Bartlett Creek Municipal Drain (Re), 2000 ONAFRAAT 4

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Bartlett Creek Municipal Drain

Town of Lincoln

Bartlett Creek Municipal Drain (RE) 2000 ONAFRAAT 4

STATUTE:

Drainage Act

HEARING:

February 2 and 11, 2000

DATE OF DECISION:

March 2, 2000

2000-04

NEUTRAL CITATION:

2000 ONAFRAAT 4

Bartlett Creek Municipal Drain

Town of Lincoln

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 & Rural Affairs Appeal Tribunal by Carol and Edward Austin and by Stuart Reimer under Section 54 of the Drainage Act (the Act) and by Carol and Edward Austin under Section 48 of the Act from the January 4, 1999 report of J. Bryon Wiebe on the Bartlett Creek Municipal Drain, Downstream Section in the Town of Lincoln.

Before:

Andrew Osyany, Vice-Chair; Vernon Spencer, Chair; Bill Sears, Vice-Chair; Andy Koopal, Member.

Appearances:

Carol and Edward Austin, appellants.

Stuart Reimer, appellant.

Bryon Wiebe, P. Eng., on behalf of the respondent, the Town of Lincoln.

Ken Schachowskoj, P. Eng., on behalf of the respondent, the Town of Lincoln.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers, Town of Lincoln, commencing on February 2, 2000 and continuing on February 11, 2000. Carol and Edward Austin and Stuart Reimer appealed to the Agriculture Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act). Carol and Edward Austin also appealed to the Tribunal under Section 48 of the Act from the January 4, 1999 report of J. Bryon Wiebe on the Bartlett Creek Municipal Drain, Downstream Section, in the Town of Lincoln (the Town). Troy M^cHarg, Clerk of the Town, performed the duties of the Clerk of the Tribunal.

Section 48 of the Act is as follows:

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

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

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

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

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

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

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

Section 54 of the Act is as follows:

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

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

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

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

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the January 4, 1999 report of J. Bryon Wiebe on the Bartlett Creek Municipal Drain, Downstream Section, in the Town of Lincoln parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

There is a long history to this project. The petition for drainage was filed by the Director of Public Works in 1989. Wiebe Engineering Group Inc. (Wiebe) was appointed to respond to that petition. Later a second petition was filed with the Town requesting drainage for an area identified as the Golden Horseshoe Trailer Park. By resolution of the public works committee passed at its February 12, 1992 meeting Wiebe was directed to combine the engineer's report for the Golden Horseshoe Municipal Drain with the report on the Bartlett Creek Municipal Drain. Section 8(4) of the Act makes provision for the Council to issue this instruction.

8(4) The council of the initiating municipality may instruct the engineer to make one report with respect to two or more petitions requiring drainage in two or more adjoining areas that require drainage. R.S.O. 1990, c. D.17, s. 8.

A report was prepared by Wiebe and filed with the Town on November 10, 1992. The time for filing this report was extended to November 10, 1992 by resolution of Council passed at the November 2, 1992 council meeting.

A council meeting to consider this report was held on December 7, 1992 at which a number of ratepayers objected to the proposed work. At the end of the meeting Council, by resolution, deferred its decision on the report pending development of further concepts and reports. At this meeting a committee of seven ratepayers, two elected officials, the Chairman of Public Works Committee and the Mayor was struck to review the issues of drainage in the watershed. The secretary to the committee was the Clerk of the Town.

At the January 4, 1993 meeting of council Todd Follis, William Davis, Stephen Letstner, Andy DeVos, Steve Jakymiw, Lauren Redinger, Carol Austin (ratepayers) were appointed to the Bartlett Creek Steering Committee (the Committee) by resolution of Council. In addition, Alvin Danyluck and Robert Kelly, both Aldermen of the Town, were also appointed to the Committee. The Committee met and discussed issues of drainage in the watershed over an extended period of time. Additional engineer studies were commissioned at the request of the committee to look at the issue of flood retention ponds on the Austin and Jakymiw property. The validity of the petition was questioned and a legal opinion was obtained from Delbert O'Brien (former Chair of the Drainage Tribunal and now Drainage Referee). The May 11, 1993 Committee Minutes state: "In response to questions from the Committee members, the Clerk advised of the legal opinion supplied by Delbert O'Brien which concluded that Section 4(1)(c) of the Drainage Act provides clear authority for a Road Superintendent to sign a petition provided road drainage is part of the works".

The March 1, 1994 minutes of the committee state that: "there were five main issues identified through the Bartlett Creek Drain Steering Committee meetings in 1993, those being legal authority, proposed storage and diversion flow, environmental concerns, financing and existing flooding problems".

A resolution passed at the April 27, 1994 Public Works Committee (accepted by Council at its May 2, 1994 meeting) states: "Staff be directed to engage the consulting engineering services of the Wiebe Engineering Group and Philips Planning and Engineering to complete their respective portions of the work in accordance with the proposals submitted to and reviewed by the Bartlett Creek Drain Steering Committee".

At the April 26, 1995 meeting of the public Works Committee a resolution was passed extending the time to complete and submit the engineer's report on the outlet section of the Bartlett Creek Municipal Drain.

At the November 8, 1995 Public Works Committee meeting the following resolution was passed:

"That Wiebe Engineering Group be directed to finalize the Engineer's report for the outlet section of the Bartlett Creek effectively establishing this section as a municipal drain". The resolution was accepted by Council at its November 20, 1995 meeting.

At the April 7, 1997 meeting of council Mrs. Austin presented a petition signed by landowners of the Bartlett Creek drainage area requesting Council not proceed with the works under the Drainage Act.

At the July 12, 1997 meeting of public works the following resolutions were passed:

a) The Council direct the engineer for the Bartlett Creek Municipal Drain to assess all lands in the Town of Lincoln that are within the drainage area west of Bartlett Road and also within the Urban Area Boundary as a block pursuant to Section 25(1) of the Drainage Act.

b) The Council inform the engineer for the Bartlett Creek Municipal drain to include in his report that all property assessments less than $50.00 will be paid out of the general funds of the municipality pursuant to Section 61(3) of the Drainage Act

c) The engineer be granted an extension for the time to file the final report pursuant to section 39(1) of the Drainage Act.

These resolution were adopted by Council at its August 5, 1997 meeting.

The January 4, 1999 report on the Bartlett Creek Municipal Drain Downstream Section was filed at the Council meeting May 10, 1999. A meeting to consider this report was held June 14, 1999. The Court of Revision was held September 15, 1999.

In summary, in 1989 the Town identified a need to provide proper drainage for roads in the area of Bartlett Creek and a petition for drainage of roads was presented. The resulting 1992 report provided an outlet for roads as well as adjacent lands in the watershed. Adoption of this report was deferred by Council and a citizens committee appointed to study the issues. The end result of this study was a direction by Council to its engineering consultants to prepare two reports on the Bartlett Creek watershed. Wiebe was to prepare a report under the Drainage Act to provide an outlet from north of the urban area boundary of the Town northerly to Lake Ontario. Philips Planning was to prepare a report providing for drainage in the urban area of Bartlett Creek using the provisions of the Municipal Act. Wiebe filed a report dated January 4, 1999 which is the report under appeal.

The Issue

There are two issues before the Tribunal:

1. Are the assessments, as proposed by the engineer and confirmed by the Court of Revision, for the Bartlett Creek Municipal Drain Downstream Section, appropriate?

2. Should the report be modified because:

_ It is incomplete?

_ The benefits are not commensurate with the cost?

The Evidence and the Findings

At the hearing Mr. Wiebe, P. Eng., and Mr. Schachowskoj P. Eng., the engineers who signed the January 4, 1999 report on the Bartlett Creek Municipal Drain - Downstream Section, outlined the history of the project and the proposed work to be undertaken and briefly outlined the assessment processes followed in the report. Mr. Wiebe told the Tribunal that he viewed the proposed work as maintenance of the watercourse and so assessed the major portion of the work on the main channel to outlet liability (Outlet). The Tribunal then heard from the appellants.

Mrs. and Mr. Austin told the Tribunal that:

1. They own 31 acres in the watershed. The property roll number is 020 025 12000.

2. The property has been in Mrs. Austin's family since 1910.

3. They are appealing their assessment because they are of the opinion the work is for development and they do not intend to develop their land.

4. They have opposed the construction of detention ponds on their property since 1988.

5. The benefits are not commensurate with the cost since they are asked to pay $69.71 for the work and their property receives no benefit from the work.

6. Since there is no work proposed at Lake Ontario the outlet is already adequate.

7. Golden Horseshoe Trailer Park is developing and adding trailers on their land. The work required to accommodate this expansion should not be charged to the other landowners.

8. The Golden Horseshoe Branch of the Bartlett Creek Municipal Drain Downstream Section is a diversion from another watershed - the Lake Ontario Creek watershed - and this extra water is the source of damage to the Bartlett Creek.

9. The proposed low flow channel for fish is of no benefit to the landowners and so should be paid for by others.

10. The Drainage Act is not the correct Act to use for this work. The work should be done under development charges.

11. The petition is for road drainage but there is no benefit for the roads.

12. The soils in the area are well drained, and water from the escarpment is quickly absorbed. The ravine on their property has not flooded, not even in Hurricane Hazel.

13. The report is not finished. Page 44 of the report states detailed construction specifications will be attached to the tender documents. These details have not been made public.

14. The report refers to Drawing Number 6 and there is no Drawing Number 6.

15. Work in the upstream area has not been described in the report.

16. People in the Lake Ontario Creek watershed are being assessed for Bartlett Creek and should not be assessed.

17. There is inappropriate taking of land for the drain. The engineer is specifying a 12 meter working width on both sides of the drain and this is excessive.

18. The work is incomplete and misrepresents the future liabilities and future development that will take place. It has not been properly represented, future liability is considerable more than what is represented here.

The Austin's asked the Tribunal to find that the report not finished, the assessments are not appropriate and the cost should be paid by the town.

In response to questions from the Tribunal, Mrs. Austin said the property has been in her family since 1910 and she has known the property since the 1960's. The creek through the property is a watercourse that dries in the summer.

In a succinct and clear manner, Mr. Stuart Reimer told the Tribunal that he is in favour of the project in general and understands the legal necessity for implementing the project under the Drainage Act, but he believes the assessment made against his properties are excessive. He argued that:

1. His property is at the top of hill and drains into both the main and branch drain.

2. The land east of Sann road at Golden Horseshoe Court historically drained east but the land is flat and the water can be made to go any direction. This report makes it go west and therefore into the Bartlett Creek watershed rather than it natural direction.

3. The town needs the work so the town should pay for it.

4. The formula used by the engineer penalizes those with large properties, regardless of property value or potential benefit.

5. The policy of paying for assessments of $50 or less adds an additional burden to his property. Not only will he be charged his assessment for this project but his share of the accumulated $50 assessments absorbed by the general rate.

6. There are future liabilities associated with this project. If this project proceeds then it may be extended upstream in the future with additional costs charged to his lands. The potential magnitude of this unknown cost is worrisome to him.

7. He compared his assessment to those of other landowners in the area showing inconsistencies. In particular he noted that Golden Horseshoe Court is assessed $4,266 for the project while his land is assessed $4,491. Golden Horseshoe Court requested and is receiving a deeper outlet for drainage while the flow from his land will not be affected by this work.

8. He has tile drained his property and reduced the peak flows from his land. Some of his tile outlet into detention ponds on his land. Soil erosion has been reduced on his land. He took the water he collected to an outlet and this has not been considered in the engineer's assessment.

Mrs. Margaret Romagnoli told the Tribunal that she was speaking for herself and her sister Muriel Tufford. She said that her sister is on the family farm. Mrs. Tufford is assessed $3,223 but nothing has been changed for 150 years as far as drainage goes. She is assessed too much. This farm is already paying for the Gavora Ditch to the south. The drain will not help her. She also said that her property, Red Acres Farm, Lot 14, Concession 3 and 4, is also assessed for the Bartlett Creek Municipal Drain Downstream Section but nothing relative to drainage as changed on her land for the past 100 years either. She asked the Tribunal to reduce the assessment on both properties.

In response to questions from the panel Mrs. Romagnoli agreed that if there is runoff from her land the water will flow to the Bartlett creek.

Ernest Kowalchuck told the Tribunal that he owns the land next to the Bartlett Creek at Lake Ontario. He just purchased the land last year. His concern is the state of the outlet. There is a blockage in the creek at the lake. In winter ice blocks the outlet. In summer, the lake washes up stones and blocks the outlet. The water flowing down the creek deposits silt so there is about a foot of sludge between the road culvert and lake. He said that the only access for equipment to get to the creek is through his neighbours land as his side of the creek bank is treed. He argued that it is not fair for the municipality to pay once for access to the creek in this area when frequent work is required to keep the creek flowing.

Eileen Roach an assessed owner, told the Tribunal that her house is beside the creek and has been there for the past 100 years. She said she gets flooded but not from the overflow from the creek but as a result of ice build up at the road culvert. She said a larger culvert is needed to pass the ice.

David McMaster, an assessed owner in Block A, told the Tribunal that he has already paid to improve Bartlett Creek as part of the purchase price of his house. He argued that charges based on the assessment on a parcel of land is unfair. His lot has a house on it and the neighbours does not. Both lots contribute to the problem equally but he has to pay more because of his house. He said this is unfair and the Tribunal should change the assessment to a flat rate per lot.

Christopher Hanson, assessed owner, told the Tribunal that he objects to being assessed. In his opinion the problems began when man interfered with the natural channel and now he is asked to pay to correct work others did.

Barb and Bob Fry, assessed owners, told the Tribunal that they live on Aberdeen Road and their property is assessed into both the main drain and the Golden Horseshoe Branch. They said that their land cannot drain to the Golden Horseshoe Branch as their neighbour has filled his lot and the Town has installed a culvert under Aberdeen road to take the water to the Bartlett Creek Municipal Drain Downstream Section Main Drain.

Mr. Doug Bausfield told the Tribunal that he recently purchased a farm in the drainage area near Sann road. He said there is a berm along his west boundary and the farm drains to the east. Water can flow onto his land but does not run off. He told the Tribunal that he cannot afford to pay his assessment and urged the Tribunal to find that future developments should pay the cost of this work.

Michael King, assessed owner, argued that the petition is for the drainage of roads and once the other affected owners have been identified in the report they should have the opportunity to count for or against the petition.

In response to the evidence presented by the appellants and the other assessed landowners Kent Schachowskoj told the Tribunal that:

1. The work on the main drain consists generally of channel improvements, culvert works and erosion protection along Bartlett Creek from its outlet into Lake Ontario to just east of the existing culvert crossing of Bartlett Road.

2. The work along the Golden Horseshoe Branch extends from its outlet into the Bartlett Creek main channel, just south of the culvert crossing the CN Railway tracks, and extends east along the railway embankment across Sann Road to the east limit of the Golden Horseshoe Court Development property (Roll No. 3-235).

3. No work is proposed west of Bartlett Road or south of John Street. There is no work on the Austin or Reimer properties included in this report.

4. Since the beginning of the preparation of the 1999 report it has been understood that works in the urban area are not proposed to be implemented under authority of the Drainage Act. If there are petitions under the Drainage Act in the future, those petitions will be addressed at that time. No one can predict whether that will occur or what the outcome may be.

With respect to assessments Mr. Schachowskoj said that the division of estimated costs for the Bartlett Creek Municipal Drain are as follows:

Main Drain

Drain repair and maintenance $192,320

Channel relocations $ 38,960

Culvert works on road and utility allowances $369,050

Golden Horseshoe Branch $ 49,590

Total Cost of Drainage Works $649,920

Of these proposed costs, the channel relocation ($38,960) is being wholly assessed to the landowner requesting this work, N. M. Bartlett Inc. (Roll No. 2-64). The proposed culvert works on road and utility allowances ($369,050) is being totally assessed as a special assessment to the affected road authority and/or utility (in this case Greenlane Road to the Town of Lincoln, and the CN Railway crossing to CN). The cost for drain repair and maintenance along the main channel of Bartlett Creek ($192,320) is assessed to all landowners within the drainage area for Bartlett Creek that use this section of the Creek either directly or indirectly as an outlet for runoff for their properties. Similarly, the cost of the works on the Golden Horseshoe Branch ($49,590) is assessed to all lands that utilize this drainage course either directly or indirectly as an outlet for runoff from their properties. Landowners that contribute runoff to the Golden Horseshoe Branch are also assessed for works to be implemented on the Bartlett Creek Main Drain as the Golden Horseshoe Branch uses the Main Drain as an outlet. The assessments against lands and roads within the Bartlett Creek watershed for drain repair and maintenance (both on the Main Drain and on the Golden Horseshoe Branch) have been assessed for benefit and/or outlet.

Only those lands that abut the proposed drains have been assessed for Benefit.

All of the lands and roads that contribute drainage to the Bartlett Creek Main Drain or the Golden Horseshoe Branch as is shown on the Watershed Plan, have been assessed for outlet. The assessments for outlet were based on contributing area, land use and channel travel length. The channel travel length is defined as the total length of the proposed drain that runoff from a property travels along to reach the outlet into Lake Ontario. Properties that drain into the Golden Horseshoe Branch are assessed for outlet on the Bartlett Creek Main Drain, as the flow from the Golden Horseshoe Branch travels a certain distance along the Bartlett Creek Main Drain prior to discharging into Lake Ontario.

The lands in Block A - essentially the existing urban area of the old Beamsville - are assessed as a block to comply with Council's instruction. The assessment for Block A is for outlet only.

To determine individual property assessments for outlet a factor for each property was derived based on area contributing drainage, a runoff factor to represent land use, and the travel length down the channel. The runoff factors were as follows:

• significant areas of forested land, runoff factor equal to 1

• agricultural and/or rural lands, runoff factor equal to 2

• developed urban lands (Block >A=), runoff factor equal to 6

• roads, runoff factor equal to 8

For those properties within Block A and those upstream of the limit of the Bartlett Creek Main Drain, the travel length would be the total length of the Bartlett Creek Main Drain which is 2,692 metres.

For those properties beyond the upstream limit of the Golden Horseshoe Branch, the total travel length along the Golden Horseshoe Branch would be the distance along the Branch Drain from the Sann Road crossing to its outlet into the Main Drain, a distance of 568 metres. In addition, they would be assessed for the travel length along the Main Drain downstream of where the Golden Horseshoe Branch enters the Main Drain, a distance of 2,190 metres.

For Block A: The outlet factor = 250.61 hectares X 6 (runoff factor) X 2,692 metres = 4,047,852.72. This outlet factor is divided by the total of all outlet factors for every property in the watershed (in the case of the Main Drain, is equal to 9,040,593.97), and this percentage (0.4477419) is multiplied by the total outlet liability assessment of $180,528 to arrive at the outlet assessment for Block A of $80,830. Similar calculations were applied to all other properties.

It is Mr. Schachowskoj's understanding that the Council direction that assessments of $50 or less are to be paid from general funds only covers those properties outside of Block A. This statement was included in the report at the request of Council.

In response to Mr. and Mrs. Austin Mr. Schachowskoj said that:

1. The assessment against the Austin property is $61.86. This is entirely for outlet. The proposed work will improve the hydraulic capacity of the channel to provide an sufficient outlet for the upstream flows under existing conditions. The proposed works are a necessary and beneficial improvement to the outlet section of the Bartlett Creek, regardless of the amount or extent of development taking place in the upstream urban area. The benefits are commensurate with the estimated cost of the work.

2. Level surveying of the existing watercourse along the south CN Rail embankment, west of Sann Road, indicates that it flows from east to west, and empties into the Bartlett Creek just south of the CN Railway culvert crossing. This field survey was undertaken in 1991. The proposed Golden Horseshoe Branch Drain is an existing tributary watercourse to the Bartlett Creek at that date.

3. Along the proposed Municipal Drain section of Bartlett Creek, three road and one utility culvert crossings were identified. Of those four crossings, only the culvert at Sandy Cove Drive has sufficient capacity to provide a level of service in accordance with the Town design criteria. The culvert crossings at the QEW (which includes both the North and South Service Roads), Greenlane Road, and the CN Railway crossing require capacity upgrades to provide a proper level of service. There is a significant benefit to the roads if the work is completed.

4. The draft report had six drawings, however, one was eliminated in the draft stage when a landowner withdrew a request to relocate part of the drain on his property. The text portion of the report was not revised to reflect the deletion of this drawing. In fact Drawing No. 6 which is referred to in the text of the report is Drawing No. 5. Mr. Schachowskoj asked the Tribunal to order the appropriate change in the text of the report to reflect this fact.

5. No lands are being taken under this proposed project, only the establishment of a working space to construct the proposed works, and for future maintenance. The working space is not an easement. The establishment of working space on both sides of the drains gives the municipality the flexibility to minimize the potential impacts and/or damages to lands adjacent to the proposed drain. With respect to the 20 metre wide working space at roads, this refers to the width of the road allowance only. The working space along roads does not affect adjacent properties. Since no work is being proposed on the Austin property, no working space is being established on their property.

6. All debris and spoil material is to be trucked away.

Mr. Schachowskoj pointed out that the questions asked by Mrs. Austin and the answers provided by him at this hearing are similar to the questions and answers that have been asked and given on numerous other occasions, and a significant quantity of time, effort, and money has been expended by the Town staff and by Wiebe to respond to these objections, comments and concerns.

In response to Mrs. Austin's argument that the report was not finished because it refers to specifications to be attached to the tender documents, Mr. Wiebe told the Tribunal that no additional specification is required. The information to be attached to the tender documents for the contractors is the detailed description of the construction that is to be done on each property. This description is contained on pages 23 to 28 of the report.

In response to Mr. Reimer's concerns Mr. Schachowskoj told the Tribunal that:

1. Mr. Reimer owns four properties totaling 24.6 hectares.

2. All of these properties are assessed for outlet only using the procedure described above.

3. Three of the properties drain through the Golden Horseshoe Branch to the main drain while part of the fourth property drains to the main and part through the Golden Horseshoe Branch. For the fourth property he used a weighted average travel length for the main and branch drains. The Reimer property has been assessed using a consistent methodology compared with other properties in the watershed.

4. The differences or inconsistencies Mr. Reimer refers to in the schedules for each drain arise because the outlet assessment for each drain, spread over the tributary drainage area of each drain, results in a higher average cost per hectare on the Golden Horseshoe Branch Drain an on the Bartlett Creek main drain.

Mr. Schachowskoj said that the Romagnoli and Tufford properties were assessed for outlet only and on the main drain only These properties have been assessed using methodology consistent with the rest of the owners in the watershed.

In response to concerns raised by Mr. Kowalchuck and his neighbour Mr. Mermuys, Mr. Schachowskoj said that the three upstream sedimentation ponds should reduce the need to clean the channel downstream of Cove Road. He also noted that the cost of maintenance is assessed against the outlet assessments only and since Mr. Kowalchuck and Mr. Mermuys are at the outlet of the drain their future assessments would be small. He said that since these properties are located at the extreme downstream end of the proposed drain and all sediment from upstream could eventually be deposited in the drain abutting their properties, he recommends that this section of the municipal drain be treated as a sediment basin with regard to future maintenance, and that sediment be removed and trucked away at the expense of all upstream lands.

In response to concerns raised by Mrs. Roach on flooding from ice in the culvert, Mr. Schachowskoj noted that the municipality is not responsible for damage caused by a drain being blocked by ice or snow. However, the municipality has in the past responded to ice blockages at this culvert and will likely continue its past practices.

In response to concerns raised by Mr. and Mrs. Frey, Mr. Schachowskoj said that the report was based on the best available information at the time the work was done. Because of the extensive consultation on this project much time has passed since the land was examined to determine the drainage boundaries. Aberdeen Road was the drainage divide between the Bartlett Creek Main Drain and the Golden Horseshoe Branch Drain, in that area of the watershed. He said he relied on landowners to inform him of these types of changes to the drainage of their properties that occur prior to adoption of the engineer's report by the municipality.

Mr. Schachowskoj noted that Mr. Moniz and Mr. Doug Bausfield, who on Mr. Moniz's behalf, questioned the size of the assessment on their property and whether they received any benefit from the proposed works. They noted that the property drains predominantly to the east and that they do experience some minor drainage problems on their property. It should be noted that although their property drains to the east, it is intercepted by the west roadside ditch for Sann Road and directed north and eventually into the proposed Golden Horseshoe Branch Drain. The calculation of travel length on the Golden Horseshoe Branch is based on a weighted average by area of the total length of the branch (75% of 568m = 426 m), recognizing that only a portion of the property drains east and into the Sann Road ditch. Since the property uses the drain as an outlet for drainage water it is assessed in the same manner as all other properties were assessed.

Overview of the situation

The Tribunal examined the evidence filed and submissions made. The powers of the Tribunal are outlined in Section 51 of the Act.

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

The Bartlett Creek drainage area includes the former community of Beamsville and significant surrounding agricultural lands, extending from the top of the Niagara Escarpment all the way to Lake Ontario. In recent years a great deal of urban development has taken place within the drainage area at the Beamsville location. The original petition in this case was in regard to roads that serve both Beamsville and the agricultural lands. The 1992 engineer's report brought forth a design that was an urban-standard storm drainage system within the urbanized areas and agricultural drainage system in the balance of the lands. After substantial input by landowners and receiving professional advice, the municipality determined that the urbanized area drainage problems would be dealt with under other legislation, and that the drainage works in the rural area would be completed under the Drainage Act.

Once the urban area drainage works are omitted, the works proposed in the 1999 report are not exactly, but substantially, the same as in the original 1992 report. The following is a brief comparison of the principal points.

Table 1

1992 REPORT

1992 COST

1999 REPORT

1999 COST

Main drain

4,192 m channel

392,000

2,692m channel

316,000

allowances

29,000

8,540

interest

48,000

15,850

prior report + interest*

127,915

Report

40,000

75,500

habitat study

3,430

legal opinions

2,270.00

expenses

4,000.00

2,000.00

tendering, etc.

18,000.00

13,000.00

GST

32,000.00

35,025.00

Total

563,000.00

600,330.00

Branch No. 1

Total Cost

574,000

0

Branch No. 2

Total Cost

467,000

0

Horseshoe Br.

756m of channel

14,000

771m of channel

15,500

Contingency

1,500

2,200

Allowances

3,000

2,440

Interest

2,200

1,200

Report

4,000

8,130

Tender etc.

3,700

1,100

GST

1,600

2,705

Prior Report + interest

9,985

Total

30,000

49,590

(*$87,376.40 prior consulting fees, $40,538.57 interest - these figures were given to the engineer by the municipality, after the engineer completed the first report dated January 4, 1999, and he simply inserted these figures in his second report dated January 4, 1999. The Tribunal was not given any other breakdown of these figures to determine how much of the consulting fees pertained to the report and how much to subsequent inquiries or the Master Drainage Plan.)

It should be noted that the engineering work in preparation for the 1992 report was very extensive, and included surveying the entire length of the main drain, which was 55% longer than it is proposed now, surveying and inspections of road crossings that are not included in the present main drain, as well as rock probing along the entire length at 50m intervals.

The approach of the engineer in assessing out the Main Drain and the Golden Horseshoe Branch parts of the project was essentially the same in the 1992 report and in the 1999 reports. The railway and road crossings were assessed to the railway and road authorities. Allowances were calculated on the lands taken and the benefit assessments were a proportion of the allowances. Special benefits were included in the benefit allowances. The balance of the cost of the works was assessed out as outlet. For the 1999 report, the engineer was directed to do block assessment in Block A. The engineer assigned a runoff factor of 6 to the lands in Block A, apart from the roads. Roads were assigned a runoff factor of 8. For the balance of the lands, outside of Block A a runoff factor of 2 was used, except in the cases of wooded land, where a runoff factor of 1 was used.

In addition to the more detailed items dealt with below, the Tribunal has four very major concerns.

Firstly, what should be the basic approach in assessing the project? The Tribunal has dealt with somewhat similar situations in previous cases where the Tribunal determined that where a project of this kind is designed, the rural lands should be assessed only for the costs of the drain that would be associated with a drain designed and built to the rural requirements, and that the urbanized/developed areas should be charged entirely for the costs associated with the design and construction of higher level drainage works. What now remains of the project is the rural drain which has been assessed as ($180,528 outlet)/ [ $231,280 total less $28910 special benefit to N.M. Bartlett]) 8.9% outlet, on the Main Drain and ($32,605/$49,590) 86 % to outlet on the Golden Horseshoe Branch. While the municipality has the absolute right to require the engineer use block assessment in an area defined by the municipality, the engineer has to make sure that the application of the block assessment meets the overall fairness test in regard to the block and the rest of the drainage area. The Tribunal has no evidence on this point, and merely directs the attention of engineers in the future to the need to address this concern as part of the engineer's duties under s. 11 of the Act.

Secondly, there is a question as to what amounts are properly included in the costs of this project. An examination of Table 1 shows that the total engineering and expenses costs for the 1992 initial urban-rural project came to ($44,000 main, $47,000 Br 1, $33,000 Br 2, $4,700 Golden Horseshoe Br) $128,700, and that the total engineering and expenses for the reduced 1999 project came to ([75,500 + 2,000] main and [8,130 + 100] Golden Horseshoe) $85,730. How do these costs properly relate to what now remains of the project?

Clearly there is a long period of consultation and additional investigations in this project. Is it fair to charge to the drain all the costs of all the subsequent studies, considerations and reconsideration? A further subset of this second question relates to the appropriate amount of financing/carrying charges in this case. The most substantial engineering work that directly benefits the project was done in 1989. Is it fair to charge all of the carrying costs to the drain when the municipality was the one that was in control of the process? Should the landowners have to pay for all these expenses for the last ten years when they have not actually had the benefit of the drainage works?

Thirdly, the assessment schedule is based on conditions that prevailed ten years ago. The evidence is clear that there is a lot of development in the area. How appropriate is it to rely on ten-year-old conditions? The engineer indicated at the hearing that he has not been on site for the past four years.

Fourthly, by calculating the benefit as a percentage of the allowance, the engineer did not follow the proper principles in assessing the statutory benefit to the lands on the drain.

The Tribunal finds that there is overwhelming evidence that the project should go ahead, and with as little delay as possible. The alternatives for the Tribunal are really only two: the report can be referred back to this engineer or another engineer for further consideration in the light of the directions given by the Tribunal, or in the spirit of s. 51 of the Act, the Tribunal can order such changes to the assessment as will reach a fair result. The Tribunal has weighed all aspects of the two alternatives, including that of cost, and has decided in favour of the second alternative.

Validity of the Petition and the Report

The Tribunal notes that there are several different ways that the Bartlett Creek drainage problem could have been solved. Each approach has advantages for some individuals and disadvantages to for others. The evidence indicates quite clearly that the Council struggled with the issue of how to authorise and pay for the work on Bartlett Creek. However, once the Council concluded that the Drainage Act was the vehicle to address this problem and a valid petition was provided, arguments at the Tribunal hearing on whether a different statute or methodology should be used is a waste everyone's time. The Tribunal does not have the authority to direct a municipality to construct a drainage works under a different statute. Once the municipality has accepted the petition and started the process of the Act then the duty of the Tribunal is to hear and decide appeals on the assessments, the amount of the allowances and the technical aspects of the engineer's report.

The Tribunal is convinced by the evidence in the Council minutes that the municipality believes the petition for this work is valid. The Tribunal concludes from reading the Council minutes that the engineer was properly appointed under the Act and the time for filing the report was extended. In the event that the time for filing the report was not extended to the actual date the report was filed this can be corrected now by the Council of the municipality passing a resolution in accordance with Section 39(1) extending the time for filing the report. The Tribunal notes that this resolution can be passed before or after the expiry of the six month period provided in the statute for filing the report.

39(1) The engineer shall file the report with the clerk of the initiating municipality as soon as it is completed or in any event within six months after the appointment of the engineer or within such further time as may be extended before or after the expiry of such six-month period by the council of the municipality by resolution.

Mrs. Austin raised a number of issues at the hearing relating to the authority for the work and her desired method of charging the cost of the work. She had already raised these same issues several times in the Council meetings and as a member of the Committee. None of these issues are proper appeals before the Tribunal.

Mrs. Austin claimed that the report was not complete because it refers to detailed construction specifications to be attached to the tender documents. The Tribunal accepts the evidence of Mr. Wiebe that the detailed specification is the information contained on pages 23 to 28 of the report. The Tribunal finds that the report is completed insofar as it contains the specification referred to on page 44.

Mrs. Austin claimed that the report refers to Drawing No. 6 and this drawing does not exist. Mr. Schachowskoj explained that Drawing No. 5 is referred to in the text of the report as Drawing No. 6 and asked the Tribunal to order an appropriate amendment to the report to correct this oversight. The Tribunal accepts the evidence of Mr. Schachowskoj and will issue an order correcting the text of the report.

Mrs. Austin claimed that work in the upstream area is not described in the report. The report covers the work contemplated at this time to address the watershed issues in the outlet section of Bartlett Creek. Any future work upstream of that described in this report will be the subject of a new report, if it is done under the Drainage Act. If it is done under another statute or by agreement of owners it will be governed by that statute. It is unreasonable to expect the engineer for the Bartlett Creek Municipal Drain - Outlet Section, or the Tribunal, to predict the future.

Benefit not commensurate with cost

Mrs. Austin appealed that the benefit of the work was not commensurate with the estimated cost. The only evidence she provided on this issue is her claim that she is assessed $67.71 for the work and she receive no benefit from the work. In considering the issue of benefit vs. cost the Tribunal expects to receive evidence that the overall cost of the project exceeds the overall benefit of the project. The benefit that an individual property owner will receive from any work depends on what part of the advantages that the project provides that the owner chooses to use. The Tribunal looks at the potential advantages to the land and not necessarily at the desires of the current individual landowner. The Tribunal dismisses Mrs. Austin's appeal that the benefits are not commensurate with the cost on the grounds that no evidence was presented on this issue.

Assessment appeals

Mrs. Austin appealed the assessment against her land. The only evidence on assessment provided was that she believes the work is to facilitate development and therefore she should not pay any of the cost. Mr. Schachowskoj presented detailed information on the methodology used in calculating assessments. While the Tribunal would have arrived at the figures for the main drain in a different way the final result of the division of the cost of the work would not significantly change.

Mr. Reimer appealed that the assessment against his land was too high. Mr. Schachowskoj provided details of how the assessments were calculated. The Tribunal understands that Mr. Schachowskoj used a consistent methodology throughout.

In accordance with the usual practice of the Tribunal, all assessed owners had been made parties to the appeal and they were permitted to participate in the appeal hearing by giving evidence. As recited earlier in this decision, some parties complained of their own assessment, others wished some alterations made to the project. The Tribunal very much appreciates the input from all assessed owners at these hearings. When it comes to providing a remedy, however, the Tribunal must keep in mind that non-appellant parties can only have limited expectations. The give and take between the non-appellant parties and the engineer frequently resolves minor matters and the end result is a better report. However, the engineer has not had any advance notice of the issues that the non-appellant parties raise, and therefore, if there are issues that the engineer cannot reasonably be asked to deal with off the cuff, so to speak, those issues will generally be left unresolved. For a full and fair consideration it may be that the hearing would have to be adjourned, but such an adjournment would have to be at the cost of the non-appellant party. An instance in this case is the position of Mrs. Fry that she should not be assessed on the Golden Horseshoe Branch because her lands now drain only to the Main Drain.

With regard to the non-appellant owners who complained about their assessment, the Tribunal finds that the methodology used by Mr. Schachowskoj was consistent.

However the Tribunal disagrees with the basic division of the cost between benefit and outlet for the Golden Horseshoe Branch. When the Tribunal examined the estimated cost of this project there is a significant portion of the cost assigned to deepening the channel downstream from Golden Horseshoe Court for the benefit of Golden Horseshoe Court Ltd. (property Roll Number 3-325). Mr. Schachowskoj told the Tribunal that an adequate outlet for the upstream lands could be obtained without this deepening. The cost of the deepening is not itemized in the report so the Tribunal had to select a figure to assign to this item. In normal circumstances the Tribunal would expect the special benefit assessment to be in the range of one third to one half of the cost of the work. The Tribunal believes that an assessment of $4,000 for special benefit should be made against the land of Golden Horseshoe Court Ltd. for deepening the channel. There will be a corresponding reduction in the outlet assessments for those properties assessed for the Golden Horseshoe Branch and this reduction will be pro rated against the properties listed, excluding municipal roads, in outlet column on pages 60 and 61 of the January 10, 1999 engineer's report.

There appears to be some confusion on the matter of block assessments. The relevant section of the Act is as follows:

25(1) The council of the local municipality may direct the engineer to assess as a block, a built-up area designated by the council, and the sum assessed therefor may be levied against all the rateable properties in the designated area proportionately on the basis of the assessed value of the land and buildings.

Once the Council has decided that an area is to be assessed as a block the statute requires the assessments to be divided on the basis of the assessed value of the land and buildings.

Mr. Reimer complained about the fairness of the Town paying assessments under $50 from the general rate. Mr. Schackowskoj told the Tribunal that it is Council's intention that the $50 payment provision only apply to properties outside of the urban area. The section of the Act is as follows:

61(1) The council of each local municipality that is required to raise the whole or any part of the cost of the drainage works shall by by-law impose upon the land assessed for the drainage works the assessment with which it is chargeable, and the amount so imposed is payable in such installments as the council may prescribe.

61(2) The council of any local municipality may provide that persons whose lands are assessed may commute for a payment in cash the assessments imposed thereon and may prescribe the terms and conditions thereof.

61(3) Where the assessment against any parcel of land is $50 or less, the council of the local municipality may provide that the assessment shall be paid out of the general funds of the municipality or that the assessment shall be paid in the first year in which the assessment is imposed upon the land assessed.

It is up to Council acting under a proper by-law, not the engineer, to make a determination under this section. If it is the intention of Council to apply this section of the Act, it appears that Council should be clear whether this provision applies to the entire project or just to those lots outside Block A. Such provisions should not properly be in the engineer's report and the Tribunal orders this part of the report struck out.

Quality of the report

When the Tribunal examined the engineers report it noted that the details on how assessments were arrived at and how allowances were calculated were not included in the report. For some time not the Tribunal has been directing engineers to provide more detail on these issues in the report. Had the details Mr. Schachowskoj provided at the hearing been provided in the report much of the Tribunal time at this hearing might have been avoided. The Tribunal was also surprised to learn that the engineers had not been on the site in the past four years. This is a rapidly growing area and it appears that the field data was gathered about ten years ago.

The engineer did not use the appropriate principles in calculating the benefit assessments. The engineer did not separate out the special benefits in the report or the assessment schedules. The engineer included Net Assessment figures. Net Assessment is not a statutory component of the schedules and the Tribunal has often and roundly criticized its use as inappropriate and misleading.

Administrative costs

The Tribunal examined the administrative costs included in the report. Considering the work contemplated in the report is essentially a rural drain designed to rural standards it appears that the administrative costs are high. When questioned, Mr. Wiebe told the Tribunal that, if it felt the administrative costs were high the Tribunal should look to the provincial average figures from OMAFRA for guidance on setting a cost chargeable to the drain. The provincial average cost for engineering and interim financing is in the order of 23% of the construction cost. Taking into consideration the extended time and extensive consultation for this report the administration should be higher than an average drain. In the original draft of the January 4, 1999 the overhead cost was set at ($112,050 + $28,910 GST) $140,960 for the main drain and ($10,430 + $2,330 GST) $12,760 for the Golden Horseshoe Branch. In the version of the January 4, 1999 report adopted by Council the administration costs are ($239,965 +$35,025GST) $274,990 for the main and ($20,345 + $2,705 GST) $23,050 for the branch drain. The difference is composed of prior consulting, carrying charges and the associated GST. A review of the Council minutes indicates that various charges were incurred. In the March 18, 1996 minutes of Council when questioned on the issue of engineering fees the Director of Public Works advised council that it is difficult to break down which extra costs relate to which requests for information. He suggested that additional work has been required by both Town staff an other interested parties and highlighted that there have been a number of extra meetings and reviews required. The Tribunal is of the view that the project ought not to be charged costs related to Council deliberating the question of how to proceed and which Act to use to authorize the work. In the absence of better evidence the Tribunal decided that the prior consulting and carrying charges, along with the associated GST ought not be charged to the Bartlett Creek Municipal Drain - Downstream Section or the Golden Horseshoe Branch Drain. The Tribunal will order these costs deleted from the estimated cost of the work. The figures allowed by the Tribunal for the engineering costs specifically include all interim carrying costs that are properly chargeable to this project.

Appeal costs

The Tribunal wishes to reiterate that projects under the Act are community projects for the use and benefit of all of the landowners who are in the watershed. Downstream owners have an obligation to pay their share of containing the runoff water in a channel to convey the water to an outlet. The owners of the high lands have an obligation to assist in paying for the construction of the outlet to accommodate the water that flows from their lands into the outlet drain. There is an interest and responsibility on all landowners in the area that the drainage work is functioning adequately and properly.

When a hearing is held the municipality incurs the cost of serving the notices, providing the hearing room, and having its staff and consultants present to respond to the appeal. The province incurs the cost of the hearing panel. Someone must pay these costs. The administrative cost is paid from general funds but the cost of consultants etc. are either charged to the project or, if so ordered by the Tribunal, is divided among the parties. These costs can amount to thousands of dollars and the Tribunal is obliged to decide whether it is appropriate for these costs to be charged to the project.

When an appellant's financial exposure on the project is a tiny fraction of the overall cost, such an appellant should weigh the appellant's own financial contribution to the project in the light of the overall cost of the appeal and the benefit of the appeal to the project. No project is perfect and no hearing can make it perfect. Is the result sought reasonable, is there good evidence presented, and is there a reasonable correlation with the cost of obtaining the result?

In this case the majority of the panel is of the opinion that the appeal of Carol and Edward Austin is a frivolous appeal. They provided no evidence on the two issues that the Tribunal can deal with - the issue of benefits vs. cost and the issue of the amount of their assessment. The majority of this panel feels costs of $750 should be awarded against the Austins in favour of the project.

The Act specifies that, where an engineering firm is appointed to prepare a report, the firm is to designate an engineer to be in charge of the project.

8(2) Where the engineer appointed under this Act is a corporation, association or partnership, the appointee shall, within ten days of the date of appointment, notify the council of the name of the individual engineer who will have charge of the project and who will remain in charge until the report is filed and if for any reason the designated engineer ceases to be employed by the appointee, the appointee shall within ten days of such time notify the council of the name of his or her replacement.

While the Tribunal appreciated the input from both Mr. Wiebe and Mr. Schachowskoj, the Tribunal expected that all of the necessary evidence for the hearing could have been presented by the engineer designated to be in charge of the project. Therefore, the Tribunal decided that only the cost of one engineer for the two days of the hearing and the preparation time of one engineer can be charged to the project.

ORDER OF THE TRIBUNAL

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

The appeal of Carol and Edward Austin under Section 48 of the Drainage Act is dismissed.

10 The appeal of Carol and Edward Austin under Section 54 of the Drinage Act is dismiessed.

20 The appeal of Stuart Reimer under Section 54 of the Drainage Act is partially granted.

30 Before giving third reading to by-law 99-77 the report and schedule of assessment is to be revised by:

_ Striking out the benefit assessment against the lands of N.M. Bartlett Inc. Roll number 2-064 $39,063 and inserting instead the sum of $103 as benefit and $38,960 as Special Benefit to reflect that this special benefit assessment is the entire cost of relocating the drain on the N. M. Bartlett Inc. property.

_ Striking out the $1,100 benefit assessment against the lands of Golden Horseshoe Court Ltd. (Roll Number 3-235) where it appears on page 61 of the report and substituting therefore the sum of $5,100.

_ Reducing the outlet assessment against the lands (but not the roads) assessed for the Golden Horseshoe Branch by the sum of $4,000 on a pro rata basis.

_ On page 48 deleting Item 2 (Prior Consulting and Carrying charges $127,915) under the heading Administration Costs and reducing Item IV GST from the sum of $35,025 to the sum of $28,910. The Total Estimated Costs- Bartlett Creek Municipal Drain-Main Drain is reduced from $600,330 to $466,300. This will result in the assessment schedule for the Bartlett Creek Downstream Section Main Drain totalling more than the estimated cost. When the actual allowable cost is known this cost is to be pro rated over the assessment schedule as amended by this decision of the Tribunal.

_ On page 51 deleting Item 2 (Prior Consulting and Carrying charges $9,915) under the heading Administration Costs and reducing Item IV GST from the sum of $2,705 to the sum of $2,330. The Total estimated costs- Bartlett Creek Municipal Drain Golden Horseshoe Branch is reduced from $49,590 to #39,300. This will result in the assessment schedule for the Bartlett Creek Municipal Drain Golden Horseshoe Branch totalling more than the estimated cost. When the actual allowable cost is known this cost is to be pro rated over the assessment schedule as amended by this decision of the Tribunal

_ All references in the text of the report to Drawing No. 6 are to be changed to Drawing No. 5

_ The entire last paragraph beginning on Page 41 and ending on Page 42 beginning with As per Section 61(3) of the Drainage Act, Lincoln Town Council have resolved that those property assessments less than $50.00 are to be paid out of the general funds of the municipality is to be deleted from the report.

_ On Page 23 of the report under Landowner 2-194 and 2-192 add under the description of work the following: For future maintenance this section of the drain is to be treated as a sediment basin and sediment is to be removed and trucked away at the expense of all upstream lands.

_ The column headed Net Assessment in the various assessment schedules shall be deleted.

_ The assessment schedules shall be revised in accordance with the above direction at the cost of the engineer.

40 It is ordered that Carol and Edward Austin pay costs in the sum of $750 to the Town of Lincoln to be credited to the account of the Bartlett Creek Municipal Drain - Downstream Section. Such costs to be paid within 45 days of the date of this decision. If unpaid at the expiry of the 45 day period the Council of the Town of Lincoln is directed to add the sum of $750 to the taxes in arrears on property Roll Number 020 025 12000 E & C Austin. This $750 is not to be considered eligible for any provincial grant calculations.

50 It is ordered that only the cost of one engineer preparing and attending the hearing may be added to the account of the drain and charged to the project.

60 The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.