The Corporation of the County of Elgin v. Municipality of Central Elgin, 2000 ONAFRAAT 7

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Greer Drains #1 and #2 Outlets Municipality of Central Elgin

Greer Drains #1 and #2 Outlets (RE) 2000 ONAFRAAT 7

STATUTE: Drainage Act

HEARING: April 19, 2000

DATE OF DECISION: April 26, 2000

2000-07

NEUTRAL CITATION: 2000 ONAFRAAT 7

Greer Drains #1 and #2 Outlets Municipality of Central 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 Appeal Tribunal by The Corporation of the County of Elgin under Sections 48 and 54 of the Drainage Act (the Act), regarding the Greer Drains #1 and #2 Outlets in the Municipality of Central Elgin.

Before: Jim Rickard, Chair; Andrew Osyany, Vice-Chair; Bill Sears, Vice-Chair

Appearances: Clayton Watters, Manager Engineering Services, County of Elgin, appellant. Peter Dutchak, Engineering Technologist, County of Elgin, appellant. Bill Veitch, P. Eng., on behalf of the respondent the Municipality of Central Elgin. Lloyd Perrin, Coordinator of Physical Services, Municipality of Central Elgin Anne Vanderbrink, assessed owner. Bruce Van Kemenade, assessed owner.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the County of Elgin, St. Thomas, Ontario, on Wednesday April 19, 2000 commencing at 9:00 o’clock. The Corporation of the County of Elgin (the County) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act), from the November 26, 1999 report of W. H. Veitch, P. Eng., respecting the Greer Drains #1 and #2 Outlets in the Municipality of Central Elgin (the Municipality).

Ken Sloan, Administrator-Clerk of the Municipality 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 November 26, 1999 engineer’s report signed by W. H. Veitch (Bill Veitch) on the Greer Drains #1 and #2 Outlets in the Municipality parties to this hearing. Affidavit proof was filed with the Tribunal that all parties have been served with notice of this hearing.

The Background

The Greer Drain is an existing drain constructed about 90 years ago under the authority of a predecessor to the present Act. The land in the upper watershed can be characterised as fairly flat with no distinctive watershed divide. The middle portion of the watershed is rolling with defined courses that the surface water follows to the lower watershed where the water enters a well defined watercourse. The portion of the Greer Drain that is subject of this report is Branch 1 and Branch 2 which are located in Lots 20, 21 and 22, Concession 6, in the former Municipality of Yarmouth, now in the Municipality of Central Elgin.

A petition for drainage works was filed with the Municipality of Central Elgin for work on the Greer Drains #1 and #2 on July 8, 1999. Mr. Van Kemenade (Lot 22, Concession 6) originally signed the petition. On July 26, 1999, Mr. Vanderbrink (Lot 21, Concession 6) added his name to the petition. An on-site meeting was held on August 4, 1999 at the Vanderbrink business on Quaker Road (County Road 36).

During the “on-site” meeting, the owners indicated that there have been problems for a number of years with these drains even after small rainfall events. The problems included ponding and flooding of properties upstream of the County Road, blowouts of the 7 inch tile downstream of the County Road, and blockage or lack of runoff at the outlet to the drain tiles. It was noted that the ponding and blow out problems appear to have become more severe since the County upgraded the Road in the early 1970’s. Mr. Van Kemenade indicated that he has repaired the drain himself during the last number of years.

The works recommended in the report commence at the upstream end of the existing crossings of Country Road 36 for both drains, and continue downstream until sufficient grade is available to convey the storm flows. The 2-year storm event was chosen as the design storm for the outlet drains as this will reduce the occurrences of upstream flooding and surcharging that appears to be occurring with the current design. The proposed outlet tile is a 600 mm pipe at a 1.78% and a 1.42% grade for Drains #1 and #2 respectively. The pipe sizes for the road crossing are to be 450 mm with grades of 3.86% and 5.47%. The existing grassed waterways along the route of the tile drain are to be incorporated as part of the drainage work.

The total estimated construction cost for the proposed works were $28,776 and $24,546 for Drains #1 and #2 respectively. A special assessment is levied to the County in accordance with Section 26 to account for the additional cost to provide borings under the road and to provide inlet devices for the roadside ditches.

The total cost of the proposed work is $75,978. The total watershed area is 36.6 hectares.

The Issue

The issues before the Tribunal are:

1. Are the assessments as proposed by the engineer and approved by the Court of Revision, appropriate?

2. Should the works be modified by reducing the design standard?

The Evidence and the Findings

Peter Dutchak, CET, Engineering Technologist, County of Elgin Engineering Services, spoke on behalf of the appellant. He told the Tribunal that:

1. In 1972 Elgin County Road #36 (Quaker Road) was reconstructed. This included changing the horizontal alignment through the intersection at Road #45 and raising the road profile approximately 18 inches. This alignment change removed approximately 3 hectares from the Greer Drain #1 watershed. All pipes crossing the road were replaced with one size greater. The existing 18 inch surface culverts were replaced with 24 inch CSP’s and the existing 7 inch Greer Drain tiles were replaced with 10 inch pipes.

2. This section of roadway is in excellent condition for its age. This is an indication that drainage is also excellent. As far as County Road #36 is concerned the drainage and culverts in the concessions north of Road #45 have been adequate at all times in the past.

3. The existing Greer Drain is 83 years old and undersized using today’s standards. The existing drainage design appears to be approximately 12 mm per 24 hours although not stated in the original report. The Drainage Guide for Ontario suggests at least 25 mm per 24 hours for open inlets and coefficients of 35 mm per 24 hours have been common for similar drains constructed in Elgin County in recent years.

4. The County does not have any issue with the “Special Assessment” charged to the County for the increased costs for the construction materials and installation methods the County specifies at the road crossings.

5. The “Outlet Assessment” for which the County has been charged is calculated at a factor of 6 times that of the surrounding agricultural lands. The County feels a factor of no greater than 4 times that of other agricultural lands within a watershed is more appropriate.

6. The “Benefit Assessment” charged to the County of Elgin for Drains #1 and #2 is excessive. Under the report the “Benefit Assessment” constitutes 35% of the total assessment (excluding special assessments charged to the County) for a total of $19,415. Of that total “Benefit Assessment” charged to the Drain, the County is charged 77% or $14,888 when only 8% of the total linear work is located on County property. Mr. Veitch has explained that his assessment was based on charging County lands a factor of 20 compared to other lands receiving a direct benefit from the proposed works.

7. Using a drainage coefficient of 50 mm per 24 hours a 200 mm concrete tile would be necessary to outlet the road water. The cost of supplying and installing a 200 mm diameter tile from the road property to the outlets for both drains would be approximately $6,800 or, $15,000 less than the cost of supplying and installing the 600 mm diameter tile recommended in the report. Under the Greer Drains #1 and #2 report, the County is assessed $23,115 for Outlet and Benefit.

8. If the watershed use has changed and requires such an increase in the level of service, 12 times that of the original drain in the tile alone, then the watershed should have to pay for the increased level of service.

9. The 2-year storm design appears to be in excess of what is required for this “agricultural” drain. The proposal provides a tile with 12 times the capacity of the existing drain. Those properties requiring this level of service should pay for the increased design.

Mr. Dutchak identified several other minor items in the report and specifications that need to be corrected prior to the by-law being passed by the Municipality.

Ann Vanderbrink, an assessed owner, a farmer, who has 36 years experience in sales and service of farm equipment addressed the Tribunal. She said that water stays on their land upstream of the County Road because the road is high. They have water in their basement and that is why they petitioned to have the drain improved. She said it seems that the greatest expense is the study cost and meeting cost. She would prefer to have the tile installed rather than driving the cost up with meetings and hearings.

Bruce Van Kemenade, an assessed owner told the Tribunal that he owns the property downstream of the County Road and has both Branch drains on his land. He said either a mistake was made in 1972 when the County increased the size of the pipe under the road or a mistake is being made now in proposing a 24 inch tile. In any event, he does not receive a significant benefit from the work and does not feel he should have to pay so much money to get rid of someone else’s water.

In his reply evidence, Mr. Veitch agreed with those minor corrections that had been identified by Mr. Dutchak that need to be made in the report. He asked the Tribunal to order that these changes be made before the by-law is passed.

Mr. Veitch told the Tribunal that he first considered a pro-rated assessment. However, on reviewing the 1916 report he felt conditions had changed significantly and this would not be appropriate. The assessments as proposed were based on the Todgham method of assessment.

He first estimated the Section 26 assessments against the County Road and subtracted this cost from the total costs of the works for each drain. The remaining estimated cost was broken down into two sections on each branch. One section was the works downstream from the road crossing; the second section was the works of the road crossing.

Since this is an improvement to an existing drain, and the upstream sections of the drain would remain intact, only those property owners adjacent to the works for each drain were assessed benefit. For Drains #1 and #2, only the Van Kemenade property and Elgin County Road #36 were assessed benefit.

In order to determine the equivalent hectares for outlet assessment for each property, the number of affected hectares were multiplied by a factor to recognize the volume and rate of flow of storm water that could be artificially caused to flow across the parcel of land. The factors used were 1.0 for agricultural lands, 6.0 for county roads, and 2.0 for urban lands. The outlet assessment rate was calculated as the ratio of total outlet cost divided by the total weighted affected hectares.

The benefit determined for the road was approximately 20 times that for the agricultural property.

In response to questions, Mr. Veitch said that his design accommodates the entire two-year storm flow in the tile drain. He did not perform calculations to determine the additional capacity of the grassed waterway but he estimated that the combination of the tile and grassed waterway would accommodate perhaps a 5 or 10 year return storm. He said that he had not considered if the cost to the County could be reduced if an open cut method of installing the crossings was used instead of boring because the County had indicated a preference for boring the drain pipes under the road. He anticipated that open cut installation would be significantly less cost to the County.

The Tribunal wishes to compliment the parties to this hearing for the completeness and conciseness of their presentation to the Tribunal. Both sides were clear in their requests and well prepared for the hearing. Pre-filing of presentations in both electronic and paper form so that Tribunal was properly prepared for the hearing expedited the hearing process and was appreciated by the Tribunal.

The Tribunal examined the evidence and notes to determine that the methodology used in calculating the outlet assessments for this project follows the procedures that the Tribunal is used to seeing in reports. While the factors used to calculate equivalent acres vary slightly from engineer to engineer and project to project, they are not out of the range the Tribunal has encountered.

The division of benefit is a judgement decision. There is no “formula” to follow so each engineer and the Tribunal brings their unique perspective to the assessment of the benefit of a project. In this case the Tribunal was told that the proposed work was to accomplish several tasks:

• eliminate ponding upstream of the County Road

• remove the water that floods into the Vanderbrink basement upstream of the County Road

• repair the tile blow outs and erosion on the existing tile downstream of the County Road

The Tribunal notes that the properties upstream of the road that have problems that will be removed by the work are not assessed benefit and should be assessed for benefit. In the opinion of the Tribunal the road is assessed too high for benefit.

Mr. Veitch told the Tribunal that he used the Todgham method of assessing the cost of this project. In his paper on distributing the cost Mr. Todgham, who is regarded by many people associated with the drainage industry as the foremost drainage engineer in the province, states:

INCREASE IN COST DUE TO PUBLIC UTILITIES AND ROADS

“Prior to the passing of The Drainage Act 1975, the manner of assessing a road for any increase in cost that it might cause to a project (such as the need for a new culvert or bridge) was at the discretion of the Engineer. However, The Drainage Act 1975, included a provision (Section 26) requiring that Road Authorities as well as public utilities be assessed and must pay all the increase in cost of any drainage works caused by the existence of the works of the Road Authority or public utility, as the case may be.

It should be noted that this section does not provide that the public utility or Road Authority is to pay the increase in the estimated cost but, rather, it speaks of "all the increase of cost" which I believe means the actual increase of cost. Further, it is the increase of cost "caused by the existence of the works of the public utility or Road Authority". The significance of this section, of course, is that some provision must be made in the report to permit the Clerk to calculate the increase in the actual cost (rather than the estimated cost) of the project caused by the public utility or road so that this increase may be charged to the appropriate authority.

It should be noted that the increase in assessable costs include additional engineering and contingency costs which should accurately reflect the actual cost of these items relative to the specific works. Also, the normal cost of the work, which represents the cost which would have been incurred had the utility or road allowance not been present, is estimated and subtracted from the total cost.

Provision must be made in the report which directs the municipality to tender these works as separate items so that the actual cost of construction of these specific works will be known. This actual cost must then be used by the Clerk in the final calculation of the actual increase in cost to be assessed against the Road Authority or Public Utility.”

There was no evidence that the watershed area is undergoing development or other change that would require the increased level of service that the project, as designed, provides. The Tribunal believes that the engineer should account for the capacity of the grassed waterway in transmitting the design storm rather than putting the entire design storm through the tile drain. The engineer is directed to reconsider the project design taking this into account. A reasonable portion of the design flow should be transmitted through the tile drain and the remainder accommodated in the grassed water overflow. The Tribunal believes that the tile size for this project should be calculated using the normal practices of the Drainage Guide for Ontario. The drainage coefficient for sizing the tile should be in the 35 mm to 50 mm range.

In the reconsidered report the County is to be allowed the opportunity to perform the work on their land as per Section 69 of the Act. If the County elects not to perform the work itself then it is recommended that the County consider allowing the installation under the road by the open cut method of construction and the cost of the road crossing is to be tendered as a separate item so that the Clerk can determine the actual cost of the road crossing. The Section 26 assessment for this work shall be the total actual cost of crossing the road authority property plus a portion of the overhead cost. This cost was calculated by pro-rating the actual cost of the road crossing to the total construction cost of the remainder of the work, less the cost of constructing 100 feet of tile drain across the road right-of-way.

In assessing the cost of the work, the engineer is to deduct the Section 26 assessment from the total estimated cost. The remainder is to be divided 45% benefit assessment and 55% outlet assessment. Benefit is to be charged 15% to County Road 36, 15% to Lot 21 Concession 6 (Vanderbrink) and 70% to Lot 22, Concession 6 (Van Kemenade). The cost of the engineer for revising the report is limited to a total of $1000.

The reason for this decision is that the Tribunal was convinced by the evidence that:

1. A project which carries part of the design flow in a tile and part in the grassed waterways will provide the required relief to the watershed at significantly lower cost to all parties assessed for this work.

2. All of the properties that are relieved of a drainage problem by the work ought to be assessed for benefit.

ORDER OF THE TRIBUNAL

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

1. The Council of The Municipality of Central Elgin is directed to refer the November 26, 1999 report including attendance at Council on the Greer Drain, back to an engineer for reconsideration of the project and in particular the following items:

a. The design of the project utilising the combined capacity of the tile and the grass waterway to convey the design storm flow.

b. Providing that the County has the option of performing the work on its right of way as set out in Section 69 of the Act.

c. Providing for the tendering of the work on the County Road as a separate item so the Clerk can determine the actual increase in cost to be charged to the County, if the County elects not to perform the work on its right of way itself.

c. Assess the cost of the work, once the Section 26 assessment has been deducted from the total estimated cost, at 45% benefit, 55% outlet.

d. Benefit is to be assessed 15% to County Road 36, 15% to Lot 21 Concession 6 (Vanderbrink) and 70% to Lot 22 Concession 6 (Van Kemenade).

e. The engineer is at liberty to incorporate amendments identified at the hearing and such other incidental matters as arise out of the reconsideration.

2. The engineer shall file the reconsidered report with the Council of the Municipality of Central Elgin as soon as it is completed and by July 31^st, 2000 at the latest.

3. The Council of The Municipality of Central Elgin will circulate the report and conduct a meeting to consider the report within 30 days of the date of the filing of the report.

4. If the Council fails to meet and to consider the report within the 30 days, or having considered the report, fails to adopt it by provisional by-law, then any petitioner can appeal to the Tribunal within 50 days of the date the report is filed.

5. If Council adopts the report any assessed landowner, wishing to appeal as set out under Section 48 or 54 of the Drainage Act, can appeal directly to the Tribunal within 30 days of the Council's adoption of the report by filing a Notice of Appeal in writing with the Clerk of The Municipality of Central Elgin. The Clerk shall forthwith forward all appeals to the Tribunal after the 30 day time limit for appealing has passed.

6. If there are no appeals, the Council of The Municipality of Central Elgin may pass the bylaw and proceed, in accordance with the provisions of the Drainage Act, to construct the work as described in the revised report.

7. This panel of the Tribunal remains seized of these appeals and the issues raised by these appeals and will also hear any appeals arising out of the revised report.

8. The engineering cost for the revisions to the report, including attendance at Council, chargeable to the drain, shall not exceed the sum of $1,000.

9. 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 Guelph, Ontario this 26^th day of April, 2000.