Klijn Municipal Drain (Re), 2002 ONAFRAAT 9

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

APPEAL: Klijn Municipal Drain Township of Wainfleet

Klijn Municipal Drain (RE) 2002 ONAFRAAT 9

STATUTE: Drainage Act

HEARING: February 13, 2002

DATE OF DECISION: February 28, 2002

2002-09

NEUTRAL CITATION: 2002 ONAFRAAT 9

Klijn Municipal Drain Township of Wainfleet

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 Peter Klijn under Sections 48, 54 and 65 of the Drainage Act from a decision of the Court of Revision and from the Engineer’s Report on the Klijn Municipal Drain in the Township of Wainfleet.

Before: Andrew Osyany. Vice Chair; Jack Young, Vice Chair; Russell Piper, Member

Appearances: Peter Klijn, appellant assisted by Marielle Klijn George Banks, counsel to the Township of Wainfleet (the “Municipality”). John R. Spriet, P.Eng., the engineer who prepared the report (the “Engineer”). Christopher Wilson, counsel to Robert and David Groszeibl, Joseph and Elizabeth Groszeibl, and Mr. William Van Vliet, assessed landowners

DECISION OF THE TRIBUNAL

This appeal was heard in Wainfleet, Ontario on Wednesday, February 13, 2002. Mr. Peter Klijn appealed under Sections 48, 54 and 65 of the Drainage Act (the “Act”) from a decision of the Court of Revision and from the engineer’s report by Spriet and Associates dated July 31, 2001 on the Klijn Municipal Drain (the “Report”).

Mr. Albert Guiler, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

On January 8, 2002, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report dated July 31, 2001 on the Klijn Municipal Drain parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Section 48 of the Act states:

48(1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

(b) the drainage works should be modified on grounds to be stated;

(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 of the Act states:

54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

54(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal.

54(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, chap. D17, s. 54.

Section 65 of the Act states:

65 (1) Subject to subsection (6), where a parcel of land has been assessed by an engineer and, after the final revision of the assessment, the parcel is divided by the change in ownership of any part, the clerk of the local municipality in which the parcel is situate shall instruct an engineer in writing to apportion the assessment charged against the parcel among the parts into which it is divided. R.S.O. 1990, c. D.17, s. 65 (1).

65(2) The clerk of the local municipality shall forthwith send a copy of the instructions by prepaid mail to the owners of the parts into which the parcel is divided. R.S.O. 1990, c. D.17, s. 65 (2).

65(3) The engineer in making the apportionment shall have regard to the part of the parcel affected by the drainage works, and shall make the apportionment in writing and file it with the clerk of the local municipality who shall attach it to the original assessment and shall send, by prepaid mail, a copy thereof to each of such owners, and, subject to subsection (5), the apportionment is binding upon the lands assessed. R.S.O. 1990, c. D.17, s. 65 (3).

65(4) The costs, including the fees of the engineer, shall be borne and paid by the parties in the manner fixed or apportioned by the engineer or, on appeal, by the Tribunal. R.S.O. 1990, c. D.17, s. 65 (4).

65(5) Any such owner who is dissatisfied with such apportionment and who is assessed for a sum greater than $500 may appeal to the Tribunal within forty days after the date a copy of the apportionment is sent to the owner by the clerk. R.S.O. 1990, c. D.17, s. 65 (5).

65(6) When the owners of the subdivided land mutually agree on the share of the drainage assessment that each should pay, they may enter into a written agreement and file it with the clerk of the local municipality and, if the agreement is approved by the council by resolution, no engineer need be instructed under subsection (1). R.S.O. 1990, c. D.17, s. 65 (6).

Preliminary Matters

Mr.George Banks clarified that there were no previous municipal drains on the properties in the watershed of the proposed Klijn Municipal Drain and thus there had been no subdivision of property in the watershed. Therefore he submitted that the appeal under Section 65 should be dismissed.

Mr. Banks told the Tribunal that Mr. Bradley, the Drainage Superintendent, was not available, as he was quite ill.

Mr. Peter Klijn asked if he could be provided with drainage plans from 1980, which he understood were on file with the Municipality, and the engineer’s notes. He was advised to ask the witnesses about these documents under cross-examination.

The Background

Mr. John Spriet explained that the Klijn Municipal Drain was designed as the result of a petition received by the Municipality in 1999. He said the initial site meeting was held in May 1999 and that he had prepared two preliminary reports as well as his final report.

Mr. Spriet said the area requiring drainage was on the property identified by Roll No. 9-69 (the Klijn property) and there were two possible routes for the drain. He said that he proposed an 8-inch diameter tile drain through the Northern route which would outlet into the East Kelly Drain. He said the alternative route was to install a drain along a Western route. He said the natural flow of water was to the West but the cost differences between he two routes were not large. He explained that he had assessed the extra costs of the Northern route as a cut-off benefit to the owners of properties identified by Roll No. 9-74 (the D. & B. Groszeibl property) and Roll No. 9-76 (the Van Vliet property). He said the owners of these properties were opposed to the Western route. Mr. Spriet explained that using the Northern route allowed the drain to be located entirely on the Klijn property. Mr. Spriet said that Mr. Klijn’s land had under drainage but adjacent landowners did not have tiled land and that an existing swale and ditch system provided adequate drainage for their properties.

Mr. Spriet explained that Mr. Klijn was assessed much of the cost of the drain but that adjacent landowners were each assessed one-third of the administrative costs as well as the cut-off benefits. He said he also charged a portion of administrative costs to the roads.

The Issues

The issues before the Tribunal were:

Should the engineer’s report be modified to relocate the proposed drain and/or allow for an open ditch rather than a closed tile drain?
Are the assessments as proposed by the engineer and the Court of Revision appropriate?

The Evidence

Peter Klijn, assessed landowner, Roll No. 9-69

Mr. Peter Klijn told the Tribunal he was a dairy farmer and that he bought his property in 1979 and took possession in 1980. He said he had flooding problems for the first three years, despite a systematic tile drainage system that had been installed in 1979. He said he still experienced occasional flooding problems and always had difficulty getting on his land in the Spring. He said he had tried to work with the Municipality on the problem, and proposed to drain his property to the South to a municipal drain. He said he was told the Municipality did not approve of deep ditches at the side of the road, due to safety concerns. He said that he also understood that a ditch he had hoped to use was an illegal drain. Mr. Klijn said his property naturally drains to the West. He said that a man made ditch crossed the Southwest corner of his property at one time and travelled west to the Kelly Creek.

Mr. Klijn said either the Northern route or the Western route were acceptable to him but he wanted the cheapest solution to the problem. He said he felt his proposal for a Southern route and his request that an open drain option be explored had not been adequately addressed by the engineer. He said he was also concerned about the possibility of quicksand complicating construction on the Northern route and increasing costs. He explained that high land on his property occasionally gave way under his tractor and he felt test holes should have been dug on the proposed Northern route to verify the soil conditions. Mr. Klijn said he thought that cleaning out the existing ditch on the D. & B. Groszeibl property and the Van Vliet property might be the cheapest solution to his drainage problems.

Mr. Klijn said he though the property identified by Roll No. 9-66 (J. & E. Groszeibl property) would benefit greatly from improved drainage and he felt Mr. Joe Groszeibl should be assessed a higher portion of the cost of the proposed drainage works.

Mr. Klijn also indicated:

He did not know if the existing ditch was a natural watercourse or a municipal drain. He knew it was not marked on a 1994 map of municipal drains in the Municipality.
Most water from his land drains to the West but some drains to the South after heavy rains. Possibly 10-15 acres of his 50 acre property drains to the South in very heavy rain. Water drains to a ditch at the South of the property and then drains both East and Northwest.
The Drainage Superintendent told him his tile drainage system had an illegal outlet.
He wanted the drain extended East to Johnson Road and would prefer it to follow the Western route, but would accept the Northern route.
He was open to an offer to set the engineer’s report aside and have a mutual agreement drain.
He believed the engineer had underestimated the cost differences between the Western route and the Northern route. He noted the original estimate for constructing the Northern route was $57,000.
He thought the Municipality could use the argument of squatters’ rights to resolve the drainage problem.
He had no personal knowledge of the property prior to 1979.
He was not aware of any agreement having been made to allow his tiles to outlet into a ditch on the J. & E. Groszeibl property. He understood the system was designed to drain through this property to Johnson Road.
He has not changed the original tile drainage system but has dug on his land to determine the location of tiles.
There is some surface flow from the J. & E. Groszeibl land onto his land.
His soil type is sandy loam. The land is used to grow rye, corn and alfalfa.
The engineer was not interested in his tile drainage plan. The plan does not show the drainage system as it was actually built. He did not have an as-built drawing of the drainage tile system.
The ditch on the J. & E. Groszeibl property overflows when there is excessive rain; water sits in the ditch after an ordinary rain.
Approximately 10-25 acres cannot be worked due to the drainage problems; the acreage varied each year.
He asked the Municipality to proceed with the final report on the condition the open ditch and alternate route options were examined.

John Spriet, P.Eng.

Mr. Spriet told the Tribunal he had been an engineer for 32 years and had written over 1000 reports on municipal drains. He said he had worked in the Municipality in the past.

Mr. Spriet said he had personally surveyed the two routes he had identified, in the presence of the affected landowners. He said the Southwest corner of the Klijn property would benefit from a good outlet. He said that the J. & E. Groszeibl property and a severed lot drained to the South, but that a manmade furrow brings water from North part of the J. & E. Groszeibl property toward the Klijn property, then through connecting swales onto the D. & B. Groszeibl property.

Mr. Spriet said he did not believe it was necessary to dig test holes to look for quicksand. He said the proposed drainage works would be constructed of high density polyethylene pipe with gravel over it and below it. He said crushed stone could be substituted if quicksand was found during construction.

Mr. Spriet said an open drain was not advisable, as it would need to be approximately 1.5 metres deep and would use a considerable amount of land. He said the problem could be solved with a small diameter tile drain.

Mr. Spriet explained that he revised the cost of constructing the Northern route after consultation with a local contractor. He said the Western Route would be less expensive to construct as the Northern route required a higher grade tile, more excavation and stripping and replacing of topsoil. He explained that the cut-off assessments would cover the additional costs related to construction along the Northern route. Mr. Spriet said the Northern route was preferable as the drain could be kept on one property. He said it would provide a good outlet to the Klijn property as the last 75 metres are at a 2% grade down to the East Kelly Drain.

Mr. Spriet also indicated:

The J. & E. Groszeibl property is much lower than the Klijn property at the property line. Water from the J. & E. Groszeibl property drains through swales and a ditch to the West. It would not flood the Klijn property if the ditch were blocked by debris.
Usually tile drainage schematics are produced at site meetings but he did not recall receiving one from Mr. Klijn. If the drainage system was not installed as designed, the schematic would be of little use.
The outlet of the systemic tile system is on the West side of the Klijn property, not the South side as shown in the schematic.
The proposed drain would start at station 0+050 to provide an outlet from the main outlet tile of the systemic drainage system. There was a low spot in the property 50 metres from that point. Installing a catch basin at station 0+050 would be preferable than installing a catchbasin at the low spot (Station 0+00) as the lower catchbasin could collect water from the J. & E. Groszeibl property and reduce the effectiveness of the drain. Mr. Klijn could install tiles to drain the low spot. The low spot is three or four acres.
He preferred a 10-inch concrete tile at the outlet, rather than an 8-inch tile and the cost difference was minimal.
J. Groszeibl will not be permitted to drain tiles on his property through the proposed drain, should he ever tile the land.
The drain was designed with a ½ inch run-off coefficient.
In heavy rain, water from the Klijn property would flow through swales on the J. & E. Groszeibl property to the D. & B. Groszeibl property. He did not provide for an overflow swale in his report but would not object to the Tribunal ordering one. The gradient is 0.18% to the West and 0.15% to the South.
The tile could be extended to Station 0+00 if the landowner requested this. A small berm approximately 25 metres long could be built along the fenceline to prevent water from the J. & E. Groszeibl property flowing onto the Klijn property.
He did not ask the local contractor to provide a cost estimate for the Western route.
This project was unusual in that there were two viable routes for the proposed drain. Very few municipal drainage projects are designed to take water out of the natural water flow but it is common for private tile systems to re-route water out of the natural waterway.
The Drainage Superintendent had suggested the Northern route be examined as a possible solution to the drainage problems.
There are few tile drains in the Municipality. By local standards both the Grosziebel properties were adequately drained.
Improving the existing swale and ditch systems, or installing a tile along the Western route would also be good solutions to the drainage problem.
In evaluating the petition for drainage he determined that only the tiled land required drainage. The neighbouring properties and the Klijn property have similar soil types.
If the swales on either the J. & E. Groszeibl property or the D. & B. Groszeibl property were ever filled, surface runoff from these properties would flow onto the Klijn property.
If a subsequent owner of either the J. & E. Groszeibl property or the D. & B. Groszeibl property were to decide to improve drainage along the Western route, the Klijn property could have a double outlet and be assessed on two drains.
He did not consider designing a larger drain to the West to provide drainage for all lands in the watershed. Landowners preferred the Northern route.
He had no authority to provide drainage for lands not in the area requiring drainage. The owners of those properties had an opportunity to sign the petition for drainage but declined to do so.

David Groszeibl, Assessed Landowner, Roll No. 9-74

Mr. David Groszeibl told the Tribunal he had lived on the D. & B. Groszeibl property for 20 years and had lived on the J. & E. Groszeibl property in the past. He said he and his brother were cash crop farmers who owned or leased 3,300 acres of land. He said there were no drainage problems on either of these properties.

Mr. Groszeibl explained that water from the J. & E. Groszeibl property at one time drained across the southwest corner of the Klijn property but that it was now routed around the property through swales to the D. & B. Groszeibl property. He said the ditch was re-routed at the expense of the Groszeibl family, but that Mr. Klijn received some benefit from it. He said that Mr. Klijn had at one time built a berm to prevent any water from the Groszeibl properties to flow onto his property, but that the berm had later been removed.

Mr. Groszeibl said that his family was never consulted when the Klijn property was systematically tiled and had never agreed that Mr. Klijn or the previous owner of the property could use their swales. He said the swale and ditch system used on the Groszeibl properties were not part of a municipal drain. Mr. Groszeibl said his family maintained the swale and ditch system and it was never blocked. He said the original outlet from the tile drainage system on the Klijn property was into his swale and the drop was approximately one foot. He said that Mr. Klijn blocked that outlet and relocated it to another part of the swale. Mr. Groszeibl said this was what led to his family’s decision to route water from the J. & E. Groszeibl property to the D. & B. Groszeibl property without crossing the Klijn property.

Mr. Groszeibl said he and his brother did not want a municipal drain on their land. He said there was liquid manure from the Klijn property crossing their property to the Kelly Drain and they were concerned they would be blamed if it traveled through a tile. He said they were also concerned about trespassing. He said that two separate drainage systems would minimize conflicts between neighbours.

In response to questions, Mr. Groszeibl said:

He and his family maintain the ditch by seeding grass, cutting the grass, cutting down any brush and cleaning out fill with a loader.
The drainage problems on the Klijn property arose once he started digging up tiles.
He carries crop insurance but has never had a claim on the D. & B. Groszeibl property.
He and his brother had tiled part of their farm with approximately 12,000 feet of tile. They appreciate the value of tile drainage.
He supports the engineer’s report and the Northern route for the drain.
He is content with the present cut-off assessment but is unsure about how much more they would be willing to pay for the Northern route.
He did not petition for drainage and does not want improved drainage.
Approximately 500 acres of the 3,300 acres he and his brother farm are tiled. They pay the same rate to lease tiled and untiled land but there are other compensating factors..

Summations

Mr. Klijn said he was indifferent as to which route was chosen for the drain but he would like it to start at the low spot on his property, even if that required a larger size tile. However, he did not think he should pay for a larger size tile if water from neighbouring properties was entering the proposed drain. Mr. Klijn reiterated his desire that the system be extended east to Johnson Road and designed in a manner that will resolve his drainage problem.

Mr. Banks reminded the Tribunal that the petition for drainage was for a solution to the problems on the Klijn property, not the neighbouring lands. He said all parties agreed that the drain should be built along the Northern route and he submitted that it was fair that Mr. Klijn pay the same amount as he would were the drain to be built along the Western route. He asked the Tribunal to recognize that the Groszeibl family and Mr. Van Vliet were prepared to pay the difference as cut-off benefit. He submitted that no evidence had been presented regarding compensation or allowances. Mr. Banks said that the Tribunal may consider extending the proposed drain by 50 metres, to the low spot on the Klijn property, but reminded the Tribunal that this would require the construction of a berm. He submitted that the Tribunal should not consider any route but the Northern route which was favoured by the landowners to the West.

Mr. Wilson said he generally endorsed Mr. Bank’s position. He told the Tribunal that his clients did not create the drainage problem but that they were content to pay the assessment contained in the engineer’s report as there is a benefit in maintaining peace between neighbours, even if there is no agricultural benefit to his clients. He reminded the Tribunal that his clients were satisfied with their existing drainage but acknowledged that the petition for drainage was valid. He suggested that there is an advantage in keeping his clients’ properties separate from the Klijn property. Mr. Wilson submitted that Mr. Klijn was attempting to use the Drainage Act to get one up on his neighbours and trespass on their land. He said that his clients were concerned with the possibility of being forced into a continuing relationship with Mr. Klijn.

The Findings

The evidence before the Tribunal is that the natural flow of water from the Klijn property is predominantly to the West and that the cost of constructing a drain along the Western route is less than along the Northern route. In addition, a drain along the Western route would provide drainage to the complete watershed.

Considering that the proposed project provides only a partial solution to the Klijn drainage problems, the deep construction depths, uncertain soil conditions, the large expenditure of funds without a real community benefit, and the diversion water from its natural course, the Tribunal finds that the drain shall be constructed along the Western route.

The project shall be designed to current agricultural standards and shall be designed to service the entire drainage area. Each downstream owner shall be given the option of either an open ditch or a closed tile drain on their property.

The Tribunal notes that the Drainage Act is meant to facilitate the improved drainage of land within a watershed serving a number of properties. The Act is not meant to solve personal problems and as such the Tribunal gave little weight to the argument that the Northern route would improve relationships between neighbours.

While landowners should have a choice of the type of drain constructed, municipal drains must be designed to provide a solution to the drainage problems and to meet the needs of all the lands in the watershed.

The parties agreed that the project was initiated under a valid petition for drainage.

The Tribunal appreciates the effort taken by Mr. Guiler to produce an excellent compilation of documents in preparation for the hearing in this matter.

ORDER OF THE TRIBUNAL

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

The Council of the Township of Wainfleet is directed to refer the July 31st, 2001 report on the Klijn Municipal Drain back to the engineer for consideration of the project and in particular the following items:

i) The drainage works is to be constructed along the route described as “West Route” in the preliminary Report, Klijn Drain, Township of Wainfleet prepared by Spriet Associates and dated July 26, 1999.

ii) The drain is to be designed to current agricultural standards to drain the entire watershed.

iii) The Engineer shall consult with Mr. Klijn and provide adequate outlets or connections to the new drain.

iv) Owners of the properties identified by Roll Nos. 9-74 and 9-76 (Messrs. D. & B. Groszeibl and William Van Vliet) are to be consulted as to whether they prefer an open drain or a closed drain across their properties.

The appeals by Mr. Peter Klijn under Section 54 and Section 65 of the Act are dismissed.
In the event of appeals to the Tribunals or further applications to clarify or modify this order, this panel remains seized of this case.
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 Shelburne, Ontario this 28th day of February, 2002.