Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Woodville Drain #1 City of Kawartha Lakes

Woodville Drain #1 (RE) 2001 ONAFRAAT 19

STATUTE:

Drainage Act

HEARING:

March 16, 2001

DATE OF DECISION:

March 27, 2001

2001-19

NEUTRAL CITATION:

2001 ONAFRAAT 19

Woodville Drain #1 City of Kawartha Lakes

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 Mancini Homes Limited under Section 64 of the Drainage Act regarding the quality of construction of the Woodville Drain #1 in the Village of Woodville and Township of Eldon, City of Kawartha Lakes, County of Victoria.

Before:

John Taylor, Vice Chair Jack Young, Vice Chair

Russell Piper, Member Andy Koopal, Member

Appearances:

John Kuntze P. Eng, for the respondent

Sheldon Pettle, counsel for the appellant

Angelo Mancini, principal of Mancini Homes, the appellant

John Farrow, assessed landowner

Stuart Higham, assessed landowner

Earle Gray, assessed landowner

Donald Green, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Oakwood, Ontario on Friday, March 16, 2001. Mancini Homes, also known as Mancini Construction, appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 64 of the Drainage Act (the Act) with regard to the quality of construction of the Woodville Drain No. 1.

Ms. Sandra Lloyd, Acting Clerk, City of Kawartha Lakes 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 November 15, 1999 engineer’s report on the Woodville Drain No. 1, Village of Woodville and Township of Eldon parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing. The Village of Woodville and the Township of Eldon were amalgamated into the City of Kawartha Lakes, effective January 1, 2001.

Section 64 of the Act is as follows:

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

The Background

The November 15, 1999 engineer’s report was prepared as the result of a petition signed by E. & J. Gray and K. & M. Warlick requesting improved drainage for Lots 22 and 21, Plan 544 in the Village of Woodville.

The report provided for improvement to the drainage ditch on the Gray property by constructing a new 900 millimetre diameter pipe along the west side of the ditch on the Gray property with outlet into the ditch on the Mancini property. The new 900 millimetre pipe was connected to the north end of the County Road 9 culvert. The existing ditch on the Gray property was backfilled and graded as a shallow overflow swale. Downstream of the outlet of the 900 millimetre pipe, the existing ditch was cleaned out to provide an improved outlet and 500 metre of the ditch on the Mancini property was incorporated as part of the Woodville Drain No. 1. A gabion basket structure was constructed on land owned by Mancini Homes in the former Township of Eldon, Roll Number 1-041.

The ditch in question had been constructed under a plan prepared by the South Lake Simcoe Conservation Authority in 1981. The ditch had no legal status prior to it being incorporated into a municipal drain as a result of the November 15, 1999 report.

The total drainage area affected by this project was approximately 141ha (348 acres).

The final engineer’s report on this drainage works was adopted on February 24, 2000. The contract for construction was awarded to Paul Winn Excavating in May 2000. Construction was completed by mid July and on July 20, 2000 Mr. John Kuntze, P. Eng,. conducted a final inspection on the drain. Restoration work was completed by the contractor by mid September 2000 and Mr. Kuntze issued a completion certificate dated September 29, 2000.

The Issue

The issues before the Tribunal were:

1. Was the construction of Woodville Drain No. 1 of adequate quality?

2. Was the drainage works constructed according to the specifications in the November 15, 1999 report of K. Smart Associates Limited?

The Evidence and the Findings

Angelo Mancini

Mr. Angelo Mancini told the Tribunal that he was an officer, director and shareholder of Mancini Homes, also known as Mancini Construction. He said he met with Mr. Kuntze in the municipal offices prior to the construction of the drain and that asked Mr. Kuntze to explain the proposed work to be done and the allowances he was to receive. He recalled that at that time he asked if the drainage works would be fenced and Mr. Kuntze told him there would be a fence.

Mr. Mancini explained he felt a fence was needed in order to keep motorized vehicles off his property and for the safety of children who might fall off the gabion structure. He understood there was to be a fence around the gabion structure and between the Gray property and his land.

He explained that he was concerned with his potential liability should someone falls off the gabion structure. He estimated that the vertical distance from the top of the gabion structure to the bottom of ditch was approximately seven feet.

Mr. Mancini said that Mr. Kuntze told him the closed drain would extend into his property 30 feet (nine metres) and that he would be getting access from one side to the other of his property. He said the width of the crossing constructed is not nine metres and he cannot get farm equipment across it. Mr. Mancini said he had observed several All Terrain Vehicles and snowmobiles accessing his property by crossing over the gabion structure.

Mr. Mancini told the Tribunal that he understood that the ditch was to be deepened by approximately one foot, as a result of cleaning out debris. He estimated that the ditch was deepened by two to three feet in some places. He also said that he understood that debris removed from the ditch would be removed from his property and that it was not. Instead, trees were left by the side of the drain and thrown into his bush. Mr. Mancini stated that much of the debris was deposited on the west side of the ditch where it created a berm which prevented surface water from draining into the ditch from his crop land. He said he had observed standing water on his land. He explained that the engineer had attempted to rectify the ponding problem by constructing small channels every 200 to 300 feet through the built up debris, but that he would not know if that would be effective until spring. Mr. Mancini told the Tribunal that, at the time of construction, he asked the engineer to place the debris in a low area of his property on the east side of the drainage ditch, or to haul it away but that Mr. Kuntze would not do this.

In response to questioning, Mr. Mancini indicated that:

• He was aware of the site meeting and other information meetings on the drainage works but he did not have time to attend the meetings.

• Snowmobiles could enter his property from a number of directions and he had not observed any entering from the Gray property. He could not be sure that there were not snowmobiles entering his property through the Gray property.

• Drivers of All Terrain Vehicles had created a path over the gabion structure.

• He believed a fence around the gabion structure and on the boundary between his property and the Gray property would prevent trespassing.

• The reason he wanted the fence was because the structure was not constructed as described and it was no use to him.

• Prior to the work undertaken as the result of the November 15, 1999 report, the ditch was filled with water and no one could get through.

• He had not yet discussed the question of a fence with Mr. and Mrs. Gray.

• He did have a channel he built and a storm water retention pond on his property for his subdivision to the east; these drainage works are not fenced. The pond is usually dry and its edges are gently sloped. His drainage pipe is approximately 2.5 feet high. He did not see these structures as a safety threat.

• He agrees that the land east of the drainage ditch on his property was not farmed. He explained that it was too wet and his tenant farmer could not get across the ditch.

• In 1981 when the ditch was originally dug, dirt was deposited on both sides and the contractor did a beautiful job.

• He did ask the contractor undertaking this drainage works to clear willow trees on his land on the east side of the ditch and the contractor cleared this for him as a favour.

• He believed there were trees growing in the drainage channel as well.

• He was estimating heights, he had not taken any measurements.

• The drain had flowed well when constructed in 1981 but it was not working well before the recent work as it had become overgrown.

• He was not sure how deep the original ditch was.

• There was a two-foot deep box below the gabion structure.

• His tenant grew a variety of crops, recently he had cultivated beans on the Mancini land.

• He did not know how close the tenant cropped to the ditch before the recent construction.

• He had not been opposed to the drainage project as he understood it.

• He did not consider the possibility of All Terrain Vehicles accessing the east side of his property when he agreed that it was a good idea to have a crossing.

• Because of the angle of the crossing, there was only 15 to 18 feet from the edge of the gabion structure to the east side of the property.

• The top of the gabion structure was level with the surrounding land.

• He wanted the gabion structure to be removed. Before the structure was built, snowmobiles could not cross the ditch. He could not get across the structure with farm machinery.

• Alternatively, he wanted the structure fenced or relocated off his property.

• The dirt and debris left at the side of the ditch could graded or removed in the spring. The dirt was piled to a height of approximately 1 to 1.5 feet.

• He allowed the original ditch to cross his land at no cost. Before that ditch was constructed, local residences had flooded.

• He did not read the engineer’s report but he spoke to Mr. Kuntze and thought he understood the proposed drainage works.

• The gabion structure was not constructed as described in the report.

Stuart Higham

Mr. Stuart Higham, an assessed landowner (Roll No. 001-13), stated that he did not support the drainage works and he wondered why he had to pay for the project. He said Mr. and Mrs. Gray benefited most from the project and that neighboring properties did not drain into the ditch as roadside ditches were in poor repair. In response to questions Mr. Higham said he had seen snowmobiles driven up and down the Mancini property and that he thought a fence would help prevent this. He estimated the drop from the gabion structure to the ground was six to seven feet and he agreed that children would be attracted to the structure.

Earle Gray

Mr. Grey, an assessed landowner (Roll No. 001-22) testified that he had no objection to a fence between his property and the Mancini property although he would prefer a cedar hedge to a fence. He said he was prepared to share in the cost of erecting a barrier although he did not think it was necessary. Mr. Gray said he shared Mr. Mancini’s concern about snowmobiles but that he had not observed any snowmobiles crossing into the Mancini property through his property. He said he could not comment on west-to-east traffic of snowmobiles on the Mancini property.

Donald Green

Mr. Green, an assessed landowner said that his property, Roll No. 001-23 was east of the Gray property. He testified that he agreed there is a potential hazard with the gabion structure. He said he was also concerned that a 20-foot high pile of brush left next to the drain is a potential hazard. He said this brush pile was 60 to 70 feet from his property line, and 20 to 30 feet from the edge of the ditch. He was not sure where the brush came from but theorized that it was a combination of debris cleared from the ditch and the extra clearing on the east side of ditch. He stated that the municipal drain was not useful to him because water cannot get to it as other ditches in the area are in need of repair.

John Farrow

Mr. Farrow, an assessed landowner (Roll No. 001-14) said he simply wanted to know if there was a full time engineer on the project while it was under construction. Mr. Kuntze said there was not.

John Kuntze, P. Eng.

Mr. Kuntze told the Tribunal that the roadside ditch that outlets into the drainage works was a tremendous mess. He explained that the County engineer and councilors had told him that the ditch would be repaired once it had a proper outlet and that the Woodville Drain No. 1 provided that outlet.

With regard to the Mancini Homes appeal, Mr. Kuntze told the Tribunal that he recalled meeting by chance with Mr. Mancini at the Woodville Village office in the fall of 1999. He said he briefly reviewed with Mr. Mancini the new drain proposed in his final report.

Mr. Kuntze said that the report incorporated the existing ditch on the Mancini property into the municipal drain. He explained that the allowance to the Mancini property for the right of way was based on a 12 metre width and a value of $2,500 per hectare. The allowance for land and crop damages was based on a 12 metre width and $1,000 per hectare. The allowance for the existing drain was based on the value of work being incorporated, and was approximately $5/metre.

With regard to the disposal of debris dredged from the ditch, Mr. Kuntze noted that Drawing Five of the report indicated the spoil would be leveled on the west bank of the ditch on the Mancini property, except for spoil needed to backfill the channel upstream. He said cleared and grubbed material was to be windrowed clear of the leveled spoil.

Mr. Kuntze told the Tribunal that his survey notes showed there was a seven to eight metre strip of unworked land next to the ditch before the work called for in the report was undertaken. He said walked that strip of land at least twice. He explained that he believed that there was already a berm there and that the work done as a result of the November 15, 1999 report added approximately eight inches to the height of this berm. He said that he opted to spread the spoil on this land after consultation with Mr. Mancini’s tenant farmer Neil Mullach. He explained that he and the contractor had worked with Mr. Mullach to try to minimize crop damages. He said he did encroach into the beans to taper the spoil off.

Mr. Kuntze said that the construction on the drain was supervised but there was not an engineer on site at all times. He stated that he took readings on the drain after the construction in July and August 2000. He explained that the design grade of the ditch was based on the conservation authority drawings. He said that it was only toward the outlet of the closed drain that his design varied from the original. He increased the slope at that location.

Mr. Kuntze explained that the contractor used a ditching bucket and dug below Mr. Kuntze’s grade line in cleaning out the bottom of the ditch. The contractor had explained to Mr. Kuntze that he had dug to the original grade line. At some points along the drain the contractor dug 150 to 175 millimetres below the grade line. At station 0+350, approximately 100 feet downstream of the gabion structure, the ditch was deepened slightly below the grade line. Mr. Kuntze said he had directed the contractor to dig 150 millimetres below the grade line to allow for silting. Mr. Kuntze said that the contractor did not remove subsoil from the ditch except in the area where the gabion structure was built. He noted that there was only a small amount of excavation on the ditch and that the top of the bank was almost totally undisturbed.

Mr. Kuntze told the Tribunal that he had directed that at least two cuts be made through the spoil to allow drainage to the ditch. He said had not observed ponding by the berm but that he agreed there had been ponding near the gabion structure. He said he believed this was due to compaction caused by heavy equipment and that the contractor had since repaired the grade.

Mr. Kuntze siad that he saw no benefit to hauling away the spoil, unless the spoil from the work undertaken in 1981 was removed as well.

Mr. Kuntze said that the new pipe is very close to grade, perhaps an inch or two off on average and that the pipe meets the grade line plus or minus six inches throughout the length of the pipe.

With regard to the gabion structure, Mr. Kuntze explained that it was skewed relative to the property line; it was located between 4.2 metres and 7.0 metres from the property line. Mr. Kuntze stated that at no time did he indicate to Mr. Mancini that he would have a clear path of nine metres. He said he did tell him that the outlet pipe would be nine metres in length. Mr. Kuntze said that in his opinion there is adequate width to allow conventional farm equipment to cross the ditch over the gabion structure, even though it is skewed with the property line. He acknowledged that the tenant farmer may have to encroach on the gabions to do so, but pointed out that the contractor had placed soil over the gabion baskets to allow for this. Mr. Kuntze reported that the gabion structure was six inches lower than planned but that it otherwise meets his design specifications.

Mr. Kuntze said he had visited the site recently and seen evidence of snowmobiles crossing the gabion structure, but he said there were many more snowmobile tracks on the west side of the property. He said that the east side of the Mancini property is also accessible to snowmobiles, without using the gabion structure. He said that he was reluctant to build a fence at a cost of the drain.

Mr. Kuntze said that he would not like to see a page wire fence on the Gray-Mancini property line as it could block surface water travelling down the swale. He said ideally there should be no barrier on the swale but that he preferred a hedge to a fence as it can be made more open at the bottom. Mr. Kuntze pointed out to the Tribunal that he could not alter his report after it had received final approval.

On the question of liability, Mr. Kuntze said the drainage work is in a residential area and that he knew of no way to limit liability. He said that as this is a municipal drain, the liability should be with the municipality. He said that in his view it would not be cost effective to move the gabion structure. He also said that he felt it was not right to take away the access to east side of the Mancini property now that it has been given. He pointed out that the Drainage Act does not allow Mr. Mancini to waive his allowance in order to have the structure relocated.

Mr. Kuntze explained that the gabion structure was 1.2 metres high but that there was a 600 millimetre plunge pool at the structure. He said he knew the structure was a potential hazard but that there were several other drainage ditches on the property and there is a four foot fall on some parts of the other culverts. He said that he did not believe that a fence would deter children from playing on the structure as he felt that children would want to climb the fence. Mr. Kuntze said that before the drainage works were constructed the land was swampy and that this also posed a liability. He said he did not object to the structure being fenced, provided the top of the gabion was not blocked.

In response to questions, Mr. Kuntze said:

• He instructed surveyors on site on what he wanted them to accomplish.

• He could not tell that the land adjacent to the ditch constructed in 1981 was a berm from walking on it, due to long grass.

• There was a 20-foot swath of land where the contractor’s equipment made a track along the drain. Approximately a 1 to 1.5 metres swath of beans were damaged.

• He told the tenant farmer that an allowance for crop damage could only be paid to the owner of the property. He agreed that Mr. Mancini had not received any allowances to date.

• If he had received the request earlier, he could have placed debris from the drain into a low area at the north end of the Mancini property. Mr. Mancini would have had to cover this expense.

• The drain was built to the specifications in his report but he agreed that it was deeper in a few places than shown in the drawings in the report.

• He did not deny that placing the gabion structure on the Mancini Homes property increased the company’s liability.

• Mr. Mancini would require the municipality’s approval to erect a fence around the gabion structure. If it were to be to be fenced, it should be fenced at the headwall, not at the approach to the crossing.

• The cost of replacing soil which may wash out of the gabion baskets is a cost to be charged to the drain.

• The gabion structure was proposed in the preliminary engineering report and the final report.

• He chose to deposit the spoil on the west side of the ditch as the strip of land next to the ditch was not used and the east side did not appear to be easy to access. Prior to construction, there was no request for the spoil to be deposited on the east side of the ditch.

• The spoil could be spread further when the land is cultivated in the spring. But, Mr. Mancini had been compensated for the land and it was land that would not be worked by the tenant farmer. He did not feel it was necessary to place the spoil on cropland.

• The ponding problem has been resolved. He is prepared to cut more troughs through the berm if the problem reoccurs.

• He agreed that approximately 100 cubic yards of land was dredged from the ditch.

• He had not seen any brush growing in the channel and he noted very little brush on the west side of the drain, except for a few small willows on the Gray property. It was the landowners’ responsibility to dispose of brush. A few small trees from the Gray property were deposited on the Mancini property.

• The plunge pool was constructed with a gabion basket at the bottom and around the sides. The mat is a one-foot basket filled with rock. He felt it was unlikely that water flowing through the drain will dig a deeper pool, given the rate of flow in the ditch. If it were to be filled with loose rocks they will eventually be washed away. Filling the plunge pool would not impede the operation of drain.

• From station 0+375 upstream the spoil could be spread into the field. There were not many stones in the material.

• The gabion structure was placed on the Mancini property rather than the Gray property as he viewed it as a low cost way to give Mr. Mancini access to the east side of his property. If he had given Mr. Mancini an allowance, rather than access to the land, a future owner would have to pay the municipality to install a crossing.

Mr. Pettle told the Tribunal that this was an emotional issue, that Mr. Mancini was very disturbed to have the gabion structure on his property, as he was concerned with his liability and the possibility of being sued. He submitted that a landowner looks at the property differently than a tenant farmer and noted that Mr. Kuntze made some assumptions as to what his client would want. He acknowledged that his client should have looked at the plans more closely.

Mr. Pettle reminded the Tribunal that the contractor had removed more material from the ditch than called for in the engineer’s report. He submitted that there was some question as to whether there was a previous berm on the land or not and that his position was that there was not. He also said that the clean up of the property was not satisfactory.

Mr. Pettle said he was looking for a solution. He asked if the gabion structure could be modified to alleviate potential liability. He suggested that the spoil be spread out to remove the berm. He also asked that a fence be erected around the gabion structure to protect children.

Mr. Pettle noted that Mr. Mancini had the right to appeal and he asked that his client’s costs related to the appeal be charged to the drain.

Mr. Kuntze said that his position with regard to costs was that all parties should cover their own costs. He submitted that Mr. Mancini had to bear some responsibility for raising his concerns after construction, rather than during the planning stage of the drainage works.

Findings

From the evidence presented, the Tribunal finds that the gabion structure is wide enough for farm vehicles to cross between the east and west sides of the property, even accounting for the skew that reduces the width to seven metres at its narrowest point. The Tribunal notes that it is clear in the drawings which form part of the engineer’s report that the gabion structure was to be built at an angle from the property line. The Tribunal finds that the drainage works cannot be charged the cost of fencing the gabion structure as this work was not called for in the engineer’s report.

With regard to the disposition of the spoil, the Tribunal finds that the material removed from the ditch was not adequately spread over the adjacent land. The Tribunal finds that the brush removed from the west side of the drain is the responsibility of the affected landowners. As landowners were to be dispose of this brush, the contractor cannot be faulted for stacking it adjacent to the drain.

The Tribunal cannot take any action that would limit the potential liability arising from the drainage works. The Tribunal notes that because this is a municipal drain the liability lies with the municipality.

ORDER OF THE TRIBUNAL

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

1. The engineer is to consult with the landowner to try to reach a consensus as to how the land on the west side of the drain is to be leveled. If there is no agreement reached then the excavated material is to be leveled to a depth of 200mm by placing it on the adjacent land.

2. The engineer is to have additional swales constructed through the spoils to minimize pooling of water on the adjacent land.

3. The landowner is to maintain a three metre buffer of uncultivated land on the west side of the drain.

4. 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 Tilbury, Ontario this 27th day of March, 2001.