Lois M. Hayter and W. Glenn Hayter v. Municipality of Bluewater, 2002 ONAFRAAT 6

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:

East Branch Black Creek Drain 1972 Municipality of Bluewater

East Branch Black Creek Drain 1972 (RE) 2002 ONAFRAAT 6

STATUTE:

Drainage Act

HEARING:

December 18, 2001

DATE OF DECISION:

February 14, 2002

2002-06

NEUTRAL CITATION:

2002 ONAFRAAT 6

East Branch Black Creek Drain 1972

Municipality of Bluewater

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 Lois M. Hayter and W. Glenn Hayter under Section 5 of the Drainage Act (the Act) from a decision of the Council of the Municipality of Bluewater (the Municipality) to deny a petition for drainage of the properties identified as North half of Lot 23 Concession 7, and Lot 25 of Concession 7, by way of the East Branch Black Creek Drain 1972 (the Drain).

Before:

Jack Young, Vice Chair; Andrew Osyany, Vice Chair; Bill Olson, Member.

Appearances:

John Langlois, counsel to the appellant.

Glenn Hayter, appellant and agent for Lois Hayter, appellant.

David Johnson P.Eng. on behalf of the appellant.

Janisse Zimmerman Clerk Administrator, on behalf of the Municipality .

Patrick Haggitt Drainage Superintendent on behalf of the Municipality.

Jim Love, assessed landowner.

Gary Love, assessed landowner

Grant Love, assessed landowner.

John McAllister, assessed landowner

Catherine Kwarciak, downstream landowner

Ryan Hern, Ausauble Bayfield Conservation Authority.

DECISION OF THE TRIBUNAL

This appeal was heard in Zurich, Ontario on December 18, 2001. Mrs. Lois and Mr. Glenn Hayter appealed to the Tribunal under Section 5 of the Drainage Act from a decision of the Council of the Municipality of Bluewater to deny a petition for drainage of the properties identified as North half of Lot 23 Concession 7, and Lot 25 of Concession 7, by way of the East Branch Black Creek Drain 1972.

Ms. Luanne Phair, Deputy Clerk of the Municipality of Bluewater, 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.

Section 5 of the Act states:

(1) Where a petition in accordance with section 4 has been filed, the council shall forthwith consider the petition and shall, within thirty days after the filing of the petition,

(a) if it decides not to proceed with the drainage works, give written notice of its decision to each petitioner; or

(b) if it decides to proceed with the drainage works, give written notice of the petition and of its decision to each petitioner, the clerk of each local municipality that may be affected, and the conservation authority that has jurisdiction over any lands in the area or, if no such conservation authority exists, the Minister of Natural Resources. R.S.O. 1990, c. D.17,s. 5(1).

(2) Where a petitioner,

(a) receives notice under clause (1) (a) of a decision of the council not to proceed with the drainage works; or

(b) has not, within thirty days after the filing of the petition, received notice of a decision of the council, the petitioner may appeal to the Tribunal or, where lands used for agricultural purposes are included in the area described in the petition, the Minister may refer the matter to the Tribunal, and the Tribunal may confirm the decision of the council or direct the council to make such decision and to take such action as the council is authorized to take under this Act and as the Tribunal considers proper. R.S.O. 1990, c. D.17, s. 5 (2).

Preliminary Matter

There were conflicting perceptions of the intent and use of the Drainage Act, with regard to the appeal under Section 5 of the Act and whether the application should have been brought before the Referee under Section 79 of the Act. Mr. John Langlois counsel to the appellant, explained to the Tribunal that in June 2001, Mr. Hayter had requested that the municipality make repairs to the Drain as maintenance in accordance with section 74 of the Act. When this request was denied, Mr. Hayter made an appeal to the Tribunal under Section 5 of the Drainage Act. Concern was expressed by landowners assessed on the drain that the Petition application would result in additional unnecessary assessments made against their lands. The assessed landowners present at the proceeding expressed satisfaction with the present function and level of maintenance on the drain. Mr. Langlois stated that the appeal was made under Section 5 of the Drainage Act as it was felt that only an engineer appointed by the municipality could determine whether the drain was functioning properly and maintained to the extent that was specified in the C.P. Corbett & Company Limited Engineers Report 1972. (the Corbett Report)

The Tribunal reserved a decision on the appropriate characterising of the proceedings and heard all the evidence that the parties wished to present.

The Background

The East Branch of the West Branch of the Black Creek Drain is an open ditch drainage works with the northernmost point originating at the North Boundary Concession (formerly the Township of Stanley) in the Municipality of Bluewater. Water flows southward to where the drain outlets into the West Branch of the Black Creek Drain in the north part of Lot 11 Concession 7 (formerly the Township of Hay). A 24 inch steel culvert passes under Highway 84. The drain was constructed according to specifications of the Corbett & Company Limited Engineers Report, 1972. In 1999 the ditch was cleaned out. The clean-out involved the removal of some of the vegetation on the banks and the re-grading of the ditch bottom. The properties owned by the appellants are the North half of Lot 23 Concession 7 and Lot 25 Concession 7 (Hay).

The Issues

The issues before the Tribunal are:

1. Is the appellants’ petition, dated July 3, 2001, a proper petition in accordance with Section 4 of the Act and how should the Tribunal deal with the appeal under Section 5 of the Act?

2. Is the appeal, dated July 27, 2001, an appeal against the municipality for failing to maintain and repair the drain in accordance with Section 74 of the Act?

3. Is the appeal, dated July 27, 2001, an appeal against the municipality for failing to appoint an engineer to improve the drain in accordance with Section 78 of the Act?

4. Are there any other means to resolve the concerns of the appellants?

These issues will be addressed in the findings later in this decision.

The Evidence

David Johnson, P.Eng. (engineer for the applicant).

Mr. David Johnson P.Eng. testified on behalf of the appellant. He told the Tribunal that he is an Engineer with over 25 years of experience in drainage. Mr. Johnson told the Tribunal that Mr. Hayter feels that he has a need for drainage as outlined in Section 4 of the Drainage Act. He described Mr. Hayter’s properties as:

• The Hayter property on Lot 25 Concession 7 is serviced by a large area of private drains with three tile outlets into the open ditch of the Black Creek Drain on the West side of the property.
• There are several restricted inlet catch basins and erosion prevention structures on the property. The catch basins and erosion prevention structures are not working properly due to the placing of the spoil from the 1999 clean-out on the banks of the ditch.
• The applicants’ property on the North half of Lot 23 Concession 7 has three tile outlets into the ditch and two other outlets serving the private drains on the property.
• On Lot 23 the water ponds in medium rainfall conditions.

Mr. Johnson said that Lots 24 and 26 adjacent to the Hayter property have private drainage that is influenced by the quality of flow in the Black Creek Drain. Mr. Johnson explained to the Tribunal that grades of the drain are 0.05% to 0.10% which is low but not unusual in this type of drain. Mr. Johnson told the Tribunal that:

• The optimum grade for open ditch drains is 0.10 % or greater.
• In 1972, a 24-inch diameter low flow culvert was installed under County Road 84; the culvert easily accommodates the water in extremely low flow conditions, but not in moderate flow conditions.
• A beaver dam obstructing flow was observed in November 2001, and was still present on December 16, 2001.
• A petition drain should be brought forth by the majority of landowners who have a need for drainage and the engineer, if appointed, must determine the area needing drainage. He believes that Mr. Hayter, as a sole land owner having a need for drainage, fits the definition of the “majority” of land owners having a need for drainage; hence the application presently before the Tribunal is a valid petition.
• The efficient flow of the drain is hampered by the growth of vegetation in summer and ice blockage in winter. The inefficient flow in turn reduces the outlet for the private drains and erosion control structures on the Hayter properties.

Mr. Johnson submitted a series of photographs of the drain to the Tribunal. Mr. Johnson said that he did not take the photographs himself, but that they were provided to him by Mr. Hayter. Mr. Johnson told the Tribunal that the photographs of the drain were taken on November 14, 2001 and December 16, 2001 with the exception of one photograph that was taken in September 2001. Mr. Johnson described the contents of the photographs as:

• Photographs 1,2,3, the rear of Lot 25 beside the ditch at the edge of a cornfield with a berm and hickenbottom erosion control structure. There is garbage and vegetative debris in the ditch and a small tree growing in the ditch.
• Photograph 4, the rear of Lot 24 roots of vegetation embedded in the bank hampering the flow.
• Photographs 5,6, the rear of Lot 23 abundant vegetation and trees growing on the bank.
• Photograph 7, the centre of Lot 23 with a culvert and water flowing well at this location.
• Photograph 8, the south of Lot 23 debris in the stream and abundant vegetation.
• Photograph 9, the rear of Lot 22 slow water flow due to shallow slope.
• Photographs 10, 11, the beaver dam which elevates the water two feet; after its partial removal increased flow and lower water level.
• Photograph 12, looking south to County Road 84 with vegetation obstructing flow but fewer trees.
• Photograph 13, the north side of County Road 84 with the steel culvert and protection post beside it, choked with vegetative debris and trash. The material was cleaned away, but the level of obstruction reoccurred within a month. The low grade is affecting the flow.
• Photograph 14, Concession Rd 7 with a 24-inch plywood dyke blocking the culvert.
• Photograph 15, west sides of Lots 15 and 16 with the banks sloughed away showing some erosion.
• Photograph 16, west side of Lot 11 concession 7 with the sluice gated culvert. The properties owned by Mr. Hayter upstream are 10 feet higher in elevation than this location.
• Photograph 17, 18, shows an upstream and downstream view of the culvert at the road between Concession 6 and 7.

Mr. Johnson told the Tribunal that:

• There is a surprising amount of vegetation that has grown up since the drain was cleaned out only 2 years before.
• The Corbett Report stated that the specification dated June 1971 should be followed for the maintenance of the drain.
• Maintenance, as referred to in the Drainage Act, states that the drain should be brought back to its original specifications or better.
• The generally accepted level of maintenance with respect to watershed management is to strike a balance with the needs of farmers and the policies of local Conservation and Fishery Authorities.

In response to questions Mr. Johnson stated that:

• There are three feet of fall in the bottom of the drain from the Hayter property to County Road 84 and the sluice gated culvert is two and a half miles south of the Hayter properties.
• The sluice gated culvert can, when it reduces the capacity of the culvert, influence the flow at upstream properties to the north.
• In a situation where there may be flooding at County Road 84, the Hayter properties may not necessarily be flooded from a back up of water, however the gate across the culvert changes the fall from 10 feet to only 5 feet of fall.
• The presence of water in a drain is not necessarily an indication of the function or malfuntion of the drain.
• The first time he saw the drain, in November 2001, the Hayter properties were not flooded.
• It was not clear whether the Black Creek Drain or the private drainage structures on the Hayter properties were responsible for the wetness on the Hayter properties.
• From the east side of Lot 25 to the rear where the drain is located there is about 20 feet of fall; at Lot 23 there is a comfortable slope back from the eastermost side of the lot to the drain.
• He would expect the drainage to be good with the amount of fall on the lots if there is a suitable outlet.
• He did notice any flooding on adjacent lands when he was viewing the ditch at the subject properties.
• The partial removal of the beaver dam resulted in increased flow and the full removal would increase flow further.
• The outlets at the Hayter properties were lowest, being about one foot above the water level. There was a trickle of water coming from the tile outlet at Lot 25 and a little flow out of the outlet at Lot 23. There was no flow from the private tile drains.
• The erosion protection structures on the Hayter properties were not installed at the time of the 1972 Corbett Report.
• The function of the drain may be affected by the construction of private drainage structures that were not included at the time the Corbett Report was made.
• The definition of the “area requiring drainage” under the Act could be interpreted as the area needing drainage according to the petitioner under Section 4 of the Act, even though an adjacent landowner may not agree. Under Section 9 of the Act, the Engineer makes the dermination of the “area requiring drainage” and the validity of the petition.
• The appeal is based on the observations of water flow in the ditch and run-off; it is not known what repairs and improvements are necessary. The appellant wishes an engineer to be appointed to determine this.
• If maintenance results in improved flow which affects the efficiency of drainage on the subject lands, the end will be seen to justify the means for the applicant.
• The hickenbottoms on the Hayter properties prevent the rush of water across the land in run-off.
• The run-off coefficients normally used at the time of the 1972 report were lower than those used today.
• At Lot 23 it appears that there is a substantial drop from the top of the ditch bank to grade line, approximately 9 or 10 feet.
• On Lots 23 and 25 there is a drop of five or six feet, from field level to the level of the top of the ditch water.

In response to questions, Mr. Johnson told the Tribunal that the “ area requiring drainage” in the preliminary stages of a petition is determined by the landowner. Mr. Johnson said that the “60 percent rule” is applicable if the sole petitioner owns the “area requiring drainage”. Mr. Johnson explained that he has not found an explicit definition of the “area requiring drainage” in the Act. Mr. Johnson said that he thinks the drain requires maintenance but he did not know if the “area requiring drainage” was limited to Lots 23 and 25 alone.

Glenn Hayter, appellant (Lot 25 , Concession 7 and north half of Lot 23 Concession 7)

Mr. Glenn Hayter exhibited photographs of the subject properties and the drainage structures presently in place. He testified that:

• In the Fall of 1972, 10-inch pipe tile was installed on Lot 25, in addition to the irregular clay tile that existed.
• In 1982, a private drainage contractor was hired to install more pipe and connect the 10-inch pipe tile into the main drain.
• In 1991, two hickenbottoms were installed to reduce the forming of a gully from run-off.
• In 2000, a third hickenbottom was installed.
• There was some concern that water in the hichkenbottoms would wash silt into the tiles and reduce the efficiency of drainage on the whole farm.
• Little attention was paid to the necessary grades when the tiles were installed in 1972, so the outlet pipe was raised by one foot, in an effort to improve the flow into the ditch.
• In 1975 plastic pipe tiles were installed on 66-foot centres on Lot 23 to reduce standing water after a rainfall.
• The rear of Lot 23 was tiled on 33-foot centres.
• Headers for the tiles on Lot 23 were connected to the main drain.
• There is an elevated laneway on one side and a fence line on the other side of Lot 23. They act as natural drainage structures on the lot.

Mr. Hayter told the Tribunal that he compared the water level below the bridge at County Road 84 after a heavy rain and the water level in the ditch below the outlet pipes on his property. Mr. Hayter said that he observed that the water was five feet below the bridge at the road and the water was eight inches below the outlet at Lot 23 south and 10 inches below the outlet pipe at Lot 25. Mr. Hayter said that there seems to be more water in the drain at his properties. Mr. Hayter said that he had seen the weir (approx 7 km downstream) left unattended, where it caused the flow of water in the drain to back up. Mr. Hayter explained that:

• Since he purchased the farms the capacity and flow of the drain had declined.
• In the Fall of 1998 he hired Maitland Engineering to survey his properties because some of the benchmarks outlined in the Corbett Report were no longer visible.
• At Lot 14, the banks of the drain are very degraded from cattle crossing the ditch.
• The most recent clean out of the drain in 1999 did result in some increased efficiency but there is still standing water on Lot 23.

In response to questions Mr. Hatyter said that:

• The hickenbottom structures are his own private drains.
• Ponding of water in hollows began in the 1980’s but it has not worsened in the 1990’s.
• No one knows how much crop yield loss is a result of standing water.
• There was standing water on his properties in 2000. He did not walk the ditch on the neighbouring lands in 2000 as he was not permitted to by the adjacent landowners.
• No engineer was appointed to determine if the tile could accommodate the additional subsurface water from the hickenbottoms.
• Flow into the ditch from the outlets would be improved if the outlets were not underwater.
• The Hayter family farms 400 acres. The soil is Perth loam, Huron clay and Listowel type soil.
• Mr. and Mrs. Hayter grow the same types of crops as their neighbours.

Mr. Hayter explained that the standing water disperses in roughly 36 hours and that he has on occasion observed standing water on Lots 24 and 26. Mr. Hatyer told the Tribunal that he does not know the definition of the “area requiring drainage”. Mr. Hayter said that he did not wish to impose his ideas on his neighbours and that he wanted the municipality to comply with the requests outlined in his Appellant Statement namely: to appoint an engineer to review the capacity of the drain using modern techniques and to recommend any necessary repair or improvement and to review and determine if the weir at Lot 11 Concession 7 is functioning as described in the Corbett Report. Mr. Hayter said that the landowner who operates the wier , approx 7 km downstream, lived some 35 miles away and did not record the local rain-fall.

Pat Haggitt, Drainage Superintendant, Municipality of Bluewater

Mr. Pat Haggit testified before the Tribunal that he was the Drainage Superintendent for the Municipality of Bluewater. Mr. Haggitt said that he prepared the tenders and supervised the contractor in 1999 when the Black Creek Drain was cleaned out. Mr. Haggitt said that he and the Deputy Reeve had walked the drain prior to the 1999 clean-out and observed areas where the bank was caving in and the bottom was filled with debris. There was a request to return the drain to the condition described in the 1972 report. A site meeting was held to discuss the proposed clean-out and 10 to 15 landowners attended. Mr. Haggitt said that Mr. Hayter did not attend the meeting and that the other landowners in general did not want the work to proceed. Mr. Haggitt said that he was satisfied that the work was done according to the specifications of the tender and the 1972 report. Mr. Haggitt said that tree trunks were left standing, so that the banks of the ditch were disturbed as little as possible.

Mr. Haggit responded to questions that:

• He received written confirmation from the contractor that the work was completed as specified in the tender.
• He did not personally shoot the grades himself to confirm the accuracy of the contractor’s work.
• The contractor did not specifically advise in writing that the new grades met the specifications.
• He realized that it may be the duty of the Municipal Drainage Superintendent to personally check the grades to ensure that the work is done to specifications.

Ryan Hern, Ausauble Bayfield Conservation Authority.

Mr. Ryan Hern testified before the Tribunal that:

• He has engineering training and has worked for the Ausauble Bayfield Conservation Authority for five years.
• It is his job to issue conservation approvals, reports and permits.
• The Ausauble Authority owns property adjacent to the Black Creek Drain, on Concession 8, and flood storage lands in the Hay Swamp on the east side of Lots 21, 22 and 23.
• The conservation authority has a Level 2 Agreement with the Department of Fisheries and Oceans (DFO) to review the impact of the works on fish habitat.
• Removal of vegetation from the drain causes the water temperature to rise, affecting fish habitat.
• A 1986 report advised that deepening the drain causes water levels in the neighbouring wetlands to drop.
• At Lot 11 Concession 7 there is a weir. The Conservation Authority received an application for the weir and are awaiting the final plans; it must also be approved by the DFO.
• The Conservation Authority does not believe that the weir causes or controls flooding or erosion though, there is sufficient fall to indicate that if water backed up spillage would occur on the the property owned by the applicants for the wier.

Mr. Hern responded to questions that:

• He acknowledged that, should the gate in the weir be reduced to a height of two feet as described in the Bartlett & Associates Ltd. letter/report of June 27, 2000, the possibility of flooding would be reduced.
• The Ausauble Bayfield Conservation Authority gave its approval for the 1999 clean-out of the drain.
• An Environmental Assessment under Section 6 of the Act may be requested for any proposed works.

Catherine Kwarciak, landowner downstream of the Drain

Ms. Catherine Kwarciak told the Tribunal that her family’s business owns Lots 11, 12 and 13 on Concession 7 where they grow vegetables. Ms. Kwarciak said that:

• The Kwarciak family installed the weir with municipal approval, to provide irrigation for their vegetable business.
• The weir gate is never fully closed, so fish can get through it.
• The weir gate can be operated easily by one person to adjust the water flow.
• There has been a weir at this location for approximately 20 years.
• The Kwarciak family installed bridging to support the irrigation equipment with the consent of the Municipality and according to specifications of an engineers report.
• The Kwarciak family have a satelite system at their home to monitor weather and an arrangement with a person who lives nearby the weir, who is available to adjust the gate should the need arise.

In response to questions Ms. Kwarciak said that the culvert at the weir was installed at the time of the 1999 clean out, of the drain. Ms. Kwarciak said that she did not know if the culvert was specified in any engineering report, but that Mr. Haggitt the Drainage Superintendent thought that it was adequately sized for the drain. Ms. Kwarciak explained that the weir operational plan was not finalized as the DFO had yet to inform the Kwarciaks of the type of fish ladders required. Ms. Kwarciak told the Tribunal that the gate is padlocked to prevent vandalism and that sump wells at the edges of the fields will accommodate water that provides their property with sub-surface irrigation.

Jim Love, assessed landowner, Lot 25, Concession 6

Mr. Jim Love told the Tribunal that he has lived on Lot 25 Concession 6 since 1960. Mr. Love explained that there are 30 feet of fall from his house to the top of the ditch bank and that there are 20 feet of fall from the Hayter house to the top of the ditch bank. Mr. Love said that Mr. Hayter may have created some of his problems as he constructed two berms between his house and the ditch which prevents surface water from running over the land into the ditch. Mr. Love said that there is a grass run-way and on three or four occasions the berm has washed out and dammed the water preventing it from flowing into the ditch. Mr Love told the Tribunal that Mr. Hayter is the only landowner assessed on the drain who is having drainage problems.

Mr. J. Love responded to questions that there have been no diminished crop yields due to drainage problems and that Mr. Hayter’s property is not unique within the watershed, it is similar to the lands surrounding it.

Grant Love, assessed landowner

Mr. Grant Love told the Tribunal that his family owns seven properties that drain into the Black Creek Drain, including the lot that separates the Hayter properties. Mr. Grant Love said that his property adjacent to the Hayter properties is tiled, but there are no other drainage structures on it nor does it have the drainage problems that Mr. Hayter described. Mr. Grant Love stated that on November 29, 2001 after a rain-fall, he took photographs of the drainage outlets on his property, the McAllister properties at Lots 21 and 22 Concession 7 and the Hayter properties. Mr. Grant Love described the outlets on the Hayter property as below the water level of the ditch. Mr. Grant Love said that one day after the rain, water could be seen ponding on the Hayter property near the berm because too much water was being directed into the sub-surface tiles and it could not be accommodated.

Gary Love, assessed landowner, Lot 21, Concession 6

Mr. Gary Love told the Tribunal that he owned Lot 21 Concession 6 and four other properties within the watershed of the drain. Mr. Gary Love explained to the Tribunal that water from his property flows over a grass runway on the McAllister property and into the drain. Mr. Gary Love stated that the drain has never been in better condition than it is now and that similar crops are grown on the properties in the watershed.

Submissions

John Langlois, counsel to the appellants

Mr. John Langlois submitted that:

• An engineer should be appointed as provided for under Section 4 of the Act.
• Less than one inch of rain has considerable impact on the water levels in the fields and in the drain.
• The area requiring drainage must be determined by an engineer.
• Mr. Hayter has demonstrated that he has serious drainage problems that may or may not be within his own watershed.
• Mr. Johnson had shown that there were obstructions in the drain, possible undersized culverts and that the systematic tiling over the years may have exceeded the capacity of the drain.

Mr. Langlois asked the Tribunal to consider the cost of the appeal and to award the cost against the municipality. He told the Tribunal that the clean-out of 1999 was a result of Mr. Hayter spending over $4000 for the Maitland Report.

Janisse Zimmerman, Municipality of Bluewater

Ms. Janisse Zimmerman summarized the municipality’s postion stating that:

• The response of the municipality to Mr. Hayters’ drainage requests have always been accompanied with a reason.
• At the time of the 1999 clean-out she did not know that Mr. Hayter had commissioned the Maitland Report.
• When Mr. Hayter petitioned in June, the council members walked the drain and concluded that they were satisfied that it was properly maintained.

Findings

The East Branch of the Black Creek Drain 1972 serves an area of approximately 3,200 acres. It appears that all the other landowners are satisfied with the working of the drain. The appellants, owners for almost 30 years of 150 acres, have been dissatisfied with the working of the drain in recent years and have asked the municipality to effect repairs and improvements. The appellants’ position is that the drain used to work better than it does now. They cannot point to any specifics where the drain is out of repair with an effect on their lands, but say that there must be some repair or improvement needed to serve their lands as they used to be. Similarly, they cannot point to any specific improvement feature that they desire. Their position is that an independent engineer should be appointed to prepare a preliminary report to determine the situation. The appellants have offered to pay for the cost of the preliminary report.

The other landowners are strongly opposed; they are satisfied with the drain and do not want to be assessed for any engineering or improvement costs.

The appellants have taken the “shotgun” approach to seeking a solution to their drainage problem.

Firstly, they have submitted a petition for a new project under Section 4 of the Act and formally appealed the decision of the municipality not to proceed with the petition.

Secondly, in Schedule “A” of their request for drainage, dated June 18, 2001, (Exhibit 9), the appellants stated in bold print “This request for repair of the East Branch of the West Branch of the Black Creek Municipal Drain is to return the municipal drain to the capacity of the drainage works as specified in the last engineer’s report which was done by Mr. Corbett P.Eng. in 1972”. Section 74 of the Act provides for this type of repair.

Thirdly, in their appeal, dated July 27, 2001, the appellants request an engineer be assigned to determine the following:

a) the adequacy of the current drain to provide drainage for the watershed according to provincial standards for municipal drains constructed in 2001.

b) If necessary, suggest repairs or alterations and improvements that may be incorporated into the existing municipal drain to achieve the current standards for municipal drains.

This request is definitely a request in accordance with Section 78 of the Act for “improving, upon examination and report of engineer”

In describing their appeals, the appellants have carefully avoided referencing their appeal to a particular section of the Act. The Tribunal does not consider this to be an oversight as the appellants, aside from having a good knowledge of drainage issues, were represented by legal counsel and an engineer with extensive experience using the Act.

Is the appellants’ petition a proper petition?

The appellants’ engineer says that the appellants believe that a part of their lands need drainage, therefore a petition signed by the appellants in accordance with Section 4 of the Act is a valid petition, and the Municipality must act on it, and since the Municipality did not act on it, the Tribunal has authority to deal with the matter under Section 5 of the Act. The engineer went on to say that part of each of the appellants’ properties could define “an area requiring drainage” and each could constitute a valid petition for drainage.

The Tribunal strongly disagrees with the engineer in his interpretation of the Act. The Act sets up a compulsory scheme, and the safeguards are contained in s. 4, providing for a majority concurrence to initiate a scheme in privately-initiated schemes. The majority concurrence is determined by looking at the owners or lands of the “area requiring drainage”. The area requiring drainage is an area to be determined by the engineer, acting professionally, based on the physical characteristics of the land and the prevailing land usage. The engineer cannot say that if the owners do not want the drainage scheme, then their lands are outside of the “area requiring drainage”. The appellants’ lands are physically basically the same as other surrounding lands, they are farmed the same way, and they are served the same way by the drain.

The appellants have direct outlet to the drain and do not require the provisions of the Act to have their water enter the drain.

Although the validity of a petition is a question to be determined by the Referee, it is clear that the appellants did not really intend to be within the operation of s. 4, regardless of the terminology they used.

Is the real issue raised by the original petition a repair issue?

The Tribunal finds that, with the 1999 clean-out, the drain is in substantial repair, but that if the appellants believe the drain is not in repair, their remedy is under s. 75 of the Act to make a demand on the Municipality, and in the event the Municipality refuses to act, then to appeal to the Referee.

The Tribunal finds that, in the circumstances, the appellants’ petition is not really raising a repair issue.

Are the appellants proceeding essentially under s. 78 of the Act?

The relevant parts of Section 78 of the Act read as follows:

(1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report.

(4) All proceedings, including appeals, under this section shall be the

same as on a report for the construction of a drainage works.

In the initiation of a drain, there are statutory requirements for majority concurrence. In considering the improvement of a drain there is no formal statutory requirement, because the matter is left up the Council of the municipality. However, it is implicit in the actual operation of the governance of municipalities that Council does not act capriciously; Council seeks the input of affected citizens, and makes a decision. In the experience of the Tribunal no Council undertakes an improvement without first seeking the input of the owners assessed on a drain.

While Section 79(1) of the Act specifically refers appeals under Section 74, maintenance and repair, to the jurisdiction of the Referee, there is no specific wording there regarding the jurisdiction of an appeal with respect to the municipality not going ahead with an improvement under Section 78 when requested by landowners. Although there are no specific provisions, the general wording, the provision in Section 51(1), and the intent of the Act, lead the Tribunal to the conclusion that an order should be made to resolve this situation.

The opinion of the Tribunal is that, having regard to the history of the matter, the repairs carried out and the views of the owners assessed on the drain, Council acted entirely properly in refusing to appoint an engineer.

This case has special circumstances that protect the other land owners and the municipality from the engineering costs associated with satisfying the wishes of the appellants. In this case, the appellants have made an offer to pay for the cost of a preliminary report. It does not appear that this offer was placed before Council as well.

In view of the offer, it is clearly for the benefit of the drainage community on this drain to have a preliminary report, at no expense to the public, reviewing this drain. If the report comes back not recommending any work, that is the end of the matter. If the report comes back recommending some work, then the matter can proceed in the usual course, under Section 76 or Section 78.

The Tribunal is imposing some safeguards in connection with the procedure in this case, in order to take account of the parties’ varying interests.

Costs

The Tribunal has considered the various submissions about the costs of this hearing and has determined that the fairest disposition is to award no costs.

ORDER OF THE TRIBUNAL

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

1. The appeal of Lois Hayter and W. Glenn Hayter is allowed.

2. The appellants shall have 60 days from the date of receipt of this decision to deposit $6,000 with the Municipality, as security for the preparation of a preliminary report.

3. The appellants shall have 60 days from the date of receipt of this decision to submit a list of at least four drainage engineers to the Municipality. The list shall exclude all engineers who have worked on this drain or for the appellants.

4. Upon the appellants failing to comply with the previous two paragraphs, the appellants’ appeal is dismissed, otherwise the following procedure shall be observed.

5. Within thirty days of the appellants complying with the previous two paragraphs, the Council of the Municipality shall appoint an engineer to prepare a preliminary report in accordance with Sections 10(1) and 10(2) of the Act to consider the state and improvement of the East Branch Black Creek Drain 1972. The engineer shall be chosen from the list submitted by the appellants.

6. The preliminary report shall include a study of the channel from the Lot 25-26 sideroad downstream to a point that provides a “sufficent outlet” for the appellant properties. The design shall be to current land use and drainage standards for the watershed. The report shall include a cost estimate and an approximate distribution of the project cost to the appellants, the upstream landowners and the downstream landowners. The report shall also investigate the various means and capacities of the tile drains transporting water into the drain from the appellants’ properties and make recommendations if necessary.

7. The preliminary report shall be entirely at the expense of the appellants and the deposit shall be applied towards the cost of the preliminary report, with the balance (if any) refunded to the appellants forthwith upon the submission of the preliminary report and account for the same.

8. The cost of proceedings following the receipt of the preliminary report shall not be at the expense of the appellant, but shall be charged in the normal manner with the right to appeal to the Tribunal or the Referee, as the case may be.

9. For the purposes of proceedings before the Tribunal, this panel remains seized of the matter.

10. In the event that a final report is directed to be obtained, the engineer, in preparing the final report may assess an amount to the credit of the appellants, reflecting any advantage obtained in the final report by reason of the existence of the preliminary report.

11. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Gravenhurst, Ontario, this 14^th, day of February 2002.