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:

Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain

Champlain Township

Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain (RE)

2004 ONAFRAAT 22

STATUTE:

Drainage Act

HEARING:

May 17, 2004

DATE OF DECISION:

June 9, 2004

2004-22

NEUTRAL CITATION:

2004 ONAFRAAT 22

Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain

Champlain Township

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 Allan Mahon, Vankleek Hill, Ontario under Section 54 of the Drainage Act from the decision of the Court of Revision on the Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain in Champlain Township.

Before:

John Taylor, Vice Chair; Murray Cardiff, Chair; Jack Young, Vice Chair.

Appearances:

Neil Levac, P. Eng., Engineer who prepared the report.

Allan Mahon, appellant.

Neil Turner, assessed landowner.

DECISION OF THE TRIBUNAL

This appeal was heard in Alfred, Ontario on May 17, 2004. Parties in attendance at the hearing were given an opportunity to comment on photographs referenced in the engineer’s report dated February 18, 2004 by Levac Robichaud Leclerc Associates Ltd., on the the Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain (Sections 3.1 and 3.3) until June 1, 2004. No submissions were received.

Mr. Allan Mahon appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision dated February 18, 2004 not to vary his assessment on the Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain.

Mr. Robert Lefebvre, Clerk-Treasurer of Champlain Township (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 prepared by Levac Robichaud Leclerc Associates Ltd. on the the Little Rideau Creek Extension/Upper W.J. Douglas Municipal Drain (the Report) parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing.

Statutory Context

Section 54 of the Act states:

(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.

(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.

(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 report by Mr. Neil Levac P. Eng., Levac Robichaud Leclerc Associates dated February 18, 2004 was prepared pursuant to an order of the Tribunal that an Engineer's Report on the Upper W. J. Douglas Municipal Drain dated December 2000 and revised March 2001 be referred back to the Engineer for the purpose of designing the works to include the extension of the Upper W. J. Douglas Municipal Drain from its outlet at Little Rideau Creek, to the Ottawa River.

The extent of work ordered by the Tribunal included the removal of obstructions in the Little Rideau Creek Extension of the Upper W. J. Douglas Municipal Drain to carry the waters to a sufficient outlet to the Ottawa River. The obstacles in the Little Rideau Creek Extension were the cause of upstream flooding in the Upper W. J. Douglas Municipal Drain.

The Tribunal further ordered the establishment of standards for the repair, alteration removal, and installation of culverts or crossings in the drainage works.

The upper and lower portions of the W. J. Douglas Municipal Drain and the extension of Little Rideau Creek Drain, serve several sub-watersheds in the Township of Champlain and the Township of East Hawkesbury.

The Issues

The issues before the Tribunal were:

1. Is the method of assessing the cost of the works properly distributed under the Report?

2. Are the assessments to the Mahon property fairly distributed under the Report?

The Evidence

In his opening statement Mr. Mahon told the Tribunal that his appeal was based on his objection to the cost of assessment against his land and that his property did not benefit from the work being done. Mr. Mahon told the Tribunal that the drain served a housing development and that farmers should not have to bear the cost of any works that benefited a housing development.

Mr. Mahon told the Tribunal that his property, which is at the top of the watershed, was eight km away from the area that was served by the drain.

Mr. Levac P. Eng. told the Tribunal that his experience in municipal drainage extended over 32 years.

Mr. Levac explained to the Tribunal that the initial report on the W.J. Douglas Municipal Drain was prepared in 1927. Mr. Levac told the Tribunal that in preparing a report on the Upper W.J. Douglas Drain, a site meeting was held on May 6, 1998 and an additional meeting was held August 27, 1998. He stated that appeals from that report were heard by the Tribunal on January 16, 1999. Mr. Levac explained that the Tribunal ordered the revision of that report to include maintenance on the lower portion of the W.J. Douglas Municipal Drain. Mr. Levac stated that maintenance work was done on the lower portion of the W.J. Douglas Drain in 2000.

Mr. Levac told the Tribunal that a petition for works on the upper portion of the W. J. Douglas Municipal Drain was submitted on March 12, 2000. He said that there was an appeal to the Drainage Referee (the Referee), heard September 21, 2001 which resulted in the Referee ordering the preparation of a report for the construction of the extension of the Little Rideau Creek from the Upper and Lower W. J. Douglas Drain to carry water to outlet into the Ottawa River.

Mr. Levac told the Tribunal that the assessments in the Engineer's Report on the Upper W. J. Douglas Municipal Drain were appealed to the Tribunal and that the appeal was dismissed. He explained that the Tribunal ordered however, that the report be referred back to the Engineer for amendments to include re-sizing of culverts in the lower portion of the W. J. Douglas Drain and the re-sizing and extension of the Little Rideau Creek portion of the drain to the outlet at the Ottawa River.

Mr. Levac told the Tribunal that the revised report was considered on January 21, 2004 and that the Court of Revision heard appeals on February 18, 2004.

Mr. Levac told the Tribunal that the maintenance schedule for the works was broken down into three separate segments on the drain. He stated that Segment #1 of the drain consisted of the portion from the Ottawa River to Highway #17: Segment #2 consisted of the portion of the works from Highway #17 to Greenlane Road and Segment #3 consisted of the portion of the works from Greenlane Road upstream southward to the extremity of the watershed.

Mr. Levac explained that only eight landowners were assessed benefit for changing culverts. He stated that the cost of changing culverts was assessed proportionately 50 percent against lands where the culverts were installed and 50 percent against lands lying upstream of the culvert installations. Mr. Levac told the Tribunal that assessments against lands for removal of obstacles from the drain were against lands upstream of the obstacles. He stated that the removal of obstructions and the non duplication of maintenance within the sub-water sheds were verified by the respective Municipal Drainage Superintendents. Mr. Levac told the Tribunal that the W. J. Douglas Municipal Drain works watershed was surrounded by approximately 20 other drains.

Mr. Levac told the Tribunal that at the meeting to consider the March 2001 revised report, concerns with assessments were raised by Mr. France who said that an existing culvert on his property was not needed. Mr. Levac said that Mr. Jedynack was concerned that the assessment schedule indicated that he owned only 55 acres when in actuality, he owned 77 acres. Mr. Levac told the Tribunal that with respect to the Mahon property, the boundary of the watershed was reviewed and his property was found to lie within the watershed. Mr. Levac described the Mahon property as being on the south east edge of the watershed at the west side of Highway 34, south of the town of Vankleek Hill.

Mr. Mahon told the Tribunal that the W.J. Douglas Municipal Drain was initially constructed to serve a subdivision, not farmland. He introduced two photographs of the Little Rideau Creek taken May 16, 2004. He submitted that a photo taken looking northward from Aberdeen Road showed water in the drain that entered from his neighbours property.

Mr. Mahon said that he and his wife purchased the farm 33 years ago and that they spent $3,000 to dig the drain which was six feet deep at that time. He explained that the drain is currently one and a half feet deep due to sandy loam soil from his property washing into it. He stated that the culvert under Aberdeen Road is approximately two feet in diameter.

Mr. Mahon told the Tribunal that the drain was not working efficiently and that in February 2004 he requested an inspection of the drain by the Municipality, to confirm his contention that the drain was not functioning well. He said that some landowners who were having culverts installed shared his concerns about the inefficient functioning of the drain. He stated that as a result of the drain malfunctioning, he lost an entire crop of hay in 2003.

Mr. Mahon stated that the assessment against his 100-acre farm property is $1,200 compared to some residential lots with homes which were assessed as little as $2.50. He stated that he does not understand the rationale for such a variation in assessments, particularly as the Little Rideau Creek Drain is too small to function effectively. He said that there are several springs on his neighbours' property that gush water which flows over his property and into the Little Rideau Creek. He explained that water from his land only flows into the drain in the Spring and that his land is sandy loam and does not retain water. He stated that he has 60 acres of workable land that is not tile drained. Mr. Mahon told the Tribunal that his property is located half a mile north of the limit of the Little Rideau Creek Watershed. He said that none of the ditches that lie along Highway 34 are functioning properly and that prior to the installation of a culvert under Highway 34 water ponded on his property.

Mr. Mahon told the Tribunal that his property does not benefit from the placement of culverts in any portion of the Little Rideau Creek Drain to accommodate the W. J. Douglas Municipal Drain. He said that the drain had not been maintained for approximately 20 years and that he is the only landowner who wishes to clean out the Little Rideau Creek Drain. He explained that he could clean out the drain for one eighth the cost of the report. Mr. Mahon told the Tribunal that he should not be assessed on the drain because he did not petition for the proposed works and that there will be no benefit to his lands if the works are completed.

In response to questions Mr. Levac told the Tribunal that:

• He calculated the assessments using a formula based on acreage and the length of drain used.

• The drain is divided into three segments, there is an assessment schedule for each segment to avoid duplication of maintenance assessments to downstream landowners.

• Assessments are broken down to reflect the portion of the works assessed against lands in each Municipality. Mr. Mahon is at the extremity of the watershed upstream so that his is assessed on maintenance for the whole drain. Mr. Mahon's property is assessed in the same manner as all the other properties on the drain.

• The report provides a breakdown of assessments that include benefit, and outlet liability.

• The original petitioners on the W. J. Douglas Municipal Drain were landowners Reid, Schaerer, Berthiaume and Lapensee. Landowners Reid and Lapensee are farmers.

• He is not aware of any plans for the construction of a subdivision that would be serviced by the Little Rideau Creek Drain. Under his report the works are not designed to accommodate future development.

• The Little Rideau Creek was a Municipal Drain under a report prepared in the 1970's. The Little Rideau Creek was a natural watercourse prior to its extension to the W. J. Douglas Drain.

• The installation of culverts in the Little Rideau Creek Drain extension is assessed at 50 percent against landowners where culverts are to be located and 50 percent against the landowners upstream of the culvert installations.

• Half the cost of installing culverts is the overhead cost associated with design, financing and administration; this cost is included in the assessments again upstream lands.

• The watershed for the proposed works encompasses approximately 20,000 acres. Maps of the watershed were prepared using data obtained from Ministry of Natural Resources.

• Specific hydraulic calculations and cross sectional data was obtained for each culvert location on the Little Rideau Creek Drain.

• He is familiar with portion of the watershed that Mr. Mahons' property drains into.

• None of the work under the report is to proceed until after July 31, 2004 by order of the Department of Fisheries and Oceans.

• The cost of constructing the works has been tendered and prices are 10 percent less than estimated in the report. As a result, the assessments will be adjusted to reflect the savings.

• The workmanship of the drain is warranted for one year. The installation of culverts is a design feature intended to correct problems with flooding.

• The Upper W. J. Douglas Drain has been a Municipal Drain under an engineer's report for 33 years.

• At the time of the Tribunal decision dated July 16, 2002, the only obstructions in the drain were a beaver dam and a rock waterfall in the lower segment closest to the outlet. The beaver dam was removed but it is a recurring obstacle.

• The outlet assessments for the lower portion of the drain were calculated based on the costs of preparing the report, the outlet liability and the necessity of removing obstacles.

• The total cost of installing culverts in the works is $75,550. The total tendered cost of the works is $82,136.06 which includes the installation of rip rap, seeding and mulching and the removal of obstacles.

• Approximately 50 percent of the cost of the works is attributed to overhead, 40 percent of the cost to culvert installation and 10 percent to the removal of obstacles.

• The drainage contractor has been advised to salvage re-useable rip rap where possible during construction.

• Lands where culverts will be installed are fairly assessed at 50 percent of the cost of the culverts because the assessments are based on the amount of land owned within the watershed.

• In his report the assessments for the culvert installations were intended to be based on the actual cost of construction and not pro-rated over the entire project.

• It is not known who installed the existing culverts.

• It could be said that all lands within the watershed are contributing to the installation of the culverts.

• The size of the culverts increases as the drain progresses northward, downstream.

• Champlain Township has a policy that any assessment under $10 is not paid by the landowner. The minimum $10 assessment policy is not part of the proposed by-law under the report.

• The cost of mailing a copy of the report to the numerous landowners within the watershed was prohibitive therefore pursuant to the Tribunal order of July 16, 2002 the report was made available to the public at the Municipal offices of Hawkesbury and Champlain Townships.

The Findings

The Tribunal finds that the Engineer has used an acceptable method to distribute the costs that are allocated to the Outlet Assessments and that the appellant was treated in the same manner as the other landowners within the watershed. In this respect the appeal by Mr. Mahon is denied, however, he will receive some relief on his Outlet Assessment, as will the other landowners assessed for Outlet, because of the re-allocation of a portion of the Engineering and Overhead costs from the Outlet Assessment category to the Special Benefit category as described in the following paragraphs. This reallocation should reduce the Outlet Assessments by approximately 10 to 12 percent .

The Report does not indicate whether the final Benefit Assessments for culvert construction are to be prorated as part of the total cost of the project or assessed as a Special Benefit Assessment based on the actual cost of each culvert. The Engineer testified at the hearing that it was always his intention to determine the final Benefit Assessments for the culverts based on the actual construction cost of each culvert. The Tribunal finds this procedure reasonable and will order this clarification.

The breakdown of costs in the Report is as follows: Culvert construction (items 4 to 11) $75,150 (42 percent), Channel improvements (Items 1,2,3,11 & 12) $ 12,500 (7 percent), Engineering and Overhead costs (items 14 to 21) $92,280 (51 percent).

Fifty percent of the culvert construction costs are assessed to the affected landowners as a Benefit assessment. The remaining 50 percent of the Culvert costs, the channel improvement costs, and all of the Engineering and Overhead costs are distributed over the watershed as Outlet Assessments.

The Tribunal accepts the Engineer’s testimony that the major obstructions in the channel are the existing culverts that were constructed by the landowners and are of insufficient capacity. In addition, a significant portion of the engineering costs on the project related to the “ Hydrologic and Hydraulic Analysis" of the Little Rideau Creek (Section 4 of the Report) which relates directly to the design of these culverts.

The Tribunal finds that while the principle of assessing 50 percent of the culvert costs to the affected landowner and 50 percent to the upstream landowners is a generally accepted practice on most projects, on this project in determining the actual cost of each culvert, a reasonable amount of the Engineering and Overhead costs should be included in the actual cost of each culvert. The Tribunal will order that 33 percent of the Engineering and Overhead costs (items 14 to 21) shall be pro-rated over the actual culvert costs and the remaining 67 percent prorated with the Outlet Assessments.

ORDER OF THE TRIBUNAL

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

1. The appeal by Allan Mahon is denied.

2. The Benefit Assessments for culverts shall be Special Benefit Assessments based on the actual cost of each culvert. The actual cost of each culvert shall include supply and installation of the culvert, erosion protection, fill and gravel, and a prorated share of 33 percent of the Engineering and Overhead costs.

3. Each affected landowner shall be assessed a Special Benefit, 50 percent of the actual cost of their culvert. The balance of the actual total project cost shall be prorated over the watershed in proportion to the Outlet Assessment in the Report as revised February 18, 2004.

4. Final assessments of ten dollars or less shall be paid out of the general funds of the affected municipalities.

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 Act.