Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Smith Municipal Drain

Township of Champlain

Smith Municipal Drain (RE) 2002 ONAFRAAT 12

STATUTE:

Drainage Act

HEARING:

February 18, 2002

DATE OF DECISION:

March 21, 2002

2002-12

NEUTRAL CITATION:

2002 ONAFRAAT 12

Smith Municipal Drain

Township of Champlain

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 Dr. Thomas E. Maxwell & Lise Béliveau and Louis G. Lalonde under Section 48 and Section 54 of the Drainage Act and by Luc Cusson under Section 48 of the Drainage Act from a decision of the Court of Revision and from the engineer’s report on the Smith Municipal Drain in the Township of Champlain.

Before:

John Taylor, Vice Chair; Jack Young, Vice Chair; Gertrude Levac, Member

Appearances:

Luc Cusson, appellant

Lise Béliveau, appellant

Gaetan H. Lascelles, P.Eng. Engineer who prepared the Report

Walter Ekiert, for Montreal Soaring Council, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Vankleek Hill, Ontario on Monday, February 18, 2002. Dr. Maxwell, Ms. Béliveau and Mr. Louis-Gaetan Lalonde appealed under Section 48 and Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision and from the engineer’s report by Lascelles Engineering Limited dated July 31, 2001 (revised) on the Smith Municipal Drain. Mr. Luc Cusson appealed under Section 48 of the Act from the same engineer’s report.

Robert Lefebvre, Clerk-Treasurer, of the Township of Champlain (the Municipality), performed the duties of the Clerk of the Tribunal.

On January 11, 2002, the Tribunal issued an order making all landowners assessed or compensated in the July 31, 2001 engineer’s report on the Smith Municipal Drain 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. Gaetan Lascelles, P.Eng. told the Tribunal that the proposed drainage works was located entirely in the township of Champlain. He explained that he had been retained to design a new municipal drain to drain a low, swampy area. He said a site meeting was held in September 1999 and he determined that the petition for drainage was valid. He said there were existing ditches in the area but that they were insufficient to drain the area.

Mr. Lascelles said he presented his original report, dated January 31, 2001 to the Municipality and he prepared a revised report, dated July 31, 2001, at the request of the Municipality, as the owners of the properties identified by Roll No. 03-113-35 (Lise Béliveau) and 03-113-34 (Louis G. Lalonde) objected to the deepening of an existing ditch on their properties. He said that he proposed moving the drain to the property identified by Roll No. 03-128-00, owned by Luc and Linda Cusson. Mr. Lascelles said that Mr. Cusson had not initially been opposed to having the drain located on his property, but objected once he saw the revised report.

Mr. Lascelles said the soil in the area was predominantly hardpan clay. He said he recommended deepening the existing 6-foot deep ditch by 1-2 feet in the part of the drain the appellants are located. He said that there was an adequate outlet in the Ottawa River. Mr. Lascelles indicated there would be more excavation required to locate the ditch to the South of its present location on the Béliveau and Lalonde properties, as the Cusson property was on higher ground.

Mr. Lascelles told the Tribunal that Mr. Lalonde, who was not present, had told him that water was routed diagonally across his residential property at one time, but that previous owners had relocated the ditch to the back of the property in order to construct a house.

Mr. Lascelles said an allowance for a fence was provided in the revised report, as Mr. Cusson would need a fence to keep his cattle out of the municipal drain. He said the existing boundary fence would remain.

The Issues

The issues before the Tribunal were:

1. Should the drainage works be constructed?

2. Should the engineer’s report be modified to relocate a portion of the proposed drainage ditch?

3. Are the assessments as proposed by the engineer and the Court of Revision appropriate?

The Evidence

Lise Béliveau, Roll No. 03-113-35, appellant

Ms. Lise Béliveau told the Tribunal that she wanted the engineer’s report to be revised to include a berm on the North side of the proposed new ditch to prevent overflow onto her property. She was also concerned that the ditch was not deep enough and she suggested that a closed drain be considered, to prevent children from playing in the drain. Ms. Béliveau also said she did not want heavy equipment on her property as it was soft ground and could be damaged.

Ms. Béliveau asked the Tribunal to remove the cut-off assessment assigned to her property as she maintained that building lots were created on her property, and the property owned by Mr. Lalonde, when it was known that the natural flow of water crossed these lots. She said she should not have to pay for a planning mistake that was not of her making.

In response to questions, Ms. Béliveau indicated:

• She would not want to pay any of the increased costs of building a closed drain, as she did not feel she should pay for someone else’s mistake.

• She believed Mr. Lalonde shared her concern that present owners be assessed the cost of drainage mistakes made by others.

• Her lot is two acres. There is a row of small poplar trees at the back of the lot, just north of an existing ditch. A few small trees are growing in the ditch, and there are some mature trees along the property line between her property and the Cusson property.

• She has a sump pump that uses the existing ditch as an outlet.

• She would be concerned with the cost involved in locating the proposed drain on the property line. She would still be concerned that her land would be damaged during construction.

• Her land is low and relatively flat. It floods in the Spring.

• The lot was approximately 200 feet deep; the house was located approximately 100 feet from the road.

• Mr. Lalonde had trees on his property in approximately the same line as her trees.

After consulting with her spouse, Dr. Maxwell, Ms. Béliveau told the Tribunal that she would not want the fill from the ditch spread on their land, as they would have to buy topsoil to cover it.

Luc Cusson, Roll Nos. 03-132-00 and 03-128-00, appellant

Mr. Cusson told the Tribunal that he objected to the location of the drain on his property. He said the natural flow of water had already been disrupted twice due to development and he did not believe that he should be given the water problem just because he was the last to develop his land. He said he preferred the design in the original engineer’s report, but he thought the right-of-way should be split between his property and the adjacent lots.

In response to questions, Mr. Cusson indicated:

• He understood that he would be consulted on the design of the drain if it was to be on his property. Having seen the design, he does not want the drain on his property as it used up too much land and the allowances provided were inadequate.

• He did not object to the removal of the trees on the property line.

• His property is good pastureland. He has never cropped it.

• He was concerned with the impact of the drain on his ability to develop his property in the future.

• His property is zoned agricultural at present.

• He understood he could not build a fence on the right of way, and could not allow his cattle into the municipal drain.

• If the drain is built on his property it will be approximately 35 feet from side to side.

Walter Ekiert, Montreal Soaring Council, Roll No. 01-280-00

Mr. Walter Ekiert said he represented the Montreal Soaring Council. He said the Council had not appealed to the Tribunal and was generally sympathetic to farmers who needed to drain their land. He said the Council had no interest in improving drainage on its property and did not understand why they were assessed approximately $2,000 for the drainage works. He said he did not believe the property owned by the Montreal Soaring Council would contribute to the flow in the proposed drain. He said he thought the engineer should provide for an outlet to the Council’s property and the land to the west, if the landowners were to be assessed. He said he was concerned about the value of the land if it were to be sold.

Gaetan Lascelles, P.Eng.

Mr. Lascelles said if the drain were located on the Béliveau and Lalonde properties the contractor would likely have to enter these properties with a backhoe, and construction would have to take place in either the summer or the winter. He said the width of the ditch in this location would be approximately 15 feet. He said a berm could be built along the north side of the ditch at little cost, as there would be savings in material that would not be trucked away. He said he believed the Lalonde property would still flood if there were overflow from the ditch, even with a berm.

Mr. Lascelles said building the drain in the original location was more economical than building it on the Cusson property. He said he believed building the drain on the property line was the most expensive option, due to the cost of removing the stumps of 15-20 large trees.

Mr. Lascelles explained he had not received a request to design a branch of the drain to service the property owned by the Montreal Soaring Council and the adjacent landowner.

Mr. Lascelles clarified that the fence allowance that was provided in his revised report was to be paid to Mr. Cusson, and Mr. Cusson was to build the fence. He said he estimated the cost of a page wire fence as $10/metre, and that the total allowance was $4,500. He said the contractor would need to take down part of the existing electric fence to access the drain.

Summations

Ms. Béliveau told the Tribunal that she and her husband had reconsidered and could accept the drain on their property but that they would like a seeded berm and did not want fill spread on their land.

Mr. Cusson said that he supported the location of the drain in the original report. He said he would still need an allowance for a fence, as he would have to improve upon his existing electric fence in order to keep cattle out of the drain.

Mr. Lascelle said it would be much easier to access the drain through the Béliveau property, than through the wooded area. He said the work could be constructed in a few days and that the damages paid in the Report were intended to compensate Ms. Béliveau for ruts left in the land and the cost of re-seeding.

Mr. Lascelles estimated his costs for attending the hearing at $400-$500.

The Findings

The evidence before the Tribunal was that building the drain in the location proposed in the original report, dated January 31, 2001, on the properties owned by Ms. Béliveau and Mr. Lalonde, is the most economical and least disruptive option. Locating the drain to the South, on the Cusson property, would require a larger ditch. The Tribunal does not believe the drain should be located on the property line between the Cusson property and the residential lots as it believes a wooded area which creates a buffer between farmland and residential properties should be preserved. There was no evidence presented to the Tribunal to indicate that the drainage works should not be constructed.

The Tribunal will order that a berm, located on the North side of the ditch on the Béliveau and/or Lalonde properties may be incorporated into the drainage works, if these landowners so desire. Excess material from the excavation of the ditch that is not needed for the berm is to be hauled away. Brush removed in the construction of the drain is also to be hauled away.

Mr. Cusson raised the point that the current ditch bordering on his property was not a municipal drain and he feared that its designation as a municipal drain may require him to put a more substantial fence along the drain. The Tribunal agrees with Mr. Cusson that this is a concern that should have been addressed in the Report, but as Mr. Cusson is the sole beneficiary of the fence, the Tribunal will order that he be assessed the full cost of the fence, as a special benefit. The Tribunal will order that the fence will become part of the drainage works; if it has to be taken down to allow for maintenance of the drain, it is to be replaced.

The Tribunal notes that the cost of the drainage works is increased due to the cost of the second engineer’s report, the cost of the fence and the cost of the hearing. Landowners affected by a drainage works to be constructed under the authority of the Act have a right to appeal. It is appropriate that the cost of these three appeals be considered a part of the cost of the drain, and that it be apportioned pro rata to assessed landowners in accordance with the Schedule of Assessment contained in the engineer’s report dated January 31, 2001. There was an extra engineering cost of $2,000 generated as a result of Ms. Béliveau and Mr. Lalonde requesting the drain be re-located off their properties. There is no benefit to other assessed landowners from this work and the Tribunal is not inclined to allow this cost to be charged to them. Accordingly, the Tribunal will order that Ms. Béliveau and Mr. Lalonde each be assessed a special benefit of $1,000 to cover this cost. As previously noted, the cost of the fence, $4,500, is to be assessed to Mr. Cusson as a special benefit.

The difference in the costs of the drainage works, excluding the cost of the Hearing, is depicted below:

Item:

Assessed to:

Cost:

Estimated Cost of Drainage Works, January 31, 2001 report:

Landowners as per Schedule of Assessment

$50,967

Additional engineering cost

Roll No.03-113-34 (Lalonde property)

$1,000

Roll No. 03-113-35 (Béliveau property)

$1,000

Fence Allowance

Roll No. 03-03-128-00 (Cusson property)

$4,500

Estimated Cost of Drainage Works, March 2002

Landowners as per Revised Schedule of Assessment

$57,476

Difference

$6,500

ORDER OF THE TRIBUNAL

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

1. The original engineer’s report by Lascelles Engineering Ltd. dated January 31, 2001 as hereinafter modified is to be adopted by the Council of the Municipality and the revised report dated July 31, 2001 is to be rejected.

2. Within 21 days of the date of this decision, the owners of the properties identified by Roll No. 03-113-35 (Lise Béliveau) and Roll No. 03-113-34 (Louis G. Lalonde) are directed to notify the Clerk-Treasurer of the Municipality in writing if they wish a berm to be constructed on the North side of the drainage ditch where it crosses their properties. The Clerk-Treasurer is directed to notify the engineer of the landowners’ wishes in this regard.

3. The report to be adopted is to be modified by the engineer as follows:

i) Modify the design of the drain to include a berm on the North side of the ditch on the properties identified by Roll No. 03-113-35 and Roll No. 03-113-34, should the landowners notify the Clerk-Treasurer of their desire for such a berm as described in point 2 of this order.

ii) Incorporate a page wire fence into the drainage works, to be constructed to the South of the ditch between Station 13+75 and Station 21+20.

iii) Provide an allowance for a fence to be constructed by the landowner of the property identified by Roll No. 03-128-00 (Luc and Linda Cusson) in the amount of $4,500. The fence is to be constructed by the landowner to the satisfaction of the engineer before this allowance is paid. If the landowner does not construct the fence within six months of the completion of the excavation of the ditch on the Béliveau and Lalonde properties, the municipality shall arrange for the fence to be constructed and the allowance applied toward such costs and not given to the landowner.

iv) Add a column to the Schedule of Assessments in the report to include the following special benefit assessments:

Roll No.

Landowner

Special Benefit

03-128-00

Luc & Linda Cusson

$4,500

03-113-34

Louis G. Lalonde

$1,000

03-113-35

Lise Béliveau

$1,000

v) Provide that maintenance costs of the drain will be assessed to landowners in proportion to the sum of their outlet liability and benefit liability assessments described in the Schedule of Assessment, as modified by this Order. Special benefit assessments are not to be considered in the proportioning of maintenance costs.

4. 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.