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:
Brown/Reid Drainage Works
Township of Melancthon
Brown/Reid Drainage Works (RE) 2004 ONAFRAAT 40
STATUTE:
Drainage Act
HEARING:
November 5, 2004
DATE OF DECISION:
December 3, 2004
2004-40
NEUTRAL CITATION:
2004 ONAFRAAT 40
Brown/Reid Drainage Works
Township of Melancthon
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 Paul Chantree, Dundalk, Ontario 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 Brown/Reid Drainage Works in the Township of Melancthon.
Before: Jack Young, Vice Chair; John Taylor, Vice Chair; Blake Bexon, Member
Appearances:
Tom Pridham, P. Eng., engineer who prepared the report, representing the respondent, the Township of Melancthon
Paul Chantree, appellant
Valerie M’Garry, counsel to Michael Brausam, assessed landowner
Michael Brausam, assessed landowner
Jim Wilson, assessed landowner
Jennifer Wright, Grand River Conservation Authority
DECISION OF THE TRIBUNAL
This appeal was heard in Melancthon Township, Ontario on Friday, November 5, 2004. Mr. Chantree appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) on the grounds that the benefits of the proposed drainage improvements did not outweigh the cost of the improvements, and that the design of the proposed drain should be changed. He also appealed the assessment of costs to his property under Section 54 of the Act.
Ms. Denise Holmes, Clerk-Treasurer of the Township of Melancthon (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 Brown Reid Drainage Works, prepared by
R. J. Burnside and Associates Limited dated April 2004 (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
- (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).
Preliminary Matter
After hearing some testimony from an interested observer, Mr. Robert Younker, the Tribunal declined to give him standing at the hearing. Mr. Younker did not own land in the watershed.
The Background
Mr. Tom Pridham, P. Eng., (the Engineer) told the Tribunal he was a professional engineer who had worked for approximately 20 years in the general area and had prepared over 100 reports under the Act. He was qualified as an expert witness.
Mr. Pridham testified that the work proposed in the Report was the repair and improvement of the Brown Reid Drainage Works. He said the existing drain was last worked on under a 1958 report and that the upstream portion had almost filled in with sediment. He said the Municipality had received a request for repair and improvement of the drain and a petition to extend the drain across Concession Rd 6-7 SW road allowance to drain lands in Lots 7 and 8, Concession 6. He explained a total of 96 additional acres was proposed to be drained through the Brown Reid Drainage Works; 26 acres was in the natural watershed and 70 acres would be routed through the drain with private tiles.
Mr. Pridham said he designed the drain using a 12.7mm (one-half inch) in 24 hours drainage coefficient, which was the minimum required for adequate drainage. He said the work contemplated would repair and improve 1,445 metres of open drain, lowering the top end depth by 300 mm (12 inches) below the 1958 baseline. In addition, 36 metres of closed drain, plus apertures, including a large catchbasin in the road ditch, was to be constructed. The cost of the proposed work was estimated at $40,000.
Mr. Pridham said his design could be modified to allow for sediment traps to be installed to provide improved fish habitat in the drain. He said two on-line sediment ponds that may be desired by Ducks Unlimited could also be accommodated.
Mr. Pridham said the watershed was approximately 147.1 ha (363 acres) of agricultural land. He said the soil type was Harriston loam in the upper part of the watershed and Parkhill loam and Listowel loam in the lower part of the watershed.
Mr. Pridham said he assessed the cost of the drainage works using a modified Todgham method. He explained he divided the drain into four lengths and assessed the landowners using each length using a 50:50 statutory benefit:outlet liability ratio and generally accepted assessment methodologies. He said a special benefit of $8,500 was assessed to the Municipality’s road authority for the road crossing.
The Issues
The issues before the Tribunal were:
Should the Report be amended to include five fish habitat ponds or sediment traps on the Chantree property?
Were there other design options that ought to have been considered that were not considered and should the Tribunal order further modifications to the report?
Does the cost of the drain outweigh the benefit?
Should the assessments against the Chantree property be changed?
Should the project proceed without the commitment of the upstream landowner to tile his lands?
The Evidence
Design Issues:
Mr. Chantree told the Tribunal said he and his wife had lived on their property in Lot 7, Concession 7, Roll No. 4-096-00 (the Chantree property) since 1973 and that it was used as a commercial bee operation. He said his land was muck soil, that the land had been farmed but that 25 acres adjacent to the drain was too wet for crops.
Mr. Chantree said he did not believe that alternative options had been fully investigated. He said he would prefer that a solid tile drain be used to drain the upper watershed lands through the Brown Reid Drainage Works, or that these lands be drained to the McCue Drain, as 70 acres of land was naturally in the McCue Drain watershed. He also objected to a spur drain to the property identified by Roll No. 4-095-00 (the Wilson property) as he said Mr. Wilson did not want the spur.
Mr. Chantree also raised concerns about whether or not the drain improvement was allowed under the Municipality’s official plan, the possibility that the Department of Fisheries and Oceans (DFO) would not approve of the proposed work, and the impact of the proposed work on water quality and wetlands.
Mr. Chantree acknowledged the drain had silted in, especially at the top end. He said 25 acres of his land was subject to periodic flooding, and that while there may be some improvement from the proposed work, he did not expect to be able to grow crops on that land.
Ms. Jennifer Wright of the Grand River Conservation Authority testified that the Brown Reid Drainage Works was a Class C drain under the DFO drain classification system. She explained this was a warm water ditch that contained bait fish. Ms. Wright said the Grand River Conservation Authority was content with the addition of five fish habitat sediment traps proposed by Mr. Pridham to satisfy DFO requirements.
Mr. Brausam provided the Tribunal with photographs depicting flooding on two of his properties (Roll Nos. 4-089-00 and 4-090-00). He said he had owned the properties since 2002 but had been familiar with them all his life. Mr. Brausam said he preferred to drain the lands through the existing Brown Reid Drainage Works, rather than construct a longer drain to connect to the McCue Drain. He said he could not get on his fields until June and this limited his yields and made him ineligible for crop insurance. He said he was content with the design proposed in the Report.
Mr. Pridham told the Tribunal that installing a closed tile drain along the route of the existing Brown Reid Drainage Works would cost ten times as much as the open drain option he recommended and that the cost would be prohibitive. He said he looked at two options on the Chantree property to drain the new lands and that the shallower option was chosen in order to minimize work on the Chantree property. Mr. Pridham said that the increased cost of constructing the Con 6-7 SW road crossing to provide an outlet for 96 acres rather than 26 acres was insignificant. He submitted that it was more practical to drain 70 acres of land from the McCue Drain watershed into the Brown Reid Drainage Works, than to construct a 1,500 metre long drain to take this water to the McCue Drain.
Mr. Pridham provided correspondence received from the Municipality’s planner which he said indicated there was no conflict between the Official Plan and the proposed work on the drain. He said the Ministry of Natural Resources had not designated any of the land on the Chantree property as wetland.
Mr. Pridham said in his view the Brown Reid Drainage Works should be classified as a Class F drain using the DFO methodology, but that it was easier to adapt his design to meet the requirements of a Class C Drain than to have the drain reclassified. He said he proposed adding five silt traps as fish refuge areas, each of which would be 25 metres in length and excavated 600 mm (two feet) below the grade of the drain. Mr. Pridham said this would satisfy the DFO and it would grant its approval for the proposed work on the drain.
In response to a question, Mr. Pridham pointed out that landowners Barb Babineau and Alan Galbraith had written to the Tribunal indicating their support of the Report.
Cost-Benefit Issue:
Mr. Chantree said the cost-benefit analysis prepared by Mr. Pridham was flawed as it did not account for the cost of interest. Mr. Chantree said Mr. Pridham estimated increased returns of $5,000 per year on the newly drained lands. Using an interest rate of 6% per annum, and a cost of $90,000 – the estimated cost of the drain and the estimated cost of private tiling – Mr. Chantree calculated that the anticipated returns would not cover the cost of construction. Mr. Chantree also questioned whether or not high value crops could be grown in the Municipality, as he said there were insufficient heat units.
Mr. Pridham told the Tribunal the lands in question were agricultural, and that they would benefit from improved drainage. He said Mr. Brausam proposed to tile approximately 100 acres and this should generate an additional $50-$77 per acre according to a factsheet published by the Land Improvement Contractors of Ontario. He calculated that increased crop yields would pay for the municipal drain and the private tile work in 10-18 years. He said there may also be environmental benefits to the proposed drainage improvements.
Mr. Pridham said the cost of this drain was in line with the provincial average, which was $272 per hectare in 2000.
Assessment Issues:
Mr.Chantree told the Tribunal that the Court of Revision had offered to reduce the assessment against his property on the condition that he drop both his appeals. He submitted that this was improper and it should have dealt with his assessment appeal on its own merit.
Mr. Chantree said the costs assessed to the Chantree property should instead be assessed to the properties owned by Mr. Brausam. He said there would be no increase in the value of his land, and only minimal improvements in drainage in the land adjacent to the open ditch. He said there would be more water crossing his property as a result of the proposed work.
Mr. Chantree submitted that the Brausam lands would benefit from improved drainage and would increase in value. He said Mr. Brausam had estimated he would earn an additional $20,000 per year in farm revenue if the drain was improved. Mr. Chantree said it would be fair to assess all landowners in the watershed for the cost of clean out, but that the cost of the proposed improvements and the extension of the drain should be borne solely by Mr. Brausam. Mr. Chantree suggested that the engineer had erred in combining the request for maintenance with the petition to extend the drain in the Report, and that it was necessary to differentiate between the costs of the two proposals.
Mr. Chantree also objected to the special assessment to the road authority as this would be borne by all ratepayers in the Municipality and the existing culvert was only ten years old. He suggested this also be assessed to the Brausam properties.
Mr. Jim Wilson said he would receive no benefit from the proposed work and noted he had the second highest assessment in the Report. He said Mr. Chantree had never complained about water running onto his land from the Wilson property.
Mr. Brausam told the Tribunal he grew soybeans, spring wheat, mixed grains and hay. He said he was achieving a yield of 0.8 tonnes/acre for mixed grains (oats and barley) but could achieve 1.25 tonnes/acre if the lands were properly drained. He said in wet years such as 2004 he could not harvest all of his hay. Mr. Brausam said mixed grain was worth $130/tonne. Mr. Brausam said he was currently assessed 56% of the cost of the project and acknowledged that he had been willing to pay slightly more when asked at the Court of Revision.
Mr. Pridham explained that for the purpose of assessment, he had broken the drain up into four sections as follows:
Sta. A000 – Sta. A258, open drain on Galbraith property
Sta. A258 – Sta. A1380, open drain on Chantree property
B Drain, spur to the Wilson property
Closed Work
Mr. Pridham said the roads were paved so he charged them five times their acreage in the watershed to put them on an equivalent hectare basis with agricultural land. He said land in the McCue Drain watershed to be drained to the Brown Reid Drainage Works was assessed at half the rate, as surface water would still flow to the McCue Drain. Similarly, he charged the Galbraith property at half the acreage rate, as the lands were partially drained out of the watershed.
Mr. Pridham said he used a ratio of 50:50 statutory benefit:outlet liability for most of the drain, which put a higher than usual proportion of the cost on outlet liability. He said typically drains in this area of the province were assessed using a two-thirds benefit to one third outlet ratio. Mr. Pridham said the proposed work comprised largely of a minor deepening of the existing drain to provide an outlet for the upstream lands. He said that as a result the Chantree property was assessed proportionally less than it was under the 1958 engineer’s report – approximately 1/3 of the cost in 2004 versus 46% of the cost in 1958. The Brausam properties were assessed proportionally more.
Mr. Pridham pointed out that benefit assessments were based on benefit to the land, not the land owner. He said the Chantree property would be better drained due to the proposed improvements to the Brown Reid Drainage Works and had been assessed accordingly.
Mr. Pridham clarified that Section 26 of the Act required him to assess a special benefit to the road authority; he said all costs related to the existence of the road were to be charged to the road authority.
He also confirmed that Section 8 of the Act provided that the repair and improvement under Section 78 and the petition to extend the drain under Section 4 can be included together in the same report.
Other Issues:
Mr. Chantree said only one of the signatures on the petition was that of a landowner in the watershed and he did not believe the Act would allow a project to proceed on the basis of one signature without the support of a majority of the other landowners. He said he was also concerned that the private drainage system that Mr. Brausam wished to drain into the improved Brown Reid Drainage Works would not be constructed and the existing drain would be disturbed for no good reason. Mr. Chantree confirmed that he did not object to the allowances provided for in the Report.
Mr. Pridham said the area requiring drainage was spread across two properties which were both owned by Mr. Brausam. He pointed out that under Section 4 of the Act, only Mr. Brausam’s signature was required. He said the spur drain to the Wilson property was part of the 1958 design.
Mr. Brausam said it was his intent to construct a private tile system to outlet into the improved Brown Reid Drainage Works. He said he had already lined up a contractor to do the work.
Mr. Young stated that the petition appeared to be valid but pointed out that questions regarding the validity of the petition were outside the jurisdiction of the Tribunal.
Summations:
Mr. Chantree asked the Tribunal not to disturb the existing Brown Reid Drainage Works without a good reason. He said the area was a wetland even if it was not designated as such and questioned whether every piece of agricultural land was entitled to drainage. Mr. Chantree said he did not need the drain and had originally objected to its being cleaned out. He reiterated that he did not believe alternative drainage options had been thoroughly investigated. He explained that he had ultimately agreed that the drain could be deepened to provide a better outlet for Mr. Brausam, but that he wanted an assurance that Mr. Brausam would follow through and install tile drains on his properties. He said he would prefer that the proposed private drainage system be incorporated as part of the Brown Reid Drainage Works and included in the by-law.
Mr. Chantree said that he could see no benefit to his property from the proposed work and suggested that the Act provided that the landowner who benefits must pay. Mr. Chantree argued that Mr. Brausam was the beneficiary and should be assessed the full cost of improvements to the drain.
Mr. Pridham said the proposed work was a practical, modest proposal. He said it would have no negative environmental impact and the proposed changes to incorporate fish refuge areas would add little to the cost of the project. He said he had allocated costs using commonly accepted practices and he stood behind his assessment schedules. He asked the Tribunal to uphold his report, but to order the incorporation of five silt traps to act as fish refuges.
Ms. M’Garry submitted that it was not unusual for an engineer to drain lands from one watershed into another and said it made sense in this case given the proximity of the Brown Reid Drainage Works to the area requiring drainage. She asked the Tribunal to adopt the Report, with the addition suggested by Mr. Pridham to address the DFO concerns. Ms. M’Garry assured the Tribunal that her client intended to tile drain his farms once a proper outlet was available.
Ms. M’Garry said there is no formula in the Act to assess costs and it was left to the engineer’s judgement. She asked the Tribunal to defer to Mr. Pridham’s judgement with regard to assessments unless it found them to be grossly unfair. She pointed out that had the drain only been cleaned out to the 1958 standard, Mr. Chantree would be responsible for a much higher proportion of the costs than he was under the 2004 Report. She pointed out that Mr. Chantree had complained that other alternatives were not more fully investigated but that he was unwilling to pay the additional engineering cost associated with investigating these options.
The Findings
Design Issues:
The Tribunal accepts the engineer’s statement that it would be necessary to construct a tile under Concession 6-7 Rd SW in order to drain the major portion of the water on Lots 7 and 8, Concession 6 which lies within the natural watershed, and that the incremental cost of increasing the size of this road crossing to accommodate the additional 70 acres lying in the McCue Drain watershed is cost beneficial. The Tribunal considered the suggestion of an alternate drain to outlet into the McCue Drain. However, since the tile under this road is required to drain 26 acres from the natural Brown Reid watershed, it does not make sense to provide an alternate route for the balance of the subsurface water.
The suggestion to construct a closed tile drain across the Chantree property is not economical considering the land use and excessive cost that would have to be borne by the adjacent landowners.
With regard to the proposed addition of five fish refuges in the proposed drainage works, the Tribunal notes that there was no opposition expressed to their construction. The Tribunal accepts Mr. Pridham’s evidence that these fish refuges can be constructed at minimal additional cost and will order that they be incorporated into the Brown Reid Drainage Works.
Cost-Benefit Issue:
The Tribunal finds that on the whole the cost of the project would seem to be commensurate with the benefits to be derived. It is not reasonable to include the cost of private tiling when considering the cost-benefit of the municipal drain. The Tribunal was persuaded by the crop yield estimates provided by Mr. Brausam that there would be sufficient benefit to the proposed project to warrant the cost.
Assessment Issues:
The Tribunal has reviewed the distribution of the benefit assessment on the section of drain from Stn. A258 - Stn A1380. The Tribunal is of the opinion that the Brausam property identified by Roll No. 4-090-00 has not been assessed adequately to reflect the improvement in land value by an outlet being provided for the land upstream of Concession 6-7 Rd. SW. In addition, the Tribunal is of the opinion that the Chantree property (Roll No. 4-096-00) has received an unfair share of the benefit assessment of this section of the drainage project. Accordingly, the Tribunal will order that the benefit assessment of $1,500 to the M. Brausam property be increased from $1,500 to $3,000 and the benefit assessment on the Chantree property be reduced from $5,500 to $4,000.
The Tribunal upholds the engineer’s assessments on the other three sections of the Brown Reid Drainage Works.
With regard to the special assessment to the Municipality’s road authority for the crossing under Concession 6-7 Rd. SW, the Tribunal finds the engineer was correct in assessing the cost of this work to the road authority. Section 26 of the Act provides that:
Increased cost, how borne
- In addition to all other sums lawfully assessed against the property of a public utility or road authority under this Act, and despite the fact that the public utility or road authority is not otherwise assessable under this Act, the public utility or road authority shall be assessed for and shall pay all the increase of cost of such drainage works caused by the existence of the works of the public utility or road authority. R.S.O. 1990, c. D.17, s. 26.
Other Issues:
The Tribunal is satisfied by Mr. Brausam’s statement that he intends to put in his private tile and is anxious to do so. The Tribunal further notes that this is not a relevant consideration as it is not appropriate to mandate construction of a private under-drainage tile system on lands owned solely by one landowner as a contingent requirement of a municipal drain constructed under the Act. The norm is to provide an outlet into a drain and to allow landowners to design and construct their own tile systems.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
Prior to the passing of Provisional By-Law No. 31-2004, the Clerk of the Municipality shall mark on the front of the report, in red, “Amended pursuant to the order of the Agriculture, Food and Rural Affairs Appeal Tribunal, dated December 3, 2004” and shall insert the following paragraph into the Report at the end of Section 6.0 Proposed Design and Appurtenances: “A total of five fish refuge areas, each 600 mm below the proposed gradeline shall be constructed from Sta. A050 to Sta. A075, Sta. A300 to Sta. A325, Sta. 575 to Sta. A600, Sta. A900 to Sta. A925 and Sta. A1225 to Sta. A1250. The cost shall be included with the balance of the work. The refuge areas shall also be cleaned out together with the balance of the drain during any subsequent maintenance work.”
Prior to the passing of Provisional By-Law No. 31-2004, the Clerk of the Municipality shall amend the Construction Assessment Schedule as follows: a) Increase the benefit assessment of the property identified by Roll No. 4-090-00 (M. Brausam), by $1,500. b) Decrease the benefit assessment of the property identified by Roll No. 4-096-00 (P. & R. Chantree) by $1,500. c) Adjust the Total Assessment on the above properties identified by Roll Numbers 4-096-00 and 4-090-00 to reflect these changes
The appeal of Paul Chantree under Section 48 of the Act is dismissed.
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 Gravenhurst, Ontario this 3rd day of December, 2004.