AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Cook-Leddy Municipal Drain

Township of West Wawanosh

Cook-Leddy Municipal Drain (RE) [Revised] 2001 ONAFRAAT 15

STATUTE:

Drainage Act

HEARING:

January 12, 2001

DATE OF DECISION:

March 5, 2001

2001-15

NEUTRAL CITATION:

2001 ONAFRAAT 15

Cook-Leddy Municipal Drain [Revised]

Township of West Wawanosh

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 Ken Leddy, Roger Pannabecker and Joanne E. Cook (Sproul) under Section 48 and 54 of the Drainage Act from the decision of the Court of Revision and the Engineer’s Report on the Cook-Leddy Municipal Drain in the Township of West Wawanosh.

Before:

Jim Rickard, Chair; John Taylor, Vice Chair; Paul Gillen, Vice Chair; Jack Young, Vice Chair; Russell Piper, Member

Appearances:

Mr. Ken Leddy, appellant

Mr. Roger Pannabecker, appellant

Ms. Joanne Cook, appellant

Mr. Mike Mitchell, counsel to Mr. Leddy

Mr. David Johnson, P. Eng., for the appellant, Mr. Leddy

Mr. J. A.McBride, P. Eng., for the respondent, the Township of Ashfield-Colborne-Wawanosh

Mr. J. R. Dickson, P. Eng., for the respondent, the Township of Ashfield-Colborne-Wawanosh

REVISED DECISION OF THE TRIBUNAL

This appeal was heard in the Municipal Office of the Township of Ashfield-Colborne-Wawanosh, near Carlow, Ontario on January 12, 2001. Mr. Leddy, Mr. Pannabecker and Ms. Cook appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act from the January 14, 2000 report by Maitland Engineering on the Cook-Leddy Municipal Drain in the Township of West Wawanosh and from the decision of the Court of Revision.

Ms. Liliane Nolan, Clerk of the Township of Ashfield-Colborne-Wawanosh performed the duties of the clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the January 14, 2000 engineer’s report on the Cook-Leddy Municipal Drain, Township of West Wawanosh parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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;

(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.

54(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

54(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, chap. D17, s. 54.

The Background

This drainage project was initiated when Ms. Joanne Cook (formerly Joanne Sproul) wished to drain her property but found that a legal outlet did not exist. A petition dated June 15, 1998 was presented to the Township of West Wawanosh by Ms Cook (Sproul) and the Township appointed Maitland Engineering to prepare a Preliminary Report in accordance with Section 10 of the Drainage Act. Ms. Cook (Sproul) owned the property identified as W ½ Lot 24, Concession 5, in the former Township of West Wawanosh. Since the project began, West Wawanosh was amalgamated with adjacent municipalities into the Township of Ashfield-Colborne-Wawanosh.

Mr. McBride explained that he had been appointed to prepare the report in 1998, and that Mr. Dickson had done most of the work, under his supervision. Mr. McBride did lead the on-site meeting, which was held October 7, 1998. On February 9, 1999, Maitland Engineering filed a Preliminary Report which provided two alternatives for the drainage scheme. On March 2, 1999, the Preliminary Report was adopted by the Township Council and Maitland Engineering was directed to prepare a Final Report. Before the Final Report was submitted, an on-site survey and a re-examination of the watershed were undertaken, and a meeting was held with stakeholders and the Township Council to discuss, review and finalize the proposed work. The final report was submitted on January 20, 2000 and adopted on February 15, 2000.

The Final Report proposed the construction of a closed Main Drain with its outlet in S ½ Lot 25, Conc. 5, a property owned by Mr. Leddy. A rip wrap swale was to be constructed at the outlet. The drain was to extend northerly across the north half of Lot 25, Conc. 5, under Sideroad 24-25, and easterly across Lot 24, Conc. 5 and end at the line between Lots 23 and 24, Conc. 5. A Branch Drain was proposed to run through the E ½ Lot 23, Conc. 5 and the W ½ Lot 24, Conc. 5. The proposed work included the supply and installation of approximately 1,553 meters of concrete drain tile ranging in diameter from 450 millimeters to 200 millimeters, a steel pipe outlet, 13 structures, a steel pipe Sideroad crossing, some minor ditch trimming and rip wrap, and the construction of 2 berms. The report provided 2-3 connection points on each affected property where landowners could connect private tile drains.

Subsequent to the adoption of the final report, the validity of the petition was challenged and the petition was judged to be valid by the Referee appointed under the Drainage Act in a decision dated June 12, 2000. The Court of Revision sat on August 1, 2000 and ordered an amendment to the assessment schedule.

The Issue

The issues before the Tribunal are:

Should the drainage works be constructed or are the costs too high, relative to the benefit?
Should the engineer’s report be modified to relocate the outlet of the drain and if the outlet is relocated, how should the additional costs be assessed?
Are the assessments as proposed by the engineer and the Court of Revision appropriate?

The Evidence and the Findings

Ken Leddy Appeal

It was explained that Mr. Leddy owned two 100 acre parcels of land – E ½ Lot 24 Conc. 5 (Lot 24 Leddy Property) and S ½ Lot 25, Conc. 5 (Lot 25 Leddy Property).

Johnson Evidence

The Tribunal accepted Mr. David Johnson, P. Eng., as an expert witness. Mr. Johnson testified that he had walked the land on May 12, 2000 with Mr. Leddy. He said it was rolling land with a steep grade from one side of the watershed to the other. The soil had a gravel base. He stated that water accumulated on the Cook property often, and that it occasionally entered the Lot 24 Leddy property via a swale, then ponded near the Cook-Leddy boundary. He felt there was ample slope to carry the water from the Cook property to the Lot 24 Leddy property. Mr. Johnson provided photographs of the watershed that he had taken on May 12, 2000.

Mr. Johnson pointed out that the Lot 25 Leddy property had access to the Maitland River. He testified that water could flow naturally to the Lot 25 Leddy property from the Thompson property (N Pt. Lot 25, Conc. 5) but that there was not usually any water running there, except during the spring run-off. He said the Lot 25 Leddy property contained a number of springs as well as a large spring fed pond which provided drinking water for Mr. Leddy’s cattle. He said he had observed a small stream of water exiting the pond and said that the water in the pond had appeared to be fresh. Mr. Johnson could not verify that there were fish in the pond.

Mr. Johnson explained that the Lot 24 Leddy property, the home farm, was primarily grassland with a small treed area and that the land had no need for drainage in its current use. He said the only benefit to the property from the proposed drainage works was the ability to improve drainage and possibly increase value of the farm. He said that it was his opinion that there was no benefit to the Lot 25 Leddy property from the proposed drainage works.

In response to questions from Mr. Mitchell, Mr. Johnson agreed that any pollution in the water running out of the Leddy pond originated on the Leddy property. He indicated that if the proposed drainage works were constructed, water would pass through several upstream properties and outlet on the Lot 25 Leddy property, making it more difficult to determine the source of pollution. He identified this as a possible detriment to the Lot 25 Leddy property.

In response to questions from Mr. McBride, Mr. Johnson agreed that there was poor drainage on the Cook property and that the purpose of the Drainage Act is to improve drainage. He said there was a valley between the Thompson property and the Lot 25 Leddy property but that he had seen no obvious swale. He opined that exposed earth he had seen in the valley had been caused by cattle damage, and possibly by water flow in the spring, or after an exceptionally heavy rainfall. Mr. Johnson said he had not observed any areas without topsoil on the Thompson property, but that he did not walk the entire property and that there had been corn stubble on the ground. Mr. Johnson estimated the relief from the Thompson property line to the proposed outlet was two metres, but the proposed swale would reduce this to approximately one metre.

Mr. Johnson agreed that the Leddy pond had recently been constructed and that he had seen excavated material next to the pond. He indicated that Mr. Leddy had told him the pond had been re-dug to provide better water for his cattle. He said he did not see any cattle, or any evidence that they had been in the pond the previous year.

Mr. Mitchell objected to a specific question that Mr. McBride posed to Mr. Johnson regarding benefit to Leddy properties. Mr. Mitchell conceded that the Lot 24 Leddy property would receive statutory benefit from the proposed drainage works. Mr. Johnson did not agree with Mr. McBride that there was any cut-off benefit to the Lot 25 Leddy property.

With regard to potential upstream pollution, Mr. Johnson agreed with Mr. McBride that pollution could be carried onto the Leddy properties through surface flow, but said that there would be no surface flow under normal conditions. He clarified that during the spring run-off or in the event of a major flood, water would flow onto the Leddy properties. In response to a question regarding the potential for cattle to pollute the pond, Mr. Johnson acknowledged that it has become more prevalent that cattle not be given access to watercourses in any way.

Mr. Johnson explained that he believed the drainage works would be a detriment to the Lot 25 Leddy property because the municipal drain could carry polluted water to the Leddy property, and because a continuous flow of water would create a wet area and possibly cause erosion at the outlet from the pond. Mr. Johnson said he believed it was normal for municipal drains to carry polluted water. He agreed that Section 83 of the Drainage Act provided a method to deal with pollution of municipal drains but he questioned the effectiveness of the legislation. Section 83 is as follows:

83(1) Except as authorized by a by-law of the initiating municipality approved by the Ministry of the Environment, no person shall discharge or deposit or permit to be discharged or deposited into any drainage works any liquid, material or substance other than unpolluted drainage water.

83(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $1000.00. R.S.O. 1990, c. D.17, s. 83.

In response to questions from Mr. McBride, Mr. Johnson indicated that he would not advocate putting the outlet of the drain in the pond, but would outlet it downstream of the pond. He said the cost of the extension of the drain should be assessed to the drainage project, not as a special benefit to the Lot 25 Leddy property. He agreed that it would cost more to build the drain due to the pond near the outlet. Mr. Johnson also agreed that water in the proposed drain could be examined for pollution at the structures on the property lines.

In response to questions from Mr. Pannabecker, Mr. Johnson indicated that he could not comment as to whether a swale between the Pannabecker and Cook properties was natural or man-made and that he did not know if it could be completely filled in with parts of the banks. He estimated the fall from Sideroad 24-25 to the proposed outlet was at least four metres.

In response to questions from Ms. Cook, Mr. Johnson indicated that it was his practice to trespass when he was evaluating proposed drainage works. He said he could not determine the source of upstream pollution and that he assumed that cattle entered the pond and were a potential for pollution.

In response to questions from the Tribunal, Mr. Johnson indicated that he would not have selected a different route for the drain but would have considered the landowner’s concern regarding the outlet. He said he would design a non-perforated drain to prevent draining of the pond.

Mr. Johnson stated that water ponding near the Cook-Leddy boundary line had no obvious outlet and that it likely soaked into the ground or evaporated. He said there was not enough grade for the water to flow on the surface to Sideroad 24-25 in normal conditions. Mr. Johnson agreed that erosion around the existing culvert at the Sideroad could be caused from water from the upper watershed. He said he did not believe it was man-made erosion. He suggested that if enough water entered the Cook-Leddy boundary pool it could spill downward to the Sideroad. He agreed that this surface flow could carry pollution but suggested that it would be diluted. He agreed that the springs feeding the pond were presumably carrying water from the upper watershed.

Mr. Johnson said that he did not believe the pond was in the watershed of the Maitland River but he agreed there could be downstream implications if the cattle contaminated the pond. Mr. Johnson stated that it was his view that Mr. Leddy should not be responsible for the cost of routing the drain around his pond as the outlet was sufficient at the north end of the Lot 25 Leddy property. He did not believe it would be feasible to extend the drain as an open drain around the pond.

Leddy Evidence

Mr. Leddy told the Tribunal that his family had owned his land since 1852. He said that there had been a pond on the Lot 25 property for many years as there were springs coming up there. He said that in the Spring of 1999 he cleaned it up and improved the pond as his cattle had been getting into the springs. Mr. Leddy stated he did not think the water from the springs came from Cook property. He said there was not much water entering the pond in the Spring run-off as the gravel bottom of the soil absorbed most of the water. Mr. Leddy said there were fish in the pond as he had stocked it in 1999.

Mr. Leddy said that the Sideroad 24-25 culvert had been installed by the Township and that he had never worked on it.

Mr. Leddy stated he had attended all of the meetings on the drainage works, except the initial site meeting. He said that he did not object to the drainage work on his Lot 24 property, just the Lot 25 property. He said his position was that the drain should only outlet at his property line if he was given a guarantee that the water would be pollution-free and if there was no cost to him. His concern was that if polluted water was carried through the drain into his pond, he would be liable.

Mr. Leddy indicated that he understood that Maitland Engineering would test the upstream water for pollution before the drain was installed. Mr. Leddy said he had had water from the Cook property tested in June 2000, July 2000 and August 2000. He testified that he collected the water samples at the East edge of a ridge on the Cook property, where the water was ponded. He said he collected it from a relatively deep section where the water appeared to be the cleanest. Mr. Leddy said the samples were all taken at approximately 7:30 a.m. and he took them to a Health Centre in Clinton, immediately after collecting them. The Health Centre had provided the sample bottles. Mr. Mitchell entered the results of those tests into evidence and noted that they all indicated the water was unsafe to drink. Mr. Leddy stated that he had not had the water in his pond tested.

Mr. Leddy said he had no intention to cash crop his land, that the drainage project would be of no benefit to him and that he believed the municipal drain would causes his property to depreciate if it was constructed.

In response to questions from Mr. McBride, Mr. Leddy agreed he had attended the initial site meeting for a short time. He said he had not proposed an alternate route for the proposed drain but that he believed that Mr. Thompson had. Mr. Leddy said he initially got along well with Ms. Cook but that he could not say what their relationship was at the time of the site meeting. He indicated that he was concerned that there was only one signature on the petition. Mr. Leddy did not agree that he dug the pond at the first opportunity after the initial site meeting. He said the well on his Lot 25 property had been blocked in 1990 and that his cattle had watered in the spring area since that time. He reiterated that he cleaned out the pond and stocked it with fish in the Spring of 1999. He acknowledged that he knew it was in the route of the proposed drain but said that he did not want to get shafted. Mr. Leddy stated that there was no other water supply for his cattle on his Lot 25 property. He said his cattle have unrestricted access to the pond but not the river.

Mr. Leddy agreed that at a meeting on November 29, 2000 he had proposed that the drain outlet near his property line, rather than going around the pond. He said that it was his understanding that he would be guaranteed the water would be pollution-free and that there would be no cost to him.

In response to questions from Ms. Cook, Mr. Leddy said he collected the water samples on her property slightly west of the midway point between a culvert on the Cook property and the Cook-Pannabecker boundary line. He said he dipped the bottle in the water, put the lid on and drove to Clinton immediately. He said he took the water from a deep area where there were fewer grass particles.

In response to question from the Tribunal, Mr. Leddy said he had purchased a variety of trout from a fish farm in 1999 and that the pond was deep enough that fish could survive the winter in it. He said it was approximately five feet deep at the deepest point. He agreed that his cattle could pollute the pond but observed that it was straight grass through cattle. He said the pond was quite far from the river and on higher ground. He said that he would drink the water from the pond. He noted that his well on his Lot 24 property was 200 feet deep and had tested free of coliform. Mr. Leddy said he owned approximately 50 cattle and that there was 50 acres of grass on the Lot 25 property.

Mr. Leddy explained that his key concern was the danger of pollution, not the assessment, but that he felt his Lot 25 property assessment was too high. He said it was fair that he make a contribution for his home farm, the Lot 24 Leddy property.

In response to a question as to where he would prefer the drain to outlet, Mr. Leddy said that his preference was that the project be cancelled, as he did not want pollution on his land. Mr. Leddy acknowledged that the Cook property was cash cropped and that there were no cattle on the Cook farm. He said he could not say if the municipality or landowners should be responsible for pollution from deer but he did not feel he should be responsible if the municipal drain caused pollution on his land.

Roger Pannabecker Appeal

Pannabecker Evidence

Mr. Pannabecker’s property was identified as E ½ Lot 23, Conc. 5.

Mr. Pannabecker stated that his main concern with the design of the proposed drainage works was that water would flow too fast from Sideroad 24-25 to the outlet and that this would fill the pond and landowners would have to clean it out every few years. He was also concerned that the swale near the Pannabecker-Cook boundary line was not going to be filled in. He noted that there were one to three acres of swamp there and he was concerned that if trees grew in the swale, water from his property would back up his tiles. He noted that the Boyle land would have to be drained through his tiles to reach the proposed municipal drain.

Mr. Pannabecker also said he thought his assessment was too high on Branch A of the drain. He stated that he had installed his own drainage system in 1993, draining through 6-inch tiles into his woodlot and into the swale on the Cook property near the Pannabecker-Cook boundary line. He felt this was a natural swale.

In response to questions, Mr. Pannabecker said he would prefer that the drain outlet was downstream of the pond and that he would be willing to pay more if the drain was to be extended beyond the pond. He said he did not know if Mr. Leddy should be required to pay more if the drain were to be extended. When it was clarified that the drain was to be installed in the existing swale near the Pannabecker-Cook boundary line, Mr. Pannabecker said that his concern had been based on the assumption that the drain was to be installed south of that location.

Mr. Pannabecker said that he had farmed his land since 1979. He said he did not know if water flowed between the Thompson and Leddy properties. He said that any water that drained from his land to the Cook property lay there stagnant in the summer, then moved onto the Lot 24 Leddy property in the spring.

Mr. Pannabecker said that he had never tested the water on his land. He said he had no cattle but that there were numerous deer in the area. He stated that he felt his land was adequately drained, but that he did not disagree with the drainage project. He reiterated that he felt his assessment on Branch A of the drain was too high.

Joanne Cook Appeal

Cook Evidence

Ms. Cook’s land was identified as W ½ Lot 24, Conc. 5.

Ms. Cook testified that she had petitioned for the drain and she commended the engineers on the report. She explained that tile contractors had told her she needed a legal outlet for her land. She explained that her property received water from both the West and the East. She said the slope from the West to the East on the Pannabecker property was over 12 metres and that the Pannabecker tiles outlet near her property line. She explained that a ridge on her property prevented surface water from continuing to flow off her property to the East. Ms. Cook entered a series of pictures taken before 1998 into evidence.

Ms. Cook stated that she wanted to create more productive agricultural land, protect the environment and beautify the property. She said she was concerned with the proposed outlet near the Thompson-Leddy property line as she felt it would make more sense to outlet in the pond. She noted that the pond had not been there in 1998 when the project was initiated. She noted that Mr. Leddy had propsed the change in the location in the outlet fairly late in the process, and she said that she was concerned with potential future upheaval that Mr. Leddy may attempt if the outlet were to be situated near the Thompsom-Leddy property line.

Ms. Cook said she had 54 acres which required improved drainage. She estimated that her corn yields were 15 bu/acre less and her soybean yields were 10 bu/acre less than she could achieve with properly drained land. Based on those estimates, she calculated the net economic loss from poorer yields to be $10,000.00 over three years.

With regard to her assessment, Ms. Cook objected to the Court of Revision decision, which increased her assessment by approximately $1800.00. She indicated that she felt the assessment should be based on acreage. She noted that the final engineer’s report had reduced the Thompson acreage, and that the Court of Revision had reduced the Thompson assessment. She said the Thompson property would be getting better drainage and that it was not her responsibility to absorb more of Mr. Thompson’s share of the cost.

Ms. Cook also objected to the Court of Revision decision to reduce Mr. Pannabecker’s assessment. She said that he would be able to connect his tiles to Branch A and she noted that he had routed water onto her property for several years without paying any compensation. She pointed out that the drainage project would give him a legal outlet.

Ms. Cook estimated that the cost of the drainage works had been unnecessarily increased by $10,000.00 due to individuals altering their expectations and requests, thereby creating extra design costs. She said the cost of the appeals also inflated the administrative costs of the project. She suggested that the cost of the Hearing be assessed against landowners who did not sign the petition as she felt that her neighbors had been obstructionist.

In response to questions, Ms. Cook said she had purchased her land in May 1997 and had farmed it for a number of years before purchasing it. She said she was aware that the property had drainage problems when she bought it.

Ms. Cook stated that she cultivates 90-95 acres on her property and that she uses dry commercial fertilizer, not manure, on her property. She stated that there was not year round water flow in the area of her property where Mr. Leddy collected water samples. She noted that the directions on the water bottle from the Health Centre indicated the sample should be taken from running water.

In response to questions from Mr. Pannabecker, Ms. Cook stated that surface water crossed their property line south of her natural ridge. She said that there are washes in the spring deep enough that she had to slow her tractor to traverse them. She said the water from the washes ran into a green area on her property. Ms. Cook suggested that a wet spot in the Pannabecker property could be the result of his tiles not working well. She could not estimate how many acres of her land had been damaged by water from the Pannabecker farm specifically.

In response to questions from Mr. Mitchell, Ms. Cook said that Mr. Leddy had shown her a swamp area in 1998, but that there had not been a pond on his property. She said that she did not believe that the water on her land was polluted and that Mr. Leddy should be required to accept the water. She further stated that if the water was polluted, she had not caused the pollution and noted that Mr. Leddy was the only landowner on the drainage works that owned cattle.

Ms. Cook said that she believed that there should be a proper outlet to the drain and that it should be extended all the way to the river if necessary. Ms. Cook indicated she would be prepared to pay a portion of the cost of extending the drain but that she felt Mr. Leddy should pay the most as the extension would protect his pond, give him drainage outlets and increase the value of his land. In response to a question, she said that pollution was a problem whether it outlet in the pond or the river, but reiterated that she did not believe the water was polluted. Ms. Cook estimated the value of cultivated land in West Wawanosh at $3500.00 - $5000.00/acre.

Engineer’s Response to the Appeals

Dickson Evidence

With regard to Mr. Leddy’s appeal, Mr. Dickson noted that the proposed final information for this project was presented to the stakeholders at a meeting on November 29, 1999. He said Mr. Leddy was asked if he would like the new drain to outlet in his pond or into a natural channel downstream of his pond. Mr. Dickson said that Mr. Leddy suggested that the drain end at his upstream fence line, at Station 0+000, if the engineer could guarantee him the pond would not be polluted and if there was no assessment to his property. Mr. Dickson reported that the location of the outlet was moved in the Final Engineer’s Report as per Mr. Leddy’s request, but that Mr. Leddy had since changed his position as to where the outlet should be located. Mr. Dickson stated that it was his firm’s position that, if the Main Drain were to be extended around the pond, there should be a significant “special benefit” assessment to the Lot 25. Leddy property.

Mr. Dickson said that it was his view that Section 83 of the Drainage Act was adequate to deal with pollution of a Municipal Drain and that the municipality has a responsibility to enforce Section 83 and that any offender is liable. He noted that there would be access to the drain at each property line. He suggested that Mr. Leddy’s practice of allowing unrestricted cattle access to the pond was, in itself, a significant pollution concern.

With regard to Mr. Pannabecker’s appeal, Mr. Dickson stated that he believed the proposed drainage works had sufficient outlet. He pointed out that Ms. Cook had indicated she did not want the swale on her property filled in and that this work was therefore not included in the Final Engineer’s Report.

With regard to Ms. Cook’s appeal, Mr. Dickson reiterated that the design of the drainage works had been agreed to at the stakeholders’ meeting in November 1999. He also pointed out that the Drainage Act required him to design the drain to be an adequate size and to assess the costs of the project to landowners according to the their acreage in the catchment area. He pointed out that this was the method used to apportion the assessments for the Cook-Leddy Municipal Drain and that he had used the Todgham Method.

In response to questions from Mr. Mitchell, Mr. Dickson stated that he was aware of Mr. Leddy’s concern regarding pollution, but that he did not take any water samples for testing as he could not test a drain that is not yet built. Mr. Dickson confirmed that he sent a copy of his report to the Maitland Conservation Authority. He said that he did not contact the Ministry of the Environment. Mr. Dickson said that he did not believe that any E-coli bacteria were acceptable in drinking water for humans, but that he did not know the acceptable level for cattle. He noted that it was not expected that people would drink water from a municipal drain. Mr. Dickson said that he believed that most surface water flowing into municipal drains was not potable. He said he had received reports from Health Units on the water quality in other drains.

In response to further questions from Mr. Mitchell, Mr. Dickson said that he did not agree that no upstream water was entering the Lot 25 Leddy property. He maintained that water naturally flows from the Thompson property to the Lot 25 Leddy property. Mr. Dickson confirmed that he had not undertaken a spring inspection, as originally planned, and stated that he had done a survey instead. He also confirmed that the Cook property was not tiled and that it was the only property requiring drainage. He agreed that given his current state of operations, Mr. Leddy did not require an outlet on the Lot 25 Leddy property.

Mr. Dickson indicated that he did not know how long it took liquid manure to get into under-drains, after spreading, and he did not know the major source of fish kill or the number of water wells polluted nationwide. Mr. Dickson explained that if the project goes ahead as proposed, and pollution from the Leddy pond reached the Maitland River, an expert would need to be called to determine the source of the pollution. Mr. Dickson clarified that Mr. Leddy could not block the municipal drain to collect water samples himself and suggested that Mr. Leddy could take his concerns to the Drainage Superintendent. He also clarified that Mr. Leddy’s pond was not part of the proposed drainage works.

Mr. Dickson explained to Mr. Mitchell and the Tribunal that he had made provision for a berm and inlet facility downside of the road, at the Thompson-Leddy boundary and by the outlet swale. He confirmed that the drain had the capacity to carry surface flow and that it was designed according to province wide standards. He also confirmed that Mr. Leddy had the right to appeal and that he had been consistent in his appeal.

In response to questions from the Tribunal, Mr. Dickson indicated that the cost of the Hearing before the Referee and the Tribunal were not reflected in his final report. He estimated the additional costs incurred since the final report was submitted as $7000.00, excluding the cost of preparing for the Tribunal Hearing. Mr. Dickson said that ideally he would outlet the drain downstream of the pond, but that the design had been changed at the urging of the landowner. He estimated the cost of extending the drain beyond the pond at $20,000.00. Mr. Dickson confirmed that an open ditch was not feasible with the current design of the pond. He estimated the pond was 150 metres from the fence line and that the drain would need to extend a further 275 metres to an alternate outlet. Mr. Dickson agreed that it was a fair statement that the decision may be Mr. Leddy’s if he wants to incur the cost of routing the drain around the pond. Mr. Dickson confirmed that there would still be surface water flowing onto the Lot 25 Leddy property, as the proposed berm would provide a natural storage area. He explained that the drain joints were to be wrapped with filter-cloth. He said that it was unlikely that polluted surface water would enter the drain unless there were a large rainfall. It was pointed out that there were no domestic animals on the upstream properties.

Summations

Leddy Summary

Mr. Mitchell stated that Mr. Leddy was not objecting to the engineer’s proposals with regard to the Lot 24 Leddy property. He said that Mr. Leddy’s basic position was that drainage was not needed before Ms. Cook bought her property. He submitted that the Referee had clearly said that Mr. Leddy did not need drainage and that it was clear the Lot 25 Leddy property had outlet to the river. He suggested that the proposed outlet for the drain on the Lot 25 property is not for the benefit of Mr. Leddy, and that there should be no assessment on his land for that outlet.

With regard to the science of pollution, Mr. Mitchell suggested that whether manure or fertilizer is applied, in liquid or solid form, there is pollution. He said that the Drainage Act allows this pollution in Ontario. Mr. Mitchell referred the Tribunal to an Ontario Municipal Board decision that reported that when liquid manure was applied to land, under a normal application, 2% went down through the tiles. He submitted that tiling land acts to instantly concentrate whatever is put on that land and distribute it downstream. He pointed out that there was no guarantee that upstream landowners would not use liquid manure in the future. He reported that the leading cause of fish kills is manure and suggested that a significant percentage of farm wells in Perth County were polluted. Mr. Mitchell questioned what recourse his client had, should upstream landowners choose to fertilize with manure. He suggested there was a need to balance the desire for drainage with protection of the environment and submitted that the Province did not know how to do this. Mr. Mitchell reminded the Tribunal that the Leddy family had been on the land since 1852 and suggested that the Tribunal ought not let someone pollute the Leddy land.

Mr. Mitchell suggested three alternatives:

Do not approve the drain as there was no evidence that it would have a positive effect on the Cook property and as Mr. Pannabecker and Mr. Leddy were happy with the status quo.
Extend the drain to outlet downstream of the Leddy pond without assessing any of the cost to Mr. Leddy. Mr. Mitchell said there was no evidence that the pond is anything but spring fed and that there was E-coli of an undetermined cause in the water upstream. He pointed out that the Environmental Protection Act prohibits pollution and holds polluters responsible for their pollution.
Allow the work to proceed as proposed in the final report of the engineer, but provide an allowance in the $5000.00-$8000.00 range to Mr. Leddy. The allowance would be to offset cost of drilling a well in the future to provide an alternate source of water for his cattle in case the pond becomes polluted.

Mr. Mitchell recommended the third option.

Pannabecker Summary

Mr. Pannabecker observed that nobody wanted the outlet where it was proposed in the final report and that nobody wanted the drain to outlet into the river. He suggested that the drain would have been built long ago if upstream landowners were to guarantee clean water but that there was no way to do that. He said the land in the area was not worth $5000.00/acre. He reminded the Tribunal that he did not agree with his Branch A assessment, as he had already drained the affected land once.

Cook Summary

Ms. Cook stated that she took offence at continually being blamed for pollution as she questioned the appropriateness of Mr. Leddy’s water sampling methodology. She said she found it difficult to understand Mr. Leddy’s concern with other people’s pollution when he has chosen to allow his cattle free access to water on both his farms. She suggested that Mr. Leddy was affecting the river and fish with his pollution and that he could pollute recreational beaches. She reiterated that she was concerned with the proposed location of the outlet because of Mr. Leddy’s threats as to what he will do to the drain.

Engineer’s Summary

With regard to the proposal that the drainage works not proceed, Mr. McBride submitted that it had been apparent from the start of the project that Mr. Leddy had animosity for his neighbor Ms. Cook, that he had been obstructionist at every opportunity and that his pollution concern is his latest attempt to prevent the construction of the drain. Mr. McBride submitted that the only polluting observed from livestock had been on the Leddy lands and he questioned the acceptability of watering cattle through a farm pond.

With regard to the environmental issue, Mr. McBride said he understood that efforts to improve manure handling in the province were being studied. He pointed out that Mr. Leddy would not be responsible for pollution in the drain unless he was the party polluting it. Mr. McBride explained that the municipality would initially be responsible for pollution in the drain as it was to be a municipal drain. He said that it would be up to the municipality to track down the source and that the structures at the property lines would facilitate detection of the source of any pollution that might enter the drain.

Mr. McBride submitted that the municipal drain was required, as the Lot 25 Leddy property was the only affected property that had a legal outlet. Mr. McBride noted that it would be more expensive to extend the drain to the wooded area on the Lot 25 Leddy property, but that since all the appellants asked for this in their appellant statements, that is what he would recommend. He stated that he felt the outlet near the Thompson-Leddy property line was sufficient but acknowledged the concerns of Ms. Cook and Mr. Pannabecker with this location.

With regard to filling in the swale near the Pananbecker-Cook boundary line, Mr. McBride said the landowner did not want this work done at this time, but that did not mean it could not be done sometime in the future.

With regard to the assessment appeals, Mr. McBride said that Mr. Dickson had used his best efforts to assess the costs of the drain, that the Court of Revision had adjusted them and that the issue was now for the Tribunal to decide. He noted that this Hearing was the first time Mr. Leddy had indicated that he wanted compensation to dig a well.

The Findings

The evidence presented convinced the Tribunal that there is a need for a drain to address the problem of excess water lying on the Cook (Sproul) property and to provide a legal outlet for the affected landowners.

Mr. Leddy, through his counsel raised the serious issue that this drain would bring polluted water from upstream land. However, the evidence presented did not support the position that the provisions in the Drainage Act and the Environmental Protection Act were inadequate to prevent the deliberate contamination of water collected in the proposed drain.

The Tribunal accepts Maitland Engineering’s position that landowners’ preferences should be accommodated when they do not affect the functioning of the drain. It was clear to the Tribunal that Ms. Cook did not want the swale on her property to be filled at this time. It was clear to the Tribunal that Mr. Leddy did not want the outlet to be located downstream of his pond if he were to be assessed any additional cost as a result.

Were it not for Mr. Leddy’s preference the Tribunal may have extended the drain to outlet downstream of the pond. However, the Tribunal was concerned that, because of the pond, the existence of the drain would have resulted in substantial additional costs, with little benefit.

The Tribunal accepted Mr. Pannabecker’s argument, supported by the Court of Revision that the benefit assessed to his property in the engineer’s report was too high, given that his property already had reasonable drainage through existing tiles. However, the Tribunal found that the proposed Branch A of the drain will provide benefit to the Pannabecker property as it will provide a legal outlet.

The Tribunal did not accept the rationale of the Court of Revision for its decision to reduce the assessments on the Lot 25 Leddy property and the Thompson property.

The Tribunal notes that there are substantial additional costs on this drainage works due to these appeals and the appeals to the referee. The Tribunal is of the view that it was not necessary for Maitland Engineering to have two engineers attend at the Tribunal Hearing.

ORDER OF THE TRIBUNAL

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

The appeals of Ken Leddy, Roger Pannabecker and Joanne Cook under Section 48 of the Drainage Act are dismissed.
The appeals of Ken Leddy and Roger Pannabecker under Section 54 of the Drainage Act are dismissed.
That the decision of the Court of Revision which heard appeals of assessments under the January 14, 2000 Engineer’s Report on the Cook-Leddy Drain on August 1, 2000 is set aside.
That before the final passing of the By-Law, the engineer is to modify Appendix C – Assessments in the January 14, 2000 Engineer’s Report to decrease the Branch A benefit assessment to the R. G. Pannabecker property (E ½ Lot 23, Conc. 5) by $1,000.00 and increase the Branch A benefit assessment on the J. E. Sproul property (W ½ Lot 24, Conc. 5) by $1000.00. The revised assessments will be $6,500.00 for the Pannabecker property and $12,470.00 for the Sproul (Cook) property.
The engineering cost of the attendance of Maitland Engineering at the Hearing on this matter shall be limited to the cost of the attendance of one engineer at the Hearing.
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.

Dated at Guelph, Ontario this 5^th^ day of March, 2001.

Cook-Leddy Municipal Drain (Re), 2001 ONAFRAAT 15

Case Summary