Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone Road West Guelph, Ontario
Tribunal d’appel de l’agriculture,
de l’alimentation
et des affaires rurales
N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email:Tribunal@OMAF.gov.on.ca
1, chemin Stone Ouest
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Email:Tribunal@OMAF.gov.on.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Szockyj Drain
Town of Niagara-on-the-Lake
Szockyj Drain (RE) 2004 ONAFRAAT 19
STATUTE:
Drainage Act
HEARING:
April 28, 2004
DATE OF DECISION:
May 20, 2004
2004-19
NEUTRAL CITATION:
2004 ONAFRAAT 19
Szockyj Drain 2003
Town of Niagra-on-the-Lake
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 Heinz E. Probst and Christine L. Probst. Niagara-on-the-Lake, Ontario 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 Szockyj Drain in the Town of Niagara-on-the-Lake.
Before:
John Taylor, Vice Chair; Jack Young, Vice Chair; Russ Piper, Member
Appearances:
Thomas Richardson, counsel to the appellants, Heinz and Christine Probst
Kent Schachowskoj, P. Eng,, engineer who prepared the report
Heinz Probst, appellant
Henri Bennemeer, Drainage Superintendent
Nick Aragona, Deputy Director of Public Works
DECISION OF THE TRIBUNAL
This appeal was heard in the Council Chambers of the Town of Niagara-on-the Lake on April 28, 2004. Mr. Heinz Probst and Ms. Christine Probst appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act) from the January 7, 2004 engineer's report by Weibe Engineering Group Inc. on the Szockyj Municipal Drain Relocation in the Town of Niagara-on-the-Lake (the Report) and from the decision of the Court of Revision.
Ms. Holly Dodd, Town Clerk, Niagara-on-the-Lake, (the Municipality) performed the duties of the Clerk of the Tribunal.
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the proposed drainage works parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing and notice of the continuation of this hearing.
Statutory Context
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).
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).
The Background
Mr. Kent Schachowskoj, P. Eng. (the Engineer) told the Tribunal his firm had been retained to prepare a report to relocate the Szockyj Municipal Drain around a newly developed urban area which was to be drained by storm sewers, incorporate previous improvements made to the drainage works, and, to investigate the possibility of incorporating the drainage works as part of a municipal irrigation system.
Mr. Schachowskoj said he evaluated a number of options before settling on the design proposed in the Report. The work proposed included:
Abandoning the portion of the drain that runs through lands slated for development.
Constructing a new section of drain comprised of open ditches and partially enclosed ditches.
Upgrading and extending the existing East Branch of the drain.
Improving culvert crossings and deepening sections of the drain.
Cleaning out the drain.
Mr. Schachowskoj said he recommended a closed drain on sections of the drain where an open ditch would be more than 1.5 m deep, as he wanted to maintain 2 feet of cover on the drainage pipe. He said a shallow swale would be constructed on top of the closed sections of drain; he preferred to place these in the same location as the drainage pipe for ease of construction. Mr. Schachowskoj explained he agreed to install a closed drain in other locations, but charged half the cost to the affected landowners. He said the drain would be 1.2 to 1.4 metres deep on the appellants’ property.
Mr. Schachowskoj said that open drains running along the edges of adjoining properties would be centered on the property lines and that spoil would be leveled on the working side of the drain. He said detailed construction specifications would be written at the time of tendering the work.
Mr. Schachowskoj said he provided allowances where the work required widening of the existing drain and working space, and where a new drain was to be installed. He said he also provided allowances for damages. He provided a working space corridor of 6 metres from either side of the drain.
Mr. Schachowskoj explained that the area of the watershed to be drained through the Szockyj Municipal Drain was to be reduced by 28.29 ha and he had assessed the lands to be removed as a Block Assessment (Section 25). He said the cost of relocating the drain was assessed to the block, and no future maintenance would be charged to these properties. He said all costs associated with road improvements were assessed as a special benefit to the affected road. He said half the cost of private culverts was assessed to individual landowners.
Preliminary Matter
Mr. Henri Bennemeer told the Tribunal the Court of Revision had reduced the assessments for outlet liability on specific properties and put a corresponding increase in the benefit assessment of the properties covered by a Block Assessment. He pointed out this would complicate the assessment of maintenance charges and asked the Tribunal if it could resolve the matter.
The Issues
The issues before the Tribunal were:
Should the design of the proposed drainage works be changed such that no new drainage works will cross the property identified by Roll No. 12-83-05 (Probst property) or that part of the proposed new Main Drain be a covered drain on this property?
Are the allowances provided in the Report to the Probst property and to the property identified by Roll No.12-84 (C. Probst property) appropriate?
Are the assessments charged to the Probst property and the C. Probst property appropriate?
The Evidence
Design Issues
Mr. Heinz Probst told the Tribunal his family had farmed the Probst property since 1959 and that he and that he and his sister purchased it in 1992. He said the land was in fruit trees – peaches, apricots, plums and pears - and grape vines.
Mr. Probst pointed out that the existing Szockyj Main Drain (now the West Branch) bisects the Probst property and that the Report calls for it to be bisected a second time. He submitted this was unfair as the southernmost portion of the farm would be effectively cut-off. He explained that the single culvert proposed in the Report was inadequate as he needed to cross the land where the new drain was to be relocated in several locations due to the way his trees were laid out. Mr. Probst said that in addition to land lost where the new branch of the drain crosses his property, he would have to remove trees in order to have turning space for his equipment. He estimated 70 to75 mature fruit trees would need to be removed if the drain was constructed as designed, and only 11or12 trees would need to be removed if the drain were enclosed.
Mr. Probst said he would have to relocate one row of grapes if the new Main Drain were located on the property line between his property and the Mori property (Roll No. 12-85). He said the engineer had indicated to him that the ditch could be built on the Mori property. If that were the case he would not have to move his grape vines.
Mr. Probst said he did not agree that the drain should be located along the route selected by the engineer and did not think that other options had been fully explored. He suggested that the drain be routed along the road allowance adjacent to the Concession 4 Road. He said this was a shorter and less disruptive route.
Mr. Probst also testified that he did not think the proposed new East Branch of the drain would carry much water from the south end of the watershed. He acknowledged he had not surveyed the area but based this opinion on his observation of water flow. He agreed there was tiled land in this part of the watershed.
Mr. Schachowskoj testified that in his opinion the route he selected was the optimal route for the drainage works. He said there would be difficulty with the route proposed by Mr. Probst as constructing in the road allowance was more costly, there are difficulties with utilities in an open ditch, and the area was to be more urbanized in future due to ongoing development along the road.
Mr. Schachowskoj said he did not recommend that the drain be closed on the Probst property as an open drain would be less than 1.5 metres deep. He said in an attempt to resolve the dispute he had agreed that it was possible to install a closed drain, but that this was not ideal as it would be a shallow pipe once a swale was installed over top of it. He agreed that the swale could be offset but said this would mean digging in two locations, taking more land for working space and potentially removing more trees.
Allowance Issues
Mr. Probst said he would be losing both land and fruit trees if the drainage works proceeded as designed and said he was not being adequately compensated.
Mr. Probst said most of the affected trees were 35 year old pear trees and all but one still produced 80 to120 litres of fruit per year. He said his gross income per tree was up to $100 per year. He said a neighbour received $500 per tree when a gas line caused some of his peach trees to be destroyed.
Mr. Probst said he would lose 0.26 ha of land to the new drain and would also have a more difficult property to farm. He said the compensation for land was not fair because the engineer used the same land value rate for his fruit farm as he did for a mushroom farm with bare land and roadways on it.
Mr. Schachowskoj said he received an estimate of land value from a realtor in December 2002, checked that against assessed values of the lands in the watershed and determined that lands were worth $17,500 per acre. He said he compensated landowners for 100% of the land value where a new drainage ditch was proposed, or an existing ditch widened. For working space, he explained he provided an allowance of 25% of the land value under Section 30 of the Act, and 25% of the land value under Section 29 of the Act, on the working side only. He confirmed that no immovable structures or trees could be put in the working area but said the land could otherwise still be used by the landowner.
Mr. Schachowskoj said he did not provide a separate allowance for trees destroyed as his land value estimate was for properties planted with trees, and he reasoned that if the land were to be sold it would be sold by the acre, not by the tree. He agreed that the Probst property met the criteria looked at by the realtor in that it was fully planted with reasonable quality trees and was under-drained.
Assessment Issues
Mr. Probst testified that the Probst property was 20-21 acres (8.5 ha) but that 9.25 ha were assessed on Main Drain, 1.06 ha on the East Branch and 4.06 ha on the West Branch. He said 0.37 ha of the C. Probst property was assessed on the Main Drain and 0.25 ha on the West Branch but the property was only one acre. He said the amount of land assessed on the drain was larger than the properties in question.
Mr. Schachowskoj said these issues were raised with the Court of Revision and pointed out the Court of Revision had reduced the assessed area of the Probst property to 8.54 ha from 9.25 ha. It was also explained that in assessing costs it was common for engineers to spread the cost of each length of a drain over the properties, or portions of properties, that will drain into or through that length of drain. When a property drains through a branch drain into a main drain, the property is assessed part of the cost of the branch, and part of the cost of the length of the main drain that it uses.
Mr. Probst also took the position that the Probst property and C. Probst property should not pay any part of the assessment of the proposed drainage works. He testified that the Szockyj Drain as currently constructed was working well. He said if the proposed Main Branch of the drain had to cross the Probst property it should be enclosed at no cost to the landowners. He said the drain was being enclosed on the Hunter property (Roll No. 12-77-01) and it was assessed only 25% of the cost of the closed drain. Mr. Probst said the people who wanted the drain relocated should pay the full cost of relocation.
Mr. Probst said he did not agree that his property would benefit from the proposed new drain. He said the south part of the property already had adequate drainage as the land was higher than the neighbouring property (Lot 12-85, Mori property) and drained through existing private ditches. He said he had no intention of tiling this part of his property but acknowledged a new drain could theoretically provide an outlet for tiles, if it was deep enough.
Mr. Schachowskoj explained that:
The cost of all ditch and culvert works on the affected roadways were charged to the Municipality’s Road Authority as a special benefit.
The cost of cleaning out the drain and erosion control was assessed as outlet liability.
The cost of work to be undertaken to extend an irrigation main was assessed to the Mori property.
25% of the cost of closed drains was assessed to the owners of the land where the covered drain is located.
It was proposed that 50% of the cost of enclosing a section of drain the did not meet the 1.5metre depth criteria be assessed to the owners of the land where the owners now wanted it enclosed.
The cost of investigating alternative route options was assessed to the Municipality’s Road Authority.
Any maintenance or cleaning of existing sections of drain to be assessed on an outlet basis to users of the drain.
All remaining costs were assessed to the block of land that was being developed and removed from the watershed.
Mr. Schachowskoj explained that outlet charges were prorated based on acreage, land use and length of drain used by each property. He said he used a runoff factor of one for land that was forested or tiled out of the watershed, two for worked land and eight for roadways and developed areas.
Mr. Schachowskoj explained he assessed benefit according to the length of properties that abutted the drain, and charged a benefit for culverts. He said the Probst property would benefit from improved surface drainage and an improved outlet. He confirmed that he did not differentiate between types of users of the drain.
Mr. Probst also testified that water was still entering the Szockyj Drain from the new subdivision and said if these lands were going to use the drain they should continue to pay into it. He also said that people who used the drain for irrigation should have to pay more than those who did not.
Staff of the Municipality explained that undeveloped lands in the subdivision were still draining through the old drain, but that developed properties were draining through the new sewer system. It was estimated that 90% of the lands would be developed within one year. Mr. Nick Aragona said access to the drain would be cut-off when development was completed. It was explained that the Municipality planned to recover the block assessment portion of the costs through the use of development charges.
Summations
Mr. Richardson submitted the engineer had not adequately considered alternative routes for the proposed drainage works. He said the route proposed would significantly impact the appellants’ farming operation which was already bisected with one drainage ditch. He asked that the Tribunal order the drain to be constructed on another route. He argued that if it was to cross the appellants’ farm than it should be a closed pipe and the appellant should not pay any portion of the cost of enclosing the drain. He said his clients had not asked for improved drainage and argued that the only reason for the proposed drainage works was to facilitate the development of a block of land.
Mr. Richardson also argued that the allowances provided by the engineer did not reflect the appellants’ losses of land that will no longer be able to be used for trees, and the lost income from the trees. He said owners of less valuable land were to be compensated at the same rate as the appellants, and he submitted this was unfair.
Mr. Schachowskoj said his firm did examine a number of other alternative routes for the drain and these were presented to landowners at a meeting in December 2002. He said the route that was selected was what he believed was the most feasible. He asked that the design in his report be endorsed by the Tribunal.
Mr. Schachowskoj said he calculated assessments in a consistent and fair manner. He suggested that if the Tribunal were to order a closed drain on the Probst property that the landowners be assessed some of the cost, to be consistent with the treatment of other landowners on the drain. He said 25% of the costs would be fair in his view, but that 10 to15% would not be out of line.
Mr. Schachowskoj submitted the allowances were calculated a consistent manner using a land value based on an independent expert opinion.
On the matter raised by Mr. Bennemmeer, Mr. Schachowskoj said the problem could be resolved if the Tribunal were to order that the variations to his assessments contained in points 1, 3, 4 and 5 in the Court of Revision’s pronouncement which were applied to the block assessment, be applied to the Line 2 road outlet assessment instead.
The Findings
Design Issues
On the question of the route the relocated drain should follow, the Tribunal finds that the route recommended by Mr. Schachowskoj in the Report is the appropriate route for the drain. The Tribunal accepts his expert opinion that routing the drain in the road allowance of he Concession 4 Road is not practical on the basis of costs. As well, the Tribunal is concerned that placing the drain in that location would provide no benefit to properties located to the East of Concession 4 Road. The Tribunal also finds construction of a deep drainage channel on a road allowance is a safety hazard and should be avoided where feasible.
With respect to the design of the New Main Branch of the drainage works where it crosses the southern portion of the Probst property, the Tribunal finds that an open ditch design, as recommended by the engineer, is not justified because of the adverse and detrimental effect on that property. The Tribunal will order that the 67-metre length of the drain that crosses the Probst property shall be incorporated in a closed drain. The engineer is to consult with the property owners in question in considering the exact location for this portion of the closed drain and the overflow swale in making his final determination as to the route.
The Act requires that the Report contain plans, profiles and specifications of the drainage works. Mr. Schachowskoj indicated that he intended to include detailed specifications in the documents used to tender the contract for construction of the drainage works. That approach is not appropriate as the affected landowners have the right to know what work is planned on their properties before the Report is adopted in a municipal by-law. The Tribunal finds that detailed specifications of the proposed work showing location of the drain with respect to property lines, the location of spreading of excavated material and a description of the work on each property should form part of the Report in accordance with Subsection 8(1)(a) of the Act.
While other landowners on the drainage works did not appeal, the Tribunal does think the drainage project could be improved if other sections of the drain were to be enclosed. The Tribunal recommends that the engineer allow landowners on the West Branch to notify him by a specific date if they would like the length of the drain on their properties to be enclosed. Also, the Tribunal recommends that that the engineer consult with the Municipality and the landowners on the south side of Line 2 Road between Station 1+690 to 1+884 to see if they support having that section of the drain enclosed.
Allowances Issues
Mr. Richardson argued that the Probst property was superior to other lands in the watershed and the engineer should have calculated the allowances for this property using a higher property value than for neighbouring lands. The Tribunal was persuaded that there are significant differences in the agricultural lands in the watershed and agrees that each property needs to be considered on its individual merits. The Tribunal also agrees with the appellants’ position that allowances should be paid for the damage to or loss of productive fruit trees.
The Tribunal will order the engineer to revisit the allowances provided in the Report giving consideration to actual land use, whether the drain is closed or open and the damage to crops and fruit trees.
Assessment Issues
The section of the new works between Station 1+073 to Station 1+680 is a new drain at a new location entirely on private land. This new location is to facilitate the relocation of the drain from the developing nearby urban area. That area which is to be relieved of the burden of carrying the drain, should bear the lion's share of expenses related to the relocation.
The appellants take the position that they will be receiving no benefit from the proposed drainage works and should therefore not be assessed any of the costs. The Tribunal disagrees with that view. The Tribunal finds that the appellant’s property will benefit from:
Improved drainage;
Opportunities to implement additional random or systemic tiling;
Opportunity to participate in any private irrigation scheme using the drain or a future municipal irrigation scheme.
- While the appellants feel that this relocation onto their property is more of a burden than a benefit, it is common in most drainage reports that lands abutting a new drain are deemed to receive an abutting benefit. In this case the Tribunal will direct the engineer to revise his report so that the assessment of benefit to the appellants’ land shall not exceed 15% of the cost of works that abuts the Probst property.
Mr. Schachowskoj testified that costs associated with a private irrigation system that uses the Szockyj Municipal Drain were assessed as a benefit to the Mori property. The Tribunal finds the engineer should record this as a special benefit to separate it from the assessment for drainage.
The Tribunal finds that the proposed Block Assessment against the development lands is unclear and should be clarified in a revised report. The Tribunal notes the approach outlined in the Report must be consistent with the practice that the Municipality subsequently follows. The Tribunal notes there are problems with using Section 25 of the Act to assess the costs of this drainage works to the lands under development as Section 25 contemplates sharing the burden on a Property Assessment value basis rather than a drainage Outlet Assessment basis. Section 25 assessments work well in a developed area however there are problems when the properties are at various stages of development. The Tribunal finds the approach taken by the Municipality – to pay for the drain relocation through development charges may be more equitable but the Engineer should describe in detail the method to be used by the Municipality to distribute the Block Assessment amount.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
The Council of the Town of Niagara-on-the-Lake is directed to refer the Report back to the engineer for reconsideration of the project and in particular the following items: i) The 67-metre length of the Main Branch of the drain that crosses the Probst property is to be designed as a closed drain. The engineer is to consult with the landowners before determining the final location of the closed drain, and the shallow swale, if needed, on this property. ii) Detailed specifications of the proposed work showing the location of the drain with respect to property lines, the location of spreading of excavated material and a description of the work on each property is to be included in the Report. iii) The Benefit Assessment of the cost of the 67 metre enclosed drain on the Probst property and to any landowners on the section of drain upstream of Station 1+073 to Station 1+680 shall be in the 10 to 15% range. iv) The engineer is to revisit the allowances provided in the Report giving consideration to actual land use, whether the drain is closed or open and the damage to crops and trees. v) The costs assessed to the Mori property related to a private irrigation system are to be assessed as a special benefit. vi) The methodology for assessing costs to the properties located in the block of land under development is to be revisited and clarified in the Report.
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 20th day of May, 2004.