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

Township of Enniskillen

Piggott McHale Drain (RE) 2005 ONAFRAAT 07

STATUTE:

Drainage Act

HEARING:

February 18, 2005

DATE OF DECISION:

March 11, 2005

2005-07

NEUTRAL CITATION:

2005 ONAFRAAT 07

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 Susan McHale and Mike McHale, Alvinston, 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 Piggott McHale Drain in the Township of Enniskillen.

Before: Kirk Walstedt, Vice Chair; Doug Flook, Member; Russ Piper, Member Blake Bexon, Member

Appearances:

Ray Dobbin, P.Eng., engineer who prepared the Report

Mike McHale, appellant

Gary Piggott, representing Marion Piggott

Mark Rankin, also representing Marion Piggott

DECISION OF THE TRIBUNAL

This appeal was heard in Petrolia, Ontario on Friday, February 18, 2005. Mr. and Mrs. McHale appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act)

Mr. Duncan McTavish, Administrator-Clerk, Treasurer 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 engineer’s report by Ray Dobbin dated July 8, 2004 on the Piggott McHale 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. Ray Dobbin, P. Eng., told the Tribunal the Piggott McHale Drain was designed to drain a low lying area at the Southwest corner of the E1/2 Lot 1, Concession 2. He said he initially identified three options for draining the property but that a fourth option was suggested at a meeting to consider his preliminary report. Option 4 consists of a covered drain in a generally easterly direction for approximately 300 metres. It also requires the installation of a catchbasin at the boundary of the McHale property (W ½ Lot 1, Concession 2) and the Piggott property (E ½ Lot 1 and 2, Concession 2). Mr. Dobbin stated that Mrs. Susan McHale had indicated in writing she wanted the destruction of trees on the McHale property kept to a minimum. Mr. Piggott had suggested Option 4, as it would keep the drain off the McHale property.

Mr. Dobbin said the McHale property received a cut-off benefit, as water would be carried away to a sufficient outlet rather than enter the McHale property. He said the balance of the benefit was to the Piggott property. Mr. Dobbin explained the McHale property was assessed approximately 25% of the total cost of the project. The Piggott property was assessed the balance of the cost. He explained he calculated assessments using a cost-based method and using a 2/3 benefit to 1/3 outlet ratio and came up with similar numbers under both methods. He said he ultimately made it a 100% benefit drain, as there were only two properties involved.

The Issues

The issues before the Tribunal were:

1. Should the assessment to the McHale property (W ½ Lot 1, Conc. 2) be reduced?

2. Are the allowances proposed in the Report appropriate?

The Evidence

Assessment Issue

Mr. Mike McHale told the Tribunal that in the past water on the Piggott property had been deliberately drained onto the McHale property through a series of swales. He explained he filled in some of the swales when his neighbour would not deal with the problem and subsequently water pooled on the Piggott property and Mr. and Mrs. Piggott petitioned for a drain. He said the McHale portion of the cost of the drainage works was too high because the Piggott family had caused the water problems and because he had suffered yield losses in the years before the swales were filled in. Mr. McHale provided photographs which showed ponding on both sides of the property line. He said the soil was clay and did not drain well.

In response to questions, Mr. McHale indicated:

• Part of the McHale property cannot be planted because of water entering it from the Piggott property.

• The Piggott family farmed the McHale farm in the past but he and his wife had farmed it for 15 years, growing soybeans.

• There would be a benefit to the McHale property if sitting water were removed through the proposed drain.

• A minimal assessment of one dollar would be acceptable.

• He planned to re-forest the bush area along the McHale-Piggott property line.

Mr. Gary Piggott testified that he was familiar with the Piggott property as it was owned by his aunt and he had helped farm it. He confirmed his aunt had petitioned for a drain when the outlet was blocked two years before. He said Mr. Dobbin’s Option 1 was the best for the Piggott property but this option was opposed by Mr. and Mrs. McHale. He said that Option 4 was suggested as it was felt it would satisfy the appellants. Mr. Piggott said the swales were shallow drainage furrows, which were needed because the farm was very flat in the middle. He said the drainage problems were caused by poor maintenance of the swales on the McHale property.

Mr. Mark Rankin said he had also worked the Piggott property. He said water drained to the South on both the Piggott and McHale properties, but if the drainage furrows were not kept clear the water will pool.

Mr. Dobbin testified that Option 1 followed the natural flow of the land and would have been best, but he took landowners’ concerns into consideration and ultimately decided to route the drain to the East through a ridge, rather than to the South. He said a cut-off benefit could be assessed for better control of surface and or subsurface water and the proposed drain would better control surface water. He said there was an obvious benefit to the downstream property, as this surface water would no longer be coming off the Piggott property. He also pointed out there would be no restrictions on the McHale property as there would be no municipal drain running across it.

In response to questions, Mr. Dobbin indicated:

• Generally one-half to two-thirds of the cost of a drainage works was assessed as benefit. This project was more benefit than outlet, as he was trying to dry out land and stop the flooding.

• Erosion protection was to be provided at the outlet pipe. The local Conservation Authority had been informed of the proposed drainage works.

Allowance Issue

Mr. McHale told the Tribunal he did not believe it was fair to provide an allowance to the Piggott property as the Piggott property needed the drain. He said he spent his own money to tile the McHale property and did not want to pay to tile the Piggott property as well.

Mr. Dobbin said the allowances were calculated using a rate of $1,000 per hectare. Mr. Dobbin acknowledged that the soybean price had dropped since he calculated the allowances. He said he still believed the allowances were reasonable as he was aware of other engineer’s who allowed for four or five years of crop losses. He said there were no allowances for tree removal because under Option 4, the drain would be routed through farmland.

Summations:

Mr. McHale stated the lack of tiling in the Piggott property was the cause of the drainage problem and he had suffered from reduced yields for 15 years. A gully had also developed in the southeast corner of his property. Due to these losses, he believed the McHale property should be assessed no more than one dollar.

Mr. Piggott acknowledged there was some advantage to tiles but said it was necessary to control surface water as well. He said his aunt, Marion Piggott, wanted the problem solved and believed she was already paying more than her fair share.

Mr. Dobbin said there would still be some water in the gully on the McHale property as approximately 10 acres of McHale land would drain into it. He said the south part of the Piggott property had been draining through this channel on the McHale property and that was the natural way for water to flow. He stated he had designed an alternate route that would have less impact on the McHale property. Charging a cut-off benefit assessment was therefore justified.

Mr. Dobbin told the Tribunal the cost of the hearing would add $1,500 to the cost of the drain. He asked the Tribunal to consider requiring the McHale property to bear a larger portion of the cost of the Hearing, as Mr. McHale did not take a reasonable position in expecting to be assessed only one dollar.

The Findings

The Tribunal is mindful that there is no provision under the Drainage Act for reimbursement to a landowner for past damage to crops to be assessed against the cost of a drainage project. The Tribunal finds that Mr. McHale’s property has suffered loss of productivity to crops and soil erosion, due to surface waters flowing from the Piggott property. The Tribunal agrees that the proposed Option 4 will improve the productivity of the McHale property. The McHale property will benefit from the cut off of surface waters flowing from the Piggott lands. The Tribunal agrees with the submission of the engineer that it is unreasonable for Mr. McHale to expect to be assessed for only one dollar when his lands will benefit from the construction of the drain. By his own evidence Mr. McHale has indicated that there have been productivity losses over several years due to water being directed onto his property through a series of swales. The Tribunal finds that the McHale property is correctly assessed under the July 8, 2004 Report pursuant to Section 22 of the Drainage Act.

The Tribunal relies on Section 23 of the Act with respect to the assessment against the McHale property for improved outlet.

With respect to the issue of allowances the Tribunal cannot accept Mr. McHale’s submission that the allowances provided cause him to contribute directly to the improvement or installation of systematic drainage tiling on the Piggott property. The proposed allowances to the Piggott property are for the right of way and damages to lands and crops caused by the installation of a municipal drain on the Piggott property. The amount of the allowances provided in the Report is not exorbitant in the view of the Tribunal. The Tribunal acknowledges the estimate of crop losses is a little high but finds this is balanced, as the engineer was fairly conservative in estimating the amount of land affected.

The Tribunal finds that Mr. McHale exercised his right to appeal under the Drainage Act in a manner that was neither frivolous nor egregious. No costs are to be awarded against Mr. McHale.

ORDER OF THE TRIBUNAL

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

1. The appeals of Mr. McHale and Mrs. McHale under Section 48 of the Act are dismissed.

2. The appeals of Mr. McHale and Mrs. McHale under Section 54 of the Act are dismissed.

3. The non-administrative costs of the Township with respect to this appeal shall form part of the cost of the drainage works and it is ordered, pursuant to Section 73 of the Act, that there be no other order as to costs and all parties are responsible for their own costs.