Nithburg Drain No. 2 – 2002 (RE), 2002 ONAFRAAT 41

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:

Nithburg Drain No. 2 – 2002

Township of Perth East

Nithburg Drain No. 2 – 2002 (RE) 2002 ONAFRAAT 41

STATUTE:

Drainage Act

HEARING:

October 15, 2002

DATE OF DECISION:

November 21, 2002

2002-41

NEUTRAL CITATION:

2002 ONAFRAAT 41

Nithburg Drain No. 2 – 2002

Township of Perth East

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 Tim Wettlaufer under Section 48 of the Drainage Act from Provisional By-law the Report dated May 31^st^, 2002 on the Nithburg Drain No. 2 - 2002 in the Township of Perth East and appeals by James Dean and Tim Wettlaufer under Section 54 of the Drainage Act from a decision of the Court of Revision on the Nithburg Drain No. 2 - 2002 in the Township of Perth East.

Before: Andrew Wright, Vice Chair; Jack Young, Vice Chair; Andy Koopal, Member

Appearances:

Paul Elston, P.Eng., the engineer who prepared the report, for the respondent, The Corporation of the Township of Perth East,

Tim Wettlaufer, appellant,

Mark Nowak, representing James Dean, appellant,

James Dean, appellant,

Paul Foell, assessed landowner ,

Frank Roth representing Efelar Holdings Ltd,. assessed landowner, and

Wynne Ross, assessed landowner.

DECISION OF THE TRIBUNAL

This appeal was heard in Stratford, Ontario on October 15^th^, 2002.

Kerri Ann Doe, Municipal 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 revised engineer’s report dated May 31^st^, 2002 on the Nithburg Drain No. 2 - 2002 (the Report) parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

James Dean and Tim Wettlaufer appealed under Section 54 of the Drainage Act (the Act) from a decision of the Court of Revision for the Nithburg Drain No. 2 - 2002 in the Township of Perth East (the Municipality).

In accordance with the Tribunal’s practice of attempting to clarify issues, prior to the hearing the appellants were asked to submit a statement of issues and of the relief sought of the Tribunal. In that context Mr. Wettlaufer submitted an appellant statement in which he raised concerns about certain aspects of the proposed drainage works. Specifically, he asked the Tribunal to eliminate the stub proposed for his property and to eliminate the assessments associated with the stub. The Tribunal’s authority to make changes to the drainage project are found in Section 48 of the Act. The Tribunal has no such authority under Section 54.

At the commencement of the hearing the Tribunal raised the question of its jurisdiction and inquired of the engineer whether he was in a position to address the issue raised by Mr. Wettlaufer. Mr. Elston advised that he was. The Tribunal made inquiries about the notice the appellants were given by the Municipality about rights of appeal under Section 48. The Tribunal was advised that no notice was given with respect to Section 48 and that the only forms provided by the Municipality were those for a Section 54 appeal. Because the engineer agreed he was in a position to address the issue, the Tribunal was satisfied that there was no prejudice to any of the parties. On that basis the Tribunal accepted Mr. Wettlaufer’s appellant statement as an appeal under Section 48 of the Act and exercised its jurisdiction under Section 100 of the Act to extend the time within which Mr. Wettlaufer could bring such appeal under Section 48 of the Act.

Subsection 54 (1) 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. R.S.O. 1990, c. D.17, s. 54 (1).

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

Section 100 of the Act allows the Tribunal to extend the time in which an appeal may be initiated. It reads:

100. The Tribunal, in any case that it considers proper, may extend the time otherwise limited for application, appeal or reference. R.S.O. 1990, c. D.17, s. 100.

The Issues

The issues before the Tribunal were:

1. Should the assessment on the property owned by Mr. Dean (Roll No. 4-117) be varied?

2. Should the assessment on the property owned by Mr. Wettlaufer (Roll No. 4-123-13) be varied?

3. Should the report be amended to eliminate the drain stub from Mr. Wettlaufer's property?

The Evidence

Overview

Paul Elston, P. Eng. told the Tribunal his report was commissioned as a result of a petition filed in May 2001 under Section 4 of the Act. He said his firm had conducted a site meeting and had drawn preliminary plans which were discussed at an informal meeting in April 2002. The plans were then modified and his final report was completed on May 31^st^, 2002.

Mr. Elston explained that within the watershed there were agricultural land, residential properties and two roads. The total area within the watershed is approximately 19 hectares and the soil type is Guelph loam. Mr. Elston said he designed the portion of the drain that passed through the residential area for a two-year flood event and included a number of berms upstream to reduce flow through the subdivision. He told the Tribunal that the drain was not designed to drain basements, footings or eavestroughs. The upstream section of the drain that is to be located on the agricultural land was designed to an agricultural standard.

The project he proposed is a closed drain with one closed branch drain (Branch A). The Main Drain is to outlet into an existing storm sewer system which was built to service the residential development as well as an adjacent residential subdivision.

In preparing the assessments, Mr. Elston explained that he estimated the cost of the drainage works through the residential area, then estimated the cost of constructing a drainage project to an agricultural standard and then determined the difference between these costs to be $12,175 or approximately $100/linear metre. He said he had originally considered charging all of this cost difference to the residential properties as a special assessment but decided to charge only 60% of this amount to the subdivision because some residential properties were already served by a private storm sewer.

Mr. Elston said that he used a ratio of 40% statutory benefit to 60% outlet liability to apportion the balance of the costs of the drain. He explained that the agricultural lands and Perth Line 56 will receive a direct outlet benefit and two residential properties were assessed a cut-off benefit. He said outlet liability was assessed according to the area of land owned by each landowner with adjustments for run-off coefficients.

Assessment on Dean Property (Roll No. 4-117)

James Dean testified that he has owned his 25-acre hobby farm for approximately seven years and that there were no complaints about drainage until the adjacent subdivision was constructed. He estimated there was a 2.5-foot drop on the south end of his property and a 10-foot drop between his property and the residential property owned by A. and T. Meier (Roll No. 4-128-15). He said that the land originally sloped gradually east to the Nith River but that the slope had increased when the subdivision lots were graded. He said drainage tiles on his property were exposed when the subdivision was built and no corrective action was taken. He testified that the entire cost of Branch A of the proposed drain should be assessed to the residential properties.

Mr. Dean said he did not know of any private drainage arrangements involving his property. He understood that some of the owners of residential properties had installed a private tile to prevent water from entering their septic beds.

Paul Foell told the Tribunal he owns one of the residential lots (Roll No. 4-128-20) that backs onto the Dean farm. He said he did not believe Branch A of the drain was necessary, but that he had not appealed as he understood the cost of removing the Branch to be about as much as the cost of retaining it. He verified that he had installed a private 4-inch perforated tile in 2000 and that his neighbour, Mr. Meier, had later extended it across his own property.

Frank Roth testified that he developed the subdivision and that he lives in one of the residences. He said that there had always been a gully on the Dean property where the tile outlets and that there was a swale that went through two undeveloped lots in the subdivision. This swale is to be retained according to his subdivision plan. Mr. Roth testified that the Foell and Meier properties were very wet before the private tile was installed. He said water flowed in the private drain from the Foell property to the Meier property and from there it flowed to the Whetstone/Firth property (Roll No. 4-123-09). Mr. Roth told the Tribunal that the digging of the private drain had exposed the Dean tiles. He said the tiles were clay, approximately 3.5 inches in diameter and flat on one side. Mr. Roth was of the opinion that the property owners benefitted from Branch A, as without it they would continue to discharge water onto the neighbouring properties.

Mr. Elston testified that the differential between the Dean property and the residential lots varied. The deepest cut was almost 8 feet and occurred at the boundary of the Dean property and the Foell and Meier properties. He said that Branch A was necessary as it was the cheapest method of preventing water from the Dean, Foell and Meier properties from ponding on the Whetstone/Firth property. He acknowledged that the drain was designed for subsurface water and that surface flow may still enter the property. He pointed out that the Dean property would receive a legal outlet for water from Branch A and this would give the landowner legal recourse to have repairs and improvements made to the drain on downstream properties.

Drain Design and Assessment on the Wettlaufer Property

Tim Wettlaufer told the Tribunal that he objected to the inclusion of a stub of the proposed drain on his property. He said he would receive no benefit from the stub and he feared that water and gases would be released onto his property and into his basement if the Main Drain ever flooded. His basement is 12 feet higher than the proposed Main Drain.

Mr. Wettlaufer explained that his property had drained into an open ditch which drained the Buchroft Farms property (Roll No. 4-116) and thence into a catchbasin which emptied into a private tile on his property and the Ross property (Roll No. 4-123-11). He testified that, following the installation of new field tile on the Buchest Farm, the ditch had silted up and a pond developed. He further testified that the ponding problem was solved after the private catchbasin had been dug out. As well, he told the Tribunal that he had installed a swale system to carry water away from his foundation toward the catchbasin and then onto the Ross property. He said his land was 4 to 4.5 feet higher than the Ross property. He said he could install a French Drain if his neighbours objected to receiving his water. Mr. Wettlaufer suggested that his benefit assessment should be reduced to approximately $200, from $1,500 and that the difference should be assessed as outlet liability.

Mr. Elston testified that locating a stub on the Wettlaufer property would provide that property with a legal outlet which will be needed if the present private drainage arrangements are discontinued. He also said that the Wettlaufer property would benefit from upstream berms and other outlets which will relieve the ponding problem. He said that, in his view, the Wettlaufer property benefit assessment was reasonable and in line with assessments for work of a similar nature. Mr. Elston indicated that a hickenbottom or similar connecting device could be attached to the stub at a minimal cost.

Mr. Elston agreed that, if the Main Drain backed up, water would overflow the proposed new catchbasin which in turn may create surcharge conditions in the drain. With that in mind he expressed concern about the proposal by Mr. Wettlaufer that his basement drainage could be connected to the drain. Mr. Elston told the Tribunal that he recommends against such connection of basement drains. Mr. Elston indicated that, if Mr. Wettlaufer insisted on doing so, there should be a one-way valve or an intervening French drain. Mr. Elston did not believe the proposed drainage works would interfere with Mr. Wettlaufer's swale system. He did not recommend incorporating the existing catchbasin into the drainage works as it was in poor condition.

Wynne Ross said she supported the design of the drain in the Report as it provided Mr. Wettlaufer with a legal outlet. She testified that a large amount of water runs onto her property from the Wettlaufer property.

Summations

Mark Nowak submitted that the drainage problems that Branch A was designed to resolve were caused when the subdivision was developed and should have been addressed by the engineering firm retained to design the subdivision. He said Mr. Dean would receive no benefit from the proposed drainage works whereas the Meier and Foell properties would benefit from dry backyards. He also suggested that the Whetstone/Firth property should be assessed some of the costs of Branch A as it would reduce problems on that property. Mr. Nowak submitted that Mr. Dean should not be liable for water flowing onto the residential lots and that the landowner who severed the property was to blame. He also noted that the drainage problems started when Buchroft Farms changed its drainage system and when the new subdivision was developed, neither of which had anything to do with his client.

Mr. Wettlaufer reiterated his opposition to the report. He said that his private system may not be perfect but that it did work.

Mr. Elston reminded the Tribunal that the Act allows assessments for both benefit and outlet. He said the Dean property was assessed for outlet on the Main Drain and Branch A, as well as being assessed for benefit on Branch A. He submitted that the branch drain did provide a benefit to the property in the form of a legal outlet. Mr. Elston said he understood that the change in land use from agricultural to residential had caused strife between the respective landowners. He said he had to recognize the interests of all landowners and use his engineering knowledge to derive a fair solution. Mr. Elston said he stood by his assessments on both the Dean property and the Wettlaufer property. He said the assessment on the Wettlaufer property could be slightly reduced if the Tribunal ordered the design to be changed to remove the stub.

The Findings

The Tribunal is persuaded by Mr. Nowak's submissions that the residential lots receive more benefit from Branch A than the Dean property and that the Whitstone/Firth property should be assessed a portion of the cost of this drain. Mr. Elston's testimony that the branch would alleviate some of the drainage problems on the Whitstone/Firth property supports Mr. Nowak's submission. The Tribunal finds that the Efelar Holdings property (Roll No. 4-128-10) will also benefit from the construction of Branch A. Both the Efelar Holdings property and the Whitstone/Firth property are in a low lying area of the subdivision and both will benefit from having water from the Dean property intersected and directed to the Main Drain. The Tribunal is satisfied, however, that the Dean property will receive some benefit from the proposed drainage works. While the property apparently has adequate drainage through an established field tile system, there is no legal outlet for these tiles and Branch A will provide one.

With regard to the Wettlaufer property, the Tribunal recognizes that Mr. Wettlaufer has solved his immediate drainage problems by digging out the private catchbasin and installing a swale system on his property. However, the Tribunal does not see this as a permanent solution. Mr. Wettlaufer cannot continue to discharge water onto the neighbouring Ross property indefinitely. The Tribunal will uphold the engineer's decision to provide a stub on this property, but will order that a hickenbottom be connected to the stub so water on the Wettlaufer property will have access to the drain. The Tribunal recognizes that the engineer used his judgement in assessing benefit to this property. As there was no definitive evidence presented to support varying that assessment, the Tribunal will not order any change to the assessments on the Wettlaufer property.

ORDER OF THE TRIBUNAL

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

1. The engineer is ordered to amend the engineer's report on the Nithburg Drain No. 2 - 2002 in the Township of East Perth to include a hickenbottom to be connected to the stub on the Wettlaufer property (Roll No. 4-123-13).

2. Before the passing of the provisional by-law on the Nithburg Drain No. 2 - 2002, the Clerk of the Municipality is ordered to amend the Schedule of Assessment for Construction Branch A to :

• reduce the statutory benefit assessed to the Dean property by $1,350,

• increase the statutory benefit assessed to the Meier property by $250,

• increase the statutory benefit assessed to the Foell property by $250,

• increase the statutory benefit assessed to the Efelar Holdings property by $500, and

• increase the statutory benefit assessed to the Whetstone/Firth property by $350.

The revised assessments for construction of Branch A are described below:

Roll No. (Owner)

Benefit

Outlet Liability

Total Assessment

4-117 (J. & B. Dean)

$1,000.00

$600.00

$1,600.00

4-128-15 (A. & T. Meier)

$800.00

0

$800.00

4-128-20 (P. Foell)

$800.00

0

$800.00

4-128-10 (Efelar Holdings Ltd.)

$500.00

0

$500.00

4-123-09 (A. Whetstone & N. Firth)

$350.00

0

$350.00

Total Assessment on Lands

$3,450.00

$600.00

$4050.00

The revised assessments for maintenance of Branch A are described below:

Roll No. (Owner)

Portion of Maintenance Cost

4-117 (J. & B. Dean)

39.51

4-128-15 (A. & T. Meier)

19.75

4-128-20 (P. Foell)

19.75

4-128-10 (Efelar Holdings Ltd.)

12.35

4-123-09 (A. Whetstone & N. Firth)

8.64

Total Assessment on Lands

100.00

3. The appeals by Tim Wettlaufer under Sections 48 and 54 of the Act are dismissed.

4. 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.