Rutherford Drain (Re), 2002 ONAFRAAT 45

Agriculture, Food and Rural Affairs Appeal Tribunal

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

Guelph, (Ontario) N1G 4Y2

Tel: (519) 826-3433, Fax: (519) 826-4232

Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Rutherford Drain

Township of South-West Oxford

Rutherford Drain (RE) 2002 ONAFRAAT 45

STATUTE:

Drainage Act

HEARING:

November 29, 2002

DATE OF DECISION:

December 20, 2002

2002-45

NEUTRAL CITATION:

2002 ONAFRAAT 45

Rutherford Drain

Township of South-West Oxford

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 Mary Rutherford Cosby and Bonnie and Marvin McDonald under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and from the engineer's report on the Rutherford Drain in the Township of South-West Oxford.

Before:

Terry Denison, Vice Chair; Jack Young, Vice Chair; Mary Field, Member.

Appearances:

Mike DeVos P. Eng., engineer who prepared the report.

Mary Rutherford Cosby, appellant.

Bonnie McDonald, appellant.

Marvin McDonald, appellant.

Wray Ramsey, Drainage Superintendent on behalf of the Municipality.

Paul Geysen, witness for Marvin and Bonnie McDonald appellants.

DECISION OF THE TRIBUNAL

This appeal was heard in Mount Elgin, Ontario on November 29, 2002. Mary Rutherford Cosby and Bonnie and Marvin McDonald appealed under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and from the engineer's report dated May 24, 2002 (the report) on the Rutherford Drain in the Township of South-West Oxford ( the Municipality).

Mary Ellen Greb, Deputy Clerk of 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 engineer’s report on the Rutherford Drain▬ parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Sections 48 and 54 of the Act state:

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.

48. (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, chap. D.17, s. 48.

Section 54:

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.

(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.

. (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 Issues

The issues before the Tribunal were:

1. Should the report be adopted as a by-law and the proposed reconstruction be done?

2. Are the assessments to the Rutherford Cosby and McDonald properties fair and reasonable?

The Background

The report on the Rutherford Drain dated May 24, 2002 prepared by Spriet Associates (the Report) was prepared at the request of the Municipal Council of the Township of South-West Oxford pursuant to Section 78 of the Drainage Act. The Rutherford Drain was originally constructed in 1887. Its outlet is at Stoney Creek in the northeast portion of Lot 12 Concession 11, of the geographic Township of Dereham, and the drain continues upstream in a southwest direction to the Hawkins Road. It then continues south west across part of Lot 13, Con 12. The Simmons Branch of the Rutherford Drain was constructed under the same report but was relocated to private property along the north side of the Hawkins Road under a report by Spriet Associates dated November 21, 1974.

The Evidence

Mr. Mike DeVos P. Eng. (the Engineer) testified before the Tribunal on behalf of the Report. Mr. DeVos told the Tribunal that he has been a drainage engineer for 16 years and that he has prepared municipal drainage reports for 11 years. Mr. DeVos told the Tribunal that he has prepared over 200 drainage reports. He stated that the present main drain is undersized for the flow that it must now accommodate and in addition to being undersized, portions of the drain are over 100 years old and unsuitable to join with a new drain. The tile at the outlet is also undersized and cannot provide a proper outlet for the surface and sub-surface flows.

The Simmons Branch, though functioning well despite its age, is also undersized and unsuitable to join to a new section of drain. Some of the assessed landowners had expressed concerns over flooding and ponding of water after a significant rainfall.

Mr. DeVos told the Tribunal that it is proposed to locate the new Main Rutherford Drain in its same location. The Simmons Branch of the Rutherford Drain is proposed to be built in the same location as when it was relocated in 1974 along the north side of Hawkins Road. As well, a stub drain on the Way property was to remain in its current location.

Mr. DeVos told the Tribunal that a site meeting was held to hear the concerns of affected landowners. Mr. DeVos said that:

• The Baxter property at Lot 13, Concession 11, experienced pooling of water after significant rain, as the systematic tiles could not outlet properly due to the undersized drain to which they were connected.

• The Hyatt property at Lot 13, Concession 12, had ponding water for one to three days after a significant rain. The water would overflow the catch basins as they could not accept all the water.

• There was flooding on the Hawkins Road in front of the Way property at Lot 13 Concession 11. The Ways reported that the water flowed over the entrance to their laneway.

• No concerns were expressed by the owners of the property at Lot 15, Concession 11, at the westerly end of the watershed.

• Mr. and Mrs. McDonald had no concerns about drainage and felt that the drain was functioning well.

• The owners of the Rutherford Cosby property indicated to him that they were opposed to the project as they felt it was too costly.

Mr. DeVos told the Tribunal that a field investigation and survey indicated that:

• The main branch of the drain is functioning but is undersized by today's standards.

• The Simmons Branch of the drain running along the north side of the Hawkins Road at Lot 14, Concessions 11 and 12 at the Rutherford Cosby property does not have a proper outlet for sub-surface water.

• The agricultural activity in the watershed is mostly cash crop farming which is affected in some areas by erosion.

• The Hyatt property at Lot 13, Concession 12 is drained by tile which is undersized and as much as 115 years old.

• The grade within the watershed is flat at the upper end at the McDonald property in Lot 12, Concession 11 and there is evidence of severe erosion due to surface water running along a grass runway.

Mr. DeVos said that options to reduce cost were considered he said that there was an option of joining a new 18 inch pipe to the existing 15 inch pipe at the junction of the Simmons Branch and the Main Drain. He said that it was considered that this twinning at the junction would be assisted by the construction of an overflow basin at Station 375 where there was an existing grassed waterway. Mr. DeVos said that this option would have resulted in a net savings of approximately $3,300. Mr. and Mrs. McDonald's indicated that this was not suitable and that they did not wish to pay any assessments for the works therefore, the option was abandoned and the report presented to council.

Mr. Devos described to the Tribunal the recommendations in the report for:

• Installing larger tile along the north side of the Hawkins Road on the Main Drain with two catch basins, one of which is to be a hickenbottom to be constructed at the beginning of the branch of the main drain on the Rutherford Cosby property.

• Installing a catch basin on the Way property upstream of their laneway with the catch basin joining into the Simmons Branch of the drain.

• Cleaning out the existing culverts under the Hawkins Road and installing new plastic sewer pipe under the Hawkins Road.

• Use of pipe that removes water at the rate of 19mm per 24 hours. The use of 19 mm pipe is advised for agricultural drains in the guidelines that are published by the Ministry of Agriculture and Food.

Mr. DeVos explained to the Tribunal that a significant amount of the cost of the proposed work was related to the construction at the McDonald property because of the topography and the location of the drain. The report called for the proper sized drainage structures and improved outlets for both the Rutherford Cosby and McDonald properties. Mr. DeVos told the Tribunal that the total cost of the Rutherford Drain was $116,700. Mr. DeVos explained that the Todgham method, a commonly used and widely accepted method, had been used to calculate the assessments. He explained how he had applied the Todgham methodology.

He provided his handwritten "Assessment Breakdown" which sets out the outlet and benefit costs for each section of the Main Drain and the Simmons Branch and outlined the costs assigned to each property.

Mr. DeVos exhibited a number of photographs to the Tribunal that he had taken at various locations on the McDonald property along the route of the Rutherford Main Drain on July 16, 2002. Mr. DeVos interpreted the photographs as showing crop loss and erosion.

The appellants, Mr. Marvin McDonald and Mrs. Bonnie McDonald and Ms. Mary Rutherford Cosby, testified before the Tribunal as a panel. The appellants showed a video-tape of the drain outlet tiles that emptied into Stoney Creek on the McDonald property. The McDonald's used the video to show the water flowing from the outlet of the tiles on June 21, 2002, June 22, 2002 and June 23 of 2002.

Mrs. McDonald explained to the Tribunal that their intent in shooting the video was to show how well the drain was working and to show the decrease in flow from the outlet tile a few days after the rainfall as this indicated that the water was being successfully removed by the drain.

Mr. McDonald told the Tribunal that he and his wife and Mrs. Rutherford Cosby were opposed to any of the proposed works and that that they did not wish to be assessed in any way on the drain.

The appellants exhibited a document brief before the Tribunal, that included photographs of their property and the Baxter and Hyatt properties. Mr. and Mrs. McDonald's exhibit brief contained the photographs taken by Mr. DeVos on July 16, 2002. Mr. and Mrs. McDonald said that the photographs taken by Mr. DeVos showed:

• Crop loss due to a large spill of liquid pig manure at their farm in the spring of 2002.

• Bare earth with no vegetation on it due to the burning of the soil from the manure spill, which resulted in their not being able to plant crop on the affected area.

• Loamy soil with strong healthy crops whose growth was not affected by the manure spill.

• The section of bare earth where the manure spill occurred looked as if a large area was affected where in reality only a small portion of an acre of land was affected. The viewer was led to believe a large area was affected due to the angle at which the photographs were taken.

Mr. and Mrs. McDonald told the Tribunal that Mr. DeVos incorrectly described the crop loss and erosion as resulting from poor functioning of the drain and that he was not qualified to recognize the true cause of crop loss and bare soil as seen in the pictures.

Mr. and Mrs. McDonald told the Tribunal that Mr. DeVos had entered onto their property without their consent in the course of his appointment and had violated the "bio-security" measures in place on their farm. The McDonalds presented undated photographs of the "bio-security" signs on their farm.

Mrs. McDonald exhibited photographs of an area of ponding water on the Hyatt property and on the Baxter property. Mrs. McDonald told the Tribunal that the Baxter property was systematically tiled and that the wet spot was due to damage to the underlying tile which could not drain the water away. Mr. and Mrs. McDonald told the Tribunal that in their opinion, Mr. DeVos had designed a works that was unnecessary and in so doing had violated his professional obligations under Section 11 of the Drainage Act.

Mrs. Rutherford Cosby submitted to the Tribunal that for generations migratory birds made wet sections of her property a stop over in their season travels. Mrs. Rutherford Cosby explained to the Tribunal that the Migratory Convention Act 1994 deemed that migratory birds played an important role in controlling crop destroying pests. Mrs. Rutherford Cosby told the Tribunal that her property provides one of only six staging areas in Ontario for the Tundra Swan.

Mrs. Rutherford Cosby told the Tribunal that the rolling lands in the watershed did not need systematic tile drainage as flatter lands to be found in other parts of the municipality might. Mrs. Rutherford Cosby said that the only property in the watershed that was systematically tiled belongs to Mr. Wes Baxter and that he should bear the greatest cost of the drain because his tiles were putting water into the drain.

Mrs. Rutherford Cosby told the Tribunal that the value of her land would decrease as a result of the proposed works, she said that the loss of migratory birds was of no benefit and that there would be loss of crop productivity from loss of soil moisture.

Mr. Devos responded to questions that:

• He relied on reports on the original drain that were provided by the municipality when determining the source of flow for an outlet tile that drained into Stoney Creek. The old reports indicated that the tile from Lot 11, Concession 11 drained lands outside of the proposed Rutherford Drain watershed.

• Their survey findings were consistent with the drainage structures set out in the old report from 1915 on the Rutherford Drain.

• When the option of twinning old with new drain was considered, the actual cost saving in the long and short was weighed and it was concluded that the age of the existing tiles made the twinning option impractical.

• Most drains of similar age to the Rutherford Drain have been replaced.

• He expects that the new works would be useful for over 40 years.

• The present drain size would not be able to accommodate the water if more properties in the watershed were systematically tiled.

The appellants responded to questions that:

• They did not video-tape any areas at which surface run-off from their property entered Stoney Creeek.

• They did not receive any results from water samples taken for composition testing.

• They did not ever contact Mr. DeVos to inform him of the "bio-security" measures on their farm.

• They cannot remember when they erected signage on the property warning visitors that it was a "bio-security" sensitive area.

• They did not inform the staff of the engineering firm Spriet Associates that there had been a manure spill on their farm in spring 2002. They were not aware of the necessity of reporting the spill to the Ministry of Natural Resources.

Mr. Bob Gheysens, witness for the appellants, testified before the Tribunal that he walked with Mr. and Mrs. McDonald to the creek to view the outlets of the drain approximately two days after the heavy rainfall of June 21, 2002. Mr. Gheysens testified that he observed a steady stream of water exiting the tiles into the creek and that the drain was working well.

Mr. Wes Baxter, assessed landowner, told the Tribunal that his farm is systematically tiled and that he believes the wet spot on his property is due to the inability of the undersized tile in the drain to remove the water. Mr. Baxter submitted pictures to the Tribunal that he took in late May 2002, showing ponding water on the McDonald, Rutherford Cosby and Hyatt properties.

Mr. Jim Hyatt, assessed landowner, told the Tribunal that the portion of the drain downstream of his property was inadequately sized and water frequently pooled for several days after a significant rainfall. Mr. Hyatt said that he was unable to use seven acres of his property because of the ponding water. Mr. Hyatt exhibited a photograph of his property taken June 12, 2000 showing water standing in a field planted in corn.

Summation

Mr. McDonald told the Tribunal that there was no reason to fix the drain or assess his property as the existing drain was working well. Mr. McDonald said that he and his wife were opposed to any works and that the only landowner to benefit from a works would be Mr. Wes Baxter as his property was systematically tiled. Mr. McDonald stated that the Tribunal should allocate the cost of the drain to the landowners who wanted the work done.

Mrs. Rutherford Cosby told the Tribunal that she believed that Mr. Wes Baxter was confused about the time of year when he took the photographs that he showed to the Tribunal. Mrs. Rutherford Cosby said that the proposed assessments were excessive and unnecessary. She stated that the landowners in the watershed would have to unfairly bear the cost of drainage for the 50 acres within the watershed that was systematically tiled. Mrs. Rutherford Cosby told the Tribunal that she perceived no benefit from the proposed works and that the system worked well and that there was no need to fix it.

Mr. DeVos stated in his summation that he found the proceedings to be disheartening in manner and content. He stated that much of the information brought forth by the appellants was not submitted at previous meetings. Mr. DeVos told the Tribunal that every effort was made to satisfy the concerns of the parties.

Mr. DeVos told the Tribunal that he has never been dishonest or derelict in carrying out his professional duties.

Mr. DeVos stated that the Rutherford Drain is not dissimilar to many others that he has worked on in the province. He said that the proposed works was costly but that it was designed to last a long time and that it could accommodate the flow of more sytematic tile drainage than presently existed in the watershed. He said that the drain was functioning but that by modern standards it was grossly undersized and inadequate. Mr. DeVos referred to a similar drain in the Township of West Nissouri that was successfully constructed with similar assessments.

Mr. DeVos told the Tribunal that he could not say specifically when the present works would cease to function but that the drainage conditions would only worsen over time if the drain were not reconstructed.

The Findings

The appellants (McDonald) in their evidence, and in their written materials, made several statements attacking the professionalism, integrity and fairness of the engineer related to the engineer’s duties under Section 11 of the Drainage Act. These materials were not provided to the Tribunal, the municipality or the engineer in advance of the hearing. The Tribunal has a duty of fairness to hear and consider the evidence and submissions put to it by parties before it. In this instance the appellants’ statements with respect to the engineer’s actions, however unflattering to the engineer, could, if true, have a bearing on the determinations that the Tribunal would make on the appeals filed under Sections 48 and 54. Reproduced below are Sections 11 and 12 of the Drainage Act which deal with the duties of an engineer preparing a drainage report and the engineer’s powers to enter lands during preparation of a report:

Duties of engineer

11. The engineer shall, to the best of the engineer’s skill, knowledge, judgement and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon. R.S.O. 1990, c. D.17, s. 11.

Power to enter on lands

12. (1) The engineer or any of the engineer’s assistants when engaged in the performance of their duties during or after the examination of the locality may enter, measure along, ascertain the bearings of any line, plant the stakes that they consider necessary for the performance of the work and take levels on the land of any person. R.S.O. 1990, c. D.17, s. 12 (1).

Offence, obstruction of engineer

(2) Every person who wilfully interferes with or obstructs the engineer or any of the engineer’s assistants in the exercise of the powers conferred by this section is guilty of an offence and on conviction is liable to a fine of not more than $1,000. R.S.O. 1990, c. D.17, s. 12 (2).

Upon hearing the allegations made by the appellants challenging the engineer’s adherence to the duties under Section 11, it became apparent to the Tribunal that the allegations were not supported by any credible evidence. The Tribunal, having considered all of the evidence, finds that the actions of the engineer were professional, appropriate and that he acted in good faith and in keeping with the engineer’s duties under Section 11 of the Drainage Act.

The appellants also submitted to the Tribunal that the engineer had entered upon their land without observing signage indicating that the land was subject to “bio-security”. The appellants are pork producers and desire to protect their livestock from the risk of infection from diseases which could be carried onto their farm by visitors. The Tribunal recognizes that the communication of disease to livestock is potentially a very serious matter for pork producers such as the appellants. However, upon questioning from the Tribunal the McDonalds were unable to confirm the “bio-security” signage which was shown in evidence through photographs by the appellants was in place at the time the engineer entered their land. In addition, the appellants had not taken any positive steps to advise the municipality or the engineer of the bio-security" area when they knew, or should have known that it would be necessary for the engineer to enter upon their land. It would be reasonable to expect persons in the position of the appellants to telephone or write the municipality and the engineer to advise them of their concern. This could have been done at the site meeting. There was no evidence that the appellants did any of these things: in fact Mr. McDonald stated that he did not feel it was necessary because the municipality and the engineer should know that his land was a “bio-security” area. Professionals who enter upon land, even where they have a statutory right to do so as is the case under the Drainage Acts should be cautious and respectful of the landowner’s posting of warnings such as a “bio-security” restriction, when they know about them. Equally, landowners have a responsibility to take positive action to advise those who they know will need to enter a “bio-security” area. In this case, the appellants would have been advised of site meetings and the fact that the drain was being surveyed and evaluated for repair. It is not enough to say that the municipality and the engineer should have known.

In his evidence the engineer presented a series of photographs of corn growing in the McDonald’s fields that were taken by him to illustrate what the engineer perceived as demonstrating the effect of poorly drained areas on the McDonald’s land. In the engineer’s view areas where the crop appeared not to thrive or grow at all were attributed to poor drainage and wet areas in the fields. This was a reasonable explanation by the engineer for what appeared in the photographs. In their evidence the McDonalds gave an alternative explanation of what appeared in the photographs. Mr. McDonald explained that sometime before planting there had been a “spill’ of liquid pig manure from a storage tank on his farm and that the areas where the crop was not growing was due to the “burning” of the soil by the undiluted pig manure. This is also a reasonable and plausible explanation of the appearance of the crop. It should be pointed out that these explanations are not mutually exclusive; although the appearance of the crops could have been as a result of the manure spill, it could also have been because of poor drainage.

The Tribunal was troubled in one respect about the appellants' explanation of the manure spill: the appellant was unable to provide specific information about the date of the spill, the amount of the spill, or its extent into the fields. Mr. McDonald was unable to provide even the month of the year in which the spill occurred. Although it was indicated that the manure spill had not reached the outlet at Stoney Creek, this could not be said with certainty. The appellant advised the Tribunal that he did not notify the Municipality, OMAF, or the MOE concerning this spill. Clearly concentrated liquid pig manure is a substance that should not be permitted to reach a watercourse as it could have a deleterious impact on natural habitat, water quality and possible health hazards for humans and animals. The appellants are advised that they should consult with these agencies in the event that there is ever a future liquid manure spill at their operation and advise their farm organization of their "bio-security" concerns.

The Tribunal is of the opinion that individual landowners wishing to cultivate the Tundra Swan and to provide staging areas for migratory birds may install control features into their private tile systems to provide ponding of water on their land during the time period that the migratory birds need staging grounds. With these controls in place the staging area should remain unchanged.

The Tribunal has reviewed the submissions by the appellants with respect to the allocation of costs of the project. It also considered the detailed presentation by the Engineer outlining his method of distributing the cost of the project over the lands within the watershed. The Tribunal does not accept the Mr. and Mrs. McDonald’s argument that the cost of the project should be allocated to the landowners who wanted the work done. The Tribunal is of the opinion that the McDonald property should be granted some relief in benefit assessment and the resulting reduction allocated to the benefiting upstream lands as shown in the Order below.

ORDER OF THE TRIBUNAL

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

1. The Township of South-West Oxford is directed to adopt the by-law for the report by Spriet Associates dated May 24, 2002 and to construct the proposed works under the report after the engineer has made the following modifications to the assessments:

a) The benefit assessment against the McDonald property (roll number 108-010) is to be reduced by $4,500.

b) The benefit assessment against the W. Baxter property (roll number 108-011) is to be increased by $1,800.

c) The benefit assessment against the W. Way property (roll number 108-012) is to be increased by $900

d) The benefit assessment against the J. Hyatt property (roll number 108-027) is to be increased by $1,800.

2. 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.