Dean Drain (Re), 2006 ONAFRAAT 15

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone 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:

Dean Drain

Township of Brooke-Alvinston

Dean Drain (RE)

2006 ONAFRAAT 15

STATUTE:

Drainage Act

HEARING:

March 30, 2006

DATE OF DECISION:

May 17, 2006

2006-15

NEUTRAL CITATION:

2006 ONAFRAAT 15

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 Bud Kelly, Inwood, ON under Subsections 48(1)(b) and 48(1)(c) from the engineer’s report and Subsection 54(1) of the Drainage Act from the decision of the Court of Revision on the Dean Drain in the Township of Brooke-Alvinston.

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

Appearances:

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

Bud Kelly, appellant

Ken Munro, assessed landowner

Leigh Moore, 692696 Ontario Inc., assessed landowner

Randy Hills, Road Superintendent, Township of Brooke-Alvinston

DECISION OF THE TRIBUNAL

This appeal was heard in Alvinston, Ontario on Thursday, March 30, 2006. Mr. Kelly appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48 and 54 of the Drainage Act (the Act). He sought changes to the assessment schedule and the allowances provided and sought several changes to the design of the proposed drainage works.

Ms. Cathy Case, Clerk, Township of Brooke-Alvinston (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 Dean Drain prepared by Raymond Dobbin, P. Eng. dated October 18, 2005 (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).

Subsection 54(1) 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. R.S.O. 1990, c. D.17, s. 54 (1).

The Background

Mr. Dobbin said the Dean Drain was last improved pursuant to a report dated September 1, 1904, at which time a tile drain was constructed to complement an existing open channel. He said the Dean Drain originally had outlets into to the Government Drain No. 1 to the west; to the Davidson Drain to the east and the west, and to the 6/7 Sideroad Drain to the east.

Mr. Dobbin told the Tribunal he was appointed under Section 78 of the Act, as maintenance and repair of the Dean Drain was requested by an assessed landowner, Mr. Kelly. He said that the Road Authority indicated it would like the tile drain and the open portion of the drain relocated away from the road in order to facilitate road improvements. He said that there were also concerns expressed that the Davidson Drain was not a sufficient outlet for surface waters.

In the Report, Mr. Dobbin proposed the following:

1. Construction of a new open channel to be located on the road allowance, north of the existing channel, and replacement of access culverts as necessary.

2. Construction of a tile drain with the capacity to carry all the subsurface water and a portion of the surface water to be located on the road allowance, north of the existing tile drain.

3. Construction of catchbasins to collect surface water to be directed through the tile drain.

4. Abandonment of the existing Dean Drain from its outlet at Government Drain No. 1 to the centre of the W1/2 Lot 5 (property owned by 692696 Ontario Inc. c/o L. Moore).

5. Revisions to the schedules of maintenance for the Dean Drain, and re-naming portions of the Drain to Dean Drain No. 2, Dean Drain No. 3 and Dean Drain No. 4.

Mr. Dobbin explained he used two methodologies to assess the costs of the drainage works to affected landowners. He said that he broke down the cost of the drain and assessed a portion as benefit and a portion as outlet and then increased the benefit to Oil Springs Line, a municipal road. He said his cost estimates came in at approximately $2,000 less than anticipated and that he revised the assessments on agricultural lands downward as a result but did not change the assessment to the road authority. He explained that he then calculated benefit and outlet using equivalent hectares, as a comparison, to check for equity.

The Issues

The issues before the Tribunal were:

1. Should the design of the proposed project be modified?

2. Should the assessments to the properties identified by Roll Nos. 10-123 (W ½ E ½ Lot 4, West Kelly property), 10-124 (E 1/4 Lot 4, East Kelly property), 10-121 (SW ¼ Lot 4, Munro property) and 10-125 (W 1/2 Lot 5, Moore property) in the Municipality be changed?

3. Is the allowance provided to the property identified by Roll No. 10-124 adequate?

The Evidence

Design Issues

Mr. Bud Kelly told the Tribunal he sought a number of changes to the Report, which he itemized in an amended appellant’s statement which was provided to the Tribunal (Exhibit 6). In summary, Mr. Kelly sought the following changes to the design of the drain:

• Copper wire to be placed in the tile portion of the drain where it crosses his lawn, in order to prevent tree root activity. Mr. Kelly testified that he had experience using copper wire and that it causes corrosiveness and roots will not survive in the drain.
• Protection of eight hard maple trees on his property near his residence.
• The use of concrete tile throughout the tile portion of the drain, rather than plastic tile in some portions. Mr. Kelly said he had a bad experience with muskrats eating through plastic tile and that problem would be avoided if concrete tile were used. He also submitted that concrete had a greater flow capacity than plastic tile, as plastic is corrugated.
• The ability for landowners to direct how new subsurface drains are to be reconnected to the tile drain and the drain to be constructed to the satisfaction of the landowners, not the drainage superintendent.
• Clarification that the grid on birdcage grates on catchbasins are to be of a size that muskrats could not get through, although he was unsure what size that should be.
• Clarification that concrete mortar will be cured before the contractor backfills over it.
• Clarification that disturbed ditch banks be seeded with grass as this provides the firmest and best bank.
• Access culverts for laneways to be a minimum of 3 feet in diameter. He said this was needed to allow for broken ice chunks to be carried away.
• The second catchbasin to be 0.5 to 1 foot deeper than on the profile provided by the engineer. Mr. Kelly said this was because new soil would slump to the bottom of the ditch when it is dug and he wanted to allow for this.
• Installation of a swinging rodent grate at the outlet to Government Drain No. 1 so that crop residue could be removed. He specified that he wanted vertical bars on the rodent grate with horizontal bars to be welded on the outside, not the inside, so the residue rests on the smooth part.
• The outlet pipe to be at least one inch larger in diameter than the outlet tile.
• Spoil to be placed on landowners’ properties at predetermined locations.

Mr. Kelly explained that he was concerned with the drainage coefficient selected by the engineer. He referred the Tribunal to excerpts from Drainage Design of Ontario. He said the drainage design charts showed a coefficient of ¾ inch in 24 hours, the coefficient selected by Mr. Dobbin, was appropriate for drains where no surface water was entering the drain, but that a coefficient of 1 inch in 24 hours was desirable for drains with open inlets, and ¾ inch per 24 hour for drains with blind inlets. Mr. Dobbin indicated that current recommended drainage coefficients were virtually the same but metric.

Mr. Kelly submitted photographs which he said depicted flooding because the existing Dean Drain was getting clogged with snow and the water was backing up in the drain and onto adjacent fields. Mr. Kelly said a 14-inch minimum tile was the extreme minimum size required, and that it should be at least 16-inch diameter at the bottom end so that it would drain land more quickly. He indicated the drain would be undersized no matter what size tile the Tribunal ordered.

In response to questions, Mr. Kelly indicated:

• His muskrat problems had been with 4-inch and 6-inch plastic tile.
• He understood the existing Dean Drain had 10-inch tile across the Munro property and 8-inch tile further upstream.
• He understood the top end of the tile on the existing Dean Drain was filling in but it still worked well where his water entered the drain.

Mr. Dobbin told the Tribunal the original request to council by the Municipality was to deepen the ditch portion of the Dean Drain. He said the road authority then asked that the drain be relocated and he came up with options in a preliminary report. He said his original design was a tile drain with a 1 inch in 24 hour drainage coefficient, and the elimination of the open portion of the Dean Drain.

Mr. Dobbin explained that the appellant wanted the ditch to be retained so in his final report he redesigned the tile to a ¾ inch in 24 hour drainage coefficient, as a full size tile drain was not needed if the ditch was kept. He said the open ditch will take most of the surface water and the tile will take subsurface water, but that catchbasins will allow surface water to go through the tile when there are winter blockages in the open ditch. Mr. Dobbin said the Dean Drain outlets into the Government Drain No. 1 which already has high water levels.

Mr. Dobbin said that a ¾ inch in 24 hour drainage coefficient is generally accepted for agricultural properties. However, if the drain is going alongside a road that picks up road and residential water and uses catchbasins he would use a 1 inch in 24 hour coefficient to accommodate the water.

Mr. Dobbin said he considered the option of cutting down trees but recognized there would be a cost to removing them. He opted instead to use solid plastic where the drain passed by the trees to prevent damage to the drain from tree roots.

In response to the appellant’s proposed modifications to the Report, Mr. Dobbin said:

• It is the drainage superintendent’s job to ensure that a drain is constructed as per the Report; this is not an issue for landowners.
• They seed with grass and he had no objection to clarifying that in the specifications.
• He intended to use the soil dug during construction to build up the bank but soil removed during future maintenance would be spread on fields.
• Existing trees along the frontage of E 1/2 Lot 4 are not to be removed but any trees that grow in the future should be taken out so as not to interfere in the drain.
• He had no experience with copper wire in drains but had heard of the practice. He had some concerns about the impact of copper wire on the environment and preferred to use solid pipe to keep roots out of the tile drain.
• He has had good experience using large diameter plastic tile but acknowledged there are problems with the four and six inch plastic tiles with rodents.
• He did not believe that concrete tile was necessary around a catchbasin; it is easier to make bends and curves with plastic tile.
• Outlet grates should be vertical bars with 2 inch spacing “on centre”. He had no objection to a swinging rodent gate.
• He agreed that concrete mortar used at ditch inlet catchbasins should be cured and said it could also be wrapped with fabric.

In response to questions, Mr. Dobbin indicated:

• He agreed that the Dean Drain has open inlets, not blind inlets but said that because the proposed drain had both an open ditch and a tile it did not require the higher drainage coefficient.
• The current drain is undersized for what it needs to do and it has approximately 33% blockage at bottom end and 60% blockage at the top end.
• He did not know if there were roots growing into the current drain, but as a general rule trees and tile drains are not compatible and that is why he used a solid pipe in his design.
• Looking at the appellant’s photographs he could not definitively say what was causing the flooding.
• There was no significant cost increase to installing a swinging rodent gate.
• It would cost approximately 20% more to replace the 12-inch diameter plastic tiles in his design with 10-inch concrete tiles, largely due to increased installation costs. Ten inch concrete tiles give the same flow as 12-inch plastic tiles.
• The larger outlet pipe would add $50-$100 to the cost of the project.
• Increasing the depth of the drain by six inches would not cost significantly more but would affect the outlet and freeboard. A deeper tile drain in the Dean Drain would have less freeboard at the outlet when the Government # 1 Drain is at high water or is filled with snow and ice.
• If the tile size were increased to 16 inches it would add approximately $2,400 to the first half of the drain and $5,600-$6,000 to the second half.
• If the tile size were increased to 14 inches it would add approximately $1,400 - $2,000 to the cost of the project.
• It would probably cost less than $2,000 to upgrade from 12-inch plastic tile to 12- inch concrete tile.
• Continuous coil plastic tile (perforated or solid) came in 400 foot lengths.

Assessment Issues

With respect to assessments, Mr. Kelly testified that he disagreed with the delineation of the watershed in the Report. He said that his photographs and personal observations indicated that the watershed should be expanded northward to the Kelly Drain, and east and west across the Munro property (Roll No. 10-121). He said the land was very flat with a few high areas, including a ridge on the south half of the West Kelly property (Roll No. 10-123) which ends halfway to the Kelly Drain. Mr. Kelly said water flowed from north to south, not on an angle as depicted by the engineer, Mr. Dobbin.

Using his delineation of the watershed, Mr. Kelly calculated that:

• The Munro property has an estimated 8.5 ha, not 4 ha in the watershed, or 27.86% of the affected hectares and is assessed only 17.3% of the total cost of the assessments to the Munro, Kelly and Moore properties.
• The two Kelly properties have a maximum of 10 ha, not 12 ha, or 32.78% of the affected hectares and are assessed 59.7% of the total cost of the assessments to the Munro, Kelly and Moore properties.
• The Moore property (Roll No. 10-125) has an estimated 12.2 ha, not 8 ha, or 39.4% of the affected hectares and is assessed only 22.9% of the total cost of the assessments to the Munro, Kelly and Moore properties.

Mr. Kelly also indicated:

• The Brooke-Alvinston Public Lands-Road Authority should pay the entire cost of abandoning the Dean Drain and relocating it north of its existing location, as it requested this change.
• The existing tile portion of the Dean Drain has provided adequate subsurface drainage for 100 years.
• The Moore property has the benefit of the newly constructed open channel Dean Drain at almost no cost, yet is assessed only 4.25% of the total benefit assessed to the Moore, Kelly and Munro properties. The Moore property will have the same benefit as the other properties which include an open channel, a larger catchbasin and a larger tile outlet for surface water when the open channel is blocked with snow.
• He had seen water backed up from the Moore property across the Kelly property and into the Kelly Drain. This was when the ditch was blocked with frozen snow.
• The Moore property was on the highest ground and had the most affected hectares; its water was forced downstream to flood the two Kelly properties and the Munro property.
• The assessment should be the same on all four of the farm properties.

Mr. Kelly said he also wanted the Report amended such that the road authority would pay for all the clean out until the ditch is stabilized with grass and pay for the removal of any trees that die as a result of construction of the proposed drainage works.

Mr. Kelly asked that the Tribunal amend the Report so that landowners would be prevented from undertaking farming practices which cause soil to fall in the Dean Drain, and that any landowner who did cause soil to fall into the drain be responsible for the total cost of cleaning out the drain.

In response to questions, Mr. Kelly indicated:

• He had two mains on the Kelly properties, one outlet east of his residence and one just east of the property line. The main drain runs parallel to the road. He estimated he drained a maximum of 12 acres through subsurface drainage.

Mr. Ken Munro said the drainage project arose as a result of a flood in February 2005 after 2.5 inches of rainfall which filled the ditches and caused flooding. He said that within two days the snow was gone and the water drained away and there was no damage to his crops. He said he doubted there was any damage to the appellant’s crops as a result of that flood. He suggested that the appellant’s farming practices may have compacted his soil, inhibiting drainage.

Mr. Munro said the appellant benefited from a subsurface tile outlet and drained his residential property through the Dean Drain. He said the Munro property only required surface drainage. He agreed with the appellant that the road authority should pay for relocating the drain.

In response to questions, Mr. Munro stated:

• He was satisfied with a ¾ inch in 24 hour drainage coefficient and the appellant should be responsible for the cost of any over-sizing as the current 10-inch tile drain was working well.
• Water does not run to the north.

Mr. Leigh Moore, representing 692696 Ontario Inc., told the Tribunal he also objected to his assessment and he felt the project called for more work than necessary and costs were out of control. He said he had no subsurface drainage entering the Dean Drain. He said 10 acres at the southwest corner of his property drained through the Dean Drain on rare occasions in winter.

Mr. Moore also said:

• The appellant’s photographs were taken when the topsoil was frozen; they are still photos and do not show flowing water.
• An aerial photograph showed that only the Kelly properties have standing water.
• His subsurface water drains through tiles to the Davidson Drain and the Kelly Drain.
• The appellant has surface water running off the front of his properties and two main drains connected directly to this tile; he also has water from his household waste and septic system draining to the Dean Drain.
• The appellant and the road authority should pay the most as the appellant is getting value from the new tile and the road authority wants the drain relocated to allow for widening of the road.
• The appellant should pay for all the extras and upgrades he wants if the drainage project goes ahead and he should pay the cost of this hearing.

In response to a question regarding the ¾ inch in 24 hours drainage coefficient, Mr. Moore said he would take the minimum and if the appellant wanted more he should pay for it.

Mr. Kelly replied that he had no septic draining into the Dean Drain.

Mr. Randy Hills, Road Superintendent, told the Tribunal that the Municipality did not request repairs to the Dean Drain, that it had initially been charged 42% of the cost of the proposed drainage works and that it was now assessed 49% of the total cost. He said this was unusually high and objected to it being raised any further. Mr. Hills pointed out that the road had only 1.5 ha in the watershed, and that effectively it had only 0.75 ha as there were no culverts under the road. He said the road did not need subsurface drainage. He calculated the cost to the municipality at over $14,000 per ha.

Mr. Hills said the Municipality had repaired portions of the Dean Drain and that it was not working to full capacity. He said the tiles were 60% filled with soil at the top end of the drain. Mr. Hills presented a series of photographs to the Tribunal. He said it was not practical to simply dig the existing ditch deeper as the sides would have too steep a slope and require annual maintenance, whereas a new drain should be virtually maintenance free.

In response to questions, Mr. Hills said:

• There were blow outs in six or seven spots four or five years before and he had dug up the drain and replaced broken tiles.
• There was sufficient room for a shoulder for the road with the design proposed in the Report.

Mr. Dobbin told the Tribunal that for the lower portion of the drain he estimated a cost of $6,820 and assessed $2,850 as benefit to Oil Springs Line and the Munro property. He then took the balance of the cost and assessed it as outlet to the road, the two Kelly properties and the Moore property. He said he used a conversion factor of 4 to account for greater run-off from the road, and used 1.5 ha, not 0.75 ha, for the base hectares of affected road.

He explained that he used a higher benefit/lower outlet ratio higher up the drain, assigning 54% of the costs as benefit to the Munro property and the road authority, and the outlet portion to the Kelly properties, the Moore property and Oil Springs Line. At the top end of the drain, he assigned two-thirds of the cost as benefit to the Kelly properties and Oil Springs Line and charged the balance as outlet to the Moore property, the East Kelly property and the road authority.

Mr. Dobbin said that when he modified his design to lower the tile size he took the saved costs off the assessments on the farm properties and that he also added a benefit of $629 to the road authority for moving the drain away from the road.

Mr. Dobbin said he then looked at the drain using the Todgham method, as a test, and came up with similar assessments.

Mr. Dobbin also said:

• He assessed the cost of access culverts as 1/3 to the affected landowner, 1/3 to the road authority and 1/3 to the upstream landowners.
• The catchbasin #1at station 0+295 was assessed 1/4 to the Munro property, 1/2 to the Kelly property, which had surface and subsurface drainage, and 1/4 to the road authority.

In summary, Mr. Dobbin said the primary purpose of the tile drain was subsurface drainage for the Kelly properties. He said an open channel would be sufficient for the Moore and Munro properties, but he did apportion some of the assessment of the tile to these two properties, recognizing there would be some water from them draining through the tile.

In response to questions, Mr. Dobbin said:

• Changes to the open portion of the drain would benefit all assessed landowners; the appellant would receive most of the benefit from improvements to the design of the tile portion of the drain.
• He arranged to have the watershed measured using Global Positioning System (GPS) technology in order to confirm the acreage in the Munro property.
• The GPS measurements were taken in September after a soybean crop was harvested.
• A contour map made with the GPS readings confirmed his delineation of the watershed, within a few inches.
• If water cannot drain away because the drain is plugged with mud, water will collect in low spots and flow off in different directions. Normally it will follow the drainage pattern shown in the contour map.

Allowances

Mr. Kelly told the Tribunal he was concerned that trees would die as a result of the work on the Dean Drain. He said he was not concerned with any trees on his property except for eight trees along his lawn which he wanted saved, or replaced.

Mr. Dobbin said the proposed ditch would be three to four feet inside the drip line of the trees. He said he had not provided an allowance for trees as he would be tiling ten feet off the line of the tress. He said he had not had reports of lost trees when constructing drainage ditches in similar circumstances.

Mr. Dobbin explained that his design called for a solid pipe past the trees as he was concerned about roots entering the drainage pipe and said that any roots encountered during construction would be cut off.

Mr. Dobbin said he did not know how much it would cost to replace trees but guessed $500-$1,000 per tree if they were purchased from and planted by a tree nursery. Mr. Kelly estimated the cost of replacement trees at $100 per tree.

Summations

In summary, Mr. Kelly asked the Tribunal to use his proposed delineation of the watershed, noting that some of the water sitting on his land in his photographs came from neighbouring properties. He said that using his delineation of the watershed his property had 60% of the cost of the drainage works but less than one-third of the acres.

Mr. Kelly asked the Tribunal to order the tile portion of the drain to be designed using a 1 inch in 24 hour drainage coefficient and asked for the other improvements he had outlined in his appellant’s statement. He said he did not mind paying his fair share for the upgrades but said that he was already assessed far too much on the drain. He said all landowners would benefit from a larger tile size as lands would drain more quickly.

Mr. Kelly reiterated that it was his preference that the trees (8 hard maples) along the side of the drain by his lawn be retained.

Mr. Dobbin told the Tribunal that the landowners in the Dean Drain watershed, including the appellant, wanted to spend the minimum required to drain their lands. He said the GPS was used to develop a contour map which was the best method of determining where water will flow. He acknowledged that when water backs up it will travel over its natural boundaries. He said if water backs up to the north it will eventually reach Government Drain No. 1 through the Kelly Drain but its natural flow is to the southwest. Mr. Dobbin said the proposed tile drain would take a little extra surface water when the ditch is plugged with snow.

Mr. Dobbin submitted that he had charged the road authority harder than usual in the Report, notwithstanding that it was the road authority that wanted the drain moved away from the road. He said the appellant was the main beneficiary of the tile drain as the Moore property does not need it as it is drained to the Davidson Drain. He said the Munro property did not need the tile drain either.

In response to questions, Mr. Dobbin indicated the Government Drain No. 1 was cleaned out ten years before and was in good condition; there was 1.2 metres of freeboard; and he could increase the drain’s capacity by increasing the slope but preferred not to do so due to concerns with the freeboard.

The Findings

The revised appellant statement prepared by Mr. Kelly (Exhibit 6) provides a useful reference tool. The Tribunal identified which of the appellant’s requests are addressed in each of its findings below.

Design Issue

Mr. Kelly asked for an order that the access culverts on this project be a minimum of 3 feet in diameter, rather than the 600 mm (2 feet) called for by the engineer. There was no evidence presented to suggest that the larger size was needed to accommodate flow.

Appellant request 3(a) is denied.

There was little testimony at the hearing regarding the appellant’s request that access culverts be installed to the west of their existing locations. The Tribunal finds that this request can easily be accommodated and will allow minor variation in the location of the access culverts, if the requested change is made in writing and the desired location is staked by the property owner in consultation with the Drainage Superintendent, within 20 working days of the date of this decision.

Appellant request 3(b) is partially granted as specified in the Order of the Tribunal.

The appellant asked that rip rap consisting of broken concrete be installed in a semi-circular manner away from the access culvert end. The Tribunal notes that the specifications in the Report already call for utilizing broken concrete and sees no need to vary the specifications provided in the Report.

Appellant request 3(c) is denied.

The appellant sought changes to the design of the drainage system in order to increase its capacity. These changes included:

• an increase in the drainage coefficient to 1 inch in 24 hours;
• deepening of the drain by one foot, relative to the existing drain, at Station 0+510;
• larger diameter tile sizes; and
• a deeper channel.

Mr. Kelly clearly desired an extra element of safety be built into the specifications for this drainage works. The evidence of the other affected landowners was that they wanted the least expensive project that would provide adequate drainage. The engineer, Mr. Dobbin, testified that a ¾ inch in 24 hour coefficient was sufficient for this watershed, given that the tile drain was to be complemented by an open channel. Mr. Dobbin also expressed a concern about the sufficiency of the outlet if the grade of the drain was altered. The Tribunal finds that the design of the drain in the Report is adequate and will not order any increase in the capacity of the tile portion of the drain. However, if Mr Kelly wishes to increase the capacity of the Dean drain in consultation with the engineer Mr. Dobbin, and pay for the extra costs incurred as a result of these changes, the Tribunal will so order.

Appellant requests 4(a) (c) and 6(a) are denied. However, the appellant will be provided the option as specified in the Order of the Tribunal to include these requests in the work provided he is willing to pay for 100% of the extra costs.

Mr. Kelly clearly stated that he wished the new drain to be made of good quality concrete tile, as he had experienced difficulties in the past with muskrat damage to plastic tile. The evidence of Mr. Dobbin was that either plastic tile or concrete tile could be used but that the equivalent concrete tile would be more expensive than plastic due to installation costs. The Tribunal was not persuaded that plastic tile would not be suitable in this drainage works and finds it would be inequitable to charge more to the other assessed landowners simply to accommodate Mr. Kelly’s preference. However, the Tribunal heard no evidence to suggest that what he is requesting is contrary to the integrity of the drain. Given that either type of tile is usable, the Tribunal will allow for concrete tile to be used, with the extra cost assessed to the appellant, if he so wishes. The Tribunal is confident that the specifications already call for proper quality construction techniques and there is no need to clarify that concrete mortar is to be cured.

Appellant requests 4(b) and 8(d) (f) (g) are denied. However, the appellant will be provided the option as specified in the Order of the Tribunal to include these requests in the work provided he is willing to pay for 100% of the extra costs.

The appellant asked that specifications in the Report be modified such that the landowners and the Drainage Superintendent are all part of the approval process when the drain is under construction. The Tribunal finds that this would be impractical and that it is desirable to have one individual with the authority to make final decisions. That individual is more logically the Drainage Superintendent who is required to follow the guidance provided in the engineer’s Report.

Appellant requests 8(a) (f) are denied.

Mr. Kelly asked that landowners be allowed to have soil resulting from the construction of the drain moved to a predetermined location on property that they own. The Tribunal finds this request to be too open ended to accommodate. As well the engineer testified that soil would be needed to build up banks during construction of the drainage works. Appellant request 8(b) is denied.

The Tribunal notes that scientific evidence to suggest that placing copper wire inside tile will inhibit root growth was not presented. In the absence of such evidence the Tribunal will not support this practice.

Appellant request 8(c) is denied.

The appellant asked that a swinging rodent grate be installed at the outlet pipe. As there were no objections to this request the Tribunal will so order.

Appellant request 5 is granted as specified in the Order of the Tribunal.

The appellant asked that the birdcage grates on the catchbasins be of a size to prevent muskrats from entering the drain. The Tribunal will order that these grates have two-inch bar spacing.

Appellant request 8(g) is granted as specified in the Order of the Tribunal.

With regard to the request that areas on the north side of the road allowance disturbed by construction of the drain be seeded with grass, the Tribunal will order that the specifications be clarified to indicate the seeding mixture and application rate of grass seed. The parties were in agreement that the disturbed area should be seeded with grass.

Appellant request 8(a) is granted as specified in the Order of the Tribunal.

The Tribunal notes that Section 83 of the Act prohibits the deposit of soil into a drainage works constructed pursuant to the Act. The preliminary engineer’s report (8 Jul 05) and the final engineer’s report (18 Oct 05), under the section entitled “Site Investigation and Survey”, referred to the filling of the open drain with soil. The Tribunal also heard evidence from two parties, other than the engineer, that soil deposited in the bottom of the drain had compromised the efficiency of the drain. To assist in maintaining the integrity and efficiency of the new drain, the Tribunal finds that the addition of a 3 m vegetated grass buffer strip along the edge of the north bank of the Dean Drain between the drain and adjacent fields would be advisable. Vegetated grass buffer strips are a standard Best Management Practice (BMP) described in the publication Best Management Practices Water Management, Agriculture Canada and Ontario Ministry of Agriculture and Food, 1994). The Tribunal will therefore order the engineer to modify the Report, including relevant allowances, to allow for this practice.

Appellant request 6(c) is partially granted as specified in the Order of the Tribunal.

Assessment Issue

On the question of assessments, the Tribunal finds that the assessments in the Report should be upheld. The appellant’s key arguments regarding assessments were that the watershed defined by the engineer was incorrect and that all farm properties should be assessed at the same rate on a dollar per hectare comparison.

Due to the flat topography in the drainage area, the entire watershed was surveyed at 50 foot intervals using GPS technology in September 2005. Contour maps were constructed from the data to support watershed drainage maps. The Tribunal was not persuaded by Mr. Kelly’s photographs that the watershed was different than that defined by the engineer using the GPS tool.

For drainage projects established under the Act, assessments of costs are based on outlet and statutory benefit. Mr Kelly advanced no consideration for differences in benefit or outlet assessment for Dean Drain #1. The Tribunal was not persuaded that the affected agricultural properties were similar in this regard. The evidence of Mr. Dobbin and Mr. Moore was that the Moore property was tiled such that the subsurface water drained to the Davidson Drain, directly or indirectly via Dean Drain #2. The Moore property (Roll No. 10-125) is assessed on Dean Drain #1 for outlet and Dean Drain #2 for benefit. Four properties are assessed for cutoff. A comparison of the assessments by two different methods (Todgham and Dobbin) was completed. There was no credible evidence to dispute the assessments assigned by the engineer.

Appellant requests 1(a) and 2 are denied.

With regard to the arguments that the road authority should pay more of the cost because it requested the relocation of the drain, the Tribunal finds that the engineer has taken this into consideration in setting the assessments in the Report.

Appellant request 1(b) is denied.

The Tribunal finds that the Report calls for adequate maintenance of the drain and there was no evidence presented to justify charging the road authority additional maintenance assessments for specific points of maintenance.

Appellant requests 6(b) and 7 are denied.

Allowance Issue

The Tribunal agrees with the appellant that there is some risk of damage to the roots of his eight hard maple trees from the work that is proposed in the Report. Mr. Kelly was clear that he would like the trees to be saved. Mr. Dobbin indicated that any roots encountered during construction would be cut, but that in his experience trees should survive this loss. The Tribunal is persuaded that there will be extensive root damage to the eight trees on the appellant’s lawn and is prepared to order an allowance be paid in the amount of $125 per tree, for damage to the trees.

Appellant requests 8(e) and 7 are granted as specified in the Order of the Tribunal.

Costs

Mr. Moore asked that the Tribunal assess the cost of the hearing to the appellant, Mr. Kelly. The Act provides that the costs of appeals are part of the cost of the drainage works, unless the Tribunal orders otherwise. The Tribunal finds there is no rationale for charging the cost of defending the Report to the appellant in this proceeding.

The request made by Mr. Moore is denied.

ORDER OF THE TRIBUNAL

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

1. the appeal by Mr. Bud Kelly made under Subsection 48(1)(b) is granted in part as reflected below;

2. the engineer shall prepare an estimate of the cost of replacing all plastic tile in the proposed drainage works with concrete tile of equivalent capacity and provide it to the appellant within 20 working days of the date of this decision;

3. the appellant shall inform the Clerk of the Municipality in writing whether or not he wishes to pay the additional costs associated with concrete tile within 10 working days of receiving the engineer’s cost estimate;

4. if the appellant indicates that he wishes the plastic tiles to be replaced by concrete tiles, the engineer shall modify the Report accordingly, and shall modify the Schedule of Assessment such that the cost differential between plastic and concrete tiles is charged as a special benefit to properties identified by Roll Numbers 10-123 and 10-124;

5. if no such indication is received from the Appellant, the Report shall not be modified, except as reflected in other points of this order;

6. the engineer shall prepare an estimate of the cost of increasing the coefficient on the tile drain to 1 inch in 24 hours along with associated design changes and provide it to the appellant within 20 working days of the date of this decision;

7. the appellant shall inform the Clerk of the Municipality in writing whether or not he wishes to pay the additional costs associated with the higher drainage coefficient and associated design changes within 10 working days of receiving the engineer’s cost estimate;

8. if the appellant indicates that he wishes to pay for the specified changes, the engineer shall modify the Report accordingly, and is to modify the Schedule of Assessment such that the cost differential between the existing work and the proposed additional work is charged as a special benefit to properties identified by Roll Numbers 10-123 and 10-124;

9. if no such indication is received from the Appellant, the Report shall not to be modified, except as reflected in other points of this order;

10. any landowner whose access culvert is to be replaced as per the Report and who is desirous of having that access culvert relocated within the portion of the Dean Drain that is on their property, may make a written request to that effect and shall stake out the new location in consultation with the Drainage Superintendent or engineer within 20 working days of the date of this decision; and

11. prior to the third reading and passing into effect of the by-law authorizing the drainage works, the engineer shall amend the Report design, and subsequently the allowances and assessments: a) to accommodate the desired locations of the access culverts referenced in this order; b) to modify the specifications appended to the Report to provide for a swinging rodent grate to be installed at the outlet pipe, which is one size larger in diameter than the outlet tile; c) to modify the specifications appended to the Report to provide that the birdcage grates on the catchbasins have two-inch bar spacing; d) to specify the grass seed mixture, application rate and other best management practices deemed appropriate for the establishment of grass on areas on the north side of the road allowance that require long term stabilization after disturbance by construction; e) to specify more clearly the 8 hard maple trees and their location that are to be left in place on the Kelly property; and f) to include a 3 m grass buffer (½ of the 6 m working area and extending the full length of the drain) along the edge of the north bank of the Dean Drain between the drain and adjacent fields;

12. prior to the third reading and passing into effect the by-law authorizing the drainage works, the engineer shall amend the appended schedule titled Allowances to add to the allowance of $255 to the property identified by the Roll No. 10-124 with an allowance of $1000 for damage to trees on his lawn. The appeal by Bud Kelly made under Subsection 48(1)(c) is hereby granted in part;

13. prior to the third reading and passing into effect the by-law authorizing the drainage works, the engineer shall amend the appended schedule titled Allowances to add to the allowance of the Roll No. 10-121; Roll No. 10-123; Roll No. 10-124; and Roll No 10-125 for a 3 m wide grass buffer strip; any affected property owner may submit a written appeal of their allowance for the buffer to the Tribunal for further consideration within 10 working days of publication of the amended Report;

14. based on the points reflected in this order, the amended Report shall be published within 40 working days of the date of this decision;

15. the appeal by Mr. Bud Kelly made under Subsection 54(1) of the Act is dismissed; and

16. 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 hereby ordered that there shall be no other order as to costs and as such all parties shall be responsible for their own costs. Attention is drawn to Section 73 of the Act.