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:
Foster Municipal Drain
Beckwith Township
Foster Municipal Drain (RE) 2003 ONAFRAAT 25
STATUTE:
Drainage Act
HEARING:
April 15, May 16 and June 5, 2003
DATE OF DECISION:
September 5, 2003
2003-25
NEUTRAL CITATION:
2003 ONAFRAAT 25
Foster Municipal Drain
Beckwith Township
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 John Campbell and Karen Campbell, Carleton Place, 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 Foster Municipal Drain in Beckwith Township.
Before:
Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair; Elwood Quaile, Member
Appearances:
Richard Knott, counsel to the appellants, John and Karen Campbell
Guy Cormier, P. Eng., J. L. Richards & Associates Limited for the Municipality
Jim Caldwell, J. L. Richards & Associates Limited for the Municipality
John Campbell, appellant
Serge Pharand, assessed landowner
Frank Warland, assessed landowner
Ann Warland, assessed landowner
Karen Wilson, Ontario Ministry of Transportation
Marjorie Campbell, assessed landowner
Linda Foster, assessed landowner
Jim Foster, assessed landowner
Shawn Powell, assessed landowner
Wes Craig, assessed landowner
Andy Deverell, assessed landowner
Brian Fumerton, assessed landowner
Reg Cable, assessed landowner
Andy Robinson.P. Eng., witness
Bruce Dewer, witness
DECISION OF THE TRIBUNAL
This appeal was heard in Carleton Place, Ontario over a period of three days on April 15, 2003, May 16, 2003 and June 5, 2003. The Tribunal’s decision was released on July 4, 2003, without reasons, and this decision contains the reasons, together with the order made on July 4, 2003. John and Karen Campbell appealed under Sections 48 and 54 of the Drainage Act (the Act) from the decision of the Court of Revision and from the engineer's report dated October 2002 by J. L. Richards and Associates Ltd. (the report) on the Foster Municipal Drain in Beckwith Township (the Municipality). An appeal made by Serge Pharand under the same sections of the Act was withdrawn prior to the hearing.
Ross Trimble, Chief Administrative Officer of the Municipality performed the duties of the Clerk of the Tribunal.
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Foster Municipal Drain parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Statutory Context
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).
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;
(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. R.S.O. 1990, c. D.17, s. 48 (1).
The Background
At the time of its construction in 1969, the Foster Municipal Drain drained 914.4 acres into the Jock River. The area drained through the Foster Municipal Drain in 2001 was 1170.2 acres, as additional lands had been connected to the drainage works. The total cost of the proposed work to be done on the drain was $54,280; the largest component of this cost was the engineering fee, which was $40,000.
Mr. Guy Cormier, P. Eng., the engineer who prepared the report, told the Tribunal the Foster Drain was constructed pursuant to a 1968 report and that it had two outlets, both into the Jock River. He explained that landowners had modified the drainage works since its original construction. Mr. Cormier said he was retained to:
Re-evaluate the entire Foster Municipal Drain utilizing state of the practice survey methods to define the drainage basin limits and natural outlets.
Evaluate the current two-outlet configuration and the requested relocation of the Main West Drain outlet by Campbell.
Assess the area drained by a tie-in ditch and its branches.
Assess, to the extent possible, the impact of the Ontario Ministry of Transportation (MTO) proposed modifications to Highway #7.
Recommend necessary work.
Mr. Cormier said he identified a slightly different boundary to the original Foster Municipal Drain watershed than in the 1968 report, due to superior survey equipment.
Mr. Cormier said the landowner modifications to the Foster Municipal Drain in the early 1980’s resolved drainage problems with the Main West Drain outlet and drained additional lands which were not identified in the 1968 engineer’s report. He indicated the Foster Municipal Drain was the most economical outlet for these additional lands.
Mr. Cormier said the Main West Drain was the natural drainage course for the area and he did not recommend re-locating it. However, he pointed out that he did present a re-location option in his preliminary report on the Foster Municipal Drain. He said he did not recommend rerouting the Main West Drain in his final report due to cost concerns.
Mr. Cormier recommended the following work be undertaken on the Foster Municipal Drain:
Removal of an old, out of use and resting on the surface culvert.
Removal of an earth dam restricting flow from newly drained lands.
Installation of rip rap protection at directional changes in the Main West Drain in the vicinity of Tenth Line Road.
Cleaning the drain and stabilizing the banks of the Main West Drain outlet on the Campbell property (Roll No. 0924-000-030-06800-0000).
Providing compensation to the owners of the Campbell property for loss of land due to the natural establishment of a wider cross section than the one originally constructed in accordance with the 1968 report. Mr. Cormier said the amount of the allowance should be determined at the time of construction.
He noted that no work was recommended on the East Branch of the Foster Municipal Drain.
Mr. Cormier explained he assessed the cost of the drainage works against various sections of the drain. Key aspects of his assessment methodology were:
A 27% surcharge was assigned to owners of new lands to be drained through the Foster Municipal Drain.
The cost of preparing his report was split between the landowners on the Main West Drain and the Main East Drain on a pro rata area basis.
The final assessment to each landowner was based on available outlet to the drain and statutory benefit.
Roadways owned by the MTO were assessed at a ratio of 3:1, as they are more impervious than non-roadway lands.
A lump sum assessment of $5,000 to the MTO was ordered by the Court of Revision, as the MTO would have had to have some of the engineering work done when Highway #7 is widened.
The Issues
The appeal as framed by the appellants’ Notice of Appeal presented the following issues:
Should the drain be constructed as shown in the Engineer’s Report or should the Main West Branch outlet be relocated?
Should the assessments on the drainage works be varied?
Should the allowance on the Campbell property be varied?
The unfolding of the evidence raised additional issues which necessitated a new report.
The Evidence
Design/Relocation Issues
Mr. John Campbell told the Tribunal he had lived on his property, a family farm, for 41 years. He said the Main Drain West was located in the middle of a 40 acre tiled field and it would be preferable to have it at one side of the field. He said it would be easier to farm the field if the drain were relocated and noted he needed to spray pesticides on the field. Mr. Campbell said he also wanted the Campbell Branch of the drain closed as he said there was never any water in it. Mr. Campbell said he drained his field directly into the Jock River.
Mr. Campbell testified that the original Main East Drain had never drained properly into the Main West Drain but that a neighbour, Mr. Foster, had resolved the problem with the construction of a new ditch. He said the drain was cleaned out in 1993 and was working well at that time. He said he noticed that the water flow in the Main West Drain increased in the late 1990’s and he saw erosion of the ditch on his property. He said he walked up the drain and noticed that new lands were draining into the Foster Municipal Drain. Mr. Campbell said he informed the Municipality of this problem in October 1999 and a dam was constructed in June 2001, to stop the flow into the Foster Municipal Drain. Mr. Campbell said the dam had been damaged in 2002 but had since been repaired.
Mr. Campbell introduced a series of photographs which he said showed the washed out dam, the illegal connection to the drain, erosion on his property, a cut through a 12-foot hill, a wooded area which he submitted was the natural outlet for the drain, and standing water in his field.
Mr. Campbell told the Tribunal the soil on his farm is quite sandy and the structure of the soil will break down if it is saturated with water too long. He said there was more clay and muck soil on neighbouring farms. He said the Main West Drain was approximately 27 feet wide where it outlets to the Jock River and 18-25 feet wide on the balance of his property. Mr. Campbell said he did not think erosion of the ditch was caused by backflow from the Jock River. He said he only noticed the erosion in the late 1990’s, after additional lands were drained through the Main West Drain. Mr. Campbell said there was little water from the Main East Branch flowing through his land but there was some in the Spring due to backed up ice.
Mr. Campbell said he did not agree with the engineer on the boundaries of the original watershed of the Foster Municipal Drain. He estimated that 147 acres of the identified watershed drained Northwest, away from the drain. He said these 147 acres were one metre lower than adjacent land in the watershed.
Mr. Campbell clarified that he wanted the Main West Drain and the Campbell Drain abandoned but not filled. He said his land and the adjacent Foster property (Roll No. 0924-000-030-07000-0000) were within 9 inches of each other in distance above sea level. He said that water drained well into the Jock River, even when it was high, as long as the river was flowing.
Mr. Andy Robinson, P. Eng., told the Tribunal he was a consulting engineer and had produced over 30 reports on municipal drains, had acted as a municipal engineer and held a Master degree in water resources. He explained he made his analysis using maps, drawings and photographs and had seen the drain on the Campbell property in September 2002.
Mr. Robinson presented a series of aerial photographs of the Campbell property. He said there was no clear evidence of a drain through the Campbell property in 1964 but a 1968 photograph showed a drain in approximately the same location as the Main Drain West of the Foster Municipal Drain. He said this suggested the drain was not located on the natural path that water would flow. He said the photos submitted by Mr. Campbell showed that water was overflowing the drainage ditch onto the Campbell lands and he suggested this was further evidence that the drain was not located in the natural path water would be expected to flow.
It was pointed out that the original report was dated November 1968 and the Foster Municipal Drain could not have been constructed earlier than 1969. Mr. Robinson said a feature on the Campbell property in the approximate location of the Main West Drain that was visible on a 1946 aerial photograph and a 1968 aerial photograph could be a geological fault or a cut line. He concluded the photographs did not prove that the drain was located in a low area, but he could not definitively say that it was not.
Mr. Robinson said he disagreed with Mr. Cormier’s view that draining additional lands through the Main West Drain would not cause a problem as a larger acreage of land had been prevented from entering the drain by landowners’ modifications. He submitted that there was a wetland in the lands that were cut off from the drain that would not have naturally drained through the Main West Drain, as they were at an elevation of 131 metres above sea-level, and would be required to flow onto lands that were 132 metres above sea-level. He acknowledged that an existing tile would carry some water through. Mr. Robinson also pointed out that water from the additional lands would flow a shorter distance to reach the Campbell property, than would water from the abandoned lands. He testified that the existing Main West Drain had insufficient capacity for the lands proposed to be drained in the report. He had not calculated the amount of water or rate of flow of water anticipated from the additional lands versus the cut-off lands.
Mr. Robinson had two alternatives to the work recommended in the report. He said the lands that were added to the drainage area could be disconnected by properly damming the area, the Main West Drain could be abandoned and the Main East Drain widened to accommodate a greater flow. Alternatively, he suggested the Main West Drain could be relocated to the East side of the Campbell property and taken through a treed area to the Jock River. In response to questions, Mr. Robinson clarified that improvements would be required if the drain were to be relocated to the East side of the Campbell property. He also said a buffer strip and erosion control measures would be needed whichever option was selected.
Mr. Robinson acknowledged that it was difficult to determine the cause of the erosion of the drain on the Campbell property but that he did not think that backflow from the Jock River was a factor. He pointed out there was significant silt deposited in an upstream portion of the drainage ditch. He acknowledged that if the ditch were overgrown with cattails, the water level would rise and that could cause water to overflow onto the Campbell field.
Mr. Robinson said he had examined the Campbell Branch of the Foster Municipal Drain and determined that it was not serving any purpose as it had been replaced with subsurface drainage tiles.
Mr. Bruce Dewar told the Tribunal he was a certified crop advisor and agrologist and that he had worked in the agricultural business for 24 years. He testified that the shape of the affected field on the Campbell property was irregular and that this meant it took longer to plow and it was difficult to spray on the field. He said proposed nutrient management legislation would likely require a 5 metre buffer zone beside municipal drains. He said that no one could spray pesticides or spread manure in a buffer zone. He submitted that the drain should be relocated and a single outlet drain would be preferable.
Mr. Cormier clarified that he had originally been appointed pursuant to Section 66 of the Act to examine the various landowner modifications that were made to the Foster Municipal Drain since its original construction. He said he was directed to expand the scope of his work after a petition for drainage (Section 4 of the Act) was received by the Council of the Municipality from the owners of additional lands had directed drainage from their lands towards the Foster Municipal Drain. He said he was also directed to examine the possibility of relocating the portion of the drain on the Campbell property. In response to a question, Mr. Cormier stated that he had not ever previously prepared a report on a Municipal Drain.
Mr. Cormier testified that erosion of the Main West Drain of the Foster Municipal Drain was caused by Jock River rising and backing up into the drain. He said the Main West Drain was brought back to its original cross-section in 1993 in an attempt to re-establish a deep ditch. He said he expected it was dug too deep and this allowed the Jock River to flow into the drain.
Mr. Cormier said the Main East Branch was much wider and shallower than the Main West Branch of the drain, and thus was better able to accommodate backflow from the Jock River.
Mr. Cormier said he had tried to accommodate the landowners’ preferences with regard to the outlet of the drain but said that landowners did not maintain a consistent position and ultimately did not agree on whether there should be one outlet or two outlets.
Mr. Cormier said he conducted a hydraulic analysis of the impact of different types of storms in developing his recommended improvements to the Foster Municipal Drain. He said his analysis tested the capacity of the drain in the Main West Drain and the Main East Drain, and that he also conducted hydraulic testing of the ditch servicing the additional lands.
Mr. Cormier clarified that he recommended rip rap protection be installed on both the North and South sides of Foster Road, where the drain changed direction. He said there was no erosion at these locations but the rip rap protection was recommended due to the directional changes. He said this work would be required whether or not the portion of the drain on the Campbell property was relocated and that he estimated it would cost $7,000.
Mr. Cormier said he did not recommend rip rap protection along the length of the Main West Drain on the Campbell property. He said a wider channel with stable slopes would be preferable. He said the soil looked to be sandy loam but he had not ordered soil sampling. He said that if the soil was sandier a gentler slope could be used. Mr. Cormier stated a high shallow drain would be less susceptible to erosion from the Jock River than a narrow deep drain.
Mr. Cormier indicated it was technically possible to eliminate the portion of the Main West Drain on the Campbell property, and widen and deepen the Main East Drain on the Foster property to accommodate an increased volume of water. He estimated the total cost of this proposal at $39,958, if excavated material was available for filling the Main West Drain on the Campbell property. He said the cost would be $72,108 if fill and topsoil had to be imported.
Mr. Cormier said that Mr. Robinson’s second suggested option – to relocate the Main West Drain to the east side of the Campbell property – could have merit but he would need to examine the velocity of the Jock River at the proposed new outlet.
Mr. Cormier said that the Station map in his report contained the elevations for the ditch in the report's profile drawings. He said that the elevations were not included in the drawing in an effort to control costs. He said that the firm wished to have the issue of relocation decided before incurring further costs. Mr. Cormier acknowledged that the new drainage boundary would have to be amended in his report to indicate the changes from the 1968 report. He said that a proposed berm on the Campbell and Foster properties would be constructed 1 m high and would run along both sides of the drain to contain surface water and channel it into the drain. Mr. Cormier said that the flood plain of the Jock River would still accommodate seasonal flooding. Mr. Cormier told the Tribunal that he did not provide a design for the relocation of the drain, as it was impractical to do so before the matter of relocation was settled.
Mr. Cormier said the Pharand/Foster branch of the drain was functioning adequately for its intended use and that cleaning out the beaver dam blockages would improve the function.
Mr. Cormier told the Tribunal that his report incorporated changes and additions to the drain for a period of 30 years to make all portions of the drain legal, under the Act.
Mr. Foster stated that he had purchased and installed a culvert and dug the ditch on his property in the early 1980's. He said that all the work he did was at his own expense. Mr. Foster said that the ditch on his property runs south-eastward to outlet into the Foster Drain. He said that before he dug the ditch, water flowed diagonally across his property from the Campbell property. Mr. Foster said that the ditch on his property is in working condition, but a beaver dam causes the water to rise and to flow over the surface, to eventually outlet into the Foster Drain.
Mr. Foster said that he was concerned that the relocation of the drain, while benefiting one property may be detrimental to another. He said that the proposed construction of a berm might inhibit the surface flow of water into the drain resulting in ponding water. He said that surface flow was an important drainage mechanism on his property.
Mr. Foster told the Tribunal that he objected to paying for the redesign of outlets as his property was already assessed for the existing outlets.
Mr. Foster explained to the Tribunal that he permitted the former owner of the Warland property to outlet his systematic tiles into his ditch. He said that the flows of water do not vary greatly from season to season.
In reply, Mr. Robinson pointed out that any improvements to the Main West Drain would require an approval under the federal Fisheries Act as the drain outlet had become a fish habitat.
Mr. Robinson said he thought that 1 metre high berms on either side of the drain were unnecessary and he would put at most a 300 mm high berm with 3:1 side slopes. He said this would not significantly increase his cost estimates.
Mr. Robinson introduced additional photographs and correspondence between John D. Stidwill, P. Eng. and the Municipality. He said this showed that the drain was functioning well in 1993 and that there had been significant improvements in a North-South ditch on the upstream Foster property between 1999 and 2002. He acknowledged that other photographs showed that there was probably a ditch in the same location on the upstream lands since 1968.
Assessment and Cost Issue
Mr. Campbell told the Tribunal he believed that it would be cheaper to re-locate the drain than to repair it on his property. He estimated the repair cost at $30,000-$51,000 and the relocation cost at $10,000. He explained that he obtained three estimates on the cost to bring the Foster Municipal Drain back to the 1968 specifications. He also said he thought it would cost less to maintain the drain if it had only one outlet. He explained that he had not agreed with the engineer’s proposal to relocate the drain as he believed he was assessed too great a share of the cost of relocation.
Mr. Robinson said there would be an advantage to Mr. Campbell to having the drain relocated, but that there was not a statutory benefit. He acknowledged it may be appropriate to assess a special benefit for relocating the drain.
Mr. Cormier explained that he assessed the cost of incidentals and engineering costs on an area basis, with a 27% surcharge on added lands. He said he made some revisions to his report between August 2002 and October 2002, based on suggestions made by an engineer retained by Mr. Campbell. He said landowners not fronting on the drain were not assessed an adjoining land benefit.
Mr. Cormier responded to questions regarding the engineering costs and assessment of the proposed works that:
- The Township of Beckwith appointed J. L. Richards & Associates Limited
to prepare the report on the Foster Drain because the engineer usually employed by the municipality was not available.
The initial engineering cost estimate of $17,600 was based on an approximation of the work that was to be done.
The drainage area was extensively mapped and surveyed, as there had been no report since 1968 and additional private branches and lands had been added over the years. The Township instructed the engineer to include any new drainage structures and lands in the new report.
It was necessary to confirm the outlet for the drain, as this was a requirement of the Act.
The need for an additional survey, an investigation of natural outlets and an investigation of the possible relocation of the drain all contributed to the final cost of the report being higher than the initial estimate.
The firm J. L. Richards & Associates Limited suggested capping the increased engineering costs for the works at $28,000 as it was determined that providing further options for relocating the drain was impractical, as the issue was not yet settled.
An October 4, 2001 letter to the Municipality from J.L. Richards indicated that the appellants’ concerns could not be satisfied without further investigation of outlets for the drain. It was believed that Mr. Campbell would dispute any findings of the engineer, in favour of his own issues.
He believed that the assessed landowners were aware of the increasing costs throughout the process.
The assessments against new lands in the watershed are to be paid by the owners of the new lands. In addition the new lands have been assessed a surcharge of 27%.
A revised Table Five, which was appended to the report, shows the assessments against lands in relation to where the lands are situated along the drain.
He used the Todgham method to calculate the statutory benefit assessments.
Landowners who had undertaken work on the drain at their own expense were generally satisfied with the assessments.
The MTO is assessed in the report for all lands that it owned at the time the report was prepared. The MTO will be able to use the information contained in the report at the time it decides to widen the highway.
In a letter dated October 18, 2002 Mr. Campbell consented to a special assessment of $10,000 for relocation of the drain from his property to connect to the Main East Drain at the Tenth Concession.
Mr. Cormier agreed that under the Act, the public is entitled to the least expensive and most efficient drainage works and if an assessed landowner wants a special feature beyond this, it is up to him/her to pay for the requested feature. He said the special assessment to be charged to the Campbell property for relocating the drain was estimated by J. L. Richards & Associates Limited to be between $10,000 and $12,000.
Mr. Robinson said he estimated the total cost of repairing the Main West Drain at $22,515, plus a contingency amount of $9,450 to deal with potential fishery issues. It was pointed out he had miscalculated the cost of resolving the interceptor tile issue on this option. Mr. Robinson estimated the cost of relocating this branch to the East side of the Campbell property at $21,690.
Mr. Robinson estimated the cost of widening the Main East Drain on the Foster property to accommodate flow from the entire watershed at $19,340. He acknowledged he neglected to include the cost of dealing with interceptor tiles on the Foster property and used an inconsistent seeding cost for that option.
Mr. Warland, assessed landowner, told the Tribunal that he was assessed a total of $5,000 for his land on the East and West branches of the drain. He said that the costs were escalating due to the appeals by Mr. Campbell. He said that he felt the costs would continue to increase if the Tribunal did not conclude the matter. Mr. Warland said that he was satisfied with the quality of his hay crop despite seasonal flooding in part of his property.
Mr. Foster told the Tribunal that there was some flooding of his fields in the summer of 2002 due to heavy rains. He submitted photographs of flood conditions. Mr. Foster told the Tribunal that he felt the costs of the project were increasing due to the appellants’ wish to have the drain moved from their property. Mr. Foster said that the issue of relocation of the drain had been clouded with the issue related to additional lands that were connected to the drain. Mr. Foster said that at one time he was not opposed to the relocation of the drain but that he no longer supported the proposed relocation. He submitted that he now wished the Tribunal to order that Mr. Campbell be assessed all associated costs for the relocation of the drain.
Mr. Reg Cable told the Tribunal that there was considerable tension between the assessed landowners because of the drainage appeals. He said that the assessed landowners were paying for instructing the firm of J. L. Richards in the application of the Drainage Act and providing the MTO with an engineer’s report on its property. Mr. Cable said that the assessed landowners were receiving the least value in the matter. Mr. Cable told the Tribunal that he purchased his property in 1999 and that the drain was functioning well, but that beaver dams had to be removed from time to time.
Allowances
Mr. Robinson submitted that the report was unclear as to the proposed slope of the ditch on the Campbell property and submitted it was not acceptable that the landowners not know what work was to be done and the amount of their allowances prior to construction. Mr. Robinson said he estimated the land value at $4,500/ha ($1,821 per acre).
Mr. Cormier said he intended to write a supplemental report based on as built construction of the drain on the Campbell property and that the cost of this was included in the report. He submitted a revised supplement to his report to the Tribunal. Mr. Cormier's revised supplement and testimony indicated that:
The Campbell property should be compensated for the portion of the property situated between the Jock River and Foster Road that had been damaged by erosion.
The value of the land affected was estimated to be $1,500 per acre; there was a total of 0.42 acres affected.
The cost allocation had been revised for four sections of the drain.
Summations
Mr. Knott submitted that landowners who had modified the Foster Drain to drain additional lands were responsible for the current dispute before the Tribunal. He said it was clear that the drain had been in good repair after it was cleaned out in 1993 and that the banks were now eroded. He said Mr. and Mrs. Campbell wanted to see the Main West Drain repaired, the additional lands cut-off from the drain and an estimate provided as to the cost of relocating the drain to the side of their property. However, he acknowledged that was not the most practical solution.
Mr. Knott said if the additional lands were to be drained through the Foster Drain, then the repair work recommended by the engineer was not sufficient. He submitted it was preferable to drain the entire watershed through one outlet and suggested the Main East Drain in the Foster property could be enlarged to accommodate the additional flow. He said the land near that branch was well treed and the trees would help stabilize the soil. He said enlarging the outlet on the Campbell property was less desirable due to the potential for erosion and interference with fish habitat.
Mr. Knott said it would be fair to expand the Main East Drain on the Foster land as Mr. and Mrs. Foster owned much of the upstream properties that had been added to the drain. He said it was not known if Mr. Foster or a previous landowner had upgraded the drainage on the upstream properties but that Mr. Foster was receiving the benefit.
Mr. Knott mentioned there had been no objection to the appellants’ request that the Campbell Branch of the Foster Drain be eliminated.
With regard to the assessment issue, Mr. Knott submitted that the appellants should only be responsible for the cost of relocating the existing drain. He suggested Mr. Cormier’s cost estimates were not reliable and submitted that Mr. Robinson’s cost estimates should be used instead. He said he did not question the technical aspects of the report, but he thought that Mr. Cormier had lost his objectivity and came to view Mr. Campbell as obstructionist. He pointed out the report did not provide the option that Mr. Campbell had requested. Mr. Knott said the Robinson calculations showed there was no additional cost to relocate the drain. He acknowledged the appellants would receive a benefit from relocation and suggested this be assessed as a one-time special benefit in the range of $4,000-$5,000.
Mr. Knott submitted that a portion of the appellants’ costs should be assessed to the drainage works because Mr. Robinson had provided detailed cost estimates for various options. He said Mr. Robinson’s total bill was approximately $10,000 and $4,000-$5,000 was attributable to engineering work, with the balance for his attendance at the hearing.
Mr. Knott said the fact that an appeal to the Drainage Referee with regard to the validity of the petition had been made should not affect the appeal before the Tribunal. He recognized the Tribunal had to proceed on the basis that the petition is valid, but suggested it would be practical for the Tribunal to make two assessment orders – one to be followed if the petition is found to be valid and a second one to be followed if the petition is found not to be valid.
Mr. Cormier said that while this report was the first he had prepared under the provisions of the Drainage Act he and his firm had designed numerous drainage projects in rural and urban areas. He said he also received advice from an engineer with experience under the Act, and from the Ontario Ministry of Agriculture and Food. He said this was an expensive project but that cost overruns had been discussed twice at public meetings.
Mr. Cormier submitted the Main West Drain was sufficient to handle the flow from the additional lands that had been connected to the Foster Drain. He pointed out there was a lower acreage being added to the watershed than the drain was designed to accommodate and the lands had the same drainage coefficient. He said he did not agree that the added lands were the cause of erosion on the Campbell property.
Mr. Cormier said his estimate of the cost of relocating the drain changed over time as more work was undertaken. He said it would cost $30,000 to relocate the Main West Branch of the Foster Drain and this was far in excess of what it would cost to repair the drainage works. He said he did not design a relocated drain as the technical data did not support a need for the proposed relocation and as Mr. Campbell had indicated he was not willing to pay for the relocation.
Mr. Cormier said to take the drainage works back to the original design would require removing all the improvements made by Mr. Foster in the 1980s as well as the later work done on the drain. He said he did not investigate that option in detail, as it was clearly expensive and impractical. Mr. Cormier said it would be unfair to Mr. Foster to direct all the water through his property.
Mr. Warland said the report was costing him $5,000 and he received no benefit but that he still supported the report. He said if the Tribunal ruled that the drain was to be moved off the Campbell property and onto the Foster property he wanted a waiver from Mr. Campbell so that he would have no future claims of damages from flooding. Mr. Warland said it was certain there would be future flooding, due to the topography of Lanark County. He suggested the Municipality should bear the costs of the hearing.
Mr. Foster said he wanted the process to be over. He said he was not responsible for the additional ditching on the upstream lands as the ditches had been there when he bought the property. He said he was being assessed a very high cost to drain a property that was mainly bush. He suggested the cost of the hearing should be assessed to the Municipality or the appellants.
Mrs. Foster submitted that the Department of Fisheries and Oceans would be involved if modifications were made to the existing Main East Branch on the Foster property, just as they would if work was undertaken on the Campbell property. She said that the ownership of the upstream lands had changed many times and the current ownership of those lands should not be relevant to the design of the drain. She said she supported the assessments in the report. She submitted the hearing costs should be assessed to the appellants, as they had initiated the process.
Mr. Pharand said there were ditches on his property when he purchased it in 1999 and that a previous owner told him there were improvements made to his property in 1991. He said the water runs from West to East across his property and that since the outlet into the Foster Drain was plugged it had found its own way East. He said there was less water flowing through the Main West Branch than in 1968 due to the modifications made in the 1980s. Mr. Pharand reminded the Tribunal his property was assessed at 1.27 the rate used on other properties in the watershed. He said the cost of the report was 31% higher than it should be because of Mr. Campbell’s various requests for relocating the drain. He submitted his assessment was 31% too high.
Mr. Deverell submitted the landowners had tried to reach an amicable solution but Mr. Campbell had monopolized the engineer’s time and increased the cost of the project.
The Findings
Sufficiency of Report
It is the custom of the Tribunal to invite the project engineer to give a short précis of his or her background as part of the engineer's general review and explanation of the project. The engineer in this case referred to various drainage experience, but it was the cross-examination by Mr. Cable that brought out that the engineer has never designed a project under the Drainage Act. It has been the custom in the profession for engineers to "apprentice" with experienced drainage engineers and to acquire the expertise under the guidance of an established experienced professional. There is good reason for the custom. Just by reading the Act and consulting with someone with drainage experience, the engineer could not, and in fact did not, acquire sufficient competence in Drainage Act matters to do this project justice.
The panel is of the opinion that the engineer should not have undertaken this project. As a result of the engineer undertaking this project some unnecessary work was done, some necessary work was not done, the process was extended and complicated beyond what the project involved, parties were put to unnecessary time investment and expenses, and the whole process reflected ill on the practical application of the Drainage Act.
This hearing was conducted on April 15, 2003, May 16, 2003 and June 5, 2003. At the end of the first day the panel expressly advised the engineer that proper specifications were needed, that a proper cost comparison was required to determine the special benefit assessment to Campbell if the drain was to be moved, and a number of smaller items. The engineer did not produce these for the next day; either not at all, or in an inadequate form.
In this case, the engineer had no understanding that Section 31 of the Act requires the engineer to make allowances to the owners of the existing privately constructed drains that the engineer is proposing to bring into the municipal drain.
Similarly, the engineer had no understanding that Section 66 of the Act applies in this case where lands are to be brought into the drain.
Very fundamentally, the engineer did not understand the concept of special benefit. The engineer consulted with the landowners over and over again about the proposed moving the location of the west branch of the Foster Drain. The engineer at one time sought consensus of the majority of the owners. The Act does not call for a popularity contest. The engineer has to cost out the various alternatives and then it is up to the person who would receive the special benefit to decide if she/he wants to have the work done or not.
The engineer purported to follow the Todgham method in assessing out the cost of the works. Suffice it to say that this panel has for many years understood the application of the Todgham method to be totally different.
The final report of the engineer assesses nothing to Campbell for special benefit, even though the engineer quoted figures as high as 30% of the total engineering cost being attributable to the proposal to move the location of the west branch of the Foster drain.
In spite of ample time and specific directions from the panel, the engineer did not ever bring an intelligible and acceptable cost comparison of the various alternatives.
An excessive number of drawings were produced that are useless to the drain. These add costs to the project without any benefit. At the same time, no proper profiles of the existing drains were prepared. Nor were any specifications for the proposed work set out in the report. The engineer proposed to leave the work to be designed during construction. This is not acceptable. The work must be detailed in advance of construction.
There is a fairly obvious Department of Fisheries and Oceans implication to the proposed work, especially in regard to the proposed relocation of the west branch of the Foster Drain. The engineer did not consult with DFO.
In addition to the problems caused by the lack of knowledge and understanding of the Drainage Act, the panel is of the view that the engineering work does not meet the standards expected.
The over-reaching aim of the project was to establish the drainage area that currently drains into the various branches of the Foster drain. The engineer failed to carry out the investigaÂtion that was necessary to do this. Lines are drawn on the plan that apparently defy hydraulics. Lines are drawn on the plan in ignorance of any investigation of the topography southwest of the line to the Jock River.
The drain was originally designed and constructed at the end of the 1960's. It is possible, but unlikely, that absolutely no remedial work is required anywhere, except in the bottom portion.
The drains that are proposed to be added to the Foster Drain were privately constructed. It is possible, but unlikely, that no specifications whatsoever are needed for these drains to be added.
This panel is of the view that the project must be referred to another engineer.
Parallel Proceedings
Under the Drainage Act, an infrequently arising problem is that of parallel proceedings. Originally, it was envisaged that objectors to a project would either challenge the project on the legal basis that there is not a valid petition under Section 4, or that there should be engineering or assessment changes to the project. The former is an exclusive issue for the Referee, the latter are within the exclusive jurisdiction of the Tribunal.
Sometimes, however, objectors take parallel proceedings, by challenging the project on both fronts. Accordingly, there have been instances of a project going through three hearings: first, the initial Tribunal hearing, which is then adjourned pending the Referee's decision; second, the Referee hearing, which may result in the finding of a valid petition and then third, the resumed Tribunal hearing, concluding the engineering and assessment issues hearing.
In some instances, with the consent of the parties, the practical solution implemented by the Referee has been to dispose of the Tribunal issues as well upon the resolution of the petition issue, with a consequent saving to the various parties. It is clear, however, that parties could not simply choose to avoid going to the Tribunal by appealing to the Referee in every case.
In this instance, after the first day of the hearing was concluded, the appellant determined to bring a parallel appeal to the Referee, challenging the sufficiency of the petition to bring the additional lands into the drain. The panel was advised of this at the end of the second day of hearing. The panel did not believe that it would be either appropriate or cost effective to simply adjourn the hearing at that point, awaiting the prosecution or abandonment of the appeal to the Referee by the appellant, and the panel concluded the hearing in this case. Should it turn out that the appellant is successful before the Referee, there is little doubt that in this case a valid petition not only can be presented, but will be presented and that accordingly this project will be realized. Therefore, this panel sees no purpose in increasing the costs of the proceedings by directing the engineer to develop alternative specifications and assessments, one on the assumption that the additional lands are brought in, and the other on the assumption that the additional lands are not brought in.
Design/Relocation Issues
The Tribunal finds that the additional lands not identified in the 1968 report which were temporarily connected to the Foster Municipal Drain via the ditches on the Pharand and upstream Foster lands should be drained through this drain. The evidence provided by the engineer who prepared the report and the engineer retained by the appellants indicated that the Foster Municipal Drain was the most logical outlet for these lands. As well, the landowners indicated the water flowed toward the Foster Municipal Drain.
With regard to the proposed relocation of the Main West Drain, the Tribunal is of the opinion that it is not practical to relocate it to the East side of the Campbell property. That would result in two ditches side by side with a small strip of land between them. It would be difficult to put this strip of land to productive use. The Tribunal finds it is feasible to either enlarge the East Main Drain and have it as the sole outlet for the drain or to upgrade the Main West Drain in its present location. The Tribunal accepts the arguments of the appellants that there are agronomic benefits to relocating the Main West Drain. The Tribunal finds that the appellants should have the opportunity to have the Main West Drain abandoned. However, if the Main East Drain is to be expanded, it may only be widened on the side closest to the Campbell property. The Tribunal finds it would be unfair to the owners of the Foster property to expand the ditch further toward the middle of this property. Also, the new engineer is not to design a berm that would cause the Foster property to be flooded in order to protect the Campbell property from flooding.
The Tribunal was persuaded by the evidence that the Campbell Branch of the Foster Municipal Drain can be abandoned as a subsurface tile system installed by the appellants has made it redundant.
Assessment Issue
The Tribunal was not persuaded that relocating the Main West Drain would provide any benefit to upstream landowners. The Main West Drain provides a legal outlet to the lands in the watershed in its current location. The Tribunal is of the view that the relocation of the Main West Drain should be assessed as a special benefit to the Campbell property. As the report is to be referred to a new engineer, that engineer will be charged with the responsibility of estimating the cost of the relocation and assessing the special benefit. The new engineer will also be required to develop an assessment schedule for other work recommended on the drain.
On the question of the assessment of the costs incurred to date on this project, the Tribunal finds that it would be most equitable to assess a special benefit of $5,000 to the MTO for the engineering work related to the future road widening, and to assess the balance of the costs as follows:
One-third to the Campbell property (Roll No. 0924-000-030-06800-0000)
One-third to the additional lands to be added to the drain, to be assessed in proportions determined by the new engineer
One-third over the entire watershed of the Foster Municipal Drain, as defined in the new report.
It was clear to the Tribunal that all the lands in the watershed will benefit to some extent from the engineering work that has been completed to date. The cost of the new report will be lower than it otherwise would be due to the work conducted by J.L. Richards and Associates Ltd.. However, Mr. Cormier testified that a portion of the engineering work undertaken on this project was specifically related to the proposal to drain additional lands through the Foster Municipal Drain and a portion of the engineering work was related to the proposed relocation of the Main West Drain. The Tribunal finds the assessment in the amount of $5,000 for the work that solely benefits the MTO is reasonable for the amount of work undertaken.
Allowances
As the report is to be referred to a new engineer it is not strictly necessary for this panel of the Tribunal to rule on the dispute with regard to allowances. The new engineer appointed by the Municipality will be responsible for determining the allowances payable on the work he/she recommends. However, the Tribunal notes that it finds Mr. Cormier’s estimate of the value of agricultural land ($1,500 per acre) to be more credible than Mr. Robinson’s estimate. The Tribunal also notes that there was evidence that this was the rate paid for land acquisition by expropriation and there was testimony by assessed landowners that this was the prevailing land value.
Engineering Fees
In the course of the hearing, several assessed landowners raised concerns about the cost of the report. That matter was not before the Tribunal. The Tribunal may only review an engineer’s account on an application by the Municipality under Section 72 of the Act.
Costs
On the question of costs, the Tribunal notes that Mr. Robinson did make a positive contribution to the drainage works with his investigation. The Tribunal is inclined to allow $1,000 of Mr. Robinson’s costs to be charged to the drainage works.
The Tribunal will also order that the engineer may only charge the drainage works the cost of having one person in attendance at the hearing. The Tribunal is of the opinion that it was not necessary to have two people in attendance throughout the hearing.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Council of the Township of Beckwith is directed to refer the report by J.L. Richards and Associates Limited on the Foster Municipal Drain to a new engineer, other than J.L Richards and Associates Limited and Robinson Consulting Inc., for consideration of the project and in particular the following items: i) Re-establish the boundaries of the area to be drained through the Foster Municipal Drain. This area is to include the additional lands that were temporarily connected to the Foster Municipal Drain via the ditches on the Pharand property and upstream Foster lands. ii) Provide for the abandonment of the Campbell Branch of the Foster Municipal Drain. No restoration to the land is to be considered. iii) Provide current profiles of the Foster Municipal Drain including the new additions to the drain made in the 1980s and 1990s and provide profiles of any additions or modifications proposed to be made. iv) Survey the area of the drain where it has been relocated on the Foster property identified by Roll No. 0924-000-030-07000-0000. v) Provide a design for the work required to upgrade and stabilize the Main West Drain to accommodate the volume of water expected to flow through the drain. The engineer is not constrained to the current configuration of the Main West Drain. vi) Provide a design for abandoning the Main West Drain and expanding the Main East Drain to accommodate all water collected in the drainage area. The Main East Drain may only be widened on the West side. Berms may be used if the engineer has determined that they are not likely to cause flooding to the adjacent lands. Any fencing required shall be placed on the West side of the Main East Drain. vii) Allow Mr. and Mrs. Campbell to examine the cost and assessment estimates and decide whether or not they wish the Main West Drain to be abandoned. Mr. and Mrs. Campbell are to provide their decision in writing to Council at the time it is considering the adoption of the report. Failing the filing of a written decision by Mr. and Mrs. Campbell the drain shall not be relocated. viii) Design the recommended drainage works and include schedules of allowances, construction costs, assessments and maintenance assessments in the revised report in accordance with the Drainage Act
In regard to the Municipality’s costs to date, expenses incurred by the engineer related to attendance at the Tribunal hearing which may be charged to the drainage works are limited to the cost of having one professional in attendance at the proceeding. The new engineer appointed by the Council of the Municipality is directed to assess the MTO a special benefit assessment of $5,000. The new engineer appointed by the Council of the Municipality is directed to assess the balance of the cost of the drainage works incurred by the date of this decision as follows:
One-third to the Campbell property (Roll No. 0924-000-030-06800-0000) as a special benefit assessment.
One third to the additional lands to be added to the drain, to be assessed in proportions determined by the new engineer, as a statutory benefit, in accordance with the Act
One-third over the entire watershed of the Foster Municipal Drain, as defined in the new report, as outlet liability.
The municipality is to pay $1,000 to Mr. Robinson, which shall be added to the cost to the drainage works. The balance of Mr. Robinson’s account shall not form part of the costs of the drainage works.
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.
In the event of appeals to the Tribunals or further applications to clarify or modify this order, this panel remains seized of this case. In the event that an appeal is made from the revised report this panel is not seized of the case.
Dated at Shelburne, Ontario this 5th day of September, 2003.