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:
Davis Drain Middlesex County
Davis Drain (RE) 2001 ONAFRAAT 25
STATUTE:
Drainage Act
HEARING:
April 26, 2001
DATE OF DECISION:
May 9, 2001
2001-25
NEUTRAL CITATION:
2001 ONAFRAAT 25
Davis Drain Middlesex County
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 Mr. Steve Simms under Section 54 of the Drainage Act from the decision of the Court of Revision on the Davis Drain in the Township of Adelaide Metcalfe, Middlesex County.
Before: John Taylor, Vice Chair; Jack Young; Vice Chair and Tom Hall, Member
Appearances:
Mike DeVos, P. Eng., drainage engineer who prepared report Steve Simms, appellant Frank Dezso, assessed landowner Craig Thompson, assessed landowner Lyle Smith, assessed landowner John Cameron, representative of Cuddy Farms, assessed landowner
DECISION OF THE TRIBUNAL
This appeal was heard in Strathroy, Ontario on April, 26, 2001. Mr. Steve Simms appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision with respect to the June 23, 2000 engineer’s report on the Davis Drain in the former Township of Metcalfe (now Township of Adelaide Metcalfe). Ms. Sylvia Hammer, Clerk of the Township, performed the duties of the Clerk of the Tribunal.
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the June 23, 2000 engineer’s report on the Davis Drain, Township of Metcalfe, parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Section 54 of the Act states:
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
Mr. Mike DeVos, P. Eng., the engineer for the project, explained that the June 23, 2000 report on the Davis Drain by Spriet Associates was commissioned as the result of a written request by some residents of the Dodge subdivision in Cairngorm, requesting improvements to their drainage. The subdivision had been experiencing flooding problems.
Mr. DeVos explained that the Davis Drain was an existing municipal drain that had originally been constructed prior to 1928 to drain farmland. It was predominantly an open ditch drain at that time, but it was closed in as a result of a 1961 report. Mr. DeVos said that a 1970 report required the replacement of some of the tile on the drain and also the construction of two branch drains, the Grosvenor Branch and the Rowe Branch. Mr. DeVos explained that the Dodge subdivision was constructed in two stages. He believed the first stage was built in the early 1980s. He explained that part of the Davis Drain was relocated along property lines and on road allowances in the subdivision as the result of a 1991 report to suit the subdivision layout. He reported that the Rowe Branch was upgraded in 1993.
Mr. DeVos told the Tribunal that he took into consideration the drainage needs of the subdivision and of the agricultural land in developing his report. He explained that the drain was not functioning well as there was extensive ponding in the subdivision and water was boiling up from catch basins and flooding the road. He said residents were concerned about the impact of the flooding on their septic systems and wells. Mr. DeVos said that downstream of the subdivision there was some ponding in low areas but that affected farmers were not unhappy with the functioning of drain.
The work proposed in the June 23, 2000 report was:
The construction of a ‘twin’ 450 mm to 600 mm closed drainage system, to work with the existing Main Davis Drain from the west side of the subdivision to the outlet.
The replacement of tile on the Grosvenor Branch, downstream of the southerly junction with the Rowe Branch with 350mm and 300 mm tile.
The ‘twinning’ of the Grosvenor Branch, upstream of the junction with the Rowe Branch with a 250 mm and 200 mm closed drain.
The construction of additional junction boxes and surface inlets.
Mr. DeVos said he designed the drain with a ¾ inch coefficient for the farm land. He explained that he would have liked a two year storm factor for the subdivision runoff but decided on 70% of a two year storm factor, due to cost considerations.
The Issue
The issue before the Tribunal is:
Are the assessments for the upgrades to the Davis Drain recommended by the engineer and upheld by the Court of Revision appropriate?
The Evidence and the Findings
Steve Simms, Appellant
Mr. Simms told the Tribunal that he had purchased his property (Roll No. 10-095-89) in July 1999 at fair market value, unaware that there was a drainage problem in the area. He indicated that he did not believe his benefit assessment was fair as he could see no benefit to his property from the proposed drainage works. With regard to market value, he stated that the issue was whether or not he could recoup his costs if he were to sell his property once the work is completed. He submitted that he could not. He explained that had no issues with surface water and that the work would not improve the appearance of his property, or in any way contribute to the betterment of his property or buildings. Mr. Simms stated that he did not understand outlet liability, but that he felt he should have no benefit assessment applied to his property. He pointed out that some of the landowners who were experiencing flooding had lower total assessments than he did.
Mr. Simms asked the Tribunal to consider whether the drainage project was required, and whether the cost exceeded the benefit. He asked that if the work does take place that the Tribunal order that the assessment schedule be revised to make the dollar gap equal to the benefit gap, and order that assessments not be required to be paid in full 30 days after the completion of the work.
Mr. Simms also told the Tribunal that he had received a memo from the Municipality pointing out that his solicitor had not requested a Tax Certificate and Property Information Report prior to his purchasing his property. He explained that he had purchased title insurance and that he had relied upon his solicitor to handle the details of the purchase.
In response to questions, Mr. Simms acknowledged that a small amount of ponding occurs in a small ditch at the back of his yard after heavy rain. He said the water disappeared after a few hours but the ground remained wet longer. Mr. Simms said his property was at the high end of his street. He said he was not informed of any potential drainage problems by his solicitor, his realtor or his home inspector, prior to buying the property. He explained that he had not attended meetings at which the drainage project was discussed, as the initial site meeting notice had been sent to the previous landowner and as he had been unavailable for later meetings. He said that Mr. DeVos and the Reeve of the Municipality had visited him at his home to explain the drainage project. He said he appealed to the Court of Revision but did not attend.
Frank Dezso, Assessed Landowner
Mr. Dezso explained that his property was adjacent to Mr. Simms’ property and that he agreed with Mr. Simms that the way that benefit and outlet assessments were derived was unfair. He said there were four houses with eaves that outlet directly into the drain rather than through the soil and that this was not accounted for. He said that 40% of his lot was not properly leveled and as a result it does not drain and water backs up the drain onto his property. Mr. Dezso said he believed he would receive some benefit from the proposed work on the drain but he felt his outlet assessment was high.
In response to questions, Mr. Dezso said water entered his property from a catchbasin at the front of his lot, from farmland at the back of his lot and from a drain on one side of his property. He said water ponds on his property, rather than running into the drain. He said he could re-grade his property to some extent, but that it was one of the lowest spots in the subdivision.
Mr. Phillip (Craig) Thompson, Assessed Landowner
Mr. Thompson testified that he supported Mr. Simms and that he also felt his assessment was too high. He said he signed a petition asking the municipality to investigate the drainage problem in the subdivision, but did not sign a later petition requesting that the drain be upgraded. He said that water ponds at the front of his property, but not enough to bother him.
Lyle Smith, Assessed Landowner
Mr. Smith explained that 6 hectares of his 30 hectare property was in the assessed area of the Davis Drain. He said that when he bought his property he understood that the Main Drain of the Davis Drain crossed Melbourne Road, but then stopped there. He said that he had no objection to the appellant being granted relief, but that he did not believe his assessment should be increased, as he would be receiving no more benefit. He said he was not objecting to the engineer’s report.
John Cameron, Cuddy Farms, Assessed Landowner
Mr. Cameron said he wanted everyone to understand that there is a cost associated with the hearing and that those people with the largest assessment would pay the most.
Response by M.P. (Mike) DeVos, P. Eng.
Mr. DeVos explained that to determine the assessments, he looked at the theoretical cost of twinning the drain, and that was the basis of the cost assessed to the subdivision. He said that he had to upgrade the tile downstream from the subdivision to accommodate the increased flow from the subdivision. Mr. DeVos explained that he calculated what the subdivision would need in order to resolve the flooding problem, excluding the farm ditch system. However, since water from agricultural properties would also be flowing through the drain, he had to provide larger diameter tile. He said he charged the difference in cost due the need for larger tile to the agricultural sections.
Mr. DeVos explained that he assessed 50% of the cost as benefit and spread the subdivision share of this cost to the subdivision across the roads and 22 lots including Country Lane, an unopened road allowance. He assessed the roads as being equivalent to 11 lots. Mr. DeVos explained he arrived at an average benefit cost of $1,100 per lot, but he then adjusted this on the basis of proximity to the drain, lot size, and whether or not the properties had sub-drains. He explained that three lots were graded such that they drained to the Grosvenor Branch, and therefore the benefit and outlet assessed against these lots was apportioned between the Main Drain and this branch drain. Mr. DeVos explained that he calculated special benefit assessments for two road crossings.
Mr. DeVos explained that outlet assessments were distributed over all lands and roads in the subdivision on the basis of area, adjusted by the type of run-off generated. He explained that large properties had a slightly lower run-off coefficient than small properties and that roads had a higher run-off coefficient.
In response to questions, Mr. DeVos explained that to determine the benefit:outlet ratio, he used his judgement and considered the type of work, past history and overall fairness. He said he had worked on a few projects which combined water from agricultural and residential areas and that the methodology used to assess costs on the Davis Drain was similar to that used on those projects.
Mr. DeVos stated the benefit assessment to lots in the subdivision ranged from $780 - $1360. He explained that in the Dodge subdivision, land at the north end is higher land and that the sub-drains on these properties are higher so they have less benefit from the drainage works.
In response to questions, Mr. DeVos said that he considered the size of each lot and used his judgement to assess benefit based on the size and where the sub-drains are located. He said that large lots were assumed to have proportionally less roof and paved area than small lots, but that he did not measure the area of each roof. He said he did not adjust the drainage coefficient on properties with large gardens as gardens may be there one year but not another.
Mr. DeVos explained that the cost of damaging crops during the construction the drain improvements was included in his cost estimate in the report, but that the cost of the hearing was not.
Mr. DeVos submitted that the market value of Mr. Simms’ property will be improved as a result of the proposed work as he will have a property that is properly drained.
Findings
In considering the evidence before it, the Tribunal finds that it is appropriate that the cost of upgrading the Davis Drain to provide drainage for the subdivision be assessed to the subdivision landowners. The division of costs between the subdivision and agricultural properties has been done in a reasonable and logical manner. The Tribunal finds the apportioning of costs between outlet liability and benefit to be reasonable. The Tribunal finds that the engineer provided an acceptable explanation as to how he apportioned costs between different lots in the subdivision and it accepts his rationale.
With regard to Mr. Simms’ property, the Tribunal finds that the engineer used the same methodology to calculate the assessment for this property as he used for the other properties in the subdivision. The Tribunal finds no reason to adjust the assessment to this property.
The Tribunal does not find that there are sufficient grounds or reasons to allow either the appeal of Steve Simms, nor allow the other parties who made representations to pursue an appeal of their respective assessments.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The appeal of Steve Simms under Section 54 of the Act is dismissed.
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.
The reason for this decision is the Tribunal was convinced by the evidence that the assessments for this project are fair and reasonable.
Dated at Harriston, Ontario this 9th day of May, 2001.