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:

Donaldson and Hallock Drains 2001 Township of East Zorra Tavistock

Donaldson and Hallock Drains 2001 (RE) 2001 ONAFRAAT 49

STATUTE:

Drainage Act

HEARING:

October 16, 2001

DATE OF DECISION:

October 22, 2001

2001-49

NEUTRAL CITATION:

2001 ONAFRAAT 49

Donaldson and Hallock Drains 2001 Township of East Zorra Tavistock

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 the County of Oxford under Section 48 and Section 54 of the Drainage Act (the “Act”) from a decision of the Court of Revision and the Engineer’s Report (the “Report”) on the Donaldson and Hallock Drains 2001 in the Township of East Zorra Tavistock.

Before: Jack Young, Vice Chair; Andrew Wright, Vice Chair; George Klosler, Member

Appearances: Ed Dries, P. Eng for the appellant. Ken Smart, P. Eng, engineer who prepared the report. Tony Decoo, for the appellant. Liam McCreery, assessed landowner. Robert Walton, P. Eng. for Christ Church Huntingford.

DECISION OF THE TRIBUNAL

This appeal was heard in Hickson Ontario, on October 16, 2001. The County of Oxford appealed from the decision of the Court of Revision and the Report by K. Smart Associates Limited under Sections 54 and 48 of the Act.

Mr. Jeff Carswell, Clerk-Administrator of the Township of East Zorra Tavistock (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 Report on the Donalson and Hallock Drains 2001, dated May 25, 2001 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;

(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. Ken Smart, P. Eng. author of the report on the Donaldson and Hallock Drains 2001 advised the Tribunal that the Report was initiated by petition of some of the landowners, and that the proposed works will involve a watershed that is 97.9 hectares in size. He said that the proposed works would include 58 meters of open work and 1,052 meters of closed work with an estimated cost of $101,000. With regard to the Donaldson Drain, he told the Tribunal that it was originally constructed in 1896 and reconstructed in 1957 and 1977. With respect to the Hallock drain, Mr. Smart said that it was originally constructed in 1910, with improvements in 1984. Mr. Smart explained that the proposed works for the Donaldson Drain included: extending the drain and installing tiles and a catch basin, relocating a section of the drain and constructing swales that would direct the flow of surface water to the south and west and direct overflow from the Donaldson Drain into the Hallock Drain. Mr. Smart told the Tribunal that the proposed works for the Hallock Drain included: improving both surface and sub-surface drainage, installing new tiles, extending the drain north and east across the County Road and providing outlet for the Church, Church Manse, Yeoman, Stone, Ecclestone, and MacDonald properties.

The Issues

The issues before the Tribunal were:

Are the assessments against the County of Oxford Road 59, as proposed by the Engineer’s Report, and upheld by the Court of Revision, appropriate?
Should the report be amended to give legal status to the existing swales and private drains that presently provide drainage outlet from County Road 59?

The Evidence and the Findings

Mr. Ed Dries, P. Eng. represented the County of Oxford in its appeal. Mr. Dries told the Tribunal that he is the principal of the engineering firm Todgham & Case Associates Inc. and has been specialising in drainage issues since 1972. Mr. Dries explained the following to the Tribunal:

The County did not object to the need for the works or the design of the project.
The County’s appeal under Section 54 of the Act is to the effect that the total assessment of $39,000 set out in Schedule A of the Report is unfair.
The components of the works to which the County’s assessment relates is not described.
The Report does not distinguish between size of property, land use or volume of run-off, nor is there a distinction for the component of the drain for which the assessment is made.
There are no assessments for outlet liability, which calls into question the necessity to define the watershed.
The existing Donaldson Drain 1957 was situated much further east of the proposed works.
County Road 59 is not within the boundaries of the Donaldson Drain watershed.
In By-law 1507 dated 1957, County Road 59 was assessed fairly for benefit and outlet for the Donaldson Drain. The current proposed works assesses the County Road for benefit only and at a much higher proportion than the benefit to be derived from the construction.
The purpose of the new branch of the Donaldson Drain is not to drain the road but to intercept the flow of water from the west.
The County Road receives no benefit from the Donaldson Drain Branch A, therefore the benefit assessment should be nil.
The run-off from the County Road does eventually get to Branch A, therefore outlet benefit is in order.
The construction of Branch B of the Donaldson Drain does not benefit the County Road in that it will offer no improvement in the manner of conveyance of water to an outlet.
The benefit assessment for Branch B of the Donaldson Drain against the County Road should be nil.
The proposed swale on the Langlois property, Branch C of the Donaldson Drain has no legal definition in the Report. The County therefore requests that this swale and any other structures that have no legal status to be defined and be included as part of the municipal drain.
The County asks there be a reduction in its cost and benefit assessments, for Branch C of the Donaldson Drain.
With regard to the Hallock Drain, Special Assessment for boring under the road allowance, the County does not take issue but requests that it be specifically stated in the Report, that the boring is to be charged on the basis of actual cost and that it is not a pro-rateable benefit assessment.
New catch-basins are proposed to be constructed within the road allowance for the Hallock Drain, and will provide the road with improved outlet. It is stated, however, that the benefit assessment to the County is not commensurate with the amount of benefit. The County, therefore, asks that the benefit assessment be reduced to $5,700.
The maintenance assessments against the road authority are much higher in proportion to the assessment against the road authority for capital construction. For example, the total maintenance assessment against County Road 59 for Branches A and B of the Hallock Drain are 45% and 51%, respectively, yet the total assessment for capital construction is only 40% of the total of capital construction.
The County asks for a reduction in the Donaldson Drain maintenance schedule from stations 25+30 to 35+00-McCreery, and for Branches A and B of the Hallock Drain.

Mr. Dries responded to questions that:

He believes that the proximity of a property to a works may be proportional to the benefit it derives from the works, that is not to say that a property must be directly connected to a works to receive benefit.
The existing drainage system for County Road 59 is adequate for its needs.
County Road 59 does discharge water onto five of the properties within the watersheds of the proposed works.
He does not have personal knowledge of the capabilities of the outlet of the Hallock Drain on the East Side of County Road 59.
The proposed works on the Hallock Drain section of the project did not arise from the existence of County Road 59, but rather the necessity to provide access to an outlet for the road and adjacent lands.
The Assessment Schedules contained in the Report do not make clear the components of each drain for which the properties are assessed. The sub-watersheds are not defined either. It is therefore difficult to say how the assessments for benefit should be re-apportioned beyond requesting that, the reduction of benefit assessment from the County Road, be put onto the lands that do benefit.
Except for the Church and Manse, the lot sizes are not taken into consideration in the calculation of assessment and he does not agree with this method of assessment calculation.
The identification of new and/or improved drainage structures such as swales could be identified for purposes of the report by gradient lines or shapes.

Tony Decoo, C.E.T.

Mr. Tony Decoo gave evidence in support of the County’s appeals. He told the Tribunal that he was the Construction Manager for the County of Oxford. He said that he began working for the County in 1977 and that he believed that County Road 59 was rebuilt in the mid to late 1960s. Mr. Decoo said that at no time before the finalization of the Report by K. Smart Associates did he ask that the swales be legally identified.

Liam McCreery

Mr. Liam McCreery is a farmer whose lands are assessed under the Report. Because of his time constraints he asked to give evidence before Mr. Smart’s reply evidence. The following is a summary of the evidence given by Mr. McCreery to the Tribunal:

He had constructed some drainage structures on his farm property at his own expense.
He had attended the meetings held prior to the finalization of the Report and did not recall seeing Mr. Decoo at the meetings.
He had worked very hard with the Township and with the neighbouring landowners to accommodate the proposed works.
He hoped that his assessment would not increase as he had already made significant concessions to the project, particularly being prepared accommodating the works on his land, including planned flooding behind berms to be constructed to protect the backyards of residences.

In response to questions Mr. McCreery told the Tribunal that:

The drainage of the area had been a problem for many years.
He is a cash crop farmer and he was prepared to accommodate the construction of berms on his property, which might increase the ponding of water on his crop yielding fields.

Ken Smart, P. Eng.

Mr. Ken Smart, P. Eng. and author of the Donaldson Hallock Drains 2001 Report, told the Tribunal that the Report was based on the management of both, surface and sub-surface, drainage. He described the drainage structures and water flow, telling the Tribunal that:

Surface water flows from the McCreery property to outlet on the east side of County Road 59 and into a 750 mm culvert that is 12 inches below the surface, and into a closed drain.
Surface water at the south-east corner of the Kitching property flows onto the McCreery property and into the Donaldson Drain tiles.
Water flows south across the Streach property and into the Donaldson Drain tiles.
Water from the Siderius and Langlois properties flows south and west and onto the McCreery property.
The Hallock Drain, an award drain except where the north section was improved in 1984, consists of a 4 inch pipe beginning at County Road 59. It is a sub-surface drain.
The Donaldson Drain is subsurface drain.
The purpose of the proposed works is to direct the flow of water from west to east.
There are surface and sub-surface drainage concerns within the affected watersheds.

Mr. Smart explained that the proposed works were designed to address some of the concerns of the landowners as expressed at the on-site meetings. Mr. Smart stated that the concerns included:

Fecal coliform found in well water after a high run-off.
High volumes of surface run-off from properties at the north end of the watersheds, particularly the Church and Manse.
Basement flooding occurred after heavy rains, even when a sump pump was installed.
Seepage of sub-surface water into basements.
Basement flooding due to a back-up of water that the existing drainage system cannot accommodate.
Water ponding on properties after heavy rains.
Water from the County Road ditches overflowing onto property.

Mr. Smart told the Tribunal that his inspection of the area revealed that:

Surface drainage problems were an issue.
A culvert under County Road 59 did not have an outlet.
The County Road 59 ditches and culverts were functioning at a level that was only just, adequate, for the road’s drainage needs.

Mr. Smart told the Tribunal that several options were considered to correct the problems, among them.

Extending the Donaldson Drain upstream at an estimated cost of $40,000, and installing a PDC (private drain connection) for direct connection for each property. This would only address the surface drainage problem
Raising the culvert under the County Road 59.
Constructing a 12 inch drain northward along the road allowance, with outlet to a natural watercourse to the north, at an estimated cost of $32,000.
Filling in the swell that serves the Guilder and Ecclestone properties and replacing it with a pipe to take water southward to the connect to the Hallock Drain.

Mr. Smart submitted to the Tribunal that, if the drainage problems consisted of surface flow issues only, the remedy would simply be to improve the existing drain. Mr. Smart submitted to the Tribunal a document providing elaboration upon the assessment summary in the Report. By reference to that document Mr. Smart provided the following breakdown:

$12,500 Donaldson Drain Branch A
$10,000 Crossing the County Road 59 to connect to the Hallock Drain.
$6,000 Hallock Drain Branches
$2,500 Donaldson Drain Branch B
$2,000 Hallock Main Drain
$1,000 additional catch basin work
$1,800 additional Langlois additional surface
$3,000 direct work
Total 38,800

Mr. Smart explained to the Tribunal that he took the approach that all properties should be assessed equally for subsurface drainage. He said that a “Benefit by Cut-off” was assessed to the residential properties for the Donaldson Drain Branch A. Mr. Smart further explained that:

Branch B of the Donaldson Drain was to serve mainly as a surface outlet.
The County Road discharged water across the residential lots because of the inadequacy of its access to outlets.
It was his method when working in urban areas to assess benefit to all lots equally, for sub-surface drainage.
The outlet assessments for the proposed works are minimal.
He felt that for surface drainage outlet assessments, the residential lots should pay a higher share than farmlands.
From the total of $33,000.00, the County was assessed $8,000.00 for sub-surface drainage and the remaining $25,000.00 was for surface drainage.
He felt that the maintenance assessments were fair and had submitted that Branch C of the Donaldson Drain would revert to the status of a private drain, thereby removing it from the maintenance schedule.
He was not against incorporating the swales on the Siderius and Streatch properties into the maintenance schedule, but he did not think it should be done at the expense of the whole watershed.
It has been his practice with regard to the maintenance of drains along road allowances, to assess the road authority 50% of the maintenance costs.
There is a mistake in the maintenance assessments against the Morley, Rutherford and Clark properties. They should be assessed 2/3 of the total shown in the report for Branch A of the Donaldson Drain and 1/3 of the total shown in the report should be apportioned for maintenance of Branch B, of the Donaldson Drain.

Mr. Smart responded to questions that:

When the design for a drainage scheme is complete, it is his practice to do a gross cost split.
He bases the assessments somewhat, on the improvement to the area where a property is situated. Using this method, a property has the benefit of increased value, as the surrounding area is improved.
The Act confers upon an engineer the authority to levy assessments as he deems fit.
All benefit assessment to County Road 59 for Branch A of the Donaldson Drain is for benefit by cut-off.
The Hallock Drain Branch B reconstruction adds capacity to the drain on the west side of the road.
Assessment for the Hallock Drain Branch B, is for Direct Benefit.
The Hallock Drain Branch B will not receive a lot of water from County Road 59.
The proposed swale on the Kitching property directly benefits the road. There are provisions in the Planning Act to govern the maintaining of drainage structures, should the lot ever be severed.
He is willing to legally describe the swales in the Report.
The proposed placement of a section of the Hallock Drain along the road allowance is a common practice in urban drainage schemes.
The location of septic beds and wells on the residential lots varies, some are located to the rear of the lots and some are located to the front of the lots.
The northern outlet of the Hallock Drain is the Mud Creek Drain. Assessments were increased against the Church and Manse for the cost of extending the drain north.
The Assessment Addendum contains a revision of the total cost of the project.

Robert Walton, P.Eng.

Mr. Robert Walton told the Tribunal that he represented Christ Church Huntingford, an assessed landowner. He told the Tribunal that the Church is in need of improved drainage outlet. He explained that, following several basement flooding events, the Church disconnected from the drain and installed a pumped outlet; as a result there has been less flooding in the basement. Mr. Walton told the Tribunal that the Church property has problems with surface water that ponds and freezes in the winter and creates muddy conditions in the spring. Mr. Walton described the outlet at the rear of the Manse as nearly useless, because the drain is not placed deeply enough for a gravity outlet, therefore pumping at the Church and Manse will have to continue. Mr. Walton told the Tribunal that should it find that the other assessments are unfair, then the Church should be included in that finding.

Ed Dries, P. Eng.

Mr. Dries summarized the appeal of the County of Oxford saying that:

The Appellant Statement outlines the wishes of the County.
The assessments of the other properties are too low at the expense of the road authority.
The road authority had concerns with the assessment from the projects beginning and had sought relief at the Court of Revision to no avail.

Mr. Smart summarized his response to the County appeals stating that:

The Report had addressed the two problems in the watershed; poor surface and subsurface drainage.
County Road 59 is a major cause of the surface drainage problems and as such must bear a significant portion of the cost to correct the situation.
The assessments are fair.
The method of combining the benefit assessments was suitable in this situation, as the Donaldson and Hallock Drains are intertwined and one watershed impacts the other.

The Findings

The Tribunal finds that the engineer’s report does not give sufficient detail in the method of assessments and did not differentiate between normal benefit, benefit by cut off, outlet and special assessments.

While the Tribunal accepts the engineer’s view that the drains are somewhat intertwined, the Tribunal is of the opinion that the Donaldson Drain and the Hallock Drain could each have been costed and assessed separately using the conventional breakdown of assessment rather than assessing as benefit only.

The Tribunal is also of the opinion that each lot should be considered according to its own situation considering area, land use and the benefit to be derived from the project.

All parties accept the design of the project.

One of the options for the Tribunal is to refer the report back to the engineer for revision to the schedule of assessments at no cost to the project. However, the Tribunal is convinced that the delay in doing so would not allow construction to take place this year causing the residents to suffer another winter and spring of basement flooding and further damage. While the Tribunal is not satisfied with the process, it understands the consequences and is prepared to adjust the assessments to allow the work to proceed without delay.

The Tribunal finds that the amount assessed to the County for Branch A of the Donaldson Drain is excessive. The amount allocated for this purpose exceeds the additional cost that Oxford County would have incurred had the same water been drained to the east across the road and not cut off.

The Tribunal does not accept the engineer’s view that the Ganz and Sparks properties, roll numbered 010-010-133-01 and 010-010-134, respectively, should be assessed at the same rate as one of the benefiting lots based on the rationale that these properties would benefit from increased value because the surrounding area is improved. If this were the case, other properties on the east side of County Road 59 and properties outside the watershed should be assessed.

The Tribunal recognizes that Oxford County Road 59 will benefit from the proposed works and should therefore bear costs commensurate with such benefit. The Tribunal finds that the properties that will be most improved by the works and which will, therefore receive the most benefit, are those lots situated immediately to the west of County Road 59.

The Tribunal considered the request by Oxford County to provide a legal outlet for the swales and private drains outletting from the highway property onto private property should they require improvement. Section 4(1c) of the Drainage Act provides a remedy for this situation should an outlet be required in the future.

ORDER OF THE TRIBUNAL

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

The assessment against County Road 59 be reduced by $7,780 as shown in the “Change of Assessment Table” below.
The assessment against the Ganz and Sparks properties, roll numbers 010-010-133-01 and 010-010-134 respectively, be reduced by $657 and $1,313 respectively as shown in the “Change of Assessment Table” below.
The sum of $9,750 be an additional assessment against the thirteen direct benefiting lots at the rate of $750 per lot, as shown in the “Change of Assessment Table” below.

Change of Assessment Table

Con	Lot	Roll No. (010-010)	Owner	Report Assessment	Change	Final Assessment
* 11	Pt E½ 13	-133-01	G. Ganz	857	-657	200
* 11	Pt E½ 13	-134	J. Sparks	1,713	-1,313	400
* 11	Pt E½ 13	-136	S. & C. Siderius	2,570	750	3,320
* 11	Pt E½ 13	-137	J. Streatch	2,570	750	3,320
* 11	Pt E½ 13	-138	J. Carter	2,570	750	3,320
* 11	Pt E½ 13	-139	Kitching's Marketeria Inc.	2,570	750	3,320
* 11	Pt E½ 13	-140	K. & C. Kitching	2,570	750	3,320
* 11	Pt E½ 13	-141	G. Rutherford	2,570	750	3,320
* 11	Pt E½ 13	-141-01	C. & M. Morley	2,570	750	3,320
* 11	Pt E½ 13	-142	H. & L. Clark	2,570	750	3,320
* 11	Pt E½ 13	-142-10	K. & M. Kitching	2,570	750	3,320
* 11	Pt E½ 13	-143	T. & C. Stone	2,570	750	3,320
* 11	Pt E½ 13	-144	E. MacDonald	2,570	750	3,320
* 11	Pt E½ 13	-144-01	D. & S. Eccleston	2,570	750	3,320
* 11	Pt E½ 13	-145	D. & D. Guider	2,670	750	3,420
County Road 59			County of Oxford	28,740	-7,780	20,960
Total				64,820	0	64,820

“Schedule B – Schedule of Assessments for Future Maintenance” as contained in Addendum 1-August 1, 2001 be revised as shown in the table below.

Con	Lot	Roll No. (010-010)	Owner	Report Branch A	As amended Branch A	As amended Branch B
* 11	Pt E½ 13	-141	G. Rutherford	150	100	50
* 11	Pt E½ 13	-141-01	C. & M. Morley	150	100	50
* 11	Pt E½ 13	-142	H. & L. Clark	100	67	33
Total				400	267	133

The non-administrative costs of the Township with 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 Gravenhurst, Ontario this 22nd day of October, 2001.

Donaldson and Hallock Drains 2001 (Re), 2001 ONAFRAAT 49

Case Summary