Elliot Drain – Branches H and I (Re), 2006 ONAFRAAT 32 — OAFRAAT | minicounsel

Agriculture, Food and Rural Affairs Appeal Tribunal

1Stone Road West

Tribunal d’appel de l’agriculture,

de l’alimentation et des affaires rurales

1, chemin Stone Ouest

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:

Elliot Drain – Branches H and I

Township of Norwich

Elliot Drain – Branches H and I (RE) 2006 ONAFRAAT 32

STATUTE:

Drainage Act

HEARING:

August 16, 2005

DATE OF DECISION:

August 30, 2006

2006-32

NEUTRAL CITATION:

2006 ONAFRAAT 32

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.

AND IN THE MATTER OF:

Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Keith Armstrong, Woodstock, Ontario under Subsections 48(1)(a) and 48(1)(c) of the Drainage Act from the Engineer’s report and under Section 54 of the Drainage Act from a decision of the Court of Revision on the Elliot Drain – Branches H and I in the Township of Norwich.

Before:

Kirk Walstedt, Vice Chair, Jack Young, Vice Chair; Ron Gelderland, Member

Appearances:

Mr. Keith Armstrong, appellant

Mr. Edwin Armstrong, assessed landowner

Mr. John Kuntze, P. Eng., K. Smart Associates Limited, the Engineer who prepared the report

DECISION OF THE TRIBUNAL

This appeal was heard in Otterville, Ontario on August 16, 2005. Mr. Keith Armstrong appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsections 48(1)(a) and 48(1)(c) of the of the Drainage Act (the Act) from the Report prepared by K. Smart Associates Limited and signed by John Kuntze P. Eng.(the Engineer) dated December 20, 2005 (the Report) and under Section 54 of the Drainage Act from a decision of the Court of Revision on the Elliot Drain – Branches H and I in the Township of Norwich (the Municipality).

Ms. Betteanne Cadman, Clerk-Administrator of the Municipality, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. An affidavit of service was filed with the Tribunal as proof that all parties have been served with notice of this hearing.

Statutory Context

Subsections 48 (1) (a) and 48 (1) (c) 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; …

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); 2006, c. 19, Sched. A, s. 6 (1).

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.

Sections 29 and 31 of the Act both relate to allowances. They read as follows:

Allowances for right of way, etc.

The engineer in the report shall estimate and allow in money to the owner of any land that it is necessary to use,

(a) for the construction or improvement of a drainage works;

(b) for the disposal of material removed from drainage works;

(d) as a means of access to any such pumping station, if, in the opinion of the engineer, such right of way is sufficient for the purposes of the drainage works,

the value of any such land or the damages, if any, thereto, and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, c. D.17, s. 29.

Allowance for existing drains

Where an existing drain that was not constructed on requisition or petition under this Act or any predecessor of this Act is incorporated in whole or in part in a drainage works, the engineer in the report shall estimate and allow in money to the owner of such drain or part the value to the drainage works of such drain or part and shall include such sum in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works. R.S.O. 1990, c. D.17, s. 31.

The Background

Mr. John Kuntze, P. Eng. gave the Tribunal an overview of the Report.

The Engineer stated that the report was prepared pursuant to a resolution of the Council of the Municipality in response to the petition of Mr. Edwin Armstrong, owner of the southwest portion of Lot 10, Concession 4 (East Oxford) (Roll # 040-050-113) in the Municipality. Edwin Armstrong petitioned the Township of Norwich to incorporate a private drain Branches H & I of the Elliott Drain, as a municipal drain. Edwin Armstrong petitioned the municipality for drainage because he wished to eliminate the possibility of having Branch H or I of the Elliot Drain closed off or dug up by another landowner. Edwin Armstrong also had concerns with flooding on his property from time to time and he wished to ensure an outlet for the tile drainage on his property.

The outlet for the subsurface tile drainage from Edwin Armstrong’s property is Branch H of the Elliott Drain which is located on the property of the appellant, Keith Armstrong. Branch H of the Elliot Drain is a closed tile drain; it crosses Old Stage Road and runs north to outlet into the Elliott Drain; it was constructed to convey subsurface waters only. Branch I of the Elliot Drain is a roadside ditch running along the south side of Old Stage Road that conveys surface water westward to outlet into Branch A of the Elliott Drain.

The construction work specified under the report was for the deepening and widening of Branch I. The total estimated cost of the project is $9000.00; the cost of excavating and hauling material on Branch I is $2,200.00. Engineering costs are $4,700.00 and $100.00 was estimated to cover administrative costs. The appellant Keith Armstrong is assessed for benefit at $1,500.00, the balance of assessments for benefit are against the road and the Edwin Armstrong property. Keith Armstrong is assessed on Branch H of the Drain only. The net cost to the Keith Armstrong property is zero dollars.

Allowances were apportioned on the basis that the landowner(s) who initially bore the cost of constructing the portion of the drain that was to be incorporated into a municipal works should be compensated. In the case of the Elliot Drain Branch H it was determined that they were constructed by a single landowner who owned a single parcel of property that had since been severed and was currently owned by his descendents Keith Armstrong (the appellant) and the appellant’s brother, Edwin Armstrong. The allowance was divided equally to provide $1,000.00 each to Keith Armstrong and to Edwin Armstrong.

The Issues

The issues before the Tribunal were:

Are the allowances for incorporating an existing drain under section 31 of the Act excessive, and are they assigned in accordance with the Act?
Are the assessments appropriate?

The Evidence

Keith Armstrong testified before the Tribunal and submitted that:

He is the owner of the property where the tile drain Branch H is located, and he should receive the total allowance of $2,000.00 as set out in Section 31 of the Act.
If he is not permitted to connect his tile to Branch H, he would like to be compensated for insufficient outlet.
A letter dated February 15, 2005 from the Township of Norwich indicates that he must petition for drainage to obtain connections for his farm tile drainage.
His property does not benefit from the drainage works to the extent that Edwin Armstrong’s property benefits.
Flooding concerns on the Edwin Armstrong property will be eliminated as a result of the project; therefore it should be assessed more for benefit.
His property has virtually no area that benefits from the project.

Keith Armstrong submitted a diagram of the area of his property that is affected by the project and stated that:

A tile drain, installed in a U-shape, the ends of which terminate in Branch A of the Elliott drain, provide cut off from water that flows onto his property on the north side of Old Stage Road.
A new section of tile running along the north side of Old Stage Road should be installed to convey road water into Branch H.
He has concerns that his crops will be damaged as a result of maintenance for Branch H in the future.
He has no outlet for his tile at present; therefore he believes he should be compensated for insufficient outlet.

Keith Armstong submitted six photographs of his property and the Branch I ditch running along the south side of Old Stage Road. He stated that he graded the soil on his property so that backed up water from the ditch could not flow over his property.

The Engineer clarified that under the Act, Keith Armstrong was legally permitted to connect his farm tile drainage into Branch H. He stated that Mr. Armstrong had at one point requested that the tile drain be replaced with larger sized tile. He explained that the letter from the Township of Norwich dated February 15, 2005 was in response to this request from Keith Armstrong. The Engineer stated that the size of the tile under the report suitably addressed the concerns as petitioned by Edwin Armstrong.

Keith Armstrong requested that the Tribunal include in its order, the provision that he may legally connect his farm drainage tiles to Branch H of the Elliott Drain. The Engineer told the Tribunal that he had no objection to such a provision.

In response to questions, Keith Armstrong responded that:

The tile drain (Branch H) that is being incorporated under the Report, was constructed by his grandfather. His property and that of his brother, Edwin Armstrong, were a single parcel at the time.
He recalled that sometime in 2001, he submitted to the Township that a new tile drain should be installed because the present drain was 70 years old and it needed updating.
He was not in favour of constructing a new drain unless it was going to be a new municipal drain.
Branch I, the ditch portion of the drain running along the south side of Old Stage Road had caused 95 per cent of any flooding concerns as water would become backed up in the ditch.
He only planned to tile drain one acre of land into Drain H.
Most of his property is systematically tile drained. At the time of the hearing he had no farm tile connected to Branch H. His farm tile outlets into the creek.
He had not experienced any flooding or soil erosion due to the state of repair of Branches H or I of the Elliott Drain. The water flows through the drain well.
He inadvertently dug up a tile from Branch H. It was the old flat bottom type and only five inches in diameter, not round or six inches in diameter as advised by the Engineer. It is functioning well.
He wanted any necessary repairs or replacement to the tile portion of the drain to be constructed now and not at any future date.

The Engineer testified before the Tribunal and submitted that:

He based the allowances for incorporating Branch H on the landowner who constructed the drain initially. In this instance the allowance was split between Keith and Edwin Armstrong because their properties were once one parcel and their father probably constructed the drain
Having prepared numerous reports for municipal drainage projects, he could not recall ever having made an allowance for right of way for a tile drain and for this project, he did not believe it was necessary to make an allowance under Section 29 of the Act.
The Keith Armstrong property was assessed $1,500.00 because Branch H can accommodate more water and because there is no culvert under the Old Stage Road so that water will enter Branch H rather than flow across his property.
The Old Stage Road acts as a dam channeling water into the Branch I ditch rather than across Keith Armstrong’s property. Keith Armstrong is not assessed on Branch I.
Edwin Armstrong’s intent in petitioning for drainage was to ensure that the works could not be tampered with. He was satisfied that the existing tile was in good working order.
The Branch I ditch had been cleaned out by the Municipality in 2001 to the grade established under the report.
There was no history of problems with the functioning of the Elliott Drain.
If Branch H consists of only five inch diameter tile it is sufficient to address the concerns of the petitioner.
Edwin Armstrong is assessed $1,068.00 for outlet on Branch H based on 4.4 hectares of his property using the drain. Keith Armstong’s property is not assessed for outlet on Branch H or Branch I.
The entire length of the Branch H tile drain is located on Keith Armstrong’s property.
The Keith Armstrong property benefits from Branch H because water from the neighboring property is carried through it as opposed to flowing across his property.
There is virtually no risk to crops from the maintenance to Branch H as maintenance usually takes place when crops are not growing.

In response to questions, the Engineer responded that:

He agreed that Section 31 of the Act requires the “allowance for existing drain” to be allowed “to the owner of such drain” however he did not know if this meant the present owner or a previous owner.
With respect to the size and shape of the existing tile, he stated that he had never seen the actual tile to confirm this however the tile was working well and should last another 70 years.
Branch I is delineated as the portion of the drain from Sta. 0+000 to Sta. 0+325.
Branch H is delineated as the portion of the drain running from Sta. 0+000 to Sta. 0+170. It is being incorporated as a Municipal Drain.
The excavation of Branch I ensures that water flows westward and through Edwin Armstrong’s culvert avoiding flooding of his fields.
There is no problem of erosion at the Branch I outlet Sta. 0+000 to Sta.0+025.
No more construction work is required on this project. The Municipality has cleaned out the ditch to the grade specified in the report.
He was initially not certain how the Municipality was billing the cost of the clean out but while the hearing was adjourned he determined that the cost of cleaning out Branch I to the specifications under the report was not going to be charged to the drain.
The structure identified as a catch basin was not built to take in surface water. It is actually a closed junction box with one six-inch steel pipe and two four-inch steel pipes connected to it. He agreed that it could have been more accurately described under the Report.

Mr. Edwin Armstrong told the Tribunal that he had lived on his property since 1945, however he was not certain if Branch H of the drain is flat bottomed or round tile. He stated that he was in favour of incorporating the drain under the Report.

Summations

Keith Armstrong told the Tribunal that he wanted it to find in his favour and award the total allowance for the project to his property for a total payment to him of $2,000.00. He reminded the Tribunal that the allowance should be paid to the landowner who owned the property and that he was the rightful owner of the property. He submitted that he wished the Tribunal to order an allowance in the amount of $300.00 be paid to him, pursuant to Section 29 of the Act and that he wanted the Tribunal to order that he be paid an allowance under Section 32 of the Act in the amount of $600.00. He said that if he is permitted to connect his farm tile into the drain, he was willing to forgo his request under section 32 of the Act.

The Engineer told the Tribunal that the parties went through the municipal drain exercise to ensure no future issue will arise. He said the provision of allowances is the issue for the Tribunal to deal with. He explained he split the allowance for the existing drain between the two current owners because it was their grandfather who was the owner at the time of the original drain’s construction. He submitted that no allowance for right of way is necessary.

The Findings

The Tribunal heard and considered the evidence with respect to a drainage system consisting of the six inch tile drain that was constructed approximately 70 years ago. The evidence indicated that the tile may be only 5 inches in diameter and be of the old flat bottom type. Without a proper inspection of this 70 year old tile there is no evidence to support the Engineer’s projected life span of a further 70 years. Should this tile fail, the most likely solution would be to replace it entirely at considerable expense. The Tribunal finds that the allowance provided for the existing tile is excessive and should be reduced to $1,000.00. Further it is the finding of the Tribunal that the Engineer erred in allocating the “allowance for existing drain” under Section 31 of the Act to the descendant of a previous owner. The Tribunal accepts the principle that Keith Armstrong purchased the tile drain when he purchased the land it is located on. It is common law, with the exception of an agreement that states otherwise, that a former owner has no future rights once a property is sold. Section 31 of the Act requires that the allowance for an existing drainage system be assigned to the owner of the property where the drain is situated. The allowance of $1,000.00 under Section 31 is assigned to roll number 040 050 114 05. (K & D Armstrong)

The Tribunal considered Keith Armstrong’s request for an allowance for right of way under Section 29 and the Tribunal finds that the provision for right of way is included in the value of the allowance for the Drain H under Section 31.

The Engineer reported that the construction work on Branch I of the drain was completed by the Municipality in 2001and that no further construction work is required on this project. The reduction of the Allowances by $1,000.00 and the elimination of the $2,200.00 Construction Cost reduces the Cost Estimate from $9,000.00 to $5,800.00. The Tribunal will order these changes.

Schedule A – Schedule of Assessments – in the Report is based on a Cost Estimate of $ 9,000.00. The Tribunal has revised this schedule to reflect the Cost Estimate of $5,800.00. Fifty percent of the engineering and administration costs have been assigned to each branch and the same Benefit/Outlet Ratio and method of assigning Outlet Assessments have been used as in the original Report. The Tribunal will order these changes.

Discussion took place with respect to the length of Branch I for maintenance purposes. The Engineer indicated that Branch I extends from Sta. 0+000 to Sta. 0+325, which will be confirmed by the Tribunal.

Evidence was presented by the Engineer that Branch H was constructed for the sole purpose of conveying subsurface waters and that Branch I was designed to carry surface flows along the south side of Old Stage Road to Branch A of the Elliott Drain. The Tribunal will confirm that the “catchbasin” at Sta. 0+000 Branch H is in fact a junction box with cover and that the junction box will not be permitted to receive surface water in the future.

Considerable discussion was heard regarding the right of roll number 040 050 114 05 (K&D Armstrong) to connect field tile to drain H. The Tribunal will clarify that field tile from this property may be connected to the drain. There will be no provision of a Section 32 allowance for insufficient outlet.

ORDER OF THE TRIBUNAL

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

The appeals under Sections 48(1)(c) and 54 are granted in part as follows below.
The allowance for Drain H under Section 31 shall be reduced from $2,000.00 to $1,000.00 and allowed to Roll # 040-114-05 (K &D Armstrong).
The Cost Estimate for the project shall be modified as follows:

i. Allowances (Branch H) $1,000.00

ii. Engineering (Branch H) $2,350.00

iii. Administration (Branch H) $50.00

Subtotal Branch H $3,400.00

iv. Engineering (Branch I) $2,350.00

v. Administration (Branch I) $50.00

Subtotal Branch I $2,400.00

Total Estimated Cost $5,800.00

Schedule A - Schedule of Assessments - in the Report shall be replaced by Schedule A below:

Schedule A

Roll No.

Drain H

Drain I

Con

Lot

040-050-

Owner

Benefit

Outlet

Total

Benefit

Outlet

Total

Grand Total

SW Pt 10

113

E. Armstrong

4.4

700

776

1,476

800

517

1,317

2,793

NW Pt 10

114-05

K. Armstrong

1,100

SE Pt 10

115

M. Percival

0.4

118

SE Pt 10

115-01

J. Cornell

0.2

1,800

882

2,682

800

588

1,388

4,070

Twp

1.8

400

318

718

800

212

1,012

1,730

Total

6.8

2,200

1,200

3,400

1,600

800

2,400

5,800

It is confirmed that the extent of Branch I for maintenance purposes is from Sta. 0+000 to Sta. 0+325.
It is confirmed that the owner of Roll 040-115-05 (K & D Armstrong) have the right to connect field tiles to Branch H.
All reference in the Report to the “catch basin” at Sta. 0+000, Drain H shall be changed to “junction box” and no surface water shall enter Branch H at this location in the future.
The Engineer shall amend the Report to reflect this Order. All changes shall be marked “as amended by the Tribunal Order dated August 30, 2006”. The amended Report shall be included in the Bylaw.
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 Essex , Ontario this 30^th^ day of August, 2006.

For informational purposes only, a revised Schedule B is provided below:

Schedule B

Roll No.

Owner

Grand Total $

Grant $

Allowances $

Net $

Con

Lot

(040-050-)

E. Armstrong

2,793

931

1,862

SW Pt 10

113

K. Armstrong

1,100

367

1,000

-267

NW Pt 10

114-05

Percival

118

SE Pt 10

115

Cornell

SE Pt 10

115-01

4,070

1,000

1,772

Twp

1,730

Total

5,800

1,000

3,502