McLellan Drain (Re), 2000 ONAFRAAT 28

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:

McLellan Drain Township of Southwold

McLellan Drain (RE) 2000 ONAFRAAT 28

STATUTE:

Drainage Act

HEARING:

October 16, 2000

DATE OF DECISION:

November 8, 2000

2000-28

NEUTRAL CITATION:

2000 ONAFRAAT 28

McLellan Drain Township of Southwold

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 Donald Dewayne Hutchison under Section 64 of the Drainage Act regarding the quality of construction of the McLellan Drain in the Township of Southwold.

BEFORE: Andrew Wright, Vice-Chair; Jack Young Vice-Chair; Murray Cardiff, Member.

APPEARANCES:

Donald Dewayne Hutchison, appellant M.P. De Vos, P. Eng on behalf of the Township of Southwold Ralph Beharrell on behalf of the Township of Southwold

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Township of Southwold in the Village of Fingal, Ontario on Monday, October 16th, 2000. Mr. Hutchison appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 64 of the Drainage Act (the Act) with regard to the quality of construction of improvements made to the McLellan Drain in 1999.

David Aristone, Clerk of the Township, performed the duties of the Clerk of the Tribunal.

Section 64 of the Act is as follows:

Any owner of land dissatisfied with the quality of the construction of a drainage works constructed under this Act may, at any time during construction or up to one year from the date of completion of the drainage works as certified by the engineer or a drainage superintendent of the drainage works, appeal to the Tribunal on grounds to be stated. R.S.O. 1990, c. D.17, s. 64; 1998, c. 18, Sched. A, s. 1 (3).

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the June 30, 1998 engineer’s report signed by M.P. De Vos on the McLellan Drain, Township of Southwold, parties to this hearing. Affidavit proof was filed with the Tribunal that all parties had been served with notice of this hearing.

BACKGROUND

The McLellan Drain was constructed under the provisions of the Drainage Act, pursuant to a report dated January 4, 1909. It was originally an open drain with its head at the line between the north halves of Lots 14 and 15, Concession 4. The drain ran southwesterly and westerly across Lots 15 and 16 to an outlet on the north side of the Fourth Line road, a short distance east of the line between Lots 16 and 17.

As a result of a report by J.A. Bell dated August 24, 1916, the McLellan Drain was extended downstream as an open ditch across the south half of Lot 17, Concession 4, across the Townline and 120 metres into Dutton-Dunwich. The same report provided for the construction of Branches A and B. Branch A consisted of 662 metres of 175 mm (7”) and 200 mm (8”) tile extending from its head on the north side of the Fourth Line Road in Lot 15, southerly across the Fourth Line Road, and southerly across the west part of the north half of Lot 15 and the northeast part of Lot 16, Concession 4 to outlet in the open drain at the line between the northeast and northwest parts of Lot 16. Branch B consisted of 666 metres of 150 mm (6”) tile extending from its head in the east part of the south half of Lot 15, Concession 3, southerly across the south east corner of Lot 16, the Fourth Line Road and the north part of Lot 16, Concession 4, to outlet in the open drain approximately 350 metres upstream of the Fourth Line Road.

Branch A was completely replaced and extended upstream a distance of 247 meters into the south half of Lot 15, Concession 3, under a report dated September 4, 1958. Branch A is now 945 meters of 200 mm (8”) to 300 mm (12”) field tile.

Branch B was replaced in its entirety by a new municipal drain – the Smith-Beecroft Drain – pursuant to a report dated July 9, 1969 and now consists of 945 metres of 150 mm (6”) to 250 mm (10”) field tile.

Work on the McLellan Drain was undertaken in 1999 as a result of a request by landowners for repair and maintenance of the Drain. A report by M.P. De Vos dated June 30, 1998 outlined the work to be done. The work included:

• deepening and improving the existing open drain

• re-locating a portion of the ditch on Roll No. 3-117 away from a farm yard

• replacing the existing 1500 mm pipe culvert under the Fourth Line Road with a 2200 mm culvert

• replacing four existing farm culverts (Roll No.’s 2-054, 2-0.53, 2.051 and 3-117)

• deepening and improving a short open ditch in the southwest corner of the Noorloos property (Roll No. 2-053)

• installing quarry stone rip rap protection around the existing private tile drain outlet pipes and the existing open ditch on the Hutchison property (Roll No. 2-055)

• abandoning the existing portion of Branch A in Concession 4 and across the Fourth Line Road (as a municipal drain) and replacing it with 7772 metres of 300 mm (12”) to 400 mm (16”) concrete field tile and relocating the lower portion of Branch A to north of the existing bush area on the L. Vasquez property (Roll No. 2-052) to outlet in the open ditch on the P. and J. Smith property (Rol No. 2-051), just south of the Smith-Beecroft Drain

• incorporating three existing private tiles running southerly from the open ditch in the L. Vasquez property (Roll No. 2-052) to the north limits of the R. and D. Van Den Dries property ( Roll No. 2-052-02) into the McLellan Drain as Branches B, C-1 and C-2.

The total watershed area is approximately 360 hectares.

ISSUES

The Issues before the Tribunal were:

Was the work undertaken on the McLellan Drain completed as described in the June 30, 1998 report by M.P. De Vos? Was the construction of the drain of adequate quality?

EVIDENCE

Appellant’s Evidence

Mr. Hutchison submitted that the June 30th, 1998 engineer’s report was contradictory, as there was, in his view, no mention in the body of the report that any work would be done on his property (Roll No. 2-055), but that the attached plan showed Branch D of the drain extending onto his property. He indicated he had tried to get an explanation for the discrepancy for approximately 18 months without success.

Mr. Hutchison stated that it was his understanding that no work would be done on his land but that the contractor had entered his property and damaged his private tile outlet pipe. He also expressed concerns about the ability of the drain to work, as he felt the portion near Highway #401 would not drain properly. Mr. Hutchison stated his main concern was with D Drain (Branch D) but that he was also concerned that the drain banks had eroded on the Main Branch, a culvert was blocked and the work was not done according to the engineer’s report.

Mr. Hutchison stated that he and his wife had lived on their farm for four years and that the property had been in their family since 1910. He stated he had attended the first two meetings about the drainage works, including the site meeting, but had not attended the third meeting due to illness. He noted that his property was not mentioned at any of the three meetings. He did not attend the court of revision.

Mr. Hutchison referred the Tribunal to a package of correspondence between him, his legal counsel, the Township and the engineer. He expressed his concern that the work completed was not done according to specifications and that the Township had not been able to explain the discrepancies to his satisfaction. He specifically noted that:

• On the Vasquez property (Roll No. 2-052), some clearing was done on the east and north sides of the main drain in the bush area, while the report called for clearing on the south and west side of the ditch only;

• The outlet from the Beecroft Drain No. 2 meets the main drain on the S. Noorloos property (Roll No. 2-053) rather than on the J. and D. Mordush property (Roll No. 2-054) as specified in the engineer’s report;

• The report shows two lane ways on the S. Noorloos property (Roll No. 2-053) but half of one lane way is on the Mordush property (Roll No. 2-054).

Mr. Hutchison explained this was of concern to him as he wanted to buy a property that was in the watershed but could not obtain the information he had requested about the construction of the McLellan Drain. He was also concerned that, because the drain is not where it was reported to be, in future there will be an owner that has a municipal drain on his property that is not in the official report.

With regard to Branch D, Mr. Hutchison stated he did not want any part of the drain on his property. He explained that one of the letters from the engineering firm indicated that Branch D extended approximately 2 meters (6 feet) onto his property. Mr. Hutchison questioned this as he stated the written report did not mention his property. He noted his property was mentioned in the plan attached to the written report. The Tribunal asked for clarification about this point because there was a chart in the written part of the report the referred to a special benefit to V. and D. Hutchison for rip-rap to be installed at the end of Branch D. Mr. Hutchison explained that the rip rap was not installed and that he was told that, if he did not want any maintenance work done on this, then it would not happen.

Mr. Hutchison explained he was concerned that a private tile drain that he had installed at his own expense should not become part of the municipal drain.

Mr. Hutchison showed photographs of the damaged tile outlet pipe on his land. He indicated that the damage had been done when workers had come onto his land, even though there was not supposed to be any work done on his land. He noted that after he appealed to the Tribunal, the Township and contractor again came on his land without his permission and took out and replaced the damaged tile outlet pipe. He stated that he was told this work was done as it was called for in the engineer’s report. He pointed out that the engineer’s report did not mention his private tiles. Mr. Hutchison pointed out that the embankment by the repaired tiles is too steep and, without rip-rap, the soil will erode.

Mr. Hutchison stated he was also very concerned with the quality of construction of the work done on Main Branch of McLellan Drain. Specifically he noted that:

• Station 0+000 – 0+300 - Where the main drain ends is the drain was totally blocked with trees and earth and there is not adequate drainage for the water so it backs up.

• Station 0+347 - 0+900 - There was erosion caused by high water that cannot get away fast enough; the blockage was holding water back and eroding the sides of drain. He understood there was not enough grass planted.

• Station 1+809 – A culvert in the woods was totally blocked with limbs.

• Station 2+093 – 2-390 - There was no buffer installed and quite a bit of erosion occurred because the land was worked right up to the ditch.

• Station 1+809 – 2+093 – Branches left on the side of the drain plugged up the water.

The Tribunal clarified that past construction on sections of the drain not covered by the current engineer’s report could not be considered in this appeal.

Mr. Hutchison said he felt that the current repairs should be warranty work done by the contractor, not maintenance work paid for by assessed landowners. Mr. Hutchison showed photographs of the drainage works taken before and after the remedial work. He explained that blockages on the main drain affected him as water could back up onto his land through Branch D.

Another of Mr. Hutchison’s concerns was that the culvert blocked by debris would continue to block up even after it is cleaned because the culvert is in a wooded area and because he feels it is too small (42 inch). He noted that the concrete was crumbling and he questioned how long it would last. Mr. Hutchison acknowledged that the report did not call for that culvert to be replaced.

Mr. Hutchison also raised a concern about some damaged trees on a neighboring property. He felt the trees would be more susceptible to disease and that the disease could spread into his bush. However, he indicated that he did not seek any specific action to address the problem of the damaged trees.

In response to questions of the Tribunal, Mr. Hutchison indicated that he wanted the embankment and buffer strip adjacent to his tile outlet returned to its previous state. He also stated he would like the other work on the drain to be done in the manner specified in the report, or alternatively, he would like the changes written up so that future land owners will know where the drainage works are located. Mr. Hutchison also wanted clarification as to whether or not Branch D was a municipal drain and whether the drain extended onto his property.

Mr. Hutchison stated that he did not have a mutual drain agreement to allow water from his property to drain into the Noorloos property. He stated there was some run-off from the Gore Fifth Line Road onto his property, but that there was no run-off into his property from other adjacent land.

Mr. De Vos had no questions for Mr. Hutchison.

Engineer’s Evidence

Mr. De Vos indicated that he was the engineer who prepared the report. He stated that he attended the site meeting where the request to clean out Branch D was made and an informal Township meeting where the issue was discussed. He noted that Mr. Hutchison was present at these meetings but that he later complained that no proper petition had been signed before the work on Branch D was undertaken. Mr. De Vos indicated that the Township of Southwold had tried to accommodate Mr. Hutchison’s concern by not doing the special assessment work, specifically the rip rap proposed at the end of his tile outlet. Mr. De Vos also indicated that the field tile that Mr. Hutchison claimed was damaged had been replaced because the Township could not verify that their contractor had not damaged it.

With regard to the problem of water backing up from Highway 401, Mr. De Vos indicated that the channel has sufficient capacity as the grade increases as the drain goes downstream, and that no work was proposed for that area as there were no complaints at time the report was done.

With regard to the erosion of new banks on the Main Branch and the lack of buffer strip, Mr. De Vos agreed that there were a few spots with caved-in banks and some surface water coming in and causing erosion. He indicated that the section of the drain that was re-located had fresh banks and good buffer strips but there was still erosion as they were new banks. Mr. De Vos felt that the re-sloping and re-seeding of these banks was maintenance work, not warranty work as he did not believe the damage was the contractor’s fault. He indicated that the damage had occurred after the contractor was finished the work and after a final report had been filed. He noted that his report anticipated that some banks would become unstable and need to be re-sloped and re-seeded. It was his opinion that it was cheaper to repair collapsed portions of the drain than it would have been to undertake a complete soil analysis prior to construction.

With regard to the blocked culvert, Mr. De Vos stated that debris had been washed in after the culvert was cleared. He noted that the report specified that the area was to be cleaned out, but no clearing of adjacent land was commissioned. He noted there were no concerns with the Vasquez culvert at the time of the site meeting and subsequent meetings.

Mr. De Vos indicated that downstream owners had suggested the re-location of the culvert from the Mordush property to the Noorloos property, and had asked that some trees be saved. It was his view that these changes did not change the intent of the drain.

Mr. De Vos noted that the appeal had been made almost one year after construction on the drain was finished, that there had been no concerns raised earlier by the appellant and no complaints by any other landowners affected by the drainage works. He indicated that he had responded to the items raised in the letter of appeal.

Mr. De Vos showed photographs he had taken before remedial work began and compared them with photographs taken by the Drainage Superintendent after the work was done.

Mr. De Vos reiterated that no formal soil assessment was undertaken prior to the construction work. He indicated that it was his preference to come back and fix problems later, rather than disturbing banks along an entire ditch. He stated that this was a common practice.

In response to questions from Mr. Hutchison, Mr. De Vos indicated that the slope at the end of the private drain is part of the Branch D drain; there is no distinction between the slope and the ditch. He explained that rip-rap had not been installed at the end of the Hutchison tile drain as Mr. Hutchison had said he did not want it. It was clarified for the Tribunal that the Hutchison drainage pipe outlets were approximately six feet from the property line.

In response to questions, Mr. De Vos stated that the final inspection of the construction on the drain was July 22, 1999 and that the drain was completely finished at the end of August 1999. He said that seeding had not been done in July, and that there were minor deficiencies to be fixed.

Mr. Hutchison asked why he was never asked if he could help clear up this problem before the appeal. Mr. De Vos responded that they did try to fix the problem as they tried to repair the damage done to his tile outlet drain, at his request. Mr. Hutchison pointed out that he never requested that the Township do the work; he wanted it done by a contractor of his choice. Mr. De Vos replied that he thought it was the Township’s responsibility to repair the drain and he made recommendations to the Township on the work that needed to be done.

Mr. Hutchison questioned Mr. De Vos about the responsibility for maintenance costs. Mr. De Vos replied that Mr. Hutchison did not have to pay for work done on the outlet pipe. He said the repair work on the open ditch part of the drain was maintenance work. He explained that the soil on the open ditch became unstable after the contractor left the site and therefore was not his responsibility. He agreed that there was a warranty for one year on the contractor’s work but that the Township did not believe the contractor caused the erosion problems on the open ditch.

In response to questions from the Tribunal, Mr. De Vos indicated that Branch D was not the subject of a petition. He explained that there was a private ditch that was not deep enough to transport the water collecting in it, and that Mr. Nooroos asked that it be cleaned out and made deeper. He reported that the McLellan Drain had last been worked on in 1964 but that no plan for Branch D could be found. He explained that the Township had decided that Mr. Hutchison should not pay any net cost of the work undertaken on Branch D. He explained that the Township absorbed the costs that would have been paid by Mr. Hutchison and that the maintenance of Branch D would be assessed as described in his report.

In response to a question regarding his philosophy of constructing drains, Mr. De Vos stated that he could have designed a flatter slope to ensure vigorous growth, or he could have sodded the banks but that both of these options were more expensive and therefore not commonly proposed by his firm. He stated that normally seeding of the banks is sufficient and more economical.

Evidence of Drainage Superintendent

Mr. Ralph Beharrel, the Township Drainage Superintendent reported that he had received a request for maintenance on the McLellan Drain in late 1997 by Mr. Phil Smith (Roll No.2-051). He indicated that Mr. Smith had provided him with a letter signed by the majority of affected ratepayers, including Mr. Hutchison. Mr. Beharrel stated that an engineer’s report was required as a culvert on Fourth Line Road was restricting outlet and the slope of the drain was very flat at that point. He reported that an engineer was appointed and a site meeting was called. It was at the site meeting that the request for outlet for Branch D was made.

Mr. Beharrel stated that he had seen the damaged tile outlet pipe on the Hutchison property. It was his view that some of the tile was damaged by rodents, but he stated the landowner was given the benefit of the doubt and the tile and the outlet pipe were replaced. Mr. Beharrel indicated that the Township had paid for the new pipe and the contractor had provided his time. Mr. Beharrel stated that, to the best of his ability, the top surface was made the same as before the repair was undertaken. It was his view that, if anything, the area above the pipe was raised slightly higher than before. He reported that the fill came from the excavation of Branch D of the drain and that a hole under the 24 inch tile outlet was filled with stone supplied by the contractor, in order to prevent future scouring. He stated that the repairs were done to try to prevent an appeal to Tribunal.

In response to questions from Mr. Hutchison, Mr. Beharrel stated:

• that, when the repair to Branch D was done in August, the bank was restored to its original state and seeded;

• that the contractor had done a good job seeding the banks at the confluence of Branch D and the main drain, using the approved mixtures and methods, and not missing any spots that he could see;

• that it was not his decision as to what was maintenance work and what was warranty work.

In response to a question about work done on the main branch at station 1+390, Mr. Beharrel indicated that someone had blocked the drain with stone and rubble and a plastic tile was fastened to an old 4 inch tile to give it an outlet. He indicated that work was for an outlet for Branch A of the drain.

Mr. Hutchison asked why the Township had not provided him with a letter from Mr. De Vos to the Township dated July 8th, 2000 until October 12th, 2000, and why there was a one month delay in forwarding a response to a letter from his lawyer. Mr. Beharrel replied that there have been an inadvertent oversight.

In response to questions from the Tribunal Mr. Beharrel indicated that:

• The deficiencies identified in the July 27th, 2000 letter from Mr. De Vos had been corrected to his satisfaction.

• Mr. Hutchison did sign the original letter requesting maintenance work be undertaken on the drain.

• The cost of maintenance had not been not allocated yet, but that there would be no maintenance cost to Branch D if the Township covered the cost of the replacement of the outlet pipe and bit of quarry stone under the 24 inch outlet.

• The cost to the Township in repairing the broken outlet pipe on Mr. Hutchison’s land would not be charged to the drain unless the Tribunal so directed.

SUMMATIONS

Appellant’s Summary

In his final submission, Mr. Hutchison stated he had tried to resolve his concerns before appealing to the Tribunal but that he did not get satisfactory responses to his three letters to the Township about this matter. He noted that, if the drain had been upgraded exactly as specified in the engineer’s report, then he would not have appealed. He reiterated that his main concerns were that he did not want Branch D on his property and he did not want other people on his property without his permission. He also asked that, either any variations between construction undertaken and construction outlined in the report be documented so that everybody knows about them, or that the drain be modified to match the report. Mr. Hutchison felt that the Township should bear the costs of the hearing because he sent enough letters to them that his concerns could have been resolved.

The Tribunal asked if Mr. Hutchison would like rip rap installed on the portion of Branch D that was on the Hutchison property, as per the engineer’s report. Mr. Hutchison indicated that he would put rock in the ditch himself if it was not a municipal drain. He expressed a concern that he would lose control over his private tiles if the Township were to install rip rap in the drain. Mr. Hutchison indicated that he would bear the cost of installing rip rap if he could do the work himself.

Mr. Beherrill interjected that, if Mr. Hutchison were to do the work himself, the Township would need to approve the materials.

Engineer’s Summary

In his final submission Mr. De Vos stated that, after the Township became aware of Mr. Hutchison’s concerns, it did everything it could to resolve the matter. It was Mr. De Vos’ view that Mr. Hutchison was unwilling to cooperate without the appeal process. He noted that the work was completed with little cost and that Mr. Hutchison received a legal outlet for his land at no out-of-pocket cost. It was Mr. De Vos’ submission that the appeal was unnecessary and that Mr. Hutchison should pay the costs of the appeal.

ORDER OF THE TRIBUNAL

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

1. The appeal of Mr. Hutchison under Section 64 of the Act is dismissed.

2. The Tribunal clarifies that the 2 metre section of Drain D and the tile outlet rip rap protection located on the Hutchison property is part of the drainage project and the Tribunaldirects that, should Mr. Hutchison or any future owner of the affected property wish to have rip rap installed at the tile outlet into Branch D on the property (Roll No. 2-055), then the work shall be undertaken by the Township of Southwold, or under the direction of the Township, and the cost of installing rip rap shall be borne by the owner of the property (Roll No. 2-055).

3. It is ordered that there be no order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

The Tribunal recommends that the Township commission a report to detail the re-location of the outlet of the Beecroft Drain No. 2 into the McLellan Drain and to reflect the ‘as built’ conditions on the McLellan Drain.

REASONS

The reasons for this Order are as follows:

1. From the engineer’s report it was clear to the Tribunal that Branch D of the McLellan Drain extends approximately 2 metres (6 feet) onto the Hutchison property. The ditch portion of the drain and any rip rap that may be installed form part of the municipal drain. The private tiles are Mr. Hutchison’s property

2. The Tribunal was convinced by the evidence that the quality of construction undertaken on the McLellan Drain under the June 30th, 1998 report was adequate.

3. The Tribunal was convinced by the evidence that, with the exceptions of the lack of installation of rip rap at the outlet from the Hutchison tiles into Branch D, and the re-location of the outlet of the Beecroft Drain, the work constructed on the McLellan Drain was substantially as described in the report.

4. The Tribunal was convinced by the evidence that the rip rap was not installed on the Hutchison property because Mr. Hutchison had requested that this work not be done. The Tribunal commends the municipality for its flexibility on this matter.

5. The Tribunal gave serious consideration to the allocation of costs for the Hearing against Mr. Hutchison. The Tribunal believed that the Hearing was unnecessary and was reluctant to assess the costs of the Hearing to the drain. However, the Tribunal recognized that there had been a breakdown in communication and that communication is a two-way street. On this occasion the Tribunal decided there would be no award of costs against the landowner.

Dated at London, Ontario this 8th day of November, 2000.