Krueger Drain (RE), 2006 ONAFRAAT 44

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@ontario.ca

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433, Téléc.: (519) 826-4232

Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Krueger Drain

Town of Kingsville

Krueger Drain (RE)

2006 ONAFRAAT 44

STATUTE:

Drainage Act

HEARING:

March 28, 2006 and October 30, 2006

DATE OF DECISION:

November 22, 2006

2006-44

NEUTRAL CITATION:

2006 ONAFRAAT 44

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 George Vanderbeke, Cottam, ON 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 Krueger Drain in the Town of Kingsville.

Before: Kirk Walstedt, Vice Chair; Rod Stork, Chair, Ron Gelderland, Member

Appearances:

Keith Vanderbeke, representing the appellant George Vanderbeke

Perry Dunmore, counsel to the Township of Kingsville

Gerard Rood, P. Eng., engineer who prepared the report

George Vanderbeke, appellant

William Neufeld, representing Daniel Neufeld, assessed landowner

Lawrence Trepanier, representing Elizabeth Trepanier, assessed landowner

William Tiessen, representing Pyramid Farms, assessed landowner (MR 28 06)

Dean Tiessen, representing Pyramid Farms, assessed landowner (OC 30 06)

DECISION OF THE TRIBUNAL

This appeal was heard in Kingsville, Ontario on March 28, 2006 and October 30, 2006. Mr. Vanderbeke 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 design of the drainage works proposed, argued the benefits of the proposed works did not warrant its cost and asked that the allowances provided to him in the engineer’s report on the Krueger Drain in the Town of Kingsville by N. J. Peralta Engineering Limited dated October 2, 2005 (the Report) be increased. He also appealed from a decision of the Court of Revision which upheld the assessments contained in the Report.

Ms. Linda Burling, Clerk of the Township of Kingsville (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. Affidavits of Service were filed with the Tribunal as proof that all parties had been served with notice of this hearing.

Statutory Context

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

Section 54 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); 2006, c. 19, Sched. A, s. 6 (1).

Notice

(2) The clerk of the Tribunal shall give ten days notice to an appellant of the time and place of the hearing of the appeal by the Tribunal. R.S.O. 1990, c. D.17, s. 54 (2); 2006, c. 19, Sched. A, s. 6 (1).

Procedure

(3) Every appeal shall be heard by the Tribunal by way of a new hearing and shall be disposed of by the Tribunal in such manner as it considers proper, and its decision is final. R.S.O. 1990, c. D.17, s. 54 (3); 2006, c. 19, Sched. A, s. 6 (6).

Preliminary Matters

During the course of his testimony on March 28, 2006, Mr. Keith Vanderbeke asked the Tribunal to adjourn the hearing to allow for a boundary dispute to be taken to the Superior Court of Justice, under the Boundaries Act. As a result of that motion, the Tribunal adjourned the hearing. It later gave notice that the hearing would be continued on October 30, 2006, after reviewing actions taken by Mr. Vanderbeke to see his application completed under the Boundaries Act.

With regard to the matter raised by Mr. Vanderbeke relative to the Boundaries Act this Tribunal determines it has no jurisdiction on this boundary matter. The Tribunal did give Mr. Vanderbeke an opportunity to pursue this matter in the appropriate forum. However after seven months, having received no indication that a proceeding under that statute had been initiated, it decided to proceed to hear the issues within its jurisdiction and proceeded accordingly.

Upon reconvening, the Tribunal indicated it would consider the matters related only to the Drainage Act and would not deal with the boundary dispute, which remained unresolved.

On October 30, 2006, Mr. K. Vanderbeke requested an order that witnesses be excluded from the proceedings. Mr. Dunmore objected on the grounds that the landowners that Mr. K. Vanderbeke intended to call as witnesses were parties to the proceeding and entitled to participate in full. The Tribunal did not exclude witnesses.

The notice of appeal references Section 80 of the Act, which deals with the obstruction of existing municipal drains. Section 80 reads:

Person responsible for obstruction to remove it on notice

80. (1) When a drainage works becomes obstructed by a dam, low bridge, fence, washing out of a private drain, or other obstruction, for which the owner or occupant of the land adjoining the drainage works is responsible, so that the free flow of the water is impeded thereby, the persons owning or occupying the land shall, upon reasonable notice in writing given by the council of the local municipality whose duty it is to maintain and repair the drainage works or by a drainage superintendent appointed by the council, remove such obstruction and, if it is not so removed within the time specified in the notice, the council or the drainage superintendent shall forthwith cause it to be removed, and the cost thereof is payable to the municipality by the owner or occupant of the land. R.S.O. 1990, c. D.17, s. 80 (1); 1998, c. 18, Sched. A, s. 1 (4).

Collection of cost of removal

(2) If the cost of removing the obstruction is not paid to the local municipality by the owner or occupant of the land forthwith after the completion of the work, the council may pay the cost, and the clerk of the municipality shall place the amount of cost upon the collector’s roll against such land and such amount shall be collected in the same manner as real property taxes. R.S.O. 1990, c. D.17, s. 80 (2).

The appellant has misinterpreted Section 80 – it does not apply to private drainage works. The ditch in question which was allegedly obstructed was not a drainage works to which the Act applies. The Tribunal did not have the jurisdiction to deal with this aspect of the appeal.

The Background

Mr. Gerard Rood, P. Eng. told the Tribunal he had graduated from the University of Waterloo in 1979 and had worked in land drainage for most of his career. He said he had prepared reports in conjunction with Nick Peralta and more recently in his own name.

Mr. Rood testified that the work proposed in his Report would incorporate an existing ditch and give it legal status under the Act as it was the most efficient and cost effective way to proceed to drain the lands requiring drainage. He said he took a cross section of the existing ditch to determine the current size and estimated the cost of digging that ditch to reach a value for compensating landowners for the existing ditch. He stated that he spoke to local realtors to establish a land value for lands taken and that he also compensated landowners for damages to lands and crops and disposal of spoil.

Mr. Rood said he used the Todgham method to assess the cost of the drain to landowners and used a 50:50 statutory benefit to outlet liability ratio. He explained that lands adjacent to the drain were assessed a higher benefit than those further from the drain and that lands higher up the drain were assessed a higher benefit than lands near the outlet. He said he assessed the property owned by Pyramid Farms Limited at a higher outlet rate than the others as it was expected to be used for a greenhouse operation and would therefore generate more water per acre than the other properties.

Mr. Rood indicated he used a plan and letter obtained from a legal surveyor to clarify the boundary between the Vanderbeke and Trepanier properties and based his allowances and assessments on that boundary.

The Issues

The Tribunal was asked to consider appeals under Sections 48 and 54 of the act as put forward by Mr. George Vanderbeke. The issues before the Tribunal were:

1. Was the route and design of the drain proposed in the Report appropriate?
2. Are the allowances provided in the Report appropriate?
3. Are the assessments upheld by the Court of Revision fair and equitable?

The Evidence

Keith Vanderbeke

Mr. Keith Vanderbeke told the Tribunal that he did not feel that all alternative drainage routes had been adequately considered by Mr. Rood. He said that lands in Lot 25 had historically drained through the existing private ditch but that the Trepanier lands had not. He presented two aerial photographs which he said showed drainage ditches in the 1940s which had since been filled. He said the photographs showed an east-west ditch dividing the north and south halves of Lot 25 draining to Blind Line. He submitted that this was the original drainage method.

Mr. K. Vanderbeke suggested that rather than a north-south drain, the water be directed east-west, perpendicular to the natural flow in order to slow the flow and reduce the possibility of erosion. He said there would be more water running through the existing ditch under the proposal outlined in the Report and this would attract muskrats and lead to erosion. He stated the soil was sandy. Mr. K. Vanderbeke said the Neufeld property could be drained by extending a tile straight across the Vanderbeke property to the Concession 10 road and that the Neufeld tiles could be joined. He submitted that Mr. Laird’s measurements showed the east side of the Neufeld property was 11 inches lower than the west side and the property generally slopes to the northeast. He said he did not agree with Mr. Trepanier as to how much of the Trepanier property relied on the ditch that was to be incorporated in the proposed Krueger Drain.

Mr. K. Vanderbeke said he and his father had outlined their concerns in two letters to the Municipality but the engineer did not prepare a preliminary report and had not addressed their concerns in the Report. He suggested the engineer had failed in his duties as an engineer appointed under the Act. He said he felt that Mr. Rood only looked at what Mr. Tiessen wanted. Mr. K. Vanderbeke also suggested the engineer be required to investigate into whether there were any protected species of trillium in the wooded area of the watershed.

Mr. K. Vanderbeke indicated the proposed ditch would be1.5 feet deeper than the existing ditch and would be 27 feet wide at one point. He said the natural flow of the Trepanier land was to the northeast and that draining in that direction would only require a 495 foot drain, rather than the 2000 foot drain that is proposed in the Report. Mr. K. Vanderbeke said the engineer also proposed to redirect water from the Pyramid Farms Limited property through the Krueger Drain. He said he had been told by Shepley Excavating that it would cost less than $1,500 to construct a 5 foot deep drain, 495 feet in length. He contrasted that with the $33,000 estimate for the works proposed in the Report.

With regard to allowances, Mr. K. Vanderbeke stated that Mr. Rood is obliged to take an inventory of trees and provide compensation for each tree taken and that he had not done this in the Report. He also argued that the allowance for land provided was less than market value and that Mr. G. Vanderbeke was not to be compensated for topsoil removed from his property and placed on the Trepanier property. Mr. K. Vanderbeke objected to the realtor’s estimate obtained by Mr. Rood as the land he compared it to was half to three-quarters of a mile away, there was no indication as to soil type and he was concerned with the qualifications of the realtor, Roebel. He argued that the allowances were also incorrect as Mr. Rood had not used the correct boundary between the Trepanier and Vanderbeke properties. He said if he was correct on the boundary issue then the trees to be removed belonged to Mr. G. Vanderbeke, not Mr. Trepanier and there had been no allowance provided for them.

Mr. K. Vanderbeke said he disputed a statement made by Mr. Trepanier that water from the south end of the Trepanier property drained westerly to the existing ditch. He said that furrow was lower than the existing ditch and water could not travel uphill. He said Mr. Tiessen had raised a concern about draining to the east due to lack of capacity in the Irwin Drain, but that there was nothing in the Report indicating the capacity of that drain. He said the Irwin Drain was larger than the 10^th Concession Branch of the Irwin Drain and should have plenty of capacity.

Mr. K. Vanderbeke pointed out that the engineer had not done a topographical survey of the watershed. He also said a letter sent out by the Municipality contained incorrect information and he did not believe the Report had been adopted.

Mr. K. Vanderbeke said the appellant objected to the removal of a culvert on the northwest corner of the Pyramid Farms Limited property, as it was on Vanderbeke land, it served as a benchmark and it prevented erosion. He said there was also a concern that the Report proposed to deepen the drain by 18 inches where the culvert was to be removed.

Mr. K. Vanderbeke also indicated:

• There was approximately 6 inches of water ponding near the Tiessen exit tile.
• The soil type on the Pyramid Farms Limited, Neufeld, Trepanier and Vanderbeke properties was sand. The lands near the bush were clay.
• Sandy land was worth more than clay land however the realtor’s estimate was for clay soil.
• There was over two feet of fall away from the ditch on the Trepanier property. The furrow on that property is angled and would block access to the drain.
• The ditch to the south of the Trepanier woods stops four feet from the proposed Krueger Drain and is a lower elevation than the drain. It drains to the east.
• The culvert proposed to be removed was on the Vanderbeke property.
• It was possible to change a schedule of assessment on an existing drain; this had been done on the Patterson Drain.
• He had obtained actual sale prices for farms in the area and determined that:
  • a property owned by the Flood family sold for $9,429.32/acre in 2002
  • the Neufeld property sold for $6,010.60/acre in 2003
  • the Pyramid Farms limited property sold for $7,115.70/acre in 2004
• The Report allowed approximately $3,000/acre for land.
• The back half of the Vanderbeke property was like a bowl, low in the centre but draining both ways. All furrows except one that drains into the ditch have been capped off.
• A 27-foot wide ditch was not needed to drain this watershed. A six to eight foot deep ditch should not be needed to drain an 8-inch main.

In response to questions from Mr. Dunmore, Mr. K. Vanderbeke indicated:

• He was not an engineer but had taken a civil engineering course at the University of Waterloo and had been a farmer for many years.
• He did not hire a second engineer.
• He did not know how an assessor reached an assessed value of $3,520 per acre for the Vanderbeke property for assessment and taxation purposes.
• He did not have any realtor evaluations for the property with him at the hearing.
• He assumed trees and shrubs were included on the property when his father purchased it.
• He did not have an expert report on the value of trees.

In response to questions from Mr. Tiessen, Mr. K. Vanderbeke indicated:

• 15 acres of the Vanderbeke property was assessed to the Vanderbeke Drain and 10 acres to the 10^th Concession Branch of the Irwin Drain.
• Water from the south half of the Vanderbeke property could not drain to the proposed Krueger Drain because there was a berm along the side of the drain.
• The cross ditches were filled because of crop failure due to flooding from the existing ditch onto the Vanderbeke property which occurred in 2004.

In response to questions from Mr. Trepanier, Mr. K. Vanderbeke indicated the cross ditches were filled after the crop was taken off in 2004.

In response to questions from the Tribunal, Mr. K. Vanderbeke clarified:

• The existing ditch had been blocked off and Pyramid Farms Limited removed the blockage.
• The East Branch of the Irwin Drain was an open ditch.
• The Irwin Drain was open from the 10^th Concession down, and was just a furrow from Three-quarter Line down.
• Between Blind Line and the concession there is a bridge to access residential property.

Linda Burling

Ms. Linda Burling was called by Mr. K. Vanderbeke. She testified that:

• There was no fee to file a petition for drainage.
• Once a petition is received, municipal staff prepare a report for the council of the Municipality and council then appoints an engineer and directs the engineer to either prepare a preliminary report or a full report.
• There are two readings of a by-law when an engineer’s report is adopted but the third and final reading cannot occur until after allowing for the appeal process.
• There was a typographical error in a letter sent out by the Municipality on December 12, 2005. The correct date of the Report was reflected in the minutes and the by-law.
• A by-law was not a legal document until it passes third and final reading.

No other party had questions for this witness.

George Vanderbeke

Mr. George Vanderbeke told the Tribunal that:

• There were 439 workable feet between the Vanderbeke Drain and the proposed Krueger Drain.
• The Vanderbeke Drain started out about three feet deep but was now approximately five feet deep as it was deepened each time it was cleaned out.
• Mr. Tiessen had indicated that he had removed a soil dam.
• Mr. Trepanier had advised Mr. Rood that his land sloped away from the proposed drain.
• Mr. Rood said he had to investigate all options proposed. He had suggested an east-west route rather than a north-south route.
• No trees would need to be cut if the east-west route were chosen.
• He thought the east-west route was a shorter distance.
• Erosion was a problem on the southwest corner of his main farm; clay and large fieldstones were placed there to stop erosion.
• The soil type in that area was sand. It was also sand at the southeast corner of his main farm and the intersection of his property with the Neufeld and Pyramid Farms Limited properties.
• Erosion protection was needed and was provided by the existing culvert that the engineer proposed to remove.
• He had lived on his farm for 75 years; his family had owned it since 1918.
• He had been a member of Council for Gosfield North for 11 years and had considered engineer’s reports in that capacity.
• An existing tile from the Neufeld property was perhaps 2.5 feet deep. Mr. Neufeld has two main tiles.

In response from a question by the Tribunal, Mr. G. Vanderbeke said he did not recall any discussion between the Council of the Municipality and Mr. Rood regarding an alternative route for the proposed Krueger Drain.

Gerard Rood

Mr. Rood reviewed his report and highlighted the recommendations that he was making with regards to the Krueger Drain. Mr. Rood indicated that the new drain would be located in an existing drain and would address the needs of the affected land owners. He also indicated that he looked at the alternatives, did property value searches to determine the cost benefit analysis, land loss and drain construction costs. The development of assessments was based on accepted criteria. Following the Court of Revision the assessments were reviewed again and revised based on total costs and eligibility for grants on the affected lands

In response to questions from Mr. Vanderbeke, Mr. Gerard Rood testified that:

• Overall the lay of the land on the Trepanier property is from the southwest to the north. His notes indicated that Mr. Trepanier said that a furrow to the south of his forest sloped to the west. He said that 10 acres of his property drained to the existing ditch.
• He was not instructed to prepare a general topographic survey of the entire area. He undertook sufficient topographical work to design the drain but did not survey the abutting lands.
• He used a boundary line established by a legal surveyor in preparing the Report.
• His report addresses concerns raised by the appellant with regard to the Krueger Drain. He had written a separate letter to Mr. Vanderbeke addressing his other concerns.
• The allowance provided for land used includes any trees on the land in question.
• He made observations from the road of the east-west ditch between the Trepanier and Pyramid Farms Limited properties; he did not walk the ditch.
• The slope of the land was generally from south to north and west to east.
• A greenhouse would reduce the flow rate into a drainage works, as retention ponds are required, but the total volume of water draining from a property with a greenhouse is usually higher than from undeveloped land.
• It was appropriate to drain these properties north-south rather than east-west as this took the water to the drain into which they had already been assessed – the 10^th Concession Branch of the Irwin Drain.
• He had included a cost estimate for removing trees and shrubs. If the east-west route were chosen there would still need to be some refuse and debris removed.
• At station 700 of the proposed drainage works the ditch would be 24-25 feet wide.
• The acreages that landowners claimed drained to the proposed Krueger Drain fit with site observations and their assessments to other drains.
• The Laird figures indicated there was an opportunity for a substantial strip of land on the Trepanier property to be drained westerly into the Krueger Drain. The land was not dropping off fast enough to prevent drainage into the proposed drain.

In response to questions from Mr. Dunmore, Mr. Rood indicated:

• There was no requirement in the Act that an engineer prepare a preliminary report, unless instructed to do so; he was not so instructed.
• The Essex Region Conservation Authority had received the Report and submitted a clearance letter. No concerns with regard to trilliums were identified.
• He considered east-west flow and looked at all reasonable alternatives before completing the Report.
• The evidence of Mr. Laird indicated the Vanderbeke Drain was higher in elevation than the proposed Krueger Drain.
• Only five acres of the Neufeld property was drained to the Vanderbeke Drain; the balance of the property drained toward the proposed Krueger Drain.
• When he assessed the Pyramid farms Limited property he used 1.5x the usual outlet rate to account for increased water flow from a developed property.
• He answered questions in response to letters from the appellant in a letter to the Municipality.
• The culvert he proposed to remove restricted flow and removing it would reduce the risk of erosion. It was at high risk of failing and then it would become an obstruction.
• The profile in the Report showed that the proposed Krueger Drain outlet matched the invert of the associated culvert pipe.
• Based on his experience he determined the cost of using the existing ditch was the least expensive option, as it had the least excavation.
• He used professional advice to determine land values and boundaries.

In response to questions from Mr. Tiessen, Mr. Rood indicated:

• The Vanderbeke property was assessed to the Vanderbeke Drain (10 acres) and the 10^th Concession Branch of the Irwin Drain (15 acres).
• Only one acre was assessed to the proposed Krueger Drain as an investigation found that furrows leading to the existing ditch had been filled. The furrows should re-vegetate unless they are re-dug.

In response to questions from the Tribunal, Mr. Rood clarified that:

• The culvert proposed to be removed was within the existing ditch.
• The drain will continue 10 metres south of the south end of the culvert.
• The east-west ditch that he observed between the Trepanier and Pyramid Farms Limited properties was deeper at the east end. It was no where near the elevation required to drain the Neufeld and Pyramid Farms Limited properties; he believed the landowners were judging its depth from the road elevation.
• The Irwin Drain rises in grade along County Road 31 in order to accommodate a rise in land.
• If the location of a new culvert is near the mid-point of a drain, the recipient landowner would pay 50% of the cost of the culvert.
• Because Mrs. Trepanier had signed the petition for drainage, he was obligated to design a project that would drain that property.
• If he had designed a drain along the proposed east-west route he would have had to include cut-off assessments.
• Private drains have no status under the Act.

In response to a question arising from the Tribunal’s questions, Mr. Rood explained that a cut-off assessment was assessed when land was protected from surface flows by cutting off their access.

Bill Neufeld

Mr. Bill Neufeld testified that:

• Mr. Henry Krueger had tiled 25 acres plus 15 acres he bought to the east of his property through the main tile.
• Dirt had been pushed into the existing ditch after the first day of the hearing; the OPP were called to witness what had been done and witness its subsequent removal.

In response to questions from Mr. K. Vanderbeke, Mr. Neufeld indicated:

• He did not recall the exact dates the police were called.
• The culvert is three feet in diameter.
• He had not yet harvested his 2006 crop.
• There had been flooding in the northeast corner of his farm in 2006. He had not observed how long the water was in the field but it had a hard time draining away because the existing ditch was plugged up.
• The proposed Krueger Drain was on the east side of his property.
• The Vanderbeke Drain, in the northwest, was installed in 1978 but someone had since dug the dirt off the top of the east-west tile of that drain.
• The main that would drain to the proposed Krueger Drain runs east to west all the way across his farm. It does not connect to the main that drains to the Vanderbeke Drain as the farm has two distinct drainage areas.
• He had a ditch on the east side of his property which at one time had been approximately four feet deep and ten feet wide; he did not know its current dimensions.
• The existing ditch which was proposed to be incorporated into the Krueger Drain had been there for years; when his father tiled his farm by hand the neighbours had agreed to hire a backhoe to clean out the ditch.
• He was opposed to having a ditch along the north side of his property.

In response to questions from Mr. Dunmore, Mr. Neufeld indicated:

• He was generally supportive of the Report and believed the engineer had adequately canvassed alternatives to drain the land.
• He had lived on his property for at least 67 years.
• He was not aware of a copy of the mutual agreement that allowed for the clean out of the existing ditch in his father’s day. It was an arrangement between neighbours and the Municipality was not involved.

Adam Laird

Mr. Adam Laird told the Tribunal that he had taken a course which required survey work from Sheraton College in 1992 but that he was not a licensed land surveyor. Mr. Laird told the Tribunal that:

• He surveyed the back half of the Neufeld farm along the route of the proposed Krueger Drain and did some survey work on the Pyramid Farms Limited property as well.
• He found a 1.25 inch slope from west to east on the Neufeld property from the bottom of a pipe on the east side to the bottom of a culvert on the west side.
• The land fall was 13 inches in that area. He agreed his letter actually indicated the fall was 2.5 feet from west to east on the Pyramid Farms Limited property.
• South of the forest, the Trepanier property is 18 inches lower from west to east over 300 feet. It slopes away from the proposed drain.
• There was a ditch in the middle of the Trepanier farm that was approximately eight feet deep.
• He did not observe any ponding of water on the properties the day he took his readings.
• A ditch south of the culvert had recently been excavated and was approximately 2.5 feet lower than the culvert. It had no outlet.
• He saw no reason why the two mains on the Neufeld farm could not be connected.

In response to questions from Mr. Dunmore, Mr. Laird indicated:

• The proposed Krueger Drain was deeper than the Vanderbeke Drain.
• He did not investigate the Tiessen tile.
• He was asked to measure the slope of the land and set up a transit to measure it.

In response to questions from the Tribunal, Mr. Laird clarified the owners of the properties identified in his report and said:

• He looked at both the east-west slope and the north-south slope.
• He did not include topographical readings in his report.
• His course at Sheraton College covered both surveying and drainage.
• He was not familiar with Publication 29.

In response to a question arising from the Tribunal’s questions, Mr. Laird said his course was six months long and he obtained a heavy equipment operator certificate.

Dean Tiessen

Mr. Dean Tiessen told the Tribunal he had been unable to negotiate an agreement with all the other landowners to have the existing ditch cleaned out and had petitioned for a solution under the Act. He testified that:

• When he purchased the Pyramid Farms Limited property an exit tile in the northwest corner of the property drained to the existing ditch which the Report proposed to incorporate into the new Krueger drain.
• At times the tile had been covered with sediment.
• The southwest corner of the Pyramid Farms Limited property had suffered severe flooding.
• He had observed water flowing from the Pyramid Farms Limited property onto the Trepanier property on October 28, 2006. This occurred every time it rained.
• The Pyramid Farms Limited property was assessed into the 10^th Concession branch of the Irwin Drain. The existing ditch that was proposed to be incorporated into the proposed Krueger Drain was the only practical route for his water to reach that drain.
• When he was trying to reach a mutually agreed solution to the drainage problem, Mr. G. Vanderbeke never told him that he did not use the existing ditch.
• Six or seven cross ditches were filled on the Vanderbeke property after they first spoke about cleaning out the existing ditch. They had been draining into the ditch and he was concerned they would be opened up again in the future.
• He had suffered crop damage due to insufficient drainage.
• He had previously cleaned out ditches on the Trepanier and Neufeld properties with the landowners’ consent.
• He may eventually build a greenhouse on the Pyramid Farms Limited property. If he did, he would need a retention pond.
• He agreed with the engineer that the culvert proposed to be removed served no purpose and should be removed.
• His exit tile is now buried and full of sediment; if a drainage solution is not reached soon he may need to re-tile.
• Mr. Laird did not consider his exit tile, and a ditch on the proposed alternate route would need to be much deeper to allow him drainage.
• He had contacted Mr. Shepley and was informed that he did not recall giving a quote on that proposed ditch and said the number quoted was very low.
• Land values in the area had started to drop. He thought the allowances sought by the appellant were excessive.
• He did not think the ditches between the Pyramid Farms Limited and Neufeld properties were 2.5 feet below the culvert; it is a private drain.
• He understood there had been a hedgerow, not a drain, in the middle of the Pyramid Farms Limited property years before but did not own the property at the time.

In response to questions from Mr. K. Vanderbeke, Mr. Tiessen indicated:

• All landowners except Mr. G. Vanderbeke and Mrs. Karen Krueger had signed a proposed agreement to clean out the existing ditch.
• At the time the clean out would have cost approximately $5,300 and it was the only sensible option.
• He did not know the width of the ditch he had cleaned out.
• The ditch between the Pyramid Farms Limited and Trepanier properties varied in depth from approximately 2-2.5 feet at the west end to 10 feet at the east end.
• Approximately two-thirds of the Pyramid Farms Limited property drained to the east through the ditch. The ditch was lower than a low spot on his farm at the west end. It drains toward the proposed Krueger Drain.
• He understood the ditch was originally dug to protect the Trepanier lands from flooding from the Pyramid Farms Limited property.
• If the ditch were lowered it would solve his problem but cause more flooding of the Trepanier lands. The assessments on the 10^th Concession of the Irwin Drain would also need to be adjusted and that would require an engineer’s report.
• His contractor had exposed his exit tile, but not at his direction. It had later been plugged but reopened under the observation of the police.
• The compensation requested by Mr. G. Vanderbeke was excessive and it was ridiculous to think the Vanderbeke property would not use the ditch.

In response to a question from Mr. Dunmore, Mr. Tiessen said he was generally supportive of the Report, apart with his frustration with the compensation and assessments.

In response to questions from the Tribunal, Mr. Tiessen indicated:

• The exit tile at the northwest corner of the Pyramid Farms Limited property was under water and half full of sediment.
• The culvert is upstream of his main drain.
• He thought the main drain drained 21 acres of his property and 10 acres owned by Ms. Karen Krueger. It was an eight inch tile.
• Cross ditches take most of the surface water.

Lawrence Trepanier

Mr. Lawrence Trepanier told the Tribunal that:

• He agreed with the Report, including the schedule of assessment.
• He knew the ditch needed to be cleaned in order to keep the Trepanier property from being flooded from lands lying to the west.
• Ten acres of the Trepanier property was drained through the existing ditch.
• A wooded area on the Trepanier property was 6-8 acres and drained to the proposed Krueger Drain through ditches located both north and south of the wooded area.
• An additional four acres of land could not be drained to the east as there was too much of a rise to go through.
• Water drainage had been changed on the Vanderbeke property to drain to the west; approximately half that property had been draining to the east to the proposed Krueger Drain.
• A statement in the notice of appeal regarding an excavating company owned by his wife’s nephew was slanderous. He and his wife had always paid full price for work done.

In response to a question by Mr. Vanderbeke, Mr. Trepanier agreed that a dam removed by Mr. Tiessen would have stopped water coming down the proposed Krueger Drain and prevented that water from flooding the Trepanier property.

In response to questions from the Tribunal, Mr. Trepanier identified the portion of the Trepanier property using the existing ditch and said:

• The Trepanier farm was 100 acres.
• It was assessed into the Irwin Drain and the 10^th Concession Branch of the Irwin Drain. The ten acres which drains through the existing ditch in the location of the proposed Krueger Drain outlets into the 10^th Concession Branch of the Irwin Drain.

Summations

Mr. K. Vanderbeke submitted that if the existing east-west ditch were enlarged, the Neufeld and Pyramid Farms Limited properties would not need the proposed Krueger Drain and since that route was much shorter it should be the route used. He said that Mr. Neufeld could repair his main tile and drain it toward County Road 31. He disputed the acreage that Mr. Trepanier claimed would drain into the proposed Krueger Drain.

Mr. Dunmore submitted that Mr. K. Vanderbeke had made suggestions, allegations and threats but had not proven the appellant’s case. He said the Report was prepared by a professional engineer and there was no expert evidence to refute it. He asked that the Report be confirmed in its entirety.

Mr. Neufeld stressed the need to complete the work in the winter of 2006-07, due to the risk of flooding.

Mr. Tiessen said he agreed with almost all the Report and hoped the Tribunal would fairly address assessment and allowances.

The Findings

The Tribunal heard no testimony from any other professional engineer or land surveyor to offset the Report prepared by Mr. Rood and heard nothing to indicate there were any flaws in the Report.

The Tribunal is comfortable with the 1.5 x factor used in assessing the Pyramid Farms Limited property as it finds the explanation that retention ponds reduce flow but that more water is ultimately drained from properties with greenhouses on them to be credible. The property is assessed at a higher rate than the others due to the possible future use that was identified by Mr. Tiessen.

The Tribunal heard evidence with regard to matters of compensation on trees and crop land. The Tribunal finds that the engineer dealt with the matter of compensation in a fair and equitable manner. The Tribunal heard further that Mr. Vanderbeke was seeking specific compensation tree by tree. The Tribunal finds the compensation provided in the Report to be fair and equitable. There was no demonstrated evidence that the trees in question were ornamental or special trees and the Tribunal accepts the compensation provided in the Report.

The Tribunal finds there was no evidence that the engineer had a conflict of interest and believes he dispatched his duties as per the requirements of Section 11 of the Act as a professional engineer. He was not commissioned to prepare a preliminary report so it would be unreasonable to expect that he do so. It appears that he attempted to answer the appellant’s questions and concerns.

With regard to the culvert that is proposed to be removed, the Tribunal accepts the testimony of Mr. Rood that it was a restriction to the drain, potential blockage due to age and high risk of failing. It was clear there was no need for the culvert as access to lands. Erosion protection methods are included in the Report.

The Tribunal notes that the Act does not require an engineer to route water back to a historic drainage pattern. As well, since there were no elevations on the aerial photographs submitted, there was no way to determine the direction of flow of water when they were taken. The Tribunal appreciates that Mr. G. Vanderbeke would have preferred an east-west drain, rather than the north-south drain favoured by the other landowners represented at the hearing. However, there was no concrete professional evidence provided which would indicate it was a better route than that recommended in the Report. The Tribunal notes that Mr. Rood did visually inspect alternate routes before selecting the proposed route.

On balance, the Tribunal finds that the assessments and allowances were thought out with logic, well reasoned and appeared to be fair and balanced. The Tribunal heard some differences in land value appraisals but on balance based on the collection of data provided at the hearing - including the Municipal Property Assessment Corporation assessment, the sales data provided by Mr. K. Vanderbeke and the certified appraiser’s valuation of land - finds that the allowance for land paid to Mr. G. Vanderbeke is appropriate.

The Tribunal finds that it has no authority to prevent any excavating company from putting a bid in for work to be commissioned on the proposed drain.

ORDER OF THE TRIBUNAL

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

1. The appeals by Mr. George Vanderbeke under Sections 48 and 54 of the Act are dismissed.

2. 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.