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:

Fekete Drain Municipality of Thames Centre

Fekete Drain (RE) 2001 ONAFRAAT 40

STATUTE:

Drainage Act

HEARING:

July 31, 2001

DATE OF DECISION:

August 17, 2001

2001-40

NEUTRAL CITATION:

2001 ONAFRAAT 40

Fekete Drain

Municipality of Thames Centre

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 M. and N. Sauro under Section 64 of the Drainage Act with regard to the quality of construction of the Fekete Drain in the Municipality of Thames Centre.

Before: Andrew Osyany, Vice Chair; Paul Gillen, Vice Chair; Jack Young, Vice Chair

Appearances:

Mario Sauro, appellant

Nancy Sauro, appellant

Vic Sauro, representative of the appellants

Mark Snowsell, witness for the appellants

Dennis Shand, Drainage Superintendent for Municipality

John R. Spriet, P. Eng, engineer who prepared report

Margaret Wilson, landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Dorchester, Ontario on Tuesday, July 31, 2001. Mr. and Mrs. Mario and Nancy Sauro 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 Fekete Drain.

Mr. Stewart Findlater, Acting Deputy Clerk, Corporation of the Municipality of Thames Centre (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 Spriet Associates Engineer’s Report on the Fekete Drain, Township of North Dorchester, dated March 9, 1999 and marked “revised by the Tribunal, July 23, 1999”▬ parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing. The Township of North Dorchester has been amalgamated into the Municipality of Thames Centre.

Section 64 of the Act states:

“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).”

Background

A previous panel of the Tribunal, in a decision dated July 23, 1999 issued an order which included the following:

• “The alignment of the open ditch on property Roll Number 55-087 (Sauro) is to be determined in the field in consultation with the owner and is to go through an optimum location to preserve as many trees as reasonably possible in the Sauro bush”

• “On property Roll Number 55-087 (Sauro), the excavated material is to be spread to a maximum width of 18 metres from the top of bank and to a maximum depth of 0.6 metres preserving as many as possible of the large trees.”

The Issues

The issues before the Tribunal were:

1. Was the drainage works constructed in a location that was determined as directed in the Tribunal Order dated July 23, 1999?

2. Was the drainage works constructed as per the specifications in the Engineer’s Report as revised by the Tribunal?

3. Was the brush removed during construction of the drainage works properly cut and stacked?

The Evidence and the Findings

Vic Sauro, Witness and Mario Sauro, Appellant

Mr. Vic Sauro and Mr. Mario Sauro presented their evidence as a panel. They told the Tribunal that the appellants had eight concerns with regard to the construction of the Fekete Drain:

1. The Tribunal had ordered that the route of the drainage works on the Sauro property (Roll No. 55-087) was to be determined in consultation with the landowners, and that the location of the drain was to be such that as many large trees as possible be preserved. Mr. M. Sauro said he told Mr. Shand, the Drainage Superintendent, that he wanted the drain located to the south and west of the location staked by Mr. Shand, as this was closer to his agricultural land. He said that he was told the drain location could not be changed. He submitted the trees that would have to be removed on his preferred route were smaller than those removed on the route staked by Mr. Shand.

2. Mr. V. Sauro told the Tribunal that the topsoil was to be stripped during construction of the drain and then replaced. He said that topsoil was mixed with less valuable soil and was not available to the appellants.

3. Mr. V. Sauro told the Tribunal that spoil had been piled to a depth higher than 0.6 metres (2 feet) on the Sauro property. Mr. M. Sauro estimated that the spoil was piled too high on 95% of the length of drain and that it was piled to a level of 3 feet in some locations.

4. Mr. V. Sauro said the spoil had been placed on the south side of the drain, creating a 2-foot high berm between farmland and the drain. He said that 4-inch plastic pipe was placed through the spoil in an attempt to fix the problem, but that this was ineffective as the ends of the pipe float and as the pipe will clog with debris over time. He noted that the specifications in the Engineer’s Report were that water should not be trapped behind the spoil bank.

5. Mr. V. Sauro said that spoil had been spread around trees on the Sauro property, that one tree had died, and that others were threatened.

6. Mr. V. Sauro submitted the drain is wider than the 8 metres specified in the report. He said he had done quick calculations on the width, taking measurements every 25 metres, and estimated the drain was 9 metres wide, on average. He explained that it was difficult to measure due to the presence of weeds.

7. Mr. V. Sauro told the Tribunal that trees had been cut and piled against standing trees, one tree had been knocked over and then cut, some logs were split and of no lumber value and that the scrub pile contained large trees that should have been cut. Mr. M. Sauro explained he had cut a cross-section of a tree from the scrub pile approximately 1 foot from the end of the log, and that the cross-section was approximately 8 inches in diameter. He said this tree should have been cut and piled with large logs.

8. With regard to Branch 1 of the drain, Mr. V. Sauro said that there had been a ditch on the Sauro property adjacent to the new tile drain and that it had been partially filled with topsoil during construction of the drain. He also said some topsoil was removed from the Sauro property and used on land owned by the Municipality. He submitted that topsoil should have been placed back on top of the drain, as was done on an adjacent property.

Mr. V. Sauro also asked the Tribunal to consider a site visit to the Sauro property to view the drainage works.

In response to questions, Mr. V. Sauro and Mr. M. Sauro indicated:

• The key concern at the 1999 hearing was with the benefit assessment in the Engineer’s Report. Mr. M. Sauro was also concerned with damage to his woodlot and poor compensation for trees to be removed.

• Mr. M. Sauro estimated 60-70 trees were removed during construction of the drain. The wood from these trees was accessible but more trees would have to be cut in order to reach them with machines. He acknowledged that he indicated he did not want any extra trees cut during construction of the drain.

• There had been no consultation with regard to the location of the drain or the installation of 4-inch piping; Mr. M. Sauro had been consulted with regard to clear cutting to remove additional trees.

• The 4-inch tile is higher than the original drain. There are 4 or 5 tiles through the berm on the Sauro property; the most northerly tile is working.

• The level of water in the woodlot is higher than it was before the drain was built.

• Approximately 5 trees were surrounded by spoil and several others were partially surrounded.

  Mark Snowsell, Witness

Mr. Mark Snowsell testified that he was a Land Use Regulations Officer with the Upper Thames River Conservation Authority and that he had held that position for over ten years. He said that he was appearing on behalf of the Sauro family. He explained that the Conservation Authority has a responsibility in drainage matters, and that it had no concerns with the Fekete Drain if it is constructed as outlined in the Engineer’s Report, but that Mr. M. Sauro had raised a concern regarding the impact of the drain on his woodlot.

Mr. Snowsell told the Tribunal he had walked the length of the drain on May 31, 2000 and had been on the site on other occasions. He said the drain was put to the test in 2000 as the region had received high rainfall and the rainfall was exceptionally heavy on a number of occasions. He said that he had observed that:

• Logs larger than 6 inches in diameter had not been set aside.

• Topsoil had been stripped, more space would have been needed to properly separate topsoil from subsoil.

• Based on his visual estimations, it appeared that portions of the berm were higher than 0.6 metres.

• The 4-inch plastic tiles did not appear to be functioning properly.

• Soil had been placed around uncut trees.

Mr. Snowsell testified that in his experience, placing soil around the base of trees threatens their viability. He said that he believed that Branch 1 of the drain could be finished through the planting of grass.

In response to questions, Mr. Snowsell indicated:

• The drain was approximately 75-100 metres from agricultural land, on average. The distance ranged from 50 metres to 140 metres.

• There was not much fall between agricultural land and the base of the berm and he felt the berm could cause the flooding of agricultural land.

• There was a reasonable grade with quite a bit of fall in the drainage ditch.

• He did not see evidence of flooding beyond the woodlot in any of his four visits to the site.

• He had seen standing water in the woods on the Sauro property on one occasion in the spring or early summer; the water was less than 1 foot deep.

• The water in the drain was no more than 2 feet deep on the occasions he visited the site.

• He had seen evidence of unstable side slopes. He said there could have been surface erosion but that some moisture was seeping in from groundwater.

• He visited the site twice prior to construction of the drain and twice after it was completed.

• He estimated there were fewer than 50 trees in the log piles on the Sauro property. He said there was evidence they had been sorted but that there could have been more care taken.

• He had some practical experience working with trees but his expertise was with drains.

• It would be difficult to lower the berm as vegetation was now established on it.

• He had seen plastic tiling floating and was concerned that the tiles would clog over time. He thought the installation of 4-5 swales would be a better solution.

• He had helped Mr. M. Sauro and Mr. V. Sauro measure the width of the ditch. The width varied but was 10-11 metres at some points. The ditch also appeared to be deeper than specified.

Nancy Sauro, Appellant

Mrs. Nancy Sauro testified that she and her husband had not been consulted on the location of the drain until after it had been staked. She said she was told by Mr. Shand that the location could not be changed.

Dennis Shand, Drainage Superintendent and John R. Spriet, P. Eng.

Mr. Dennis Shand and Mr. John R. Spriet presented their evidence as a panel. They responded to the eight specific concerns raised by Mr. V. Sauro and Mr. M. Sauro:

1. Mr. Shand told the Tribunal that he used the landowners’ concern about damage to trees and the Tribunal order of July 23, 1999 as his guide in staking the drain. He said there was a pre-staking meeting with ratepayers on August 24, 1999 but no members of the Sauro family attended. He said that he personally staked the drain and that in his opinion there were approximately 40 trees with a diameter of 6 inches or greater in the area that the drain was located. He explained that there was an old irrigation pond and a right of way on the route chosen, and this path was chosen to minimize the destruction of large trees. He said he used aerial photographs to determine that this path would damage the least number of trees. Mr. Shand acknowledged that Mr. M. Sauro had asked him to relocate the drain to the south and west of the staked location. He said he did not relocate the drain as he was directed to find the optimum location preserving as many trees as possible. Mr. Shand said he had discussed removing all the trees in the 18 metre right of way with Mr. M. Sauro, as that was the recommendation of the County tree inspector. He said Mr. Sauro had directed that he was not to cut any more trees than he had already marked.

2. Mr. Shand said it was never intended that topsoil be stripped and replaced in wooded areas, but that the construction of the drain was such that soil was leveled and some of the topsoil was placed on top of the leveled areas. He said that not all of the topsoil was saved. He noted there was good grass cover on drain and the banks of open channel and that the ditch had stabilized. Mr. Spriet said they tried to leave as much topsoil as possible for the landowner.

3. With regard to the depth of the spoil, Mr. Shand said he and a student had measured the spoil bank with a laser level at intervals along the length of the drain. He said the average depth of the spoil was 0.58 metres but there were three measurements that were greater than 0.6 metres. He pointed out that the contractor had used much less land than allowed to spread the spoil. Mr. Spriet told the Tribunal that the spoil was piled deeper than specifications in order to save trees. Mr. Shand testified that a contractor was hired to repair another portion of the drain in 2000 and that at that time Mr. V. Sauro had indicated the appellants were satisfied with the construction of the drain through their woodlot.

4. Mr. Shand said that the spoil was placed on the south side of the drain on the Sauro property to be consistent with the practice followed on adjacent lands, where there was an existing right of way to the south of the drain. He explained that 4-inch plastic piping was installed at the contractor’s expense in six locations on the Sauro property. He said he did not believe the piping would fill with sediment but offered to cover the ends with filter cloth and stake down any loose ends. He pointed out the drainage system was functional in 2000, which was one of the wettest years on record.

5. Mr. Shand said that spoil had to be placed near trees as the appellants had not given him the authority to clear cut the full right of way. He said that in three years only one tree had died and that it was at tree that originally had two trunks, but was damaged during construction of the drain. He also said one tree marked to be saved had to be cut down during construction.

6. Mr. Shand said that the ditch was not wider than allowed. He said his laser measurements showed that while a portion of the drain is 9.2 meters wide, on average the width is 7.98 metres. He said the engineer had certified that the depth of the drain met the specifications in the plan.

7. Mr. Shand said that there were 40-50 large trees cut on the Sauro property and that some of them had been cut in half. He suggested that the tree cross-section sample provided by Mr. M. Sauro may have been from the top of one of the large trees. He said the logs were stacked in a location where they were accessible, but that he had no authority to build a road through the Sauro woodlot. He also noted there were a number of fallen trees in the right of way which were moved to the side but not stacked.

8. With regard to Branch 1, Mr. Shand said that there was a small open ditch on the Sauro property, the contractor did make a small bench for operating the tiling machine, soil probably fell into the original open ditch and that the property was re-graded after the tile was installed. He said there was no requirement for the Municipality to fill the old ditch. He said an existing steel pipe was used to connect the Sauro basement drain to the new Municipal drain. Mr. Shand said a berm built on land owned by the Municipality was built with soil taken from roadside ditches.

Mr. Spriet and Mr. Shand said the Municipality had no position as to whether a site visit should be undertaken or not.

Mr. Shand told the Tribunal that the Municipality had tried to resolve the dispute with the appellants, to avoid the cost of a hearing, but that the Municipality felt the appellants’ demands for compensation were excessive.

In response to questions, Mr. Shand and Mr. Spriet indicated:

• Mr. Shand understood Mr. M. Sauro wanted the drain in a different location but both the alternate route he suggested, and the originally staked route, would have resulted in more trees being damaged.

• If all the trees in the right of way had been cut there may have been over 100 felled.

• The route chosen was on slightly higher ground than the original location but the contractor did not charge a premium.

• Normally topsoil was not stripped and replaced in wooded areas.

• Mr. M. Sauro was adamant that he wanted trees saved. Mr. Shand would have preferred to clear cut the right of way.

• Three small water runs were constructed through the berm on the Sauro property.

• He had never seen a wet area behind the berm. Prior to construction of the drain, water was over 12 inches deep in the Sauro woodlot.

• There was a pre-construction site meeting on August 23, 1999. . On August 26, 1999, Mr. Shand met with Mr. M. Sauro. On September 7, 1999 a site meeting was held after the drain was staked out.

• At the Tribunal hearing in 1999 it became apparent that the specification regarding topsoil was incorrect.

• The 4-inch tiles could be made to work, or swales could be cut through the berm.

• The spoil could be levelled to lower the depth of the berm to 0.6 metres; but it may be necessary to damage more trees to level the spoil.

• The log and brush piles were better stacked than on most drainage projects.

• The Engineer’s Report did not call for the existing ditch adjacent to Branch 1 to be back filled.

• There was no physical reason the drain could not have been constructed on the route proposed by Mr. M. Sauro, but more trees would have been damaged. The cost of clearing extra trees would have been $1,500 to $4,000.

• There were some repairs to the drainage works on the Sauro property by the contractor in 2000, under warranty.

Margaret Wilson, Assessed Landowner

Mrs. Margaret Wilson submitted that landowners should not be assessed for the cost of repairs as the drain should have been constructed properly in the first place.

Summations

Mr. V. Sauro said that, ideally the appellants would like the drain re-located to their preferred location, but that failing that they proposed that:

• They be compensated in the amount of $8,000 for lost topsoil. He pointed out there was proportionally more excavation required on the Sauro property than on other lands on the drain.

• The spoil be spread such that it is at a maximum depth of 0.6 m throughout the length of the drainage works.

• Either the 4-inch tiles be provided with debris guards and tied down with stone, or swales be installed through the berm.

• They be compensated in the amount of $1000 as a global sum for dead trees, threatened trees and trees that were improperly cut and stacked. It was irrelevant if the wood was stacked better than on other drainage projects if it was not stacked according to specifications.

• They be compensated for land used in the amount of the actual width of the drain through woodlot.

• The old ditch adjacent to Branch 1 be filled and topsoil placed on top so it can be farmed.

• They be awarded $3,000 in costs incurred due to participation in the Hearing.

• Interest charges incurred by the appellants due to their withholding payment of their assessment on the drain be waived.

• No additional costs be charged to the drainage works.

Mr. Spriet submitted that:

• The main drain was constructed in the path of least resistance to trees, as per the Tribunal order dated July 23, 1999, and no compensation should be paid to the appellants due to the location of the drain.

• The construction was uniform throughout the length of drain and no other landowners were provided allowances for topsoil; although one owner chose to take topsoil at his own expense. He suggested the appellants receive no allowance for topsoil.

• He agreed the spoil should be leveled to ensure it is spread to a maximum depth of 0.6 meters.

• He was prepared to inspect the 4-inch tile inlets and small water runs and where necessary put physical swales through the berm to prevent ponding.

• The trees which had spoil piled against them would have been cut down if the Municipality had not attempted to save them.

• The width of the drain did not exceed specifications and no additional compensation should be paid for land taken for the ditch.

• The logs and brush were accessible and no further action should be taken with regard to the logs and brush.

• He proposed no additional work be undertaken on Branch 1 of the drain as there are similar old ditches acting as water runs on other parts of the drain, and as these are overflow outlets.

Mr. Spriet said the Municipality was not seeking costs.

Findings

The Tribunal decided a site visit was not necessary in order for it to understand the evidence before it.

The Tribunal finds that the Municipality is at fault with regard to not consulting with the Sauros in determining the location of the drain. The Tribunal recognizes that Mr. Shand attempted to follow part of the Tribunal order dated July 23, 1999 in staking the drain in a location that would minimize the destruction of large trees. However, with respect to the consultation part of the order, the Tribunal is not convinced that the engineer or drainage superintendent had any meaningful consultation with the landowners in determining this location. The Tribunal finds that it would not be practical to re-construct the drain on the route preferred by Mr. M. Sauro but it is prepared to award some compensation to the appellants for the inconvenience caused by the present location of the drain.

The Tribunal finds that the appellants were not treated any differently than any other landowner with regard to the stripping and replacing of topsoil. The Tribunal finds the specifications were not followed in this regard but it does not place a high value on topsoil mixed with the spoil, as the land in question was not in agricultural production. The Tribunal recommends that the engineer take greater care in documenting how drainage works are to vary from general specifications in future reports. Landowners and others are entitled to believe that a report means what it says.

The Tribunal wants to make it very clear that the drainage superintendent and the engineer are not entitled to make any changes they see fit to the engineering specifications or to the proposed drainage works during the construction phase. In the event that unforeseen circumstances force some changes, then it is necessary to have a supplementary as-constructed-report and apply to the Tribunal for approval.

The Tribunal finds that the Municipality is responsible for levelling the berm on the Sauro property such that the maximum depth of the spoil is 0.6 metres in accordance with the specifications revised by the previous panel of the Tribunal.

The Tribunal is concerned about potential ongoing maintenance costs related to the 4-inch plastic piping through the berm. The Tribunal finds that it is appropriate for swales, as required in the specifications, to be installed to ensure that water does not pond in the wooded area on the Sauro property.

The Tribunal finds that the Municipality did all it could to preserve trees, as requested by the landowners, and it finds the Municipality is not at fault with regard to the spreading of spoil around the bases of trees.

With regard to the width of the drain, the Tribunal finds the evidence of the Municipality to be more convincing than that of the appellants. The Tribunal finds that the open ditch through the Sauro property was built at the width specified in the Engineer’s Report.

The Tribunal finds that the logs and brush cut on the Sauro property, while not piled in a textbook fashion, were stacked in a reasonable manner.

The Tribunal finds that the appellants are not entitled to have the ditch adjacent to Branch 1 of the drain filled at the expense of the Municipality or the other landowners on the drain as backfilling of the channel was not specified in the report.

While the Tribunal faults the Municipality in some respects, there is no doubt that the Municipality went to great lengths in other respects to accommodate the appellants’ concerns before, during and after the constructions. Some of this “going the extra mile” was no doubt included in the cost of the drain, but the rest came out of the municipal expenses. Therefore, in all the circumstances, the Tribunal is of the view that, notwithstanding the appellants’ partial success, the appellants should bear their own costs of the proceedings.

ORDER OF THE TRIBUNAL

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

1. The Municipality is to pay a total of $3,000 to the owner of the property identified by Roll No. 55-087 (M. and N. Sauro). This is compensation for the intangible cost in not having the drain in a desirable location and for the small variances in the drainage works from the specifications in the report, and it includes a penalty component.

2. The Municipality is to level the spoil on the Sauro property to a maximum depth of 0.6 metres. The Municipality is also to install swales as needed so that no water will be trapped behind the spoilbank. The engineer shall certify to Municipality that this work has been done.

3. No costs in respect of this appeal shall be charged to the drainage works. 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 17th day of August, 2001