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
APPEAL: Ripley Drain Municipality of West Elgin
Ripley Drain (RE) 2000 ONAFRAAT 29
STATUTE: Drainage Act
HEARING: October 6, 2000
DATE OF DECISION: November 8, 2000
2000-29
NEUTRAL CITATION: 2000 ONAFRAAT 29
Ripley Drain Municipality of West Elgin
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 Robert F. Hatch and Marianne Hatch under Section 48 of the Drainage Act (the Act) from the Report issued April 17th, 2000 by Dennis R. McCready, P.Eng. on the Ripley Drain in the Municipality of West Elgin
BEFORE: Andrew C. Wright, Vice-Chairman Jack Young, P.Eng., Vice-Chairman Doug Flook, Member Russell Piper, Member
APPEARANCES: Robert F. Hatch and Marianne Hatch, the appellants Dennis R. McCready, P.Eng. consulting engineer for the respondent, the Municipality of West Elgin, Al McGregor, an assessed owner Donald Skipper, an assessed owner
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Municipality of West Elgin near the community of Rodney, Ontario on October 6th, 2000. Robert F. Hatch and Marianne Hatch appealed to the Tribunal under Section 48 of the Act from the Report issued April 17th, 2000 by Dennis R. McCready, B.A.Sc., P.Eng. on the Ripley Drain in the Municipality of West Elgin.
Rita DeWild, 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. 1980, c. 126, s. 48.
Prior to the hearing, the Tribunal issued an order making parties to the hearing all landowners assessed or compensated in the April 17th, 2000 Report. Affidavit proof was filed with the Tribunal that all parties were served with notice of the hearing.
Background
The Report was prepared under Section 78 of the Act. It was initiated by Robert and Marianne Hatch who requested that the ditch in their front yard be “filled in” (lawn tile installed). They have a 2.34 acre residential lot on the northeast side of Graham Road (County Road 76). They have horses and wish to fence their front yard so the horses can graze there.
Donald Skipper made a request for improvement, being concerned that outlet via the existing Ripley Drain was not adequate for his 225 acres of cash crop land upstream from the Hatch lot, and being concerned that any “filling in” of the ditch would exacerbate his problem. The Skipper request was made after the on-site meeting and was for improved drainage in the open portion of the drain on the northeast side of Graham Road (County Road 76).
To appreciate the issues before the Tribunal, a brief history of the Ripley Drain may be useful.
The McColl Award Drain was the predecessor to the Ripley Drain. A report of George A. McCubbin dated April 26th, 1910, under The Ditches and Watercourses Act, extended the McColl Award Drain downstream. It appears that the McColl Award Drain commenced near the centre of Concession 4 and proceeded downstream, northwesterly, along the northeast side of Graham Road (County Road 76) to a point in the northwest half of Concession 3, where it crossed the road. Then, it followed along the southwest side of the road, and again crossed the road and continued downstream, northeasterly, to a point near the line between Lots 22 and 23 in Concession 3.
The Ripley Drain first came under the authority of the Drainage Act by virtue of a report dated June 30th, 1938 prepared by George A. McCubbin. At that time the Ripley Drain had its head at the centre of Concession 4, approximately where it is now and proceeded downstream, northwesterly, along the northeast side of Graham Road (County Road 76), as it does now, to the point where the drain presently crosses beneath Graham Road (County Road 76) in the northwesterly half of Concession 3. From this point downstream, the McColl Award Drain served as the outlet for the Ripley Drain. At this point, in Concession 4 and in the southeast half of Concession 3, the Ripley Drain consisted of an open drain.
The Ripley Drain was next repaired and improved under a report of H.H. Todgham dated March 20th, 1961. Under that 1961 Todgham Report, the Ripley Drain was relocated off of the road property, which at that time was King’s Highway No. 76. Both the open ditch and tile portion of the Ripley Drain were relocated off the road property by constructing a new open ditch and tile drain on the lands immediately northeast of the northeast limit of the highway property. This work placed an open ditch and tile drain on what is now the front yard of the Hatch residential lot. The tile ranged in size from 200 mm (8”), 250 mm (10”), and 300 mm (12”). From the outlet of the tile downstream, the drain was an open ditch that outletted into a 760 mm (30”) diameter road crossing.
As well, as part of the work undertaken under the 1961 Todgham Report, the Ripley Drain was extended downstream by crossing beneath the highway and proceeding along the southwest side of the southwest limit of the highway property for a distance of 265 m (869’), to outlet into the McColl Award Drain where it crosses under the highway.
Under the 1961 Todgham Report, there were also a number of culvert installations to accommodate then existing farms and a then existing school at the north quadrant of the intersection of Graham Road (County Road 76) and Argyle Line. These culverts did not include a crossing for what is now the Hatch residential lot.
The last report for the repair and improvement of the Ripley Drain was done under a report issued by Spriet Associates and dated April 30th, 1987. This Report indicated that the new drainage system was designed to accommodate 12 mm (½”) of runoff per day from the watershed.
Under the 1987 Spriet Report, the open portion and covered portion of the Ripley Drain constructed under the 1961 Todgham Report remained unchanged except that the tile portion of the drain in Concession 4 was re-routed to a new outlet on the southwest side of Graham Road (then Highway 76). The work specified under the 1987 Spriet Report consisted of the construction of a "Main Drain" on the southwest side of Graham Road (then Highway 76) in Concession 3, a "West Branch" on the southwest side of Graham Road (then Highway 76) in Concession 4 and the construction of an "East Branch" on the northeast side of Graham Road (then Highway 76) in Concession 4. The Main Drain consisted of 450 mm (18”) diameter concrete tile. The West Branch consisted of 200 mm (8”) and 250 mm (8”) diameter concrete tile. The East Branch consisted of 300 mm (12”), 350 mm (14”), and 400 mm (16”) diameter concrete tile.
The 1987 Spriet work included the installation of ditch inlet catch basins and catch basins at various locations to permit surface water to enter the tile. In Concession 4, there were three ditch inlet catch basins installed, two of which are permitting surface water from the open portion of the drain to enter the new tile drain.
The 1987 Spriet work had the effect of redirecting the 1961 Todgham tile drain in Concession 4 into a new outlet on the southwest side of Graham Road (County Road 76). The portion of the 1961 Todgham tile in Concession 3 serves only those lands in Lot 23, Concession 3 and no longer acts as an outlet for the portion of the tile drain in Concession 4. The open drain on the northeast side of Graham Road (County Road 76) in Concession 4 does however, drain downstream along the open ditch on the northwest side of the road in Concession 3.
The outlet capacity issue that was of concern to Donald Skipper was addressed by Mr. McCready by reference to Publication 29 of the Ontario Ministry of Agriculture, Food and Rural Affairs, entitled “Drainage Guide for Ontario”. That publication recommends design standards for tile drains. These Guidelines recommend a drainage coefficient of 12 mm (½”) per 24 hours for cash crops under normal surface drainage conditions, and where no surface water is to be admitted directly into the tile drain. Where surface water is admitted directly into the tile drain, the Ministry recommends a drainage coefficient of 25 mm (1”) per day for open inlets.
The 1987 Spriet Report provided a covered drainage system designed by reference to a capacity of 12 mm (½”) per day. This would have been appropriate for a system that received no direct surface water flow but, given ditch inlet catch basins and catch basins at various locations to permit surface water to enter the tile, the covered drainage system was being overloaded and did not serve the private subsurface drainage systems which Mr. Skipper had installed in his 225 acres.
Mr. McCready proposed to eliminate, as much as possible, the entry of surface water into the covered drainage system. His proposal was to remove some of the catch basins and to cover the remaining catch basins which must be retained to provide connections for the covered system. After preventing surface water from entering the closed system, Mr. McCready proposes a surface water runoff drain along the open ditch, instead of the tile drain. Thus, by preventing water in the open ditch from entering seven of the catch basins in Concession 4 and by improving the flow capacity of the open portion of the Ripley Drain, the tile portion of the Ripley Drain will provide a better outlet for the subsurface drainage systems on the Skipper property and other properties in the watershed.
The result of this is that surface water from the land northeast of Graham Road (County Road 76) and southeast of Argyle Line will now be directed to the open portion of the Ripley Drain that runs through the front yard of the Hatch residential lot. It is to be recalled that, underlying that open portion of drain there is the closed 300 mm tile that was installed as part of the work under the 1961 Todgham Report.
To respond to the Hatch request to “fill in” the ditch across their front lawn, Mr. McCready offered two alternatives both of which were summarized for the Hatchs in his February 23rd, 1999 preliminary report. For $25 per metre, the lawn areas where the open ditch was located could be flattened; alternatively for $256 per metre, or approximately $22,000, the ditch could be enclosed with lawn piping. In either case the cost would be assessed to the Hatch property as special benefit.
Issues
The Hatchs placed two issues before the Tribunal.
They asked the Tribunal to modify the proposed work so the surface water is diverted southwest across Graham Road (County Road 76) before it gets to Argyle Line so that it does not contribute to the flows across their front yard.
In the alternative the Hatchs asked the Tribunal to modify the drainage works so there is an open ditch in front of their property but that it is re-located off their land and onto the road allowance.
The Hatchs also sought relief from their special benefit assessment. To address this issue the appellants should have brought an appeal under section 54 from a decision of the Court of Revision, which they did not. While the Tribunal has some discretion under section 100 of the Act to extend the time for launching appeals, no request for an extension was made nor, in the circumstances of the evidence heard, would this be an appropriate case to exercise such discretion.
Evidence
Appellants’ Evidence
Mr. Robert Hatch told the Tribunal that the Ripley Drain in its current configuration is fully functional for surface drainage. He said that during very heavy rains between July 3rd and 14th, 2000 twenty or more centimetres of rain fell on the farm lands in the area and the ditches were virtually dry within 24 hours. Mr. Hatch told the Tribunal that he believes this sort of precipitation represents a one-in-twenty year to a one-in-twenty-five year storm event and that, based on discussions he had had with a professor at the Ridgetown Agricultural College, the surface drains need only be designed for the average heaviest rain in 5 years.
His point was that the design of the drainage system was more than adequate as had been recently demonstrated.
He reminded the Tribunal that the current drainage configuration was only 13 years old and that it had been repaired only 5 years ago. The sort of thing now being proposed to divert surface water toward his property was not appropriate. He suggested it was too soon to declare the 1987 Spriet work obsolete.
Mr. Hatch told the Tribunal that he and his wife moved into the house in December of 1994. At that time the house was already there. He believed it had been built in 1971. In all the time he had been there, Mr. Hatch had never seen much water in the ditch.
Mr. Hatch told the Tribunal that, from his observations, most of the runoff came from Graham Road (County Road 76). He said that a small amount of water enters the ditch from their lawn and that the ditch runs back toward Argyle Line over much of their property.
From his perspective, Mr. Hatch said that the proposed change will cause all of the surface runoff to flow across their property and that it is unnecessary work and excessively costly.
Mr. Hatch asked the Tribunal to order that the proposed work be dropped and that they be permitted to fill in the ditch on their land by the installation of lawn tile.
He said that he now regrets having initiated this project. He and his wife just wanted to fence their land and to cover what they felt was a redundant ditch.
Part of the motivation for filling in the ditch by the installation of lawn tile was that he finds it dangerous to mow the ditch banks. There was also the danger of having what amounts to two ditches across the front of their property. There is the municipal drain ditch and the roadside ditch. Mr. Hatch told the Tribunal that, on three occasions, their guests - different guests on different occasions - had inadvertently backed into the municipal ditch because, having crossed the roadside ditch, they had not anticipated a second ditch.
As to the expense, Mr. Hatch produced an estimate from an independent contractor for the installation, for $10,000, of lawn tile and backfill. This was for 72 metres of 750 mm pipe. The estimated cost in the Report is $19,800. Mr. Hatch told the Tribunal that he has an engineering opinion that the 1,000 mm lawn tile, as proposed by Mr. McCready, is properly sized and he has no quarrel with the engineering. That said, however, Mr. Hatch feels that the extra size is the result of the planned re-routing of surface water from the 1987 Spriet closed system to the open part of the system in front of their property. Mr. Hatch said that he should not, therefore, have to bear the full cost of putting that extra surface water through his lawn pipe. He asked that, if the Tribunal allows the work to proceed, then the Tribunal should alter the assessment to their property in order to limit it to the amount it would cost to close the drain without the additional re-routed water.
As an alternative, Mr. Hatch asked the Tribunal to consider moving the drainage works onto Graham Road (County Road 76). He said that there are now two drains that run parallel to each other, one is located on private land and the other is on the County road allowance. He told the Tribunal that, in response to that suggestion, the Engineer had told him that the County regarded the relocation as being hazardous to traffic. Mr. Hatch told the Tribunal that such suggestion has no merit as the ditch is already there, the County has no plan to fill it in, there are ditches on both sides of Graham Road over its entire length and the majority of County Road ditches are deeper and steeper than the one fronting his land.
In his opinion, one of the ditches was redundant. In his view the water could be combined in one ditch and, from his perspective, that one ditch should be on the County road allowance and not on his property.
In response to questions from the Tribunal, Mr. Hatch made it clear that the size of the proposed lawn pipe was not an issue. Mr. Hatch had his own engineering advice that, given the water it was going to have to handle, the size of the pipe was proper.
By way of clarification for the Tribunal, Mr. Hatch said that he wanted to maintain the configuration of the drain as it had been laid out under the 1987 Spriet Report. By this he intended that the surface water from the northeast side of Graham Road (County Road 76) should follow the same route as designed by Spriet in 1987. That route is along the northeast side of Graham Road (County Road 76) to a road crossing just to the southeast of the intersection of Graham Road (County Road 76) and Argyle Line. At that location Spriet carried all of the water, both surface and subsurface water, under Graham Road (County Road 76) to the Main Drain which ran on the southwest side of Graham Road (County Road 76) to its outlet. Mr. Hatch said he did not want to interfere with the solution needed by Mr. Skipper but, consistent with that, if the solution for Mr. Skipper is more outlet capacity for his subsurface water, that capacity should be found in the same route as configured by the 1987 Spriet Report. In this way there would be no additional surface water running across the front of his property.
It should be said that Mrs. Hatch was present and gave assistance to her husband. Because her evidence was more pertinent when given directly, she was sworn as a witness and adopted her husbands evidence as her own. In effect they gave the appellants’ evidence as a witness panel and some of what has previously been attributed to Mr. Hatch was in fact given by Mrs. Hatch either directly or via coaching of Mr. Hatch.
Evidence of Other Parties in Support of the Appeal
Mr. Al McGregor spoke in support of the appeal. Mr. McGregor is an assessed owner. He and his family have been in the area for many years. Currently he has 96 acres of bush and pasture land that lies immediately to the northeast and northwest of the Hatch lot. From Mr. McGregor’s observations the ditch on the northeast side of Graham Road (County Road 76) is working. There was a huge rain in April, perhaps the largest since the work in 1987, and ditch was full but flowing. In his mind it is really a question of whether the whole project is needed. Mr. McGregor is not sure the increased yield from the relatively small part of the Skipper property that needs outlet is worth the cost.
Mr. McGregor told the Tribunal that this stretch of Graham Road (County Road 76) is the only place in the area he knows of that has two ditches side by side.
Engineer’s Evidence
Mr. Dennis McCready then gave evidence in defence of his Report.
He summarized the Report, the Preliminary Report and the various meetings.
In particular he pointed out that in the February 23rd, 1999 Preliminary Report lawn piping across Hatch property was estimated to cost $22,000 and that it would be borne entirely by Hatchs.
Because the Hatchs were not in attendance at Council’s meeting to consider that Preliminary Report, Mr. McCready asked the Drainage Superintendent to attend upon the Hatchs to discuss with them what they wanted to do. Mr. McCready told the Tribunal the advice he received was that the Hatchs wanted the lawn tile despite the cost. On that basis, Mr. McCready included it in his final Report.
Mr. McCready reviewed for the Tribunal the history of the drain. Much of this evidence is presented as part of the Background section of this decision and will not be repeated here.
Dealing specifically with the appeals, Mr. McCready told the Tribunal that, in his view, the Ripley Drain has been there for over six decades and its users have the right to continue to use it. In his opinion they also have the right to have it improved to provide drainage outlet to help the private field tile function better.
With respect to limiting the special assessment to reflect the present flows without any increase in surface water flows, Mr. McCready disagrees with Mr. Hatch. In Mr. McCready’s mind the drain was there first, it was designed by Todgham in 1961 to carry the surface water flows which Mr. McCready intends to re-direct and, in principle, the drainage systems cannot limit upstream owners. If the Hatchs now want to cover the open ditch, then they should pay for it on the basis of current standards. The entire benefit is to the Hatch property from having the ditch removed via a lawn tile and filled in to provide an uninterrupted front yard.
Concerning moving the ditch to the road property, Mr. McCready reminded the Tribunal that the ditch had been relocated off the road allowance under the 1961 Todgham Report and that the Hatchs’ predecessors in title had been paid allowances for the location of the ditch and underlying pipe in its present location off the road allowance. Leaving aside safety issues that motivated the 1961 relocation in the first place, Mr. McCready invited the Tribunal to consider the question of who would pay for the cost of relocating it back to road property and suggested that it would involve a substantial amount of money.
In response to questions from the Tribunal, Mr. McCready said that, prior to the provisional by-law adopting the April 17th, 2000 Report, there had been no suggestion by the Hatchs that surface water and ground water should be re-routed to the East Branch of the drain before it reaches Argyle Line.
Evidence of Other Parties in Support of the Report
Mr. Donald Skipper then gave evidence to support Mr. McCready’s evidence. He said the ditch is out of repair. He requested the work to be done after the Hatchs put in their request. He was concerned that they simply wanted to fill in the ditch by the installation of lawn tile in front of their property without any consideration of those upstream.
Mr. Skipper told the Tribunal that he has been experiencing drainage problems. Water in low spots can be seen coming up from the catchbasins because it cannot flow through the Spriet tile. He told the Tribunal that his property is systematically tiled at 40 foot intervals and in some places at 20 foot spacing. He told the Tribunal that this is the first farm he has seen with that much tile that has drainage problems. In response to an inquiry from the Tribunal Mr. Skipper said he grows soybeans and wheat crops on his farm.
Reply Evidence
Mr. Hatch called no reply evidence.
Summations
It was in the course of final submissions that the real nature of the problem became clear.
Mr. McCready submitted that, throughout the process, he had given the Hatchs the choice. The choice was whether or not they wanted lawn piping. If they want it, said Mr. McCready, then they should pay to put it in.
The Tribunal put that choice to the Hatchs. The candid reply was that Mrs. Hatch wants the lawn piping but, given the $20,000 special benefit assessment, Mr. Hatch does not. If he cannot get the drain moved to the road allowance or the surface water routed southwest across Graham Road (County Road 76) before it crosses Argyle Line, then Mr. Hatch would prefer the flattening option described as costing $25 per metre in the Preliminary Report.
Findings
Despite this ambivalence within the Hatch family, the Tribunal has decided that the project should proceed as proposed. Mr. Skipper has a drainage problem that must be addressed.
The Tribunal was impressed with the understanding of the drainage problem which Mr. McCready brought to this project. The Tribunal is also impressed with the open-mindedness and patience Mr. McCready brought to his dealings with the Hatchs in this exercise. The Tribunal is satisfied that he responded to what the Hatchs requested when they initiated the process. The Tribunal is satisfied that Mr. McCready appropriately anticipated a potential change of heart when the costs of the lawn piping became known. He offered a less expensive alternative and made the extra effort to be sure the Hatchs were aware of the cost implications before finalizing his report.
Order of the Tribunal
After careful consideration of the evidence filed and the submissions made, the Tribunal orders:
The appeal of Robert F. Hatch and Marianne Hatch under Section 48 of the Drainage Act from the Report issued April 17th, 2000 by Dennis R. McCready, P.Eng., on the Ripley Drain, in the Municipality of West Elgin, is dismissed.
The non-administrative costs of the municipality with 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 8th day of November, 2000.