Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West Guelph, Ontario 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:

Bluewater Properties Drain 2003

Municipality of Bluewater

Bluewater Properties Drain 2003 (RE) 2004 ONAFRAAT 04

STATUTE:

Drainage Act

HEARING:

December 4, 2003

DATE OF DECISION:

January 22, 2004

2004-04

NEUTRAL CITATION:

2004 ONAFRAAT 04

Bluewater Properties Drain 2003

Municipality of Bluewater

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 under Section 48 of the Drainage Act by Danica Korenic, Windsor Ontario; Deb and Bill Riesberry, Zurich Ontario; Joyce Brisson, Zurich Ontario; Jim and Mary Purvis, Zurich Ontario; Delphine and Bob Ballantine, Zurich Ontario and James Hogg, Zurich Ontario from the engineer’s report on the Bluewater Properties Drain 2002 in the Municipality of Bluewater; and under Section 54 of the Drainage Act from the decision of the Court of Revision on the Bluewater Properties Drain 2002 in the Municipality of Bluewater.

Before: Terry Denison, Vice Chair; Jack Young, Vice Chair

Appearances:

Andrew Wright, counsel to the Municipality of Bluewater

Paul Elston, R.J.Burnside & Associates Ltd., Engineer who prepared the report

Jim Hogg, appellant

Bill Riesberry, appellant

Bob Ballantine, appellant

David Oliver, representative of 1494883 Ontario Limited, assessed landowner

Milt Dietrich, Chief Building Inspector, witness

DECISION OF THE TRIBUNAL

This appeal was heard in the Municipality of Bluewater, Ontario on Thursday, December 4, 2003 and Friday, December 5, 2003. Several assessed landowners appealed from the decision of the Court of Revision and the engineer’s report dated July 7, 2003 on the Bluewater Properties Drain – 2003 prepared by R.J. Burnside and Associates Ltd. (the Report), under Sections 54 and 48 of the Drainage Act (the Act).

Ms. Janisse Zimmerman, Clerk-Administrator of the Municipality of Bluewater (the Municipality) performed the duties of the clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the report on 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).

Section 54 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).

Notice

(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. R.S.O. 1990, c. D.17, s. 54 (2).

Procedure

(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, c. D.17, s. 54 (3).

The Background

Mr. Paul Elston, P. Eng. (the Engineer) testified that he had been a professional engineer since 1974, had been involved with approximately 500 drainage projects and had been involved with the Bluewater Properties drainage issues since the mid 1990s.

The Engineer told the Tribunal the Bluewater Properties Drain – 2003 was designed to drain a subdivision in the lakeside village of St. Joseph in the area of the Municipality in the geographic township of Hay. He said the affected properties were developed lots and undeveloped lots on Registered Plan 506, as well as municipal roads. He explained the lots were distinguished as belonging to Phase 1, 2 or 3 of the subdivision.

The Engineer said the subdivision was located on a plateau above a defined sandy beach. He said a ravine with a watercourse at the bottom of it is located between Phase 1 and Phase 3 of the subdivision. The land in the area is Brookston Clay Loam.

The Engineer explained that the subdivision had a grading plan in place in the mid-1980s and a few lots had been developed. He said the local Health Unit had concerns about grading as building intensified, due to raised septic beds. Mr. Elston said the poor drainage situation was impeding development of the remaining lots, and building permits were not being issued.

The Engineer said there had been flooding in the subdivision and roadside ditches had overflowed. He said the roadside ditches had existing drainage outlets. One of these was over a lakeside bluff at the westerly end of Bissonnette Ave.; the other was a storm sewer which outlet in a ravine area on Campbell Ave.

The Engineer indicated the proposed drainage works would alleviate the flooding problem and allow septic beds to be installed on the undeveloped lots in the subdivision. The project is designed to handle a 2-year storm event, which was the local urban standard. The proposed work includes:

• Re-grading the roadside ditches and closed drain sewers

• Installing catchbasins to assist in removing surface waters

• Providing a new drain to carry water to the existing outlet on Campbell Avenue.

• Providing a new drain to carry water down the lakeshore bluff on the extension of Bissonnette Avenue.

• Providing a pipe drain on each of the roads.

• Providing private drain connections (PDCs) for 16 lots.

• Providing for the construction of a private drain on the extension of Ducharme Court.

• Incorporating a grading plan to direct water into the proposed drainage works.

The Engineer testified that in assessing the costs of the drainage works he first deducted the cost of special benefits from the total cost and assigned them to the benefiting properties. He said he assessed a special benefit of $500 to each property receiving a PDC, as that was the estimated installation cost. He said he also assigned a special benefit of $39,300 to roads. Mr. Elston said the remaining costs were split on a 95:5 ratio of statutory benefit:outlet liability as the primary reason for the drain was to benefit the subdivision.

The Engineer explained that 10% of the benefit portion of the assessment was split equally between all affected properties, including roads, in recognition of the improved esthetics expected from improved drainage. He said the balance of the benefit was split 52% to lands and 48% to roads. On the lands, he said he assessed an extra $1,500 to undeveloped lots due to the improved ease of development and in recognition of past expenses incurred in the lots that were already serviced.

The Engineer said the outlet liability share of costs was assessed on the basis of the volume and rate of flow of run-off and the amount of the drain used by each property, based on the distances from each property to the outlet. He explained he used the same run-off coefficient, 3 times the agricultural rate, for all properties as he believed the vacant lots would be developed.

The Engineer explained that he would not vary his assessments if the drain were to be relocated to the North side of Bissonnette Avenue as a catchbasin would still provide an outlet to lands on the South side of that road. He explained the existence of a private drain serving some of the properties in Phase 1 of the development did not factor into his assessment calculations. He said the private drain had no status, was under designed and the affected landowners would have no recourse should problems develop on the private drain.

The Issues

The issues before the Tribunal were:

1. Should Phase 1 of the subdivision be involved in this project at all?

2. Should the drain be relocated from the South side of Bissonnette Avenue to the North side of Bissonnette Avenue?

3. Should the section of the proposed drain on Archambault Street be built?

4. Should the private drains that run along the front and rear of the lots on the East side of Archambault Street, and the front of the lots on the South side of Bissonnette Avenue be included in the drainage works?

5. Should private drain connections (PDCs) be provided to other lots abutting the drainage system in addition to those lots being provided PDCs in the Report?

6. Should the cost of a 1995 engineering report on the subdivision be included in the costs of this project?

7. Should the assessments for statutory benefit to Lots 30-40, inclusive (Phase 1) be reduced?

8. Should the proposed grading plan form part of the report should the provision for modification of the grading plan as requested by the Municipality be authorized?

The Evidence

Design Issues

Mr. James Hogg told the Tribunal that the engineering studies on the Bluewater Properties drainage would not be necessary if the roadside ditches had been maintained. He said he had owned a lot in Phase 1 of the subdivision since 1989. He said he regularly visited the lot and the only time there were puddles on it was after heavy rain, and that there was no problem cutting the grass on it. He explained his lot is pretty flat but has a gradual slope to the ravine.

Mr. Bill Riesberry said he owned a property in Phase 1 of the subdivision on which he built a house in 2001. He said he had lived in the subdivision since 1992, in a different house. Mr. Riesberry acknowledged the Phase 2 lots had a surface drainage problem but said there was no problem with the Phase 1 lots.

Mr. Hogg said that locating the proposed drainage pipe on the South side of Bissonnette Avenue would require digging up six driveways and five crossings of Bissonnette Avenue and would disrupt existing hydro and gas utility lines. Mr. Riesberry said it was possible to construct the drain on the same side of the road as a water line, as that was what the Engineer proposed to do on the East side of Archambault Street.

Both Mr. Hogg and Mr. Riesberry suggested the section of the drain on Archambault Street was not needed as they were served by a private drainage system.

Mr. Bob Ballentine noted that properties served by a different private drain on Demers Street were left out of the proposed drainage works and said the Phase 1 landowners wanted the same treatment.

The Engineer said locating the proposed drain on the North side of Bissonnette Avenue would be more expensive as it would have to be installed below an existing water main. He said it was relatively easy to work around hydro and gas lines. He pointed out that the cost of the disruption to the driveway entrances was to be charged to the Municipality, as a special benefit. He explained that the drain was to be constructed under a water main on Archambault Street, at the request of the Public Works Manager, as this would allow for a shallower road ditch.

With regard to the private drainage on Demers Street, the Engineer said it was constructed on a road allowance, under the direction of the Municipality, but that the road and drain had not been assumed by the Municipality. He said Archambault Street had been assumed by the Municipality. Also, he said there were no municipal records of a private drainage system for the lots on Archambault Street and the South side of Bissonnette Avenue.

The Engineer said a grading system designed by Conestoga Rovers at the request of the subdivision developer was not effective. He explained that none of the streets nor culs-de-sac in the subdivision were built to within the grades on the grading plan. He said that some roads could still be drained with ditching improvements, but that deepening the ditches would not completely compensate for poor grading. He said that even had the Conestoga Rovers grading plan been followed, the subdivision would still require a drainage system.

The Engineer acknowledged it was unusual to incorporate a grading plan into a project designed under the Act, but he said he had done so in the past. He asked the Tribunal to vary his report to allow for minor changes to lot grading plans, if these are supported by an engineer.

Assessment Issues

Mr. Hogg told the Tribunal the properties in Phase 1 of the subdivision would receive no benefit from the proposed drainage works as they were already well served by a private drainage system installed by a local contractor in 1985. He pointed out that six building permits had been issued for Phase 1 lots, the last one in 2001. He suggested that the costs of the project be assessed to the petitioners who requested the Report. He said the owners of the Phase 1 properties had no formal agreement but that they would maintain their private drain.

Mr. Riesberry testified that he had a survey done that showed the private drain at back of Lots 30, 31 and 32. He said there was an 18-inch drain that outlets in the ravine, with riprap at the bottom and a gabion. He said two 6-inch drains were connected to the 18-inch drain. He said the 6-inch drains were originally perforated pipe, but this was replaced with solid big-O pipe under some trees, due to interference from roots. He testified that he cleans out the end of the drain to prevent the accumulation of debris. Mr. Riesberry said the private drains were turned over to the Municipality sometime after they were built, at the same time as a greenbelt (Lot 55) was transferred to the Municipality. Mr. Riesberry said there had been no basement flooding in either of his two houses in Phase 1 of the subdivision.

Mr. Ballentine said the developer of the Phase 1 lots had paid thousands of dollars to put in a drainage system and that it has served the purpose for which it was intended. He said the Report led to Phase 1 lot owners being charged for two drains and charged for the maintenance of two drains in the future. He said it was not right for the Municipality to obligate property owners to finance the development of a new drain they do not want, do not need and will not use. Mr. Ballentine said he did not know if the existing drain was documented or not, but that the Municipality was issuing building permits in part because the drain existed.

Mr. Milt Dietrich said he was the Chief Building Official for the Municipality, and that prior to amalgamation, he had held that position with the former Township of Hay since 1991. He said he was responsible for issuing permits for the construction of septic systems as well as buildings.

Of the undeveloped lots in Phase 1, Mr. Dietrich said it would probably be possible for lots backing onto the ravine to receive building and septic permits but grading plans and engineered footings would likely be required. He said it would be difficult to issue a building permit for Lot 32 in Phase 1 until the drainage issue was resolved. He said the Building Code did not recognize private drains, but that sump pump systems could be used as long as they did not interfere with other lands.

Mr. Hogg and other appellants also raised a question as to why the cost of an engineer’s report completed in 1995 was assessed to the 2003 project.

Mr. David Oliver, a representative of 1494883 Ontario Limited, a petitioner, testified that the drainage project was essential to obtaining building permits, that the company was content to pay the special assessments for PDCs and that the company was content to have a grading plan apply to its properties.

The Engineer said he would not recommend any changes to his assessment schedules, having heard the evidence of the appellants. He said the properties in Phase 1 would benefit from the proposed drainage works and be treated the same as the lots in Phase 2. He said that based on Mr. Dietrich’s testimony on the availability of building permits, there could be a rationale for a lower benefit assessment on the Phase 2 lots.

The Engineer also indicated:

• The cost of a previous drainage report was charged to this works as some of the information collected at that time was used in the preparation of the current Report. Engineering costs on the current project would have been approximately $55,000 rather than the $38,000 he actually billed.

• Landowners not provided with a PDC could ask the contractor to install one at the time of construction.

• He did not assign part of the overhead costs to the special benefit on the properties receiving PDCs as there was a possibility that some landowners might opt out of having the PDC, thereby stranding the associated overhead costs.

• No overhead costs were charged to the special benefit assessments on the roads.

• He allowed for the fact that the back half of lots on the South side of Bissonnette Avenue drained into the ravine by adjusting his area factor.

• The general trend is for water to flow west in the subdivision, but the ground is fairly flat.

• The existing private drains would remain private drains for as long as they continued to function. The 6-inch plastic pipe could be connected to the proposed new drain, but he had some concerns that it was perforated pipe.

Summations

Mr. Riesberry told the Tribunal the appellants did not oppose the construction of a drainage works but that they unanimously wanted it located on the North side of Bissennette Avenue and wanted no costs assessed to Phase 1 landowners. He said the South side of the road had been landscaped and treated for weeds, whereas on the North side there were only fields and a ditch that was in need of repair. He also reiterated they did not want or need the proposed branch on Archambault Street to be constructed. Mr. Riesberry said the landowners would register a maintenance agreement for their private drain at Land Titles Office.

Mr. Andrew Wright submitted that the branch of the drain on Archambault Street was necessary as the Road Superintendent, a petitioner, had asked for it. He said the Tribunal heard evidence that the projects was warranted as lots could not be developed without it. He asked the Tribunal to respect the Engineer’s judgement and locate the drain on the South side of Bissennette Street. He pointed out the cost of the project would increase if the drain was located under the water main.

With regard to the cost of the previous report being charged to this drainage works, Mr. Wright suggested it would be fair to charge $16,100 to this project and the difference could become the responsibility of the petitioner on the previous report which was the Road Authority.

Mr. Wright suggested, that based on the testimony of Mr. Dietrich, the assessments on four undeveloped Phase 1 lots which backed onto Lot 55 could be reduced by $1,500 as it seemed these landowners could obtain building permits. He said this would put them on the same par as neighboring developed lots. He noted that Lot 32 did not have direct access to Lot 55. Mr. Wright suggested that reductions in the benefits of Phase 1 properties could be offset with increases to the assessments on the roads.

Mr. Wright submitted that a municipal drain would benefit Phase 1 property owners. He argued that survey work and easements would have to be obtained in order to register the existing private drainage works and that a community drain maintained by the municipality was a better solution. He submitted the private drain would only work as long as the neighbours cooperated.

Mr. Wright suggested that all landowners be given the option of having a PDC installed, at a cost of $500. He asked the Tribunal to fix a date of April 1, 2004 for landowners to notify the municipality of their intent.

Mr. Wright acknowledged the inclusion of lot grading in a Report under the Act may be tested legally but submitted that there is jurisdiction under the Act for the Engineer to do this, and that the grading plan was an integral part of the project. He asked that the Tribunal order a change to the report requested by the Municipality which would allow minor changes to the grading plan, at the discretion of the Chief Building Official, if supported by the written opinion of an engineer.

Mr. Wright asked that, with the exception of his suggested changes, the Report be adopted as written.

The Findings

Should Phase 1 of the subdivision be involved in this project at all and should the private drains be included in the drainage works?

After hearing the evidence, the Tribunal finds that a drainage project that addresses all of the drainage concerns of the subdivision should be undertaken. The construction of drainage projects, generally, are intended to address present drainage concerns as well as potential drainage problems which may arise in the future.

The owners of lots in Phase 1 of the subdivision presently utilize a private drain which runs along the north of those lots on the south side of Bissonette Avenue and at the rear of the lots on Archambault Street. Evidence was heard to suggest that this drain consisted of perforated pipe of probably 6-inch diameter that had been installed by Russell Fisher sometime in the 1980s. Parts of the drain were replaced with solid pipe. The appellants’ evidence was that this drain, together with the surface drainage to the ravine, provided drainage for the lots in Phase 1. While a sketch was presented by Mr. Riesberry based on his best efforts, there were no engineering drawings for this private drain to identify its location or how it was constructed. Nor is there any formal agreement or other mechanism, other than the present goodwill of the owners, to deal with the maintenance of the drain.

It was suggested by the appellants in their submissions that they would be willing to enter into some form of legal agreement to accept responsibility for the maintenance of this private drain on their lands, so as to also bind future owners. There is no question of the good faith of the appellants in making such a suggestion. However, as was pointed out by the solicitor for the Municipality, there are some costs involved in regularizing this private drain so as to give effect to those good intentions in a legally binding way for the present and future owners. Those costs are not insignificant: there would be a need for survey and engineering work to locate the drain and to prepare a reference survey plan so as to describe the drain so it could be registered on title. There would also be a requirement for the careful drafting of a legal agreement to be registered on title. There would also be real, and possibly substantial, future costs in maintaining the private drain so that it would function as required. There are other mechanisms, such as the use of Section 2 of the Drainage Act to create a mutual drain agreement but it would have the same cost implications for the owners.

Inclusion of Phase 1 in the project does benefit those owners by the provision to them of a good outlet which will be maintained by the municipality. The costs to the Phase 1 owners of being included in the project may not be significantly different than the real costs of regularizing, maintaining and replacing the private drain, although the benefits of being part of this project are, in the opinion of the Tribunal, much greater. As well, the outlet for the private drains is an 18-inch outfall to the ravine, which was installed by the developer. This outlet has been incorporated into the current project. The Phase 1 landowners will benefit from having that outlet maintained by the Municipality under the maintenance provisions in the report.

By being part of the project, with the ability of each lot in Phase 1 to connect to the drain, there is increased protection from flooding for each lot owner. The ability to have access to the drain now at the reduced cost of $500 for a PDC is a significant benefit compared to the probable future cost of later installing a PDC should that be required due to failure of the private drain or the need to do so when obtaining a building permit or septic permit.

It was suggested in evidence by the Chief Building Official that those undeveloped lots in Phase 1 would be able to get building permits without a PDC to the project drain, but that in order to qualify for a building permit or septic permit he would require engineered drawings for footings and foundations as well as a grading plan confirming adequate drainage. While there was no evidence given as to the costs for such drawings and plans, the Tribunal is aware that they are not insignificant. The costs of meeting these requirements would by avoided by inclusion of those lots in the project drain and the ability to connect to an outlet through a PDC.

Should the drain be relocated from the South side of Bissonnette Avenue to the North side of Bissonnette Avenue?

The appellants presented evidence in support of re-locating the drain to the North side of Bissonnette Avenue. Their main concerns were the cutting of existing driveways and disruption of landscaping along the fronts of the developed properties. The Engineer stated that a drain on the North side of Bissonnnette Avenue could require extensive support for an existing water main during construction and that the location of the drain on the South side only had to deal with buried gas and hydro lines, sections of which could be more easily modified if necessary. In addition, having the main drain located on the South side of Bissonnette Ave. provides the opportunity for landowners in Phase 1 to have direct access to the system by means of PDCs. The Tribunal accepts the expert opinion of the Engineer in locating the drain along the South side of Bissonnette Avenue. The Report provides for the reconstruction of the driveways to their current condition and restoration of the road ditch. It should be noted that the proposed drain is to be located on the 80 foot road allowance owned by the Municipality and not on private property.

Should the section of the proposed drain on Archambault Street be built?

The Tribunal heard evidence from landowners that the section of drain on the East side of Archambault Street provides no benefit to their properties. The Engineer’s response was that this section of drain was required by the Municipality, a petitioner, to provide proper drainage of the road and to reconstruct the existing road ditch, which is deep at this point. The Tribunal finds this is a reasonable request by the Municipality and it is assessed accordingly.

Should private drain connections (PDCs) be provided to other lots abutting the drainage system in addition to those lots being provided PDCs in the Report?

The petitioner 1494883 Ontario Limited, has requested that PDCs be installed on all of their properties in the subdivision, as part of the drainage project and is assessed a special assessment for these PDCs. The Tribunal recognizes the value of PDCs to all of the properties, both in Phase 1 and Phase 2. Evidence was presented that the cost of installing a PDC on the drainage works in the future would far exceed the $500 cost estimate for installation while the drain is being constructed. Section 22.0 of the Report, Subsequent Connections, requires landowners who wish to construct PDCs in the future to acquire permits, pay inspection fees and the cost of restoration of the roadside and any other costs that the Municipality may incur. Examples of future costs outline in the report include the cost of all materials, labour and equipment, restoration costs and the Municipality’s cost to review, permit and inspect the new connection.

The Tribunal finds that the installation of PDCs at the time of drain construction is an excellent benefit to the properties adjacent to the drainage works and should be constructed as part of the project. The availability of the PDCs now and in the future will enhance the value of these properties.

Where PDCs are constructed along the East side of Archambault Street and the South side of Bissonnette Avenue, they shall provide connection to the existing private drain in that location. Accordingly, the Engineer’s estimate should provide for 20 additional PDCs to provide connections for Lots 16-18 inclusive, Lots 20-25 inclusive, and Lots 30-40 inclusive. Accordingly, these lots shall be assessed a special benefit of $500 for provision of the PDC.

Should the cost of a 1995 engineering report on the subdivision be included in the costs of this project?

The appellants questioned the engineering charge of $42,990 for the cost of the 1995 report being included as part of the 2003 project. The Engineer gave evidence that without reliance on the old report the cost of the new report would have been $55,000, rather than $38,900. The Engineer testified that part of the information in the 1995 report was beneficial in creating the 2003 report in that the engineering costs would have been approximately $16,000 more had the previous report not been available. The Tribunal finds that the sum of $27,000, part of the cost of the 1995 report, should not be included in the cost of the drainage project.

Should the assessments for statutory benefit to Lots 30-40, inclusive (Phase 1) be reduced?

The Tribunal notes that the main rationale for reducing the statutory benefit assessments in the eleven Phase 1 lots is that they are presently serviced to some extent by a private drainage system. It is clear the private drains currently serve these lots to some extent. However the physical and legal stability of this private drainage system in the future is unclear. Accordingly, the Tribunal finds that the benefit assessment against these 11 properties should be reduced by $1,000 per lot.

The Municipality, after hearing the evidence, recognized that the undeveloped lots in Phase 1, could presently obtain building permits, however additional requirements would have to be met incurring additional costs as a condition of the permit being issued. The Tribunal finds that the benefit assessments on the five undeveloped lots in Phase 1 should be further reduced. The Tribunal will order an equal reduction to these five lots, in the amount of $1,000 each, notwithstanding the submissions by the Municipality respecting only four of these lots.

After making the above adjustment to the assessments, the Tribunal is left with a net reduction in assessment to be allocated to the project. The Tribunal finds that the this reduction in assessment should be prorated over the entire project in accordance with the Schedule of Assessments and as such has increased the cost of contingencies in the Engineer’s estimate. This has the intended result of prorating this reduction without modification of the Schedule of Assessments. This prorating shall not include the Special Assessments to the Road Authorities as detailed in Section 20.0 of the Report.

Grading plan modification as requested by the Municipality

The Tribunal concurs with the grading plan being included in the Report and finds that the proposed modification to the report, to allow for changes in lot grading will benefit the project as it will provide flexibility to landowners.

ORDER OF THE TRIBUNAL

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

1. The appeals of Danica Korenic, Deb and Bill Riesberry, Joyce Brisson, Jim and Mary Purvis, Delphine and Bob Ballantine, and James Hogg are allowed in part as reflected below.

2. The Engineer is directed to amend the report such that PDCs are to be installed on Lots 16-18 inclusive, Lots 20-25 inclusive, and Lots 30-40 inclusive as part of this project, at the time of construction. The Engineer is directed to increase the construction cost estimate by $10,000 for the 20 additional PDCs. The Benefit Assessment for each of these lots shall be increased by $500 for these PDCs.

3. The Engineer is directed to reduce the cost estimate by $27,000 to reflect the value of the information from the 1995 report that was useful in the preparation of the 2002 Report.

4. The Engineer is directed to reduce the assessment for statutory benefit for Lots 30-40, inclusive, by $1,000. The Engineer is directed to further reduce the statutory benefit assessment of Lots 32, 36, 36, 39 and 40 by an additional $1,000. This results in a benefit assessment reduction of $16,000.

5. The Engineer is directed to increase Item 41.0 in the cost estimate, “Contingency for Unforeseen Items” by $11,000. This will have the intended result of prorating the cost reduction without amending the overall Schedule of Assessments.

6. A summary of the changes in the cost estimate and schedule assessments is shown below. The Engineer shall prepare a revised assessment schedules for construction (p23-25) and maintenance (p26-28) to reflect the above ordered changes and the Engineer shall append these revised schedules to the report.

Summary of Costs and Assessment Changes

Item

Cost Estimate

Assessments

Totals in Report

$ 322,000

$ 322,000

Order 2 - 20 Additional PDC's

+10,000

+10,000

Order 3 – 1995 Report Cost

-27,000

Order 4 – Assessment Reductions

-16,000

Order 5 – Increase in Contingencies

+11,000

Revised Totals

$ 316,000

$ 316,000

7. The Engineer is directed to insert the following paragraph on page 11 of the Report: “Minor adjustments to the lot grades and to the building envelopes shown in the Lot Grading Plan contained in this report may be allowed, at the discretion of the Chief Building Official for the Municipality when issuing building permits for lots on registered plan 506 if such adjustments are supported by the written opinion of an Engineer qualified to deal with drainage matters to the effect that such minor deviation from the Lot Grading Plan will not materially adversely affect the general grading pattern of the lot in question or of any lands in the vicinity of that lot.”

8. The cover page of the report shall be amended to include the following prominent wording: "Amended in accordance with the Order of the Agriculture, Food and Rural Affairs Appeal Tribunal, dated January 22, 2004". The Engineer shall provide five (5) complete amended copies of his report to the Municipality.

9. The drainage works as modified shall proceed.

10. 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 Toronto, Ontario this 22^nd^ day of January, 2004.