Garry Steele and Marjorie Steele v. City of Kawartha Lakes, 2002 ONAFRAAT 11

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:

Paradise Road Drain City of Kawartha Lakes

Paradise Road Drain (RE) 2002 ONAFRAAT 11

STATUTE:

Drainage Act

HEARING:

February 11, 2002

DATE OF DECISION:

March 6, 2002

2002-11

NEUTRAL CITATION:

2002 ONAFRAAT 11

Paradise Road Drain City of Kawartha Lakes

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 Garry Steele and Marjorie Steele under Sections 48 and 54 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Paradise Road Drain in the City of Kawartha Lakes.

Before:

Terry Denison, Vice Chair; Jack Young, Vice Chair; Russell Piper, Member

Appearances:

Michael L. Fowler, for the appellants

Garry Steele, appellant

Rosalie Evans, counsel for the respondent, the City of Kawartha Lakes

John Kuntze, P. Eng, engineer who prepared report (the “Engineer”).

Hugh Grant, Trustee St. Andrews Presbyterian Church, assessed landowner

Tony Ritola, assessed landowner

Hugh Walker, assessed landowner

Earl Harding, assessed landowner

Bill Ivens, assessed landowner

Janet Townson, assessed landowner

Nancy Flight, assessed landowner

Cliff Ivens, assessed landowner

Percy Steele, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Kirkfield, Ontario on Monday, February 11, 2002. Mr. Garry Steele and Mrs. Marjorie Steele appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 and Section 54 of the Drainage Act (the Act).

Ms. Sandra Lloyd, Executive Assistant to Councillors, City of Kawartha Lakes (the Municipality) performed the duties of the Clerk of the Tribunal.

On January 8, 2002, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report dated May 31, 2002 on the Paradise Road Drain (the Report) 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.

The Background

Mr. John Kuntze, P. Eng. was accepted as an expert witness in the field of engineering drainage systems.

Mr. Kuntze told the Tribunal that the Paradise Road Drain was designed as the result of a petition for drainage made pursuant to Section 4 of the Act. He explained that Paradise Road was a privately maintained road on municipal land and that the road and adjacent cottages had experienced flooding. Mr. Kuntze said there was no record of any drains being constructed in the area under the provisions of the Act. He said he understood there had been a private drainage system in place between the 1960’s and the 1990’s but that it was removed by the owner as it was in poor repair and as the owner wanted to build a cottage on the affected lot.

Mr. Kuntze said that, after holding a site meeting, he designed two options to be considered by affected landowners. He said that the option which he eventually recommended in his report called for:

• 11 metres of 600mm pipe on the lot identified by Roll No. 160-5-469-01

• 30 metres of 600mm pipe on the road allowance owned by the municipality

• 11 metres of 600mm pipe across the Paradise Road

• 288 metres of ditch along the south side of the road setback

• Six - 450mm access culverts

Mr. Kuntze said the total watershed area was approximately 24.2 ha (60 acres), the land was primarily wooded and the predominant use was recreational but there were some permanent residences in the area. He estimated the cost of the project at $26,300.

The Issues

The issues before the Tribunal were:

1. Should the design of the drain be modified to locate the drain to one side of the property identified by Roll No. 160-5-469-01?

2. Are the allowances to the landowners of the property identified by Roll No. 160-5-469-01 proposed by the Engineer’s Report appropriate?

3. Are the assessments as proposed by the Engineer’s Report, and upheld by the Court of Revision, appropriate?

The Evidence

Mr. Fowler explained that the appellants owned two properties in the watershed. He said the appeal with regard to the property identified by Roll No. 160-5-469-01 (G. and M. Steele lakeside lot) was made pursuant to Section 48 of the Act. He said the appellants wanted the location of drain changed or alternatively they wanted additional compensation. With regard to the second property, identified by Roll No. 160-5- 435-02 (G. and M. Steele inland lot), he said the appellants appealed their assessment under Section 54 of the Act.

Mr. Kuntze told the Tribunal that the appellants had indicated they wanted the drain re-located to one side of the G. and M. Steele lakeside lot at the second site meeting . He said he met with them on site and proposed that the drain be moved from the proposed location to a location near the north and east boundary of the property. He said the appellants preferred that it be moved to the south and west boundary instead. Mr. Kuntze outlined a number of reasons in support of his preferred location. In response to a question, he said the cost would be slightly higher to put the drain in location preferred by the appellants, as a longer pipe would be required, more trees would need to be removed and a streetlight would need to be temporarily moved.

Mr. Kuntze also described the methodology he used to determine the assessments. He said that:

• 50% of the cost of each access culvert was assessed to individual landowners who requested them.

• Approximately 40% of the cost was assessed over the whole watershed on a per parcel basis at $150 per parcel

• An additional $100 was charged to the 38 properties that abut the road on a per parcel basis.

• Fifteen properties to the East of the watershed were assessed $100 each for their use of the road.

• The Municipality was assessed $6,000.

• The remaining $2,000 was assessed over the watershed on a per hectare basis.

He said he provided a minimal allowance to the appellants as he did not believe the drain would have any long-term impact on the use of the property.

In response to questions from the appellant, the Tribunal and Mr. Hugh Grant, a representative of an assessed landowner, Mr Kuntze stated the following:

• That the balance of the access culvert cost including overhead was assessed over the whole of the watershed rather than to the upstream owners who will use the culvert.

• That the owners on the North side of the road in the area requiring drainage were not assessed a benefit by cut-off as they will no longer have to receive the flow of water.

• That none of the owners in the area requiring drainage were assessed an additional amount for the direct drainage improvement their properties would receive.

• That the outlet assessments were on a per hectare basis and did not take into account the various runoff coefficients or how much of the drain each property used for outlet.

• That he did not provide an allowance for the right-of-way on the Steele lakeside property even though this property will provide a new outlet to the lake

• That the allowance provided for damages to the Steele lakeside property was minimal.

• That he had not discussed the proposed location of the tile drain and details of the outlet structure with the appellants prior to preparing his report.

• That the design and material to be used for the outlet structure had changed since the report was presented.

• That it should be the Engineer who decides the location of the drain on the appellants’ property.

• That the location of the open channel on the road allowance would be determined by the landowners at the time of construction and that the proposed location would not cause problems for future upgrading of the road even though it is proposed to be located in the middle of the road allowance.

• That applications for approval by the Trent-Severn Waterway Authority or the Department of Fisheries and Oceans had not yet been made.

After Mr. Kuntze had completed his testimony, Mr. Fowler and Ms. Evans indicated that the appellants and the Municipality had reached a settlement agreement and requested that the Tribunal consider it. The settlement agreement is attached to this decision as Appendix A.

Assessed landowners Mr. Earl Harding, Mr. Bill Ivens, Ms. Janet Townson, Ms. Nancy Flight, Mr. Cliff Ivens and Mr. Percy Steele all indicated they were content with the design of he drain and the assessments proposed in the Engineer’s Report. Several of these landowners also spoke in favour of the settlement agreement and noted that the dispute was disruptive to the community.

Mr. Hugh Walker told the Tribunal he felt his assessment was too high as he did not have a cottage on Paradise Road and had not contributed to the drainage problem.

Mr.Tony Ritola told the Tribunal there had been terrible flooding the previous Spring, and service vehicles would not drive on the road. He expressed the hope that the problem would be resolved quickly. Mr. Kuntze explained that the Ritola property was upstream of the area covered by the Paradise Road Drain report.

The Findings

The Tribunal notes that the appellants and the Municipality were able to reach a mutually acceptable settlement which was supported by several assessed landowners in attendance at the hearing.

The Tribunal finds that it is appropriate to locate the drain in the location detailed in the settlement notes, on the G. and M. Steele property, on the side of the lot favoured by the appellants. The Tribunal will order that the drawings and specifications in the Engineer’s Report be modified to completely show the work to be done and the location of the drain and drainage structures under the new proposal. The engineer shall complete the design and receive any necessary approvals from the Trent-Severn Waterway Authority (Parks Canada) and the Department of Fisheries and Oceans, prior to returning his plan to the Municipality. The revised drawings shall include the location of the open channel on the Paradise Road right of way, and the setback from the edge of the roadway.

The Tribunal supports the changes in the assessment and the allowance to the property identified as Roll No. 160-5-469-01 (G. and M. Steele lakeside lot) proposed in the Settlement Notes.

With regard to future maintenance of the ditch portion of the drainage works, the Tribunal finds that the properties identified by Roll Nos. 160-5-435-02 (G. and M. Steele inland lot), 160-5-435 (St. Andrew’s Presbytarian Church property) and 160-5-435-01 (J. and R. Huddleston property) are all to be exempt from maintenance on the open channel portion of the drainage project.

While it does not affect the agreed settlement, the Tribunal has several concerns with respect to the Report, the evidence presented and the changes that were proposed after the Report was presented.

The “per parcel” methodology used to determine benefit assessments varies from the generally accepted principles of assessment in that the assessments do not reflect an appropriate charge for the improvements and increased value to the individual properties. Rather the costs are spread over other properties in the watershed that may not receive direct benefit or improved drainage.

The assessment for outlet in the Report using a “per hectare” basis does not consider “volume and rate of flow” as required by Section 23(3) of the Act. This omission was one of the items addressed in the settlement agreement put forward by the Municipality and the appellants.

The Tribunal finds that the Engineer erred in his Report by not providing an allowance to the appellants for right-of-way as required by Section 29 of the Act. This was also addressed satisfactorily in the settlement agreement.

The Tribunal is of the opinion that had the Engineer consulted and listened to the views of the appellants prior to preparing his Report and provided the proper allowances, the hearing probably would not have been necessary.

The Tribunal is also concerned with the number of proposed changes in material and location that have taken place since the Report was prepared. Reference was made to more changes to be made at the time of construction. Landowners are entitled to have the project constructed in accordance with the drawings and specifications contained in the report. As such, the consultations with affected owners should have taken place, the necessary approvals received, and the design completed before the Report was submitted to the Municipality.

The Tribunal has observed that sometimes drainage disputes can cause bad feelings between landowners that last for years. The landowners in this case are to be complimented on their community spirit and determination to solve this problem.

ORDER OF THE TRIBUNAL

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

1. The Engineer is to revise the Engineer’s Report dated May 31, 2002 to reflect the change in the location of the drain and the work to be undertaken at the outlet that is described in the attached Settlement Notes. In particular, the drawings and specifications are to be revised to show the relocation of the drainage pipe. The Engineer shall receive direction from the Road Superintendent for the Municipality with respect to the location of the drain on the municipal road allowance, including the area identified by Roll No. 160-5-469 (between the G. and M. Steele lakeside lot and the traveled road). The revised drawings shall include the location of the open channel on the Paradise Road right of way, and the setback from the edge of the roadway. The Engineer shall file a signed document indicating the Road Superintendent’s approval with the Tribunal, prior to returning his report to the municipality. The Engineer shall complete the design and receive any necessary approvals from the Trent-Severn Waterway Authority (Parks Canada) and the Department of Fisheries and Oceans, prior to returning his report to the municipality. In the event that such approvals are not required, the engineer shall provide written confirmation of the same to the municipality. The Engineer is to consult with Garry and Marjorie Steele and Mr. and Mrs. Steele are to indicate their concurrence that the revised drawings reflect the Settlement Notes. The engineer is to file a copy of the revised drawings, together with a document signed by the appellants indicating their concurrence, with the Tribunal, prior to returning his report to the municipality.

2. The Engineer is to revise Schedule A – Schedule of Assessments Paradise Road Drain, City of Kawartha Lakes in the Engineer’s Report dated May 31, 2002 to remove the assessment from the property identified as Roll No. 160-5-469-01.

3. The Engineer is to revise the table on page 8 of the Engineer’s Report dated May 31, 2002 to increase the allowance for the property identified as Roll No. 160-5-469-01 to $600.

4. The Tribunal orders that any additional costs to the project resulting from points 1, 2 and 3 of its order shall be assessed to landowners pro rata on the assessments in the revised Schedule A – Schedule of Assessments Paradise Road Drain, City of Kawartha Lakes in the Engineer’s Report dated May 31, 2001.

5. The Tribunal orders the Engineer to revise the Engineer’s Report dated May 31, 2002 to exempt the properties identified by Roll Nos. 160-5-435-02, 160-5-435 and 160-5-435-01 from maintenance costs on the open channel portion of the drainage project.

6. The amount of the engineering costs associated with this hearing and the revisions to the Report shall not be charged to the drain in excess of $1,000.

7. The other 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 Ottawa, Ontario this 6th day of March▬ ❞⌙↨↨⌙

Attachments: Appendix 1 Settlement Notes

Appendix 1

Settlement Notes

The drainage pipe will be located on the lot owned by the Steeles, identified as # 469-01 on Drawing 1 of 4 in Mr. Kuntze’s report, within a land parcel no wider than four feet from the boundary line of the Steele property and the Walker property. (This would continue in that line onto the property owned by the City of Kawartha Lakes and identified as #469 on Drawing 1 of 4 in Mr. Kuntze’s report.)

Every effort will be made to retain the existing timber head wall at the outlet of the drain to Canal Lake. If it proves impossible to retain the existing construction, every effort will be made to replace the timber with timber. If that is not permitted by the regulating authorities involved (i.e. the Trent-Severn Waterway), then gabion baskets will be used in place of the existing timber head wall. In any case, every effort will be made to disturb the existing head wall to the least possible extent.

The assessment on the lot owned by the Steeles, identified as # 469-01 on Drawing 1 of 4 in Mr. Kuntze’s report, will be reduced to zero.

The assessment on the property owned by the Steeles, identified as #435-02 on Drawing 1 of 4 in Mr. Kuntze’s report, shall remain as set out in the report.

The compensation payable to the Steeles for the right of way on the property identified as # 469-01 on Drawing 1 of 4 in Mr. Kuntze’s report, will be increased from the $50 set out in the report, by an amount of $550.00, for a total of $600.00.

With respect to future maintenance, the Steele property identified as #435-02 on Drawing 1 of 4 in Mr. Kuntze’s report, will share in the cost of future maintenance of the pipe portion of the drainage system only, on a pro-rata basis on the basis of the assessment set out in the Report. The Tribunal is requested to set out in its order that the Steeles will not share in any future maintenance costs for any other portion of the drain system (i.e. the ditch). The Steeles’ property is considered to be downstream of the ditch for future maintenance purposes.

Dated at Ottawa, Ontario this 28^th day of February, 2002.