Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

South Sparrow Lake Road Drain Township of Severn

South Sparrow Lake Road Drain (RE) 2003 ONAFRAAT 27

STATUTE:

Drainage Act

HEARING:

Spetember 10, 2003

DATE OF DECISION:

September 18, 2003

2003-27

NEUTRAL CITATION:

2003 ONAFRAAT 27

South Sparrow Lake Road Drain

Township of Severn

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 Ken Tovell under Sections 48 and 54 of the Drainage Act from the decision of the Court of Revision and from the engineer’s report on the South Sparrow Lake Road Municipal Drain in the Township of Severn.

Before: Andrew Osyany, Vice Chair; Murray Cardiff, Chair; Jack Young, Vice Chair

Appearances:

Ken Tovell, appellant landowner

Ken Smart, P.Eng., K. Smart Associates Limited, engineer who prepared the report.

Clayton Cameron, Road Superintendent, Township of Severn, witness

George Louth, Lake Saint George Golf Course, 388015 Ontario Ltd., assessed landowner

Anton Bavdek, assessed landowner

John Maier, assessed landowner

Barry McMurdy, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Orillia, Ontario on September 10, 2003. Mr. Ken Tovell appealed under Sections 48 and 54 of the Drainage Act (the Act) from the decision of the Court of Revision and from Addendum No. 1, dated March 14, 2003, to the engineer's report by K. Smart Associates Limited, dated January 10, 2003, (the ”Report”) on the South Sparrow Lake Road Drain in the Township of Severn (the “Municipality”). At the outset of the hearing, Mr. Tovell indicated he was not concerned with his assessment (Section 54 appeal) but that he was concerned with the proposed drainage works (Section 48 appeal).

Sharon Goerke, Deputy Clerk 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 addendum to the engineer’s report on the South Sparrow Lake Road 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

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. R.S.O. 1990, c. D.17, s. 54 (1).

Subsection 48(1) of the Act states:

Appeal to Tribunal

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

The Background

The South Sparrow Lake Road Drain was designed in response to a petition signed by the Road Superintendent of the Municipality. The drain was designed to alleviate road flooding by providing an improved outlet for the South Sparrow Lake Road, downstream of Lots 12 and 13, Concession 12 in the geographic Township of Orillia.

Mr. Ken Smart, P. Eng., (the “Engineer”) explained that his original report proposed clearing debris from the waterway and providing a maintenance path on both sides of the channel. He said this work was no longer recommended because, after the report was released, the Department of Fisheries and Oceans (DFO) required that less work be done, in order to preserve fish habitat. The addendum to the report called for the removal of at least one beaver dam and the incorporation of an existing waterway into the proposed drainage works. The addendum also provided for the replacement of culverts at two lane ways. He said DFO representatives had been invited to site meetings but had not attended. He said the proposed work in the addendum to the report would lower the water level in the waterway to approximately half the height of an existing road culvert at South Sparrow Lake Road.

The Engineer said the proposed drainage works would incorporate 1,605 metres of an existing waterway into a municipal drain. He explained the waterway outlets into Grass Lake, which is a very shallow lake that outlets into the Trent-Severn Waterway. The watershed of the proposed South Sparrow Lake Road Drain was 1290 hectares of land.

The Issue

Since Mr. Tovell was not concerned with his share of the cost of the project, the only issue before the Tribunal was:

1. Should the proposed drainage works be modified to require that a beaver dam on the Tovell property (Roll No. 8-543) be retained?

The Evidence

Ken Tovell, Roll No. 8-543

Mr. Ken Tovell told the Tribunal he was concerned about the proposal to remove a beaver dam on his property because there was a limestone quarry upstream of his property on a tributary to the drain and he believed the beaver dam would prevent any contaminants from the quarry from entering the drain and the Trent Severn system. He said there were no settlement ponds on the quarry site. He indicated he was concerned there would be a fuel spill from equipment used in the quarry or run-off from a stack of asphalt stored by the Municipality on the quarry site. He said that an environmental assessment of the proposed works should be undertaken.

Mr. Tovell said a better solution would be to raise the South Sparrow Lake Road by approximately one foot, to alleviate flooding. He said he had lived on his property for 50 years and the road had flooded every Spring in that time period. He suggested a base of 2-inches of stone could be installed under the raised road.

Mr. Tovell said the beaver dam that the report proposed to remove had been built up approximately five years before and that he had not noticed an increase in flooding since it was built. He said there was also a large beaver dam at the Grass Lake end of the waterway.

Mr. Tovell said he was also concerned about the cost of the proposed work ($52,150). He said the cost would increase as more dams downstream of the dam on his property would have to be removed.

Mr. Tovell said he would have given the Municipality access to the beaver pond for $2,000. He said he wanted to be compensated for work he has done on his private road. He said it was not fair that the Municipality would have free access to his private property.

On questioning, Mr. Tovell said he had heard there was a spill years ago but that he had not personally seen any water run-off from the quarry to the proposed drain. He also felt that the quarry operators should control any polluted runoff from their property.

Ken Smart, engineer who prepared the report and the addendum

Mr. Smart said that water from the Beamish quarry (Roll No. 8-241-01) ran through the Cooper property (Roll No. 8-542) to the proposed drain. He said he had seen a stockpile of approximately 4,000-5,000 tonnes of asphalt on the quarry site but had not observed any evidence of discharge to the watercourse. He also said that a beaver dam might stop solid matter but it would not hold back soluble contaminants, in the event there was a spill. He said some of the debris to be left in the channel, at the request of the DFO, would also hinder solid matter from moving down the drain.

Mr. Smart said there was a problem with lack of drainage in the area in question and that the problem had worsened in the last few years due to increased beaver activity. He said there was now year-round flooding of the road. He said the South Sparrow Lake Road could not be built up until the road subgrade was properly drained. Mr. Smart said the flooding jeopardized public safety to vehicles and people using the existing road.

Mr. Smart told the Tribunal there were two beaver dams on the Tovell property that together cause water to raise water 4.5 feet above channel bottom. He said the dam upstream of the Tovell lane way was causing most of the problem. He said he proposed that this dam be removed completely, as beavers would re-build it if it was only lowered. Mr. Smart said the report would incorporate the entire channel and that the Municipality would be able to remove future dams if they cause a problem. He said DFO had agreed that the water level in the waterway should be kept at or below to 213.4 metres at the South Sparrow Lake Road culvert during periods of normal flow. He said the water depths in the channel were generally between 500 mm and 600 mm but they were 800 mm upstream of the Tovell lane way, and the beaver dams caused water to flow over the top of the road culvert.

Mr. Smart said the DFO had considered environmental factors when it made its report on the drainage works. He noted there is separate legislation to govern activities on quarry sites and that they cannot be addressed by the Drainage Act. He said the DFO was satisfied with the work proposed in the addendum to the report.

Mr. Smart said the golf course property (Roll No. 8-257) benefited from the project, as it would receive a legal outlet for its water.

Clayton Cameron, Road Superintendent

Mr. Clayton Cameron, Road Superintendent for the Municipality, said he had held that position for eight months and that he had observed water flowing over the top of the South Sparrow Lake Road culvert during this period. He said if the drainage works can lower the water level the Municipality could stabilize the road base and build up the roadway. He said he wanted to raise the roadway approximately 0.5 metres and to widen the roadbed. He said this section of road was the highest safety concern of all the roads in the Municipality and that building it up would be given a high priority once it has adequate drainage.

Other Assessed Landowners

Mrs. Anton Bavdek (Roll No. 8-224) said her main concern was the cost of the project. She said her property was vacant land.

Mr. John Maier (Roll No. 8-551) said he wanted the road repaired as he was concerned there would be an accident due to the flooding. He said he had lived on his property for 45 years and that if the road is raised, the beavers will build their dams higher. He said he had never seen flooding as bad as in the current year when water was as high as the door on his car.

Mr. Barry McMurdy (Roll No. 8-242) said 30 acres of his land is now under water year-round, whereas in the past it was only flooded six weeks per year. He said that valuable trees were dying. He said the land had been under water year-round for the past three years.

Mr. Tovell responded that the McMurdy property was always swampy and that the owners were not permitted to build a house on it 30 to 40 years ago.

Summations

Mr. Tovell said the solution was to build the road up and enlarge the culvert. He said the beaver dam could be lowered as long as a berm is installed to prevent pollution moving downstream. He said he objected to excavating the beaver dam as this would ruin habitat.

Mr. Smart said the proposed work was required to reduce water levels, as there was a safety issue. He said the entire waterway should be incorporated into the drain so that the Municipality could maintain the channel and remove any future dams that cause the water level to exceed an acceptable level. He said it was not desirable for the Municipality to have to pay landowners each time it needed to access the waterway. He said Mr. Tovell had no detailed knowledge of how water runs off the Beamish quarry property and no evidence that there had been pollutants run off it in the past. He suggested that Mr. Tovell could contact the Ministry of Natural Resources if there was a concern about the operation of the quarry.

Mr. Smart told the Tribunal there was a limited window in which work could be undertaken on the waterway and requested it release its decision as soon as possible.

Mr. McMurdy said he supported the recommendations of the Engineer.

The Findings

The Tribunal finds that the drainage works should be constructed as proposed in Addendum No. 1 to the Report. The Tribunal was persuaded by the evidence of Mr. Cameron and Mr. Maier that the flooding of South Sparrow Lake Road created unsafe conditions. As well, Mr. McMurdy’s evidence was that his land would benefit from the proposed lowering of the water level. Mr. Tovell suggested that the beaver dam be lowered, rather than removed. The Tribunal was persuaded by the testimony of the Engineer that this would not be sufficient to permanently resolve the flooding problem at present or in future years.

The Tribunal appreciates that Mr. Tovell is concerned about the potential for polluted water to run-off from the quarry site, but the Tribunal notes Mr. Tovell did not provide convincing evidence that this had occurred or would likely occur. In any event, the activities of quarry operators are governed by the Aggregate Resources Act and this Tribunal has no authority under that statute. Concerns of this nature should be addressed to the Ministry of Natural Resources.

The Tribunal accepts Mr. Smart’s argument that the DFO has adequately considered the impact of the drainage works on fish habitat.

The Tribunal accepts the Engineer’ position that the entire waterway should be incorporated into the drainage works, as there is a potential for beavers to build anywhere in the waterway. The Municipality needs to be able to access the waterway to remove dams if necessary. It should be noted that Section 63 of the Act provides for the Municipality with the right to enter the properties to construct and maintain the project in the future.

The Tribunal notes that the DFO did not respond in a timely fashion to the invitation that it attend site meetings at which the work on this waterway was discussed. The attendance of DFO representatives at the site meetings may have improved their understanding of the issue and would certainly have saved the cost of preparing the Addendum and reduced the time required for this drainage works to be processed in accordance with the Act. The delay in this case was troubling, given the unsafe condition of the road.

The Tribunal notes that drains have many aspects, and while in the distant past the DFO concerns may have been largely ignored, the current, and appropriate practice is to take into account all aspects impacting on a drain. However, the DFO is not the ultimate authority over drains. In this instance, it must be remembered that the municipality has a statutory obligation to maintain the road to certain standards. So long as the road is open, the municipality must meet the standards and the only way the standards can be met is by the establishment and maintenance of this drain. This panel is of the view that the DFO and its representatives have a two-fold obligation: firstly to recognize that in our Canadian legal system competing interests have to be resolved by mutual accommodation, and secondly by committing to a timely and appropriate participation in the drainage process.

ORDER OF THE TRIBUNAL

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

1. The appeals of Ken Tovell under Sections 48 and 54 of the Act are dismissed.

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

Dated at Shelburne, Ontario this 18th day of September, 2003.