Evert Drain (Re), 2004 ONAFRAAT 5

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: Evert Drain Township of Malahide Evert Drain (RE) 2004 ONAFRAAT 05

STATUTE: Drainage Act

HEARING: January 28, 2004

DATE OF DECISION: February 9, 2004

2004-05

NEUTRAL CITATION: 2004 ONAFRAAT 05

Evert Drain Township of Malahide

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 Jeff Davis, St. Thomas, Ontario and Ted Chyc, CHYC Enterprises Ltd., Belmont, Ontario under Section 48 of the Drainage Act from the engineer’s report on the Evert Drain in the Township of Malahide and under Section 54 of the Drainage Act from the decision of the Court of Revision on the Evert Drain in the Township of Malahide.

Before: Andrew Osyany, Vice Chair; Yvon Simoneau, Vice Chair; Doug Flook, Member

Appearances: John M. Spriet, P. Eng., engineer who prepared the Report Ted Chyc, CHYC Enterprise Ltd., appellant Jeff Davis, appellant Jean Evert, assessed landowner Charles M. Attard, Thames Valley District School Board, assessed landowner Dave Hartley, Road Superintendent

DECISION OF THE TRIBUNAL

This appeal was heard in Aylmer, Ontario on Wednesday, January 28, 2004. Mr. Jeff Davis and Mr. Ted Chyc appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 and Section 54 of the Drainage Act (the Act).

Ms. Linda Mannicon, Assistant Treasurer, Township of Malahide (the Municipality) performed the duties of the Clerk of the Tribunal.

On January 6, 2004, the Tribunal issued an order making all landowners assessed or compensated in the engineer’s report on the Evert Drain (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 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).

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).

The Background

Mr. John M. Spriet, P. Eng. testified that he is a professional engineer and had worked at Spriet Associates since graduating in 1996. He told the Tribunal the Evert Drain was designed to drain a road allowance, a school property and agricultural lands. He said the Report proposed to:

• Construct a closed Main Drain of 12-inch concrete tile (150 metres) and 10-inch concrete tile (202 metres) with an outlet in the open portion of the existing Putnam Drain.

• Incorporate 311 metres of existing 8-inch drains and several catchbasins. The existing drain lying East of the Main Drain was named Branch 1. The existing drain lying West of the Main Drain was named Branch 2.

• Incorporate 18 metres of 12-inch sub-surface pipe which lies under the Crossley Hunter Line as part of the Evert Drain.

Mr. Spriet explained he designed the drain to outlet in the open portion of the Putnam Drain, rather than the closed portion, as the closed portion was undersized.

Mr. Spriet explained that in assessing the costs of the Main Drain to landowners, he first determined that an 8-inch concrete tile drain with two less catchbasins would be adequate to drain agricultural lands. He said he took the difference between the cost of the proposed drainage works, and a drain that met agricultural standards, and assessed this cost to the Crossley Hunter Line and the property identified by Roll No. 020-074 and owned by the Thames Valley School Board (the school property). This cost amounted to $6,800. Mr. Spriet said that 53% of the remaining cost of the Main Drain was assessed as benefit, with the balance assessed as outlet, using variable run-off factors depending on whether the land was agricultural, a residential lot, school property or road.

For Branch 1, Mr. Spriet said he assessed 74% of the cost of the branch drain as statutory benefit to the Crossley Hunter Line, the school property and the Davis property (Roll No. 020-073). The balance was assessed as outlet liability. For Branch 2, 74% of the costs were assessed as statutory benefit to the Crossley Hunter Line, the Giles property (Roll No. 020-074-01) and the CHYC Enterprises Ltd. property (Roll No. 020-075-01). The balance was assessed as outlet liability.

The Issues

The issues before the Tribunal were:

1. Is the assessment on the Davis property (Roll No. 020-073) proposed in the Report appropriate?

2. Is the assessment on the CHYC Enterprises Ltd. property (Roll No. 020-075-01) proposed in the Report appropriate?

3. Should the assessed area and/or assessment on the Evert property (Roll No. 020-109) that is proposed in the Report be increased?

4. Should the allowances proposed in the Report be reduced?

The Evidence

CHYC Enterprises Ltd. Property

Mr. Ted Chyc told the Tribunal that he was told at the original site meeting that he would not be assessed on the Evert Drain as the Branch 2 tile would only extend to the end of the school property. He said the municipality’s Road Authority had extended the drain and he would not otherwise be assessed. Mr. Chyc said the drain that was to be incorporated as Branch 2 was constructed after the site meeting. He also suggested an extra catchbasin was required because the Road Authority removed an existing culvert.

Mr. Chyc said 98 acres of his property was assessed in the Catfish Creek Drain Extension report and that his field tiles all systematically drained to that outlet. He also submitted a document showing laser measurements which he said indicated only 1/3 of the assessed land on the CHYC Enterprises Ltd. property would drain to the Evert Drain. He said the visual inspection method of determining the watershed, which was used by Mr. Spriet, was less accurate. He also indicated it was unfair to assess his property into two drains.

Mr. Chyc submitted a fact sheet entitled Understanding Drainage Assessment by R.W. Irwin. Based on this fact sheet, he said that the CHYC Enterprises Ltd. property should not be assessed for statutory benefit, as the proposed drainage works would not increase the productive quality of the land, would not increase land value and would not prevent water from entering onto the land.

Mr. Spriet agreed that he originally planned to end the drainage works at the boundary of the school property and the CHYC Enterprises property. He explained that the Road Authority was in a unique position under Section 4 of the Act and could petition to extend the drain. He said the road ditch was constructed after the site meeting, and had been extended beyond the original planned endpoint. Mr. Dave Hartley, Roads Superintendent, explained the drain had to be extended as the land was too flat to drain the road otherwise. He said he was one of the petitioners on the drain.

Mr. Spriet testified he was not confident with the watershed boundaries in the Catfish Creek Drain Extension – 1970, which included the CHYC Enterprises property. He said he walked all over the property and visually determined the watershed for the Evert Drain. He said a low spot would drain toward the Crossley Hunter Line. He said his assessment on this property was reduced because it was tiled toward the Catfish Creek Extension Drain.

Mr. Spriet said topographic maps of the area were not useful as the scale was too large. He said he looked at the watersheds of the Putnam Drain, the School Drain and the Catfish Creek Drain as well as walking the area.

Davis Property

Mr. Jeff Davis told the Tribunal he had requested an outlet for 1.75 acres of land on the Evert Drain, but believed his assessment was too high. He compared the legal outlet benefit assessed to various properties on the report and on a report prepared on the Hawes Drain and noted that the benefit assessment was $600 for each property, despite the fact that the assessed lands were of different acreage. He submitted that a benefit assessment could only be assessed for a particular benefit, not a general benefit to a property. He said the value of his land would not increase as a result of the Evert Drain.

Using costs provided by Mr. Hartley, Roads Superintendent, Mr. Davis calculated the construction cost of Branch 1, excluding a lane crossing, to be $3,447. He said his property was assessed 26% of that cost, the school property was assessed 41% of the cost and the Crossley Hunter Line was assessed only 33% of the cost. He said this was unfair, as all upgrades above agricultural standards should be assessed to the non-agricultural properties.

Mr. Spriet stated that acreage was important in determining outlet liability but that the benefit of obtaining a legal outlet was not related to acreage. He said there was a clear benefit to the Davis property as it was gaining an outlet and that $600 was a reasonable amount to charge for that benefit. He also pointed out that the Davis property was near the top end of the drain and thus used a greater length of the drain than properties closer to the outlet. However, he said he did not use a location factor in calculating the assessments, as the overall project was relatively small.

Mr. Spriet explained he used land run-off factors of 1.0 for the Davis property, which is agricultural, 2.0 for the school property and 4.5 for the road.

Mr. Spriet said he did not assess a Section 26 benefit to the road, as the Road Authority had undertaken the construction of the Branch drains itself. He said he could have made a Section 26 assessment but pointed out that he did charge a substantial portion of the benefit assessment to the Crossley Hunter Line and the school property.

Evert Property

Mr. Chyc stated that land to the West of the proposed drain clearly slopes toward the Evert Drain and that it was not all included in the watershed. Mr. Davis provided a map depicting the portion of the Evert property assessed into the drain, and the portion that he believed should be assessed, based on the slope of the land. He said that water on this portion of the Evert property, which he estimated as 10 acres, could only drain to the Main Drain as there was no other logical place for it to go. Mr. Davis said there was precedent for assessing the same property on two drains.

Mrs. Jean Evert testified that her property is tiled and well drained. She said a 4-inch tile was located in the approximate location of the proposed drain. She told the Tribunal she did not require any further drainage, as her tenant farmer’s crop yields were very good. She said her assessment was higher than she had expected and she did not want it increased.

Mr. Spriet presented a diagram depicting land elevations on the Evert property which was prepared by his colleague Mr. J.R. Spriet after the completion of the Report. He said 1.2-1.3 ha of the Evert property could have been included in the watershed, based on these elevations, rather than the 0.8 ha assessed in the Report. However, he reiterated that he had not used a location factor in determining assessments and that if he did, the assessment to the Evert property would be approximately the same amount. The outlet of the drain was located on the Evert property. He told the Tribunal the Evert property could easily drain tiles into the existing Putnam Drain.

Allowances

Mr. Chyc and Mr. Davis both testified that the s. 29 allowances paid to them for the lands taken for municipal drains constructed in 2003 were calculated at a 10% lower rate than the allowances on the Evert Drain. Mr. Chyc said the same engineering firm prepared both reports, the farms were only one mile apart and were located in the same municipality.

In regard to the s. 31 allowances given to the municipality for the existing drains incorporated into the Evert Drain, Mr. Davis told the Tribunal he had obtained quotes from two backhoe operators, allowed for one half day for a backhoe, two labourers to install tile, 8-inch concrete tile, miscellaneous supplies and 16% of the administrative costs in the report, and calculated it would cost $2,649 to construct Branch 1 to an agricultural standard. He said he was concerned that the Road Authority was given an allowance based on their costs to install Branch 1, rather than having the drain construction tendered for competitive bids.

Mr. Spriet said the land value estimates used in the Hawes Drain report may have been based on less recent land values than used in his Report.

With regard to the allowance provide to the Municipality for work undertaken by the Road Authority, Mr. Spriet said he used estimates provided by Mr. Hartley to calculate the cost of the work. He said he compared those costs to the cost of similar work recently undertaken as a result of reports prepared by his firm and that his estimate of the Road Authority’s costs was lower. He stated the allowance he provided was fair. He clarified that he had not designed the Branch drains, and that the administration cost charged to the branches was for surveying the drains after they were constructed, and for assessing the costs of the work.

Mr. Spriet testified that he believed Mr. Davis’ cost estimate was low. He said the Municipality would not have allowed concrete tile to be installed in a road allowance, and allowances would have been needed to construct it on private lands. He also noted there were lane crossings and lawns to go through on the Branch drains which were not a factor on the Main Drain.

Mr. Hartley provided the Tribunal with a document depicting actual costs incurred by the Municipality in constructing the branch drains. He said the total cost was $21,000 and the allowance given in the Report was $16,500.

Summations:

Mr. Chyc submitted that 1 acre of the CHYC Enterprises property would have surface drainage to the Evert Drain, but that there would be no subsurface drainage as the land was tiled to a different outlet.

Mr. Davis argued that lands to the South of the Crossley Hunter Line should be assessed into the Evert Drain. He suggested the Davis property be assessed on Branch 1 for only the actual cost of 11 metres of tile. He said 10% of the total assessment would be fair.

Mr. Spriet said he believed the assessments and allowances in the Report were fair. He said he could have assessed more area of the Evert property on the drain, but that he would then use a location factor, and the change in assessments would balance out. He acknowledged he could have charged a special assessment to the Crossley Hunter Line, but pointed out he charged it a high benefit, and did not provide an allowance for the full costs of the work undertaken by the Road Authority. Mr. Spriet said he stood by the Report.

Mrs. Evert said she did not require drainage and suggested that if assessments were altered that either the Municipality or the Thames Valley District School Board should be assessed more, as they required drainage.

Mr. Charles Attard clarified that the Thames Valley District School Board did not need the drain outlet either, but that since there was road work being done believed it was prudent to hook into the Evert Drain. He said the assessment on the school property was fair and should not be increased.

The Findings

Assessments

With regard to the CHYC Enterprises property, the Tribunal finds that any problem with the proper overlap of the Evert Drain drainage area and the Catfish Creek Drain Extension drainage area should be resolved with the next revision of the Catfish Creek Drain. It is the view of the Tribunal that the property is afforded an outlet and there is a portion of the field draining to the Evert drain. The provision of a legal outlet justifies the assessment to this property, notwithstanding that the field tiling is directed the other way.

The Tribunal finds Mr. Davis is in error in believing that none of the driveway crossing costs are chargeable to him, as an upstream user. It is standard practice to allow one entrance per property. In the case of exceptional requirements of owners, there may be a special assessment for up to half the cost of the crossing. But there appeared to be no justification for a special assessment to the Thames Valley School Board in this particular case.

The Tribunal agrees with Mr. Davis that he should only pay for the cost of an equivalent farm drain, on Branch 1, but the engineer’s calculations on Branch 1 appear to the Tribunal to be a fair cost. The Tribunal notes that had the branches been designed by the engineer preparing the report, the calculations could be more clearly quantified and refined.

The Tribunal agrees with Mr. Davies and Mr. Chyc that a larger land area on the Evert property could technically be brought into the drain. However, there would be a more than offsetting reduction in the statutory benefit assessment. Bearing in mind the existing 4-inch tile in the close proximity to the new proposed drain, the Evert property assessment, if anything could have been lower. The Tribunal notes that because of the description of the drainage area by the engineer in the Report, if the owner of the Evert property ever did connect to the Evert drain from the northwest corner of the Evert property, these would be new connections and charged for accordingly as per Section 66 of the Drainage Act.

The total construction cost of the project are assessed out in the following proportions to the various owners:

61% to the municipality 21% to the Thames Valley School Board 8.8% to Mrs. Evert 3.9% to Mr. Davis 3.1% to Chyc Enterprises 2.4% to Mr. Giles

The maintenance schedule is a combination of the statutory benefit and outlet liability construction assessment, with the statutory benefit assessments being reduced by 50%.

While the Tribunal may not agree with each and every feature of the Report, the results are within the appropriate range, the panel sees no reason to disturb the assessments.

Allowances

Several parties raised the concern that the Road Authority, which petitioned for drainage, undertook to construct Branch 1 and Branch 2 of the Evert Drain on its own initiative. Given that an engineer had been appointed under the Drainage Act to design a solution to the drainage problem, and a site meeting had been held, it was inappropriate for the Road Authority to design and construct the branch drains. The proper procedure is for the engineer to design the drainage works and prepare the report. The Council of the Municipality may then accept the report, and subject to any variations ordered as a result of appeals, have the proposed works constructed.

Notwithstanding the flaws in the process, the undisputed evidence before the Tribunal was that the allowances provided to the Municipality for the two branch drains were lower than the engineer would normally provide for such work, and were lower than the cost of constructing the branches. Therefore, the Tribunal will not order any change to the allowances provided in the Report.

Other

The panel wishes to reiterate that the Municipality should not have gone ahead to construct the drains once the petition had been signed and the engineer retained to prepare a report. The provisions of the Drainage Act bind the Municipality as well. If assessed landowners could simply go ahead and construct their own works during a pending Drainage Act petition, the work of the independent engineer could be rendered ineffective. As well, the assessment of the cost of drainage work is something that is best and most transparently done by the independent engineer through the report. The Tribunal has not hesitated in the past in penalizing landowners who tried end-runs around the provisions of the Drainage Act. The panel does not consider that the Municipality intended an end run, but notes that the way the works unfolded contributed to the unhappiness of other assessed owners and may have contributed to the bringing of these appeals.

In order to assist the engineer in preparing future reports, the panel wishes to draw some matters to his attention. Drainage reports should be complete, self-sufficient and transparent. The engineer properly assessed the value of a legal outlet connection as a benefit to the property. However, that value is a part of the statutory benefit assessment and is not subsumed into the outlet liability assessment. It is also helpful if the report specifically mentions how the various components of the statutory benefit are calculated.

In this case the assessment was complicated by the municipality’s action in going ahead with its own construction; however, the Act requires that section 26 assessments be made to recognize and assess to the road authority all the additional costs incurred because of the existence of the road.

ORDER OF THE TRIBUNAL

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

1. The appeals of Jeff Davis and Ted Chyc, CHYC Enterprises Ltd., under Section 48 of the Drainage Act are dismissed.

2. The appeals of Jeff Davis and Ted Chyc, CHYC Enterprises Ltd., under Section 54 of the Drainage Act are dismissed.

3. Prior to the passing of By-Law 03-66, the Clerk of the Municipality shall mark on the front of the report, in red, “Amended pursuant to the order of the AFRAA Tribunal, dated February 9, 2004” and shall insert the following paragraph into the Report on Page 6: ”The drainage area of the Catfish Creek Drain is to be reviewed at the time of the next report to establish its boundaries, having regard to this report.”

4. 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 9th day of February, 2004.