Agriculture, Food and Rural Affairs Appeal Tribunal
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
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: Louks Drain Township of Norfolk
Louks Drain (RE) 2001 ONAFRAAT 35
STATUTE: Drainage Act
HEARING: June 26, 2001
DATE OF DECISION: July 20, 2001
2001-35
NEUTRAL CITATION: 2001 ONAFRAAT 35
Louks Drain
Township of Norfolk
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 John Soenen, Nick and Marcia Wall, Maria Janzen, and Peter Wall under Section 48 and Section 54 of the Drainage Act from a decision of the Court of Revision and the Engineer’s Report on the Louks Drain in the Township of Norfolk.
Before: Andrew Osyany, Vice Chair Jack Young, Vice Chair Russell Piper, Member Mary Field, Member
Appearances: Mr. John R. Spriet, P.Eng. John Soenen, appellant Nick Wall, appellant Suzanna Janzen, representing appellant Maria Janzen
DECISION OF THE TRIBUNAL
This appeal was heard in Langton, Ontario on Tuesday, June 26, 2001. John Soenen, Nick and Marcia Wall and Maria Janzen appealed under Section 48 and Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision and the report by Spriet Associates, Consulting Engineers, dated July 21, 2000 on the Louks Drain in the Township of Norfolk.
Mr. Peter Wall also appealed under the same sections of the Act, but sold the affected property prior to the Hearing in this matter. The new owner(s) of the property were informed of the Hearing but did not attend.
The Township of Norfolk was amalgamated with other municipalities into the County of Norfolk on January 1, 2001. Ms. Jill Ostrowercha, Drainage Clerk, County of Norfolk, 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 Engineer’s Report on the Louks Drain, Township of Norfolk 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 states:
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 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. John R. Spriet, P. Eng. told the Tribunal the Louks Drain was designed to be 300 meters of open ditch and 830 metres of closed 8” to 10” tile. He said the drain was to be closed where it passed through farmland and residential lots and would be an open ditch through a wooded area. He said there would be catch basins at low points and in ditches adjacent to Regional Road #24. Mr. Spriet explained there was a history of flooding of the residential lots and the owners of some of the lots had petitioned for a drain. The total watershed is approximately 13.0 hectares.
Mr. Spriet explained that the location of the drain was chosen to minimize costs. He said that he had also tried to minimize the length of drain placed on the property owned by Nick and Marcia Wall (Roll No. 30-20-084), at the owners’ request.
The Issue
The issues before the Tribunal were:
Is the construction of the drain warranted given the projected cost of the drainage works and the anticipated benefits of the drainage works?
Should the design of the drain be modified?
Are the assessments as proposed by the Engineer’s Report, and upheld by the Court of Revision, appropriate?
The Evidence and the Findings
Nick Wall, Roll No. 30-20-084
Mr. Wall told the Tribunal that he did not believe the Louks Drain was necessary as he had not seen water pooling on the residential lots, except in 1997 when there had been a quick thaw in the spring. He suggested that the filling in of a ravine, on a property across the road from the residential lots, also contributed to the flooding. Mr. Wall said he had dug a pond in the watershed which had resolved the drainage issue.
Mr. Wall told the Tribunal that if it allowed the construction of the drainage works that he would like it to be re-routed to run alongside Regional Road #24, or alternatively, to be routed under the road and into a ravine. He noted that there was a plan for a Cronmiller Drain in the Municipality’s files which would drain the residential lots to the south, under the road, and into the ravine.
With regard to his assessment, Mr. Wall indicated that he would receive no benefit from the drain as the affected area of his land was wooded and was used in waterfowl and livestock production. He said he did understand that a future owner may have a different use for the property. But, he said that he did not need it drained and that he wished to build a second pond in the watershed.
Mr. Wall also raised a concern that the drain would become polluted as it was to run near septic beds. He also questioned the validity of the petition for this drain.
John Soenen, Roll No. 30-20-083
Mr. Soenen explained that he did not want the drain and that his practice had been to resolve his own water problems. He explained that he had dug a shallow ditch which the engineer proposed to incorporate into the drain. He explained the ditch carried overflow from a farm pond past the residential lots to a wooded area on the Demaere property (Roll No. 30-20-077-01). He testified that he had not observed any flooding on the residential properties in the past two years. He said that before he dug his ditch the spring run-off accumulated on the Johnson property (Roll No30-20-081). Mr. Soenen confirmed that water had pooled on the residential lots in 1997. He agreed that there was no outlet for water from the residential lots, but suggested that Mr. Wall’s proposed new pond would accept water from these lots.
Mr. Soenen explained that his soil was white sand and that the water table was approximately eight feet below the surface. Mr. Soenen said that he cash cropped a 10 acre field on the west side of his property which was quite dry, but that he no longer farmed the east side of the property as it was poor land. He recalled that when he did farm it, the land was wet in the spring.
With regard to his assessment, Mr. Soenen stated that he would receive no benefit from the proposed drain and suggested his assessment was too high. He testified that good cash crop land in the area was worth approximately $1,500/acre.
Suzanna Janzen, for Maria Janzen, Roll No. 30-20-091
Ms. Janzen testified that she was the daughter of Mrs. Maria Janzen and was speaking on her mother’s behalf. She explained her mother had signed the petition for the drain but that she did not want the drain.
Ms. Janzen said her mother’s property had flooded twice, once in 1971 and once in 1997, after loggers blocked off a ravine to the south of the property. She did not recall the cause of the 1971 flooding. Ms. Janzen said that since Mr. Wall dug his pond, there had been no water standing on the property. She raised a concern that the proposed route of the drain would take it very close to her mother’s septic bed and her well.
Ms. Janzen said her mother’s property was adjacent to the Louks property (Roll No. 30-20-087) and that both she and her mother had lived there since 1969. She could not recall the Louks having any drainage problems before 1997, but noted that the property had been backfilled several times.
John R. Spriet, P. Eng.
Mr. Spriet clarified that the Cronmiller Drain had been designed in the 1980’s but was not built as the petition was withdrawn. He testified that it would be more expensive to build a drain along the proposed Cronmiller route, or alongside Regional Road #24, and that he recommended no change to the route proposed in the Spriet Associates report. He explained that the proposed drain was designed to be as shallow as possible, and that it would remove excess surface water but would not drain septic beds. Mr. Spriet explained that he favored tile drains in areas like the Louks drain as he believed that over the long term the maintenance costs of open ditches would more than offset any savings in construction costs.
Mr. Spriet told the Tribunal that he had not been asked to undertake a benefit cost analysis on the proposed drainage works. He said that the water table rose cyclically in Norfolk County and that at times there is flooding in many places in the County. He said that the flooding of the residential lots was the impetus for this drainage project.
With regard to outlet liability assessments. Mr. Spriet told the Tribunal that he had used a rate of $146/ha on agricultural land for the open portion of the drain, that the Janzen property was assessed 3 times the farm rate and that the other residential lots were assessed 6 times the farm rate. He said that on average, the Road Authority was charged $900/ha. He explained the Janzen lot was significantly larger than the other lots and that a smaller proportion of the property would be covered with roofs and driveways. For the closed portion of the drain, Mr. Spriet said he used a rate of $682/ha on the Nick and Marcia Wall property, and 3-7 times as much on the residential lots, $3000/ha for the Road Authority and $238/ha on the Soenen property.
Mr. Spriet explained he did assess extra benefits to four residential lots and the Soenen property as it was necessary to build the drain deeper between station 0+700 to 0+900 on the Soenen property. Mr. Spriet said having heard Mr. Soenen’s testimony, he was not as confident in his assessment of this extra benefit to his property. He acknowledged that the existing Soenen ditch was working but maintained the Soenen property would benefit from the drainage works as it would have a better outlet and the land could be under-drained. He said he felt the assessments on the Nick and Marcia Wall property and the Janzen property were fair.
Mr. Spriet explained that for his maintenance schedule, he reduced statutory benefit assessments by half, added these to the outlet liability assessments and charged maintenance costs pro rata on the total assessments for each property.
Findings
The Tribunal finds that there was insufficient evidence presented to persuade it that the drainage works should not be constructed pursuant to Section 48(1)(a) under the Act.
The Tribunal was not persuaded that the proposed route of the Louks Drain should be altered from that described in the Engineer’s Report.
As all the parties acknowledged, the driving impetus for the whole project is the need to provide drainage to the residential lots. In assessing the cost of the project, this must be kept in mind and recognized. However, the overall results of the engineer’s assessment, subject to some minor adjusting, appear to be fair, and there is no need to refer the report back to the engineer for reconsideration.
The Tribunal finds that the four residential lots in the area requiring drainage will benefit substantially from the provision of a legal drainage outlet. The Tribunal finds that the properties identified by Roll Nos. 30-20-87 (I. Louks) and 30-20-86 (D. Robinson) will benefit significantly more than the other two residential lots. The statutory benefit assessments should reflect this. Further, the Tribunal is of the view that the assessment on the property identified by Roll No. 30-20-091 (M. Janzen) should not be increased.
The Tribunal agrees with Mr. Spriet that the statutory benefit assessment on the Soenen property is overstated in the Engineer’s Report and accepts his recommendation that it be reduced.
The Tribunal finds that the outlet liability assessment on the property owned by Nick and Marcia Wall should be reduced by a total of $500 as the pond in the watershed and the wooded area will retain more water than would cultivated land.
The Tribunal notes that the engineer has not provided any allowance to the Municipality for land taken at the side of the road for this drain. Generally, the engineer should consider the question of an allowance to the Municipality for the reason that part of the municipal property is, in effect, being appropriated for the benefit of the local lands. However, if an allowance were provided to the Municipality in this case for the taking of the road, then the statutory benefit assessment would need to be adjusted in order to arrive at a fair result, therefore, in that regard the Tribunal is not ordering any change.
The Tribunal notes that the question of the validity of the petition falls under the jurisdiction of the Drainage Referee, subject to the procedural time constraints set out in the Act.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
- “Schedule “C” – Assessment for Construction”, in the Engineer’s Report is to be amended such that the statutory benefit related to the Closed Portion of the Main Drain assessed to the Soenen property (Roll No. 30-20-083) is reduced as follows:
Roll No. 30-20-083
J.&H. Soenen
Benefit Assessment Engineer’s Report
Change
Revised Benefit Assessment
Main Drain-Closed Portion
$7,180
($1,890)
$5,290
Total
$7,180
($1,890)
$5,290
- “Schedule “C” – Assessment for Construction”, in the Engineer’s Report is to be amended such that the outlet benefit related to the Nick and Marcia Wall property (Roll No. 30-20-084) is reduced as follows:
Roll No. 30-20-084 N.&M. Wall
Outlet Assessment Engineer’s Report
Change
Revised Outlet Assessment
Main Drain - Open Portion
$600
($88)
$512
Main Drain - Closed Portion
$2,800
($412)
$2,388
Total
$3,400
($500)
$2,900
- “Schedule “C” – Assessment for Construction”, in the Engineer’s Report is to be amended such that the statutory benefit related to the Closed Portion of the Main Drain assessed to the properties identified by Roll Nos. 30-20-086, 30-20-087 and 30-20-089 are increased as follows:
Property
Benefit Assessment Engineer’sReport
Change
RevisedBenefit Assessment
30-20-086 D. Robinson
$1,300
+$1,000
$2,300
30-20-087 I. Louks
$1,300
+$1,000
$2,300
30-20-089 P. & E. Wall
$1,000
+$390
$1,390
Total
$3,600
+$2,390
$5,990
The engineer is directed to re-calculate “Schedule ‘D’ – Assessment for Maintenance”, in the Engineer’s Report, based on the formula used in the original report, to reflect the changes described above.
The appeals of Maria Janzen and Peter Wall under Section 54 of the Act are dismissed
All appeals made under Section 48 of the Act are 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.
Dated at Shelburne, Ontario this 20th day of July, 2001.