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:

Walker Drain Improvement – 2001 Municipality of Thames Centre

Walker Drain Improvement – 2001 (RE) 2002 ONAFRAAT 20

STATUTE:

Drainage Act

HEARING:

April 17, 2002

DATE OF DECISION:

May 29, 2002

2002-20

NEUTRAL CITATION:

2002 ONAFRAAT 20

Walker Drain Improvement – 2001 Municipality of Thames Centre

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:

K. Loucks K. Dimtrick Barbara Reid V. Chanyi G. Dewit Paul Sinclair Jerry Baker T. Buys Jacalin Ramsay R. Zweers W. Zweers S. & C. Fiedler Mike Leal R. & L. Vanbesien P. Reid Richard Tipping Shelley Wouters Tony Moonen Margaret Mitchell Frances M. Strothard

under Section 48 of the Drainage Act from the engineer’s report on the Walker Drain Improvement –2001 in the Municipality of Thames Centre.

Before: Andrew Osyany, Vice Chair Paul Gillen, Vice Chair Jack Young, Vice chair Bill Olson, Member

Appearances: David Broad, counsel to the Municipality of Thames Centre Paul Elston, P. Eng., drainage engineer who prepared the engineer’s report John Kuntze, P. Eng., representing D. & K. Loucks, M. & K. Dimitrick, W. & B. Reid, V. & S. Chanyi, G. DeWit, T. Buys, R. Zweers, W. Zweers, S Fielder & C. Agnew, M. Leal, R. & L. Vanbesien, P. Reid, R. Tipping, J. Woulters, T. Moonen and M. Mitchell. Gerry Baker, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Dorchester, Ontario on Wednesday, April 17, 2002. Several assessed landowners appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) from the engineer’s report prepared by R.J. Burnside & Associates Limited, dated August 17, 2001 (the Report) pursuant to Section 48 of the Drainage Act (the Act).

Michelle Casavecchia, Clerk, Municipality of Thames Centre (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 engineer’s report on the Walker Drain Improvement –2001 dated August 17, 2001 parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Oral evidence was given at the hearing by Messrs. Paul Elston, John Kuntze and Gerry Baker and the parties filed a number of written documents.

Preliminary Matter

At the outset, Mr. Kuntze, on behalf of the parties that he represented, asked that the appeal hearing be in regard to assessment issues as well, although there had been no appeals to the Court of Revision.

The Panel decided to hear all the evidence that the parties proposed to bring forward but to reserve its ruling on the issue until the end of the case. The Tribunal was mindful of the fact that not all parties were present and they could be prejudiced by a decision on the issue.

Also at the outset the represented parties filed a statement of agreed issues.

Statutory Authority

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 Issues

The issues before the Tribunal were:

1. Should the engineer’s report be modified to provide an alternate route for the improved drain?

2. Should the upper end of the proposed drain on the DeWit and Ramsey properties be modified?

3. Should the allocation of benefit assessments, as between roads and the lots, as shown on the engineer’s report be varied?

4. Should the provision of outlet benefit to certain of the lots, relating to the provision of private drain connections, as shown on the engineer’s report be reduced or varied?

The Evidence

Background and History of the Drain

Mr. Paul Elston, P. Eng., told the Tribunal the Walker Drain was originally an award drain constructed pursuant to an award dated November 27, 1915 and that it was made a municipal drain in 1928. There had been several engineering reports since then, some of which had not been constructed. He said the watershed was 3 hectares of predominantly urban land, which also contained some roads and a portion of a railway. He explained that an improvement of the drainage works was required, as there were flooding problems and a number of attempts to repair the drain had not resolved these problems. Mr. Elston said that Charles Street and Richmond Street in Dorchester were to be upgraded at the same time the Walker Drain was improved.

Mr. Elston explained that he had designed the drainage works to an urban standard and a two year storm design because the land had been developed as residential property.

Mr. Gerry Baker told the Tribunal that he did not have an opinion on either engineer’s proposals but that he wanted a solution that would stop water from entering his basement.

Proposed Project and Alternatives

Mr. Elston said that he found that the drain had been slightly relocated off the 1928 route in the in previous reports and that he proposed a further realignment of the drain. It was not possible to maintain the drain at its existing location due to the presence of buildings and other features. He explained that part of the existing route was problematic as septic systems and buildings had been constructed near the drain, landscaping had been changed, the water table was high and the soil was poor.

Mr. Elston said he proposed to relocate the drain to block it as it entered the Ramsey property (Roll No.031-135) and pick it up again south of the Baker property (Roll No. 031-134), shifting the drain to the east along Charles Street and running it north-south on the Neilsen/Sinclair property (Roll No. 031-133) near the boundary with the DeWit property (Roll No. 031-132). Mr. Elston said he provided for three additional catchbasins on the Neilsen/Sinclair, Ramsey and DeWit properties that would work with an existing catchbasin on the Hill property (Roll No. 031-136) to prevent excessive flooding. He explained that he provided for 12 private drain connections so land owners of the affected properties could connect to the drain in the future without damaging the road.

Mr. John Kuntze, P.Eng., told the Tribunal that the appellants he represented did not believe Mr. Elston had given due consideration to alternative routes for the drainage works. Mr. Kuntze suggested, as Alternative One, that the drain be relocated to the west of the existing location to run north-south along Richmond Street and east-west on the Ramsey property(Roll No. 031-135), near the boundary with the Hill property (Roll No. 031-136). He agreed with Mr. Elston that the drain could not be repaired in its present location.

Mr. Kuntze said the benefits of his design outlined in Alternative One were:

• It was a shorter length of drain to the problem area;

• It was closer to the route of the existing drain;

• It did not require Charles Street to be damaged as it had recently been reconstructed.

• It would put the drain only on properties that required drainage.

Mr. Kuntze acknowledged that construction would be difficult along part of his proposed route due to a restricted working space between the Hill property (Roll No. 031-136) and the Ramsay property (Roll No. 031-135)and that the cost savings he had estimated in his report would not all be achieved. He also acknowledged there could be some damage to the Ramsey septic bed, but said this would not be difficult to repair.

Mr. Kuntze also proposed Alternative Two. He said if Mr. Elston’s route was favoured by the Tribunal, he proposed that the head of the drain be on the Hill property (Roll No. 031-136), at the lowest spot in the watershed, and that the catchbasin on the Hill property Roll No. 031-136) be repaired or replaced. He said the benefits of this would be a reduced cost as the drain would be slightly shorter and his proposal would eliminate a catchbasin. He acknowledged that his designs would not provide an outlet for the DeWit property (Roll No. 031-132), but noted that this was not required as the landowner had not requested one earlier and had instructed Mr. Kuntze that he did not need an outlet. He disagreed with Mr. Elston on the necessity of adding berms if the head of the drain were relocated.

In response to Mr. Kuntze’s evidence, Mr. Elston said that:

• The DeWit property (Roll No. 031-132) should be provided with an outlet as it collects surface water from other properties in the watershed and this water flows through the Ramsey property (Roll No. 031-135) to flood the Hill property (Roll No. 031-136).

• He preferred three catchbasins to one, to provide added protection from flooding.

• The drain would be easier to construct on his proposed route.

• If the head of the drain were relocated to the lowest point, (Kuntze Alternative Two), berms would be required to prevent flooding of the Hill and Ramsey properties (Roll Nos. 031- 136 & -135). He preferred to avoid berms in residential areas, as it is difficult to prevent landowners from modifying them.

• There is a large cost to working in a confined area as there is no place to deposit soil.

• He was concerned that the route proposed by Kuntze Alternative One would cause damage to a septic system and swimming pool on the Ramsey property (Roll No. 031-135) , and a driveway on the Hill property (Roll No. 031-136).

• Approximately 30 metres of good road (Charles Street) would need to be damaged to provide outlets for the Buys property (Roll No. 031-134-05) and Baker property (Roll No. 031-134) accommodate the Kuntze Alternative Two.

• New plantings on the Hill property (Roll No. 031-136) would be disrupted if the Kuntze Alternative Two were adopted.

• Mr. Kuntze had underestimated the cost of de-watering in his report.

• The existing Walker Drain was functioning but not well.

• The Buys property (Roll No. 031-134-05) and the railway lands could be disadvantaged by his proposed abandonment of sections of the Walker Drain.

During the Hearing, a general consensus between the engineers emerged that:

• The engineer’s report should be modified to clarify that actual costs of the roadwork improvements are to be assessed to the municipality as a special benefit and not prorated with the other costs.

• The Buys property (Roll No. 031-134-05), the Zweers properties (Roll Nos. 031-137 and 031-137-02) and the railway lands would be cut-off from the drain if the existing drain is partially abandoned as proposed. It could be possible to maintain the drain at the north end to provide relief to the Zweers properties (Roll Nos. 031-137 & -137-02) and the railway lands but it was not possible to maintain the existing drain to provide drainage for the Buys property.

• Mr. Buys (Roll No. 031-134-05)could arrange for a private drain through the Baker property (Roll No. 031-134) to access the Walker drain at Charles Street, or this could be handled as a branch of the Walker Drain.

• Alternatively, a private drain connection could be provided to the Buys property (Roll No. 031-134-05) if Kuntze Alternative One were used.

• A catchbasin could be installed to collect water from the Zweers properties (Roll Nos. 031-137 & -137-02) and the railway lands. Alternatively, the north end of the existing Walker Drain could be maintained to provide drainage for the Zweers properties (Roll Nos. 031-137 & - 137-02) and the railway lands.

Assessment issues

With regard to assessments, Mr. Elston explained that he had assessed all work required for road improvements made in conjunction with improvements to the Walker Drain as a special assessment to the municipality. He explained that he pro rated his engineering costs between the drainage works and the road works, charged an additional $7,000 in administrative costs to the road works and required the municipality to pay for restoration work related to installing the drain. He said he determined the primary purpose of the drain improvement was to benefit the lands and he assessed costs of the drain as 95% benefit, 5% outlet. He said he assessed the benefit at a flat rate of $2,000 per lot as a general benefit, then assessed additional benefits of $2,000 for lots receiving a legal outlet by way of a direct connection to the drain, $5,000 for the railway and $18,650 for each of two roads receiving a legal outlet. He said he also looked at the resulting assessments in relation to the historic breakdown of costs between roads and lots on this drain, and determined that his assessments were reasonable.

Mr. Kuntze indicated that he agreed with the general principles used by Mr. Elston in assessing costs but that he disagreed with the magnitude of some of the assessments. He suggested that the general benefit for the watershed should be in the range of $800-$1000 per lot. He said it was unfair that small lots be assessed the same as the railroad in this regard. He also felt the roads received a greater benefit than Mr. Elston allocated to them. He suggested the watershed benefit be split between residential properties and roads/railroad in a 30 : 70 ratio (67 : 33 in the Report). Mr. Kuntze said he also felt that the amount charged as a benefit to landowners receiving a legal outlet was excessive as he believed the municipality would benefit from the installation of these outlets. He suggested the direct connection benefit be reduced to $500 for properties at the lower end of the drain, to $1,000 for most other properties but be kept at $2,000 for the Hill and Ramsey properties. He suggested any additional costs should be assessed to the roads.

Final Submissions

Mr. Kuntze told the Tribunal the appellants he represented were more concerned about the cost of the drainage works than the route chosen. He asked the Tribunal to consider ordering the changes he recommended to the project if it favoured Mr. Elston’s route. He also asked it to consider his Alternate One route. Mr. Kuntze asked the Tribunal to consider his proposed changes to the assessment schedule. He also asked that his client’s costs of $2,575 be assessed to the drainage works. He acknowledged that it would have been better if they had retained him earlier, but submitted that he had helped the process along.

On behalf of the Municipality, Mr. Broad submitted that the appellants had not established that that the report, subject to mutually agreed upon necessary adjustments, should be set aside or varied to any extent. He said Mr. Elston had reasonable and rational grounds for his design and assessment schedule and that there was a risk that the costs of the drainage works would increase without any commensurate benefit if one of Mr. Kuntze’s alternatives were adopted. He urged the Tribunal to dismiss the appeals which advocated modifications to the overall design.

With regard to assessments, Mr. Broad noted that Mr. Kuntze had acknowledged that assessments were made using professional discretion and he submitted that the appellants had not proven that the assessments had been calculated incorrectly. He pointed out that the Act does not contain a provision for punishing landowners thought to be historically responsible for drainage problems and that there had been no evidence submitted as to whether permits had been issued for the construction of structures affecting the drain. He submitted that the 50:50 division of benefits between roads and lands was reasonable, considering that the restoration work and some of the administrative costs were also to be borne by the municipality.

On the subject of costs, Mr. Broad said there was no legal basis to award costs to Mr. Kuntze’s clients and pointed out that costs of appellants are borne by the appellants themselves. He submitted that the municipality had expended a great deal of effort to get stakeholders involved in the process and had consented to an adjournment requested by the appellants.

The Findings

The Tribunal accepts the evidence before it that the Walker Drain must be relocated off its original route due to the presence of buildings and other structures which prevent the drain from being maintained. The Tribunal favours the Alternative One route that would have the drain run north-south along Richmond Street, and connect with the existing drain through the Ramsey (Roll No. 031-135)and/or Hill (Roll No. 031-136) properties. A small branch may be necessary to adequately drain the Baker property (Roll No. 031-134). The Tribunal favours this route as it most closely align the drain with the current location of the Walker Drain, it can be modified to provide an outlet for the Buys property (Roll No. 031-134-05), and it is shorter than the original route proposed by Mr. Elston. The Tribunal accepts Mr. Kuntze’s evidence (buttressed by the aerial photographs) that the Engineer can design the drain between the residential properties to minimize property damage. The Tribunal agrees with Mr. Kuntze that it is not necessary to provide an outlet to the DeWit property (Roll No. 031-132), as the landowner did not request drainage and as the land is upstream of the existing Walker Drain.

The Tribunal supports the consensus reached at the Hearing, that the section of the existing drain servicing the railway lands should be maintained. The Tribunal finds the Buys property should be provided with a personal drainage connection.

Both engineers were of the view that the overall allocation of the costs of the project should be apportioned as 95% statutory benefit, 5% outlet liability. In view of the changes ordered, the Engineer should be at liberty to re-consider this allocation in the new assessment schedule.

On this project, statutory benefit is allocated between two classes of landowners; the roads and the railway and the residential lands. The two engineers had opposing views on the proper allocation of the statutory benefit between these classes. The Tribunal finds that both Mr. Elston and Mr. Kuntze had excellent arguments to support their differing views on assessments. Mr. Elston was of the opinion that the statutory benefit assessment should be allocated 30-35% to the roads (and railroad) and 65-70% to the residential lands. Mr. Kuntze would have allocated 70% to the roads (and railroad) and 30% to the residential lands. The Tribunal believes that Mr. Elston’s view is more independent and more in line with the basic needs driving the project and that the proper allocation would be 35-40% to the roads (and railroad) and 60-65% to the residential lands. The Tribunal received no evidence to suggest varying the railway lands benefit assessment of $5,000.

The Tribunal supports the concept of a general watershed improvement assessment on a per-lot basis, but believes this should be limited to no more than 10% of the total statutory benefit assessments. In the case of extreme differences in size, there may also be an appropriate adjustment of the per-lot assessment.

The Tribunal believes that the benefits of having a direct connection to the drainage works, improved property values, and improved drainage vary by property and these should be taken into account in calculating the statutory benefit assessments rather than assessing a flat rate per property as benefit assessment.

On the question of costs, the Tribunal notes that it will order the drain to be designed along a route similar to Mr. Kuntze’s Alternative One and finds that he did make a positive contribution to the resolution of the dispute. The Tribunal is inclined to allow $1,000 of Mr. Kuntze’s costs to be charged to the drainage works.

The Tribunal notes that the report prepared by Mr. Elston is comprehensive and clear and it compliments him on an exceptionally well written report with full details and explanations of the allowances and assessments.

The drawing of the proposed works and Mr. Kuntze’s alternative routes are attached to this decision.

Order of the Tribunal

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

1. The municipality is ordered to refer the report back to the engineer to:

i) Redesign the drain so that it follows roughly the path of Mr. Kuntze’s Alternative One, such that it is to cross the Ramsey and/or Hill properties in such a way as to minimize damage to existing structures, and is to be constructed along Richmond Street to outlet at Catherine Street.

ii) Provide an outlet to the Baker property on Charles Street.

iii) Maintain the north end of the existing drain which was proposed to be abandoned, to drain the Zweers properties and the railway lands.

iv) Provide a drain connection to the Buys property by means of an easement across the Baker property.

v) Clarify that the actual cost of the road improvements will be assessed to the municipality as a special benefit.

2. The engineer is ordered to vary his assessment methodology to:

i) Assess the statutory benefit portions of the assessment to lands and roads in a ratio in the range of 35-40% to roads and 60-65% to lands in the watershed.

ii) Assess a maximum of 10% of the statutory benefit costs as a general watershed improvement benefit.

iii) Vary the benefits assessed to the benefiting properties receiving a direct connection to the drainage works, improved property values, and improved drainage according to the benefit received by each individual property.

iv) Reconsider the overall project proportion of statutory benefit and outlet liability ratio and any other incidental assessment matter in the light of the modification to the project.

3. The municipality is to pay $1,000 to Mr. Kuntze, which shall be added to the cost to the drainage works. The balance of Mr. Kuntze’s account shall not form part of the costs of the drainage works.

4. The non-administrative costs of the municipality in respect to this appeal shall form part of the cost of the drainage works. Except as ordered above, all other parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

5. In the event of appeals to the Tribunal or further applications to clarify or modify this order, this panel remains seized of this case.

Dated at Shelburne, Ontario this 29th day of May, 2002.