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:

Municipal Drain No.21 Township of West Grey

Municipal Drain No.21 (RE) 2001 ONAFRAAT 9

STATUTE:

Drainage Act

HEARING:

January 11, 2001

DATE OF DECISION:

February 19, 2001

2001-09

NEUTRAL CITATION:

2001 ONAFRAAT 9

Municipal Drain No.21

Township of West Grey

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 Orland and Freida Dippel under Section 54 of the Drainage Act from a decision of the Court of Revision on the Dippel Drainage Works (also known as Municipal Drain No. 21) in the Township of West Grey.

Before:

John Taylor, Vice Chair

Andy Koopal, Member

Doug Flook, Member

Jack Young, Vice Chair

Appearances:

Mr. Stephen Dippel, for the appellants Orland and Freida Dippel

Mr. William J. Mannerow, P.Eng. of Gamsby Mannerow Ltd., for the respondent, the Township of West Grey

Mr. Brian Damm, assessed landowner

Mr. Neil Damm, assessed landowner

Mr. Joe Murphy, assessed landowner

Mr. Lawrie Weppler, former Deputy Reeve

DECISION OF THE TRIBUNAL

This appeal was heard in Lamlash Hall, Concession 6, R.R. #1 Elmwood, Ontario on Thursday, January 11, 2001. Mr. Orland Dippel and Mrs. Freida Dippel appealed their assessment under Section 54 of the Drainage Act. Susan Shannon, Clerk Coordinator, 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 March 16, 2000 engineer’s report on the Dippel Drainage Works, Township of West Grey▬ parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

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

The March 16, 2000 engineer’s report on the Dippel Drainage Works was prepared by William Mannerow of Gamsby and Mannerow Ltd., in response to a petition signed by O.& F. Dippel, the owners of Lot 15, Concession 3 and the East ½ of Lot 14 in Concession 13, and by Mr. Dunn, the owner of Part of Lot 15, Concession 3. The petitioners owned 68 hectares of the 83 hectare area requiring drainage and the engineer had determined that it was a valid petition. Mr. and Mrs. Dippel had petitioned for outlet through two additional properties. Before petitioning for a municipal drain, the owners had attempted to improve drainage by cleaning out a ditch on their property, but there was insufficient fall away from their property to provide adequate drainage. Much of the property requiring drainage had been underdrained with tile but the north portion of the property had insufficient outlet for tile drainage.

The total area of the watershed is approximately 626 hectares. The watershed was established by the engineer, having walked the area with the assistance of an aerial photo. The height of the land was assessed, the flow of water through an existing drain was observed and locations where springs were rising were inspected. The engineer also relied on previous engineering reports on adjacent municipal drains.

The drainage works covered by the report is to be an open drain extending from Station 0+292 in E½ Lot 13, Conc. 13, to the Bruce County Road No. 3 culvert on the Lot 15/16 Concession 13 road allowance at Station 1+465. No excavation is proposed upstream of station 0+755, however this section of drain is part of the project for maintenance purposes. The report proposes the installation of three laneway culverts. The drainage works are to be maintained by the Township of West Grey, which incorporates the former Township of Normandy.

Two landowners, N. & D. Damm (Lot 14, Conc. 12) and B. & S. Damm (W ½ 14, Conc. 13), had appealed their assessments to the Court of Revision. The Court of Revision sat on June 29, 2000 and directed that the statutory benefit on the B. & S. Damm property be reduced by $3,074.00, the statutory benefit on the Russwurm property (E1/2 Lot 13, Conc. 13) be reduced by $2,663.00 and the statutory benefit on the Dippel property (E ½ 14 and Pt. 15, Conc. 13) be increased by $5,737.00. A revised Schedule of Estimated Assessments was adopted by the Court of Revision on July 27, 2000.

The Issue

The issue before the Tribunal was:

Are the assessments in the Schedule of Estimated Assessments, which were approved by the Court of Revision on July 27, 2000, appropriate?

The Evidence and the Findings

Appellants’ Evidence

Mr. Stephen Dippel spoke on behalf of his parents Orland and Freida Dippel. He said it was their position that they agreed with the assessments in the March 16, 2000 report of Mr. Mannerow. He told the Tribunal that existing culverts downstream of the Dippel property were too small, and that as a result water accumulated in tiles on the Dippel property. He explained that his parents wanted the municipal drain to provide drainage for existing tiles as well as new tiles that they would like to install on their property. He objected to the Court of Revision decision as it assessed Mr. and Mrs. Dippel statutory benefit for culverts which the downstream neighbors were to receive.

Mr. Dippel told the Tribunal that the Dippel property was 100 acres in area and that 90 acres were workable. He estimated that 25-30 acres needed improved drainage. He said the Dippel family grew corn and soybeans as well as a small amount of wheat. In response to questions from Mr. Neil Damm, an upstream landowner, Mr. Dippel explained that the Dippel property was partially underdrained, with tiles in the southern part extending past the Dunn property fence line, almost to a wooded area.

B. Damm Evidence

Mr. Brian Damm, the owner of West ½ Lot 14, Concession 13, intervened in the appeal. Mr. B. Damm told the Tribunal his property was a mix of pasture and crop land, with approximately 7 acres of bottom land. He stated that he raised cattle and that his breeding heifers had access to a creek and a spring. He explained that if the creek was incorporated into a municipal drain it would need to be fenced, for environmental reasons, and he would need another water source. He explained that he wanted to maintain access to a spring on the south side of the drain.

Mr. B. Damm said the dispute over the drain was a conflict between the cattle and cash crop industries. He told the Tribunal that he could only see costs with no benefits associated with the drainage works. He said that his land naturally drained to the creek from the north and the south, that he had grown crops on all but the bottom land in the past, and that there would be livestock on the land for the next few years. He expressed a concern that there would be an increase in phosphorous and other pollutants in the water in the stream. He also said he was concerned as there were few people in favour of the drain.

Mr. B. Damm explained that he had asked the Court of Revision to change the name of the drain as he wanted more of a community name. It was explained that the Court of Revision did not have the authority to change the name of a drainage works.

N. Damm Evidence

Mr. Neil Damm, the owner of Lot 14, Concession 12, also intervened in the appeal. He spoke in favour of the decision of the Court of Revision. Mr. N. Damm stated that he felt Mr. and Mrs. Dippel were the key beneficiaries of the proposed drainage works. He noted that approximately 25 acres of his property sloped toward the proposed drain and that most of his neighbors were also ‘high and dry’. He acknowledged that water accumulated on his property and the Robinson property (Part E ½ Lot 13, Concession 13) after the spring floods but he said that it drained away adequately under the current conditions.

Mr. N. Damm also raised the concern that the Russwurm farm (Part E ½ Lot 13, Concession 13) was a natural area and that the proposed drain would not be aesthetically pleasing on that property. He also questioned whether the Ministry of Natural Resources approved of the drain.

It was explained that there was no barrier to the work proceeding on the waterway, that the Saugeen Conservation and Aquatic Wildlife Services organization did not object to the drain, that a buffer zone had been suggested and that Mr. and Mrs. Dippel were considering planting a row of trees as a buffer.

J. Murphy Evidence

Mr. Joe Murphy told the Tribunal that he felt the area requiring drainage was very small, given the size of the watershed. He said that he believed that if he was to be required to pay a portion of the cost of the drain, his land should be included in the calculation to determine whether owners of lands representing 60% of the hectarage in the area where in support of the drain.

L. Weppler Evidence

Mr. Lawrie Weppler, former Reeve, stated that there was a significant amount of land East of the Dippel property that required drainage and asked why that land had not been included in the drainage works. Mr. Mannerow explained that the owners of those properties had advised him that they did not want improved drainage at this time, but that it was possible for them to petition for an extension of the drain in the future.

Engineer’s Evidence

Mr. Mannerow testified that there were only four properties on the drainage works that received a statutory benefit and that the owners of three of these properties had been granted allowances due to loss of land and damages to crops. He explained the Dippel property was also granted an allowance for an existing ditch.

Mr. Mannerow told the Tribunal that the Court of Revision had varied the statutory benefit he had originally assigned to three of the properties assessed a statutory benefit, but that none of the original outlet assessments had been adjusted. He explained the Court of Revision had eliminated the statutory benefit on the Russwurm property (Part E ½ Lot 13, Conc. 13) and the B. & S. Damm property (W ½ Lot 14, Conc. 13) and assigned those benefits to the Dippel property (E ½ Lot 14 Conc. 13 and Part Lot 15, Conc. 13). Mr. Mannerow stated that he had prepared two draft schedules of assessment as a result of the Court of Revision decision, as he felt the decision was unclear. He explained that in the option adopted by the Court of Revision he had reduced the benefit on two properties such that the landowners’ net costs were zero. He said there was no engineering basis for modifying the assessments.

Mr. Mannerow stated that the drainage works required the installation of three culverts at a cost of $3070 each. He explained that he did not use a benfit:outlet ratio to assign costs in his original report. Rather, he assessed the actual cost of construction on each property, including culverts, to that property as statutory benefit. The balance of the cost of the drain, including allowances, engineering and administration costs was assessed to the landowners as outlet liability. He said that it was his view that the 6-foot diameter culverts on this drainage works were not large enough to justify assessing some outlet to upstream properties. He explained that the report required the replacement of 18 inch diameter culverts with 6 foot diameter culverts, in order to prevent flooding and allow for some expansion of the drain upstream.

Mr. Mannerow said that he is not completely consistent between drains in assessing the costs of culverts, that he tries to be fair, and that he took into consideration special circumstances. Mr. Mannerow testified that it was his general practice to assess all the costs of construction of a drain to statutory benefit to the landowners on whose property the work was done. He assessed the cost of allowances, engineering and administrative costs as outlet assessments. He observed that the Drainage Act allowed engineers substantial leeway in assessing costs. Mr. Mannerow stated that he stood by his original report.

With regard to damages, Mr. Mannerow explained that he calculated the compensation due to landowners as 50 cents/cubic metre, plus an allowance for the amount of land lost on either side of the open ditch. For the existing ditch on the Dippel property he explained he used a rate of $1/cubic metre, but that he did not give any allowance for the land used in that ditch.

With regard to the maintenance schedule, Mr. Mannerow explained that he expected that most of the maintenance in the future would be on the part of the drain that was assessed statutory benefit, and that he therefore believed it was more appropriate to assess the costs of maintenance on the total assessment, rather than the outlet assessment. He explained that he considered distance from the drain, run-off factors and the length of the drain used by each property to establish outlet assessments. He noted that the same formula was used by other engineers in his firm and that they had used this approach for many years.

In response to a question from the Tribunal, Mr. Mannerow indicated that he could see the rationale in assessing the cost of culverts as a special benefit. However, he pointed out that in this case all the culverts cost the same so there was proportionally no difference between assessing them as special benefit or statutory benefit. He observed that there was some debate in the engineering profession as to how to apportion the cost of crossings.

Mr. Mannerow explained that the Court of Revision had changed the name of the drainage works to Municipal Drain Number 21. He said that approximately half the drains in the area had numbers, rather than names and that Mr. and Mrs. Dippel had no preference as to the name of the drain.

Decision and Reasons

The Tribunal finds that there is no basis in the Drainage Act for the change in the assessment schedule made by the Court of Revision. The Tribunal heard no evidence that any of the landowners or properties on which culverts were to be installed did not want these culverts.

The Tribunal is concerned that the maintenance schedule is not equitable as it places a disproportionate cost of maintenance on four landowners who received a statutory benefit.

The Tribunal notes that the Court of Revision did not have the authority to change the name of the drainage works. However the Tribunal is of the view that Section 51(1) of the Drainage Act provides it with the authority to allow for a name change.

Section 51 states:

51. (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.

52. (2) The parties to an appeal or reference to the Tribunal under this Act shall be the person making the appeal or reference and such other persons as the Tribunal may specify.

R.S.O. 1980, c. 126, s. 51.

ORDER OF THE TRIBUNAL

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

1. The appeal of Orland and Freida Dippel is granted. The decision of the Court of Revision is set aside and the Schedule of Estimated Assessments in the March 16, 2000 Engineer’s Report, Dippel Drainage Works, Township of West Grey is reinstated.

2. The second paragraph on page 5 of the March 16, 2000 Engineer’s Report, Dippel Drainage Works, Township of West Grey is to be replaced with the following: “After construction, the Dippel Drainage Works as described in this report, shall be maintained by the Township of West Grey at the expense of the lands assessed therefore, on the basis of outlet assessment in the proportions set out in the Schedule of Estimated Assessments, and in the same ratio as the outlet assessment only for each property shown on the Schedule of Estimated Assessments, provided that with respect to future maintenance of the culverts this is to be assessed 50% by the property owner served by the same and the remaining 50% assessed on an outlet basis to the upstream lands.”

3. The Council of the Township of West Grey may, by amendment to the interim by-law, change the name of the Dippel Drainage Works as it so determines.

4. The engineer is directed to amend Drawing No. 1 to provide a profile design grade from Station 1+170 to Station 1+465 for future maintenance purposes.

5. The non-administrative costs of the Municipality 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 Tilbury, Ontario this 19th day of February▬ ⌙↨↨⌐