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:

Clear Creek Drain – South Branch

Township of South-West Oxford

Clear Creek Drain – South Branch (RE) 2004 ONAFRAAT 23

STATUTE:

Drainage Act

HEARING:

March 22, 2004

DATE OF DECISION:

June 10, 2004

2004-23

NEUTRAL CITATION:

2004 ONAFRAAT 23

Clear Creek Drain – South Branch

Township of South-West Oxford

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 Gerard Peter Vermeeren, Brownsville, Ron VanDenBrink, Tilsonburg and Marilyn Nicholson, South-West Oxford under Section 48 of the Drainage Act from the engineer’s report on the Clear Creek Drain – South Branch in the Township of South-West Oxford made pursuant to Section 40 of the Drainage Act.

Before:

John Taylor, Vice Chair; Russ Piper, Member; Elwood Quaile, Member

Appearances:

Paul Elston, P. Eng. Engineer who prepared the report

Gerard Vermeeren, appellant

Ron VanDenBrink, appellant

Paul Nicholson, son of appellant Marilyn Nicholson

Wray Ramsey, Drainage Superintendent, Township of South-West Oxford

DECISION OF THE TRIBUNAL

This appeal was heard in Dereham Centre, Ontario, on Monday, March 22, 2004. The appellants initiated an appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) from an engineer’s report prepared under Section 40 of the Drainage Act (the Act).

Ms. Mary Ellen Greb, Deputy Clerk-Treasurer, Township of South West Oxford (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 report dated May 26, 2003 by R.J. Burnside & Associates Limited on the Clear Creek Drain – South Branch Improvement, (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 40 of the Act allows for an engineer to find that a drainage works that has been initiated under the Act should not be completed. Section 40 states:

Engineer's finding, drainage works not required, etc.

40. Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the engineer shall forthwith file with the clerk of the initiating municipality a report to that effect, stating the reasons therefor, the amount of the engineer's fees and other charges and by whom they shall be paid, and the clerk shall forthwith send a notice of the filing of such report, by prepaid mail, to all persons who signed the petition or requisition, as the case may be, and the matter shall not be further proceeded with unless the decision of the engineer is reversed on appeal. R.S.O. 1990, c. D.17, s. 40.

Section 78 of the Act states:

Improving, upon examination and report of engineer

78. (1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report. R.S.O. 1990, c. D.17, s. 78 (1).

Notice to conservation authority

(2) An engineer shall not be appointed under subsection (1) until thirty days after a notice advising of the proposed drainage works has been sent by prepaid mail to the secretary-treasurer of each conservation authority that has jurisdiction over any of the lands that would be affected. R.S.O. 1990, c. D.17, s. 78 (2).

Powers and duties of engineer

(3) The engineer has all the powers and shall perform all the duties of an engineer appointed with respect to the construction of a drainage works under this Act. R.S.O. 1990, c. D.17, s. 78 (3).

Proceedings

(4) All proceedings, including appeals, under this section shall be the same as on a report for the construction of a drainage works. R.S.O. 1990, c. D.17, s. 78 (4).

Preliminary Matter

Mr. Paul Elston P. Eng. advised the Tribunal there were two small errors in the report. He said:

• The property identified by Roll No. 40-14001 is owned by Alphonse Vandenbooek

• The total of the costs should be $24,192.85.

The Background

Mr. Elston, told the Tribunal he had been an engineer practicing in the drainage field for over 30 years, had worked on approximately 500 reports and was familiar with the Municipality.

Mr. Elston stated the Clear Creek Drain – South Branch was constructed under a report that was authored in 1915. He said it was a shallow tile drain which started at its outlet in Lot 19, Concession 9 of the Municipality and traveled in a southerly and westerly route to its upper end.

Mr. Elston said the drain was approximately 3000 metres long, with a flat slope of 0.8 – 1.0 % in the upper end, and with very steep lands abutting the drain. He explained the watershed had several depressional areas, which increased the cost of drainage.

Mr. Elston said his firm was retained under Section 78 of the Act as a result of a ‘petition’ for improvements to the drain by Mr. Roos, owner of the South half of Lot 23, Concession 9 (Roos property). The ‘petition’ requested the replacement of the South Branch of Clear Creek Drain on Lots 19-23, Concession 9. Mr. Elston said he understood the current drain worked, but had a very small capacity.

Mr. Elston explained that Mr. Roos had ultimately withdrawn his request for improvements, after the cost of the project was known, and that he had subsequently prepared a Section 40 report. He explained that he assessed the costs of the work undertaken on the basis of the assessment schedule from the 1915 report, which had been used to assess maintenance costs.

In response to a question, Mr. Elston explained that he had surveyed the drain from the outlet to the upper limit, held an on site meeting and two additional informal meetings, investigated two alternative routes, prepared a preliminary plan and profile for a ¾ inch standard drain and made a rough estimate of assessments. He said the cost of the work would be approximately $260,000 using the least expensive route.

The Issue

The issue before the Tribunal was:

1. Are the assessments to landowners proposed by the engineer fair?

The Evidence

Appellants’ Testimony

Mr. Ron VanDenBrink, owner of Lot 19, Concession 9, told the Tribunal the drain was operating at 100% capacity and running well. He said the proposal to rebuild it would have only improved it from a ½ inch standard to a ¾ inch standard and a grassed area on his property would not be eliminated. He acknowledged there had been blowouts over the years and that these had been repaired. He said he had also installed a hickenbottom on his property. He said there would be little benefit to his property if the drain were to be reconstructed and that none of the landowners except Mr. Roos had wanted the improvement.

Mr. VanDenBrink said the Municipality should pay the cost of the work undertaken to date because landowners were not consulted before an engineer was retained, three separate Drainage Superintendents had been involved in the project, and the project should have been stopped in June 2001, when landowners said it was too expensive to repair the drain.

In response to questions, Mr. VanDenBrink agreed that Mr. Dennis Vermeeren had said an alternate route would be preferred if they were going to have to pay to rebuild the drain, but he did not recall Mr. Dennis Vermeeren asking that the route be investigated.

Mr. Gerard Vermeeren said he and his brothers owned three properties in the drainage area. He told the Tribunal he did not agree with the Act as he thought a majority of landowners should be in favour before work was undertaken. He said he did not dispute the engineer’s bill but did not think he and his brothers should have to pay as they had not asked that the work be done and had not been told at the meetings that costs were being generated. He agreed his brother had suggested an alternative route, but that it was just at an informal meeting and he had not authorized any expenditure for that route.

Mr. Gerard Vermeeren also said:

• He and his brothers had repaired the drain on their properties when there were blowouts.

• Water did sit on the lands in the Spring and he had crop losses due to flooding.

• He was concerned the bill had a 10% interest charge for something they did not even know they would have to pay for.

Mr. Paul Nicholson told the Tribunal his parents owned part of Lot 20, Concession 9. He said only a small portion of their property drained toward the Clear Creek Drain and that most of their land drained directly to the Clear Creek. He said he was also concerned that people were spending landowners’ money without telling them how it was being spent, and was concerned about the interest charge.

Jake Van Gurp Testimony

Mr. Jake Van Gurp said he represented 711458 Ontario Limited and owned the South half of Lot 20, Concession 9. He said he was not objecting to his bill and had no problem with the engineer, but asked if all landowners were assessed for the cost of investigating the second alternative route that was requested by Mr. Dennis Vermeeren.

Engineer’s Testimony

Mr. Elston explained that Mr. Roos’ request under Section 78 of the Act came about because the front of his property was assessed for work on an adjacent drain, but the drainage problems on his property were at the back where there were blowouts and the tiles were blocked with sediment. He said the Drainage Superintendent of the day suggested Mr. Roos petition for a Section 78 report because it was a shallow drain that had previously been repaired.

Mr. Elston said at the on-site meeting it was apparent that there were problems along the length of the drain, not just on the Roos property. He explained it was the practice of his firm to have further informal meetings during the course of designing a drainage works. He said he held a meeting on June 7, 2001 after he had completed his survey of the drain and produced a rough profile. He said it was at that meeting that Mr. Dennis Vermeeren suggested an alternative route to the North. Mr. Elston said a second informal meeting was held on March 28, 2002, after he had investigated that alternate route. He said it was at this meeting, which Mr. Roos did not attend, that he found the project was not likely to be supported by the landowners. Mr. Elston said the current drainage superintendent, Mr. Ramsay, spoke to Mr. Roos after that meeting and Mr. Roos agreed to withdraw his request. Mr. Elston explained that he then believed it was appropriate to write a Section 40 report, rather than incur additional expenses to complete the report requested under Section 78.

With regard to the assessment of costs in the Section 40 report, Mr. Elston explained he looked at the following:

• Section 4 of the Act, which requires that a petitioner for a new drain pays the cost if the petition is withdrawn.

• A previous Tribunal decision in a similar matter where the Section 40 report costs were spread across the landowners using the assessments for the proposed drain contained in the report.

• The assessment schedule in the 1915 report.

• Assessing a portion of the cost to Mr. Vermeeren for the work to investigate the Northern alternative route.

Mr. Elston said he did not believe that Mr. Roos acted frivolously and that he thought the Municipality acted appropriately. He said he did not feel comfortable using the rough assessments he had developed for the project as they were still in the preliminary stage. He explained he opted to assess the costs of the Section 40 report using the assessment schedule from the 1915 report as it had been used to assess the costs of maintenance on the drain, without complaint. He explained he did not have the plan from that report but that assessments are made on the basis of acreage and location on the drain.

In response to questions, Mr. Elston said most of the costs to be assessed were generated before the first informal meeting on June 7, 2001. He said part of a day was spent surveying the northern alternative route, and there were costs associated with the second meeting and the preparation of the report incurred after that date. He reiterated that at the first informal meeting he believed the drain would be reconstructed; it was not until the meeting of March 28, 2002 that he thought the work would not be completed. Mr. Elston said that when the process was started several landowners had identified problems with the drain, but that they were now willing to tolerate these problems. He said in his view all landowners in the watershed participated in the decision not to proceed.

Mr. Elston said it was customary for landowners to sign the same form for Section 4 petitions and requests under Section 78 of the Act. He said he did not think Mr. Roos understood the difference. Mr. Elston said Mr. Roos was entitled to a solution to his drainage problem through the Clear Creek Drain - South Branch. He explained that unlike, Section 4, Section 78 does not require that a majority of landowners or lands be in favour of a drain improvement project. He said the Act deals with the requirements of the watershed, not the individual owners, but that in this case the landowners all ultimately agreed not to proceed.

Mr. Elston said the Nicholson property had been subdivided since 1915 and acknowledged there was some justification in reducing the assessment on this property. He said the problem was in where to put a corresponding increase in assessment.

Drainage Superintendent’s Testimony

Mr. Wray Ramsay told the Tribunal that he had been involved in drainage projects in different capacities since 1964, was a past Executive Member of the Ontario Drainage Superintendent’s Association and was an instructor at courses provided to Drainage Superintendents by the Ministry of Agriculture and Food. He said he became the Drainage Superintendent for the Municipality in 2002.

Mr. Ramsay said he spoke to Mr. and Mrs. Roos in October 2002 and they agreed to withdraw their request for improvements to the Clear Creek Drain - South Branch. He said repairs were made to the drain on the Roos property in November 2002. He was not familiar with any repairs made prior to his taking on his current position in 2002.

Mr. Ramsay said he believed the Municipality followed the correct procedure on receiving a request under Section 78 of the Act. He said it was only in the past two years that Drainage Superintendents had realized that Section 78 requests did not have to be supported by a petition, as are Section 4 requests. He acknowledged that he was trying to change the process to improve communications and discuss costs with landowners before an engineer is hired.

Mr. Ramsey provided invoices submitted by the engineer. He said he was unsure of how the cost of the engineer’s expenses related to the hearing were to be assessed.

Summations

Messieurs VanDenBrink and Vermeeren submitted that the process was flawed from the beginning. They suggested that the full costs be assessed to Mr. Roos because he initiated the project or to the Municipality for not stopping the process sooner, once it became apparent landowners would not support an expensive new drain. Mr. VanDenBrink acknowledged that Mr. Elston had told landowners the drain would be expensive at the site meeting, but said that they did not know how expensive it would be at that time.

Mr. Nicholson said he thought the costs were wrongly apportioned but that he agreed all the costs should be assessed to the Municipality.

Mr. Elston said the Municipality received a request under Section 78 of the Act and acted appropriately. He pointed out the existing drain is shallow, filled with sediment in spots and had blowouts. He said Mr. Roos had approached the other landowners before making his request, that several problems were identified at the site meeting, and that if it had not appointed an engineer the Municipality could have faced claims for damages due to the drain not working properly.

Mr. Elston said he could have completed the Section 78 report without further consultation but that since Mr. Roos was willing to withdraw his request, he felt that a Section 40 report could be used to minimize the cost. He said it would not be fair to penalize Mr. Roos. He said the Municipality did not initiate the project and should not have to pay for it.

Mr. Elston suggested that if the Nicholson assessment were to be reduced it would be logical to put any increased assessment in the same lot.

The Findings

The report which is before this Tribunal is purportedly made under the authority of Section 40 of the Drainage Act and is dated May 26, 2003.

Section 40 contemplates filing of such a report in the following circumstances:

• if a drainage works is not required;
• if it is impractical to build;
• if it cannot be constructed under the Act.

It is apparent to the Tribunal however that the real reason that the proposed project did not proceed is the fact that none of the parties who would be assessed for the cost of improvements to the drain wished to support it. Lack of support does not seem to be a reason for filing of a Section 40 report.

The engineer, Mr. Elston, takes the position that a Section 40 report is warranted in these circumstances since it falls under the heading, “a drainage works is not required …”. We assume that this is based on the fact that the only proponent or requester for the works eventually withdrew its “petition” or “request”. The Tribunal is unable to find any other provision in the Drainage Act that prescribes a procedure for abandoning a project or a request for one and therefore it would seem appropriate to qualify this particular report as one that was made possible by Section 40.

No one is appealing the report for the reason that the project is not proceeding. Rather the appeals center around the distribution of the costs and expenses incurred to the date that the process was stopped. By the time that the May 26, 2003 report was delivered to the municipality, the engineering costs had built up to over $25,000.00. The engineer allocated these expenses among the properties in the watershed. He used as a basis for the distribution of the costs, the same method employed in the last report regarding this drain which was in the year, 1915. The evidence of Mr. Nicholson, supported by Mr. Elston was that the Nicholson property had considerably less acreage in the watershed in 2003-2004 than it did in 1915. It would appear to be more appropriate to assess the costs on an acreage basis.

The most common complaint among the appellants is the fact that the eight or so owners of the properties in the watershed are expected to bear the cost of some $25,000.00 or more for engineering services that were neither requested by a majority of them nor resulted in any improvements to any drainage works. Most of the appellants submitted that there should be no assessment whatsoever put on their respective properties. When asked as to who these expenses should be thrown upon, the answers were that the municipality should pay the entire shot or that the original petitioner (Mr. & Mrs. Roos) should shoulder the responsibility for the same. To make a determination in that regard one has to look to the provisions of the Drainage Act to determine whether the engineer’s report correctly or appropriately apportioned and assessed the cost.

CONSTRUCTION OF A DRAINAGE WORKS VS. REPAIR AND IMPROVEMENT OF A DRAINAGE WORKS

It seems that when Mr. Roos brought his complaint about the situation concerning this drain, he was treated as though he was requesting the construction of a new drainage works and was given a “Section 4 Petition” to have signed. It is not clear whether the municipality knew that this drain was already a municipal drain or whether that fact was later discovered. Nevertheless, generally a Section 4 Petition is used when there is no existing municipal drain in place. A request under Section 78 or any other section for a repair or improvement has no special form of petition or request and it seems that it is a common practice of many municipalities to use the same form whether a works is being requested as a new works or one for work to be done on an existing drain. It is noted that municipal council in its meeting on November 7, 2000 passed a resolution to the following effect: “Council accepts the Petition for Drainage in Lots 19-23, Concession 9 and appoint the firm of R.J. Burnside to bring in a report.” The evidence indicates that Mr. Roos was told to get the consent of the other landowners in the watershed and have them sign the petition as well. On November 7, 2000 Mr. Roos filed the petition without the signatures of any other ratepayers and the evidence indicates that he had tried to obtain the other signatures but no others would sign the petition. Despite this the municipality proceeded with the appointment of an engineer and thus began a long series of bills for engineering expense.

It is recognized that the Drainage Act (in particular Section 74), imposes a duty on the municipality to maintain and keep in repair all municipal drains. Failure to do so could result in significant financial liability to the municipality. Accordingly when the municipality received notice of disrepair from Mr. Roos it had to react and it was reasonable for it to engage an engineer. The first on-site meeting conducted by the engineer was held on January 30, 2001. The evidence indicates that a number of the ratepayers present, mostly those who are appellants today, did not believe that the drainage works required any improvement. It does seem that most of those parties in attendance acknowledged that there were blowouts along the drain but for the most part these could be handled without engineering work. Following that meeting the engineer honestly felt that remedial work was going to be approved or needed and at the request of the municipality he proceeded to prepare an estimate of the costs of the needed project. This entailed doing some field work to get gradients and other necessary information that was not available in the municipal files. Before the second informal meeting was held with the watershed owners, over $19,000.00 in engineering bills had been generated. It is not at all certain from the evidence that when the June 7, 2001 meeting was held, whether this fact of the accumulated engineering bills was brought to the attention of the ratepayers. It seems that at that meeting the estimate of the project’s cost of some $262,000.00 was brought home to the ratepayers. From that meeting it became clear to the engineer there was no support for the project. To quote from his report “the owners present informed us they generally felt that the cost of the improvement was too expensive relative to the benefits that they perceive they would gain”. Despite this, further fieldwork was done to investigate some alternative routes that had been suggested by one or more of the watershed owners. It would seem to the Tribunal that at this point in time, the municipality should have made it clear to the owners of property in the watershed that the engineering costs were piling up and, whether or not the project proceeded, someone would have to pay. We believe that this was the responsibility of both the engineer and the municipal officials. In the end result, by the time the municipality asked Mr. Roos to sign a withdrawal of his petition sometime after the final meeting of March 28, 2002, the engineering costs were at $23,000.00.

In reviewing the provisions of the Drainage Act with respect to allocation of costs, when a works is initiated under Section 4 as a new drainage works, there is substantial discretion in the engineer to assess the costs over the lands in the watershed on an equitable basis. However, when assessing costs relating to the preparation of a report that is either abandoned or where a works is not proceeded with, then the provisions of the Act specifically direct that the expenses be allocated back to the “Petitioners” or other parties who initiated the request for the work.

A report that is obtained at the request of Council under Section 78 where the anticipated works is for a repair or improvement to an existing drain, there is no specific guideline as to who should pay the expenses for a report which is either abandoned or the work is not carried out. Perhaps there was no need to have special provisions in such cases as it is made clear under Section 78 that the procedure for a report under Section 78 is to be the same procedure as would be followed in a regular report for the construction of a drainage works. The provisions of Sections 40, 41 and 42 should be considered. Section 43 puts strict liability for a report procured by petition onto the shoulders of those parties signing the petition. It is a commonly held view among municipalities and engineers that such a procedure is not available when a report is procured or requested under Section 78. However, this panel of the Tribunal believes that the guidelines and procedures that relate to a report procured as a result of a petition under Section 4 also have a bearing on a report procured under Section 78. That it not to say that this panel of the Tribunal is requiring the engineer to assess the costs in this matter upon the petitioner. Rather we believe that Mr. Roos honestly filed his petition or request for a repair or improvement to the drain and that request was not unreasonable. What has been unreasonable is the fact that the municipality engaged an engineer to provide a report which it knew or ought to have known was that such engagement would incur a significant expense. It does not appear that the municipality sent any caution to the engineer to bring in just a “preliminary report” or to give a best estimate of what an investigation into the problem might cost. At this time the municipality already knew that Mr. Roos had canvassed the other property owners in the watershed to join in the petition, but he was unsuccessful. Both the engineer and the municipality should have anticipated that there would be resistance to this project since these other parties were not joining in the request.

As part of a Section 4 process for a new drainage work, the engineer and municipality are required to test and see if a sufficient number of property owners agree that the project is needed or wanted. This is a policy that all municipalities should adhere to whether it is a Section 4 or Section 78 report or otherwise.

While municipal councils are always expected to act prudently when spending public funds raised through taxes, a greater prudence must be shown when committing funds to be raised from only a limited number of ratepayers, such as the Drainage Act allows for. In such cases the municipality is making a decision to spend what are private funds and not tax dollars. In this situation the municipality ought to have been more prudent and cautious in not allowing the engineer to generate more bills. While proceeding under Section 78 a municipality is not specifically required to take the steps for dealing with a report as provided in Sections 39 through to 45 that relate to the filing and adoption of a report, nevertheless the municipality should not ignore those provisions. Included among those is Section 40 which has been previously referred to which gives the opportunity to the engineer to stop the process and to allocate out the expenses and other costs to such parties as he determines.

If it were possible under the provisions of the Drainage Act to assess the municipality and/or the drainage engineer with all or part of the expenses that have been incurred in procuring this report and the cost of these proceedings, the Tribunal would have considered doing so. However, on reading the provisions of the Drainage Act, it does not appear that the Tribunal is empowered to do so. Under Section 40 of the Act, the engineer is given the power to determine “ … the amount of his fees and other charges and by whom they shall be paid.” There is nothing in this Section that suggests that the engineer can require the municipality to pay these costs without recovering them from the owners of property in the watershed. Although the Tribunal has the power to vary an engineer’s report, this panel of the Tribunal does not believe that its power extends to the point that it can require the municipality to bear these expenses itself. Likewise under Section 78 which empowers the municipality to request the report, no specific power is granted to download the costs on the municipality without the municipality in turn apportioning these among the assessed owners in the watershed.

Section 51 of the Drainage Act provides as follows: “Section 51(1): On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, make such order and direct such things to be done as are authorized by this Act or it considers proper to carry out the purposes of the Act.” While this Section gives the Tribunal wide powers, it does not permit the Tribunal to direct things to be done which are not authorized by the Act. The downloading of the expenses incurred in this situation upon the municipality does not seem to be something that the Tribunal is authorized to do by the Act.

It is noted that Section 118 of the Act empowers the Referee to allocate “costs” upon a municipality. While the term “costs” as used in the various subsections of Section 118 seems to relate to “costs arising from proceedings taken under this Act”, it could also be interpreted to include “expenses” incurred for obtaining an Engineer’s Report.

While the Tribunal feels that the municipality and the engineer have badly handled the process in the development of the report under consideration, there is nevertheless a benefit to the lands in the watershed. At least there now appears to be an identification of the watershed boundaries and a finding that the drain is out of repair and could use some maintenance and improvement. None of the owners of property in this watershed seem to want anything to be done to ameliorate the conditions, including Mr. & Mrs. Roos who filed the original request, but who have now withdrawn that request. Although this panel of the Tribunal feels uncomfortable doing so, it has no alternative but to accept the engineer’s recommendation that the expenses incurred to the date of abandonment of the project and costs incurred for this hearing, have to be assessed against the lands in the watershed.

Any party to this appeal who is dissatisfied with this decision may seek advice of legal counsel on whether the decision is correct and whether it could or should be appealed.

ORDER OF THE TRIBUNAL

After careful consideration of the evidence and all other matters, the Tribunal orders as follows:

1. The engineer is to amend the report dated May 28, 2003 by R. J. Burnside & Associates Limited on the Clear Creek Drain – South Branch Improvement so that the assessed owner or Roll No. 40-14001 is to be made out in the name of Alphonse Vandenbooek.

2. The report is further amended to correct the total sum to be assessed so that it should read $24,192.85.

3. The expenses and costs of the report including the engineer expense for this hearing shall be pro-rated among the lands in the watershed on an acreage basis.

4. The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the Section 40 report 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.