Klijn Drain – 2003 (Re), 2003 ONAFRAAT 8 — OAFRAAT | minicounsel

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

Klijn Drain – 2003 Township of Wainfleet

Klijn Drain – 2003 (RE) 2003 ONAFRAAT 8

Drainage Act

March 26, 2003

DATE OF DECISION:

April 10, 2003

2003-08

2003 ONAFRAAT 8

Klijn Drain - 2003

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 Peter Klijn under Sections 48 and 54 of the of the Drainage Act from the decision of the Court of Revision and the Engineers Report on the Klijn Drain in the Township of Wainfleet.

Before:

Andrew Osyany, Vice Chair; Jack Young, Vice Chair; Russell Piper, Member

Appearances:

Peter Klijn, appellant

John R. Spriet, P. Eng., engineer who prepared the report, for the respondent, the Township of Wainfleet

Ralph Bradley, Drainage Superintendent, Township of Wainfleet

William VanVliet, assessed landowner

David Groszeibl, assessed landowner

Joe Groszeibl, assessed landowner

Bob Groszeibl, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Wainfleet, Ontario on March 26, 2003. Mr. Peter Klijn appealed under Sections 48 and 54 of the Drainage Act (the Act) from the decision of the Court of Revision and from the revised engineer's report dated November 12, 2002 (the report) by Spriet Associates on the Klijn Drain in the Township of Wainfleet (the Municipality).

Mr. Albert Guiler, 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 engineer’s report dated November 12, 2002 on the Klijn Drain parties to this hearing. Proof was filed with the Tribunal that all parties had been served with notice of the 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;

(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

Mr. John R. Spriet, P. Eng. told the Tribunal the Klijn Drain in the Township of Wainfleet was redesigned pursuant to a Tribunal order dated February 27, 2002 which required that:

i. The drainage works is to be constructed along the route described as “West Route” in the preliminary Report, Klijn Drain, Township of Wainfleet prepared by Spriet Associates and dated July 26, 1999.

ii. The drain is to be designed to current agricultural standards to drain the entire watershed.

iii. The Engineer shall consult with Mr. Klijn and provide adequate outlets or connections to the new drain.

iv. Owners of the properties identified by Roll Nos. 9-74 and 9-76 (Messrs. D. & B. Groszeibl and William Van Vliet) are to be consulted as to whether they prefer an open drain or a closed drain across their properties.

This panel of the Tribunal made the order dated February 27, 2002 and seized itself in the event of further appeals on this case.

Mr. Spriet explained that the watershed had been slightly expanded from that identified in the July 26, 1999 report as a result of his receipt of two tile drainage plans from Mr. Klijn. He said the drain described in the Report followed the “West Route” and was taken to an existing low spot on the Klijn property, with a spur to hook up an outlet at Station 0+28. He said assessed landowners preferred a closed drain and he had designed a tile drain which proposed tiles ranging from 10” to 16” in diameter.

Mr. Spriet explained that there were a number of special assessments charged on the Klijn Drain. He said legal costs related to the first Tribunal hearing were assessed to lands affected by the July 26, 1999 report and that engineering work related to the proposed extension of the drain to Johnson Road, as requested by Mr. Klijn, was assessed to the Klijn property (Roll No. 9-69). He explained that he had divided the drain into two sections for the assessment of costs related to outlet liability and statutory benefit and that he had used a benefit:outlet ratio of approximately 50:50. He said he calculated outlet cost on a per hectare basis, using a location factor to account for where water from each property entered the drain.

The Issues

The issues before the Tribunal were:

Should the drain be constructed as shown in the Engineer’s Report?
Should the assessments on the drainage works be varied?

The Evidence

Peter Klijn Testimony

Mr. Peter Klijn told the Tribunal he owned a farm on Lot 26, Concession 4 (Roll No. 9-63) which was assessed on the drainage works, as well as a property on Lot 25, East of Johnson Road, which was not in the assessed area. He said he was led to believe that his Lot 25 property would be drained through the Klijn Drain as a result of the Tribunal order, but that he was later told he would have to sign a petition to have his property on Lot 25 added to the drainage works. He submitted this was unfair as the J. and E. Groszeibl property (Roll No. 9-66) would be drained through the Klijn Drain and Mr. Joe Groszeibl had not signed a petition. He said the proposed drainage works did not drain the total watershed as his Lot 25 property was not drained. He introduced an Ontario Base Map to support his position. Mr. Klijn also suggested that another branch of the drain was required to serve all the land on his Lot 26 property.

Mr. Klijn stated that he should not be assessed a special benefit for the engineering work done on the proposed extension of the drain as he had not signed a petition for this work. He also said that he thought the J. and E. Groszeibl property should share in the legal costs associated with the first Tribunal hearing. He noted that property was to be excluded from the original project by way of a berm.

Mr. Klijn pointed out that Section 11 of the Act requires the engineer to be fair and unbiased. He said that he had not been treated fairly as the engineer was prepared to give the J. and E. Groszeibl property a proper outlet but was not prepared to do that for his Lot 25 property. He said he was treated differently because he is an immigrant farmer.

Mr. Klijn asked the Tribunal to disregard a decision of the Drainage Referee and a letter by Mr. Sid Vander Veen, Ontario Ministry of Agriculture and Food, which the municipality submitted. He noted these individuals were not in attendance at the hearing and could therefore not be questioned.

The letter by Mr. Vander Veen provided his opinion of the drainage area of the Klijn Drain. The attached decision of the Drainage Referee (McKeen vs. Townships of East William and Adelaide, May 31, 1966) set aside an engineer’s report which proposed to solve the drainage problems of lands when the owners had not petitioned for drainage.

In response to questions, Mr. Klijn said he understood the existing tiles on the Lot 26 Klijn property did not have a legal outlet. He recalled meeting with the engineer and Mr. Bradley, Drainage Superintendent, on June 11, 2003 at his farm. He said he believed the engineer had already designed the proposed Johnson Road Branch at that time. Mr. Klijn agreed that he told Mr. Spriet that he thought the installation of a catchbasin would be beneficial and that he had agreed the drain should go to the wet spot on his property, rather than on higher ground next to his fence.

Mr. Klijn also stated that he did not know how far the branch drain he wanted should extend into the Lot 26 Klijn property and also that he was concerned that other landowners’ water would be drained through his land. He said he thought there could be an environmental impact from this water crossing his land.

Mr. Klijn said he was concerned that he was not copied on a letter from the Municipality in which it sought clarification of the Tribunal order or the Tribunal’s reply to this letter. He said he was not concerned with the content of the letters.

Ralph Bradley Testimony

Mr. Ralph Bradley testified that he had been the Municipality’s Drainage Superintendent for 22 years. He said he had arranged the site visit that was held on the Lot 26 Klijn property on June 11, 2002. He recalled that Mr. Spriet, Mr. Klijn and Mr. Klijn’s son were also in attendance and that a three person survey crew also worked that day. He did not recall seeing a map or profiles of a drain. Mr. Bradley said he was familiar with the tile drainage plan for the Lot 25 Klijn property and that he believed the map fairly represents the drainage done on that property.

Mr. Bradley said the first time he heard Mr. Klijn propose that his Lot 25 property be drained through the Klijn Drain was at the June 11, 2002 meeting. He said that special meetings were held August 22, 2002 and November 21, 2002 to discuss the possibility of extending the drain. He said it had been explained to Mr. Klijn that a separate petition was required and at one time Mr. Klijn had said he would probably sign it.

In response to questions, Mr. Bradley indicated that drainage along Johnson Road had been a concern as long as he could remember and that Mr. Klijn had first petitioned for drainage in 1999. Mr. Bradley also said that no municipal drain solves the drainage problem on every acre of land without some work on the landowner’s part. He said he thought Mr. Klijn would need to re-connect tiles or undertake surface ditching. Mr. Bradley said he understood that the drain was not designed to accommodate water from the Lot 25 Klijn property.

John R. Spriet Testimony

Mr. Spriet told the Tribunal he had tried to satisfy Mr. Klijn’s interpretation of the watershed area, which Mr. Klijn understood included the Lot 25 Klijn property. He said the flow from that property and Johnson Road was to the South, as shown on the Ontario Base Map submitted by Mr. Klijn. He said he could have run a 500-metre branch drain to Lot 25 to drain the water west through the Klijn Drain, but Mr. Klijn had not signed the necessary petition. He also noted that he had no confidence in the tile map of the Lot 26 Klijn property as the map showed outlets that did not exist.

Mr. Spriet said he had two choices with regard to assessing the legal costs associated with the first Tribunal hearing. He said he could have charged it in proportion to the original assessments and Mr. Klijn would pay 80% of the bill, or he could split it four ways between the affected landowners. He said he believed splitting it four ways was fairer.

With regard to the outlet liability and statutory benefit assessments, Mr. Spriet said the percentage of the cost of the drain assessed as statutory benefit was slightly higher on Section 2 of the drain, than on Section 1, as engineering work done on the proposed North route and a $1,000 benefit for a special hook-up tile was included in the Section 2 costs. He noted that the benefit assessment per metre of drain was similar on the properties where the drain was to be constructed. Mr. Spriet explained that properties were assessed connection charges where appropriate and properties benefiting from a catchbasin were assessed the cost of the catchbasin. He said higher outlet costs are assessed to landowners using a greater length of the drain.

Mr. Spriet explained that not all of the engineering costs incurred by his firm were charged to the drain, as it is his normal practice to incur some ‘forgivable’ costs in cases like this project.

Mr. Spriet testified that he considered the Municipality’s legal costs a special benefit, as the legal costs were not directly contributing to the working of the drain. In contrast, he included his cost of appearing at hearings in the administrative cost of the drain, as the appeal process was provided for in the Act.

Mr. Spriet also clarified that his survey crew was on the Klijn properties on June 24th, 2002, not June 11th, 2002 and that he did not design the branch drain to the Lot 25 Klijn property until after the survey work was completed..

Mr. Spriet testified that it was appropriate to undertake preliminary engineering work for work requested at a site meeting and that such work has to be assessed to the drain. He said the Lot 26 Klijn property can be drained through the Klijn Drain but the Lot 25 Klijn property cannot be drained through the Klijn Drain. He explained the drain was not designed with enough capacity to drain the Lot 25 Klijn property as no petition was signed to extend the drain.

With regard to the drainage of the Lot 26 Klijn property, Mr. Spriet said it is not his usual practice to design a lateral branch of a municipal drain to start and end on the same property. He said it is more economical for landowners to construct their own tiles on their lands.

Mr. Spriet did not agree that obtaining a legal outlet was a significant benefit in and of itself.

Other Assessed Landowners’ Testimony

Mr. William VanVliet told the Tribunal he thought the assessments on the drain in the engineer’s report were fair. Messieurs David and Joe Groszeibl agreed that the assessments were fair and expressed concerns about the cost of appeals. Mr. Bob Groszeibl said he was pleased with the design of the drainage works.

Summations

Mr. Klijn told the Tribunal he did not want the drain to be extended to the Lot 25 Klijn property. He said he did not think he should be assessed the costs undertaken to investigate that route. He also suggested that the benefit assessment on the J. and E. Groszeibl property be increased as he thought lands of similar acreage should pay similar benefit costs and he thought that all landowners should share in the legal costs of the first hearing. Mr. Klijn also asked that the cost of having his daughter assist him at the hearing be assessed to the drainage works.

Mr. Spriet said the Klijn Drain was not a complicated drain and that he had assessed it out as well as he could, given the information he received. He submitted that the cost of the hearing should not be assessed specifically to any landowner, but should form part of the administrative costs of the drainage works.

Messieurs David, Joe and Bob Groszeibl stated it would be unfair of the Tribunal to order that the costs incurred by Mr. Klijn to attend the hearing be assessed to the drainage works. Mr. Joe Groszeibl noted that they had retained legal counsel to assist at the first hearing and had not been compensated. Mr. VanVliet expressed the hope that this hearing would be the end of the process.

The Findings

The Tribunal finds that the drainage works described in the report are appropriate for the watershed. The Act does not allow for the extension of a drainage works upstream without a valid petition and it is clear that, in this case, Mr. Klijn ultimately decided not to sign a petition which would allow the Lot 25 Klijn property to be drained through the Klijn Drain. The Tribunal has no authority to now order the drain to be extended outside the defined drainage area. With regard to the Lot 26 Klijn property, the Tribunal heard insufficient evidence to show how the design of the Klijn Drain could be improved upon within the limits of the drainage area.

The Tribunal heard conflicting testimony as to how and when the decision to undertake preliminary engineering work on the design of a branch to extend to the Lot 25 Klijn property was made. The Tribunal favours the testimony of Mr. Bradley and Mr. Spriet that the possible extension was requested at the June 11, 2002 site meeting. The Tribunal agrees with Mr. Spriet that it would not have been possible for him to have designed the branch before the land was surveyed later that month. It is a common practice in Ontario for engineers to accept verbal requests from landowners at site meetings and carry out design work based on these verbal requests. As the design work undertaken for the possible extension was undertaken at the request of Mr. Klijn, it is appropriate that he be assessed a special benefit charge for this work.

The Tribunal has carefully reviewed the assessment for construction schedule in the report, the supporting documentation circulated prior to the hearing, and the testimony of the witnesses. While the Tribunal does not agree with every facet of the engineer’s methodology the Tribunal finds the overall results are equitable and are justified. The Tribunal does not accept the view of the engineer that “providing a legal outlet” is not a significant benefit to a landowner.

The Tribunal has decided to deny Mr. Klijn’s request that his costs for attending the hearing be assessed to the drainage works. It is usual for assessed landowners participating in a proceeding before the Tribunal to be responsible for their own costs.

The Tribunal notes that there has now been a thorough airing of all of the issues surrounding the Klijn Drain. The proposed drainage project, which was initiated in 1999, can now proceed.

ORDER OF THE TRIBUNAL

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

The appeal of Mr. Peter Klijn under Section 48 of the Act is dismissed.
The appeal of Mr. Peter Klijn under Section 54 of the Act is dismissed.
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 10th day of April, 2003.