Balls Drain

Township of Blandford-Blenheim

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:

William Snell, Woodstock H. Batho, Woodstock Hazel Peter, Woodstock G. Robert Corlett, Woodstock Alec and Margaret Kelly, Woodstock I.R. McLeod, Woodstock Carol Bernice Stere and Orval Robert Stere, Woodstock Eastwood Auto Electric, Woodstock Ronald Chesney, Woodstock Wm. Robert Longworth, Woodstock Joyce Kleen, Woodstock Graham Robertson, Woodstock Reginald J. Bailey, Woodstock Ethel Barker, Woodstock Nellie Warkentin, Woodstock David and Ina Sanders, Woodstock

under Section 54 of the Drainage Act from a decision of the Court of Revision on the Balls Drain 2000 in the Township of Blandford-Blenheim; and by:

Ken Batho, Woodstock under Section 54, Section 48 and Section 65(5) of the Drainage Act from a decision of the Court of Revision and the Engineer’s Report, prepared by R.J.Burnside and Associates Ltd., on the Balls Drain 2000 in the Township of Blandford-Blenheim.

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

Appearances: E. Paul Elston, P. Eng., drainage engineer who prepared report. Herb Batho, appellant Keith Batho, witness Ken Batho, appellant Robert Longworth, appellant Alec Kelly, appellant Orval Stere, appellant Robert Corlett, appellant Ethel Barker, appellant Steve Scott, assessed landowner Robert Scott, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Drumbo, Ontario on Monday, August 13, 2001. The owners of 17 properties appealed under Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision on the Balls Drain - 2000. In addition to his appeal under Section 54 of the Act, Mr. Ken Batho appealed under Section 48 and Section 65(5) of the Act.

Mr. Keith Reibling, Clerk-Administrator of the Township of Blandford-Blenheim (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 R. J. Burnside and Associates Limited engineer’s report on the Balls Drain - 2000 dated December 14, 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.

Section 65 of the Act deals with apportioning assessments due to the division of land subsequent to the final passing of the bylaw and therefore the appeal by Ken Batho under this section is not applicable to this hearing.

Preliminary Matter

Mr. Paul Elston, P. Eng, asked the Tribunal to consider ordering amendments to the Engineer’s Report on the Balls Drain – 2000 to:

1. Provide a more accurate summary of the total watershed on page 2 of the engineer’s report.
2. Correct a typographical error on page 16 of the engineer’s report.
3. Correct a spelling error to an assessed landowner’s name and a roll number on pages 4, 14 and 17 of the engineer’s report and correct the spelling error on drawing number 1 of the report.

The Background

Mr. Elston told the Tribunal that the Balls Drain was originally constructed in 1912 as a closed drain with an outlet in the Anderson Drain. He said that Branch 4 of the drain was extended upstream in 1968. He explained that as a result of a 1972 report, Branch 2 of the Balls Drain was extended, a private drain was incorporated into the drainage works as Branch 5, a new branch – the Chesney branch - was constructed, and repairs to the drain were undertaken.

Mr. Elston told the Tribunal the existing watershed is predominantly farmland with a mix of non-agricultural uses and roads. He said the soil type was loam sands with some areas of muck. He said the watershed is approximately 625 acres and the total length of the closed drain to be constructed under this report is 1,786 metres. Mr. Elston explained that there was 18-inch tile in the lower portion of the drain, 14-inch tile in the middle and 10-inch tile at the top of the main drain. He said there was 4-inch tile in branch 1 of the drain. Mr. Elston said the general intent of his report was to replace portions of the main drain and extend it upstream in response to a petition for drainage by the owners of the property identified by Roll No. 20-025 (Scott property).

Mr. Elston explained that to distribute the costs of the proposed drainage works he first divided the main drain into three sections. He said within each section he allotted what seemed to be reasonable statutory benefit to properties and charged the balance of the cost as outlet liability, based on the length of drain used by each assessed property. He said that he used a statutory benefit:outlet liability ratio of 35:65, with some adjustments. He explained that to calculate run-off, he used factors of 0.5 on bush areas, 1 on cultivated land, and generally 3 on non-agricultural land, with some adjustments. Mr. Elston explained that he used the same approach to assessment on Branch 1 as he used on the main drain, except that he assessed the full cost of moving the drain off the road allowance to the Municipality.

In response to questions Mr. Elston indicated:

• He recommended replacing portions of the main drain because it was approximately 90 years old, it was not designed to current recommended standards and some areas in the watershed had poor drainage because of tile size and insufficient depth. He pointed out that he had to bring the upstream extension of the drain to a sufficient outlet.
• He considered designing the drain to a 1-inch coefficient, the current recommended standard. But, he opted for a ¾-inch drainage coefficient design due to cost considerations and the soil type. He also considered a ½-inch design but did not believe the cost savings of approximately $12,000 warranted reducing the capacity of the drain.
• He considered draining the Scott property with a new tile running from Branch 1 to an outlet in the Anderson Drain. He did not believe that was practical as the tile would have to cross Branch 2 and would result in an extra drain across the K. Batho property (Roll No. 020-024).
• The proposed work would lower the drain and increase the diameter of the tiles to 36-inches at the lower end and 27-inches upstream.
• The grade on the main drain was very flat at 0.08 feet per 100 feet. There was a much steeper gradient on some of the branches in upper watershed area but Branch 3 had a reasonably flat gradient.
• The proposed work would improve the drainage of low areas on the properties owned by H. Batho (Roll Nos. 020-018 and 020-019).

The Issues

The issues before the Tribunal were:

1. Is the construction of the drain warranted given the projected cost of the drainage works and the anticipated benefits of the drainage works?
2. Should the design of the drain be modified?
3. Are the assessments as proposed by the Engineer’s Report, and upheld by the Court of Revision, appropriate?

The Evidence and the Findings

Herb Batho Roll Nos. 020-018 and 020-019 and Keith Batho, witness

Mr. Herb Batho and Mr. Keith Batho presented their evidence as a panel. They told the Tribunal that they were concerned about the cost of the proposed drainage works and that they did not believe the drain had to be four times the capacity of the existing drain, as the existing drain worked well. Mr. H. Batho noted that only surface water entered the drain from the Stere property (Roll No. 020-039) as the old drain was no longer in use. He said he did not believe there would be more water drained from the Snell property (Roll No. 020-038) or the K. Batho property (Roll No. 020-024) as they were already systematically tiled. Mr. K. Batho explained that 5 acres of the H. Batho property was drained directly into the Anderson Drain and did not use the Balls Drain.

Mr. H. Batho said that he did not believe bush and wetland in the watershed should be assessed. He said that he had tried unsuccessfully to drain approximately 1 acre of muck land and that it would still not be feasible with the proposed improvements to the drain. He pointed out that the assessment on his property identified by Roll No. 020-019 worked out to $940/acre for 20 acres of worked land, whereas the assessment on the Scott property (Roll No. 020-025) was $150/acre on 60 acres of workable land.

Mr. H. Batho proposed that the work be modified and that tiles with diameters ranging from 27-inches to 12-inches be installed, and that the proposed catch basin on his land not be constructed.

Mr. H. Batho said he had lived on one of his properties for 68 years and that the other was purchased in 1954.

In response to questions, Messieurs Batho indicated:

• The Balls Drain is necessary for their private drainage system to operate.
• They estimated that the drain would require 8-inch or 10-inch tile to service their land, and they believed the incremental cost of using tile with a larger diameter should be borne by upstream landowners.
• They drained 5 acres to the Anderson Drain rather than the Balls Drain due to ease of installation and a desire to alleviate demands on the Balls Drain. The natural outlet for this land was the Balls Drain.
• There had been no complaints with the effectiveness of the Balls Drain.
• The figure used to calculate the assessment to the Scott property on an acreage basis was the after-grant cost of the drainage works.
• Mr. H. Batho did not request a catch basin on his property. The Municipality should be able to use the existing catchbasin to collect runoff from Blandford Road.
• There was a small area of land on the Stere property that was not in cultivation. The Balls Drain drained that area at one time.
• An air vent was installed in the drain in 1991 near the H. Batho-Longworth property line as there had been blow outs on the H. Batho property. There had been no blow outs since the air vent was installed.
• Mr. H. Batho did not want any of his bush land drained.
• Most of the land in the watershed that was not bush land was in cash crop production, There were pockets of land on the Scott property, the Stere property and the H. Batho properties that were not in use. Approximately 5-7 acres of cleared land on the Scott property was not worked.
• Mr. H. Batho had tiled all of his land except bush land and approximately one acre of black muck.
• The Corlett property (Roll No. 010- 002) was extensively tiled.

Mr. H. Batho presented the Tribunal with a written submission prepared by Mrs. Hazel Peter.

Ken Batho, Roll No. 020-024

Mr. Ken Batho presented a series of photographs of the outlet of the Balls Drain, and one photograph of a catch basin. He said the photographs were taken in March 2001 and May 2001. Mr. Batho told the Tribunal he had never seen the tile more than half full in his life. He said that he felt that Mr. Scott could hook into the drain without modifying the drain.

In response to questions, Mr. K. Batho indicated:

• He believed the Scott family should be required to tile at their own expense.
• He wanted the Tribunal to rule that the proposed work should not proceed.
• He understood the proposed work was designed for the entire watershed, not just the Scott property.
• He felt that an existing 4-inch tile should be sufficient to drain the Scott property.
• Tile on Branch 2 of the drain on the Stere property had been damaged by a previous owner when he wanted to build a racetrack. A low area on the property had not drained well since.
• His property was all tiled; four tiles outlet into Branch 1 and he had some with an outlet in Branch 2.
• The Chesney property (Roll No. 020-023) was tiled.

Robert Longworth, Roll No. 20-016

Mr. Robert Longworth testified that he had accompanied Mr. K. Batho when he took some of his photographs, and that he had taken one photograph. He said some of the photographs were taken after 4-5 inches of heavy rain had fallen and the drain was never more than two-thirds full. He said the photographs show that the drain is operating. He said he had no knowledge of any problems with the drain. Notwithstanding this, Mr. Longworth said that he did not oppose upgrading the drain but that he believed Mr. Elston had designed it to be too large.

In response to questions, Mr. Longworth said:

• He had not filed an appeal to the Court of Revision.
• The proposal put forth by Mr. K. Batho would attach the Scott property to the Balls Drain at a significantly lower cost than that estimated in the Engineer’s Report.
• He assumed if other landowners in the watershed required drainage they would have come to a meeting and asked for it.
• He believed it was reasonable to combine several drains into one outlet.
• He agreed that if the drain was two-thirds full at the outlet pipe, upstream portions of the drain could be completely full.
• He did not check the catch basins when he examined the outlet pipe with Mr. K. Batho.
• There was no over-land flow on his property in the Spring.
• His land was partially tiled. He grew hay.
• He had direct access to the Anderson Drain and had no need for the Balls Drain.

Alec Kelly, Roll No. 20-017

Mr. Alec Kelly told the Tribunal that he did not know why he was assessed on the Balls Drain as he was on high ground and had no drainage problems. He said water flowed off his property to the County Road No. 2 roadside ditch. He said he had appealed his assessment but that he was less concerned with the cost than he was with the nuisance of receiving correspondence on drainage matters.

Orval Stere, Roll No. 020-039

Mr. Orval Stere testified that he had been observing the drain since he was first notified of the Scott petition and that the drain was working well. He told the Tribunal that he had looked at every catchbasin in heavy rain and none were more than half full. He said he did not think extra water from the Scott property would have a significant impact on the drain.

With regard to the low-lying area on his property, Mr. Stere said the land could not be cultivated as it is too wet. He said that there was an old flat bottom tile in the area that drains to a road culvert. He said this tile was small and was never full. Mr. Stere said only 10-15 acres of his land drained to the Balls Drain. He also told the Tribunal the Grand River Conservation Authority would not permit him to cultivate his wetland or bush.

Robert Corlett, Roll No. 010-002

Dr. Robert Corlett told the Tribunal that he was concerned that the proposed drainage works had a high net cost and no significant benefit. He said that it was not necessary to rebuild the entire drain, as the present system would be adequate for several more years. He pointed out that a site meeting report dated September 30, 1999 indicated no one had any drainage concerns. He acknowledged there was a wet spot on his property but said that it had always been wet and it was not worth the expense of improving Branches 4 and 5 of the Balls Drain to drain it.

Dr. Corlett testified that he had 36.84 acres of environmentally sensitive wetlands on his property and said none of the wetlands should be drained. He said he thought the Scott property should be given access to the Balls Drain but that the work proposed in the Engineer’s Report was too costly.

Dr. Corlett also said:

• His property drains into Branch 3 of the Balls Drain, through Branches 4 and 5.
• Improvements had been made to Branch 5. He had repaired it himself.
• He was satisfied with the operation of the drain.
• It would not be economically feasible for a future owner of his property to drain the low-lying area as only 0.5-1 acre was affected.
• His property was tiled, but not systematically.
• He had 200 acres but only 165 acres of the property was in the Balls Drain watershed. He had approximately 25 acres of bush land. The rest of the property was in corn and soybeans.

Ethel Barker, Roll No. 10-002-01

Mrs. Barker testified that she did not see any benefit from the proposed drainage works.

Mr. E. Paul Elston. P. Eng.

Mr. Elston testified that his experience with very old drains was that they may be working but may be undersized. He said that his fieldwork revealed that the upper end of main drain is shallow. He said that in keeping with good engineering standards, he looked at a 1-inch design but felt it was excessive for the area. He said he opted for a ¾ inch design instead, as this seemed more reasonable. He explained that he laid out the grade so that water would flow to the outlet as a result of gravity. He said that if he increased the grade he would have had trouble with low-lying areas at the lower end of drain.

Mr. Elston said he agreed that the Balls Drain was still working well, but that it was a very old drain and considerable tiling has been done within the drainage area. He said that while the current owners may be satisfied with the drain, future owners may want to improve their drainage. He reiterated that it was not feasible to drain the Scott property to a different outlet as it would be necessary to cross Branch 2 of the Balls Drain.

With regard to assessments, Mr. Elston said he felt his approach was reasonable and that the proportions of the cost assessed to the properties in the watershed were similar to the proportions assessed in the original 1911 report. He also said he thought his cost estimate of $173,000 was reasonable.

In response to questions, Mr. Elston indicated:

• Engineering standards for drains had changed since 1911, to reflect changes in farming practices.
• It was difficult to quantify the value of a secure drainage outlet.
• In his view there was some value to having a closed drain, and for this project an open drain would be as expensive as a closed drain.
• He designed the drain with the view that there would be some runoff from bush land entering the drain. He did project there would be less runoff from bush land than from cultivated land.
• All assessed landowners were treated the same with respect to the calculation of their assessments.
• One reason that 36-inch diameter tile was recommended at the outlet was to provide an outlet for upstream properties.
• He designed the drain to serve the current watershed. He acknowledged that the watershed could change if water was routed into it or out of it by artificial means. He also said the use of the drain by assessed landowners might change.
• The Scott property required drainage as it is wet and has an erosion problem.
• He did not agree that a smaller tile should be used because the water table was deeper than in the past.
• Without the improvements to the Balls Drain the Scott property could not be drained, unless a private arrangement could be made.
• The Kelly property drained naturally to the north but there may be some water draining south to the roadside ditch.
• There was no benefit assessment on the two properties with environmentally sensitive wetlands. The properties were assessed for outlet liability.
• The Municipality wanted the drain re-located off the roadside and he did not think the elevation was sufficient to drain the Scott property alongside the road.
• Normally he charged 45-50% of the cost of the drain as statutory benefit. In this case, due to the large size tile and the large watershed area he reduced the benefit considerably. He believed that charging 35% of the cost as benefit was reasonable.
• The owners of the Scott property were not treated any differently than he would have treated any other landowner requesting an improvement to a municipal drain.
• He was a professional engineer with approximately 25 years experience and had worked on approximately 500 drainage reports. He had worked on other drains in the Municipality. He had worked in the area for 2-3 years.
• The only problems on the drain had been with branch repairs required on the Corlett property and the blow outs which were resolved with the aeration device added by Mr. H. Batho.
• The area requiring drainage was the easterly portion of the Scott property. It was a natural bowl area that was partially drained naturally through muck and bush land to the H. Batho property (Roll No. 020-018). There was also a portion of tiled land on the property that was not draining well included in the area requiring drainage.
• He assumed that bush land would never be worked in designing the drain, except for drained bush land on the Stere property.
• He had designed other drains in the Municipality to current engineering standards.
• If the drainage works were completed as designed, he anticipated that there would be: less erosion and improved drainage and productivity on the Scott property; lands brought into production that are not currently used; an improved outlet for all properties; and a surface outlet for the H. Batho property. He said that productivity could be improved on all lands with better drainage.
• With a petition drain, all assessed landowners concerns are taken into account, but he also uses his professional judgement to design the drainage project. He was obligated to design a drain to provide an outlet to the petitioners, in the absence of a cost:benefit problem.
• He had not provided detailed calculations on his assessments to assessed landowners or the Municipality prior to the Tribunal requesting this information.

Steve Scott and Robert Scott, Roll No. 020-025

Mr. Steve Scott and Mr. Robert Scott presented their evidence as a panel. They told the Tribunal they asked for drainage as they have a poor outlet, water in one area rarely dries up and surface runoff onto their property was causing erosion. They explained that the tiles on the property did not work effectively as water moved very slowly in them and as they drained water from one low spot to another. Mr. S. Scott said the 2000 bean crop on the property was a complete loss and that the 2000 hay crop was poor. He also said that in his view, the best woodland was on dry land and that there should not be a concern if bush land is better drained.

Mr. S. Scott and Mr. R. Scott said they had owned the property for five years and had farmed it themselves for a time but that it had been rented for the last two years. They said that 52 acres of 60 cleared acres could be cropped. They explained that they were concerned with the drainage on the whole property, not just the land that was out of production. They said there was a fair grade on the property in the area where they had trouble with erosion. Mr. R. Scott said there were also springs in the area. Mr. S. Scott said he did not believe a private drainage agreement was feasible as he did not believe his neighbor would agree to have such an arrangement registered on his property deed.

In response to questions Mr. S. Scott and Mr. R. Scott indicated:

• 2000 was an exceptionally wet year but other growers were able to harvest a crop while they could not.
• They had not obtained sufficient drainage by draining into bush land on the H. Batho property.
• They wanted to have sufficient drainage to a proper outlet, as if the outlet was not sufficient they would have to petition again in the future.
• Their property was partially tiled but not systematically tiled. They planned to tile the land if they had access to the Balls Drain.
• They have two other 100-acre farms.
• Other properties in the watershed also experience water ponding on occasion, but the water on these farms drains away whereas water ponding on the Scott property does not.

Summations

Mr. Keith Batho said he agreed that the Scott property was entitled to drainage but submitted the cost could be reduced by building a drain to a ½ inch standard and by using 27-inch diameter tile rather than 36-inch diameter tile at the lower end of the drain. He also asked that the assessment on properties owned by H. Batho be reduced by two-thirds. He said he did not believe these properties benefited much from the proposed work as they could be drained directly into the Anderson Drain. He also noted that water was brought onto the properties artificially through the Balls Drain.

Mr. Ken Batho asked that the Tribunal order that the entire project be abandoned as the drain was working perfectly.

Mr. Longworth said he agreed with the Keith Batho proposal that the drain be built to the ½-inch coefficient standard. He said his property had never used the drain and that it was not needed for his land as it has direct access to the Anderson Drain. But, he said he would be comfortable with the assessment on his property if the cost of the project were reduced.

Mr. Stere suggested that the Scott property be drained into the Balls Drain without modifying the existing tiles, and if that did not work then the property be drained to another outlet.

Dr. Corlett asked the Tribunal to turn down the proposed drainage works and direct that an outlet be provided on the road allowance instead. He said that if the project proceeds, he wanted the Tribunal to reduce his assessment one-third to two-thirds. He suggested that the Municipality could assume the responsibility for the proposed change in his assessment.

Mr. Elston reiterated that the Scott property needed a drainage outlet. He said that there would only be $11,000 - $12,000 savings in building a drain with a ½-inch design. He said he stood by his original report. Mr. Elston said it was not fair to say that because one landowner asked for an improvement, he or she should pay a premium and that it was not fair to increase the assessment to the Municipality. Mr. Elston said his statutory benefit:outlet liability ratio was reasonable and he pointed out that if the benefit portion were to be lowered then the outlet liability would have to be increased. He also noted it would be contrary to the policy of the Municipality to put a drain along the roadway. Mr. Elston said it was not cost efficient to provide detailed assessment calculations in the engineer’s reports he authored. He pointed out that relatively few reports were appealed and that often appellants were upset with principles, not the math.

Mr. Steve Scott said he wanted an outlet to the drain on his own property and that he wanted the drainage works to be designed to allow his property to be sufficiently drained.

Findings

The Tribunal agrees with Mr. Elston’s request for minor modifications to the Engineer’s Report to correct errors and will order that these modifications be made.

The Tribunal finds that there was insufficient evidence presented for it to prevent the proposed drainage project from proceeding under Section 48(1)(a) of the Act. Section 65(5) of the Act does not apply in this situation and the appeal by Ken Batho under this section was not considered.

The Tribunal considered the proposal to reduce the cost of the drainage works by ordering the construction of a drain designed to a ½-inch standard, rather than a ¾-inch standard, as requested by some of the appellants. The Tribunal was not persuaded that this would be appropriate as the evidence suggested that the cost savings would be small, relative to the cost of the project, and as there would need to be extra engineering costs incurred to re-design the drain. As well, the Tribunal was concerned that there was insufficient evidence presented to show that the smaller drain would be sufficient to drain the watershed.

The Tribunal finds that the methodology used by the engineer to assess costs to various sections of the drain was appropriate. The engineer took the water retention capability of bush land into account in assessing the outlet liability of the drainage works to property owners. As well, the Tribunal finds that the 35:65 statutory benefit:outlet liability ratio used by the engineer is reasonable for this project. However, the Tribunal finds that it is reasonable to provide a benefit assessment on the Scott property, as this property will be obtaining a legal outlet for its water, which it does not now have. The Tribunal finds that this is a different situation than that of an assessed landowner with a legal outlet petitioning for an improvement to the drainage works. The Tribunal agrees with Mr. Elston that the proponents of an improvement to the drainage works should not be charged a premium simply because they requested the work.

In a long line of cases the Tribunal has directed engineers to include in the engineer’s report a variety of matters. The Tribunal has held that the assessed owners (who have paid for the report), the municipality, the drainage superintendents, appeal bodies and subsequent engineers are entitled to look to the report and find all the essential information there, without having to consult the engineer’s private file. The information that should be provided includes such matters as the design criteria employed by the engineer, the method and some particulars of the calculations dealing with allowances and the assessment of the costs of the drain. Special benefit assessments need to be clearly identified and separated from the statutory benefit assessments. The multiplier factors for calculating equivalent acres for the purpose of determining outlet liability should be provided. The previous enumeration is partial only, of course.

The Tribunal has stated that where all the information is provided in the report and assessment appeals are taken, which turn out to be frivolous, the Tribunal would be in a fairer position to impose a cost penalty on persons who pursue frivolous assessment appeals.

The Tribunal has also held that drainage engineers can expect to be penalized in costs if they disregard the Tribunal’s directives.

The Knudsen case (1998-5249), is one of the cases referred to above. The individual engineer who prepared the report is the individual engineer who prepared this engineer’s report.

The Tribunal is very concerned that there is no explanation of the methodology and rationale used to determine the allowances and assessments for this project in the Engineer’s Report.

As the engineer did not comply with the previous directive of the Tribunal, there should be a monetary penalty for his actions.

ORDER OF THE TRIBUNAL

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

1. The Engineer’s Report on the Balls Drain – 2000 dated December 14, 2000 is to be amended as follows: i) p. 2 – the paragraph directly below “SUMMARY (cont.)” is to be revised to read: “The total watershed area is comprised of approximately 252.13ha which is made up as follows: 172.04ha privately owned agricultural lands (workable) 63.31ha privately owned agricultural lands (bush area) 2.70ha County roads (paved travelled portion) 6.15ha Township roads (paved and gravelled travelled portions) 0.12ha Ontario owned lands 7.81ha privately owned non-agricultural lands” ii) p. 20 – the fourth line below the heading “BRANCH 1” in the “Schedule of Assessment for Maintenance” is to be revised to read: “N½7 1 17.2 20-025(R., M. & S. Scott) 49.49” iii) References to “D. & I. Saunders” in the report on pages 14 and 17 and on the appended drawings are to be revised to read “D. & I. Sanders” References to “Roll No. 20-059” in the report on pages 14 and 17 are to be revised to read “Roll No. 10-059”. All references to “Dave Saunders” in the report on page 4 are to be revised to read “Dave Sanders”.

2. The appeals made by Ken Batho under Sections 48 and 65(5) of the Act are dismissed.

3. The appeals made under Section 54 of the Act by H. Batho and Wm. Robert Longworth are granted in part. All other appeals made under Section 54 of the Act are dismissed. The assessments contained in the “Schedule of Assessment for Construction” for the main drain on page 14 of the Engineer’s Report on the Balls Drain – 2000 are to be amended as follows:

Property	Benefit Assessment Engineer’s Report	Change	Revised Benefit Assessment
20-025 (R., M. & S. Scott)	0	+$6,000	$6,000
20-016 (W. & P. Longworth)	$2,565	($385)	$2,180
20-019 (H. Batho)	$35,875	($5,390)	$30,485
20-018 (H. Batho)	$1,500	($225)	$1,275
Total	$39,940	0	$39,940

4. The engineer shall amend the affected sheets of the engineer’s report to include all of the changes ordered by this decision. Each sheet shall include a statement indicating that it is a revised page and the date of the decision. The engineer shall attach the written explanation of his calculation of allowances and assessments which he provided to the Tribunal (Exhibit 2b) as Appendix F to the engineer’s report. The cover page of the report shall be amended to include the following prominent wording: “Amended in accordance with the Drainage Tribunal order, dated September 24, 2001”. The engineer shall provide five (5) complete amended copies of his report to the municipality.

5. The costs of the Municipality in respect to this appeal shall be limited to $1,000 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 Guelph, Ontario this 24th day of September, 2001