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:
George Vanderbeke Farm Access Bridge over the 10th Concession Branch of the Irwin Drain Town of Kingsville
George Vanderbeke Farm Access Bridge over the 10th Concession Branch of the Irwin Drain (RE) 2002 ONAFRAAT 35
STATUTE:
Drainage Act
HEARING:
August 30, 2002
DATE OF DECISION:
September 20, 2002
2002-35
NEUTRAL CITATION:
2002 ONAFRAAT 35
George Vanderbeke Farm Access Bridge over the 10th Concession Branch of the Irwin Drain Town of Kingsville
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 George Vanderbeke, Cottam, Ontario under Section 48, and Section 54 of the Drainage Act from the Court of Revision and the Engineer’s Report on the Farm Access Bridge Over the Irwin Drain – Owner George Vanderbeke in the Town of Kingsville.
Before:
John Taylor, Vice Chair; Jack Young, Vice Chair; Bill Olson, Member.
Appearances:
Mr. Keith Vanderbeke, on behalf of Mr. George Vanderbeke, appellant.
Mr. Lyall Hall, witness on behalf of Mr. George Vanderbeke.
Mr. Bruce Crozier, P. Eng., on behalf of the Municipality, Bruce D. Crozier Engineering who prepared the report on the Farm Access Bridge of George Vanderbeke over the Irwin Drain.
Ms. Linda Burling, witness on behalf of the Municipality.
Mr. John Halbgewachs, witness on behalf of the Municipality.
Mr. Wayner Cox, witness on behalf of the Municipality.
Lou Zarlenga, witness on behalf of the Municipality.
Mr. Bill Neufeld, assessed landowner Lot 24, Concession 9.
Mr. Frank Ryall, assessed landowner Lot 24, Concesssion 9.
DECISION OF THE TRIBUNAL
This appeal was heard in Kingsville Ontario on Friday, August 30, 2002. Mr. George Vanderbeke appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act).
Ms. Linda Burling the acting Clerk of the Corporation of the Town of Kingsville, (the Municipality) performed the duties of the Clerk of the Tribunal. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
On March 7, 2002, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report dated January 8, 2001 on the Farm Access Bridge over the Irwin Drain (the Report) parties to 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,
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
A previous engineer's report on the Irwin Drain was prepared by W.D. Colby, P. Eng. in 1967. There is no legal description or provision for the construction or maintenance of the Vanderbeke access bridge in the 1967 Colby report. The access bridge over the Irwin Drain was installed by George Vanderbeke without an engineer's report with construction beginning in October 1998. Bruce D. Crozier Engineering Inc. was appointed by the Town of Kingsville to make a report on the access bridge in order to make it a legal entity and to provide some construction and future maintenance specifications. The Bruce D. Crozier Engineering Inc. report is dated January 8, 2001
The Issues
The issues before the Tribunal were:
Should the access bridge in the Irwin Drain remain as it is currently constructed without having to comply with the specifications for construction and maintenance as set out in the Crozier Report of January 8, 2001?
Are the costs of the access bridge as set out in the Crozier report appropriate.?
Who should be assessed the costs of the engineer's report, construction of the access bridge and the hearing; the appellant the upstream landowners, or the Municipality?
The Evidence
Bruce Crozier P. Eng.
Mr. Bruce Crozier of Bruce D.Crozier Engineering Inc. testified before the Tribunal that he had been practising drainage engineering for 29 years within southwestern Ontario. Mr. Crozier told the Tribunal that Lou Zarlenga an Engineer who is no longer with Bruce D.Crozier Engineering Inc., prepared the January 8, 2001 report with respect to the Vanderbeke farm access bridge. Mr. Crozier told the Tribuanl that Mr. Vanderbeke constructed the bridge in 1998 without an engineer's report and that during construction he was ordered by John Halbgewachs, the Drainage Superintendent at the time, to stop work until the project could be approved by an engineer.
Mr. Crozier told the Tribunal that there was considerable correspondence and discussion with Mr. Vanderbeke and that Mr. Vanderbeke eventually agreed to terms of construction as set out in an April 7, 2000 letter. Mr. Crozier said that the letter of April 7, 2000 was the result of discussions with Mr. Vanderbeke where efforts were made to resolve the issue of the illegal access bridge through the adoption of a report that would also incorporate as much of the previously constructed portions of the bridge as met the Municipal standards and policies. Mr. Crozier told the Tribunal that the policies and standards at the time of the agreement between the Municipality and Mr. Vanderbeke, were the same as those used by the former Township of Gosfield North. Mr. Crozier explained to the Tribunal that Mr. Vanderbeke was out of the country when the council met to consider the report, his son Mr. Keith Vanderbeke, did not object to the report on his behalf. Mr. Crozier said that The Court of Revision upheld the assessments for the construction of the Vanderbeke access bridge.
Mr. Crozier responded to questions that:
There were existing access bridges within the Municipality that were not constructed under an engineer's report.
The Municipality had jurisdiction over the construction standards of the Vanderbeke access bridge because it was built in a municipal drain and the Town of Kingsville was responsible for the drain's maintenance and liable if it was not maintained.
The standards of the Municipality have to be consistently applied to all drainage works within the Municipality.
A permit is necessary to create an entrance from private property to a county road, he did not know if this is the case for municipal roads.
The standards of the Municipality are un-written as there is no legislative provision for so doing.
Keith Vanderbeke
Mr. Keith Vanderbeke told the Tribunal that the initial culvert access bridge was not installed under an engineer's report. Mr. Keith Vanderbeke told the Tribunal that he checked with several authorities regarding drainage, and he was advised:
By Mr. Alex Bachtold, Drainage Inspector, that an engineer's report was not necessary for an extension to the bridge.
By the Essex Region Conservation Authority and the Ministry of Agriculture and Food (OMAF) Drainage Co-ordinator that the culvert that he planned to use for the access bridge was adequately sized. The OMAFRA Drainage Co-ordinator had also advised that since the access bridge did not create an obstruction under Section 80 of the Act the Town of Kingsville had no right to remove the existing structure.
By the Town of Kingsville by way of a letter dated April 3, 2000 that he should sign a petition so that council could authorize a drainage report or re-construct the bridge according to minimum standards set out in the Bruce D. Crozier Report dated August 5, 1999. The Town of Kingsville stated that it would take whatever action it deemed appropriate, should Mr. Vanderbeke fail to comply with the terms of the letter.
Mr. K. Vanderbeke told the Tribunal that it was the understanding of his father Mr. George Vanderbeke that the bridge needed only to be extended rather than re-constructed as the Town of Kingsville was directing him to do. Keith Vanderbeke told the Tribunal that the Town of Kingsville had indicated that there was a policy adopted from the former Township of Gosfield North to construct all access bridges under an engineer's report but that a neighbouring landowner, Bruce Armstrong, had constructed an access bridge across the Patterson Drain without an engineer's report. Mr. Keith Vanderbeke explained to the Tribunal that the stated construction requirements set out by the Municipality were not necessary. Mr. Keith Vanderbeke told the Tribunal that:
Neither the Drainage Inspector nor the Mayor of the former Township of Gosfield North were able to provide any written municipal policies or specifications for the construction of access bridges.
He could find no record of discussion about the Vanderbeke access bridge in the Minutes of Council Meeting.
The culvert that the Vanderbeke's installed exceeded the minimum flow capacity as set out in the Act.
The access bridge was constructed using the Ontario Provincial Standard Drawing.
There are other access bridges in the Municipality that do not meet its 20 foot width requirement; to insist that the Vanderbeke bridge do so is discriminatory.
There is B Granular back-fill readily available for surfacing use on site.
Grouting the headwall would complicate future maintenance. Other access bridges in the Municipality did not have grouted head walls.
Mr. and Mrs. Vanderbeke had registered the bridge as an agreed private mutual drain therefore it was not necessary for any upstream landowners or the Municipality to be assessed on the construction or maintenance of the access bridge.
To his knowledge there have not been any complaints about the access bridge from any other landowners assessed on the Irwin Drain.
Mr. Keith Vanderbeke showed a video tape of a tractor pulling three wagons across the access bridge, while another tractor was parked on the bridge. He told the Tribunal that the moving tractor and wagons had ample room to manoeuvre from the roadway across the access bridge. He said that the bridge measured 16 feet 8 inches at its center, which exceeds the measurements stated in the Ontario Provincial Standard Drawing. Mr. Keith Vanderbeke said that the flared entrance to the bridge is 28.5 feet which also exceeds the specifications of the Provincial Standard Drawing.
In response to questions Mr. Keith Vanderbeke told the Tribunal that:
Mr. and Mrs. G Vanderbeke are fully prepared to assume all responsibility for the maintenance and repair of the access bridge.
The access bridge will only be used in spring and in fall when equipment is put onto the property for planting or harvesting crops.
Mr. and Mrs. G. Vanderbeke do not want the other assessed landowners on the Irwin Drain to be responsible for the repair or maintenance of the access bridge, nor do they wish the Municipality to involve itself any further.
Ms. Linda Burling, acting Cerk of the Municipality, testified before the Tribunal that she was not aware of an access bridge similar to the Vanderbeke bridge as having been constructed by Mr. Armstrong on the Patterson Drain. Ms Burling referred to an engineer's report by William J. Setterington dated March16th 1977 that was, to her knowledge, the most recent report on the Patterson Drain. Ms. Burling said that she did not believe that Mr. Armstrong was the owner of any property assessed on Patterson Drain at the time the Setterington report was made. Ms. Burling stated that Municipal records could be reviewed to find if there were subsequent reports.
Mr. Lyall Hall told the Tribunal that he is a Licensed Industrial Mechanic and that he is an experienced backhoe operator. Mr. Hall said that he installed the culvert and constructed the Vanderbeke access bridge in October of 1998. Mr. Hall told the Tribunal that the culvert he installed was dented but was otherwise in good serviceable condition and that it was adequately sized for the drain. Mr. Hall told the Tribunal that he was aware that Mr. Vanderbeke had consulted with the local conservation authority and the OMAFRA Drainage Co-ordinator regarding the construction of the access bridge.
Mr. Frank Ryall told the Tribunal that he is an assessed landowner on the Irwin Drain. He said that he has never had any problems with the Vanderbeke access bridge.
Mr. John Halbgewachs testified before the Tribunal that he was presently retired but had served as the Drainage Superintendent to the former Municipality of Gosfield North. Mr. Halbgewachs told the Tribunal that :
At the request of the former Mayor, Mr. Miller, he visited the site of the Vanderbeke access bridge on November 27, 1998.
As a result of the site visit, he telephoned Mr. Vanderbeke to tell him to cease work on the access bridge until an engineer's report was made.
It was an unwritten policy of the former Municipality of Gosfield North that an engineer's report must be procured in order to construct an access bridge over a municipal drain.
He knew that the municipal policy/standard required that a bridge have a top width of 20 feet. On November 27, 1998 he estimated the top width of the Vanderbeke access bridge to measure 10 feet though he did not actually measure it himself.
He had raised the issue of adopting written access bridge policies/standards to the Municipal Council of Gosfield North.
He returned to the construction site on December 2, 1998 and he took a few photographs of the access bridge which were presented to the Tribunal.
Normally landowners approach the Municipality for guidelines regarding construction proposals for access bridges. The unwritten policy was communicated to the landowner at this time and not usually to the contractor who might be hired to construct the access bridge.
Mr. Wayne Cox told the Tribunal that he is the Environmental Service Manager and Drainage Superintendent for the Town of Kingsville. He explained to the Tribunal that in his experience with the Town of Kingsville since 1989 it has been the practice to have an engineer design and inspect the construction of access bridges that cross municipal drains. Mr. Cox said that this is the current practice of the Municipality. Mr. Cox told the Tribunal that he was not aware of any complaints from landowners regarding the Municipal policies and that he believed that landowners were adequately apprised of the policies. Mr. Cox told the Tribunal that he was not aware of the Armstrong access bridge to which Keith Vanderbeke had referred as having been constructed without an engineer's report.
Mr. Lou Zarlenga P. Eng. testified before the Tribunal that he had prepared the January 8, 2001 report on the Vanderbeke access bridge when he was employed with Bruce D. Crozier Engineering Inc. Mr. Zarlenga told the Tribunal that:
He had met with Mr. Vanderbeke on April 6, 2000 to resolve the outstanding issue of the access bridge and to bring its construction into compliance with the policies of the Municipality.
He had the impression that Mr. Vanderbeke was satisfied with the results of the meeting and agreed to the summary of construction changes as outlinged in the letter of April 7, 2000.
It was agreed that the access bridge would be the full responsibility of Mr. Vanderbeke and that the top width would have to be extended, granular topping would have to be spread on the surface and the turning radii at the opening would have to be increased.
The Ontario Provincial Standard Drawings provide only a minimum standard for construction of access bridges; the standards of the Municipality were higher.
A compromise was reached in the Vanderbeke access bridge report, as a used culvert was installed and clay back fill was permitted. Also Mr. Vanderbeke was permitted to construct the head wall from rubble stone where grouted jute walls were the norm and this also reduced the cost to Mr. Vanderbeke.
The diameter of the culvert was not a compromise as it was adequate for the Irwin Drain.
At the location of the Vanderbeke access bridge the Irwin Drain was in good condition.
Mr. Zarlenga told the Tribunal that it was his position when making a report to ensure that all public safety concerns were addressed in the design and construction of his projects. Mr. Zarlenga said that his design of the Vanderbeke access bridge met safety standards and municipal construction policies and standards. In response to questions Mr. Zarlenga said that:
It was his understanding that the specifications found in the Provincial Standard Drawings are applicable to the turning radius or bridge openings but not to the top width of the bridge.
His sketch of the access bridge shows that the culvert should be extended by 10 feet and that the turning radius should be extended to 26 feet.
There is no requirement to have a petition under Section 4 of the Act as the Irwin Drain is presently a drain under the Act. Section 78 of the Act allows for the Municipality to appoint the engineer to make a report for the proper construction of the new bridge and its future maintenance.
Summation
Mr. Keith Vanderbeke told the Tribunal in his closing remark that the Town of Kingsville unfairly permitted the construction of the access bridge and then decided that it did not meet the unwritten standards/policies of the Municipality.
In summation Mr. Crozier told the Tribunal that the Vanderbeke access bridge should be brought up to the construction standards specified in the January 8, 2001 engineers report. Mr. Crozier told the Tribunal that as a Municipal Councillor in the former Township of Gosfield North, Mr. Vanderbeke should have been more aware of Municipal policies and standards. Mr. Crozier stated that Mr. Vanderbeke should be assessed the full cost of the construction and maintenance of the access bridge as set out in the January 8, 2001 report.
The Findings
Considerable evidence was presented by the witnesses that there was an accepted policy/standard of procedure and construction with regard to driveway access bridges in the Town of Kingsville, (the former Township of Gosfield North). Further, the policy/standard existed for approximately 10 years. The Tribunal finds that evidence was presented by witnesses holding professional credentials in drainage engineering, that the Ontario Provincial Standard Drawings upon whch Mr. Vanderbeke based the design and construction of his access bridge were minimal guidelines and that the policies/standards of the present Town of Kingsville, (the former Municipality of Gosfield North) exceeded the OPSD requirments.
The Tribunal is not aware of any of legislation that provides for the Municipality to codify its policies/standards. The Municipal Council does however, under Section 78 of the Drainage Act have the right to appoint an engineer to make a report for the repair, maintenance and/or improvement of a municipal drainage works which can be adopted as a by-law.
The Tribunal finds that reasonable efforts were made to reach a compromise with Mr. Vanderbeke through a meeting with the engineer to discuss how the existing portion of the access bridge could be retained to keep costs down, while still maintaining the Municipal policies/standards of construction. It was agreed that Mr. Vanderbeke would be allowed to retain the installed culvert and use clay back fill that was available at the site. Mr. Vanderbeke indicated that the results of the meeting as summarized in an April 7, 2000 were satisfactory, leading the Municipality to believe that the matter was resolved. Consequently Mr. Vanderbeke did not complete the work as agreed to which protracted the matter leading to the hearing before the Tribunal. The Tribunal upholds the decision of the June 25, 2001 Court of Revision that the costs for the construction of the access bridge in the January 8, 2001 report by Bruce D. Crozier or the Vanderbeke Farm Access Bridge over the Irwin Drain are fair and adequate for the proposed work.
Mr. Keith Vanderbeke raised the point that the Municipality had allowed a similar access bridge to be constructed on the near by Patterson drain without the benefit of a report. No Municipal records were submitted to verify that the Armstong access bridge across the Patterson Drain was constructed under an engineer's report. Ms. Linda Burling undertook to make inquiries as to the existence of such a report. She reported that there was no such report however, this is immaterial to the matters under consideration.
Evidence was presented that Mr. Vanderbeke had served as a Councillor in the former Township of Gosfield North. It is reasonable to conclude that Mr. Vanderbeke had knowledge that there were policies/standards with regard to the construction of access bridges in the former Gosfield North, now Town of Kingsville.
Keith Vanderbeke introduced as an exhibit a purported Mutual Drain Agreement which the appellant, George Vanderbeke entered into between himself as the owner of the subject property and his wife Marie Claire Vanderbeke as the owner of an adjacent property. In the agreement dated Dec 14, 1999 George Vanderbeke states that he will assume 100% of the costs of the access bridge so that the upstream owners have no responsibility. While Mr. Vanderbeke demonstrated good intentions by not wishing to burden upstream owners with any part of the costs of his access bridge, the Tribunal feels that Section 2 of the Drainage Act does not apply to this situation. As the Irwin Drain had been constructed under by-law under the Drainage Act it cannot be incorporated as a Mutual Agreement Drain.
The appellant raised several other issues in his grounds for appeal and requested numerous declatory orders be made by this Tribunal . The Tribunal found that it was not necessary to enter into these issues covered by these requests and therefore makes no orders with respect to these issues.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The project be constructed in accordance with the Bruce D. Crozier Engineering Inc. Report of January 8, 2001.
The Tribunal orders that Mr. Vanderbeke pay a portion of the costs of the hearing in the amount of $1000, the remainder of the costs of the hearing are to be assessed against the Town of Kingsville.
Dated at Tilbury, Ontario this 20th day of September 2002.