Leonard and Donna Whitlock v. Municipality of Southwest Middlesex, 2002 ONAFRAAT 40

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:

Smith Drain Extension Municipality of Southwest Middlesex

Smith Drain Extension (RE) 2002 ONAFRAAT 40

STATUTE:

Drainage Act

HEARING:

September 27, 2002

DATE OF DECISION:

November 8, 2002

2002-40

NEUTRAL CITATION:

2002 ONAFRAAT 40

Smith Drain Extension Municipality of Southwest Middlesex

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 Leonard and Donna Whitlock under Section 48 of the Drainage Act from the engineer’s report on the Smith Drain Extension in the Municipality of Southwest Middlesex.

Before:

Andrew Wright, Vice Chair; Jack Young, Vice Chair; Russell Piper, Member

Appearances:

Leonard Whitlock, on behalf of Donna Whitlock, appellant Dennis McCready, P. Eng. for the respondent, Municipality of Southwest Middlesex Andy McBride, P. Eng. representing Daryll and Lyle Betts (Roll No. 40-090) and Darta Farms Ltd (Roll No. 40-075), Walter and Katherine Betts (Roll Nos. 40-074 and 40-092), assessed upstream landowners Daryll Betts, assessed landowner Ron Sharpe Sr., assessed landowner (Roll No. 40-072) Mrs. Betty Simpson, Stewart Simpson Poultry Farms, assessed landowner (Roll No. 40-080) Mary Simpson, assessed landowner (Roll No. 40-078)

DECISION OF THE TRIBUNAL

This appeal was heard in Glencoe, Ontario on September 27th, 2002. Mrs. Donna Whitlock appealed from the engineer's report (the Report) dated June 17th, 2002 by Todgham and Case Associates Incorporated on the Smith Drain Extension in the Municipality of Southwest Middlesex (the municipality) under Section 48 of the Drainage Act (the Act).

Mrs. Betty Ann MacKinnon, Clerk of the municipality, performed the duties of the Clerk of the Tribunal. Prior to the hearing, the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to the hearing. Proof was filed with the Tribunal that all parties have been served with notice of the hearing.

Section 48 of the Act 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).

(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, c. D.17, s. 48 (2).

Section 32 of the Act states:

Allowance for damage due to insufficient outlet

32. Where, in the opinion of the engineer, the cost of continuing a drainage works to a sufficient outlet or the cost of constructing or improving a drainage works with sufficient capacity to carry off the water will exceed the amount of injury likely to be caused to low-lying lands along the course of or below the termination of the drainage works, instead of continuing the works to such an outlet, or making it of such capacity, the engineer may include in the estimate of cost a sufficient sum to compensate the owners of such low-lying lands for any injuries they may sustain from the drainage works, and in the report the engineer shall determine the amount to be paid to the owners of such low-lying lands in respect of such injuries. R.S.O. 1990, c. D.17, s. 32.

The Issues

The issues before the Tribunal alternative drainage projects presented as responses to the Whitlock petition under the Act as identified in a Preliminary Report prepared the by the Engineer, Todgham and Case Associates Incorporated and dated January 25th, 2002.

The project recommended by the Engineer and proposed in the Report involves the construction on the Whitlock property (Roll No. 40-085) of two storm water management structures. This alternative was identified as alternative 1 in the Preliminary Report.

The Preliminary Report proposed two other alternative projects which the Engineer considered to be feasible and a third which was not. The Whitlock appeal requests that the Tribunal endorse Alternative 3 as identified in the Preliminary Report. This project would include a fenced detention pond on the Whitlock property and a closed drain downstream from the detention pond to Pratt Siding Road.

In the course of the hearing a suggestion was advanced that there should be no project at all and that an appropriate response to the Whitlock petition was to pay compensation pursuant to section 32 of the Act.

The issues before the Tribunal are therefore whether

to endorse the Report approving alternative 1 and dismissing the appeal,

to endorse alternative 3 by allowing the appeal and referring the Report back to the Engineer for that purpose, or

to determine that no construction should proceed on the basis of an Order by way of compensation under section 32.

The Evidence

Background

The Smith Drain consists of a “Main Drain” and “Branch A”, both located in the northwest half of Lot 7, Concession Range 2 South in the geographic Township of Mosa. The Main Drain consists of an open drain, which has its head at the north side of River Drive, just east of the centre of Lot 7. The Main Drain extends downstream, for a length of 918 metres to the present downstream limit of the Smith Drain at the line between Lots 7 and 8. Branch A is located near the centre of Lot 7. It has its head at River Drive and proceeds downstream in a southeasterly direction to outlet into the main drain near the centre of Lot 7. Branch A consists of 200 mm, 250 mm and 300 mm diameter tile.

The Smith Drain was originally constructed in the early 1940's. There have since been two improvements. The first was under James D. Nisbet’s engineer’s report dated November 14th, 1960 and the second was under Spriet Associates engineer’s report dated April 20th, 1990. In accordance with the 1990 report, the Main Drain was both repaired and improved by deepening and widening the drain for its entire length. As part of this work, the open drain was lowered by varying amounts up to 0.67 metres and an existing farm crossing was also lowered. The 1990 report further provided for the original construction of Branch A of the Smith Drain.

Mrs. Donna Whitlock petitioned for drainage improvements to correct the erosion problem on her property (Roll No. 40-085). The erosion had occurred following the 1990 repairs and improvements of the Smith Drain.

Because there was no appeal related to assessment there was no requirement for the Engineer to give evidence first in accordance with section 55 of the Act. Nonetheless with the consent of the appellant, Mr. McCready and Mr. McBride, the Tribunal called upon the Engineer at the outset to provide and overview and background.

Mr. Dennis McCready, P. Eng., gave a brief overview of the proposed drainage works. He informed the Tribunal that erosion occurs on both the Whitlock property and the Lumley property (Roll No. 40-088) between Stations 236 and 410; and that water had eroded a narrow and fairly deep channel (1.05 metres deep at its maximum) on the Whitlock property where the water enters a wide valley formation. He further stated that there is a significant fall to the valley (1.20% slope) that is steeper than the adjacent Lumley property. He explained that, while the Whitlock property had been in pasture for at least 25 years, it was clear to him that the erosion is relatively new and that the land will continue to erode unless the situation is rectified.

Mr. McCready reviewed the recommendation of the Teport which consisted of:

 The construction of two detention structures - one at Station 300, approximately 15 metres downstream of the fence between the Whitlock and Lumley properties, and the other at Station 410.

 Each detention structure will consist of an earth berm with an approximate height of 1 metre above the existing bottom of the gully formation, and is to extend across the full width of the bottom of the gully.

 Each berm would have seven pipes through it to permit approximately 38 mm (1½ inches) of runoff per day through the structures without overtopping the overflow weirs. Each pipe would have a diameter of 300mm and would be made of high density polyethylene (H.D.P.E.). The downstream ends of each pipe would be protected with broken concrete splash pads.

 A rip-rap weir and exit apron would be constructed at each berm and consist of broken concrete laid on a filter fabric underlay. The purpose of each weir would be to allow flows to overtop the earth berm without causing the earth berm to fail.

 The work would include the supply of clay backfill to fill the existing eroded cut and to construct the earth berms. The contractor would strip the topsoil from the berm areas and re-use it to cover the earth berms and the eroded channel.

 The work would include the removal and reinstallation of the fence, the fertilizing and seeding of the disturbed areas, the areas of the new earth berms and the compaction of all fill materials.

 An existing waterway on the Lumley property and an existing farm culvert would be incorporated into the drain.

The Proposed Project

Mr. Leonard Whitlock informed the Tribunal that he was familiar with farm drainage and the Act as a result of having been an member of and then head of the Council of the former Township of Mosa for several years in addition to having farmed his entire life. He stated that he has lived on the Whitlock property since 1977. He and his family had lived on and farmed adjacent properties before that so he was familiar with the property before living there. He told the Tribunal that he first noticed erosion at the east side of the property shortly after the Smith Drain was cleaned out and upgraded in 1990.

Mr. Whitlock stated that he objected to the drainage works proposed in the Report because he did not believe the berm system would adequately control the rate of flow of water and would not solve the erosion problem on the Whitlock property. He expressed concern that water would flow throughout the valley, rather than be confined to the north side of the valley and that the erosion from the east side of the property would join with a small eroded ditch on the west side of the property creating a larger erosion problem. Mr. Whitlock said it was no longer appropriate to consider the Whitlock farm an outlet for the Smith Drain. He suggested that the drain needed to extended across the Whitlock property to a box culvert at Pratt Siding Road.

As to the sufficiency of the outlet of the Smith Drain, Mr. Andy McBride, P. Eng., Mr. Whitlock’s submission was inconsistent with the conclusions of the three engineers who had prepared reports for the Smith Drain in 1941, when the drain was originally designed, and again in 1960 and in 1990 when the drain was improved. Each of those engineers was required to carry the drain to a sufficient outlet and each had concluded that there was a sufficient outlet where the water entered the Lumley property upstream from the Whitlock property. Mr. McBride’s submission was that there was no reason now to doubt those conclusions.

Mr. McCready agreed that previous engineers had concluded that there was sufficient outlet for the Smith Drain at the Lumley property but he disagreed that their conclusion were determinative of the matter forever. He told the Tribunal that circumstances had changed since 1990 with increased private tiling, a new municipal drain built in the region and some clearing of bush since the original report on the Smith Drain. Mr. McCready told the Tribunal that he was satisfied that the water artificially caused to flow in the Smith Drain was causing or at least contributing to the erosion problem which the petition sought to address.

Mr. McCready gave it as his evidence that the drainage works proposed in the Report would provide a sufficient outlet to the Smith Drain. He based his opinion upon his observation that no erosion had been observed downstream of Station 410 and that the land immediately downstream of the westernmost proposed berm seemed to be handling water well.

Mr. McCready told the Tribunal that he had designed the project to accommodate the water artificially caused to flow in the Smith Drain but not the flows that otherwise occur on and in the vicinity of the Whitlock property. He acknowledged that there would be continuing erosion of the Whitlock property downstream of the proposed berms as a function of these flows.

Other Design Alternatives

The Preliminary Report identified four alternatives for addressing the erosion problem. Alternative #4, an open ditch, was not considered viable and therefore not recommended. No party supported Alternative # 2. Mr. McBride presented a fifth alternative.

Mr. Whitlock told the Tribunal that he and his wife wanted Alternative 3. While it was a more expensive option, it represented a better, long-term solution. Alternative 3 would consist of a fenced detention pond, a smaller pond, a berm and a covered drain with two manufactured bends and one catchbasin. He directed the Tribunal to the fact that the Engineer had concluded that this Alternative was feasible though expensive by comparison to the proposed project. Mr. Whitlock particularly referred to the fact that test holes had been dug by the Engineer to verify a base of blue clay on the Whitlock property that could support an underground tile. Mr. Whitlock told the Tribunal that from his experience with drainage project under the Act he understood that the upstream landowners are responsible for rectifying any damage done to downstream properties and for ensuring that their water flows to a sufficient outlet. The project under the Act should address the damage done and ensure that there is no more damage. In his opinion the proposed project merely address the damage done to date and will not stop the erosion in the future. Mr. Whitlock objected to Alternative #1 as, in his view it would simply result in erosion on another part of the property and he would have to start the whole petition process again to resolve this potential future problem. Mr. Whitlock acknowledged that the gross monetary assessment for this alternative was high but when other considerations, such as a possible grant, were factored in, the actual cost of this proposal would not be as high as stated in Mr. McCready’s report. Further, while he recognized that assessments were not in issue before the Tribunal, Mr. Whitlock told the Tribunal that he had committed to paying an additional $5,000 for this alternative regardless of what the assessments might be as presented in the Preliminary Report.

Mr. McCready agreed with Mr. Whitlock that Alternative 3 was the best proposal from an engineering and environmental perspective but told the Tribunal that the extra cost of Alternative 3 would not be supported in a cost-benefit assessment in so far as upstream landowners were concerned.

Mr. McBride informed the Tribunal of was his clients’ belief that the Whitlock cattle were responsible for the erosion problem. He relayed their proposed solution which for the purposes of the hearing was referred to as Alternative 5 to distinguish it from the four presented in the Preliminary report. This Alternative 5 would involve the use of on-site material and imported rip-rap be used to protect the eroded areas. It would also require that the section of the valley in which water flows be fenced to eliminate the erosion caused by cattle and that a cattle crossing be constructed at the downstream end of the valley. Mr. McBride told the Tribunal that his clients’ estimate of the cost of this proposal to be $14,400. For this estimate a property value of $300 per acre was used. Mr. McBride indicated that he had not been retained to develop this alternative and that, having viewed the site, he would recommend the entire valley be fenced to keep cattle out.

Mr. McCready gave it as his estimate that Alternative #5 would cost approximately $34,000. He said he would use a slightly higher fencing cost in the range of $3,000, $5,500 more for the installation of a cattle crossing, four times the amount allowed for damages and a significantly higher allowances for land taken. He could not say if cattle contributed to the erosion but noted that cattle had been pastured on the land for many years before the erosion was observed.

Mr. Whitlock expressed a concern that the municipality would not adequately maintain the fence, that the fenced land would not be available for agricultural use as pasture and that, once fenced, the pasture would soon host thorn trees and other undesirable plant life. For him Alternative 5 was unacceptable.

Section 32 Option

Mr. McCready testified that he had quantified compensation that might be provided to Mrs. Whitlock as opposed to a solution to the erosion problem. While this was presented as an option to the Whitlocks, his calculation was also an exercise in estimating the range of cost that might reasonably be assessed to upstream owners to address the erosion problem caused by water from the Smith Drain. He stated that a payment under Section 32 would be approximately $26,000, using a value of $3,000 per acre for farmland and taking into consideration impaired use of the property, aesthetic considerations and reduced re-sale value. However, Mr. McCready said that a practical solution was available at a reasonable cost. He said the Whilocks had expressed a strong preference for a solution to the problem over a cash settlement. It was the Engineer’s opinion that the proposal in the Report, that is Alternative 1 from the Preliminary Report, would address the erosion problem at the lowest cost.

Mr. Daryll Betts said the value of the land was between $300 and $500 per acre. He submitted assessment information for a property owned by Mr. Lyle Betts which had Class 6 land and was partly wooded. The assessed value of this land was $325 per acre. He reported that he had spoke with a representative of the Farm Credit Corporation and had been told that gully land was worth no more than $500 per acre.

In this connection Mr. Whitlock testified that he did not know the farmland classification of the land in the valley of the Whitlock property but that this land had almost three feet of topsoil and was likely more fertile than the land on the rest of the property.

Environmental Issues

Ms. Mary Simpson informed the Tribunal she held a Masters degree in Environmental Studies and had an interest in farm management. She urged the Tribunal to consider the environmental impact of the five options.

Mr. Ron Sharpe said fish swam up to the current outlet of the Smith Drain when the Thames River floods. Mrs. Betty Simpson said the Lumley property had parkland in it and emphasized that it should not be destroyed. She further stated that an elderly neighbour remembered when there was a small creek on the Lumley property.

Mr. McCready said the Lower Thames Valley Conservation Authority referred to the valley on the Whitlock property as a natural waterway. He said it was clear that water could flow down it but that it was not a natural watercourse as he understood that terminology was used and defined by Common Law. The Conservation Authority indicated that the proposed options in the Preliminary Report would not contravene the Fisheries Act.

Summations

Mr. Whitlock testified that he did not object to upstream water crossing the Whitlock property but that he wanted it to cross in an orderly manner that will not cause erosion. He said it was clear that water entering the property is doing significant damage and he submitted that upstream landowners had no right to dump water on the Whitlock property and forget about it. He said that he would like the Tribunal to order the work described as Alternative 3 in the Preliminary Report should be undertaken. Alternatively, he said he would reluctantly accept a cash settlement of $26,000 under section 32 of the Act so he could use the money to do the work himself. He stated that Alternative 1 was not acceptable as the land would soon be washed out again and cattle would trample the berms.

Mr. McBride said the landowners he represented could accept the design in the Report (Alternative 1) or an order that compensation be paid pursuant to Section 32 of the Act. However, he stressed that his clients preferred Alternative 5 as they believe it is better from a land stewardship and environmental standpoint. He said upstream landowners were prepared to contribute to a reasonable cost solution under the Act. Mr. McBride asked for costs in the amount of $6,000 to be awarded to his clients. He informed the Tribunal that they had retained legal counsel prior to the hearing and that the $6,000 in costs reflected the legal expenses to which they had been put.

Mr. McCready told the Tribunal that all of the alternatives proposed during the hearing were technically feasible. Mr. McCready acknowledged that Alternative 3 was the best proposal from an engineering and environmental perspective. He also acknowledged that Alternative 1 only addressed the water artificially caused to flow in the Smith Drain and did not address the additional flows on and in the vicinity of the Whitlock property and that Alternative 1 would not solve the future erosion problems on the Whitlock property. He told the Tribunal that the problem came down to cost and who will pay. In his opinion the extra cost of Alternative 3 was not supportable on a cost-benefit analysis in so far as upstream landowners were concerned. He made it clear that if the Tribunal Order that the Report be referred back in order that Alternative 3 could be brought forward, the assessments as they appeared in the Preliminary Report would be reconsidered. With respect to Alternative 1 the Engineer also made the point that the Report could be modified to provide for maintenance of the gully downstream of the westernmost weir.

The Findings

The Tribunal is persuaded by the evidence of Mr. McCready and Mr. Whitlock that Alternative 3 is the optimal solution to the erosion problem on the Whitlock property. The Tribunal is concerned that Alternative 1 would not provide a long term solution to the problem and would instead simply relocate the erosion problem to another section of the property. Waterflows on the property downstream of Station 410 would not be accommodated by Alternative 1. The project should accommodate the total water flow on the property in order to rectify the erosion problem. The engineer acknowledged that Alternative 1 addressed only water artificially caused to flow in the Smith Drain whereas Alternative 3 would address both the water artificially caused to flow and the water naturally flowing on or in the vicinity of the Whitlock property.

Furthermore, the Tribunal is of the view that landowners’ preferences should be accommodated where possible, recognising that assessments of costs may be varied where accommodating a landowner's preference increases the overall cost of the drainage works. As assessments are not before this panel of the Tribunal for any of the alternative options under consideration, this finding should not be taken as going beyond that principle that landowners’ preferences should be respected to the extent that it is reasonable so to do.

The Tribunal did not look favourably on Alternative 5 as it would remove at least two acres of land from productive agricultural use and this would seem to be contrary to the intent of the Act. If Mr. McBride’s proposal to fence all of the valley land were to be given effect much more land would be taken out of use as pasture land. When there are other viable solutions land should be preserved and protected for agricultural use.

The Tribunal finds that the payment of compensation under section 32 of the Act is not appropriate in this case. A petitioning landowner is entitled to a solution except in rare circumstances where it is not practical to extend a drain to a sufficient outlet. The evidence of Mr. McCready is that erosion on the Whitlock property will continue if no drainage works are constructed to accommodate water flowing onto the property and he has proposed three practical solutions.

The Tribunal has concluded that there should be no Order as to costs., other than the normal routine disposition that the non-administrative costs of the municipality shall borne in the manner contemplated by the Act.

ORDER OF THE TRIBUNAL

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

1. that the Council of the Municipality of Southwest Middlesex is to refer the Report back to the engineer with direction that the engineer is to redesign the drainage works to incorporate the design described as Alternative 3 in the Smith Drain Extension - Preliminary Report by Todgham and case Associates Incorporated dated January 25th, 2002;

2. that the non-administrative costs of the municipality in connection with this appeal shall either form part of the cost of the drainage works or shall be paid as otherwise contemplated by the Act in the event that a drainage project does not proceed; and

3. that there be no other order as to costs and all parties are responsible for their own costs.

Dated at London, Ontario this 8th day of November, 2002.