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:

Foreman Municipal Drain Improvement City of London

Foreman Municipal Drain Improvement (RE) 2001 ONAFRAAT 53

STATUTE:

Drainage Act

HEARING:

September 26 and November 2, 2001

DATE OF DECISION:

November 21, 2001

2001-53

NEUTRAL CITATION:

2001 ONAFRAAT 53

Foreman Municipal Drain Improvement City of London

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 Lana Hicks and George Boothe, David E. Roby and Laura Roby and Robert Scott under Section 64 of the Drainage Act with regard to the quality of construction of the Foreman Municipal Drain in the City of London.

Before: Jack Young, Vice Chair; Terry Denison, Vice Chair; Jim Gibb, Member.

Appearances:

David Roby, appellant Jeff Roby, witness George Booth, appellant Lana Hicks, appellant Robert Scott, appellant Anne Hiscock, Green Lane Environmental Group Ltd., assessed landowner Dave Gardner, assessed landowner Mary Gardner, assessed landowner John Warren, assessed landowner Jack Davis representing assessed landowner Frank Iannialice Phillip McNeely, P. Eng., for the respondent, the City of London Don Simpson, Drainage Superintendent, City of London Rob Hern, Stantec Consulting

DECISION OF THE TRIBUNAL

This appeal was heard in London, Ontario on September 26, 2001 and November 2, 2001.

Landowners Ms. Lana Hicks and Mr. George Boothe, Mr. David E. Roby and Mrs. Laura Roby and Mr. Robert Scott 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 Foreman Municipal Drain (the Drain).

Ms. Nancy Irving, Committee Secretary, City of London (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 Stantec Consulting Ltd.(the Engineer) engineer’s report on the Foreman Municipal Drain Improvement – 1999▬ modified February 4, 2000 under order of the Tribunal December 13, 1999 (the Report), parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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).”

Preliminary Matters

Mr. David Roby presented the Tribunal with a letter signed by Mr. Robert Scott which authorized him to represent Mr. Scott at the Hearing. Mr. George Boothe and Ms. Lana Hicks verbally indicated that Mr. David Roby would be representing them as well.

Mr. David Roby requested that the Tribunal order the exclusion of witnesses, including parties to the Hearing, until they had testified. However, he clarified that he did not intend that Mr. McNeely be excluded as he was representing the Municipality. Mr. Roby explained that he was concerned that there may be discrepancies in evidence and he felt that an individual’s testimony could be influenced by earlier testimony. Mr. McNeely objected to the exclusion of witnesses as he pointed out this was not a normal procedure followed by the Tribunal. Mr. McNeely said he felt it was important to have the Municipality’s drainage superintendent and the engineering firm’s technician at the Hearing. The Tribunal ruled that parties and their representatives would not be excluded but that other witnesses would be excluded. Two witnesses were affected by this ruling.

Mr. John Warren requested that he and some of the other assessed landowners be permitted to speak before the appellants as they expected to have very brief presentations. The Tribunal determined that it would not deviate from its normal order of appearances.

The Issue

The issue before the Tribunal was:

Was the Foreman Municipal Drain Improvement – 1999 constructed according to the specifications in the Report?

The Evidence and the Findings

David Roby, Appellant, Roll No. 040-114-01

Mr. David Roby testified that he became aware of proposed work on the Drain in March 1999. He said he informed Mr. McNeely, the engineer for the project, that he had drains on his property and that he was assured there would be a note on plan to the effect that his drains would be connected to the Foreman Municipal Drain. He referred the Tribunal to a note in the engineer’s report that stated:

“Partially fill in existing open ditch from Sta. 1+300 to Sta. 1+580 D/S Maintain adequate drainage for abutting properties”.

Mr. Roby also pointed out a provision in the Specifications for Open Drains appended to the report that stated:

“Tributary Drains: Prior to commencing construction the Contractor shall contact the owners of lands along the drain and request that they clearly mark all known Municipal or Award or private tile drains that enter the drain. All clearly visible or marked outlets that are damaged by the Contractors operations, shall be repaired at the expense of the Contractor. Unknown tile outlets that are damaged, will be repaired by the Contractor, and the costs shall be charged as an extra to the contract.”

Mr. Roby testified that he understood that excavated material would be placed in the abandoned ditch, but that the ditch would still drain as well as before the project was undertaken. He said he made his concerns known at a public meeting held June 14, 1999 and was assured he did not have to worry about his drains.

Mr. Roby also stated that it was his understanding that the contractor was not putting in new right of ways or easements in undertaking the work recommended in the Report. He said he also understood that a windbreak of trees would not be removed.

Mr. Roby testified that a large number of trees were cut down in the construction of the drainage works and that 20-30 trees were cut unnecessarily. He told the Tribunal that trees were important to residents as they provided a sound barrier between homes and surrounding businesses.

Mr. Roby told the Tribunal that while the drainage works was under construction, he discovered a loading dock on his land was flooded. He said he told Don Simpson, Drainage Superintendent, about the problem and was told that it was his fault as he did not mark the outlet. He said that Mr. Simpson also questioned whether his property abutted the Drain. Mr. Roby testified that his property does abut the Drain.

Mr. Roby said he told Mr. Simpson there were other tile outlets in the area as well. He testified that Mr. Simpson told him he had found one outlet and run a 4-inch tile across the Gardener property (Roll No. 040-117) to connect it to the Drain. Mr. Roby said that he challenged Mr. Simpson as to the legality of that 4-inch drain and that the contractor subsequently installed a larger diameter drain along the path of the abandoned ditch. He said this drain was constructed with tiles of various diameters, no level was used and no gravel base was installed. He was also concerned that the tile would collapse when the contractor carried rock over the top of it. He said this drain did resolve the flooding problems in his warehouse and house basement.

Mr. Roby testified that in February 2001 his basement and loading dock flooded again and a large ice cap could be seen on the surface of the land which he felt was an indication that the surface drainage is inadequate. He said that his neighbors had flooding problems as well. Mr. Roby said that Mr. Simpson suggested that a missing grate allowed something to enter the drain and block it. Mr. Roby submitted that the problem would not have occurred if the abandoned ditch had only been partially filled, as tile would then not have been required. Mr. Roby said the engineer had acknowledged that he had a right to drainage but that efforts to mediate a resolution to the drainage problems had failed.

In response to questions, Mr. Roby indicated:

• He did not mention that there were any subsurface drains on his property when he spoke to the engineer about his drainage concerns, but he did say he was concerned about his fully finished basement.

• His subsurface drains were not listed in the report as requiring adjustment. He was unaware that his drains would require any adjustment.

• He attended one site meeting and felt that there was no need to attend others as his concerns were being addressed. He understood that the second meeting concerned upstream owners.

• He did not recall speaking directly to the engineer at any meeting, but he did recall speaking to him on the telephone.

• He had owned his property for 3-4 years and had lived on it for two years. He was not aware of the drainage petition when he bought the property.

• He did mark two private tile drains with stakes in March or April 1999, but did not put any flags on them and he acknowledged the area was overgrown with brush. He did not mark the drain that was located near his warehouse or drains that he thought were on his neighbours’ land. He later added a stake by the warehouse drain.

• His basement had flooded and his insurer had advised him that it was a city-caused problem.

• The Scott basement is drained with a sump pump which pumps water to the back of the property. There are tiles around the edges of the Scott property. Two sump pumps had been burned out since the old drainage ditch was abandoned.

• He did not know if hooking the sub-drains on his property and neighboring properties to a properly constructed tile drain would be an acceptable solution.

• Trees adjoining his property were cut unnecessarily.

Jeff Roby, Witness

Mr. Jeff Roby testified that he was a constable with the Ontario Provincial Police and the son of Mr. David Roby. He said he was present at a meeting between Mr. David Roby, Mr. Don Simpson and Mr. Rob Hern in early July 2000 and that he saw that digging was underway and trees had been removed. He said there were black plastic drain pipes around trees and the drain was not filled. Mr. Jeff Roby said he recalled there was some discussion as to whether or not proper notice was given with regard to the drain on the Roby property (Roll No. 040-114-01), the connection of the Roby drain to the main Drain and some discussion about a drain coming from the East. He said he understood that all agreed that the work underway had to be stopped and the drain had to be re-routed through land that the Municipality could use. He said there was also some discussion about whether a drain should be installed to the west of the Roby property.

George P. Boothe, Appellant, Roll No. 040-114

Mr. George Boothe told the Tribunal that he had objected to the number of large trees that were cut down and that Mr. Simpson told him that trees on the North side of the newly constructed Drain were taken down by mistake. He identified these trees as being on the McLellan property Roll (040-118) and the Roby property. Mr. Boothe said that approximately 500 trees were removed in total, and that 50-100 of these trees could have been saved.

Mr. Boothe said that the project had been revised from its original design to move the drain from the middle of his property to the side of his property. He said this helped his property as the laneway was less likely to erode, but that it was not intended that re-locating the drain would affect any other property.

Mr. Boothe said the surface grading on his property was unacceptable as there was water laying on his front lawn in several locations. He said that water also lay in his backyard since the drainage works was constructed, and that there had been no water there prior to its construction. He said he did not know if there was a drain there as he had only owned the property for 2.5 years. He said the Municipality looked for a drain outlet but that he did not think it found one. He said the Municipality ran a stub to tie a 4-inch drain into the drain constructed along the path of the abandoned ditch and that he said he would connect it himself.

Mr. Boothe said the new ditch built along the west side of his property drained when there is enough water, but that there was usually still water sitting in the drain, to a depth of 8-12 inches in the new culvert. He said he had seen frogs and mosquitoes in the drain. Mr. Boothe said that approximately 40-50 feet of that drain was missing rip-rap.

Mr. Boothe explained that a contractor brought a bulldozer onto the property in August 2001 and tried to fix the grade but left two piles of clay – a large one at the front of the property near the road and a small one by the barn. He said there was some improvement to the grading. Mr. Boothe said he was not aware that an existing ditch on the Drain was to be abandoned as a result of the engineer’s report.

In response to questions, Mr. Boothe said:

• The new location of the drain is preferred to the original design.

• In his opinion it was better for the Municipality to have the drain in that location as it resulted in one less culvert.

Lana Hicks, Appellant, Roll No. 040-114

Ms. Lana Hicks testified that Mr. Simpson told her that trees were cut by mistake. She said the trees were not on the property she owned with Mr. Boothe.

Ms. Hicks testified there was standing water in the drain, flooding on her property, big piles of clay and erosion in the area of the drain where no rip-wrap was installed. She submitted photographs of her property to the Tribunal. Ms. Hicks testified that her basement was wetter since the drainage works was constructed and that she believes the drain is leaking into the basement. She said she had seen sand under the windowsill in the basement. She also said that a sheet of ice had formed over the land in the winter and that this had not occurred before the recent work on the Drain. Ms. Hicks also said that the topsoil was not replaced on her property and the seeding was inadequate as the wrong seed was used.

Ms. Hicks said that she recalled a question at a public meeting about how the Roby and Hicks/Boothe properties would drain and that she thought there would perhaps be a little swale on the Gardner property to allow drainage.

In response to questions, Ms. Hicks indicated:

• There was ponding on the property after the contractor worked on it in August 2001.

• She and Mr. Boothe purchased the property on April 28, 1999. They asked that the design of the drainage works be changed to move the ditch away from the driveway.

• She said that she was verbally told the property would be re-graded and re-seeded.

• Mr. Boothe told her that he had told the bulldozer operator who worked on the property in August 2001 that he agreed to keep the two piles of dirt if the laneway was leveled.

• She did not contact the Municipality regarding the ponding on the property in the winter or the dampness in the basement. She did speak to Mr. Simpson about the sand under a slab in the windowsill.

• She could not find any tile on the back part of the property.

• She had not undertaken any landscaping of the property since the drain was constructed.

Robert Scott, Appellant, Roll No. 040-114-02

Mr. Robert Scott told the Tribunal there was water ponding in the northeast corner of his property and that as a result the land was not suitable for crop production. He testified that his house had flooded and that he had to replace his sump pump every six months. He said that he did not have a ponding problem or basement flooding before the work on the Drain was undertaken in 2000. Mr. Scott also said he believed a farm drain ran onto his property.

In response to questions, Mr. Scott indicated:

• He did not know if there was a farm tile on his property or where it might be. He believed that there must be a farm tile that was blocked when work was undertaken on the Drain as that would explain the water problems he has experienced since construction.

• He did not look for tile outlets on his property during construction. Mr. Roby acted on his behalf in searching for tile outlets.

• His house is some distance from the drainage works. He pumps his basement to the surface. There is no direct connection to an outlet but there is good surface drainage as there is a 2-metre drop from the pavement to the drain.

• He pumps water from the basement at a rate of 30 gallons per minute.

Anne Hiscock, Green Lane Environmental Group, Roll No. 040-154

Ms. Anne Hiscock told the Tribunal she was the Environmental Manager of a waste management company that was an assessed landowner on the Drain. She asked that no costs be assessed to Green Lane Environmental Group if the Tribunal granted relief to the appellants. She also submitted that all affected landowners should have input into any additional proposed work on the Drain. She said that she is satisfied with the quality of the Drain near her company’s property.

Mary Gardner, Roll No. 040-117

Ms. Mary Gardner testified that she and her husband were both professional engineers. She said they owned a 5-acre property that was assessed on the Drain and that they had purchased it in 1993. Ms. Gardner said that options considered for her property included installing a culvert, installing a bridge or realigning the drain. She said that she and her husband had chosen the realignment option despite its higher cost as they anticipated benefits from the old drainage ditch being abandoned. She said she and her husband had three concerns:

• According to the engineer’s report, he Drain was to be set back 2 metres from the property line, but it was actually 3-6 metres from the property line and this used half an acre rather than one quarter of an acre of the Gardner property.

• If there was to be a reassessment, the Tribunal should be aware of their issues.

• An underground culvert or tiles had been installed on their property in the area of the old drain with no approval from Mr. and Mrs. Gardner. They had no knowledge that any subsurface drainage works were to be connected to a drain on their property as the engineer’s report speaks only to overland surface flow.

Ms. Gardner submitted that the tile drainage works was no longer a legal drain and asked that the Municipality be required to remove the tile drains. She said she had no notice of the work until after it was done. She said that her land was used for agriculture and that it was unfair that it bear the burden of many drainage works. Ms. Gardner also said:

• The compensation she and her husband received for the right of way was $907.

• Two ‘elbows’ were removed from the original design by re-routing the drain on the Hicks/Boothe property.

• She had stated that the engineer was trying to get the assessed landowners to work against each other as no agenda was circulated prior to a post-construction mediation meeting.

• She denied permission for new 4-inch tile to be installed in a new location and it was removed.

• She had suggested draining across the Hicks/Boothe property at the post construction site meeting, but she had not seen drawings with elevations at that time.

David Gardner, Roll No. 040-117

Mr. David Gardner told the Tribunal that he was concerned with any remedy that would route the drain back through the old route on the Gardner property as they had just given up another one half acre of land for the new drain.

John Warren, Roll No. 040-056

Mr. John Warren said that he was concerned about the cost of any further work and said the responsibility for the unfinished work was between city and the contractor. In response to a question, he agreed the engineer could also bear some responsibility.

Jack (John Edward) Davis, for owners of Roll No. 040-070:

Mr. Davis explained in the original design the Drain was not to be located on the Iannialice property (Roll No. 040-070) but that the design was changed and the Iannialices were to be compensated. He said that he did not believe the Drain was built as per the specifications as it appears to be west of the specified location on the Iannialice property. He said that he wanted someone to certify that the Drain is in the location that it is supposed to be, and if it is not then there should be additional compensation paid to the landowners. He also said he wanted to know when the compensation will be paid and if there will be interest paid on it given that the Drain is now constructed and working.

Mr. Davis said that 9 metres of the Drain was to be on the Iannialice property, and 4 metres was to be located on an adjacent property. He said he was familiar with the site and that it does not look right. He submitted that his client should not have to go to the expense of surveying the drain.

Rob Hern, Stantec Engineering

Mr. Rob Hern testified that the contractor constructing the drainage works had started with the proper cross section at the subdivision near the Iannialice property and had staked the offset from the old ditch, based on its centre line. He said he believed the Drain had been constructed according to specifications on the Iannialice property.

Mr. Hern said the contractor laid out the Drain but he monitored the work and he undertook the topographical work. He said that the engineer’s report called for the Drain to be constructed on the Hicks/Boothe and Gardner properties 2 metres from the property line. He said the as-built drawings showed that it varied from 1.7 metres to 2.5 metres from the property line. He explained that he did not have a legal survey of the properties but that he had used old survey stakes. He said he had no knowledge of a fence between the Gardner and McLellan properties.

Mr. Hern said he understood the existing ditch on the Hicks/Boothe property was to be filled and graded to route water to a new ditch, and that the drain was to be seeded to the top of the banks. Mr. Hern said that photographs showed good grass establishment, with some weeds in the bottom of the ditch. He said the width of the culverts on the property was satisfactory and the grade of the Drain met the design specifications.

Mr. Hern said that culverts were installed with 20% of the diameter below the invert of the ditch and as a result there should always be some standing water in the culverts. He said there was a good positive drain in the culvert and on the Drain throughout the Hicks/Boothe property. He testified that the contractor had tried to improve grading on the property to Mr. Boothe’s satisfaction on August 3, 2001. He said the contractor had re-leveled and re-graded the property and undertaken some additional work at Mr. Boothe’s request. He said that piles of limbs and branches were pushed away but that a pile of excavated material was left at the front of the property at the landowner’s request. Mr. Hern said that there was a concern about drainage raised that day, and that a possible blockage of a tile was discussed. Mr. Hern said he had not seen any ponding on the Hicks/Boothe property since the re-grading was undertaken in August 2001.

Mr. Hern said he first learned of sub-drains on the Roby and Scott properties after the contractor had passed the properties, approximately one week after work was completed on these properties. He did not recall the sub-drains being discussed at a pre-construction meeting.

Mr. Hern said that when work was carried out to expose the sub-drain outlets, old willow trees were encountered and the tiles were deep. He said the presence of these outlets came as a complete surprise. Mr. Hern said he walked the length of the drain before construction and the contractor had been instructed to watch for extra tiles not listed in the report.

Mr. Hern said he believed that the 8-inch drain installed along the route of the abandoned ditch was properly installed using a hoe and a pipe laser. He said he and Mr. Simpson investigated the tile in August 2001 and tried to run dye through it. He said it was apparent there was a problem but they could not access the drain on the Gardner property to repair it.

In response to questions, Mr. Hern indicated:

• It was possible the blocked tile was under an area of land compacted by machinery.

• He cannot repair the tile until the corn crop is harvested.

• The old municipal drain on the Gardner property was abandoned according to the engineer’s report.

• His topographical survey was for information only; it was not stamped.

• There is evidence of a positive grade from the back of the Roby property to the Gardner property.

• He believed the contractor’s bulldozer was on site for 3-4 hours on August 3, 2001. He observed it working for over one hour.

• He told Mr. Boothe that he would need to do more work on the property but that there was grass established on the banks of the Drain.

• He expected that water to a depth of 14.5 inches would sit in the culvert on the Hicks/Boothe property.

• He would not drain a basement to a municipal drain.

• He was aware there is a problem with the tile drain. He suspected it is partially plugged, but saw that some dye passed through it.

• The offset from the property line to the Drain was measured with a tape measure, based on fence lines and property bars.

• He and Mr. Simpson decided to install the 8-inch tile drain through the Gardner property. It was installed in the first week of July 2000. They were concerned as it was a wet year and the Roby property required an outlet. The contract said that any lateral tile found was to be extended to the new ditch, and treated as a lateral connection. They did not get the landowners’ permission to install the tile.

• He recognized that Mr. and Mrs. Gardner incurred a significant expense to route the drain around their property.

• He has received standard cross sections of the drainage works but the contractor provided no as-built drawings. It was not a normal practice to require as-built drawings.

Don Simpson, Drainage Superintendent

Mr. Don Simpson testified that it was common to have water to a depth of 15 inches in a large culvert such as that on the Hicks/Boothe property. He said that there was often ponding in the bottom of 72-inch diameter municipal drains. Mr. Simpson explained that it was not possible to access the site to hydro-seed the drain so the Municipality undertook daily hand seeding instead.

He said he recalled there was a verbal agreement with Mr. Boothe such that piles of dirt by the shed and road were to be left on the property when it was re-graded. He said he believed the project generally met the standards for drainage construction in the area.

Mr. Simpson said he first knew of the covered tiles on the Hicks/Boothe, Scott and Roby properties on or about June 28, 2000 when Mr. Roby informed him of their existence. He said he continued them as a lateral drain to outlet in the Foreman Drain. He said he had seen no evidence of flooding on the properties in 2001. Mr. Simpson said that Brian Ellridge, an employee of the Municipality viewed water in the Roby basement. Mr. Simpson said that Mr. Ellridge told him he saw water coming up from a crack in the basement floor but he did not see the sump pump malfunctioning.

Mr. Simpson said normal care was taken in constructing an 8-inch tile drain across the Gardner property. He said that the tile had been operational and that there was still some water getting through it. But he thought it might be partially blocked with debris or possibly tree roots.

Mr. Simpson also said:

• H had seen a low spot on the Gardner property where snow had melted, then frozen.

• He believed that a bulldozer operator worked on the Hicks/Boothe property for 2-2.5 hours in August 2001.

• Upstream landowners were satisfied with the construction of the drain on their properties.

In response to questions, Mr. Simpson clarified:

• The engineer’s report stated that the new drains would be hydro-seeded and this was not done.

• It was a 6-inch tile that he first used to extend the Roby subsurface drain, not a 4-inch tile. It was installed to provide outlet for one tile on the Roby property.

• The 6-inch tile solution was replaced with an 8-inch tile running along the route of the abandoned ditch when it became known that there were other outlet tiles in the area.

• The ditch was abandoned by a Council resolution which adopted the engineer’s report.

• The engineer’s report said the drain was to be abandoned from the Hicks/Boothe property to Station 1+390. He did not agree that this only affected the Hicks/Boothe property.

• He agreed to put the 8-inch tile along the route of the abandoned drainage ditch.

• Tiles found on the Roby property were approximately 3 metres away from the abandoned ditch.

• In August 2001, the Hicks/Boothe property was graded in two directions – toward the drainage ditch and toward the road. Mr. Boothe indicated he was satisfied with the grading at that time.

• There was no requirement to landscape the property.

• He was able to find the outlet tile on the Roby property on July 4, 2000, after Mr. Roby put a steel fence post beside it.

• The 6-inch tile was installed on July 4, 2000; the 8-inch tile was installed on July 6, 2000.

• Mr. and Mrs. Gardner were not asked permission for the work undertaken on their property until July 7, 2000.

Philip McNeely, P.Eng.

Mr. Philip McNeely told the Tribunal that he was the engineer for the project.

With respect to the quality of construction of the drain on the Hicks/Boothe property, Mr. McNeely said:

• The property was purchased by Mr. Boothe and Ms. Hicks after the original engineer’s report was accepted by the Municipality, but before a Tribunal hearing on the report. As a result, design changes desired by Ms. Hicks and Mr. Boothe were accommodated and he believed the property was improved as a result.

• There was minor ponding between the Drain and the driveway on the property. Land had settled as the old drain was filed in with wet material. The settlements had been corrected in 2001.

• Two piles of earth were left on the property and could easily be removed.

• There was no provision in the report to landscape the property where the old ditch was filled.

• The 6-foot culvert on the property was installed according to the specifications in the report.

• A tile outlet has been provided for a basement drain, but no basement drain has been found.

• He could see no connection between the drainage works and a damaged window well in the Hicks/Boothe home.

• Moving the Drain put the project over cost; he had expected the landowners would do some of the work.

With respect to concerns about the location of the drain on the Iannialice property and the Gardner property, Mr. McNeely said that Mr. Hern had used property bars to verify that the drain was built in the correct location.

With respect to the flooding on the Roby and Scott properties, Mr. McNeely said:

• Mr. Roby had said that he did not notify Mr. McNeely about the existence of the farm tiles on the properties.

• He had no recollection of a discussion with Mr. Roby regarding his basement.

• Neither the engineer nor the drainage superintendent knew about the covered drains on these properties.

• The covered tile outlets were below the bottom of the old drain.

• When these closed tiles were discovered, Mr. Simpson took quick action to address the problem. He understood that Mr. and Mrs. Gardner were not satisfied with the action taken.

• Some landowners had suggested pumping as an option, rather than draining through the Gardner property. He felt this was too costly and it would be preferable to drain the water naturally downhill.

• There is a good slope from South to North, but there are some flat spots where ponding will occur.

• There is a swale running from the Roby property onto the Gardner property, along the course of the old ditch that was filled in.

• The engineer’s report clearly stated that abutting drains between station 1+370 and station 1+530 would be maintained with positive drainage to the outlet.

• Abutting drains on other properties were dealt with by connecting them to the new drain with 8-inch tile. The drains on the Roby property had been connected in this manner. Similar work could be done for drains on the Hicks/Boothe and Scott property if they can be located.

• Allowances could be given to Mr. and Mrs. Gardner under Section 29 of the Act.

• The appellants had numerous opportunities to identify the existing tile drains prior to construction of the drainage works.

• The Municipality tried to resolve this dispute with the appellants, before the Hearing was scheduled.

• No work was carried out which would interfere with surface drainage on the Scott and Roby properties.

With regard to the cutting of trees, Mr. McNeely said that there was a line of large willows cut because the Drain could not be placed within 2 feet of the property line, as required in the report, if they had not been removed.

In response to questions, Mr. McNeely indicated:

• He was aware of an illegal drain and it has been disconnected.

• He considered the options of a mutual agreement drain or a new petition for drainage.

• The 8-inch pipe was sufficient to handle the outlet of the 4-inch pipes that have been identified.

• Prior to construction, he believed that re-locating the drain on the Hicks/Boothe property could be done at no extra cost.

• Assessed property owners benefited from abandoning a portion of the drain.

• He was satisfied with the quality of construction of the drainage works. He had visited the site on November 1, 2001.

• He believed the trees had to be removed to construct the drainage works. The trees were removed according to the specifications in the report.

• There may be ice back-ups near the northern section of the drain but this is a normal condition.

• There is sufficient gradient for surface drainage.

• The Drain was located where it should be, as specified in the engineer’s report.

• He recommended that the tile drain already in place was the best solution to the identified drainage problems. He was prepared to make sure that the tile is sufficiently sized and in good working condition.

• A catch basin could be installed at the rear of the Roby property but he did not recommend one be constructed..

• A pump station would cost approximately $15,000 to install, and there would be ongoing electrical and maintenance costs.

• He walked the swale and saw nothing that holds water, but the corn was shorter in the swale. Normal farm equipment can get across the swale.

• If farm tiles are blocked and can be found, it is the Municipality’s responsibility to hook them in.

Summations

On behalf of the appellants, Mr. Roby told the Tribunal that trees were very important to the whole community and he felt the Munipality should replace them. He said that the old drain was not kept in use long enough for grass to be established on the banks of the new drain on the Hicks/Boothe property and that the grading on this property was a mess. He said that the sub-grading issue can be resolved with an outlet and that a pipe could be installed from the Hicks/Boothe basement to the outlet. With respect to the Scott property, Mr. Roby said it has an agriculture drain but no one knows where. He said the Municipality should run a pipe up to the Scott house and allow him to hook into it himself.

Mr. Roby suggested that the Municipality could purchase the Gardner property to allow for the re-creation of the abandoned drain. He said that he did not believe the drain was meant to be abandoned.

Mr. Gardner said that the new drain took more land than he and his wife had anticipated and they now believed that the compensation they were paid was inadequate. He suggested that a proper legal survey would be the only way to determine whether or not the drain was located in the right place. Also, he stated that that they would not have agreed for the drain to be re-routed if they had realized the old drain would not be abandoned. He submitted that the remedial work undertaken on their property was illegal and they are not obligated to allow the new tile to remain. He said the two drains together used 1.5 acres of land on their property and said they should be compensated for the loss of the use of that land based on commercial use, not agricultural use. He suggested that a technical and financial analysis of the pumping option and all other solutions be undertaken before any option is chosen.

Mr. McNeeley submitted that the drainage works as constructed met the standard for municipal drains and the specifications contained in the engineer’s report. He said there was no evidence of damage on the Hicks/Boothe property and that no work was undertaken on the Roby or Scott properties which would interfere with surface flows. Mr. McNeeley submitted that the Drain was constructed in the correct place and that the trees were removed as per the specifications in the report. Mr. McNeely said the Drain could accommodate storm water pipes if there is a development for commercial use in the future.

Mr. McNeely said the 8-inch drain provides for hook up to any sub-drains that may be found but he reminded the Tribunal that no one brought up the existence of these tiles prior to construction. He recommended that Mr. and Mrs. Gardner be compensated a total of $1,500 for land used for the 8-inch pipe, damages and access to the pipe for future maintenance.

Mr. McNeely submitted that as the Drain had been constructed according to specifications, and as the appellants had not provided evidence to show that it was not, the appellants should be assessed $1,500 in costs, to cover the additional engineering costs incurred.

Mr. Roby objected to an assessment of costs to the appellants as he said they had not made frivolous appeals.

Findings

The Tribunal finds that the portion of the old drainage channel across the Gardner property was properly abandoned as per the modified engineer’s report dated February 4, 2000 under order of the Tribunal dated December 13, 1999 and as incorporated into the provisional by-law.

Conflicting evidence was presented regarding the number of trees affected by the project but it was apparent that the trees ranged in size from small bushes to mature willows. On balancing the evidence, the Tribunal finds that the removal of trees was necessary for the construction and subsequent maintenance of the Drain.

The Tribunal notes that the specifications in the Report called for leveling and grading of material removed from the Drain to an agricultural standard. No provision was made in the report for landscaping or special treatment and the Tribunal will not order that any landscaping be undertaken.

Evidence was presented regarding ponding of water on the Hicks/Boothe property between the newly constructed drain and the abandoned channel. The Tribunal finds that additional work is required to direct the ponding water into the new channel.

The Tribunal was not persuaded that the construction of the drainage works caused damage to the surface drainage on the northern sections of the Scott and Roby properties. Evidence was presented to the effect that the surface water swale across the Gardner property had sufficient outlet and grade to provide for drainage of the surface water.

Considerable conflicting evidence was presented with respect to the location of private tile outlets in the abandoned channel along the north boundary of the Hicks/Boothe and Roby properties. No subsurface drains were identified on the Scott property. It is apparent that the Municipality attempted to connect the appellants’ private tile outlets to the new channel on the North side of the Gardner property by means of 6-inch and 8-inch collector tile drains. Evidence was presented regarding the construction of an 8-inch tile drain across the Gardner property in the location of the abandoned channel without the landowners’ consent and approval. This 8-inch tile was not provided for in the engineer’s report. Evidence was also presented that the 8-inch tile is not functioning properly and needs remedial work. The Tribunal finds that the construction of this 8-inch tile is the optimum solution to providing private sub-surface drainage outlet to the upstream properties. The Tribunal will order that appropriate compensation be paid to the affected landowners.

Topographical maps depicting the as built condition of the Drain were presented by the engineer. The previous Tribunal decision and the allowances in the engineer’s report provided for a 9-metre easement. The topographic evidence provided by the engineer indicates that the drain is located within this easement on the Iannialice property (Roll #044-070). Similarly, the topographic evidence provided by the engineer indicates that the drain is located within the easement on the Gardner property. No other evidence was provided to refute the location in either case. From the evidence before it the Tribunal is satisfied that the drain is located in the correct position

ORDER OF THE TRIBUNAL

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

1. That the Municipality execute the necessary remedial grading on the Hicks/Boothe property (Roll No. 040-114) to direct the ponding of water between the new drain and the Hicks/Boothe driveway into the new channel, and grade it to an agricultural standard.

2. The 6-inch and 8-inch drains on the Gardner property (Roll No. 040-117) providing outlet for the private subsurface drains on the Hicks/Boothe, Roby and Scott properties shall become part of the Foreman Municipal Drain. A surface swale shall be maintained to direct surface water northward across the Gardner property.

3. The engineer shall do remedial work and certify that the 6-inch and 8-inch drains are functioning properly. The engineer shall prepare a sketch showing the location of the drains and profiles of the drains. All private drains presently identified by landowners of the properties identified by Roll Nos. 040-114-01, 040-114-02, and 040-114 (Roby, Scott and Hicks/Boothe properties) shall be connected to the 6-inch and 8-inch tile drains. These landowners shall have 10 days from the date of the municipal clerk mailing this decision to the landowners to locate and mark any other private drains for connection by the Municipality.

4. The owners of the Gardner property (Roll No. 040-117) are to be compensated $5,000 for construction, damages and access to maintain, repair or reconstruct the 6-inch and 8-inch drain on their property. The Municipality is assessed a special assessment of $5,000 to cover this cost.

5. The Municipality’s request that the appellants be assessed costs is denied.

6. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Gravenhurst, Ontario this 21st▬ day of November▬ ⌙↨↨⌐‼