Hambly Sabourin Drain 2001/ Beaulac-Beach Drain (Re), 2005 ONAFRAAT 17

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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

Hambly Sabourin Drain 2001/ Beaulac-Beach Drain

Township of Brethour

Drainage Act

May 25, 2005

DATE OF DECISION:

June 10, 2005

2005-17

2005 ONAFRAAT 17

IN THE MATTER OF THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Richard S. Gosselin, Belle Vallée, Ontario and Garry Beach, Belle Vallée, 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 Hambly/Sabourin Drain and Beaulac/Beach Drain in the Township of Brethour.

Before: John Taylor, Vice Chair; Jack Young, Vice Chair; Blake Bexon, Member

Appearances:

Ken Smart, P. Eng., engineer who prepared the addendum to the report

Al Fraser, representing appellants Richard Gosselin and Garry Beach, and assessed landowner Sylvain Gauthier

Jack Wilkinson, assessed landowner

Jackie Connelly, assessed landowner

Ken Hambly, assessed landowner

Evelyn Hambly, assessed landowner

Andrew Degroot, on behalf of Maurice Cheveaux, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Belle Vallée, Ontario on May 25, 2005. Messieurs Gosselin and Beach appealed from a decision of the Court of Revision on the Hambly-Sabourin Drain and Beaulac-Beach Drain to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act). They also identified concerns with the scope of work proposed in the Addendum No. 1 Hambly Sabourin Drain 2001, Beaulac Beach Drain 2001 report dated November 22, 2004 by K. Smart Associates Limited (the Addendum Report).

Mr. Roland Lachappelle, Clerk-Treasurer of the Township of Brethour (the Municipality) performed the duties of the clerk of the Tribunal.

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Addendum 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

(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

(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;

(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

The Tribunal held a hearing on November 8, 2002 to hear appeals from an engineer’s report dated July 12, 2002 and the Court of Revision on the Hambly-Sabourin Drain – 2001 and Beaulac-Beach Drain 2001. It held a further hearing on June 25, 2004 in order to review its original decision. On October 8, 2004 the Tribunal released a decision which included an order that the engineer prepare an addendum report for the Hambly-Sabourin Drain – 2001 and Beaulac-Beach Drain 2001 and provided specific direction as to what was to be included in this report. It is the Addendum Report that was the subject of appeals to the Tribunal heard on May 25, 2005.

The Issue

The issues before the Tribunal were:

Whether or not the work recommended in the Addendum Report and the original report should be reviewed and/or modified?
Are the maintenance assessments to the Gosselin properties and the Garry Beach property appropriate?

The Evidence

Section 48 Issues:

Mr. Al Fraser, representing the appellants and one other landowner, told the Tribunal the drain was eroding rapidly and he was concerned that the work outlined in the original report and the Addendum Report was not sufficient and the drain would fail. He said he did not have a solution to the problem but feared that removing beaver dams and adding rip rap would not resolve the problem. He said there was a large volume of spring run-off through the drains and this would wash away rip rap.

Mr. Fraser presented photographs which he said showed rip rap that had been washed down the drain, serious degradation of the banks of the drain and upstream gullies, trees that had been damaged or destroyed and landslides.

Mr. Fraser told the Tribunal that tiling of agricultural lands had resulted in more water flowing through the drains than they had been designed to carry. He said he believed the cost of maintenance on the drain would be prohibitive and force landowners into bankruptcy. Mr. Fraser said water could be re-routed away from the drains to assist in resolving the problem.

Mr. Ken Smart, the engineer who prepared the Addendum Report, told the Tribunal he saw nothing in the photographs submitted that would lead him to change his recommendation of the work to be done. He said the rip rap would be placed on the channel bottom in certain sections of the drain and the stones would be large so should not wash out but he could not guarantee that repairs would not be needed. Mr. Smart said a culvert on the Beach property would be protected by rip rap. He said it would overflow when water levels were high but should not wash out. Mr. Smart said the proposed work could be done in the summer.

Mr. Smart acknowledged that landowners would be more comfortable with an enclosed drain but though it is not feasible the cost would be prohibitive. He said the only other viable option was to abandon the drain. He explained a petition would be required to re-route the drain. He had been appointed under Section 78 of the Act.

Mr. Smart explained that it would be up to the Drainage Superintendent to determine when maintenance work was to be undertaken on the drain. He said that the Drainage Superintendent would consult with landowners. He explained he used a rational design approach in calculating water flows, but that this did not account for snow and ice build-up in the drain, which is difficult to predict. The rational method does not account for sudden flows created by failed beaver dams.

Mr. Smart said the rate of erosion was affected by soil structure, velocity of flow and quantity of water through the drains. Mr. Smart said that in his view tiling of land did not increase the flow of water in spring runoff when the ground was frozen, and actually reduced the flow in summer months. However, he said if more land is cleared for agriculture; that would increase water flow.

Mr. Jack Wilkinson indicated there was a problem with the drains but said it was due to snow melt in spring as there was no tiled land which outlet into Branch B. He said he was concerned that the cost of the project increased with each appeal and that landowners would not be eligible for government grants if the work was not completed by the deadline date. He said there would be greater damage to lands if the work now had to be done in the summer.

Mrs. Jackie Connelly told the Tribunal erosion was natural in the area and that there would be erosion even if there were no drain. Mr. Ken Hambly said it would be better to haul rock in over the winter and wondered if an exemption to the grant deadline could be made. Mrs. Evelyn Hambly and Mr. Andrew Degroot indicated the process had dragged on too long and the project should be completed. They also expressed concern about the possible loss of the provincial grant if the report was not implemented soon.

Assessment Issue

Mr. Fraser said it was unfair that Mr. Gosselin be assessed 50% of the cost of future maintenance of the drain as he was at the downstream end and had already suffered from erosion. He said the drains as proposed would not work and would require constant maintenance. He said Mr. Gosselin, Mr. Beach and Mr. Gauthier did not need the drains and their farms would be worthless due to the expected maintenance burden.

Mr. Smart clarified that the 50% maintenance factor on the Gosselin properties only applied to the 366 metres of drain where only channel straightening is proposed. The original report provided for a 20% maintenance assessment on the remaining 320 metres of drain on the Gosselin properties, where rip rap is proposed. He said he usually assessed 20-30% of the maintenance cost to properties in a similar situation to the Gosselin properties.

Summations

Mr. Fraser asked the Tribunal to:

Recognize the extent of the problem.
Find that the cause of the problem was poor management and maintenance of the drains over 20 years by Brethour Twp.
Hold Brethour Township responsible for the cost of repairing the drains.
Order an independent engineer’s report be prepared at the expense of Brethour Township.

He asked the Tribunal to consider the impact of the proposed work on Messieurs Gosselin, Gauthier and Beach.

Mr. Wilkinson said re-routing water out of the drain to the south was not a good option as the previous route along the Townline Road had problems associated with it as well. He said the Tribunal should not re-open the whole project.

Mr. Smart told the Tribunal a further hearing would be required if it wanted to revisit the design of the whole project. He clarified that the original report on the Beaulac-Beach Drain anticipated lands in Quebec draining through the drain.

The Findings

With regard to the Section 48 issues, the Tribunal listened to the appellants’ arguments and was not persuaded that the report or the Addendum Report should be altered. The appellants did not provide any professional opinion to support their concerns. The Tribunal has no reason to doubt the existing engineer’s report or Addendum Report and will not order the Municipality to obtain a new one.

The Tribunal heard testimony that slumping is a common problem in this soil and there is widespread erosion in this area of the province. The Tribunal finds that securing the bottom of the channel and periodic maintenance on a regular basis will help to control erosion.

The Tribunal considered the request by Mr. Gosselin to have the percentage of maintenance on the lower 366 metres of drain assessed to his properties reduced. The Tribunal concurs with Mr. Gosselin’s position and the engineer’s recommendation that the assessment for maintenance on the lower 366 metres be reduced to 20% on the Gosselin properties (8.8% on the property identified by Roll No. 1-021 and 11.2% on the property identified by Roll No. 0-019) and 80% of the maintenance be assessed to upstream landowners on a pro rated basis.

The Tribunal finds that the upstream properties are discharging much of the water that is causing the erosion on these properties and should bear the bulk of the future maintenance costs. The Tribunal also gave weight to Mr. Smart’s testimony that it was his normal practice to assess 20-30% of maintenance costs of this type of erosion to the downstream portion of ditch. The Tribunal heard nothing to substantiate a variance in that practice.

The Tribunal was not persuaded that the assessment to the Garry Beach property should be varied. His assessments for both the cost of construction and maintenance are not disproportionate to those of the other assessed owners. There was no substantive evidence, nor argument to support any change. The only change that will result from the Tribunal’s decision is a proportionate adjustment for the relief granted to Mr. Gosselin.

One of the appellants raised the issue that since the Municipality had neglected maintaining the drain over the years that it should now assume the sole financial responsibility for the maintenance and improvements to the drains. There is no basis for laying the entire responsibility on a municipality for the reasons alleged. Moreover, the Tribunal does not find sufficient evidence to impose the entire cost on the Municipality. Any maintenance, whether delayed or not, is always the responsibility of the landowners and utilities and roads that are assessed in the latest report.

The Tribunal has no jurisdiction over the grant program. The Addendum Report is a continuation of the report on the Hambly-Sabourin Drain – 2001 and Beaulac-Beach Drain 2001 and landowners could proceed with reasonable dispatch to ensure that the project is completed within the required time frame for grants.

ORDER OF THE TRIBUNAL

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

The appeals of Richard S. Gosselin and Garry Beach under Section 48 of the Act are dismissed.
The appeal of Garry Beach under Section 54 of the Act is dismissed.
The appeal of Richard S. Gosselin under Section 54 of the Act is granted in part as reflected below.
Prior to the Municipality giving final reading to the by-law, the engineer is to amend the Schedule B – Schedule of Assessment for Future Maintenance in the Addendum Report as follows: a) Reduce the assessment on the property identified by Roll No. 1-021 in the column titled HAMBLY-SABOURIN DR 2001, station 000 to 366 (Gosselin) to 8.8% of the total assessment in that column. b) Reduce the assessment on the property identified by Roll No. 1-019 in the column titled HAMBLY-SABOURIN DR 2001, station 000 to 366 (Gosselin) to 11.2% of the total assessment in that column. c) Increase the assessments on all other properties assessed in the column titled HAMBLY-SABOURIN DR 2001, station 000 to 366 (Gosselin), on a pro rata basis, to a total of 80% of the total assessment in that column.
The 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 Tilbury, Ontario this 10^th^ day of June, 2005.