Noble Drain (Re), 2003 ONAFRAAT 24

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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

APPEAL: Noble Drain, Township of Malahide Noble Drain (RE) 2003 ONAFRAAT 24

STATUTE: Drainage Act HEARING: July 29, 2003 DATE OF DECISION: August 27, 2003 2003-24 NEUTRAL CITATION: 2003 ONAFRAAT 24

Noble Drain Township of Malahide

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 Larry McNeil, John Van Bommel, 1060021 Ontario Ltd. (Alex McNeil, President), J. Grant Burks Farms Ltd. and Alexander Damen under Section 48 of the Drainage Act from the engineer’s report on the Noble Drain in the Township of Malahide; and by John Van Bommel, J. Grant Burks Farms Ltd. and Alexander Damen under Section 54 of the Drainage Act from the decision of the Court of Revision on the Noble Drain in the Township of Malahide.

Before: Jack Young, Vice Chair; John Taylor, Vice Chair; Mary Field, Member

Appearances: John R. Spriet, P.Eng., representing the respondent, the Township of Malahide Larry McNeil. appellant John Van Bommel, appellant Grant Burks, appellant Alexander Damen, appellant Hank Goris, assessed landowner Terry Calloghan, assessed landowner Dave Hartley, witness for the Municipality

This appeal was heard in Aylmer, Ontario on July 29, 2003. Several assessed landowners appealed under Section 48 of the Drainage Act (the Act) from the engineer's report dated April 7, 2002 by Spriet Associates London Limited (the Report) on the Noble Drain in the Township of Malahide (the Municipality). These landowners took the position that the drainage works should not proceed. In addition, three of these assessed landowners appealed from the decision of the Court of Revision, maintaining that their properties were to be assessed too much of the cost of the drainage works, in the event that their appeals under Section 48 of the Act were unsuccessful.

Randall Millard, Clerk/Administrator of the Municipality, performed the duties of the Clerk of the Tribunal.

Statutory Context

Subsection 48(1) of the Act states:

Appeal to Tribunal

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

Subsection 54 (1) of the Act states:

Appeal to Tribunal

(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating Municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1).

The Background

Mr. John R. Spriet, P. Eng., (the Engineer) told the Tribunal the Noble Drain was originally an award drain, established in 1909, but that the old award drain was incorporated into a municipal drain under a report written in 1952 by William Colby, P. Eng. (Colby Report). The Colby Report also extended the drainage works. Mr. Spriet explained that the original award drain was primarily a tile drain (6,380 feet of tile) but also included 220 feet of open drain. He said that 542 feet of 14-inch tile was installed in 1952 and this replaced the open portion of the original drain. He also pointed out that the Noble Drain was the outlet for the W. F. Burks Drain, which was originally constructed in 1937, and which was reconstructed in 1968. The outlet for the Noble Drain was Catfish Creek. Mr. Spriet said there was also a private header tile along the Crossley Hunter Line, within 1-metre of the road allowance.

Mr. Spriet said his firm was appointed to prepare a report pursuant to Section 78 of the Act, which allows for improvements to be made to an existing drain without a petition; and under Section 4 of the Act, which was a petition to incorporate new lands into the drainage area. He said the Callaghan property (Roll No. 010-128) and the Nesbitt property (Roll No. 010-129) would be served by Branch No. 1 and the Goris property (Roll No. 010-126-05) by Branches No. 2 and 3. He said the Road Authority of the Municipality also requested a proper outlet and inlets to drain a portion of the Crossley Hunter Line road allowance.

Mr. Spriet explained that some maintenance of the Noble Drain had been undertaken by landowners, as there had been a misunderstanding as to whether or not it was a municipal drain. He said the Noble Drain was functioning but that it drained very slowly. He explained that he had designed the proposed drainage works to a 1-inch of water removal in 24-hours standard.

Mr. Spriet said he proposed the following:

A new tile along the old Main Drain from Crossley Hunter Line to Catfish Creek with 18-inch, 21-inch and 24-inch tile.
That an existing tile in the location of Branch No. 1 be incorporated into the Noble Drain.
That new branches No. 2 and No. 3 be constructed.
That the Main Drain along the Crossley Hunter Line be re-named Branch No. 4 and be re-constructed off the road allowance where possible.
That solid pipe tile be used for 90 metres along the road allowance in a heavily wooded area.
That a catchbasin system be installed along the new Branch No. 4.
That portions of the Noble Drain and the 1968 W. F. Burks drain be abandoned.

He said the drainage capacity of Branch 4 along the Crossley Hunter Line would be increased to 150 litre/second from 18-30 litre/second. He said the private header tile would not be disturbed.

Mr. Spriet explained he used a modified Todgham method to assess the costs of the various branches of the Noble Drain. He said he divided the drain into sections to assess costs, but that sections did not necessarily correspond to property lines. He also explained that he charged special assessments against the Municipality due to the cost of re-locating Branch No. 4 off the road allowance, up-sizing the tiles to accommodate the flow from the catchbasin system and installing catchbasins and new pipes under the Crossley Hunter Line.

Mr. Spriet said that, on a percentage basis, the Municipality was assessed 74.4% of Branch No. 4 and 20.7% of the cost of the Main Drain. He said that 69% of the cost of Branch No. 2 was assessed to the Goris property and 31% to the Van Bommel property (Roll No. 010-126); and that for Branch No. 3, 61% of the cost was assessed to the Goris property and 39% to the Van Bommel property. He told the Tribunal that he normally would have assessed these landowners on a fifty-fifty basis but that Mr. Goris had indicated he was willing to pay a higher share. He noted there were no appeals of the assessment on Branch No. 1.

Mr. Spriet said the Van Bommel property would benefit from improved control of subsurface and surface water and a higher market value of the property.

The Issues

The issues before the Tribunal were:

Does the anticipated cost of the proposed drainage works outweigh the expected benefits of the proposed drainage works?
Are the assessments as proposed in the Report and upheld by the Court of Revision appropriate?

The Evidence

John Burks, Roll Nos. 010-156, 010-158 and 010-123-08

Mr. John Burks testified that, although the Noble Drain was old, it was in a good state of repair. He said that the drain had slowed down in the past few years but that a ten-inch diameter section of pipe on the Van Bommel property was repaired in 2002, as it was found to be full of tree roots. He said the Noble Drain worked well in 2003 as soon as the frost disappeared, and noted that it had been an exceptionally wet Spring. He said he did not recall seeing water sit on his properties, or other lands in Spring 2003.

Mr. Burks said that even when the existing drain was half plugged, there was little crop damage. He submitted photos of his 2003 crop and said it was growing well.

Mr. Burks said he was concerned that the cost of the drain improvements would outweigh the benefits and he noted that some assessed landowners were in difficult financial situations. He also questioned the need for 16 catchbasins on a 1.33 kilometre stretch of road. He said if there was a new drain built he wanted it to be properly constructed, but said he did not believe it was necessary to rebuild the drain at this time.

John Van Bommel, Roll No. 010-126

Mr. John Van Bommel testified that the Noble Drain was maintained by a previous municipality (since amalgamated into the Township of Malahide) in 1996 and he submitted the Municipality should have been aware that it was a municipal drain. He said that he and a neighbour, Mr. Alex McNeil, repaired the drain without the help of the Municipality in 2002. He testified that there was no crop damage on his property despite a wet Spring in 2003. He said he was concerned that the landowners would spend money on the project that would never be recouped.

In response to questions, Mr. Van Bommel indicated:

Water crosses his land at times from properties to the East of his property.
The land slopes from South to North.
There are one or two new service culverts East of his property.
There were no road ditches East of his property; water crosses the road to the North-side properties. He said a better solution would be to build road ditches and drain them through the existing Noble Drain.
The existing Noble Drain was deep enough to drain the header tile on the Goris property.
He could see no benefit to his property from Branches No. 2 and No. 3. He said his property was randomly tiled to the Main Drain.
Some of his tile was linked to tile on the Goris property as the properties had once been one farm.
He was satisfied with the drainage capacity of the existing Noble Drain.
He had owned his property for 13 years.
He had seen water flow above the Main Drain after heavy rainfalls.
The rate of drainage is reduced when Catfish Creek is full.
He did not ask the Municipality to fix the drain in 2002 as the Municipality had previously indicated it was an award drain.

Alex McNeil, 1060021 Ontario Inc., Roll No. 010-161

Mr. Alex McNeil testified that he thought the proposed drainage works would drain less efficiently than the existing Noble Drain when Catfish Creek was full. He said the Noble Drain was poorly maintained and the tile was approximately two-thirds plugged when he and Mr. Van Bommel repaired it in 2002. He said debris clogs the drain and acts like a dam. However he said he had observed the drain after 1.2 inches of rainfall and said it handled it well.

Mr. McNeil said he thought the road should be ditched and he suggested running a tile along the Goris property as an alternative to upgrading the Noble Drain.

In response to questions, Mr. McNeil indicated:

He did not know where the water would back-up to if Catfish Creek was full.
He had seen evidence of surface flow across the Barth property, but saw no washouts.
The engineer did discuss a runway option but he felt it was not given due consideration.
He and Mr. Van Bommel cleaned out the drain and replaced old tiles with a big plastic pipe to prevent further root damage.
After the repair work, water in a catchbasin immediately dropped such that the catchbasin was only two-thirds full.
The west side of the Goris property was not perfectly level to the Catfish Creek but there was not a big hill. It would be cheaper to drain North of the watershed through the Evely property (Roll No. 010-125-01) to the creek.
He did not believe the road needed drainage as only 4-8 cars used it each day.
The road was gravel, and reasonably well maintained.
The Municipality does not maintain the Noble Drain catchbasins well.
Without a drain, water would flow in the approximate location of the existing Noble Drain.

Hank Goris, Roll No. 010-126-05

Mr. Hank Goris testified that he was in favour of the proposed drainage works because his property had not had a proper outlet since the farm was severed in 1978 and because the current Noble Drain was too small. He said he was a full time farmer and had experience with municipal drains. He said his crop yield on other farms was 20% higher over a drain than it was 20 feet away from a drain. He also said that there was less erosion on those farms.

Mr. Goris told the Tribunal that he dug down into the Noble Drain in Spring 2001, downstream of the repair work undertaken in 2002, and that the hole was full of water.

In response to questions, Mr. Goris indicated:

The farm was severed by a previous owner. The side that is now the Van Bommel property had better natural drainage.
His property is flooded from the South side of the Crossley Hunter Line.
His land is systematically tiled but he expected to add tile to outlet on the proposed Branches No. 2 and No. 3.
His property would receive some benefit from improved road drainage.
He was willing to pay a little more on Branches No. 2 and No. 3 as he felt the expense would be a burden to Mr. Van Bommel.
The current Noble Drain was working well but was too slow and the tiles were falling apart.
He had approximately 8-10 feet grade up to the back of his property and did not want to drain uphill through that side of the property and the Every property to Catfish Creek.
His header tile along the Crossley Hunter Line was functioning well.
The outlet through the Van Bommel property had plenty of fall.
There was a hickenbottom surface inlet on the North side of his property.
He thought that the assessment schedule was reasonable.

Dave Hartley, Road Superintendent, Township of Malahide

Mr. Dave Hartley told the Tribunal that he had been the Road Superintendent for the Municipality since 1996. He said the Crossley Hunter Line was in the former South Dorchester Township which was amalgamated into Malahide Township in 1997. He confirmed it was a low traveled, gravel road which had had little work done on it in the past. He said one lot was ditched at the West end of the section that drained through the Noble Drain.

Mr. Hartley testified it was his practice to recommend a municipal drain where water collects and crosses a road. He said the Council of the Municipality had given him permission to sign a petition as the Crossley Hunter Line required drainage. He said he had attended the on site meeting for the Noble Drain and all council meetings, but not informal meetings with landowners. He indicated it was his usual practice to meet with engineers to address concerns regarding roads as he preferred that the road ditch depth and the length of the drains be minimized. He agreed that catchbasins were used for storm water management and said they allowed the Municipality to have shallower road ditches. Mr. Hartley stated the Municipality was very progressive regarding road re-construction and repair, relative to other municipalities where he had been employed and that the Municipality budgeted $100,000 per year for work under the Act.

Mr. Hartley stated the existing Crossley Hunter Line road bed is 10 feet south of the centre line. He explained that he had requested that the catchbasins and ditches be constructed where they should be, were the road centred. He said he planned to ditch the road properly in the future. He also said he could use the material removed to build the catchbasins on a site where a road was being re-built, or stockpile it until it was needed. He said Crossley Hunter Line was paved and well traveled to the West of the area that drained through the Noble Drain, and that it was a through road. Mr. Hartley told the Tribunal that the Municipality had recently provided proper drainage to Century Line, a road of similar quality and usage to Crossley Hunter Line.

Mr. Hartley said that water crossed the Crossley Hunter Line in the Spring and that he had posted warning signs up to three times per year, but only once in 2003. He said there were a few culverts under the road and two had been replaced in 2001. Mr. Hartley said the Municipality had no immediate plans to upgrade the road, other than providing ditches. He said when roads are re-built, they are centred in the road allowance.

In response to questions, Mr. Hartley said:

There had been no complaints about the road, other than his own concern for maintenance purposes.
The Municipality would be responsible for providing ditching at the catchbasins.
Water crossed the road from South to North.
The drain improvement would stop surface flow and erosion on the Van Bommel property.
The number of catchbasins requested for this drainage project was similar to the amount that were installed on a similar project on Century Line.
There were five or six sections of road in the Municipality that experienced periodic flooding.

John R. Spriet, P. Eng.

With regard to the question of whether the benefit of the drainage works outweighed the cost of the project, Mr. Spriet said the cost to the Municipality was not unsubstantial, but was not high when compared to the liability risk and potential payments for an accident related to road flooding. He said the costs of this drainage project were not out of line with the cost of similar work in the Municipality. Mr. Spriet testified that in Spring 2003, he drove through running water in four locations in along the section of the Crossley Hunter Line proposed to be drained. He said the current drain was working at 10% of the capacity that he recommended and that it was not working at all for approximately 1,500 feet along one of the Burks properties. He reminded the Tribunal that the existing tile on the Main Drain was almost 100 years old.

Mr. Spriet also said the Goris property needed an outlet an that would be provided by proposed Branches No. 2 and 3. He said proposed Branch No. 4 would accommodate the drainage needs of the road and suggested the cost to individual landowners on Branch No. 4 were minimal.

Mr. Spriet said the Van Bommel property has good fall and that water floods across the property but does not pond. He said water accumulated to the East of the Van Bommel property, on the Goris property.

Mr. Spriet told the Tribunal that the Municipality had received a valid petition for the proposed new branches of the Noble Drain, and a valid request for an upgrade to an old drain. He said landowners had asked to delay the project for one year, as a drought in 2002 had reduced their crop yields. He said that the project had been delayed.

Mr. Spriet testified that it was his opinion that the drain could not be constructed with a smaller tile and could not be taken in another direction if all petitioners’ requests were to be accommodated.

Mr. Spriet pointed out there was a typographical error on page 15 of the Report. He said that the area assessed is 0.4 ha for the Van Bommel property. He said the calculations of assessments were correct but the hectare figure needed to be corrected.

In response to questions, Mr. Spriet indicated:

He observed road flooding in March 2003.
Four properties received a benefit by having direct access to the Noble Drain.
The proposed drainage works would improve individual properties.
Catfish Creek could not possibly become high enough to push water back up the drain very far as the gradient of the Noble Drain is 6 inches of fall every 100 feet. Flooding would be possible on the Barth property (Roll No. 010-127) but the tiles would never be full at the Barth-Van Bommel property line, due to pressure from the steep fall.
There is a distinct flood path on the Van Bommel property. It would benefit from the proposed new catchbasins as surface flow would be re-routed underground. The flooding would not necessarily cause crop losses but it would cause erosion.
It would be easier for the Municipality to maintain a new drain, rather than the 1909 drain.
He had allowed for an extra 10 metre of right of way on some properties.
The existing tile was not large enough by modern agricultural standards.
Had the Roads Superintendent not petitioned for drainage he would have designed the same drain but given the landowners the option of a ¾-inch in 24 hours or 1-inch in 24 hours drainage coefficient.
The Municipality was assessed a special assessment as the drain needed to be one size larger (1-inch in 24 hours coefficient) to accommodate the desired improved road drainage.
The Main Drain would have required upgrading, even if the road drainage were not to be improved.
The Roads Superintendent indicated he would ditch the road within a reasonable time of the catchbasins being installed. The existing ditch was to be graded for 50 feet each way next to the catchbasins, so that water is channeled to the new catchbasins.
He does consider who supports a drainage project and who does not when calculating assessments.
Branches No. 2 and 3 will provide an improvement to the Van Bommel property.
He assessed between 59% and 63% as outlet liability, with the balance as statutory benefit, on the various branches and the Main Drain. He believed this was a fair ratio.
The proposed drainage works will not conflict with a gas line.
The run-off coefficient he assigned to the road was three times the agricultural run-off coefficient.
Engineering costs were broken down for each segment of the drain and included in the total cost. The watershed had to be re-established as the old maps showed no sub-watersheds.

Summations

Mr. Van Bommel reiterated his position that the current drain was working adequately and the proposed drainage works were unnecessary. He said he thought he was paying too much, relative to what he was receiving and he noted he was assessed 25% of future maintenance costs.

Mr. Spriet told the Tribunal he believed the drainage works should be built as proposed in the Report. He said he recognized that all engineers are different but that he thought his assessments were reasonable. He urged the Tribunal not to vary his assessments without a compelling reason. Mr. Spriet said the Van Bommel, Barth and Callaghan properties should all be treated equally on the Main Drain assessment schedule. He said that he did not recommend any change to the assessments on Branch No. 4 but said if the Tribunal was inclined to vary the assessments the change should be spread over the outlet to be fair to downstream properties.

Mr. Spriet said that he hoped that maintenance on the proposed drain would be minimal as the tile was expected to be good quality and the joints would be filter wrapped. He said Mr. Van Bommel would not pay any maintenance costs on the sections of the proposed drainage works that were upstream of his property. He said he did not believe that maintenance should be assessed 100% on outlet liability.

The Findings

With regard to the issue as to whether the cost of the drainage works outweighed the benefits, the Tribunal finds that the drainage project should proceed. The Tribunal notes that there was ample evidence that water occasionally flooded across the Crossley Hunter Line in the area of the proposed drainage works. Also, while some landowners were satisfied with the rate of water removal from their lands, the uncontested evidence was that the present drainage capacity was significantly less than that recommended for modern agricultural practices. The Tribunal also gave weight to the age and condition of the existing tiles. The Tribunal was satisfied that the proposed drainage works would provide significant benefit to the lands and road to be drained. The Tribunal was not persuaded that the cost of the proposed drainage works outweighed the benefits to be gained.

With regard to assessments, the Tribunal finds that the assessments for statutory benefit on the Main Drain portion of the Noble Drain should be adjusted. The Tribunal notes that the flooding that occurs on the Van Bommel property is contained in a specific, limited area. While the Tribunal agrees with the engineer that this property will benefit from reduced surface flow, the Tribunal was persuaded by the testimony of Mr. Van Bommel that the assessments on his property, as well as the Barth property and Callaghan property were too high. The Tribunal was not persuaded that the assessment on the R. and L. McNeil property (Roll No. 010-160-01) should be varied, as it notes that this property will benefit from close proximity to one of the planned new catchbasins. The Tribunal finds that the special benefit assessment against the Township of Malahide for the increased cost of upsizing the drain should be increased. By the arbitrary dividing of the Main Drain in the 1952 Colby Report into the Main Drain and Branch 4 in the present Report, the Goris property escapes being an abutting property on the Main Drain with a corresponding benefit assessment. The Tribunal finds that the Goris property will receive a direct benefit from the Main Drain in a manner similar to that it receives on Branches 2 and 3.

The Tribunal finds that the assessments on Branch Nos. 2, 3 and 4 of the Noble Drain are reasonable. Branches 3 and 4 provide direct connections for the Goris property. Branch 4 is primarily a road drainage system with catchbasins and the Special Benefit and Road Benefit assessments ordered by the Tribunal reflect the purpose of this branch

ORDER OF THE TRIBUNAL

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

The appeals by Larry McNeil, John Van Bommel, 1060021 Ontario Ltd. (Alex McNeil, President), J. Grant Burks Farms Ltd. and Alexander Damen made under Section 48 of the Act are dismissed.
The appeals by J. Grant Burks Farms Ltd. and Alexander Damen made under Section 54 of the Act are dismissed.
The appeal by John Van Bommel under Section 54 of the Act is granted in part, as reflected below.
Prior to giving third reading and passing into effect the by-law authorizing the drainage works, the Clerk of the Municipality is to amend Schedule ‘C’ Assessment for Construction, Main Drain, (page 14 of the Report) to incorporate the following changes:

Roll No./Owner	Benefit AP 07 03 Report	New Benefit Assessment	Total AP 07 03 Report	New Total Assessment
010-126-05 (Hank Goris Farms Ltd.)	0	$3,000	$7,113	$10,113
010-126 (J. & C. Van Bommel)	$10,900	$7,600	$15,061	$11,761
010-128 (T. & L. Callaghan)	$7,950	$5,600	$8,633	$6,283
010-127 (F. & J. Barth)	$2,850	$2,000	$2,889	$2,039
TOTAL ASSESSMENT ON LANDS	$22,450	$18,950	$54,481	$50,981

Prior to giving third reading and passing into effect the by-law authorizing the drainage works, the Clerk of the Municipality is to amend Schedule ‘C’ Assessment for Construction, Special Assessment against the Township of Malahide for the increased cost of upsizing the Main Drain to provide an improved outlet for the catchbasin system on Crossley Hunter Line (page 14 of the Report) to replace $7,000.00 with $10,500.00.
Prior to giving third reading and passing into effect the by-law authorizing the drainage works, the Clerk of the Municipality is to amend Schedule ‘C’ Assessment for Construction, Branch No. 3, (page 15 of the Report) to change the figure in the ‘HECTARES AFFECTED’ column from 1.4 to 0.4 for the property identified by Roll No. 010-126(J. & C. Van Bommel).
The non-administrative costs of the Municipality in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Gravenhurst, Ontario this 27^th^ day of August, 2003