Allan-Connell Municipal Drain (Re), 2002 ONAFRAAT 25

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:

Allan-Connell Municipal Drain

Township of Bathurst Burgess Sherbrooke

Allan-Connell Municipal Drain (RE) 2002 ONAFRAAT 25

STATUTE:

Drainage Act

HEARING:

July 8, 2002

DATE OF DECISION:

July 23, 2002

2002-25

NEUTRAL CITATION:

2002 ONAFRAAT 25

Allan-Connell Municipal Drain

Township of Bathurst Burgess Sherbrooke

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. Ken Allan, Perth, ON under Section 48 of the Drainage Act from the engineer’s report that the Allan-Connell Municipal Drain in the Township of Bathurst Burgess Sherbrooke cannot be constructed at this time.

Before:

Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair; Gertrude Levac, Member

Appearances:

Kenneth Allan, appellant

Todd Perry, P.Eng., for the Township of Bathurst Burgess Sherbrooke , respondent

Jim McIntosh, P.Eng., for the Township of Bathurst Burgess Sherbrooke , respondent

Sue Connell, landowner

Jim Connell, witness

Liane Waite, landowner

George Walker, landowner

DECISION OF THE TRIBUNAL

This appeal was heard in the outskirts of Stanleyville, Ontario on July 8, 2002. Dr. Ken Allen appealed from an engineer's report dated February 2002 by McIntosh Perry Consulting Engineers Ltd. on the Allan-Connell Municipal Drain in which it determined the proposed drainage works could not be constructed under the Drainage Act (the Act).

Ms. Marnie Turmel, Administrative Assistant, Township of Bathurst Burgess Sherbrooke (the municipality) performed the duties of the Clerk of the Tribunal. Proof was filed with the Tribunal that all parties and affected landowners have been served with notice of this hearing.

Statutory Context

Section 40 of the Act states:

Engineer's finding, drainage works not required, etc.

40. Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the engineer shall forthwith file with the clerk of the initiating municipality a report to that effect, stating the reasons therefor, the amount of the engineer's fees and other charges and by whom they shall be paid, and the clerk shall forthwith send a notice of the filing of such report, by prepaid mail, to all persons who signed the petition or requisition, as the case may be, and the matter shall not be further proceeded with unless the decision of the engineer is reversed on appeal. R.S.O. 1990, c. D.17, s. 40.

A provision for appeal is made in Subsection 48(1)(d) of the Act. Subsection 48(1) states:

Appeal to Tribunal

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. R.S.O. 1990, c. D.17, s. 48 (1).

Subsection 4(1) of the Act describes a petition for drainage. Subsection 4(1) states:

Petition

4. (1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,

a) the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;

(b) the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area;

(c) where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61 (5);

(d) where a drainage works is required for the drainage of lands used for agricultural purposes, the Director. R.S.O. 1990, c. D.17, s. 4 (1).

The Issue

The issue before the Tribunal was:

1. Can the proposed Allan-Connell Municipal Drain be constructed?

The Evidence

Dr. Ken Allan, appellant

Dr. Ken Allan testified that the proposed drainage works would run along the course of an existing award drain but would be deeper and sloped to allow water to flow to the outlet. He said he had two concerns, first that the engineer's bill was incorrect and second that he wanted the award drain converted to a petition drain.

Dr. Allan noted that if the Tribunal did not deal with his concerns regarding the engineer's bill at this hearing, and there was no provisional by-law passed on the drainage works, he would have no opportunity to appeal the engineer's bill. He argued that the engineer's report was incorrect and thus the bill must be incorrect. He stated the engineer's report was incorrect as:

• It was prepared after Mrs. Connell removed her name from the petition for drainage. The engineer cannot take the position that the petition is invalid and yet continue to work on the project and prepare a report.

• The only land in the area requiring drainage is the East Half of Lot 8, not the three parcels of land identified by the engineer.

• The report states there is no surface indication of rock. A ridge of rock on the East Half of Lot 8, was the cause of the drainage problem.

• The report states that only a moderate increase in agricultural activity is expected as result of construction of the drainage works. His entire property and 13-14 acres of the Connell property are flooded. The soil is good and the lands could be farmed if they were drained.

• The design standard proposed by the engineer (1:5 year rainfall event) is insufficient.

Dr. Allan said he believed the proposed petition drain could have the same outlet as the existing award drain. He said he thought the engineer was completely wrong in rejecting his application for a petition drain. Dr. Allan stated:

• He originally applied for a petition drain in 2000 when the flooded lands were 90% on his property.

• High land on his property requires drainage due to a 'wick effect' of humus soil. He has 6-8 inches of mud in fields that are far from the award drain and reed canary - a wetlands plant - grows on his high land.

• The Connell land is more sandy and only 13-14 acres are affected by the flooding whereas he has 30-40 acres affected.

• He is the only farmer in the area so he is the only landowner affected.

• He should have been informed that a Director under the Act can require the drainage of agricultural lands.

Dr. Allan asked the Tribunal to direct the engineer to take a second look at the area requiring drainage with a view to allow the petition for drainage to succeed.

Dr. Allan also told the Tribunal:

• He has 450 acres in total; 98 acres on the affected property. He grows hay and haylage. Grain is grown as a cover crop.

• He had tried to have a mutual agreement drain constructed but had been unsuccessful. He had also tried to have work undertaken as a requisition drain and he had tried to purchase the Connell property.

• The award drain had been cleaned out in 1970. In 1994 he cleaned out the drain on his property, the Connell property and the Smith property. He was unable to clean it out in 1998 as Mr. Smith objected.

• The rock barrier is on the Smith property, approximately 20 feet inside the property line. It extends for approximately 30 feet. An engineer tested with a sonar vibrator and determined it was soft-shell rock, and that it could be removed.

Todd Perry, P. Eng. and Jim McIntosh, P. Eng.

Mr. Todd Perry and Mr. Jim McIntosh testified as a panel. They told the Tribunal:

• It is only possible for a petitioner to withdraw his/her name from a petition at the site meeting, at a meeting to consider a preliminary report, at a meeting to consider a final report and when construction costs exceed 130% of the engineer's estimate.

• Mrs. Connell indicated she wanted to withdraw her name from the petition on January 25, 2002 which was after the site meeting but before the preliminary report was written.

• The engineer had the options of doing nothing, writing a preliminary report or writing a Section 40 report.

• Writing a preliminary report was a more expensive option than writing a Section 40 report.

• Mr. Perry ruled out writing a preliminary report as he believed it would be waste of landowners' money given that it was a foregone conclusion was that the report would not proceed.

• The area requiring drainage identified by Mr. Perry was very similar to an area requiring drainage identified by Mr. McIntosh on the same lands in 1999. The engineers had visited the site in summer and spring and had observed water lying in the fields.

• There was an error in the report with regard to the date that the engineering firm was appointed to undertake this work. The correct date is January 8, 2002. The date in the report - December 21, 2001 - is the date the matter was put before the council of the municipality.

In response to questions, Mr. Perry and Mr. McIntosh indicated:

• Using the provincial average size of an engineer's bill relative to the cost of construction of drainage works to assess the equity of engineer's bills was not appropriate as each project is unique. The average is based on drains that are constructed, not those affected by a Section 40 report. The magnitude of the drain is also a factor.

• The engineering bill covered work undertaken between January 8, 2002 and February 28, 2002.

• After Mrs. Connell indicated her intention to withdraw her name from the petition the engineer was still required to prepare either a preliminary report or a Section 40 report as she did not make her intention known until after the site meeting.

• They understood that the Minister of Agriculture and Food could require drainage of agricultural lands.

• Extensive surveying was not done as it was not necessary for a Section 40 report.

• There was no indication at the site meeting that anyone planned to withdraw their name from the petition.

• The area requiring drainage is approximately 50 acres, of which approximately 20 acres is owned by Dr. Allan. Approximately 7-8 acres in the area requiring drainage is upstream of the Allan property.

Sue Connell

Mrs. Sue Connell testified that she owned 80 acres and had rented part of the land to Dr. Allen for several years. She said there is a drainage problem on the land and that she had tried to be helpful in having the land drained. She told the Tribunal she did not understand the full implications of signing a petition for drainage until she attended the site meeting. She explained that she decided to withdraw her name the day after the site meeting. Mrs. Connell said she understood she would be responsible for half the costs of the engineer's report. She said she was unsure as to who would pay the costs of the hearing. Mrs. Connell indicated that the cost of the drainage works was not a large factor in her decision to withdraw her name from the petition as Dr. Allan had agreed to pay her share of the costs.

George Walker

Mr. George Walker testified that he had no objection to the award ditch being improved, provided he was not assessed the costs of the improvements. He said that Dr. Allan could improve drainage of his property by keeping cattle and hay out of the existing ditch. He said he did not believe there would be a substantial agricultural advantage to draining the affected land.

Jim Connell

Mr. Jim Connell said he wanted to clarify that he and his wife did not know about the existing award drain until the site meeting and that they thought that it would allow sufficient drainage without affecting people downstream. He said he was concerned that the proposed drainage works would result in tiled land downstream being taken out of production to allow for a larger ditch. He acknowledged that improving the award drain would not result in any more water draining downstream, but said the water would flow faster and that would impact downstream landowners.

Liane Waite

Ms. Liane Waite said she was a co-owner of the property described as the Smith property. She said she and Mr. Smith bought the property in 1990 and rented it to Dr. Allan for seven years. She said they did not allow the ditch to be re-dug in 1998 as they were concerned with the quality of work done in 1994 and as Dr. Allan had said he was going to remove a bridge and not replace it. She said that a municipal employee had told them that the ditch on their property met the standards of the award drain. Ms. Waite said the property was in hay, except for six acres of bush.

Summations

Dr. Allan said the only fair way to achieve proper drainage of his property was by way of a petition drain. He said the existing award drain had the ditch on his property one foot lower than downstream properties and that the land could not be drained through the award drain. Dr. Allan said the soil on his farm was like peat and it floats, so it was easy to see how a mistake could have been made in 1903 when the award drain was designed. Dr. Allan suggested ways in which the cost of a petition drain could be minimized, and said he was willing to pay Mrs. Connell's share of the costs. He said he could grow more nutritional hay if the land was drained. He said the value of the crop would increase by $100 per acre and the value of the land would increase by $400 per acre if the land were drained.

Mr. Perry said he had demonstrated that the area requiring drainage identified in his report was correct and asked that his Section 40 report be upheld. Mr. McIntosh told the Tribunal the municipality had paid costs related to a previous petition, an attempted mutual drain agreement and part of the cost of a requisition drain proposal. He asked the Tribunal to take these payments into consideration when determining who should cover the costs of the hearing.

The Findings

The Tribunal finds that the area requiring drainage identified by Mr. Perry in his report dated February 2002 is correct. The Tribunal notes that two engineers from the same firm but working independently both defined a similar area as the area requiring drainage. As well, Mrs. Connell testified that her land required drainage. The Tribunal was not persuaded by Dr. Allan's arguments regarding soil type, flooded areas and land use that the engineer was wrong in his definition of the area requiring drainage.

The Tribunal finds that the proposed drainage works cannot be constructed because the petition for drainage would be rendered invalid with Mrs. Connell’s removal of her name. The Tribunal finds it was appropriate for the engineer to prepare a Section 40 report upon learning of Mrs. Connell's decision to withdraw her name from the petition, rather than wait until after the preparation of a preliminary report, as this reduced the cost of the project. The Tribunal agrees with the engineer that it would be impractical to proceed with the drainage works.

The cost of Tribunal hearings is normally charged to the drainage works. The Tribunal finds that in this instance it was not necessary for two engineers to be present at and participate in the hearing. Therefore the Tribunal will only allow the cost of having one engineer in attendance at the hearing to be charged to the project. The balance of the costs of the hearing is to be charged to the drainage works. The costs are to be shared by the two petitioners for drainage - Dr. Allan and Mrs. Connell - on a 50:50 basis, as recommended in the engineer's report.

The question of whether the engineer's bill was accurate was not a matter before this panel of the Tribunal. The Tribunal notes that the council of the municipality may apply to the Tribunal to review an engineer's account, pursuant to Section 72 of the Act, but that no such application was made with regard to the Allan-Connell Municipal Drain

ORDER OF THE TRIBUNAL

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

1. The engineer's report dated February 2002 that was prepared pursuant to Section 40 of the Drainage Act by McIntosh Perry Consulting Engineers Inc. is upheld.

2. The appeal of Dr. Ken Allan made pursuant to Section 48 of the Drainage Act is dismissed.

3. The fees of the engineering firm with regard to preparation and attendance at this hearing which may be charged to the drainage works are limited to the fees associated with having one engineer in attendance.

4. Except as noted above, 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.