Piggott McHale Drain No. 2 (Re), 2005 ONAFRAAT 18

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:

Piggott McHale Drain No. 2

Township of Enniskillen

Piggott McHale Drain No. 2 (RE)

2005 ONAFRAAT 18

STATUTE:

Drainage Act

HEARING:

June 10, 2005

DATE OF DECISION:

June 27, 2005

2005-18

NEUTRAL CITATION:

2005 ONAFRAAT 18

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 Mike McHale and Susan McHale, Alvinston, Ontario, under Section 48 of the Drainage Act from the engineer’s report on the Piggott McHale Drain No. 2 in the Township of Enniskillen.

Before:

John Taylor, Vice Chair; Jane Sadler Richards, Member; Ron Gelderland, Member.

Appearances:

Mike McHale, appellant.

Gary Piggott, on behalf of Marion Piggott, assessed landowner.

Mark Rankin, on behalf of Marion Piggott, assessed landowner.

Ray Dobbin, P.Eng., on behalf of the Township of Enniskillen.

DECISION OF THE TRIBUNAL

This appeal was heard in Petrolia, Ontario on June 10, 2005. Mike and Susan McHale appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48 of the Drainage Act (the Act) from the amended Engineer’s report by Ray Dobbin dated January 21, 2005 (the report) in the Township of Enniskillen.

Mr. Duncan McTavish, Clerk of the Township of Enniskillen (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

Section 48 of the Act states:

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.

48. (2) Where lands used for agricultural purposes may be affected by the drainage works, the Director may appeal to the Tribunal on any of the grounds and in the manner mentioned in subsection (1).

R.S.O. 1990, chap. D.17, s. 48.

The Background

Mr. Ray Dobbin, P. Eng. prepared the initial report dated January 7, 2005 on the Piggott McHale Drain 2 at the request of the Council of the Township of Enniskillen from the petition of Mr. and Mrs. McHale, landowners in the west half of Lot 1 Concession 2, Township of Enniskillen.

The initial report proposed to construct a covered drain across the southern half of the west half of Lot 1 to drain surface waters from Lot 1 into the Arn Drain. The Arn Drain lies along the western limit of Lot 1 at the Mandaumin Road.

The initial report was considered at a Council meeting held January 18, 2005. At the meeting the owner of lands in the east half of Lot 1 (Ms. Piggott) objected to the cost of the covered drain and the Engineer concurred that a less costly open drain system could be designed and constructed. The report was referred back to the Engineer to prepare an amended proposal for an open drain at the January 18, 2005 meeting of Council.

Mr. Dobbin prepared the amended report, dated January 21, 2005, on the Piggott McHale Drain 2 to construct an open drain ditch across the Piggott property on the east half of Lot 1. The amended report was considered at a Council meeting February 15, 2005. The Minutes of the Meeting from February 15, 2005 indicate that Mr. McHale was opposed to the design of the open ditch and preferred the closed drain as proposed in the initial report dated January 7, 2005. At the February 15, 2005 meeting, the representative for Ms. Piggott expressed that she preferred the open ditch design as prepared in the amended report.

The Council of the Township of Enniskillen adopted the amended report by Provisional bylaw dated February 15, 2005. The Court of Revision scheduled for April 5, 2005 heard no appeals on the assessments from the January 21, 2005 report.

Mr. and Mrs. McHale appealed to the Tribunal on April 12, 2005 under Section 48 of the Act from the design of the drain under the amended report.

The Issue

The issue before the Tribunal was:

Should the drainage system on Lot 1, Concession 2, Township of Enniskillen be constructed as provided for in the engineer’s report dated January 7, 2005 or should the works be constructed as provided for in the amended report dated January 21, 2005?

The Evidence

Mr. Ray Dobbin, P. Eng, told the Tribunal that he had engineered drainage projects since 1986. He stated that he has prepared approximately 300 drainage reports within southwestern Ontario. Mr. Dobbin stated that he is the Drainage Superintendent for the Township of Enniskillen and that he also has a private engineering practice.

Mr. Dobbin submitted the initial report, dated January 7, 2005, and amended report, dated January 21, 2005, to the Tribunal.

He stated that the initial report proposed the construction of:

• A drainage system that would drain surface water from the lands in the east half and west half of Lot 1 Concession 2 Township of Enniskillen. The report was prepared at the request of Council from the petition of the owners of lands in Lot 1.
• Improvements to an existing ditch that runs along the line fence at the boundary between the east half of Lot 1 (the Piggott property) and the west half of Lot 1, (the McHale property). The existing ditch is to be re-graded. It is approximately 600 in length.
• A catch basin to provide outlet for the improved ditch
• A covered tile drain approximately 300 m long and 250 mm in diameter. The covered drain is proposed to extend from its outlet at the Arn Drain (located at the western boundary of Lot 1) eastward to the ditch at the line fence in Lot 1.

Mr. Dobbin submitted that the proposed works under the initial report would cost an estimated $9,176.00.

Mr. Dobbin submitted that the works proposed in the amended report included:

• Improving 600 m of existing open ditch on the east side of the fence line dividing the McHale property in the west half of Lot 1 Concession 2, from the Piggott property in the east half of Lot 1 Concession 2

• Excavating the existing ditch and spreading the spoil from the excavation on the east half of Lot 1 to level four existing swales and as further directed by the landowner (Mr. and Mrs. McHale) of the west half of Lot 1.

• Improving an existing swale that drains water from the ditch toward an outlet into the bush lot in the southeastern corner of the east half of Lot 1 (the Piggott property). The swale is approximately 300 m in length. The banks of the swale are to be graded to a gradual slope that will permit the crossing of farm machinery.

• Assessments to the McHale property at 33.3 percent for benefit and to the Piggott lands at 66.7 percent for benefit. The McHale property derives its benefit from the cut off of surface water flows from the east half of Lot 1.

• Outlet assessments based on 33 percent of the improvements to the fence line ditch running from station 0+000 to station 0+260 and calculated according to the upstream lands in Lot 1 that contribute surface water to the system. The total cost of the project under the report is $5,014.00.

Mr. Dobbin submitted a large scale aerial photograph of the McHale and Piggott properties in Lot 1 Concession 2 with a diagram of the proposed drain superimposed upon it. Mr. Dobbin submitted his drawing of the proposed open drain, that indicated the watershed, the roads to the north and west of the properties and the Arn Drain located on the west boundary of Lot 1 along the Mandaumin Road. Mr. Dobbin submitted a series of photographs of the Piggott and McHale properties.

Mr. Dobbin submitted that:

• An existing ditch on Lot 1 was located on the east side of the line fence that divided the Piggott property from the McHale property.
• A valid petition under Section 4 of the Act was submitted to Council by the property owner for the west half of Lot 1 Concession 2 (Mike and Susan McHale)
• A Global Positioning System (GPS) survey of Lot 1 Concession 2 was conducted. The GPS survey indicated that: most of the property in the west half of Lot 1 falls toward the west toward the Arn Drain; the lands in the western-most portion of the east half of Lot 1 falls from north to south in the northern portion and is mostly flat in the southern portion.
• The ditch along the line fence in the east half of Lot 1 slopes southward.
• There are a number of swales on the Piggott property in the east half of Lot 1, that direct surface water into the ditch.
• The bush lot area in the south eastern portion of the east half of Lot 1 has good fall; it is the proposed outlet for the drain.

In response to questions, Mr. Dobbin told the Tribunal that:

• The proposed outlet into the bush lot at the south east corner of the east half of Lot 1, consists of a slightly grassed gully that conducts water into the bush lot. The gully continues well into the bush lot; there is no plan to excavate it, as it will be adequate to conduct water from the proposed improved ditch works as it presently exists.

• The grassed gully is considered an intermittent channel. The bush lot is an adequate outlet for the proposed open ditch works.

• The grassed gully is sufficiently shallow to permit the crossing of farm machinery thus eliminating the need for a crossing culvert.

• Tile drainage on the McHale property is scanty and very random. There is no tile drainage of any significance on the Piggott property.

• The proposed open ditch works is intended to drain surface waters only. It is not intended to be adequate for the hook up of tile drainage from properties in Lot 1.

• Most of the surface water in Lot 1 flows toward the west. The McHale property will benefit most from the proposed works, by way of cut-off.

• It is proposed to place excavated material from the ditch onto to the east bank of the ditch.

• The Piggott property is not assessed on the Arn Drain.

• The tile drain proposed in the initial report was designed to withstand a 1 in 2 year storm.

• The open ditch system proposed in the amended report would be more efficient than the proposed tile drain in the event of a 1 in 25 year storm.

• The Arn Drain was not cleaned out at Mr. McHale’s request because he was not present at the site meeting to consider the clean out. The farmers who attended the meeting did not wish to have it cleaned out. Their objections carried the meeting.

• There are approximately 320 drains (open ditch and tile designs) in the Township of Enniskillen. The resources of the Township are only adequate to address drainage repair/construction on the basis of requests from affected landowners. There is no systematic inspection of the Township’s drains.

Mr. Mike McHale submitted photographs of his property to the Tribunal. He stated that the photographs were taken in January, 2005. Mr. McHale referred to the aerial photograph of Lot 1 provided by Mr. Dobbin; he stated that the photographs taken at the farm gate, station 615 and looking eastward, indicated that water pooled in a swale running from the gate area at the line fence and westward across his property. Mr. McHale stated that several of the photographs taken at the northern boundary of Lot 1, Oil Springs line, looking southward, indicated that water pooled in the existing ditch. Mr. McHale explained that a photograph of the Arn Drain indicated that it was heavily overgrown.

Mr. McHale stated that he objected to the open ditch system proposed under the report dated January 21, 2005. He told the Tribunal that:

• An open ditch system is not as efficient or effective as a tile drain.

• The proposed drive-through gully would become degraded and cease to function well as a result of the farm machinery crossing it.

• The proposed bush lot outlet eventually outlets to the Black Creek Drain.

• He has little confidence that the proposed open ditch system will be properly maintained as it is not as significant a works as the Arn Drain; he has been lobbying the Township of Enniskillen for the past eight years to clean out the Arn Drain, with no success.

• Although the covered drain under the initial report would be more costly to construct, the costs of maintaining it would be less.

• An open drain is more costly to maintain.

• A tile drain reduces the risk of standing water that contributes to the risk for West Nile disease.

In response to questions, Mr. McHale told the Tribunal that:

• Tile drainage does not work in the winter when the ground is frozen.

• Tile drainage is effective in the heavy clay soil of his property.

• The existing ditch on the east side of the fence line between the two properties is approximately 18 inches deep. When it overflows, the water flows westward onto his property. The tile drain proposed in the initial report would remove this water directly to the Arn Drain.

• He has no confidence in the efficiency of the proposed open ditch system and will reserve his opinion of it until he sees it practically demonstrated.

• The proposed section of open swale running to the bush lot outlet in the amended report should have a culvert installed for machinery crossing.

• Although he intends to systematically tile his property, he understands that no sub surface drains should be hooked into the proposed works.

• Crop yields are reduced on his property due to water that ponds in low lying areas.

• With regard to the fairness of assessments on the proposed works, he understands that it would be a costly undertaking if he were to attempt to construct berms to keep the water flowing from the Piggott lands off his property.

Mr. Gary Piggott told the Tribunal that he farmed the property in the east half of Lot 1 belonging to his aunt, Ms. Piggott. He submitted a signed authorization from Ms. Piggott stating that he and Mr. Mark Rankin were permitted to represent her with regard to the Piggott McHale Drain 2 appeal.

Mr. Piggott told the Tribunal that Ms. Piggott had initially petitioned under Section 4 of the Act for the Piggott McHale Drain and that it was constructed about three months ago. He stated that the Piggott McHale Drain outlets into the bush lot in the south eastern portion of the east half of Lot 1. Mr. Piggott explained to the Tribunal that tile draining the heavy clay soils in the area is not a satisfactory drainage option. He stated that Ms. Piggott would prefer not to incur more costs with regard to drainage or to Tribunal hearings. He said that Ms. Piggott has co-operated with respect to addressing the need for drainage for surface water and that she supports the amended report however, she finds the continued appeals objectionable due to the increased cost.

Mr. Mark Rankin told the Tribunal that he has farmed the Piggott property for many years. He stated that, unless redirected, the surface water will flow where it has historically flowed. He stated that the open channel design for drainage under the amended report is the only viable method of removing the water. Mr. Rankin said that open ditches and furrows have been used successfully by local landowners to drain unwanted water from their lands.

Summations

Mr. Dobbin argued that the open ditch system was designed to remove water from the low lying areas on the McHale property. He stated that it was the best method to use to remove water from the McHale property. Mr. Dobbin told the Tribunal that in his experience, farmers generally wished to avoid having a drain across their lands. He said that it was for this reason that his initial report proposed the construction of a tile drain. He stated that farmers had confidence in the efficiency of larger drains as opposed to smaller drains.

Mr. Dobbin told the Tribunal that the initial report for a tile drain also included the installation of a catch basin at the junction of open ditch and tile drain. He stated that concerns about the catch basin becoming blocked with crop debris, made the covered drain alternative less attractive. He said that a catch basin would need constant maintenance. He stated that a tile drain would include the same risk of overflow as the proposed open ditch system. Mr. Dobbin explained to the Tribunal that the proposed open ditch system would provide adequate drainage and would be easy to maintain.

Mr. Dobbin told the Tribunal that the additional cost of the hearing should be split evenly, between the two landowners; it was his opinion that this would be more equitable, as the Piggott lands were assessed higher on the proposed works and Ms. Piggott did not object to the proposed works.

Mr. McHale told the Tribunal that it should consider the inefficiency of the existing ditch, and that it was questionable that a similar open ditch system would be any better suited to the purpose. Mr. McHale said that he believes a covered tile is a more efficient method of drainage and that it provides the most direct route to the outlet in the Arn Drain.

Mr. McHale told the Tribunal that he was amenable to the installation of larger tile on his land than the one proposed in the first report, if larger tile would result in more efficient functioning of the drain. He requested that the Tribunal order that the Township adopt the initial report.

The Findings

The report under appeal is the second report for drainage, prepared at the request of the Municipality. The first report was rejected as a result of objections to cost by Ms. Piggott. The second report provides an alternative outlet to that proposed in the initial report and is some $4,000 less expensive as there is no need for the installation of tile and a catch basin.

The Tribunal finds that the principal concern of the appellant is that surface water from the Piggott property in the east half of Lot 1 is flowing onto his property. It is the finding of this Tribunal that the open ditch design of the drain proposed in the second report, which is to be located entirely on the Piggott property, will remove the surface water flows from the Piggott lands to a sufficient outlet, thus addressing the appellant’s concerns.

None of the proposed works from the second report will be carried out on the lands of the appellant. The Engineer will request that the contractor will place the spoil from the excavation of the ditch onto low lying areas on the Piggott property and also onto the low lying areas on the McHale property where previously surface water had flowed; this, in addition to the ditch, will prevent surface water from flowing across the McHale property. This panel of the Tribunal believes that this solution answers most of the concerns that the appellant had at the time of his initial petition.

The Tribunal believes that Mr. McHale’s principal objection to the second report is that the 300 m portion of the drain that conveys water to the outlet could easily become blocked with debris whereas a covered drain would require less maintenance and therefore, less maintenance costs over time. The Tribunal is convinced that the open drain proposed in the second report will have surplus capacity in the occurrence of a larger storm event.

Mr. McHale’s past experience with the Municipality being lax on drain maintenance is not a concern that the Tribunal can address. It should be noted however, that under the Drainage Act, the Municipality has a legal obligation to maintain municipal drains and may incur liability if neglect causes damage to crops and property.

The appellant’s remaining concern with the proposal in the second report is with the longer route to an outlet. The Tribunal finds that the difference in length of drain to eventual outlet in the two reports is minor and the benefits to be derived from the drain as designed under the second report outweigh this concern.

In argument, the Engineer representing the Municipality expressed concern that the additional costs associated with the Tribunal hearing would be added to the cost of the drainage project. He was concerned that the additional expense would unfairly impose a larger share of the Tribunal hearing costs against the landowner of the Piggott property, who is assessed for approximately two thirds of the costs of the project under the report, whereas the appellant, as the only other assessed landowner, is assessed for approximately one third of the costs of the project under the report. Having considered this matter, the Tribunal is not convinced that a special award of costs should be made. Under its own rules, the Tribunal may make an order for costs if the position taken by the appellant is frivolous or vexatious, or that it unduly uses the time of the Tribunal or the respondent. The Tribunal finds that the position taken by Mr. McHale did not meet these criteria and therefore the Tribunal will not make an order for costs.

ORDER OF THE TRIBUNAL

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

1. The amended report dated January 21, 2005 on the Piggott McHale Drain shall be adopted by the Municipality.

2. The appeal of Mike and Susan McHale is dismissed.

3. 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.