Neil Cockwell v. Town of North Perth, 2003 ONAFRAAT 15

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone Road West

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

1 Stone Road West

Guelph, (Ontario) N1G 4Y2

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

Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2

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

Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Hanna Municipal Drain

Town of North Perth

Hanna Municipal Drain (RE) 2003 ONAFRAAT 15

STATUTE:

Drainage Act

HEARING:

April 22, 2003

DATE OF DECISION:

May 21, 2003

2003-15

NEUTRAL CITATION:

2003 ONAFRAAT 15

Hanna Municipal Drain

Town of North Perth

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Neil Cockwell, Atwood, Ontario, under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and the engineer’s report on the Arthur Street Branch of the Hanna Municipal Drain in the Town of North Perth.

Before:

Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair, Russell Piper, Member.

Appearances:

Neil Cockwell, appellant

Paul Elston P. Eng, for the respondent, the Town of North Perth.

DECISION OF THE TRIBUNAL

This appeal was heard in the Council Chambers of the Town of North Perth (the Municipality) Ontario, on Tuesday April 22, 2003. Mr. Neil Cockwell appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the report by R.J. Burnide and Associates Limited dated August 30, 2002 (the report) on the Hanna Drain 2002 Arthur Street Branch.

Mr. Les Tervit, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Prior to the hearing, the Tribunal issued an Order making all landowners assessed or compensated in the engineer’s report dated August 30, 2002 on the Hanna Drain 2002 parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Mr. Cockwell's appellant statement was entered into evidence and set out his position with regard to his appeals under Sections 48 and 54 of the Act.

Subsection 54 (1) of the Act states:

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

(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.

Subsection 48 (1) and 48 (2) of the Act states:

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

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

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

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d)the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be.

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.

Preliminary Matter

Mr. Elston P. Eng., thanked the Tribunal and other parties for adjourning the hearing from the originally schedule date at his request, due to a family emergency.

The Background

The report on the Hanna Drain 2002, Arthur Street Branch was prepared pursuant to a Petition under Section 4 of the Drainage Act. The Petition was submitted by a landowner and the Road Authority for Arthur Street.

The Hanna Drain is a large open ditch works, which is routed diagonally from the north east to the south west through Lot 17, Concession 8 of the Town of North Perth, Village of Atwood. The Hanna Drain outlets at its southern limit, into a storm sewer system on Highway 23.

On Arthur Street, drainage is provided for the most part by ditches lying along an abandoned railway right of way. The ditches channel the water in a north easterly direction to a low lying point in Lot 17, Concession 8 which then flows through culverts into the Hanna Drain east of Arthur Street.

Both Arthur Street and residential lands along it need drainage.

The Spence property, in Lot 16, Concession 8 has been severed and new structures have been built on the Beirnes' property Lot 16, Concession 8, since the report was prepared.

In Lot 16, Concession 8, private drain tiles from the Broughton, Parkhouse, Keupfer, Scott and VanSanten properties outlet into the railway ditches along the Arthur Street right of way.

The report proposes that the drain be designed as a two year event, storm sewer rather than as an agricultural drain: a portion of the watershed may be subdivided in future, into residential lots.

The report proposes to route the drain through the Cockwell property, though the lands are not in the watershed, and the drain will have no capacity to accept water if there is development of the Cockwell lands

The proposed works will provide a sufficient outlet for the watershed into the existing Hanna Drain. The proposed works is designed to accommodate surface water only and is not intended for private connection to eavestroughs, basements and cellars.

The total estimated cost of construction for the proposed works is $39,450. Allowances are estimated to cost $3,420 and a special assessment is proposed to be levied against Arthur Street for the design of a possible extension of the works to Baker Street. The estimated total cost of the works is $68,300.

In accordance with Section 26 of the Act, assessments against utilities for location of cables, pipelines et cetera and the cost of construction around or through the utilities will be born by the utility affected.

The Hanna Drain Arthur Street Branch watershed is 4.25 hectares in size

The Issues

The issues before the Tribunal were:

1. Are the assessments against the Cockwell property as sustained by the Court of Revision fair and equitable?

2. Should the Hanna Drain 2002 Arthur Street Branch be rerouted so that it is not situated on any portion of the Cockwell property?

The Evidence

Mr. Neil Cockwell told the Tribunal that he thought the proposed working space on each side of the drain was excessive. Mr. Cockwell said that he no longer took issue with the assessments.

Mr. Cockwell told the Tribunal that he proposed five alternate routes for the drain. He submitted alternate proposals for the drain that:

• The drain should be constructed as proposed in the report, but without the provision of a working space for future maintenance as this would reduce the value of his property.

• The drain should be constructed along the Arthur Street right of way to be routed southward to oulet into existing storm sewers at Highway 23.

• The drain should be routed northward along the railway right of way to outlet at Concession 8, whereby the drain would be situated wholly on Municipal property.

• The drain should be extended southward from the railway right of way to the corner of Woodview Drive and Parkview Crescent to follow the road allowance to outlet into the Hanna Drain. The residential lots on the north side of Parkview Crescent could easily connect to the drain which would relieve the problem of standing water at the rear of the lots.

• His property should be provided with an allowance in the amount of $45,000 for the proposed loss of land for a maintenance easement measuring 65 feet wide by 496.3 feet long. The proposed easement would lower the value of his property if the property were to subdivided or sold.

Mr. Cockwell submitted that the abandoned railway ditches had not been cleaned out for many years and that if this was done, there would be sufficient grade in the ditches for the water to flow to a natural outlet in an existing ditch at Concession 8. Mr. Cockwell submitted that he believed that the proposed drainage system should not limit the possibility for the future development of his or the Spence properties. Mr. Cockwell felt that it was unfair that the proposed works provided for private connections for some land owners if they accepted the risk of water backing up onto the lots, but that he was not going to be allowed to connect to the system.

Mr. Cockwell responded to questions that:

• He believed that he had attended a meeting to consider the layout of the drain though he did not receive notice of all the meetings.

• He does not recall meeting with the Municipality and Mr. Elston in January 2003 to discuss his issues with the drain.

• He had not consulted with any experts in drainage matters with regard to his suggestions for the alternate routing of the drain.

• He did not make inquiries with the Ministry of Transportation of Ontario (MTO) the road authority for Highway 23 to determine if it would allow connections to the drainage structures in place along the highway.

• It is his personal observation that the natural course of the water flow in the ditches along Arthur Street is northward.

• He understands that there exists; a six inch diameter tile drain along Arthur Street that runs southward to Highway 23 and that an 18 inch diameter tile drain within the road allowance of Highway 23 outlets into the Hanna Drain.

• He does not have plans for developing his property and it is presently rented to a tenant farmer.

• He arrived at a figure of $45,000 because he considered that the area of his property to be set aside for maintenance of the drain to be equal to the size of local residential lots and this amount was consistent with local real estate values.

• He would be satisfied if the drain were routed along Woodview Avenue to the south of his property.

Mr. Elston told the Tribunal that alternate routes for the drain were considered. He said that:

• The natural flow of water is from west to east toward the Hanna Drain

• There are two tile drains that connect to the 18 inch drain running under Highway 23.

• The cost of bringing the drain to connect to the existing structures at Highway 23 was prohibitive as it would involve reconstruction of the roads and location of the tiles for a length of at least 800 m from where the proposed works will end to the highway.

• The ditches along the railway right of way run northward and southward. If the drain was routed northward to outlet into the Hood Drain at the Brussels Road, the Hood Drain would have to undergo significant improvements to accommodate the additional water. The routing of the drain northward to outlet into the Hood Drain would also necessitate constructing at least 800 m of drainage works.

• Routing the drain across the Cockwell property at a point north of where it is presently proposed was considered. The location of the drain on the severance line of the Spence property was preferred however, to accommodate possible future development of the severed portions which would require a steeper grade to move the water eastward toward the Hanna Drain.

• In order to reduce costs, the drain is proposed to be constructed of open joint tiles. The joints are to be wrapped in geo-textile fabric to keep soil out of the joints. In urban settings the maintenance median is considerably less, but he felt that in this case there was sufficient space on the Cockwell and Spence properties for a 20 meters wide working space for maintenance of the drain.

• The drain was designed to follow as closely as possible, the natural course of water.

• At the second site meeting, Mr. Cockwell presented a plan of development labelled "for discussion only". As a result he was asked if he wished the construction of the drain to be of sufficient size and capacity to accommodate development; to which he replied that he did not.

• As there was no indication from the affected landowners that development was imminent, allowances for the Spence and Cockwell properties were scheduled at $2,165.00 and $835.00 respectively.

In response to questions, Mr. Elston told the Tribunal that:

• Where the drain was located on the Spence property, it was proposed to be located 10 meters from the property line.

• Access to the drain for maintenance, was proposed to be located along an existing driveway on the Cockwell property. Using this existing roadway would reduce disruption to both the Cockwell property and neighbouring properties.

• With the type of open joint construction proposed for the works more working space is required.

• It is his practice to maintain a working space for maintenance of at least three to five meters in urban settings, but the proposed works is to be located on estate sized lots so that more working space for maintenance is practical.

• The working space for maintenance of the drain could be reduced if no trees with spreading roots were planted within the median reserved for maintenance.

• There would be additional expense to constructing a sealed drain across the Cockwell property in the amount of approximately $40 per meter.

• Routing the drain along Woodview Avenue, south of the Cockwell property would involve reconstructing paved surfaces and affected lands along the route and revising the report to reflect this work. The reconstruction of paved surfaces would increase the cost of the project by as much as $15,000.

• If the Cockwell property were to be developed no connections to the works would be permitted as the drain is not designed to accommodate the capacity of water that would flow from a developed area.

• The drainage structures on Arthur and Ellen Streets constructed by another engineering firm was subject to approval from the MTO. He feels that it would now be almost impossible to get permission from the MTO to locate the drain along Highway 23 or to connect into the existing structures along the highway.

• He met with Mr. Cockwell on at least four occasions to discuss his concerns with the maintenance median and assessments, in an effort to resolve the issues. Mr. Cockwell indicated that the maintenance median was unacceptable regardless of its size.

• A connection to the works to drain surface flows from the areas immediately surrounding the house and barn on the Cockwell property would be allowed. He had not however, assessed the Cockwell property for outlet because the water that might flow from the property would have a negligible impact on the drain.

Summations

In closing Mr. Cockwell told the Tribunal that he believed the maintenance median would devalue his property and he was opposed to it at any size. Mr. Cockwell said that it was acceptable to him to install a sealed drainage system across his property with no provision for a maintenance median. Mr. Cockwell said that he could only consider one of the alternatives that he had expressed to the Tribunal. He reiterated his view that he wished to be compensated in the amount of $45,000 if the maintenance median was to be maintained. Mr. Cockwell stated that he wished a large ash tree along the access road to remain standing.

In summation Mr. Elston told the Tribunal that his report specified a working space for maintenance of the drain pursuant to Section 63 of the Act. He said that he did not foresee a problem with leaving the large ash tree standing, along the access road. Mr. Elston said that he felt that the working space designated for maintenance of the drain and the allowance for the Cockwell property were fair and reasonable.

The Findings

The Tribunal is satisfied that the alternative proposal suggested for the works by Mr. Cockwell were sufficiently investigated and properly discarded by the engineer. The only suitable design for the drain is the design proposed in the engineer's report.

The appellant is against the provision of any maintenance space for the drain at all. The Tribunal agrees with the engineer that Section 63 of the Act sets out the provision for working space for maintenance of the drain. The evidence of the engineer is that a drain situated in an urban setting was usually designed with less working space for maintenance, but that there was ample room in this situation for the working space specified in his report. The engineer acknowledged that Mr. Cockwell wished to preserve the large ash tree on his property.

The panel considered that a sealed drain constructed on the Cockwell property would alleviate Mr. Cockwell's concerns but agreed with the engineer that the additional costs for a sealed drain is not justified. The Cockwell property is agricultural with residential use but there are no development plans right now. The panel is of the view that the drain should follow a more southerly route across the Cockwell property to minimize future problems if the property is to be developed. The exact location should be determined at the time of construction.. The working space as described above is the combined total width, not just the width along one side of the drain.

Mr. Cockwell calculated his allowance based on the working space occupying almost a full acre valued at $45,000. The engineer valued the Cockwell property at $2500 per hectare. By way of comparison the Spence lands which are residential are valued at $4500 per hectare. The panel agrees with the engineer’s calculations.

ORDER OF THE TRIBUNAL

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

orders:

1. That prior to the final passage of the by-law, Section 14.0 (ii) of the Report be deleted and replaced by the following: The width of the working space for the construction of the Hanna drain 2002, Arthur street Branch, shall have an average width of 20 m. For the purposes of maintenance and repairs to the drain, the working space shall have an average width of 10 m throughout the length of the drain. On the Cockwell property, this working space shall be located immediately adjacent to the property line separating the Cockwell property from the adjacent property at station 0+100.

2. The covered drain shall be constructed in a straight line within the 10 m working space located on the Cockwell property at a distance of 8 m. plus or minus 1 m from the property line or fence line located immediately adjacent to the Cockwell property at Station 0+100.

3. The cover page of the report shall be amended to include the following prominent

wording: ”Amended in accordance with the Order of the Agriculture, Food and Rural Affairs Appeal Tribunal, dated May 21, 2003”. The engineer shall provide five (5) complete amended copies of his report to the Municipality.

4. 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.