Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West
Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West
Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Gauthier-Cusson Requisition Drain Township of Champlain
Gauthier-Cusson Requisition Drain (RE) 2001 ONAFRAAT36
STATUTE:
Drainage Act
HEARING:
July 17, 2001
DATE OF DECISION:
July 25, 2001
2001-36
NEUTRAL CITATION:
2001 ONAFRAAT36
Gauthier-Cusson Requisition Drain
Township of Champlain
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 Dorilla Cusson 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 Gauthier-Cusson Requisition Drain in the Township of Champlain.
Before: John Taylor, Vice Chair Jack Young Vice Chair
Gertrude Levac, Member Terry Denison, Vice Chair
Appearances:
Dorilla Cusson, appellant
Noël Berthiaume, counsel to appellant
Gaëtan Lascelles, P. Eng., witness for the appellant.
André Desjardins, P. Eng., author of report, representing the Municipality
Neil Levac, P. Eng., witness representing the Municipality
Robert Gauthier, landowner
DECISION OF THE TRIBUNAL
This appeal was heard in Alfred, Ontario on Tuesday, July 17, 2001. Mr. Cusson appealed under Section 48 and Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision and from the Engineer’s Report by André E. Desjardins Engineering (1992) Limited, dated August 8, 2000.
Mr. Robert Lefebvre, Clerk-Treasurer of the Township of Champlain (the Municipality) 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 Gauthier-Cusson Requisition Drain, dated August 8, 2000▬ 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. André Desjardins, P. Eng told the Tribunal that he had been retained by the Municipality to design a drainage works to provide an outlet for a subdivision known as Place Riviera Place. Mr. Desjardins explained that because the drainage works requested was a requisition drain, he could only assess the cost of the drain to lands lying up to 750 metres on either side of the proposed drain, rather than lands in the entire watershed. He estimated that there were 450 acres in the watershed and that 156 acres of this land could be assessed for the drain.
Mr. Desjardins explained that a ditch at the west end of the subdivision flooded due to insufficient outlet. He said he considered two possible routes and determined that the most effective solution was to provide drainage through a wooded area on the Cusson property (Roll No. 01-244-00) to an existing ditch on a property owned by the George C. Stevens Estate. He proposed the clean out of existing ditches on land owned by Mr. Cusson and Place Riviera Place Inc.. The proposed construction on the Cusson property consists of 750 feet of ditch, approximately 2 feet deep, at a 0.18% gradient. The total length of the drain is 1350 feet. He also recommended the installation of twin twenty-foot long 36-inch diameter culverts, under an access road on the Cusson property. Mr. Desjardins said the outlet of the drain into a private ditch was only 6 inches above the level of the Ottawa River.
Mr. Desjardins estimated the cost of the drainage works at $7,450. He said he had apportioned the cost of the drainage works in the ratio of 60% benefit liability and 40% outlet liability, as this was his normal custom. He explained that 75% of the benefit portion was charged to lands in the subdivision, and 25% to the Cusson property. He used a value of $400/acre in calculating the allowances. He said he did not provide an allowance to the George C. Stevens Estate as the drain would enter the ditch on this property at the same location as an existing ditch. Mr. Desjardins said he did not distinguish between developed and undeveloped lots in the subdivision in calculating outlet liability, as he designed the drain for a fully developed subdivision.
Mr. Desjardins explained that Mr. Gauthier, the developer of the subdivision, had agreed to pay all costs assessed to lands in the subdivision, and that the Engineer’s Report provided that the Municipality was to pay the costs of maintaining the drain, except the cost of culvert replacement.
Mr. Desjardins explained that the land in the drainage area was very flat and that the soil on the Cusson property was black muck over clay.
The Issue
The issues before the Tribunal were:
Should the drainage works be constructed as specified in the Engineer’s Report by André E. Desjardins Engineering (1992) Limited, dated August 8, 2000?
Are the assessments and allowances proposed in the Engineer’s Report by André E. Desjardins Engineering (1992) Limited, dated August 8, 2000 on the Gauthier-Cusson Requisition Drain, and confirmed by the Court of Revision appropriate?
Does the proposed drainage works qualify as a requisition drain under Section 3 of the Act?
The Evidence and the Findings
Gaëten Lascelles, P. Eng.
Mr. Gaëtan Lascelles told the Tribunal he was a Civil Engineer, he had experience with municipal drains, and he had been retained by the appellant to review the Engineer’s Report. Mr. Lascelles said it was his view that:
Mr. Desjardins had a possible conflict of interest as he worked for Mr. Gauthier, and had also been retained by the Municipality to design a drainage works to solve a problem in a subdivision developed by Mr. Gauthier.
The estimated cost of the works should be $13,984, which is higher than the statutory limit of $7,500 for a requisition drain.
Mr. Cusson’s land would not benefit from the proposed drainage works, as he would be unable to farm it or build upon it.
The rate of flow of water between the subdivision and the Cusson property would increase, and water would pool on the Cusson property, rather than on lands owned by Mr. Gauthier.
Water would back-up the drain onto the Cusson property when the river rose in the spring.
There was another potential route which would effectively drain the subdivision without using lands adjacent to the subdivision.
The flow of water from the subdivision onto the Cusson property would increase over time as houses were built and roads paved.
Mr. Lascelles explained that Mr. Cusson was amenable to the construction of a shallower ditch which would allow water to enter his land at a slower rate of flow.
In response to questions, Mr. Lascelles acknowledged that in the spring ice and snow could restrict water flow in the alternate drainage route he proposed. He said that the ditch required on that route would be 2,100 feet long and that approximately 500 feet would need to be 10-12 feet deep.
Mr. Lascelles said that the main difference between his cost estimate and that of Mr. Desjardins was the cost of excavation. He said he used a cost estimate of $2 per foot for excavation on ordinary land, but increased it to $10 per foot for excavation on black muck.
Dorilla Cusson, Appellant
Mr. Cusson testified that his land was usually wet but that it did drain into a ditch on a neighbouring property owned by the George C. Stevens Estate. He said that there was a lagoon on the Stevens property which had been built by a paper company, and that the Stevens ditch carried water around the lagoon. He said the ditch ran along his property line for approximately 100 feet and that it always had water in it.
Mr. Cusson said he used his land for a woodlot and for fishing and said that he area was of interest to bird researchers. He said he also had a golf range on the front of the property but had no plans to further develop the land.
Mr. Cusson explained he was concerned with the proposed drainage works as he believed that it would result in more water sitting on his land, and more land damaged by spring run-off. He said that water normally flooded to the level of his access road in the spring. He said he would not be able to sell the land if there were water sitting in a ditch on the property. He said that he had not been assured that no additional water would pool on his property if the proposed drainage works were built. Mr. Cusson said he would oppose the drainage works even if he did not have to pay any of the cost of the drain.
Mr. Cusson said he did not believe that a 10-12 foot ditch on the alternate route his engineer proposed would be dangerous as he knew there were 30-foot deep drainage ditches in Hawkesbury.
Neil Levac, P. Eng.
Mr. Levac explained that he acted as a consultant to the Municipality with regard to the approval process of the Place Riviera Place Inc. subdivision. He explained that the subdivision agreement put the responsibility on the developer to acquire the appropriate easements if it is necessary to drain the subdivision over adjacent lands, but the Municipality could obtain these rights and charge the cost to the developer. He referenced the subdivision agreement which requires that “the Owner shall obtain either by deed, transfer, grant or transfer of easement or licence the necessary outlet and shall transfer or assign the interest so obtained to the Municipality”. He explained that in the event that the developer did not obtain a drainage outlet, the agreement provides that “the Municipality may obtain the necessary easements or interests and the Owner shall pay all costs thereof”.
Mr. Levac also told the Tribunal:
The subdivision plan can be changed with the approval of the Municipality.
Originally the subdivision plan contained a larger park, and the drainage easement was through this park. The Municipality had sold much of the park land back to the developer. Houses could be built on this floodplain, with some restrictions.
The subdivision was registered.
There was no restriction on maximum house size.
He agreed that roads should have a greater run-off coefficient than lands, but did not agree that residential land in the area should have a greater coefficient than vacant land. He explained that loam imported for lawns tended to absorb water better than native soil and flat topography minimized run-off.
He did not agree that a storm water management pond would be advantageous in this subdivision.
Mr. Levac said he could not provide an opinion on the adequacy of the two drainage options proposed as he had not had an opportunity to review them.
André Desjardins, P. Eng
Mr. Desjardins told the Tribunal that he agreed with the cost estimate provided by Mr. Lascelles, except for the cost of excavation in black muck soil. He said that this cost varied according to the equipment used and said that the Drainage Superintendent had excavated in this soil for $1.50/foot. He also noted that Mr. Gauthier owned excavating equipment and said that he may tender a bid for the work which would allow it to be constructed for under $7,500.
Mr. Desjardins argued that Mr. Cusson would benefit from the proposed drainage works as water would be channeled through his property and as a result, land on either side of the ditch would be dried up, except in the spring. He said that water has always drained to the Cusson property and he did not believe that Mr. Cusson should be paid an injuring liability pursuant to Section 23 of the Act, as the volume of water entering his property was not expected to change. He acknowledged that the rate of flow would increase if the water was channeled through a drain. Mr. Desjardins pointed out that of the water entering the Cusson property, only 25% originated on lands owned by Mr. Gauthier.
Mr. Desjardins said that the route he chose for the drain was the least expensive option. He explained that he recommended placing two culverts rather than one under the Cusson access road as the road was not very high. He explained that smaller outlet pipes were generally preferred on farmland and that the slope of the drain also affected the size of culvert chosen. He acknowledged that he did not complete a cost analysis of the route that would keep the drain on land in the subdivision, but said that based on the depth of the drain required, he opted for the route through the Cusson property.
Mr. Desjardins also said:
Approximately 60 lots would drain into the proposed Gauthier-Cusson Requisition Drain.
Lots sold for approximately $20,000 each.
The lots were 260-300 feet deep in the affected area.
He did not believe he had a conflict of interest.
He based his assessments on the provisions in the Act, not the subdivision agreement that provided that Mr. Gauthier pay the cost of obtaining drainage for the subdivision.
He believed the construction costs for the drain would come in at or below the amount he estimated, but said the engineering cost would increase. He explained that he had not realized he would be required to translate his report and he had not included the cost of an appeal in his estimate.
Robert Gauthier, Witness
Mr. Robert Gauthier explained to the Tribunal that he had originally offered to pay the entire cost of the drainage works, provided everyone agreed to proceed. He said most people agreed with this proposal but Mr. Cusson did not.
Summations
Mr. Berthiaume argued that a basic principle is that no one can discharge water on the land of another person; it must be taken to a natural watercourse outlet. He said he did not believe there is a natural watercourse on the Cusson property. He referred the Tribunal to Section 1 and Section 15 of the Act. He also suggested that the cost estimate submitted by Mr. Desjardins was too low as it did not include sufficient allowances for Mr. Cusson or the George C. Stevens Estate, and did not accurately reflect the engineering cost. He argued that the estimate should have exceeded $7,500 and that the drain would not then qualify as a requisition drain under Section 3 of the Act.
Mr. Berthiaume said the construction of the subdivision was the only reason the drainage works was needed. He said the flow of water in the proposed drain would increase over time as the lots were developed. He suggested that an effective storm water management system in the subdivision or the construction of a drain within the subdivision were more appropriate solutions to the drainage problem. He asked the Tribunal to award costs to Mr. Cusson.
Mr. Desjardins said that the proposed drain would run through existing ditches, and a shallow indentation on the Cusson property where water already flows. He said he did not believe the Cusson property would be damaged as he said any increase in the rate of flow of water onto the property would be minor.
Findings
The Tribunal finds the portion of the private ditch on the property identified by Roll No. 02-09-006-001-22800 (George C. Stevens Estate) which is to accept water from the Gauthier-Cusson Requisition Drain is to be included in the drainage works and the landowner is to be compensated.
The Tribunal finds that Mr. Cusson is entitled to receive an allowance for injuring liability pursuant to Section 23(2) of the Act, due to an increased rate of flow of water on the Cusson property. The Tribunal finds the other allowances recommended in the Engineer’s Report are reasonable.
The Tribunal was persuaded that the Cusson property would receive some statutory benefit from the construction of this drainage works, but finds that this benefit is over-stated in the Engineer’s Report. The evidence clearly indicates that most of the statutory benefit on this drain should be assessed to the lands in the subdivision.
The Tribunal finds that the 60:40 ratio of benefit liability:outlet liability chosen by the engineer is not appropriate for this drainage works. The evidence suggests that the main reason for the proposed drainage works is to provide an outlet for the subdivision.
It is unusual for a municipality to agree to bear maintenance costs for drainage works which might otherwise be assessed to landowners benefiting from the drain. The Tribunal does not object to the provision in the Engineer’s Report that the Municipality should bear the costs of maintenance of the drain, given that the Municipality has accepted this approach. However, it is normal that the cost of future culvert replacement be included in normal maintenance for the drainage project.
As Mr. Gauthier has agreed to pay all the costs assessed against lands in the subdivision, the Tribunal will so order. The Tribunal was advised that the subdivision agreement for Place Riviera Place Inc. obligates the developer to pay for the cost of drainage. The requisition drain process provides the developer the mechanism to obtain the required drainage outlet.
The Tribunal decided to accept the cost estimate in the Engineer’s Report, despite contrary evidence presented regarding excavation costs. The Tribunal recognizes the final cost of this drainage works may exceed $7,500 as a result of its decision. However, the Tribunal was persuaded that the original estimate was reasonable at the time it was prepared. The Tribunal finds that the project meets the requirements set out in Section 3 of the Act, and that it is a requisition drain.
The Tribunal finds that a portion of the costs incurred by Mr. Cusson may be charged to the Municipality.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Engineer’s Report is to be amended to include the portion of the private ditch on the George C. Stevens Estate which is to accept water from the proposed drainage works in the Gauthier-Cusson Requisition Drain.
“Appendix “B” Allowances for Land Use and Damages” in the Engineer’s Report is to be amended as follows (changes to individual properties marked with asterisk):
Roll No.
Owner
Land Use
Land Damages
Injuring Liability
Total
02-09-006-001-244-00
Dorilla Cusson
$140
$344
$2,500*
$2,984
02-09-006-001-22800
George C. Stevens Estate
$100*
0
0
$100
Total
$240
$344
$2500
$3,084
- “Appendix “A” Schedule of Assessment” in the Engineer’s Report shall be deleted and replaced with the following schedule, including footnotes.
Roll No.
Owner
Lot
Con.
Acres
Total Assessment
02-09-006-001-254-00*
Place Riviera Place Inc.
16/17
B.F.
80.00
$6,800.00
02-09-006-001-244-00
Dorilla Cusson
16
B.F.
36.00
$500.00
Bergerie Rd.
Champlain Township
4.50
$100.00
County Roads #4 and #24
United Counties of Prescott and Russell
2.50
$50.00
Total
$7,450.00
- While the total of $6,800.00 is assessed against all the Place Riviera Place Inc. lands within the area which may be assessed to the requisition drain, for administrative purposes the assessment shall be against Roll No. 02-09-006-001-254-00.
** The final assessments shall be prorated based on the final cost of the project.
The Engineer’s Report is to amended to include the cost of future culvert replacement in the costs of maintenance for this drainage works. The Engineer’s Report provides for the Municipality to pay for the maintenance of this drain.
The Tribunal awards costs to Mr. Cusson, fixed at $500.00, to be paid by the Municipality. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works. It is ordered that there be no other order as to costs.
Dated at Tilbury, Ontario this 25th day of July, 2001.