is mindful of the fact that, if there is a shift to benefit assessment, the Van Heule property would, in the normal course, be proportionally adjusted. In this case, however, the Van Heule land is in crop and its erosion does not have nearly the urgency or consequences as compared to the O’Neill land where a house is at risk.
If time were not such an important factor, the Tribunal would have considered referring the Report back to the engineer for an adjustment of the balance between benefit and outlet with a weighting of benefit allocation toward the O’Neill land. The Tribunal is, however, persuaded by the evidence of Mr. O’Neill that it is urgent to “get on with it” and so has chosen to assign a special benefit assessment against the O’Neill property in the amount of $30,000.00. This is an arbitrary amount and an unorthodox use of “special benefit” assessment. It has, however, the virtue of providing what the Tribunal regards as a fair result consistent with permitting the project to proceed in the immediate future. Had the Tribunal elected to refer the Report back, there would have been further delay, more expense and the probability of more appeals. The $30,000.00 special benefit assessment represents what the Tribunal anticipates would be the result after such further delays, expense and appeals.
To be clear, in addition to the special benefit amount, the O’Neill property will also bear benefit assessment calculated in accordance with the assessment schedule as it is recalculated after deducting from the cost of the project the special benefit assessments.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The appeal of Ralph and Shirley Clayton under subsection 48(1) of the Act is dismissed.
A special benefit assessment in the amount of $30,000.00 shall be applied to O’Neill property part of lot 15, Concession 1 in the geographic Township of Howard, being Roll 1-106.
After deducting the amount of this $30,000.00 special benefit, and the other special benefit amount as identified in the Report, from the cost of the project, the balance of the project cost shall be allocated in the same manner as the engineer has allocated the cost under the Report, that is, there will be a minimum charge of $50.00 per roll number, 10% of the rest is to be assessed to benefit in the same proportion as appears in Schedule “C” to the Report (without regard for the decision of the Court of Revision) and 90% of the rest to be assessed to outlet, again in the same proportion as appears in Schedule “C”.
The cost of maintenance and repair of the Drain shall be assessed in accordance with the assessment schedule in the Report without taking into account the special assessment to the O’Neill property as provided in this Order and without regard for the decision of the Court of Revision.
The engineer is directed to prepare an assessment schedule for the construction of the project in accordance with this Order and a separate assessment schedule for the maintenance of the Outlet North Marsh Drain, again in accordance with this Order.
When distributing a copy of this Decision and Order to the assessed owners on the Drain, the Municipality shall, shall include a copy of the assessment schedule for construction and the separate assessment schedule for maintenance as prepared by the engineer as required by this Order.
The non-administrative costs of the Municipality 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.
Dated at London, Ontario this 16th day of October, 2000