Sinclair Drain (Re), 2005 ONAFRAAT 6

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:

Sinclair Drain

Township of St. Clair

Sinclair Drain (RE)

2005 ONAFRAAT 06

STATUTE:

Drainage Act

HEARING:

January 28, 2005

DATE OF DECISION:

February 14, 2005

2005-06

NEUTRAL CITATION:

2005 ONAFRAAT 06

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 Arthur Dunlop, Mooretown, Ontario under Sections 48(1) and 54 of the Drainage Act from the engineer’s report and from the decision of the Court of Revision on the Sinclair Drain in the Township of St. Clair.

Before:

John Taylor, Vice Chair; Doug Flook, Member, Jane Sadler Richards, Member

Appearances:

Dennis McCready, P. Eng., engineer who prepared the Report

Art Dunlop, appellant

Terry Clysdale, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Mooretown, Ontario on January 28, 2005. Mr. Dunlop appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsection 48(1) and Section 54 of the Drainage Act (the Act). The appeal related to the assessment of cut-off benefit to a property lying outside the watershed of the Sinclair Drain.

Mr. John DeMars, Clerk, Township of St. Clair (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 Sinclair Drain dated January 15, 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:

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).

Section 54 of the Act is as follows:

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).

Notice

(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. R.S.O. 1990, c. D.17, s. 54 (2).

Procedure

(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, c. D.17, s. 54 (3).

The Background

Mr. Dennis McCready, P. Eng., told the Tribunal the Sinclair Drain was comprised of a Main Drain, a North Branch and a South Branch. He explained the branches were basically urban storm sewers. He said the appellant's property - Roll No. 40-355 (the Dunlop property) - was a 1.62 acre parcel situated west of the South Branch of the Sinclair Drain. He clarified that the Dunlop property was not in the watershed of the Sinclair Drain but the St. Clair Parkway/County Road 33 was in the watershed.

Mr. McCready stated the last report under the Act under which work was undertaken on the Sinclair Drain was a report by James Monteith dated April 27, 1990 (Monteith Report). He explained the current Report modified the assessment schedules but did not call for any new work on the drain. Mr. McCready explained that since the Monteith Report, there had been three new properties added to the watershed via a private storm sewer, and a number of subdivisions had been built up.

Mr. McCready said he based his assessments on the assessment schedules in the Monteith Report, but modified them to account for the added land and the subdivision of existing properties. He explained there were three schedules - A-1 for the Main Drain, A-2 for the North Branch and A-3 for the South Branch. Mr. McCready said the Dunlop property was assessed on the Main Drain (Schedule A-1) in the amount of $40, and on the South Branch (Schedule A-3) in the amount of $405. He pointed out that in the Monteith Report the Dunlop property was owned by Marjorie Hunt.

Mr. McCready said the Dunlop property was assessed a cut-off benefit, as it was in 1990, as the conditions on the drain were largely the same. He said there had been some development along St. Clair Parkway, but that this had been anticipated in the Monteith Report. He said he agreed with the methodology used in the Monteith report and that, while he had the authority to make changes, he felt there was no good reason for changes in this case. Mr. McCready said the benefit on the South Branch had been divided between cut-off benefit and drainage benefit with a 13:87 ratio in 1990 and he maintained that ratio as he found it to be reasonable.

The Issues

The issues before the Tribunal were:

1. Should the Dunlop property (roll. No 40-355) be assessed on the Sinclair Drain, given that it is not in the watershed?

2. If it should be assessed cut-off benefit, is the benefit assessed by the engineer, and affirmed by the Court of Revision, appropriate?

The Evidence

Arthur (Art) Dunlop

Mr. Art Dunlop told the Tribunal he purchased the Dunlop property in 2000. He said he objected to being assessed on the drain because his property was not in the watershed and he could see no benefit to his property from the Sinclair Drain. He said his property drained directly to the St. Clair River.

Mr. Dunlop told the Tribunal that County Road 33 was higher than the land on either side of it and acted as a barrier to water flow. He said there were no culverts under the road between the Dunlop property and the Main Drain.

Mr. Dunlop testified that surface water in the area of the Sinclair Drain runs naturally in a northerly direction and then travels west to the St. Clair River by way of a ravine at the end of Rokeby Line. He said there was little subsurface flow as the soil was Caister clay. He submitted that any subsurface flow there was would also flow northerly then west down the ravine. Mr. Dunlop said water had never moved from the Sinclair Drain watershed across the Dunlop property or neighbouring properties and there was therefore no justification for assigning a cut-off benefit to these properties.

In response to questions, Mr. Dunlop indicated:

• He had lived in the area for 40 years.
• Before the St, Clair Parkway/County Road 33 were built up they were old Highway 40. The road followed the high ground as the land east of the road was marshy.
• The road acted as a natural barrier between two watersheds.
• There was an industrial pond south of the Dunlop property on the east side of the St. Clair Parkway/County Road 33 but it had been filled.
• There is a registered subdivision plan for the area.

Terry Clysdale

Mr. Clysdale testified that he agreed with everything Mr. Dunlop had said. He said he did not use the Sinclair Drain and all the owners of properties lying west of the St. Clair Parkway/County Road 33 drain their own land.

Mr. Clysdale had a question as to why his property (Roll No. 40-358) was assessed a higher cut-off benefit than the property owned by Niagara Gas Trans. Ltd. (Roll No. 40-359) when it had a wider frontage.

Mr. Clysdale also indicated:

• His grandmother told him there had once been a ditch across the road now called County Road 33/St. Clair Parkway.
• The natural flow of water on the south side of Rokeby Line was to the north from the old industrial pond, along the road.
• There was no road ditch on the west side of St. Clair Parkway/County Road 33.
• If there was a tremendous rain, water ran from the road across his property to the river.

Dennis McCready, P. Eng.

Mr. McCready testified that cut-off benefit assessments on the Dunlop property were justified because, were it not for the Sinclair Drain, water from properties lying east of St. Clair Parkway/County Road 33 would naturally flow across the road and across the Dunlop property. He acknowledged the road in its current state acted as a natural dam but said the road may not have been built up, or may have had culverts installed, were it not for the ability to drain water through the Sinclair Drain. He referenced an Ontario Ministry of Agriculture and Food factsheet titled Understanding Drainage Assessments to explain that cut-off benefit could be assessed when a drain prevents a harmful flow of water across a property from upstream of the property.

Mr. McCready said he did not survey the area as no construction was planned under the Report. He said he relied upon a finding in the Monteith Report that the lands south of Rokeby Line and west of the St. Clair Parkway/County Road 33 would naturally drain west to the river. He said he had personally observed that the front yards of the residential properties in the area sloped toward the road. Mr. McCready also referenced a topographical map which he said showed that there was a gentle fall to the west across the watershed, then a sharp fall to the west on the Dunlop property.

Mr. McCready said the Dunlop property was assessed 0.38% of the total assessment charges on the Sinclair Drain. He calculated Mr. Dunlop would be charged $1.10 for every $1,000 of maintenance on the Main Drain, and $6.80 for every $1,000 of maintenance on the South Branch. He said properties to the East of the St. Clair Parkway/County Road 33 were charged a significantly higher proportion of costs because they received drainage from the Sinclair Drain and thus received a larger benefit than the Dunlop property. Mr. McCready said the South Branch was not likely to require much maintenance over time, other than occasional cleaning out of catch basins.

With regard to Mr. Clysdale's question, Mr. McCready said his property, which had 95 foot frontage, was assessed more than the Niagara Gas Trans. Ltd. property, which had 110.76 foot frontage, because of land use. He said the Niagara Gas Trans. Ltd. property contained a buried utility line, but had no buildings, whereas Mr. Clysdale's property was residential. He said there was a greater cut-off benefit to lots with houses on them than to utility land.

In response to questions, Mr. McCready indicated:

• He had no physical evidence that water had ever flowed from the Sinclair Drain watershed across the Dunlop property, but the topographical map indicated that is where the water would flow.
• Even with the road built-up, water could pond and cross the St. Clair Parkway/County Road 33 in some circumstances, were it not for the Sinclair Drain.
• He estimated there could be flooding over the road in a 1 in 25 year storm event.
• If the Sinclair Drain were frozen and there was enough rainfall the water would cross the road and flood the Dunlop property, but the water level would have to be quite high.
• If the Sinclair Drain was not in existence, there would be culverts under the St. Clair Parkway/County Road 33.
• There was a private drain on the property owned by the Niagara Gas Trans. Ltd.
• Prevention of flooding was a reason to assess a cut-off benefit.
• A railroad in the area was elevated and had small ditches along both sides. There were no culverts under the railway.
• The railroad acted as a barrier to surface flow to the west.
• Only costs associated with maintenance of the drainage works could be assessed under the schedules in the Report. Improvements to the Sinclair Drain would require a new report.
• Based on a visual inspection it was clear that residential properties were graded to slope toward the St. Clair Parkway/County Road 33.
• If the St. Clair Parkway/County Road 33 were ever drained on the West side of the road, there would be a definite benefit to the Dunlop property from the Sinclair Drain.
• Some property owners had complained of flooding from the road, and the road authority may eventually have to install a culvert on the west side of the road that would drain water east under the road to the Sinclair Drain.

Summations:

Mr. Dunlop said the engineer had conceded that his property was not in the watershed of the Sinclair Drain. He said his evidence was that water flowed naturally in a northerly direction to the Rokeby Line ravine, assisted by an old ditch that was used to drain the industrial pond that had been filled. He argued that even if water could get over the St. Clair Parkway/County Road 33, it would flow to the North, rather than across his property. Mr. Dunlop said he agreed with Mr. McCready that land to the east of the St. Clair Parkway/County Road 33 sloped gently in a westerly direction. He said he did not agree that land to the west of the St. Clair Parkway/County Road 33 sloped in a westerly direction. Mr. Dunlop said this land sloped to the river. He argued that there would be no benefit from subsurface drainage because the land was clay.

Mr. Dunlop said the engineer had not given a definitive answer as to how high water would have to get before water would cross the road to his property, or as to how often this would occur. He reminded the Tribunal there were no culverts under the road. Mr. Dunlop asked the Tribunal to remove the assessment on the Dunlop property. He said the same principle should apply to all lands west of the St. Clair Parkway/County Road 33.

Mr. Clysdale told the Tribunal that in 50 years he had never seen water flow across the St. Clair Parkway/County Road 33. He reiterated that water would flow to the North. He submitted that properties lying west of the St. Clair Parkway/County Road 33 did not benefit from the Sinclair Drain.

Mr. McCready said there had been a good discussion of the issues and that he still believed there was a valid cut-off benefit to the Dunlop property. He agreed the benefit was very small relative to other properties assessed on the Sinclair Drain and noted he had only assessed a small proportion of costs to the Dunlop property. He asked the Tribunal to uphold assessments to the Dunlop property in the Report. He also asked that the Tribunal confirm the unrelated changes in the assessment schedules ordered by the Court of Revision.

The Findings

The evidence before the Tribunal was that two engineers, Mr. Monteith in 1990 and Mr. McCready in 2004 determined that there was a cut-off benefit to the Dunlop property from the Sinclair Drain. The Tribunal also heard very strong evidence from a landowner who has lived in the area for many years indicating water will not travel across the St. Clair Parkway/County Road 33 to the Dunlop property, and that even if it did, it would not flood the Dunlop property. The Tribunal concludes that there is a minimal risk of water crossing the road and flooding the Dunlop property but it does not believe that the risk is zero. The Sinclair Drain alleviates the existing risk by removing water from the area lying to the east of the St. Clair Parkway/County Road 33.

In reviewing the assessments that have been placed in the 1990 Report and adopted in this Report, the amount of benefit assessed to the Dunlop property and neighbouring properties is minimal, almost nominal. Even though Mr. Dunlop and his witness made a logical argument that they should be excluded 100% from any assessment, we find that there was in 1990 and is now a cut-off benefit to the Dunlop property and other properties west of the St. Clair Parkway/County Road 33. The assessments, as they are now, already take into consideration the minimal benefit the western properties derive from the Sinclair Drain and the Tribunal believes these assessments should not be disturbed.

The assessments apply to maintenance of the Sinclair Drain. Future improvements to the Drain will be subject to a new report at which time affected landowners will have an opportunity to review and appeal the assessments in that report.

Section 22 of the Act provides that:

Assessment for benefit

22. Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit. R.S.O. 1990, c. D.17, s. 22.

Section 1(1) of the Act defines benefit as follows:

"benefit" means the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures; ("avantage")

The cut-off benefit assigned to the Dunlop property falls into the definition set out in the Act. The Tribunal does not see any change in the current situation that would justify an alteration to the assessments to this property that have been provided in the Report, and upheld by the Court of Revision.

ORDER OF THE TRIBUNAL

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

1. The appeal by Art Dunlop under Subsection 48(1) and Section 54 of the Drainage Act is dismissed.

2. The Council of the Municipality is to adopt the Report, as amended by the Court of Revision.

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.