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:
Isley Branch of the Coulson Drain
Municipality of Leamington
Isley Branch of the Coulson Drain (RE) 2003 ONAFRAAT 37
STATUTE:
Drainage Act
HEARING:
November 27, 2003
DATE OF DECISION:
December 11, 2003
2003-37
NEUTRAL CITATION:
2003 ONAFRAAT 37
Isley Branch of the Coulson Drain
Municipality of Leamington
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 JEMA International Food Products Inc, Leamington Ontario, under Sections 48 and 54 of the Drainage Act from the engineer's report and the decision of the Court of Revision on the Isley Branch of the Coulson Drain, Municipality of Leamington.
Before:
John Taylor, Vice Chair; Jack Young, Vice Chair; Doug Flook, Member
Appearances:
Paul Courey, counsel to JEMA Foods
Brian Sweet, counsel to the Municipality of Leamington
Gerard Rood, P. Eng., engineer who prepared the report
Jim DiMenna, appellant, JEMA Foods
Joe Isley Jr., assessed landowner
John Isley, representing assessed landowner Anna Isley
DECISION OF THE TRIBUNAL
This appeal was heard in Leamington, Ontario on Thursday, November 27, 2003. Mr. Jim DiMenna, JEMA International Food Products Inc. (JEMA) appealed from the decision of the Court of Revision and the engineer’s report by N.J. Peralta Engineering Ltd. (the Report), under Sections 54, 48 and 65 of the Drainage Act (the Act). Section 65 was not applicable to the proposed Isley Branch of the Coulson Drain. At the outset of the hearing, Mr. Paul Courey, counsel to JEMA, indicated that the appeal was related to assessments (Section 54) and that his client did not object to the nature of the work proposed in the report (Section 48).
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the report on the Isley Branch of the Coulson Drain dated July 18, 2003 parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.
Mr. Brian Sweet, counsel to the Municipality of Leamington (the Municipality), asked the Tribunal to vary the order in which the parties presented their evidence, such that the Municipality would be first, followed by the appellant, then other assessed landowners. Mr. Courey agreed with this. The Tribunal agreed to vary its usual order of appearances.
Statutory Context
Section 54 of the Act states:
54(1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty‑one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.
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
Mr. Gerard Rood, P. Eng., the engineer who prepared the report, told the Tribunal that the Isley Branch of the Coulson Drain was designed to drain a residential property (Roll No. 490-224) owned by Joseph and Diane Isley (the Isley property) and part of a farm property (Roll No. 490-225) owned by Anna Isley (the Anna Isley property). He said the properties required drainage because a 10-inch clay tile drain that ran through a property (Roll No. 490-223) owned by the appellant (the JEMA property), had collapsed or become obstructed.
Mr. Rood told the Tribunal that historically, the Isley property and Anna Isley property had been drained to the Coulson Drain through the 10-inch clay tile drain, and a 6-inch clay tile drain which also traversed the JEMA property. He explained that these drains were not constructed under the Drainage Act and there was a dispute as to whether there was a legal right for these drains to be maintained.
Mr. Rood explained he recommended that the old 6-inch tile drain be removed and a new drain, comprised of a closed 12-inch tile drain be constructed in its location. He said it was not possible to construct the drain in the road allowance, as there were utilities in the way. Mr. Rood said the owners of the Isley property would need to construct a drain on that property to hook into the proposed Isley Branch of the Coulson Drain to drain the basement of the Isley property and to intercept the water that previously flowed across the JEMA property through the existing 10 inch tile. There are currently two tile drains across the JEMA property from the Isley property: a 6 inch located about 5 metres south of the road and a 10 inch about 40 metres south of the road.
The Issues
The issue before the Tribunal was:
- Are the assessments fair and equitable?
The Evidence
Gerard Rood, P.Eng.
Mr. Rood explained that he had determined that the proposed drainage works was primarily a benefit drain, and had calculated his assessments on a 90:10 statutory benefit:outlet ratio accordingly.
Mr. Rood said the benefit to the JEMA property would be:
The property should be drier where an existing drain is crossing it.
There will be an improved surface for driving trucks across the property.
The landowner can eliminate the existing 10-inch drain on its land which may interfere with future development.
The proposed drain will not act as impediment to any work or development that may be proposed on the property.
A civil issue of prescriptive rights may be resolved without recourse to the courts.
If there are any future concerns with the proposed drain, the landowner can deal directly with the Municipality and costs for repairs will be properly shared based on assessment schedules in the report.
The landowner will not have to share in the cost of the private work to be undertaken on the Isley property to divert the water that previously flowed through the 10 inch tile.
Mr. Rood said the benefit to the Isley property would be:
There will be drier ground at the J. and D. Isley residence.
A lower water table will offer some protection for cedar trees.
The landowner will no longer have to pump water.
Concerns about water flooding the basement of the residence should be alleviated.
A civil issue of prescriptive rights may be resolved without recourse to the courts.
If there are any future concerns with the proposed drain, the landowner can deal directly with the Municipality and costs for repairs will be properly shared based on assessment schedules in the report.
Mr. Rood said the benefit to the Anna Isley property would be:
The life of the drainage tiles on the property would be extended.
The property will have a sufficient outlet.
A civil issue of prescriptive rights may be resolved without recourse to the courts.
If there are any future concerns with the proposed drain, the landowner can deal directly with the Municipality and costs for repairs will be properly shared based on assessment schedules in the report.
Mr. Rood said he calculated the value of the benefit to the Anna Isley property as equal to the cost of replacing the current 6 inch tile drain with a new drain. He said he then split the remaining benefit costs 50:50 between the two remaining properties – the JEMA property and the Isley property.
Mr. Rood said the outlet portion of the assessment was calculated on the basis of total equivalent acres, using the following run-off factors:
3.0 on the Isley property, which is residential.
3.0 on the JEMA property which is part paved and part grass.
An average of 1.5 on the Anna Isley property which is part agricultural and part grass, with a significant slope.
Mr. Rood said that he prepared a separate maintenance schedule using the Todgham method, and a 50:50 statutory benefit:outlet ratio.
Mr. Rood explained he calculated allowances for owners of private lands used at rates of $60,000 per acre of residential land, and $7,000 per acre of agricultural land, both factored with a 25% easement rate.
He also explained that a slight modification to the wording of his report had been made, but that it did not affect the assessments.
In response to question, Mr. Rood indicated:
Resolving the drainage problems would remove the need for the landowners to go to court over a question of prescriptive rights. He took that into account when calculating his assessments but it was a small factor.
The owner of the JEMA property had not complained about poor drainage.
The JEMA property had a direct outlet to the Coulson Drain on their property.
The Isley property and Anna Isley property are assessed on the existing Coulson Drain, but have no direct access to it, other than through the existing private tiles.
His belief that the Isley property and Anna Isley property drained through the 10-inch tile and 6-inch tile drains was based on physical evidence and discussions with landowners. He did not follow along the tiles.
Water was not cut-off from the JEMA property under his proposal, but was re-routed to the perimeter of the property. The proposed drain is to be located 4 metres from the property line at the Coulson Drain end, and 5.5 metres from the property line at the boundary between the JEMA property and the Isley property.
There is no formal easement but the drain will be an encumbrance on the JEMA property; therefore an allowance will be provided.
A solid pipe drain will cross the JEMA property; the type of joint between the pipes encourages the entry of water. The drain will provide a sub-drainage outlet will not provide a direct outlet of surface water.
A lateral tile could be tapped directly into the pipe to drain surface water, but the landowner did not request one.
The main purpose of the proposed catchbasin is to allow the municipality to access the drain for maintenance purposes. The Isley property can drain surface water into the catchbasin but it also has access to a road ditch.
The land value of both the JEMA property and the Isley property is expected to increase somewhat as a result of the drain. No land appraisals were sought.
Crop production on the JEMA property is not expected to improve.
The appearance of the property is expected to be enhanced as there will be less surface water and better maintenance of an existing driveway. The driveway will have a better base.
His proposal does not utilize the 10-inch pipe; the pipe cannot be formally abandoned through his report, as it has no status under the Drainage Act.
The project centred on resolving problems with the 10-inch tile and this is why there is a high share of the costs assessed as statutory benefit.
There was no water ponding around buildings on the JEMA property; water did pool around the Isley house.
The owner of the JEMA property could direct water to the proposed drain.
The 6-inch tile drain currently works, but is approaching the end of its anticipated usage period.
The drain was designed to remove 2 inches of water in 24 hours; that was one size higher than current recommended standards.
An open ditch would not be as cost efficient as a closed drain across the JEMA property.
The Anna Isley property will need to drain through the proposed private drain on the Isley property to reach the proposed drainage works.
The landowners did not want the drain in the location of the 10-inch tile drain.
Later in the hearing, Mr. Rood was recalled and testified:
He attended a site meeting on September 4, 2002. Mr. DiMenna was in attendance. The meeting minutes indicated Mr. DiMenna preferred that the drainage problems be resolved at the front of the JEMA property, rather than in the location of the existing 10-inch tile.
If the Tribunal were to reduce the benefit assessments to any of the affected properties, the cost could be assessed as outlet, pro-rated on the outlet assessments contained in the report.
The drainage project proposed would address the drainage problems. It was not the ideal solution as he accommodated the concerns of landowners. The Isley property was to receive a legal outlet, but the owner wanted to install a private drain to take water to the outlet.
Simply replacing the 10-inch tile would not have resolved all the drainage issues as the 6-inch tile may fail in the future. Providing for the 6-inch tile to be replaced in the future as well was an option, but this would put two branches of a municipal drain through the JEMA property.
The general trend is for water to flow from the Southeast to the Northwest onto the JEMA property but there could be localized differences, especially where the driveway is raised.
He does not typically provide drainage on internal lands on projects commissioned under the Act.
Mr. Jim DiMenna, appellant
Mr. Jim DiMenna told the Tribunal he was the Manager-Operations of JEMA, that he had been with the company since 1992 and that he had been involved with purchase of the JEMA property.
Mr. DiMenna said JEMA will receive no benefit from the proposed drainage works and there would be a complication associated with property due to the presence of the drain. He said the land that would be freed up if the 10-inch tile were removed was not suitable for construction as it was North of their other buildings, the land was narrower at that point and there were nearby residences. He said the front 5 acres of the property was zoned industrial, 13-15 acres was conservation land and the balance was farmland.
Mr. DiMenna stated the JEMA buildings drained to catchbasins, and then to the open ditch section of the Coulson Drain. He said the Coulson Drain was closer to the buildings than the proposed new drain. Mr. DiMenna said the area where the new drain is to be located is currently a grassed area with a weeping bed in it. He said it was not in need of drainage and the grass was not too wet to mow. Mr. DiMenna said the driveway was tar and chip, with some potholes but that it was adequate for its use. He explained there was agricultural usage from August to mid-October each year, and year round tractor-trailer traffic on the driveway.
Mr. DiMenna verified that he had no objection to the design of the proposed work, just the JEMA share of the cost.
In response to questions, Mr. DiMenna indicated:
He believed it likely that a 10-inch drain that started on the Isley property and an outlet in the Coulson Drain were the two ends of the same drainage system.
He had no firsthand knowledge of the operation of the 10-inch drain but had been told by Mr. Joe Isley that it was no longer functioning.
Mr. Joe Isley told him about the history of the property shortly after JEMA purchased it.
It was possible that heavy equipment driving over the tile damaged it, but it could also have been blocked by a dead animal, or be malfunctioning for some other reason.
There was ponding on the JEMA around the area the 10-inch drain enters it; but the driveway is low in that area.
There was no other surface water problems on the JEMA property.
It would not be practical for any future landowner to build on the part of the property served by the proposed drainage works.
The Northern part of the property, where the drain is to be located, is not drained directly to the Coulson Drain.
He disagreed that the property would be drier as a result of the new drain, as he did not think much water would enter the pipes through cloth-wrapped joints.
Neighbourhood farmers used the driveway to access a scale at the North end of the property.
He had not allowed Mr. Joe Isley to repair the 10-inch drain. He had concerns about utilities in the area.
He did not think the 10-inch tile was damaged by traffic.
The broken tile was approximately 10 feet from the JEMA scale.
He did not agree that the Isley family had any right to drain water through the 10-inch tile on the JEMA property.
Given a choice, it was preferable that the new drain be located closer to the Municipal boundary, than in the location of the 10-inch tile.
The soil is sandy at the North end of the JEMA property. The slope of the land is to the North and slightly to the West.
Joe Isley, assessed landowner
Mr. Joe Isley told the Tribunal the Anna Isley property and Isley property were once one farm and it was purchased by his parents in 1946. He said he recalled the 6-inch tile and 10-inch tile being installed across the JEMA property, then owned by Mr. Silas Chambers, when he was a boy. He said it was installed in approximately 1954. He explained that his parents constructed the tiles across the North end of the Chambers farm (JEMA property), in exchange for access to the Coulson Drain.
Mr. Isley said his family had repaired the tiles on the JEMA property over the years, as required. He said he wanted to do so again when the 10-inch drain failed, but that JEMA would not allow it.
Mr. Joe Isley said he had installed a catchbasin to help drain the JEMA property. He explained the driveway had been raised twice because the area was wet and the vehicles using the driveway were heavier than when it was first constructed. He said the scale on the JEMA property had been relocated once, and was now 25 feet from the Isley property line. He said the scale restricted the flow of surface water and water flowed from the JEMA property to the Isley property. He clarified that this was surface water flow, not subsurface flow. He said the JEMA weeping bed was near the Isley fence.
Mr. Joe Isley said he would install a new tile drain to connect to the proposed drainage works so that his land would be dry. He indicated it would need to be registered on his mother, Anna Isley’s deed as well as his own. He said the Isley property had been wet since the 10-inch tile breakage. He said it was currently too wet to garden and cedar trees had died. Mr. Isley said he would have preferred that the new drain be installed in the location of the 10-inch drain, but that the engineer and Drainage Superintendent had suggested it be closer to the road.
Mr. Joe Isley submitted a series of photographs which he said showed wet conditions on the JEMA property, damage to the JEMA driveway, damage by heavy equipment near the JEMA scale, water ponding at the JEMA scale and holes dug near the fence line. He submitted that water does not stop at the fence line and he had been pumping water from the JEMA property off his land.
In response to questions, Mr. Joe Isley indicated:
He agreed with the assessments in the report.
He had already contacted a contractor with regard to installing a drain to connect his house and the existing 10 inch tile to the proposed drainage works.
He hoped that a ditch would carry his water, water from the Anna Isley property and water from the JEMA property to the proposed drainage works.
He was concerned that equipment would break the new drain if it was located where the 10-inch tile was, but still favoured that route as it would cost him a lot of money to install a private drain.
Mr. DiMenna was opposed to the new drain being located where the 10-inch tile was located.
There had been bad blood between his family and various owners of the JEMA property over the years.
He was satisfied with the new drain being built in the proposed location, but would have preferred it be where the 10-inch tiles were. His first choice was to fix the broken tile privately, rather than through a project under the Act.
He was asked by the Drainage Superintendent to arrange to have the old tiles exposed. After a contractor did not do the work, he dug them up himself.
John Isley, representative of Anna Isley, assessed landowner
Mr. John Isley told the Tribunal that a lawnmower gets stuck on the Isley property across from the weeping bed on the JEMA property. He said the only place for the water from the bed to go was the Isley property. He said when holes were dug and shown to Mr. DiMenna, Mr. DiMenna said the water must be from an underground spring. He said the field tile on the Anna Isley property that was closest to the JEMA property was always full of water.
Mr. John Isley said a previous owner of the JEMA property used to dump water illegally. He said since Mr. DiMenna tried to do things legally water ponding was worse. Mr. Isley said his root cellar which used to be dry is now saturated, and that his house is farthest from the JEMA factory. He said his mother, Anna Isley, was very upset that the Municipality had not yet resolved the drainage problem.
Summation
Mr. Sweet asked the Tribunal to restrict its decision to assessment issues, as all landowners had indicated they were satisfied with the design of the drain, even if it was not the best solution. He submitted the JEMA property received some benefit from the project as ponding of water will be reduced and the new drain will remove some subsurface water from the JEMA property. He said there was a benefit to all parties from the drainage project as a lawsuit over prescriptive rights could be avoided if the drainage problem is solved through this project.
Mr. Courey said the issue of prescriptive rights was irrelevant as all parties retained the ability to initiate a lawsuit and the Tribunal had no jurisdiction to rule on that matter. He submitted the statutory benefit:outlet ratio used by Mr. Rood was far outside the ordinary range and was not justified. He said the JEMA property did not receive a cut-off benefit, the property already had a direct outlet to the Coulson Drain and the land value would not increase as a result of the proposed drainage works. He submitted the benefit assessment on the JEMA property should be zero.
Mr. Joe Isley said there had never been a water problem on the Isley property until the 10-inch tile was broken. He said the 10-inch pipe looked to be in good condition where he dug it up and a drain in that location would serve his property adequately. He reiterated water from the JEMA property flowed onto his land.
Mr. John Isley said he would have preferred the matter to be resolved in a neighbourly fashion.
The Findings
The Tribunal finds that the Isley property and the Anna Isley property have in the past outlet water onto the JEMA property on the surface and through two tiles that traversed the JEMA property. One is a 10-inch tile lying in a northwest direction; the other is a 6-inch tile lying near the front lot line within 5 or 6 metres of the road allowance. These tiles were in all likelihood installed in low swales on the JEMA property at that time.
The Tribunal accepts the testimony of the Mr. Joe Isley that the 10-inch tile is no longer conducting the flows through the JEMA property. It agrees that on the balance of probabilities, and with no evidence to contradict the fact that the 10-inch tile is probably crushed somewhere near the JEMA driveway. A civil remedy was not pursued; but the landowners petitioned for drainage under the Drainage Act.
The Report consolidates the two outlets into a single crossing, at a location near the Northern boundary of the JEMA property, at the location of the 6-inch tile. The Report recommends a 12-inch pipe. The Tribunal finds this is an appropriate remedy. The Tribunal notes that all parties agreed this was an acceptable location.
In the Report, the engineer assessed out costs as 90% to statutory benefit, and 10% to outlet liability. The Tribunal finds that this is neither proper nor fair. The proposed drain will provide a benefit but it will also provide an outlet for water that does not currently have a good outlet to the Coulson Drain. Having regard to accepted practice, the Tribunal finds that the division of costs should be 75% to statutory benefit and 25% to outlet.
In allocating the benefit between the three properties assessed, the Tribunal finds that the JEMA property benefits because the new drain will carry water now crossing the JEMA property at the location of the 10-inch tile, or ponding on the JEMA property. The private drain that all agreed will be built, will direct that water that was crossing the JEMA land in that location, to the more Northern route, which is preferred by JEMA owners, thereby reducing the flow of water across that property to one channel.
The Tribunal accepts the rationale of Mr. Rood in his assessment of benefit to the Anna Isley property using the estimated value of replacing the existing tiles. The balance of the statutory benefit assessment must be split between the two remaining properties.
The Report splits the benefit between these properties on a 50:50 basis. The Tribunal agrees with the appellant that the benefit to the Isley property will be greater than the benefit to the JEMA property. The evidence was that the JEMA property had a direct outlet to the Coulson Drain whereas the Isley property did not. The Tribunal finds a more appropriate ratio is to assess 60% of the statutory benefit costs to the Isley property and 40% to the JEMA property.
On the question of outlet liability assessment, the uncontradicted evidence is that water is flowing from the JEMA property to the Isley property from the East side of the driveway and parking lot on the JEMA property. The Tribunal is satisfied by the testimony of Mr. Joe Isley, Mr. John Isley and Mr. Rood that water from all three affected properties is accumulating on the Isley property. Accordingly the Tribunal finds that the JEMA property will outlet water into the proposed drainage works. The Tribunal recognizes that a small amount of water may enter the new drainage works directly from the JEMA property.
The Tribunal finds the engineer’s apportionment of outlet liability in the Report ratios is appropriate.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The drainage works recommended in the report prepared by N. J. Peralta Engineering Ltd. dated July 18, 2003 creating the Isley Branch of the Coulson Drain be and the same is hereby approved.
The assessments in the accompanying “Construction Schedule of Assessment” in such report be varied in the manner shown on the attached schedule marked “Construction Schedule of Assessment revised by Agriculture, Food and Rural Affairs Appeal Tribunal December 11, 2003.
Construction Schedule of Assessments
Isley Branch of the Coulson Drain
Con
Lot
Tax Roll
Owner
Hectares Affected
Statutory Benefit
Outlet
Liability
Total Assessment
A
Pt 12
490-224
Joseph & Diane Isley
0.219
$5,060
$1,500
$6,560
A
Pt 12
490-223
JEMA Food Inc
0.134
3,375
210
$3,585
A
Pt 12
490-225
Anna Isley
3.602
1,525
1,610
$3,135
Total Assessment
$9,960
$3,320
$13,280
Revised by Agriculture, Food and Rural Affairs Appeal Tribunal December 11, 2003.
The maintenance schedule of assessment is to remain the same.
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 Tilbury, Ontario this 11th day of December 2003.