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:

Tulpin Municipal Drain

County of Norfolk

Tulpin Municipal Drain (RE) 2004 ONAFRAAT 33

STATUTE:

Drainage Act

HEARING:

September 14, 2004

DATE OF DECISION:

October 4, 2004

2004-33

NEUTRAL CITATION:

2004 ONAFRAAT 33

Tulpin Municipal Drain

County of Norfolk

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 Milton Smith, Delhi 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 Tulpin Municipal Drain in the County of Norfolk.

Before:

John Taylor, Vice Chair; Jack Young, Vice Chair; Mary Field, Member

Appearances:

John D. Vallee, P. Eng., engineer who prepared the Report, representing the municipality

Bryon Wiebe, P. Eng. representing the appellant Milton Smith

Milton Smith, appellant

Julien Deplancke representing Glen Tulpin

Peter Bryan-Pulham, Drainage Superintendent, witness

DECISION OF THE TRIBUNAL

This appeal was heard in Langton, Ontario on September 14, 2004. Mr. Smith appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) with concerns about the allowance provided to one of his properties, the design of the drainage works and the benefit of the drainage works relative to its cost. He also appealed the assessment to one of his properties under Section 54 of the Act.

Jill Ostrowercha, Drainage Clerk, Norfolk County (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 Tulpin Municipal Drain, prepared by G. Douglas Vallee Limited, dated January 9, 2003 and revised August 29, 2003 (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

Subsection 48(1) of the Act states:

Appeal to Tribunal

48.(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

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1).

The Background

Mr. John Vallee told the Tribunal he was a civil engineer licensed to practice in 1990. He said he had worked in the land drainage field for approximately 10 years and had completed approximately 15 reports under the Act.

Mr. Vallee explained the Tulpin Drain was a petition drain under Section 4 of the Act. He said the original site meeting was held in March 1997 but there had been a number of informal meetings since that date in an attempt to satisfy all landowners in the watershed. He explained landowners were not happy with his original design, which carried water from a road allowance to the north through farmland to outlet in Mud Creek. He said the road authority decided to re-route that water down the road allowance to Mud Creek and that this reduced the size and cost of the proposed Tulpin Drain. He said he also made changes to the design when a landowner tiled some land away from the drain, and the project was changed from an open to a closed drain at the request of the appellant.

Mr. Vallee said the final design was a 12-inch diameter closed tile drain that was 300 m long. He said the proposed drain was to start on the G. Tulpin property (Roll No. 20-360), travel through the Smith property (Roll No. 20-359) and outlet to Mud Creek. Mr. Vallee explained that run-off from upstream properties was eroding the G. Tulpin property. He said the Tulpin property had historically drained through an open swale on the Smith property but that it had filled in over time causing tile blowouts on the existing older tile drains.

Mr. Vallee told the Tribunal that there were five landowners in the watershed and he assessed outlet liability on the amount of hectares each property had in the watershed. He said the lands were all agricultural so he did not vary the run-off coefficient. Mr. Vallee said he assessed a special benefit of $300 to the Everest property (Roll No. 20-288) as the cost of plugging an existing tile to accommodate the landowner’s re-routing of his tiles away from the Tulpin Drain. He said the Smith property (Roll No. 20-359) was assessed a special benefit of $1,100 as extra engineering costs were incurred to accommodate changes requested by Mr. Smith. He said the Tulpin property was assessed a benefit for improved drainage.

Mr. Vallee said that although land used for the drain was not being purchased, he calculated an allowance for the Smith property based on a $2,000 per acre land value estimate that he had used in other reports in the area. He clarified the allowance was for right-of-way pursuant to Section 29 of the Act.

In response to questions, Mr. Vallee also stated:

• This was primarily an outlet drain; that is why most of the cost is assessed as outlet liability.

• There were bush lots with approximately 10 acres on the Smith property and approximately 20 acres on the Tulpin properties.

• The Municipality had already completed the re-routing of water to Mud Creek along the road allowance. Landowners reported that this considerably reduced the flow of water across the Tulpin property.

• He did not include construction specifications in his report; he now knew that the Act required that the specifications be included.

• The Smith property would benefit from a closed drain. An argument could be made that this property should have been assessed a portion of the cost of the drainage pipe, as well as engineering costs.

• The bush land is swampy and there is no defined channel through the bush.

The Issues

The issues before the Tribunal were:

1. Should the design of the Tulpin Drain be modified to maintain an existing driveway culvert and provide a gravel driveway on the Smith property (Roll No. 20-359)?

2. Are the allowances provided to the Smith property appropriate?

3. Are the assessments of costs to lands appropriate?

4. Is the maintenance schedule in the Report equitable?

The Evidence

Design Issues

Mr. Bryon Wiebe told the Tribunal he had been an engineer since graduating in 1975 and had personally prepared 200-300 reports under the Act. He said the appellant, Mr. Smith, did not object to the Tulpin Drain traversing his property but objected to the removal of a culvert that provided easy access to a portion of his farm.

Mr. Milton Smith told the Tribunal he had farmed his land for 51 years. He said he had no objection to water from upstream lands crossing his land and said it had done so through a grassy swale for several years, but that changes in cropping practices caused the swale to fill with silt. He explained he had a culvert to allow him to cross the existing swale. He said it did not overflow except when on one occasion there was a 4-inch rainfall. He said without the culvert he would have to drive around a longer route to access part of his farm. He said the land had been in pasture in the past but was currently cropped, except for the grassy swale. He explained he did not drive through the grassed waterway.

Mr. Smith said he did not want the existing swale on his property deepened and preferred that the drain be constructed as a closed tile drain. He said he did not mind if the drain was an open drain through creek flats on the lower end of his property, which were not farmed.

Mr. Valle said it would not be feasible to incorporate the existing driveway culvert on the Smith property as part of the Tulpin Drain as it was not deep enough. However, he said it could be incorporated if the tile drain was routed around the laneway culvert.

The Municipality’s drainage superintendent, Mr. Peter Bryan-Pulham, said he was concerned with the age of the existing culvert and did not want to have to go back a few years after constructing the drain to replace the culvert. He suggested that if it were to be incorporated that a new culvert be installed when the Tulpin Drain is constructed.

Mr. Vallee said the entire drain could be constructed as an open drain. He said there would be no problem designing an open drain through the creek flats at the lower third of the drain. He agreed that water could also be allowed to make its own way through the flats to Mud Creek.

Allowances

Mr. Wiebe submitted an estimate of local land value prepared by Peninsula Realty. The realtor estimated farmland was worth $2,300-$2,600 per acre in this area of Norfolk County. Mr. Wiebe said he had no objection to the acreage calculation of Mr. Vallee (0.6 ha on Smith property) but suggested the allowance be calculated using a land value of $2,450 per acre. He also said he thought the Smith property should receive allowances under Sections 30 and 31 of the Act. He said Mr. Smith had maintained the grassed waterway for some years.

Mr. Smith said he did not currently farm approximately one-third of the land to be used for the drainage works, as it was a grassy swale. He said did not anticipate any change in land use after the drain is constructed. He said he achieved good crop yields on the portion of the land that was farmed.

Mr. Julien Deplancke submitted a written statement prepared by Glen Tulpin. He said the Tulpin family had always paid to maintain the grassed waterway through the Smith property and that problems had developed in the 1970’s when the land was switched from crops to pasture.

Mr. Vallee told the Tribunal that Section 30 of the Act provided for allowances to be paid where trees, lawns or crops were damaged by the disposal of material used to construct the drainage works. He said on this project Mr. Smith had requested that spoil be windrowed on his property and left on his farm for his use. He said this was why there was no allowance calculated under Section 30 of the Act.

Mr. Vallee explained he did not provide a Section 31 allowance for the existing grassed waterway, as he did not believe it would reduce the cost of the construction of the new drain. He said the grassed waterway would have to be rebuilt once the tile drain was installed.

Mr. Vallee said he did not believe that a loss of access (Section 33) allowance was appropriate in this case. He said he had originally intended to provide a crossing but the appellant would not articulate whether or not he wanted it or where it should be. Mr. Vallee said Mr. Smith later told him he did not want a crossing.

With respect to the land value, Mr. Vallee said he did not dispute the figure provided by the local realtor. However, he said that given that one-third of the land taken could not be farmed, and the appellant had acknowledged was floodplain, that his figure of $2,000 per acre was more reasonable.

Assessments

Mr. Smith told the Tribunal that water on the Smith property drained to Mud Creek through the existing swale, entering the swale through a tile system and over land. He explained he had another property (Roll No. 20-289-10) which drained through the Tulpin property but that it was not the subject of his appeal. He said he saw no benefit to the Smith property (Roll No. 20-359) from the proposed drainage works as he already had an outlet to Mud Creek. He said this property should not be assessed any part of the cost of the new drain.

Mr. Wiebe acknowledged that it would be normal for the Smith property to be assessed a portion of the cost of a closed drain. He said a nominal benefit assessment could be justified but pointed out that Mr. Smith already drained his property through the existing swale.

A written submission by Pat Arnottt indicated the owner of the Everest property (Roll No. 20-288) was satisfied with the assessment to that property and did not want the proposed figures to change.

Mr. Vallee said that the Smith property clearly used the existing swale and that since it was to be part of the new drain there was no justification to exempt the Smith property from an assessment for a portion of the cost, and for ongoing maintenance of the drain. Mr. Vallee told the Tribunal that an earlier draft of his Report had less costs assessed to the Smith property, but that with Mr. Smith’s request that the project be re-designed to a covered tile drain, and conflicting requests as to fencing, the cost of the project had increased. He explained that extra engineering costs that were caused by Mr. Smith’s requests had been charged to his property.

Mr. Vallee said the Municipality’s road authority had at one time been added as a petitioner on the drainage works but had withdrawn when it decided to route its water along the road allowance. He said this action considerably reduced the cost of the drainage works and it would not be appropriate to assess any costs to the road authority. He said he was confident that water was no longer entering the watershed from the road.

Summations:

Mr. Wiebe submitted that the outlet liability assessment on the Smith property (Roll No. 20-359) be reduced as it did not use the entire length of the drain, given that water could enter the open swale at several points along the length of the drain. He suggested the Smith property be assessed outlet liability at one-half the rate of upstream properties. He said he would have no objection to the benefit assessment on the Smith property if the Tribunal were to order that any field tiles that the contractor comes across during construction be connected to the tile.

Mr. Wiebe asked the Tribunal to order that the existing driveway culvert be left in place as Mr. Smith needed it to easily access his entire property. With regard to the proposal that the covered portion of the drain be reduced by one-third, Mr. Wiebe said he supported this as it would reduce the cost of the project.

Mr. Wiebe argued that the Smith property should receive an allowance under Section 31 of the Act (allowance for existing drains), as the existing grassed waterway was being incorporated into the drain. He said the 300 metre long swale had been in existence for over 40 years and Mr. Smith had maintained it. He suggested an allowance of $3,000 for the grassed waterway.

Mr. Wiebe said the existing drainage system had served Mr. Smith well for many years. He submitted the new drain was required to give a legal outlet for sub-surface drains on upstream properties.

Mr. Vallee said he had worked on the project for several years in an attempt to please all landowners and that his final assessments were fair and he asked the Tribunal not to vary them. He said he could have charged the Smith property a higher benefit assessment as it was getting a closed drain, rather than an open channel.

Mr. Vallee said he and the appellant were only $600 apart on the Section 29 allowance estimate. He submitted his figure was more appropriate as much of the land taken on the Smith property could not be farmed. He acknowledged he could have provided an allowance for the existing grassed waterway on the Smith property, but suggested that this was balanced out by the lower than usual benefit assessment to the property. He also pointed out that Mr. Tulpin had indicated it was he who paid for the maintenance of the grassed waterway over the years.

With regard to the existing culvert on the Smith property, Mr. Vallee said it could be maintained as part of the drain, but suggested that the Smith property be solely responsible for the cost of maintenance. He also said he could eliminate the lower one-third of the closed tile drain but the water should be given a structured open drain through the creek flats. Mr. Vallee said if the Tribunal was going to order changes to the design of the drainage works, he asked that it be as specific as possible.

In reply, Mr. Wiebe submitted that it was not the engineer’s duty to negotiate an assessment schedule that is acceptable to all landowners, but rather to present an expert opinion as to what the assessments should be, based on engineering principles and the Act.

The Findings

Design Issues

The Tribunal is concerned with the quality of the engineer’s report on the Tulpin Drain. The Report contains insufficient information on the drawings and lacks the specifications as to exactly how and where the drain shall be constructed. All landowners on a project have the right to know exactly how the drain is to be constructed at the time the report is considered by Council and not depend on the engineer and the drainage superintendent to come up with these specifications at the time of construction. The Tribunal particularly noted the lack of information with respect to the existing watercourse and culvert on the plan and profile drawings in the Report. The fact that the depth, size and location of the existing tiles that outlet on the Tulpin property was not determined casts some doubt on the design capacity of the proposed drain as this is dependent on the profile gradient.

The Tribunal will order that the engineer shall determine the size and location of tiles which outlet from the Tulpin property into the existing drain. The Tribunal will order that the existing culvert be maintained on the Smith property as part of the municipal drain. Mr. Smith’s testimony was that he would continue to need this culvert to access his property. The location of the new tile at the upper end of the drain shall bypass the existing culvert. The engineer shall amend his drawings to show the location of the tile with respect to the centerline of the existing drain, and the profile is to be adjusted accordingly with this revised location. The Engineer is also to detail the construction of the tile outlet where it terminates in the open drain.

As well, the Tribunal will order the engineer to investigate terminating the tile drain at the beginning of the creek flats area of the Mud Creek on the Smith property, rather than continuing to the channel of Mud Creek. The evidence was that the creek flats could not be used for agricultural purposes, that Mr. Smith did not object to an open drain through this portion of his property and that reducing the length of the tile drain will reduce the overall cost of the project.

There was a consensus of both parties that any private drains encountered during the construction of the new tile should be connected to the new tile, and the Tribunal will so order.

Assessments

The Tribunal finds that the maintenance of the existing lane culvert that is to be incorporated into the project shall be maintained by the project. The proposal by Mr. Vallee that the Smith property be assessed the total cost of maintenance does not recognize that upstream lands have some responsibility for this culvert as it carries their water. The usual practice of drainage engineers is to assess 50% of the cost of culvert maintenance to the property where it is located, and 50% of the cost to upstream lands. The Tribunal will so order in this project.

With respect to benefit assessments, both engineers testified that it was normal for a property to be assessed benefit for the increased cost of constructing a closed drain on property where an open drain would suffice. However, no benefit assessment was applied to the Smith property (Roll No. 20-359) for the increased construction cost. A higher assessment would be justified based on the principles in the Act. Mr. Vallee indicated he did not impose a higher benefit assessment because the petitioners were satisfied with the total assessments as proposed. The Tribunal does not consider that assessing outlet to each landowner simply on a per hectare basis is appropriate. In addition, no consideration was made for the reduced runoff from bush area, which accounts for approximately 20% of the watershed area.

Mr. Wiebe argued that the outlet assessment on the Smith property was overestimated, as it was not using the entire length of the drain. The Tribunal agrees that normally drains are broken into sections and landowners only assessed for the portion of the drain they use. However, the Tribunal notes that this is a very short drain and the Smith tile enters near the top end of the drain. The Tribunal supports Mr. Weibe’s view with respect to considering length of travel on each property as a general practice.

In summary, taking an overall view of assessments, the Tribunal finds that the Smith property could have been imposed a higher benefit assessment, particularly as it is the main beneficiary to having a closed drain through much of this property. Arguments were also made that reductions should be made to outlet assessments. The Tribunal expresses its concern that the assessment principles set out in the Act and the generally accepted assessment methods used by engineers were not followed on this project. However, the Tribunal is not inclined to vary the assessments in this project, as it agrees with Mr. Vallee that the overall numbers are within the range of what is reasonable and fair.

Allowances

Considerable testimony was provided with respect to the basis for providing allowances to landowners. Mr. Vallee informed the Tribunal that the allowances he provided related only to Section 29 of the Act (right-of-way). Mr. Wiebe said that in addition there should be an allowance provided under Section 31 of the Act as compensation to the landowner for the existing grassed waterway. The Tribunal considers that allowances under Section 31 (allowance for existing drains) are generally implemented in a case where a landowner has recently constructed a portion of a drain which is being incorporated into a drainage project. The Tribunal heard no evidence that the landowner incurred any actual expenditure on the existing grassed waterway on the Smith property.

With regard to the amount of the allowance provided under Section 29 of the Act, the Tribunal finds that the allowance provided by Mr. Vallee is reasonable. The Tribunal took into consideration that a portion of the land taken has no agricultural value.

The Tribunal accepts the allowances granted in the Report

ORDER OF THE TRIBUNAL

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

1. The appeal by Milton Smith made pursuant to Section 54 of the Act is dismissed.

2. The appeals by Milton Smith made pursuant to Subsection 48(1)(a) and 48(1)(c) of the Act are dismissed.

3. The appeal by Milton Smith made pursuant to Subsection 48(1)(b) is granted in part, as outlined below.

4. The Municipality is to refer the Report back to the engineer and the engineer is to modify the Report as follows:

a) Determine the size, location and depth of the tile outletting on the Tulpin property and provide a detail of their connection to the new drain

b) Redesign the drain in the area of the creek flats on the lower end of the Smith property as an open drain.

c) Provide a detail of the outlet of the tile to the open drain.

d) Include the existing lane culvert as part of the project and provide a detail of the new tile where is will bypass the lane culvert.

e) Revise the plan and profile to reflect the above order.

f) Prepare “Specifications” as required by Section 8(1)a of the Act.

5. The revised report, specifications and drawings shall be noted “As amended by the Tribunal decision dated October 4, 2004”.

6. The council of the Municipality shall amend its bylaw to reflect the changes required by this order.

7. The maintenance of the drain shall be in accordance with schedule for maintenance in the Report, with the exception that the maintenance of the lane culvert on the Smith property (Roll No. 20-359) shall be assessed 50% to the Smith property and 50% to upstream landowners.

8. Engineering costs associated with revising the Report shall not be included in the cost of the drainage works. The costs of preparing for and attending the hearing may be assessed to the drainage works.

9. 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.