Eden Municipal Drain (Re), 2002 ONAFRAAT 29

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

Eden Municipal Drain Township of Wellington North

Eden Municipal Drain (RE) 2002 ONAFRAAT 29

Drainage Act

July 24, 2002

DATE OF DECISION:

August 8, 2002

2002-29

2002 ONAFRAAT 29

Eden Municipal Drain Township of Wellington North

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 Lorne Ireland and Glenn Ireland under Section 48 of the Drainage Act from the engineer’s report on the Eden Municipal Drain in the Township of Wellington North.

Before: Terry Denison, Vice Chair; Jack Young, Vice Chair; Ralph Huckle, Member.

Appearances: Glenn Ireland, appellant and representative of Lorne Ireland, appellant. Ken Smart, P. Eng., engineer who prepared report. Theresa Ireland, assessed landowner. Brian Eden, assessed landowner. Mark Mitchell, assessed landowner. Abner Gingrich, assessed landowner.

DECISION OF THE TRIBUNAL

This appeal was heard in Kenilworth, Ontario on July 24, 2002. Mr. Glenn Ireland and Mr. Lorne Ireland appealed under Section 48 of the Drainage Act (the Act) from the revised engineer's report dated April 24, 2002 by K. Smart Associates Ltd. on the Eden Drain in the Township of Wellington North (the report).

Ms. Cathy More, Clerk of the Township of Wellington North (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 revised engineer’s report dated April 24, 2002 on the Eden Drain▬ parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Statutory Context

Subsection 48(1) of the Act states:

Appeal to Tribunal

(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;

(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).

The Background

Mr. Ken Smart, P. Eng. provided a brief overview of the drainage project. He explained that the proposed drainage works were designed to drain agricultural land and that two drains are proposed.

Mr. Smart said that proposed Drain A would:

Outlet to an existing drain, the Benson Foster Award Drain.
Incorporate an existing open channel from the outlet to the North side of Lot 23 (L. & M. Ireland property).
Continue upstream as a closed drain through Lot 22 (Eden and Mitchell properties) and across County Road 14.
Include a catchbasin on Lot 22 and provide an outlet for field tiles.

He said that proposed Drain B would:

Incorporate an existing open ditch that runs through Lots 23 and 24 (Ireland properties and Kienapple property) and outlets in the Plat Drain.
Extend the existing open ditch upstream to within 200 metres of Lot 22 (Eden property).
Continue the drain upstream of the open ditch as a closed drain.

Mr. Smart explained that at the initial site meeting it was suggested that Drain B be constructed as a mutual agreement drain but that parties did not reach an agreement and he included Drain B in his original report. He explained the route of proposed Drain B was modified slightly in his revised report.

The Issues

The issues before the Tribunal were:

Should the outlet structure of the tile portion of Drain A be modified?
Is it necessary to deepen an existing ditch on the North half of Lot 23 to provide adequate drainage to lands draining through Drain A?
Is it necessary to extend Drain A downstream through the properties owned by G. & L. Ireland (S1/2 Lot 23) and A. & S. Kienappple (N1/2 Lot 24) to County Road 14?
Has adequate compensation been provided to Mr. L. Ireland and Mr. G. Ireland for land taken for Drain A?
Is it necessary to construct Drain B?
Has adequate compensation been provided to landowners for an existing ditch that will be incorporated into Drain B?
Has the allowance provided for Drain B been allocated correctly between the affected properties?

The Evidence

Drain A Issues

Mr. Glenn Ireland told the Tribunal that the existing ditch on the L. & M. Ireland property and the G. & L. Ireland property (Lot 23) has been well maintained and can accept additional water flow without modification. He said he was concerned that the engineer's proposal to deepen the drain will result in flooding in low-lying areas. He also noted that the drain was designed too narrow as it moved downstream and he was concerned this would cause ponding. Mr. G. Ireland pointed out that Mr. L. Ireland had made a written statement to the effect that deepening the existing ditch would not be required if Drain A were designed as an open ditch, rather than partially closed.

Mr. Ireland said that there was also a concern with the outlet of the tile portion of the drain on the L. & M. Ireland property. He said Mr. L. Ireland was concerned that there will be washouts on his property. Mr. G. Ireland suggested the outlet should be completely contained on the Eden property, as Mr. Eden desired the closed drain.

Mr. Brian Eden, Mr. Mark Mitchell and Mr. Abner Gingrich all testified that they required drainage. Mr. Mitchell said he planned to install a field tile drainage system so unused land could be farmed, but that he required an outlet. Mr. Gingrich said he was aware the drainage works were proposed when he purchased his property in May 2002.

Mr. Smart told the Tribunal that the existing ditch on the route of proposed Drain A would need to be deepened on the L. & M. Ireland property whether the drain was closed or open on the Eden property. He said the ditch did not require work on the G. & L. Ireland property. Mr. Smart said the existing ditch needed work downstream of the G. & L. Ireland property as the Kienapple driveway was blocking it. He said he believed that landowners should have the choice of open or closed drains, provided they were willing to pay any additional costs.

Mr. Smart said he designed the drain such that the closed portion outlet would have a total of 75 square metres of rip rap and he did not believe washouts would be a problem. He said it was necessary to locate the outlet on the L. & M. Ireland property to accommodate a laneway that Mr. L. Ireland indicated may be needed in the future, and to allow for the proper drainage of field tiles on the Eden property. He said he would normally have suggested an overflow swale over the laneway rather than the inlet catchbasin and lane culvert, but that he wanted to accommodate the wishes of the landowner.

Mrs. Theresa Ireland introduced a number of photographs of the existing ditches into evidence. Mr. G. Ireland told the Tribunal that he had measured the existing ditches at several locations with the assistance of Mr. L. Ireland and a young relative. He said the existing ditch is consistently 4 metres wide on both Ireland properties and is 2 metres wide at County Road 14. He said there were errors in the engineer's report as the engineer recorded the ditch being 6-7 metres wide on the L. & M. Ireland property and 6 metres wide on the G. & L. Ireland property. He said he was concerned that the drain was to be widened by 4 metres, rather than 1 metre to reach the 8 metre width called for in the report. He said he did not believe he and Mr. L. Ireland were adequately compensated, given this larger amount of land to be taken. He said the lands would be devalued by having a large ravine dug through them. He also said there would be interference with tile headers if the drain was widened by 4 metres.

Mr. Smart said that the difference in the width of the drain measured by the surveyors and by the Ireland family was due to differences in where they perceived the edges of the drain to be. He said that the photographs provided by the appellants supported the measurements taken by the surveyors. Mr. Smart said he provided an allowance for land taken based on the acreage used for the drain and value of agricultural land. He said he calculated the allowance based on an 8 metre wide drain. He said he also provided allowances for work done on the Ireland properties, pursuant to Section 31 of the Act. As well, he said that there was an allowance provided for damage to the land expected to occur during construction of the drainage works.

Drain B Issues

Mr. G. Ireland testified that it was not necessary to construct Drain B as a municipal drain as an existing drainage agreement between landowners could be modified to include Mr. Eden. He said he understood from a Ministry of Agriculture and Food publication authored by Mr. Sid Vander Veen that field tile drainage systems were not to be incorporated into municipal drains. He explained that the existing drainage ditch at the rear of the Ireland and Kienapple properties was sufficient to drain the back of the Eden property. He said that all that was required was the installation of a pipe between the catchbasin and the Eden-G. & L. Ireland property line. Mr. Ireland said the private agreement had been written by a lawyer but that it had not been registered on the property deeds as the work was not yet complete.

Mr. Ireland said that Ireland Bros. Ltd., a company owned by members of the Ireland family, had constructed the existing ditch along the route of proposed Drain B. He said there was a verbal contract and the company charged an hourly rate. He said it had not yet been paid.

Mr. Ireland stated that the engineer's report provided for allowances to be paid to landowners who did not incur the cost of constructing the drain. He said he also objected to the engineer using estimated costs for the construction of the drain when actual costs were available. Mr. Ireland said that Mr. Eden had been offered the option of entering into the private agreement if he agreed to pay one-third of the total cost of $15,000, or $5,200 if he wanted to pay on a per acre basis. He explained those prices are what would be charged to neighbours on a mutual agreement drain, but did not include costs of removing brush and landscaping that are normally covered in petition drains.

Mr. Smart said he understood that Mr. Eden had not agreed to proceed with a mutual agreement drain and that he was required to design Drain B. He said the existing private agreement between landowners did not meet the legal requirements to be a mutual agreement drain under the Act, and he noted that it was not a very clear agreement as there was no description of the drain or the apportionment of costs.

Mr. Smart said he estimated the value of the existing ditch at $14,500. He said he had requested actual cost data at one of the site meetings but had not received it. He said he was made aware that Mr. Eden would be charged $5,000 as his share of the cost of the existing ditch, if he were to join the private agreement and that he thought that was reasonable. Mr. Smart said he was not aware that the Ireland family had incurred the entire cost of installing the existing open ditch when he made his allowances. He said that had he known, he might have reduced the allowance on the Kienapple property, in favour of the Ireland properties.

Mr. Smart said he did not provide the Ireland properties with an allowance for an outlet to Drain B as there was no need for outlet beyond the Kienapple property.

Mr. Smart said he agreed that field tile drainage systems could not be incorporated in municipal drains, but said an engineer has to consider them in order to design a drain that will function properly.

Other Issues

Evidence was also given on the questions of sufficiency of the petition, work undertaken in the area after the petition was filed with the municipality, the removal of fences and assessments. None of these issues was the subject of the appeals to the Tribunal.

Summations

Mr. Smart said Drain A was required and the outlet of the tile portion had to be on the L. & M. Ireland property in order to accommodate the proposed laneway, provide an outlet for field tiles and align it to face downstream. He said he understood the concern about the width of the drain, but pointed out he had provided allowances for an 8 metre wide drain. He said his report allowed for a narrower drain to be constructed if soil conditions allowed for a steeper bank slope. He said all spoil would be hauled away. He asked the Tribunal to set aside the appeals and allow Drain A to be constructed as designed.

With regard to Drain B, Mr. Smart said the existing private agreement is not sufficient to provide an outlet to the Eden property and the drainage works would have to be constructed as a petition drain. He said the total amount of his allowance was within $500 of the Ireland estimate and he argued that it was sufficient. He said there was an argument for transferring the allowance for work undertaken on the Kienapple property to the Ireland properties, but said if the allowances are adjusted Mr. Kienapple's assessment should be reduced accordingly.

Mr. Ireland said he had never denied anyone a drain and his family had maintained their ditches well so the upstream properties could drain through them. He said the difference in the width of the drain on the project had to be addressed as it would impact on the cost of the constructing and maintaining the drainage works. He reiterated that Mr. L. Ireland did not want the tile outlet on his land and does not want the responsibility of maintaining it. He also suggested it would be sufficient to stop Drain A at the boundary of the Ireland properties.

Mr. Ireland said most owners were willing to have Drain B constructed as a mutual agreement drain. He said if it had to be a petition drain, the Ireland properties should be given higher allowances as they incurred higher costs than the engineer allowed for. He said Mr. Smart did not consider the cost of disposing of tree stumps and spoil as this was not included in the price quoted to Mr. Eden.

Mr. Eden said he was pleased with the design of both drains, he was concerned that his field tiles might be damaged if the design was changed and he did not want an open ditch, as it would result in an irregularly shaped field.

The Findings

With regard to the design of Drain A, the Tribunal notes that the drain was designed to accommodate landowners' requests - it allows for Mr. Eden to have a closed drain on his property and it allows for Mr. G. Ireland to have a driveway in the desired location. The Tribunal is of the view that landowners' preferences should be accommodated as much as possible, provided they are willing to incur the cost of any improvements they desire. It is clear that Mr. Eden desires and is willing to pay for the cost of closing in Drain A on his property and the Tribunal is not inclined to require that an open channel be provided instead. The Tribunal accepts the evidence of Mr. Smart that the outlet for the closed drain must be on the L. & M. Ireland property to allow for the adequate drainage of the Eden property, and allow for a driveway to be constructed on the L. & M. Ireland property. The Tribunal notes that most of the maintenance costs of this outlet are assessed to upstream landowners.

The Tribunal is not persuaded that ending Drain A at the boundary of the two Ireland properties will provide an adequate outlet for the drain. There was evidence of restrictions in the existing drain downstream of the L. & M. Ireland property.

The Tribunal accepts the evidence of the engineer that the existing ditch must be deepened on the L. & M. Ireland property to allow for adequate drainage of upstream lands. The Tribunal is satisfied on the evidence heard that any "push and pull" effect as referred to by Mr. Ireland, is adequately provided for in the design of the drain.

On the question of allowances for Drain A it is clear that the appellants will be compensated for the taking of land sufficient to construct an 8 metre wide ditch, whether or not the ditch is actually that wide after construction. The Tribunal heard no evidence to dispute the value per acre assigned to the land by the engineer. The Tribunal is not inclined to adjust the allowances for Drain A.

With regard to Drain B, the Tribunal understands that this drain could have been constructed as a mutual agreement drain, had all the neighbours been amenable to that approach and a proper agreement prepared in accordance with Section 2 of the Act. However, it was clear that Mr. Eden would not agree to proceed in that manner and the Tribunal cannot order a landowner to use that approach, rather than the petition drain approach. The Tribunal finds that Drain B shall be constructed as a petition drain.

On the question of allowances for Drain B, the Tribunal finds the total allowance of $14,500 provided by the engineer was reasonable. The Tribunal notes that the appellants testified they would have accepted $15,000 had the drain been constructed as a mutual agreement drain and the Tribunal does not find it credible that a petition drain should generate a larger allowance.

Mr. Smart raised the question of whether the allowances for Drain B had been allocated to the appropriate landowners, given the testimony that the Ireland family had constructed the existing ditch along the route of Drain B on the Kienapple property. There was also testimony to the effect that the construction company had not yet been paid for that work, although there was no documentary evidence presented as to how the existing ditch was to be paid for. The Tribunal notes that allowances are provided under the Act to compensate landowners for existing structures on the affected properties. There is no provision in the Act for providing compensation to the individuals or companies who actually constructed the structures - that is a private matter between the landowner and the construction contractor. The Tribunal is not inclined to order a change to the engineer's report on the allowances for Drain B. The Tribunal is satisfied, based on all of the evidence heard, that the Engineer's methodology for dividing the allowances for Drain B in the report was sound.

ORDER OF THE TRIBUNAL

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

The appeals of Mr. Glenn Ireland and Mr. Lorne Ireland under Section 48 of the Act are dismissed.
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.

Dated at Toronto, Ontario this 8th day of August, 2002.