Dykeman Pumping Works Drain (Re), 2006 ONAFRAAT 13

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal@omafra.gov.on.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omafra.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Dykeman Pumping Works Drain

Municipality of Chatham-Kent

Dykeman Pumping Works Drain (RE) 2006 ONAFRAAT 13

STATUTE:

Drainage Act

HEARING:

March 31, 2006

DATE OF DECISION:

May 1, 2006

2006-13

NEUTRAL CITATION:

2006 ONAFRAAT 13

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 Tony Dobbelaar, Lloyd DeBot, Arthur Seys and Albert DeBot, all of Wallaceburg, Ontario and by Robert Stewart, Port Lambton, ON under Section 54 from a decision of the Court of Revision and under Subsection 48 (1) (b) of the Drainage Act from the Engineer’s Report on the Dykeman Pumping Works Drain in the Municipality of Chatham-Kent.

Before:

Gene Trotman, Vice Chair; Jane Sadler Richards, Member; Ron Gelderland, Member.

Appearances:

David McGeorge, P. Eng. on behalf of the report dated June 6, 2005

Tony Dobbelaar, appellant

Lloyd DeBot, appellant

Arthur Seys, appellant

Albert DeBot, appellant

Robert Stewart, appellant

Scott Kilbride, assessed landowner

Eric Allaer, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Wallaceburg, Ontario, on March 31, 2006. The Messieurs Dobbelaar, L. DeBot, Seys, A. DeBot, and Stewart appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 and subsection 48 (1) (b) of the Drainage Act (the Act) from the July 27, 2005 decision of the Court or Revision and the Engineers Report dated June 6, 2005 (the Report) on the Dykeman Pumping Works.

Ms. Eleanor Mifflin, Clerk of the Municipality of Chatham Kent (the Municipality) performed the duties of the Clerk of the Tribunal.

Statutory Context

Section 54 of the Act states:

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.

(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.

Subsection 48 (1) (b) 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,

(b) the drainage works should be modified on grounds to be stated;

The Background

Mr. McGeorge P. Eng. provided the Tribunal with background information with respect to the Dykeman Pumping Works and its watershed.

The Dykeman Pumping Works was constructed under the report of W.G. McGeorge P. Eng. in 1910. The works was designed to drain approximately 400 hectares of land in Lots 1, 2, 3, and part Lot 4, Concessions 1 and 2 in the former Geographic Gore of the Township of Chatham . The watershed for the Dykeman Pumping Works has its northern and eastern boundaries at the Running Creek Drain and its southern and western boundary at the Chenal Ecarte River. The works provides drainage for agricultural lands and residential lots. The original portion of the main drain was constructed as a tile drain with its upstream most point at the border of Lots 1 and 2 Concession 2. The main drain ran southward and eastward to an open outlet in the Chenal Ecarte River. A branch drain with an adjoining earth bank was constructed from the main drain westward following the river bank from the pump house to higher land at Blue Water Line and a bank along the river was extended eastward from the pump house to Blue Water Line. Banks were constructed along the Chenal Ecarte River westward toward where the new branch drain outlets. From 1911 until 1952 the drain was kept in repair to the extent that sediment was removed from time to time. Tile was replaced with open ditch in the portion of the main drain in the south half of Lot 2 Concession 2. In 1952 a low head propeller pump with electric motor was installed and a new pump house was constructed at the present location. In 1956 the lands in Lot 4, Concession 1 that were not initially assessed into the Dykeman Pumping Works were added to the scheme.

In 2001 a preliminary report was prepared. It contained 2 options for the repair of the works. Landowners chose the option which provided for the cleaning of the drain; however, in his June 6, 2005 report, Mr. McGeorge P. Eng. recommended that in addition to the removal of sediment a schedule be provided for the continued maintenance of the earth embankments along the Running Creek Drain and the Chenal Ecarte River. The earth embankments provide protection against high water levels in the Chenal Ecarte River.

The June 6, 2005 report prepared by Mr. McGeorge P. Eng. provided for the removal of approximately 1 m of sediment from the bottom of the drain channel and individual landowners requests for embankment repairs pursuant to the policy of the Municipality of Chatham-Kent. The banks are to be stabilized with gabion stone and filter cloth. and a 1 m wide buffer strip on either side of the drain for maintenance purposes is proposed. Individual pedestrian access bridges are to be the responsibility of the individual landowner under the report.

Some of the landowners assessed on the Kilbride Pumping Works objected to being assessed on any portion of the Dykeman Pumping Works except for the repair of the earth embankments around the perimeter of the watersheds.

The assessments as apportioned in the report dated January 25, 2005 were 33 1/3 percent lower for the lands on the Kilbride Pumping Works as it was recognized that the Kilbride scheme provided those landowners with some protection from flooding. The lands assessed on the Kilbride Pumping Works however, are also reliant on the Dykeman Pumping Works for protection. The Dykeman Pumping Works was designed with a capacity to drain the whole watershed whereas the Kilbride Pumping Works is only sufficient to provide drainage to the smaller area that is assessed for its operation.

The lands in the Kilbride Pumping Works occupy 16 percent of the watershed of the Dykeman Pumping Works and were assessed for 10 percent of the cost of the proposed maintenance under the June 6, 2005 report which included the excavation of sediment from the main drain, spreading of spoil, erosion control measures and the establishment of a buffer strip on either side of the drain.

The lands within the watershed for the Dykeman Pumping Works are flat with earth embankments along the perimeter. Under the June 6, 2005 report, the per acre assessments for farmlands were very similar, however, the run off factor was higher for residential lands which were assessed accordingly.

The watershed area of the Dykeman Pumping Works was flooded in 1985. The flood waters were accompanied by high winds. The water was pumped out of the watershed over two weeks and at a cost of $52,000 to restore the system.

Mr. McGeorge submitted to the Tribunal that if he had not seen the effects of the flood of 1985 firsthand, he may not have assessed the Kilbride Pumping Works lands on the Dykeman scheme: however, it was demonstrated in the flooded conditions that there was overflow of water to lands in both watersheds and that there was no concise method of determining the origins of the water that flooded the area. Mr. McGeorge stated that he did not concur with the decision of the Court of Revision to remove assessments for the Dykeman scheme from all lands assessed to the Kilbride Pumping Works.

The Issue

The issue before the Tribunal was:

Should the lands assessed on the Kilbride Pumping Works be assessed on the Dykeman Pumping Works as scheduled in the report prepared by Mr. David McGeorge, P. Eng., dated June 6, 2005?

The Evidence

Tony Dobbelaar

Mr. Tony Dobbelaar, appellant, told the Tribunal that:

• In 1978 the Dykeman drain was cleaned and the pump motor was rebuilt. All lands except for those in Lots 3 and 4 Concession 2 were assessed for the clean out work.
• The watershed for the Dykeman Pumping Works consists of 1050 acres enclosed by 8 km of dike works. The lands in the watershed are at the level of the nearby Lake St. Clair.
• The lands assessed on the Dykeman Pumping Works were assessed for the repair of the Kilbride pump after it was damaged in the flood of 1985.
• The Kilbride lands should be assessed for some of the work proposed in the June 6, 2005 report to repair and improve the Dykeman Pumping Works. The decision of the Court of Revision to reduce the costs assessed to the Kilbride lands from 10% of the total cost to 0 is not appropriate.
• The appellants have many years experience farming in the area of the Dykeman Pumping Works watershed. They have seen how the Dykeman scheme benefits the Kilbride lands.
• The components in the Dykeman scheme rely one upon the other for effective drainage. The dikes keep water out of the low lying watershed; the channel conveys the water to the pumping station where it is pumped to outlet in the Chenal Ecarte River.
• The system is integrated so that all lands in the watershed will be affected should one of the three components of the scheme fall into disrepair.
• The assessments under the June 6, 2005 report are fair and reasonable; the benefit provided to the Kilbride lands by the Dykeman Pumping Works is not nil.
• It became clear in the flood of 1985 that the Dykeman Pumping Works benefited all the lands in the watershed. During the flood of 1985 the Kilbride lands were as severely affected by flood waters as the rest of the lands within the watershed for the Dykeman Pumping Works.

Albert DeBot

Mr. Albert DeBot told the Tribunal that his property was at the lowest elevation of all lands assessed on the Dykeman Pumping Works. He stated that the surface water from the Kilbride lands flow across his property. Mr. DeBot told the Tribunal that his property was located at a point where the Kilbride and Dykeman watersheds met. He stated that he installed two catch basins on his property to improve drainage. Mr. DeBot stated that he wanted a berm constructed on his property to cut off flows from the adjacent Kilbride lands.

Lloyd DeBot

Mr. Lloyd DeBot told the Tribunal that he agrees with the assessment schedule prepared in the June 6, 2005 report which includes assessments against the Kilbride lands for the proposed repair and improvement of the Dykeman Pumping Works. Mr. DeBot told the Tribunal that when water levels are low, the flow within the watershed is generally toward the west, however the wind has an effect on the direction of water flow causing water from the Kilbride lands to flow toward the Dykeman scheme and vice versa.

Robert Stewart

Mr. Robert Stewart told the Tribunal that he represented the estate of Gordon Stewart with lands in Lot 2, Concession 2. Mr. Stewart told the Tribunal that the Kilbride lands were located within and benefited from the protective dikes of the Dykeman scheme. He stated that it is unreasonable to consider these lands that are physically located within a watershed as not being in the watershed with respect to assessments for repair and maintenance. Mr. Stewart told the Tribunal that during the flood of 1985, it became evident that the Kilbride lands were not a distinct sub-watershed. Mr. Stewart explained that in general, surface run-off within the watershed flows into the Dykeman Pumping Works. He stated that the Kilbride lands benefited from the Dykeman scheme and should therefore be assessed for a portion of its repair and improvement.

David. McGeorge P. Eng.

In response to questions Mr. McGeorge, P. Eng. told the Tribunal that:

• Under the June 6, 2005 report, the Kilbride lands were assessed for the repair and improvement of the Dykeman Pumping Works but not vice versa.
• He observed conditions in the watershed during the flood of 1985 firsthand.
• During the flood, water flowed from the embankments on the Kilbride lands westward toward the Dykeman pumping scheme.
• The channel in the Dykeman scheme acts as a reservoir for the system. The top of the channel is over 70 feet wide and the bottom of the channel is 60 feet wide. The pump in the Dykeman scheme has the capacity to remove water at a rate of 15,000 gallons per minute or the equivalent of 15 gallons per acre of land per minute. The pump on the Kilbride scheme is much smaller with a capacity of 2,000 gallons per minute.
• Overflow water from the Kilbride scheme enters the Dykeman works. The reverse does not occur as the watershed slopes toward the west, therefore, the Dykeman lands are not assessed on the Kilbride scheme.
• Run-off increases when the ground is frozen. Run off is greater on lands that have impermeable structures such as houses, and paved areas.
• The drain portion of the Kilbride scheme consists of buried tile.
• The watershed for the Dykeman Pumping Works is saucer shaped. The drain portion of the Dykeman Works is located in the lowest part of the watershed.
• Under a previous report, he had recommended constructing a barrier to create distinct watersheds, one for the Kilbride works and one for the Dykeman works. The option was rejected.
• The embankments that surround the watershed are part of the Dykeman Pumping Works. The Dykeman Pumping Works includes the Kilbride Pumping Works.
• The landowners on the Kilbride scheme have recognized that their lands benefit from the embankments surrounding the Dykeman watershed.
• The Court of Revision removed the assessments for the Kilbride lands from any costs for the Dykeman Pumping Works but the three components, embankments, channel and pumping station are integral to the function of the system.
• He reapportioned the assessments from the Kilbride lands onto the other lands in the watershed at the direction of the Court of Revision. He prepared a schedule of assessments based on the Court of Revision decision under a report dated August 26, 2005.
• The assessments that were removed from the Kilbride lands were for repair, maintenance and daily operation of the works.

Summations

In summation Mr. McGeorge told the Tribunal that he believes the assessments under the June 6, 2005 report are reasonable. He explained that it is a difficult task to apportion assessment by percentage to lands that benefit in part by a drainage works. He stated that prior to the flood of 1985 he was of the opinion that the assessments against the Kilbride lands should be reduced because the Kilbride Pumping Works decrease the amount of water from the Kilbride lands that flows into the Dykeman system. However, after he observed the circumstances that existed during the flood of 1985, he became certain that the Dykeman Pumping Works provided protection to the lands drained by the Kilbride Pumping Works. He explained that the apportionment of assessments are largely based on judgment. He stated that in this case he judged that the Kilbride lands derived benefit from the Dykeman works. Mr. McGeorge told the Tribunal that the assessments on the Dykeman Pumping Works were prepared based on the proportionate benefit of the system to each of the assessed lands.

Mr. Dobbelaar spoke for the five appellants in summation. He told the Tribunal that the dikes, channel and pumping station comprising the Dykeman Pumping Works functioned in tandem to provide drainage for the whole watershed. He stated that it was not possible to determine any benefit based on the usage of only one of the components of the system. Mr. Dobbelaar told the Tribunal that all lands in the watershed benefited from the Dykeman system and that with respect to the assessment portion of their appeals, the appellants agreed with the assessments as prepared in the June 6, 2005 report and that they wished the assessments under that report to be reinstated.

Mr. Dobbelaar told the Tribunal that with respect to the appeals under subsection 48 (1) (b) of the Act, Mr. Albert DeBot requested that if the Kilbride lands were to remain removed from the assessments, a berm should be constructed on his property to delineate two watersheds; one for the Kilbride Pumping Works and one for the Dykeman Pumping Works.

The Findings

Based upon his professional opinion and those of the appellants, all of whom had lived upon and farmed lands in the watershed for many years, the Tribunal was convinced that the Dykeman Pumping Works served to improve drainage to the whole watershed. The Tribunal also accepts the evidence of Mr. McGeorge and the appellants that the Dykeman Pumping Works is an integrated system comprised of earth embankments, channel and pumping station and that all lands that benefit from the Dykeman system should be assessed for the repair, improvement and operating costs for the system.

The Tribunal agrees with the appellants and Mr. McGeorge that the Kilbride watershed is not geographically distinct from the Dykeman watershed.

The Tribunal finds that the extent of the benefit provided by the Dykeman system to the Kilbride lands cannot be strictly determined, therefore, this panel agrees with the judgment of the Engineer with respect to the assessments on the Kilbride lands, as scheduled in the June 6, 2005 report.

ORDER OF THE TRIBUNAL

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

1. That the appeals of Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert DeBot, Robert Stewart, under Section 54 of the Drainage Act are granted. The assessments for the repair and improvement of the Dykeman Pumping Works under the June 6, 2005 report are reinstated

2. The appeals of Tony Dobbelaar, Lloyd DeBot, Arthur Seys, Albert DeBot, and Robert Stewart subsection 48 (1) (b) of the Drainage Act are 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.

Dated at Ottawa, Ontario this 1^st day of May, 2006.