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:
Hambly-Sabourin Drain - 2001 and Beaulac-Beach Drain – 2001
Township of Brethour
Hambly-Sabourin Drain - 2001 and Beaulac-Beach Drain – 2001 (RE) [Request for a Review] 2004 ONAFRAAT 35
STATUTE:
Drainage Act
HEARING:
June 25, 2004
DATE OF DECISION:
October 8, 2004
2004-35
NEUTRAL CITATION:
2004 ONAFRAAT 35
Hambly-Sabourin Drain - 2001 and Beaulac-Beach Drain – 2001[Request for a Review]
Township of Brethour
IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: A request for a review a decision of the Agriculture, Food and Rural Affairs Appeal Tribunal dated September 29, 2003 with respect to the Hambly-Sabourin Drain - 2001 and the Beaulac-Beach Drain – 2001 in the Township of Brethour made by K. Smart Associates Limited pursuant to Rule 29 of the Tribunal’s Rules of Procedure.
Before:
Andrew Osyany, Vice Chair; Jack Young, Vice Chair; George Klosler, Member
Appearances:
Ken Smart, P. Eng., engineer who prepared the Report
Don Lacko, witness
Al Frasier, on behalf of Gary Beach, assessed landowner
Marg Beach, assessed landowner
Ken Hambly, assessed landowner
Evelyn Hambly, assessed landowner
Jacqueline Connelly, assessed landowner
Stephen Connelly, assessed landowner
Richard Gosselin, assessed landowner
Maurice Chabot, assessed landowner
Ed Dane, assessed landowner
Tom Goddard, Deputy Reeve, Township of Brethour
DECISION OF THE TRIBUNAL
This appeal was heard in the Township of Brethour, Ontario on June 25, 2004. Mr. Ken Smart asked the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) to review its decision dated September 29, 2003 on the Hambly-Sabourin Drain - 2001 and the Beaulac-Beach Drain – 2001. Mr. Smart sought clarification and reconsideration of the Tribunal’s order.
Mr. Roland Lachapelle, Clerk-Treasurer of the Township of Brethour (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 Hambly-Sabourin Drain - 2001 and the Beaulac-Beach Drain – 2001(the Report) 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.
The Background
The Tribunal heard appeals by Mr. Gary Beach, Mr. Kenneth Hambly and Mr. Richard S. Gosselin on November 8, 2002. Two interim decisions were issued subsequent to that hearing and a final decision of the Tribunal was released in September 2003. Subsequent to that decision, the request for review was made by the engineer, Mr. Ken Smart. On May 5, 2004, the Chair of the Tribunal granted that request and selected the Tribunal Members who would conduct the review.
The Issues
The issues before the Tribunal were:
1. Should the Tribunal allow appeals from the amended report directly to the Tribunal?
2. Should the Tribunal provide further direction regarding maintenance of the downstream portions of the Hambly-Sabourin Drain?
3. Should the Tribunal provide further direction on the assessment of statutory benefit?
4. Should the Tribunal provide further direction on the assessment of statutory benefit by way of cut-off benefit?
Should the Tribunal clarify its order with regard to allowances?
Should the assessment to the Quebec lands be altered?
Should the outlet rates be varied?
The Evidence
Maintenance of the Downstream Portion of the Hambly-Sabourin Drain
Mr. Ken Smart told the Tribunal he was concerned with its order that he prepare specifications for the maintenance of the downstream portion of the Hambly-Sabourin Drain on the property owned by Mr. Gosselin (Roll Nos. 1-019 &1-021). He estimated it would cost $3,000-$4,000 to prepare the channel for a bulldozer and backhoe to remove bars that build up in the waterway. He said an annual inspection would be required, as the area was susceptible to landslides. Mr. Smart estimated the cost to clear the waterway annually would be $2,000-$3,000 but he acknowledged it may not be necessary to repair it every year. He said rip rap or weirs could be used to try to stop future erosion but this would cost in excess of $25,000 and was not cost beneficial.
Mr. Smart reminded the Tribunal that he recommended abandoning this portion of the drain in his report, and providing compensation to Mr. Gosselin. Alternatively, he suggested that all ongoing maintenance costs be assessed to the Gosselin property. Mr. Smart said the lower portion of the Hambly-Sabourin Drain was fairly stable, notwithstanding occasional landslides. He explained that this channel tended to stabilize at 1% gradient, the banks were covered in vegetation and the channel bottom was fairly stable. However, he said it would not be safe to work the land up to the edge of the ditch and that some of the compensation to Mr. Gosselin would be for the creation of a buffer strip.
In response to questions, Mr. Smart suggested the maintenance cost would be lower if the report only required the grade in the downstream portion of the Hambly-Sabourin Drain be maintained at a level sufficient to allow the upstream water to flow through, and that the banks be stabilized.
Mr. Don Lacko, K. Smart Associates Limited, introduced photographs of the area taken on June 24, 2004. He pointed to three recent slides and observed that the channel was now 12 m wide in some places, whereas it was only 8 m wide when he first surveyed it three years before.
Mr. Richard Gosselin testified that he wanted the problem fixed securely and safely. He said he did not want to be responsible for maintaining the lower end of the drain and he did not believe the allowances provided in the report would cover the cost of ongoing maintenance. He asked the Tribunal to order that the ditch be repaired and the costs assessed to the drain.
In response to questions, Mr. Gosselin indicated:
He did not object to having some of the spoil used to fill in low spots in his field, or being levelled on the field to a depth of 8 inches.
Land values were $800 - $1,200 per acre in the area.
He wanted the drainage ditch to be maintained by the Municipality at a cost to the drain.
He was prepared to pay a portion of the maintenance cost but not 100% of the cost.
He had owned the property since 1988.
There was some erosion of the ditch every year but there was more erosion in 2004 than usual.
Mr. Al Frasier said there were problems with the design and function of the drain, that the Hambly-Sabourin drain was not designed to carry water from the Beaulac-Beach Drain and that it would be unfair to turn over responsibility for the outlet to one landowner.
Assessment Issues
Mr. Smart had prepared a revised assessment schedule, based on the Tribunal’s order of September 29, 2003, which was circulated prior to the hearing. Mr. Smart explained he sought a change to the Tribunal order as the new assessment schedule reduced the assessment to Quebec lands in the watershed from $48,322 to $37,659.
Mr. Smart said he also sought clarification as to where the cut-off benefit to be assessed to landowners should end. He explained to landowners that cut-off benefit was assessed to lands when the course of a drain is changed. He recommended that the cut-off benefits be assessed to lands up to the Townline. He said that lands on the other side of the Townline were swamp lands and would not derive a benefit.
Mr. Smart said that he had reviewed the Drainage Act since he prepared his revised assessment schedule, and that he believed Section 34 of the Act allowed him to take prior assessments into account. He said he could assess downstream properties which were assessed the costs of the original Hambly Sabourin drain $50 per ha less on outlet assessment than upstream properties.
In response to questions, Mr. Smart indicated:
The assessment to the Quebec lands was reduced as the result of the Tribunal order to change the ratio of statutory benefit:outlet liability; the watershed did not change.
He assigned benefit assessment to specific properties which benefited from improved drainage, better control of surface water, better subsurface drainage, improved appearance, cut-off benefit and/or better market value due to rip rapping.
The Tribunal ordered a 30:70 statutory benefit:outlet liability ratio. He included cut-off benefit as statutory benefit in his calculations.
Reducing the amount of water that flows through the Hambly-Sabourin Drain would reduce maintenance costs but increase up front costs.
It was better to estimate cut-off benefit as a percentage of total benefit and in his view 15% was fair.
Mr. Kenneth Hambly told the Tribunal that landowners using the Beaulac-Beach Drain had not paid compensation to those who originally paid to have the Hambly-Sabourin Drain constructed. He said the Municipality and the original engineer of the Beaulac-Beach Drain should be responsible for a portion of the cost of the current work.
Mr. Frasier suggested the Municipality be held accountable for the costs incurred to date and the engineer directed to undertake further work. He explained the two Beach properties had experienced higher flooding because more water was flowing through the drain each year and he said he did not understand how this was being addressed in the engineer’s report.
Further Appeals
Mr. Smart noted that there would be considerable costs to the landowners on the drains due to the need for Council of the Municipality to consider his amended report, the Court of Revision hearing and potentially a further Tribunal hearing. He said he hoped that there would be no further appeals but suggested that the Tribunal allow appeals directly to it, from a revised report.
While generally agreeing that a swift resolution to the drainage disputes was desirable, most of the landowners in attendance wanted to retain the usual right of appeal from a revised report.
Mr. Goddard said the Municipality understood that the Tribunal order would be final, similar to a court order, and he said the Municipality was not in favour of more appeals.
Summations:
Mr. Smart told the Tribunal he would prefer to implement its decision through an addendum to his report, rather than through a revised report. He asked the Tribunal to order that:
Up to $6,500 be spent to level bars and spoil in the lower portion of the Hambly-Sabourin Drain.
Future maintenance of the lower portion of the Hambly-Sabourin Drain be limited to removing future bars, levelling the spoil on the Gosselin property, hauling brush away and maintaining the tile outlet.
All future maintenance be done through the drainage superintendent program.
The cost of all future maintenance on the lower portion of the Hambly-Sabourin Drain be assessed to Mr. Gosselin.
A cut-off benefit of $18,000 be assessed to affected lands on the Hambly-Sabourin Drain as follows: Townline $5,000; Roll No. 1-019 (Gosselin) $3,500; 1-022 (Beach) $3,500; 1-023 (Boyle) $3,500, 1-025 (Bruni et al) $2,500.
Additional statutory benefits be assessed to properties on the Hambly-Sabourin Drain as follows: Roll No. 1-021 (Gosselin) $ 3,750; Roll No. 1-019 (Gosselin) $ 3,250; 1-024 (Gosselin) $ 1,000 1-025 (Boyle) $1,500.
A cut-off benefit of $4,500 be assessed to affected lands on the Beaulac-Beach Drain as follows: Townline $1,500; Roll No. 1-028 (J. Beach) $1,500; Roll No. 1-030 (G. Beach) $1,500.
Additional statutory benefits be assessed to properties on the Beaulac-Beach Drain as follows: Roll No. 1-025 $2,500; Ministry of Natural Resources (Lot 9 Concession 1) $2,500; Lot 1-028 (J. Beach) $500; Lot 1-029 (Wilkinson) $1,000; Lot 1-030 (G. Beach) $2,500.
There be no further appeals from the Tribunal decision.
Mr. Smart said there was some justification to assessing the Hambly property (Roll No. 1-053) $50/ha less than other properties, in consideration of a high past assessment to this property.
Mr. Frasier said he would like the Tribunal to order that the drain be re-routed to its original flow in 1982 and that the Beach property be cut-off from the drain.
Mrs. Hambly asked the Tribunal to resolve the matter quickly with the least cost to landowners assessed on the drains.
Mrs. Connelly said that in Perth County landowners were each responsible for the individual tile outlets on their own properties and suggested that should be the case for these drains. She said Mr. Gosselin should be responsible for the cost of maintaining the tile outlet on his property.
Mr. Gosselin said the water that crosses his property came from everyone in the watershed so he should not be solely responsible for the maintenance. He also suggested that any repairs that were needed be done in the winter to avoid damage to his crops.
The Findings
As in the previous hearing, the issue of the badly eroded lower part of the Hambly-Sabourin drain was a principal concern. The previous hearing resolved the issue of retaining this part as a municipal drain, and with the input from this hearing, it is possible to establish the maintenance parameters. It is desirable to have the initial work of removing obstructions and stabilizing the banks, and thereafter to carry on periodic maintenance. There was discussion as to the level of maintenance and distributing the cost of the maintenance between the adjoining and the upstream properties. The history of this drain is one of non-maintenance, resulting in great catch-up expenses at this time. The panel believe that an appropriate solution is to provide for a modest level of maintenance, and to distribute the cost equally between the adjoining and upstream properties. This will result in a fair distribution of the cost, and it will ensure that necessary maintenance will be looked after, but that the drain will not be over-maintained.
With regard to the lower 437 metres of the Hambly-Sabourin drain, the Tribunal will clarify its order of September 29, 2003 to provide that the maintenance of the drain be restricted to removing bars and stabilizing the banks, at the discretion of the drainage superintendent. The spoil is to be spread on the adjoining property. The drainage superintendent is to inspect the drain annually. The Tribunal accepts the specifications for maintenance developed by Mr. Smart and agrees that the ongoing expense of maintenance would be unreasonable if additional maintenance were required, and that this level of maintenance will ensure that upstream water has an adequate passage to the outlet at Wright Creek.
Generally, it is not desirable to have any work on a drain delegated to a landowner, and accordingly the $6,500 provided in the Project Cost Estimate to be paid to Mr Gosselin for him to do restorative work on the channel on his own property will be removed and instead the engineer is to provide for repairs to be made to stabilize the banks and improve the channel bottom of the lower 437 metres of the Hambly Sabourin Drain. The value of these repairs shall be limited to approximately $6,500.
As indicated above, the cost of maintenance is to be assessed 50% to the adjoining property and 50% to upstream properties on the same basis as the rest of the maintenance schedule
With regard to Mrs. Connelly’s submission on the responsibility for tile outlets, the Tribunal notes that it is common that when an individual runs a tile outlet into a municipal drain, the individual is responsible for that outlet. However, that does not apply when a tile outlet that is carrying water from upstream properties outlets into an open ditch. In this case, the erosion occurring on the lower portion of the Hambly-Sabourin Drain has been caused by water flowing through the drain, not just water from the Gosselin property.
This panel finds no convincing evidence to support Mr. Frasier’s submission to re-route the drain, and the drain will not be re-routed.
On the question of assessments, the Tribunal is in general agreement with the revised assessments proposed by Mr. Smart in his December 2003 assessment table – Schedule A-3, which is Exhibit 26. However, the Hambly property (Roll No. 1-053) assessment is to be reduced $1,500 pursuant to the provisions of s. 34 of the Act. Section 34 provides that prior assessments can be taken into account when assessing the costs of improvements, construction and maintenance of drainage works, if it appears just. The Tribunal agrees that the Hambly property was over-assessed in the initial report and that it should have a lower assessment. The assessment to properties that were omitted from the original assessment should be increased accordingly.
The maintenance schedule should be revised in the light of the new construction assessment schedule. Because, the maintenance schedule is developed on the basis of the construction schedule, and the panel is ordering changes to the construction schedule, it is appropriate that the maintenance schedule be revised accordingly.
While there would be a cost saving in providing direct appeals to the Tribunal, the preference of the majority of the owners attending the hearing is for the normal appeal procedure to be followed and the Tribunal will so order.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
- The engineer is directed to prepare an Addendum Report for the Hambly-Sabourin Drain 2001 and Beaulac-Beach Drain 2001 to incorporate the findings of the previous panel and this panel and to provide for the following matters, in addition to the matters dealt with in the previous order:
a. The lower 437 meters of the Hambly-Sabourin Drain shall be restored by removing obstructions and stabilising banks. The spoil shall be spread on the adjoining property. The cost estimate of this work shall be increased by $6,500 for this construction item.
b. The allowance of $6,500 to the owners of Lot 7, Concession 1 for the restorative work is to be deleted and the cost estimate shall be decreased by $6,500 to reflect this change.
c. The lower 437 meters of the Hambly-Sabourin Drain shall be inspected annually. Maintenance shall be carried out as required but not necessarily on a yearly basis, and shall be limited to removing obstructions and stabilizing banks. Excavated materials shall be spread adjacent to the drain. The cost of maintaining this section of the drain shall be assessed 50% to the adjoining properties and 50% to upstream properties on the same basis as the rest of the maintenance schedule.
d. The assessments for Benefit shall be amended as follows:
A cut-off benefit of $18,000 be assessed to affected lands on the Hambly-Sabourin Drain as follows: Townline $5,000; Roll No. 1-019 (Gosselin) $3,500; 1-022 (Beach) $3,500; 1-023 (Boyle) $3,500, 1-025 (Bruni et al) $2,500.
Additional statutory benefits be assessed to properties on the Hambly-Sabourin Drain as follows: Roll No. 1-021 (Gosselin) $ 3,750; Roll No. 1-019 (Gosselin) $ 3,250; 1-024 (Gosselin) $ 1,000 1-025 (Boyle) $1,500.
A cut-off benefit of $4,500 be assessed to affected lands on the Beaulac-Beach Drain as follows: Townline $1,500; Roll No. 1-028 (J. Beach) $1,500; Roll No. 1-030 (G. Beach) $1,500.
Additional statutory benefits be assessed to properties on the Beaulac-Beach Drain as follows: Roll No. 1-025 $2,500; Ministry of Natural Resources (Lot 9 Concession 1) $2,500; Lot 1-028 (J. Beach) $500; Lot 1-029 (Wilkinson) $1,000; Lot 1-030 (G. Beach) $2,500.
e. The Outlet Liability Assessments shall be pro-rated in accordance with the Schedule A3 in the Report with the exception that the owners of the property identified as Roll No. 1-053 shall receive a one-time reduction of $1,500, pursuant to the provisions of s. 34 of the Drainage Act. This $1,500 shall be assessed among the properties not assessed in the 1980 Hambly-Sabourin engineer’s report.
f. The Schedule of Assessments for Construction shall be replaced by the schedule attached to this order and identified as Schedule A. which reflects the above changes.
g. The Schedule of Assessments for Future Maintenance shall be amended by the Engineer to reflect the changes ordered above.
The Addendum Report shall be circulated and dealt with in the same manner as the original report.
Upon the filing of the Addendum Report, the Clerk shall amend the original report by noting in red on the cover: “Amended by an Addendum Report, (insert date of the Addendum Report), pursuant to the order of the Tribunal, dated October 8, 2004. “
The non-administrative costs of the Township in respect to this appeal shall form part of the cost of the drainage works and it is ordered that there be no other order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.
Dated at Shelburne, Ontario this 8th day of October, 2004.
Schedule A - Schedule of Assessments
SCHEDULE A - SCHEDULE OF ASSESSMENTS FOR CONSTRUCTION
(As amended by the Tribunal decision dated October 8, 2004)
HAMBLY-SABOURIN DRAIN 2001 and BEAULAC-BEACH DRAIN 2001
Township of Brethour
Hambly-Sabourin Dr 2001
(Main Dr)
Beaulac-Beach Drain 2001
(Main Dr)
Approx
Approx
Grand
Roll No.
Owner
Hect.
Benefit
Outlet
Total
Hect.
Benefit
Outlet
Total
Total
Township of Brethour (ON)
1-019
R. & L. Gosselin
0.5
9,250
9,250
9,250
1-021
R. & L. Gosselin
12.5
7,250
7,250
7,250
1-022
J. Beach
0.5
5,500
42
5,542
5,542
1-023
R. Boyles
0.5
5,000
42
5,042
5,042
1-024
R. & L. Gosselin
29.8
3,000
2,459
5,459
5,459
1-025
Bruni, Gentili, Dolfi & Tosti
1.0
2,500
84
2,584
1.0
2,500
14
2,514
5,098
1-027
R. & L. Gosselin
32.4
3,271
3,271
14.4
0
232
232
3,503
M.N.R.
32.4
2,617
2,617
26.4
2,500
335
2,835
5,452
1-028
J. Beach
1.2
127
127
1.2
2,000
13
2,013
2,140
1-029
J. & J. Wilkinson
64.8
6,281
6,281
62.6
1,000
331
1,331
7,612
1-030
G. Beach
29.8
2,065
2,065
29.8
4,000
264
4,264
6,329
1-031
S. & D. Brisson
16.2
1,720
1,720
16.2
203
203
1,923
1-053
K. & E. Hambly
62.3
4,925
4,925
4,925
1-054
K. & E. Hambly
48.6
4,930
4,930
4,930
1-055
J.&I. Hearn (J&S Connelly)
63.9
5,741
5,741
24.0
96
96
5,837
1-056
H. Dane
63.9
5,350
5,350
40.0
172
172
5,522
1-057
S. Brisson & D. Lafontaine
40.5
3,500
3,500
40.5
237
237
3,737
1-058
R. Peddie
40.5
2,930
2,930
40.5
159
159
3,089
1-079
W. Broderick
29.0
2,358
2,358
29.0
128
128
2,486
1-081
M. & J. Chabot
32.8
3,010
3,010
32.8
164
164
3,174
1-082
R. Peddie
2.4
258
258
2.4
14
14
272
605.5
32,500
51,708
84,208
360.8
12,000
2,362
14,362
98,570
Township of Brethour
2.6
686
686
0.2
3
3
689
Township of Brethour
0.4
106
106
106
Township of Brethour
2.5
665
665
1.9
28
28
693
Township of Brethour
1.6
422
422
1.6
24
24
446
Township of Brethour
0.7
190
190
0.7
11
11
201
5,000
5,000
1,500
1,500
6,500
7.8
5,000
2,069
7,069
4.4
1,500
66
1,566
8,635
613.3
37,500
53,777
91,277
365.2
13,500
2,428
15,928
107,205
318.1
34,023
34,023
318.2
4,272
4,272
38,295
37,500
87,800
125,300
895.4
13,500
6,700
20,200
145,500