Agriculture, Food and Rural Affairs Appeal Tribunal
1Stone Road West Guelph, Ontario
N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email:Tribunal@OMAF.gov.on.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
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:
Mulock Drain
Township of Brock
Mulock Drain (RE) 2005 ONAFRAAT 15
STATUTE:
HEARING:
May 10, 2005
DATE OF DECISION:
June 1, 2005
2005-15
NEUTRAL CITATION:
2005 ONAFRAAT 15
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.
AND IN THE MATTER OF:An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Carl Mulock, Woodville, Ontario under Section 54 of the Drainage Act from the decision of the Court of Revision on the Mulock Drain in the Township of Brock.
Before:
Kirk Walstead, Vice Chair; Jack Young, Vice Chair: Ron Gelderland, Member.
Appearances:
Mr. Carl Mulock, appellant.
Mr. Pete Daly, assessed landowner.
Mr. Carle Parliament, assessed landowner.
Ms. Mary Quinn, on behalf of Mr. J. Swain, assessed landowner.
Mr. William Parliament, assessed landowner.
Mr. John Kuntze P. Eng., the engineer who prepared the report, on behalf of the Township of Brock.
DECISION OF THE TRIBUNAL
This appeal was heard in Cannington, Ontario on May 10, 2005. Mr. Carl Mulock appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the January 17, 2005 decision of the Court of Revision to change the assessments from the Schedule of Assessments as prepared in the July 28, 2004 Report by K. Smart Associates on the Mulock Drain (the Report).
Mr. Thomas Gettinby, Deputy Clerk-Administrator of the Township of Brock (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 Report parties to this hearing. Proof was filed with the Tribunal that all parties have been served with notice of this hearing
Statutory Context
Section 54 of the Act states:
- (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.
(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.
. (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, chap. D17, s. 54.
The Background
Mr. Carl Mulock and other owners of land on Lots 10 and 11, Concession 13 of the Township of Brock petitioned under Section 4 of the Act for improved drainage of their lands in July 2001. The Township of Brock appointed the firm of K. Smart Associates Limited under Section 8 of the Act, to prepare a report for improving the drainage of the petitioners’ lands, in April 2002.
The proposed drainage works would provide improved outlets to the existing tile drainage on Lots 10 and 11, Concession 13, Township of Brock. The proposed works will commence at Lot 8 Concession 13 continuing to the middle of Lot 11, Concession 13. The proposed work includes: a clean out of the existing ditch, the removal of beaver dams, a re-grading of the ditch bottom to provide freeboard for tile outlets and the replacement of the access culvert to the Mulock property.
Except for a small portion of the drain at the northeast corner of the Mulock property, the drain is located on the south side of the road allowance of Concession Road 14. The portion of the drain lying along the northeast corner of the Mulock property will be constructed within the road allowance.
Although some of the original petitioners withdrew their names from the petition, the engineer determined that the petition was sufficient pursuant to Section 4. (1) (b) of the Act as signed by Mr. Carl Mulock.
Assessed landowners Mr. P. Daly (Roll No. 6-191), Mr. Joe Swain (Roll No. 6-195), Mr. Carle Parliament (Roll No. 6-197 & 6-202) and Mr. William Parliament (Roll No. 6-199 & 6-203), appealed their assessments to the Court of Revision, Township of Brock, held January 17, 2005.
The Court of Revision Township of Brock, granted all of the above noted appeals and reduced the assessments against their lands to zero. The total reduction of the assessments against the appellants’ lands was added the lands owned by Carl Mulock (Roll No. 6-187).
Mr. Mulock appealed to the Tribunal from the decision of the Court of Revision on February 4, 2005.
The Issue
The issue before the Tribunal was:
Should the January 17, 2005 decision of the Court of Revision be upheld?
The Evidence
Mr. John Kuntze, P. Eng., submitted his report dated July 28, 2004 to the Tribunal. He showed the Tribunal an aerial photograph of the lands within the watershed of the proposed drainage works. He stated that some of the landowners who had withdrawn their names from the petition for drainage owned land downstream of the Mulock property.
Mr. Kuntze told the Tribunal that the proposed drainage works would improve the outlets of the tile drainage on the Mulock property. He explained that the proposed drainage works would be constructed along the south side of the Township of Brock Concession Road 14. Mr. Kuntze told the Tribunal that:
The Concession Road 14 is an untravelled Road.
He was unable to determine if the existing ditch had been constructed under the Act; there was however a straight channel lying to the southwest of the existing ditch in Lot 8 on Concession Road 14.
Only those landowners with properties fronting onto Concession Road 14 were invited to the initial site meeting, because the watershed had not been defined at that time. Mr. Mulock submitted the tile plan from his farm at the initial site meeting.
The proposed works consisted of the cleaning out of 1800 meters of existing ditch, regrading a portion of the ditch bottom and the installation of an access culvert. The total estimated cost of the proposed works was $ 29,200.
Mr. Mulock had indicated that three of the tile outlets from his property were submerged under water in the ditch, causing blowouts and poor drainage.
Mr. Mulock had attempted to clean out the ditch along the frontage of his property on Concession Road 14 but there had been no improvement in drainage as a result.
At his initial survey in January 2003, he could see that water had welled up at the tile outlets on the Mulock property.
The ditch fronting the Mulock property had a flat gradient and was in disrepair. The channel contained a lot of debris and overgrowth. There was evidence of beaver dams in the ditch at Lot 8.
He made a site inspection again in April 2003 as he wanted to see the drainage capacity under spring conditions.
The lands in the watershed consisted of agricultural land, bushlots, and a portion of the Highway 12 road allowance.
A second site meeting was held in July 2003 for all owners of land in the defined watershed and the initial cost estimate was presented.
Benefit assessments make up 55% of the total cost of the works and outlet liability assessments account for 45% of the total cost.
The Mulock property is assessed for half the benefit portion of the costs.
The Mulock property comprises 35% of the watershed; accordingly it is assessed for 35% of the outlet cost.
Four owners of lands upstream of the Mulock property appealed their assessments to the Court of Revision. The Court of Revision reduced the appellants’ assessments to zero.
In response to questions Mr. Kuntze referred to the Minutes of the meeting of the Court of Revision. He told the Tribunal that the appellants did not submit any evidence to the Court of Revision to indicate that water from their lands was not flowing onto the Mulock property. He stated that in response to the appeals of Messrs. C. and W. Parliament, he considered it reasonable to adjust the ratio of assessment between benefit and outlet, however it was not appropriate to make no assessment against their lands. Mr. Kuntze told the Tribunal that he had examined the land owned by Mr. C. Parliament by walking it. He stated that he did not observe any swamps on Mr. C. Parliament’s lands.
Mr. Kuntze responded to questions that:
The proposed works is to be constructed immediately adjacent to the road.
The new access culvert to the Mulock property is to be installed on the road allowance.
The existing drain is located on private property and the proposed works will be constructed in the same location.
Water flows onto the Mulock property from adjacent properties to the east.
He had observed that water overflowed the entrance culvert to the Daly property, however it was not a severe problem.
Water flowing westward from the Daly property onto the Mulock property entered the drain on the eastern side of the Mulock property.
Mr. Carl Mulock told the Tribunal that he initially petitioned for an outlet for the tile drainage on his farm. He stated that he was satisfied with the proposed works as prepared in Mr. Kuntze’s report. He said that he agreed with the assessments contained in the report and that he wished the Tribunal to order that the assessments should be levied as stated in Mr. Kuntze’s report.
Mr. Mulock responded to questions that he employed a contractor to clean out the portion of the ditch fronting his property in 2000, but no there was improvement in drainage as a result.
Mr. Carle Parliament appealed to the Court of Revision, who reduced the assessments against his lands to zero. He opposed Mr. Mulock’s appeal to the Tribunal. Mr. C. Parliament told the Tribunal that water flowed onto the Mulock property at the property line between the Daly and Milroy properties. He stated that there was no onus on him to prove that his lands should be exempt from outlet liability. Mr. C. Parliament said it would be reasonable to assess his lands at half of the assessment prepared in the report. He explained that he operates a livestock business and that his three wells become drier with the passing of each year. He stated that water has to be purchased for his business.
In response to questions Mr. Parliament said that:
He was not aware that his assessments would be reduced due to the one third grant available from the Ontario Ministry of Agriculture and Food.
He believes that the assessment would still be too high notwithstanding the grant reduction.
The area within the watershed is known as the Gibson Hill Swamp, however none of the properties are assessed for taxes based on the swamp designation.
Ms. Mary Quinn appeared before the Tribunal on behalf of her father assessed landowner Mr. J. Swain. Ms. Quinn told the Tribunal that the rear of her father’s property where it fronts onto the Concession Road 14 is bush lot. She explained that a knoll on the property would prevent water from flowing into the ditch. Ms. Quinn stated that the proposed works provide no benefit to her father’s property.
Mr. Pete Daly explained to the Tribunal that he has owned his property in the Gibson Hill Swamp for 30 years. He said that none of the landowners who lived to the east of the Mulock property were invited to the site meeting. He said it was incorrectly recorded in the report that the owners were invited to the initial site meeting. Mr. Daly said that it was contradictory that Mr. Mulock stated that he had cleaned out a portion of the drain and that Mr. Kuntze said that the ditch contained debris.
Mr. Daly told the Tribunal that his property would not benefit from the proposed works and that the only property to benefit was the Mulock property. He said that Mr. Mulock wanted the drainage works as it increased the saleability of his property. He said that the Mulock property was for sale. Mr. Daly told the Tribunal that his property is a swamp known as the Gibson Hill Swamp and that he does not want water removed from it. He said that it was environmentally irresponsible to change the environment to realize a profit. Mr. Daly told the Tribunal that none of his property was used to grow crops.
In response to questions, Mr. Daly said that although water backs up at the entrance culvert to his property it is not an annual occurrence. He stated that during the 30 years that he has owned the property, the culvert has never been washed out.
Mr. William Parliament told the Tribunal that he would prefer not to be assessed on the works but he understood his responsibilities with respect to assessments under the Act. He said that he sympathized with his neighbours’ concerns.
Summations
In summation Mr. Kuntze told the Tribunal that not all the lands within the watershed are included in the area known as the Gibson Hill Swamp. He referred to his submission of an aerial photograph of the watershed where the wooded areas are distinctly visible. Mr. Kuntze explained that he reduced assessments against all the woodlots in the area. He stated that he continues to support his report. He requested that the Tribunal examine the assessments and make an order that the assessments be levied as proposed in his report. He said the assessments are equitable.
In closing Mr. Mulock told the Tribunal that water flowed onto his property from the Milroy and Daly properties to the east. Mr. Mulock explained that the surface flows from the east were the cause of erosion. He said that he sought improvement as the current ditch was not removing the water. He asked the Tribunal to order that the assessments be levied as provided for in the report.
The Findings
The Tribunal finds that the Court of Revision did not recognize the requirement that each of the landowners within the drainage watershed are responsible for outlet liability in accordance with Section 23(1) of the Act appended to this decision as Appendix A.
The owners of lands who appealed to the Court of Revision are responsible for outlet liability for water that flows into the drainage works from their lands. It is the finding of this Tribunal that no evidence was presented by the appellants to the Court of Revision or to this Tribunal hearing to indicate that their properties will not use the drainage project to transport water which flows from their properties, as will be provided by this project.
The Tribunal concurs with the engineer that the Daly property, roll number 6-191 does in fact receive a benefit from the drainage project in accordance with section 22 of the Act, as it would provide an improvement to the northwest corner of his property where the access culvert is located at the entrance to his residence.
There was no evidence provided to indicate that water did not flow from the surrounding properties to the east of the Mulock property and eventually into the drain.
ORDER OF THE TRIBUNAL
After careful consideration of the evidence filed and the submissions made the Tribunal orders:
- The decision of the Court of Revision dated January 17, 2005 to reduce the assessments against the properties belonging to Mr. P. Daly (Roll No. 6-191), Mr. Joe Swain (Roll No. 6-195), Mr. Carle Parliament (Roll No. 6-197 & 6-202) and Mr. William Parliament (Roll No. 6-199 & 6-203), to zero and to apply the reduction to the property belonging to Mulock Farms (Roll No. 6-187) is rescinded.
2The assessments against the lands as of the appellants to the Court of Revision as calculated in Schedule A, in the report prepared by K. Smart Associates dated July 28, 2004 are confirmed.
3The non-administrative costs of the Municipality 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 Essex, Ontario this 1st day of June, 2005.
Appendix A
The following is excerpted from Section 23 of the Drainage Act, R.S.O. 1990, CHAPTER D.17
Outlet liability
- (1) Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability. R.S.O. 1990, c. D.17, s. 23 (1).