Cook Leddy Drain 2003 (RE), 2003 ONAFRAAT 35

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:

Cook Leddy Drain 2003 Township of Ashfield-Colborne-Wawanosh

Cook Leddy Drain 2003 (RE) 2003 ONAFRAAT 35

STATUTE:

Drainage Act

HEARING:

November 17, 2003

DATE OF DECISION:

December 11, 2003

2003-35

NEUTRAL CITATION:

2003 ONAFRAAT 35

Cook Leddy Drain 2003 Township of Ashfield-Colborne-Wawanosh

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 Joanne E. Cook under Sections 48 and 54 of the Drainage Act from the engineer’s report and from the decision of the Court of Revision on the Cook Leddy Municipal Drain 2003 in the Township of Ashfield-Colborne-Wawanosh.

Before:

John Taylor, Vice Chair; Jack Young, Vice Chair; Russell Piper, Member.

Appearances:

Ms. Joanne Cook, appellant.

Mr. Ken Leddy, assessed landowner.

Mr. Roger Pannabecker, assessed landowner.

Mr. John Kuntze, P. Eng., on behalf of the respondent the Township of Ahfield-Colborne-Wawanosh.

DECISION OF THE TRIBUNAL

This appeal was heard in the Municipal Office at 82133 Council Line of the Township of Ashfield-Colborne-Wawanosh, Ontario on November 17, 2003. Ms. Joanne Cook appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act from the June 23, 2003 engineer's report by K. Smart and Associates Limited on the Cook-Leddy Drain 2003 in the Township of Ashfield-Colborne-Wawanosh and from the decision of the Court of Revision.

Mark Becker, Clerk of the Township of Ashfield-Colborne-Wawanosh 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 June 23, 2003 engineer’s report on the Cook-Leddy Drain 2003, in the geographic township of West Wawanosh parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Statutory Context

Section 48 of the Act is as follows:

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

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

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

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

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

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

48(2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1). R.S.O. 1990, chap. D.17, s. 48.

Section 54 of the Act is as follows:

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

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

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

The Background

The original Cook Leddy Drain was constructed under a report by Maitland Engineering dated January 14, 2000. The existing Cook Leddy Drain is a tile drain in a natural watercourse flowing into a rip rap channel 15 m in length on the property line of the north half and south half of Lot 25, Concession 5, geographic Township of West Wawanosh.

Mr. Ken Leddy made a presentation before Council in September 2001 where he indicated that he was dissatisfied with the outlet of the drain and soil erosion on his property and requested that the tiled portion of the drain be continued and outlet downstream of a pond on his property. Mr. Leddy was also concerned that silt was being washed into the pond and that his cattle that watered there might be affected by pollution being washed into the pond from upstream properties. Mr. John Kuntze P. Eng. was appointed by council under section 78 of the Drainage Act (the Act) to investigate concerns and recommend improvements to the outlet, on the Leddy property.

Mr. Kuntze prepared a report based on his findings that the existing outlet was not sufficient. The proposed works provides for the extension of the tile drain from the northern edge of the south half of Lot 25, Concession 5, to outlet at a fence line separating pasture land from wood lot on the Leddy property. In the proposed works the pond on the Leddy property would be by- passed to alleviate problems with silt being washed into it and concerns about cattle drinking contaminated water. The improved outlet would ameliorate the negative impact the drain had on the Leddy property.

The Council of the Township of Ashfield-Coborne-Wawanosh adopted the report by Mr. Kuntze, November 19, 2002.

The Issues

The issues before the Tribunal were:

1. Is the existing outlet to the Cook Leddy Drain appropriate, or should it be continued along the existing natural watercourse to the edge of the wooded area adjacent to the Maitland River in Lot 25 Concession 5 of the geographic township of West Wawanosh?

2. Are the assessments and allowances for the proposed works under the June 23. 2003 report by K. Smart Associates Limited fair and equitable?

The Evidence

John Kuntze, P. Eng.

Mr. Kuntze introduced a summary of his report to the Tribunal, he submitted that:

• The present outlet of the Cook Leddy Drain is insufficient. He proposed installing tile to continue the drain to the new outlet. The new outlet is a natural waterway flowing through the wooded area in the south half of Lot 25, Concession 5.

• The proposed works will be 286 m long with 279 m of closed drain and 7 m of open drain.

• The report calls for the installation of 450 mm diameter solid plastic pipe to by-pass the pond on the Leddy property.

• The existing outlet pipe will be re-used and repositioned.

• A new 600 x 600 mm concrete catchbasin with ditch inlet top is to be installed at the upstream fence line.

• A site meeting, to which all affected landowners in the watershed were invited was held on October 15, 2002.

• No major objections to the proposed works were raised at the site meeting.

• Mr. Ken Leddy was to be provided with an allowance of $1, 500 to clean out his pond from sediment built up from the existing tile outlet.

• The total estimated cost of the works was $22,100.

Mr. Kunze submitted that under the February 4, 1999 Maitland Engineering Report the Cook Leddy Drain:

• Is a tile drain with a portion of open surface watercourse.

• Has a surface run on the Leddy property that keeps the property surrounding it wet and impassable for farm machinery necessary for pasture and fence maintenance.

• Contributes to erosion and silting, from livestock crossing the surface run. Silt loosened from cattle traffic is deposited in the pond.

• Discharges water at a rate and volume that erodes the inlet into the pond.

Mr. Kuntze responded to questions that:

• There is not a substantial difference between his report and the Maitland Report.

• He estimated a figure of $540 to accommodate interest charges on any funds advanced by the Municipality for the project until the assessed landowners made payment.

• The pond on the Leddy property is spring fed and discharges water regardless of whether water flows into it.

• Most of the erosion is occurring where water enters the pond and it is cutting the channel deeper.

• There is a natural ravine through the wood lot on the Leddy property with significant fall. Water is conveyed through the ravine toward the river; there is no erosion associated with the watercourse in the wood lot.

• He proposes to discharge the water from the drain into a cavity lined with rip rap to disperse the force of the water at the outlet.

• Affected landowners had submitted that the pond on the Leddy property was dug after work on the drain had commenced; in his opinion it is not relevant when the pond came into being.

• He met with the affected landowners to hear their concerns before being appointed to prepare a report.

• He has given his unbiased opinion of the works.

• In his experience landowners often have difficulty visualizing a works until after it has been constructed and begun to function. He believes this may account for Mr. Leddy revising his opinion with regard to the location of the outlet.

• Initially he met with Mr. Leddy to ask for permission to view the site and to discuss his concerns before he met with the other landowners.

• Now that there is a continual flow of water through the pond, the presence of cattle is less desirable. The presence of the cattle and the impact of erosion are not separately quantifiable.

• The pond is not part of the drainage works.

• The Maitland Valley Conservation Authority indicated that it had no concerns with the proposed works as there was no planned modification/construction within the woodlot on Lot 25.

• Under his report no work will be done to the existing watercourse or the pond on the Leddy property. He has provided for an allowance of $1,500 to the Leddy property for fence maintenance, construction, disruption and cleaning out the pond.

• There is a benefit assessment against the Leddy property for drainage of surface water; there is no outlet assessment against the Leddy property, as no significant portion of the Leddy lands will be added to the drain.

• The assessments for future maintenance and repair against the Leddy property are the same as provided for in the Maitland Engineering Report of 2000 however, he does not believe maintenance should be prorated for outlet as the outlet improvement under his report is not soley for the benefit of the Leddy property.

• The crossing for equipment on the Leddy property will be regraded under his report, and $1,100 is provided for unforseen contingencies.

• His report assessed outlet and benefit at a ratio of 23% and 77% respectively. He applied the Todgham method of assessment, however, he divided the drain into intervals based on the functional purpose of each section of the drain.

• The drain benefits the Leddy property in the portion of the drain running from the Leddy- Thompson properties fence line to where it meets the woodlot on the Leddy property.

• The Act states that compensation must be paid for land and crops that are lost/damaged due to construction. He included this compensation in the allowance for the Leddy property.

• The previous decision of the Tribunal dated March 5, 2001 indicated that all landowners were of the opinion that the outlet for the drain should be continued downstream.

• Under the existing by-law there is no provision for improving the existing channel but it must be considered because the drain should be constructed within the intent of the report.

• His report, Section E-7, provides for general alterations and additions that may be requested by the engineer of the contractor, and for which additional payment may be made. The described changes to construction provided for in Section E-7, may need to be amended to limit the powers of the engineer and the contractor during construction.

• His report sets out the duties and obligations of the contractor and the engineer, should unforeseen conditions, errors or omissions occur during construction. It is his longstanding practice to include such a provision in his reports on municipal drains.

• He has never observed the volume of water flowing across either the Thompson or Leddy properties as captured in several photographs presented by Mr. Leddy.

Ms. Joanne Cook

Ms. Joanne Cook told the Tribunal that she had catalogued the drainage problems leading to the hearing before the Tribunal in chronological order. She submitted that:

• June 15th 1998, she submitted a petition for drainage to the Township. She met with affected landowners and Geoff King from the Maitland Valley Conservation Authority to discuss cost estimates for drainage.

• July 27th, 1998, Council approved the petition and appointed Mr. McBride P. Eng. to design a drainage works.

• October 7th, 1998, an onsite meeting was held to discuss the proposed works. Two routes for the drain proposal were presented, though Mr. Leddy was disruptive and left the meeting. A preliminary report with cost estimates was to be prepared.

• February 1999, landowners met to discuss drainage concerns. There is no pond in existence on the south half of Lot 25 Concession 5.

• March 2nd, 1999, a meeting was held to consider the preliminary report. Township passes motion for preparation of a final report.

• July 16th, 1999, a pond was dug on the Leddy property in the middle of one of the proposed routes for the drain.

• August 1999, Mr. Leddy requests, compensation for the drain on his property, a well to be dug for watering cattle and assurances that no pollution will enter the pond.

• November 1999, Mr. Leddy completes a questionnaire of final concerns and requests a cost estimate for a proposed outlet at the fence line of his and the Thompson property in the north half of Lot 25 Concession 5.

• February 15th, 2000, Report adopted by Council.

• February 28th, 2000, Mr. Leddy appeals insufficient outlet, assessments too high, quash petition.

• March 2nd, 2000, Mr. Thompson appeals his assessment is too high.

• Mach 3rd, 2000, Mr. Pannabaker appeals his assessment is too high.

• May 2000, petition by Ms. Cook challenged. Referree O'Brien decides that it is valid in June 2000.

• August 1st, 2000, Court of Revision held to hear Mr. Pannabaker objections to assessments on Branch A of the Drain. Mr. Leddy's benefit assessment is reduced by $730 his assessment for outlet is increased to $520. Mr. Thompson objects to his assessment, his benefit assessment is reduced by $1,500. Ms. Cook's outlet assessment is increased by $810 for the Main Drain and by $1,000 for Branch A of the Drain.

• August 2000, Mr. Leddy, Mr Pannabaker and Ms. Cook appeal to the Tribunal.

Ms. Cook submitted to the Tribunal that the pond on the Leddy property did not exist until Mr. Leddy dug it in 1999. She stated that Mr. Leddy's requests for cost estimates and routing of the drain around the pond caused delays and additional costs. Ms. Cook stated that Mr. Leddy retained the services of Mr. Johnson P. Eng. to assess the property where the drain outlet was proposed to be situated. She submitted that Mr. Johnson found that the proposed work would improve the land and its value, excavated material around the pond indicated that it had been dug recently and that the landowners preference for the location of the outlet should be considered. Ms. Cook submitted that Mr. Leddy maintained that the pond had been on his property for many years and that his cattle had unrestricted access to the pond which might contribute to its being polluted; she said that his main concern was pollution.

Ms. Cook told the Tribunal that she wished her property to be drained to improve production while safeguarding the environment. She said that the additional costs were added to the works due to affected landowners changing their expectations and opinions with regard to the location of the outlet. Ms. Cook said that approximately $10,000 had been added to the initial cost estimates for the works.

Ms. Cook said that that Mr. Leddy complained about the location of the outlet four weeks after the drain was completed. She submitted that she was concerned that after the involvement of three separate engineering opinions, a hearing before the Referee and the Tribunal and two reports from engineers, that more costs and delay could be expected due to Mr. Leddy's dissatisfaction with the location of the outlet for the drain.

Ms. Cook responded to questions that:

• She indicated at a hearing before the Tribunal in 2001, that she would be willing to pay a portion of the cost of extending the drain downstream of the pond on the Leddy property to an outlet near the Maitland River.

• She was not certain if her reference to increased costs for the works was actually more than the final cost which is lower than the estimated cost under the June 23, 2003 report prepared by Mr. Kuntze.

• All the engineers who were consulted on the matter agreed that the outlet for the drain should be downstream of the pond on the Leddy property.

• Mr. Leddy showed her his property from a distance, prior to 1998, though she did not drive through it. There was a wet area where the pond is today.

• Prior to the drainage works from the Maitland Engineering Report February 4, 1999, there was ponding of water on her property.

• She understood that the work ordered in the Tribunal decision of March 5, 2001 was final and believed that there could be no variation to the works if not specified in the Tribunal decision.

Mr. Ken Leddy

Mr. Leddy told the Tribunal that he was in favour of the report. He said that he would be satisfied with the works if the order of the Tribunal dated March 5th, 2001 clarifying the types of benefit to the affected properties was upheld. He said that he had suggested placing the outlet at the fence line of his and the Thompson properties to avoid the special assessment under the Maitland Engineering report for $20,000 to route the drain around the pond. Mr. Leddy stated that he has spent many thousands of dollars in an effort to come to agreement with Ms. Cook. Mr. Leddy presented a few photographs of his property taken in summer 2003. He described the photographs as taken at the drain crossing area on his property near the Thompson fence line. He said the deep ravines seen in the photographs did not exist before the construction of the drain.

Mr. Leddy told the Tribunal that:

• He purchased the property in the south half of Lot 25 in 1971. He cropped it for three years and then pastured cattle on it.

• The pond on the property has been there since he was a child. It has become filled with mud washed into it from the drain ravine.

• There are no water taps in the barn on the property as the livestock have always drunk from the spring fed pond. He fences the cattle out of the river.

• Before the drain was constructed, he was able to drink the pond water. The property has numerous natural springs which hampers the use of heavy equipment.

• His opinions with regard to the drainage works were ignored. He is being assessed an additional $3,500 therefore, he wants the mess on his property cleaned up and the works completed.

Mr. Leddy responded to questions that:

• He is a beef farmer and there is no tile drainage on his property.

• He assumed that the previous engineer realized that the location of the outlet coincided with the only natural crossing of the watercourse.

• Water pollution washed into the pond from the Cook property. Several cattle sickened and died. He was told by the processor of the animals that their organs indicated poisoning by way of pollution.

• The cattle have no effect on the works; if they were not there the erosion and silting would still occur.

• All upstream water washed through the pond.

• He would happily sign an undertaking to receive $1,500 allowance for cleaning out the pond as final settlement in the matter.

• He had never had the water in the pond tested.

Roger Pannabecker

Mr. Pannebecker told the Tribunal that the disputes should be settled as soon as possible. He stated that the location of the outlet is at a point where there is significant fall. He said that it is difficult to determine if the cause of the silt in the pond is a result of the cattle churning up the soil or erosion from the watercourse.

Summations

In summation, Ms. Cook told the Tribunal that the drainage problems on the Leddy property were caused by Mr. Leddy and due in part to his not fencing the cattle from the open watercourse. She stated that she did not want to be assessed further to correct the problems. Ms. Cook said that she believed the Tribunal had dealt satisfactorily with costs in its March 5th, 2001 decision and that Mr. Leddy should pay all costs associated with addressing his concerns.

Mr. Kuntze submitted that the general opinion of affected landowners was that the location of the outlet at the Leddy, Thompson fence line was entirely Mr. Leddy's decision. He referred to Mr. Leddys testimony as recorded in the Tribunal decision dated March 5th, 2001. He stated that Mr. Leddy preferred to cancel the project because he did not want pollution from upstream lands to be carried onto his property. Mr. Kuntze argued that in the same Tribunal decision Ms. Cook's opinion was that the drain should outlet into the pond. Mr. Kuntze told the Tribunal that nowhere in the March 5th, 2001 Tribunal decision is there any indication that affected landowners wanted the outlet to be located at the fence line. He argued that Mr. Leddy agreed to the outlet being placed at the fence line as a last resort in his desperation to settle the disputes.

Mr. Kuntze said that in the final analysis the initial cost estimates for the existing works were actually lower than the estimated costs. He stated that the assessments under his report are reasonable and that he believes the landowners are not overpaying for the conveyance of water to a sufficient outlet.

The Findings

The previous decision of the Tribunal dated March 5th 2001, was based on the report which located the outlet for the project at the fence line of the Thompson, Leddy properties. The decision to locate it there was at the request of Mr. Leddy. The Tribunal in it March 5th, 2001 decision, determined to respect the preferences of the landowner, even though several suggestions were made at that time to extend the drain beyond the pond.

The Tribunal finds that the report by Mr. Kuntze P. Eng., was based on his reasonable findings that the outlet to the Cook Leddy Drain as constructed under the January 14, 2000 report by Maitland Engineering Ltd. was insufficient. The remedy under the Kuntze report is to extend the works to by-pass the pond on the Leddy property to an outlet constructed to accommodate the flow and to disperse the force of the flow at the outlet thus reducing erosion. The Tribunal is convinced from the evidence presented that the erosion on the Leddy land has its cause in the access of cattle to the open channel and through the washing of soils down the channel. It is evident that these same causes are reason for the build up of silt in the pond on the Leddy property.

There was conflicting evidence regarding the origin of the pond. Mr Leddy acknowledged that he reconstructed the pond while the proceedings were under way for the original report. The Tribunal is of the opinion that the location chosen was not a good decision considering that it is a spring fed pond and that this has contributed substantially to the present problems with the pond.

The Tribunal accepts that the new outlet would serve for all the foreseeable future and that there would not be a requirement for further work downstream of the proposed new outlet.

The Tribunal finds that the benefit to the Leddy property is by way of cut off from flows from the natural watercourse. The Tribunal agrees with the provisions for allowance of $1,500 to the Leddy property under the report by Mr. Kuntze as the evidence indicates that the erosion of the watercourse and the silting in the pond may be due in part to his cattle having access to the open portion of the drain.

All parties recommended the extension of the drain as proposed in the K. Smart 2003, report and the Tribunal grants these requests.

The principal issues today related to assessments.

Engineer Kuntze allocated a sum of $2,200 for increased cost to route the drain past the pond. This sum is for the construction only. Special benefit assessments should also include a fair share of the engineering and overhead costs. When the overhead cost is applied, it would result in a total of $3,800. We find that this amount should be assessed as a special benefit to the Leddy property in Lot 25, Concession 5.

The total cost of the project of $22,100 less the $3,800 special assessment leaves a sum of $18,300 to assess to the project. Mr. Kuntze recommended that for this section of the drain 23% of the cost should be allocated to regular benefit which amounts to a sum of $4,200. This $4,200 should be allocated $800 to Thompson and $3,400 to Leddy. This leaves a balance of $14,100 to be prorated as an outlet assessment to the upstream owners in accordance with Schedule A of the Cook Leddy Drain 2003 report.

The Tribunal finds that the construction on the Leddy property to by-pass the pond has contributed substantially to the increased cost of the project.

Mr. Leddy indicated that he was willing to sign a release to the municipality that he would accept the $1,500 allowance provided for in the report; and that he would not make any further claims against the municipality nor against the upstream owners for any past damages resulting from erosion or pollution.

The chair commended the landowners for the quality of their presentations.

ORDER OF THE TRIBUNAL

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

1. The work outlined in the report of K. Smart and Associates dated June 23, 2003 to extend and improve the outlet of the Cook-Leddy Drain is hereby approved.

2. The appeal under Section 48 of the Drainage Act is dismissed.

3. The appeal under Section 54 of the Drainage Act relating to assessments is allowed in part and the assessments are varied as follows:

(a) A Special Benefit is to be assessed against the lands of K. and C. Leddy in the south half of Lot 25, Concession 5 in the amount of $3,800;

(b) A regular benefit of $800 is to be assessed to the J. & J. Thompson lands (Roll No. 610 005 031);

(c) A regular benefit of $3,400 is to be assessed against the K. and C. Leddy lands (Roll No. 610 005 032);

(d) The balance of the estimated cost of $14,100 is to be assessed as outlet and prorated among the upstream owners in accordance with the Outlet Assessments in Schedule A of the Cook-Leddy Drain 2003 report;

(e) Any change in the final cost of the implementation of the said report shall be prorated among the various assessments in subparagraph (b), (c) and (d);

4. The allowance to K. and C. Leddy of $1,500 is to be paid or credited to them on condition that they sign a full and final release in favour of the Municipality and the upstream owners on this drain, releasing them from any claims for damages arising out of any erosion or pollution that may have accrued prior to the construction of the works contemplated by the within report This release shall be completed prior to the award of a contract for construction. If Mr. Leddy refuses to sign such a release in a form acceptable to the Municipality, this panel of the Tribunal shall give further consideration to this order.

5. 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 Drainage Act.

Dated at Tilbury, Ontario this 11th, day of December, 2003.