Saxon Drain (Re), 2006 ONAFRAAT 46

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

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

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

Saxon Drain

Municipality of Southwest Middlesex

Saxon Drain (RE) 2006 ONAFRAAT 46

STATUTE:

Drainage Act

HEARING:

November 21, 2006

DATE OF DECISION:

December 20, 2006

2006-46

NEUTRAL CITATION:

2006 ONAFRAAT 46

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Tom Ward, Appin, Ontario and Jim Wolfe, Melbourne, Ontario under Section 48 of the Drainage Act from the engineer’s report on the Saxon Drain in the Municipality of Southwest Middlesex and by Tom Ward, Appin, Ontario, Kenneth E. Wilson, Appin, Ontario and Jim Wolfe, Melbourne, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision on the Saxon Drain in the Municipality of Southwest Middlesex

Before: John O’Kane, Vice Chair; Ron Gelderland, Member; Sharon Weitzel, Member

Appearances:

Valerie M’Garry, counsel to the appellant Tom Ward

Robert Robinson, representing the appellants, Ken Wilson, Jim Wolfe

Ken McCutcheon, representing the appellants, Ken Wilson, Jim Wolfe

John Wolfe, representing the appellants, Ken Wilson, Jim Wolfe

Ray Dobbin, P. Eng., engineer who prepared the report, also representing the respondent, the Municipality of Southwest Middlesex

Ken Wilson, appellant

John Kuntze, P. Eng., witness for the appellant, Mr. Ward

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) heard these appeals on November 21, 2006 in the Council Chambers of the Municipality of Southwest Middlesex (the “Municipality”).

Ms. Janneke Newitt, Clerk of the Municipality acted as Clerk of the Tribunal.

The Tribunal had previously issued an Order making all landowners assessed or compensated in the Report▬ parties to this hearing. Ms. Newitt filed an Affidavit of Service¹ proving that all parties were served with notice of this hearing.

Background

Ward, Wilson and Wolfe are the appellants before the Tribunal. They are neighbouring farmers. Water drains from their farms through a combination of private drains and municipal drains.

Ward has a drainage problem on his farm at a low spot along the fence line that separates his property from Wilson’s.

The issues in this appeal arise from Mr. Ward’s petition under the Drainage Act (the “Act”) to have a private drain become part of the municipal drain. If the private drain becomes part of the municipal drain then a number of surrounding neighbours and the municipality will share the cost of the drains.

The Municipality’s representative in this hearing is Ray Dobbin. Dobbin is the engineer appointed by the Municipality under the Act. He designed the drainage works and decided how the costs are shared.

Earlier this year the Court of Revision upheld the cost sharing assessments made by Dobbin.²

Statutory Context

The Tribunal heard two types of appeal under the Act.

1. Tom Ward and Jim Wolfe appeal from the Dobbin report under section 48ⁱ of the Act. They are not satisfied with parts of Dobbin’s design of the drainage works and want them modified. In these appeals the Tribunal can design a remedy it considers proper to achieve the purposes of the Actⁱⁱ;
2. Tom Ward, Jim Wolfe and Kenneth Wilson appeal under section 54ⁱⁱⁱ of the Act from the Court of Revision. The Court of Revision heard their original appeals from Dobbin’s assessment (the cost sharing) and upheld Dobbin’s assessments. Ward wants the assessments to stay as they are and Wilson and Wolfe want them changed. In these appeals the Tribunal conducts a new hearing into the assessments and can resolve the appeal in a manner it considers proper^iv.

The Engineer’s Overview

Under section 55 of the Act Dobbin gave us an overview of the drainage works and explained how he set the assessments. He told the Tribunal the Saxon Drain was an existing municipal drain that had been established under a report dated 1897. The original open ditch had been closed in as a tile drain in 1974, and most recently improved under a 2001 report which he authored. Dobbin explained he had recommended in the 2001 report the Saxon Drain be extended upstream to drain a wet area on the South ½, Lot 6, Concession R2NLR (Ward property). He indicated that his recommended extension required a petition under Section 4 of the Act however no petition was filed.

Dobbin testified that a Section 4 petition was subsequently filed by Mr. Ward in 2005. That petition requested an existing 12-inch tile concrete drain (from now on the “Saxon Branch” drain) be incorporated into the Saxon Drain. He indicated that at site meetings the downstream landowners expressed concerns about the downstream capacity of the drain on Lot 7, Concession R1NLR (J. Wolfe property). Additional concerns were the connection of the 12-inch tile, in addition to an 8-inch tile that drained the Ward property through a road allowance would worsen the capacity problem. Dobbin explained that as a result of these concerns, he recommended that:

• the existing 200 mm (8 inch) diameter tile on the road allowance be disconnected and plugged at the point it leaves the road allowance and enters the Ward property
• the existing 300 mm (12-inch) diameter tile located on the South ½ Lot 7, R2NLR (Wilson property) from the head of the Saxon Drain to the west boundary of the Ward property, including a catchbasin, be incorporated as a municipal drain
• this tile be connected to the Saxon Drain and be repaired to its original condition
• the existing 450 mm diameter tile between stations (“stn”) 0+478 to 0+525 be replaced with 600 mm (24”) tile
• the junction box/catch basin at stn 0+645 be incorporated into the Saxon Drain in its present condition
• the existing berm downstream of this junction box be incorporated into the Saxon Drain and maintained in its present condition and to the satisfaction of the drainage superintendent.

Mr. Dobbin testified that he had assessed the proposed work in two sections:

1. Incorporating the existing 12-inch tile and catchbasin on the Wilson property into the Saxon Drain; and
2. The improvements to the Saxon Drain on the J. Wolfe property.

He explained that he assessed 25% the cost of engineering the Section 1 work as benefit to the Ward property, and 75% of the cost as outlet to the Ward property. He said he used the assessment schedule in the 2001 engineer’s report on the Saxon Drain to assess the cost of the work recommended in Section 2.

The Issues

1. Should Dobbin’s design of the drainage works be modified?

2. If yes, how?

3. Should Dobbin’s assessments, as upheld by the Court of Revision, be changed?

4. If yes, how?

5. Should Dobbin’s allowances be modified?

6. If yes, how?

7. Are the benefits of the Dobbin design worth the cost?

The Evidence

Wilson/Wolfe Case

Robert Robinson is the drainage contractor who built the improvements to the Saxon Drain recommended in Dobbin’s 2001 report. He testified that construction took place in 2002. He filed with the Tribunal a written summary with two attachments that we marked collectively as an exhibit.³ Robinson testified Ward built the 79.6 metres of 12-inch private tile drain on the Wilson property before he completed the Saxon Drain improvements.

Robinson testified that in 2005 Wilson hired him to tile his property. During that work for Wilson he discovered the Saxon Drain was draining water at a rate of 17 mm in 24 hours, rather than the design rate of 25 mm in 24 hours. It was his opinion there was not enough capacity to drain the Wilson property. He suggested Ward was draining too much land into the drain. Robinson provided us with the following calculations for each landowner of the capacity of the upper part of the Saxon drain⁴:

Landowner Capacity in Litres/Second Ha. Affected L/ha./Sec.

T.& J. Ward (L6 R2N) 50.4 12.0 4.2

Ken Wilson (L7 R2N) 51.5 32.1 1.6

H.&D. Boekhoven (L8 R2N) 0.7 0.4 1.6

Ken Wilson (L8 R2N) 3.2 2.0 1.6

Irish Drive (3x runoff factor) 7.4 4.8 1.6

P.&D. Clarke (L8 R1N) 1.6 1.0 1.6

H.&D. Boekhoven (L8 R1N) 2.9 1.8 1.6

J. Wolfe (L7 R1N) 48.1 30.0 1.6

Total 165.8 84.1

Robinson identified the following concerns of Wilson:

1. There is a variation in the watershed maps between the 2001 and 2006 Dobbin reports. In essence Ward is draining 16 hectares but the assessment is for 12 hectares. That is unfair.

2. It is also unfair for Ward to petition for the drain extension so soon after the 2001 improvements and expect that other landowners share in the cost of further improvements.

3. The landowners did not get the designed drainage capacity in the 2001 improvements so Dobbin should assess the Municipality for a portion of the costs.

In cross-examination Robinson admitted to Ms. M’Garry he knew of a long-standing difficulty with drainage of Ward’s property and there was a lawsuit over drainage. He also admitted that in 2005, although both Dobbin and Ms. M’Garry⁵ had asked him not to, he adapted the 12” private drain on Wilson’s property to slow the water draining from Ward’s property so Wilson’s property could drain at an acceptable rate. Robinson explained he had to get the Wilson tile work completed in a narrow window of opportunity before winter. He also agreed with Dobbin that where a 10” tile is too small and a 12” tile too large, it is correct to use the larger tile size for added capacity.

In response to questions by the Tribunal, Mr. Robinson clarified that:

• The Ward property was 125 acres.

• The drainage work he did in 2005 was on the Wilson property in a private field.

• His capacity calculations were for the Saxon Drain after the 2001 improvements.

• The Saxon Drain was a twin drain south of Irish Road, an older 14” drain and an 18” drain that he installed in 2002. There are catchbasins on the north side of Irish Road.

• He altered the capacity of the 12” tile in 2005 but did not block the tile off.

Robinson pointed out that during the 2002 construction a connection of a 10” tile from the J. Wolfe property about stn. 0+478 was moved from the 14” drain and connected into the new 18” drain. When he asked the engineer about that connection, an employee of Mr. Dobbin, Mr. Zimmer, told him to build the drain exactly according to the 2001 report specifications.

Mr. Ken McCutcheon told the Tribunal he was a technical advisor to Mr. Jim Wolfe and had advised him as to how to improve the capacity of the Saxon Drain to address a problem on Wolfe’s property. He directed us to Tabs 8 and 15 of Exhibit 1 as a summary of his concerns. He said Dobbin’s Report recommendations to install the 24” tile between stn 0+478 and 0+525 addressed many of his concerns.

McCutcheon said he still had a concern about differences in capacity between the Saxon Branch and the existing Saxon Drain. He explained that he had determined the capacities of existing pipes and found the 12” of the Saxon Branch had 50% more capacity than the existing Saxon Drain. He said that Wolfe would like a restriction on the 12” Saxon Branch to match it to the capacity of the Saxon Drain. The restriction McCutcheon suggested is replacing a section of the 12” tile, at the upstream end, with a length of 10” tile.

McCutcheon said Wolfe wanted some assurance that Ward would drain no more than the assessed 12 hectares through the Saxon Drain. He said restricting the flow capacity would provide this assurance.

McCutcheon explained that he had used the OMAFRA Drainage Guide in his calculations and admitted that Robinson’s calculations were more accurate.

In response to questions from the Tribunal, McCutcheon suggested that:

• It did not matter which section of the upper part of the 12” drain was replaced with 10” tile. Alternatively, he suggested changing the slope of the drain.

• He did not expect any more than 50 feet of tile would need replacement but the exact length would require calculation by an engineer familiar with hydraulics.

In Ms. M’Garry’s questions McCutcheon agreed that installing the drain at a 0.2 slope would put it above the Ward outlet tile and that was why he suggested using the 10” tile to control the drain flow. He further told Ms. M’Garry that he calculated the excess capacity of the Saxon Branch at .216 litres a second or 7 percent.

Neither Ken Wilson nor Jim Wolfe testified.

Ward Case

Mr. Tom Ward told the Tribunal he had drainage problems since 1974 when the Saxon Drain changed from an open ditch to a closed tile. He said his drainage improved with the construction recommended in Dobbin’s 2001 report. That good drain outlet changed however when Robinson constricted the Saxon Branch in 2005. Ward testified that when he installed the 12” drain he disconnected and plugged his existing 8” tile drain.

Ward supported the Dobbin Report but asked the Tribunal to order changes to the design as follows:

• raise the catchbasin at stn 0+645 on the newer 21” tile on the Saxon Drain so no surface water can enter through that catchbasin

• require control measurements of the berm as part of the Report

• include a term that the berm remains at its present height

• incorporate the private junction box at stn 0+478 into the Saxon Drain.

Ward filed photographs taken after a heavy rainfall the week before⁶ the hearing. He said they showed the older 16” tile of the Saxon Drain was not being effectively utilised, while the newer 21” tile was at full capacity. He said he wanted to see as much water as possible directed into the older branch of the drain.

Ward said he did not object to Dobbin’s assessment for the proposed drainage works.

In response to questions from the Tribunal Mr. Ward indicated:

• He had lived on his farm for 40 years.

• The 10” tile on the Wolfe property drained from the west.

• He thought the old branch of the drain was around 18 inches higher than the new branch of the drain.

• He was not aware of any tie-ins between the new and old branches of the drain.

• The private junction box he wanted incorporated into the drainage works was offset to the west.

• The berm was about three feet high.

• He saw rain going into the new catchbasin, but not the offset catchbasin/junction box during a heavy rain. He did not check the drain outlets to see if they were running at capacity.

Ward clarified that he did not want a restriction placed in the 12” tile that drained his property.

Kuntze testified that he was a professional engineer and a principal of K. Smart and Associates. He testified he worked preparing reports under the Act since his certification as an engineer in 1979. The Tribunal found him qualified to give expert opinion evidence as a professional engineer with expertise in drainage and drainage reports.

Kuntze said Ward retained him in 2002 on another issue and from that he had conducted a thorough review of the file on the Saxon Drain and had read all the engineer’s reports about the drain. He said he had been on the downstream properties but had not viewed the outlets of the Saxon Drain.

Kuntze said engineers first look at properties in more than one watershed to see that the total acreage assessed to the various drains does not exceed the total acreage of the property. He said once the watershed is so ‘balanced’ only significant change on the property causes a change to the watershed. He said the Ward property drained into the Saxon Drain and the Bateman Drain. He said there was no evidence of an imbalance between the two drains. Kuntze said that even if more acreage drained into the 12” tile, the capacity of the drain would not change and it would not take the extra water, so this would have no impact on the downstream properties.

Kuntze testified the calculations by Robinson and McCutcheon were not helpful because they were all based on an assumed grade and there was no evidence of the grade.

Kuntze’s opinion was that the following changes be part of the Dobbin report:

1. Incorporate the berm on the G. Wolfe property into the drain in its present condition and fix a top elevation of the berm.

2. Incorporate the private junction box at stn 0+478 into the drain.

3. Cross-connect the two catchbasins north of Irish Road to better use the twin drains.

4. Raise the catchbasin at stn 0+645 to direct the surface water into the older drain.

In cross-examination from McCutcheon and Robinson, Kuntze:

• Agreed that to avoid a risk of ponding water on the G. Wolfe property and the J. Wolfe property that rather than raise the catchbasin at stn 0+645 lowering the nearby offset catchbasin.

• Confirmed he had not noticed the cross-connection of the twinned drains at the fence line of the two Wolfe properties.

• Agreed the older main was not taking the surface water as intended.

• Said he would like to see water go to the offset catchbasin first.

• Suggested he did not know the reason used by previous engineers in assessing the Ward property to two different municipal drains; he assumed they were two different watersheds and knew that they were balanced.

In cross-examination from Dobbin, Kuntze:

• Agreed engineers do not have time to scale every drawing they put in their reports and they rely on the assessment schedules for the acreage.

• Suggested the overloading on the catchbasin was because the downstream land is not using both mains of the Saxon Drain. He agreed that putting a cross-connection higher up the drain would not prevent surcharging.

• Confirmed the outlet capacity of the Saxon Drain would not change by installing a larger tile upstream.

• Confirmed the 12” tile at the upstream end was restricted by the capacity of the 18” tile downstream.

• Agreed that with a constriction in the 12” tile on the Wilson property, water pond in the low spot at the Wilson-Ward fence line.

In response to questions from the Tribunal, Kuntze clarified:

• There was a cross-connection between the two catchbasins at the fence line between the two Wolfe properties so water would go in both directions.

• He would prefer a new in-line catchbasin in the 16”, raise the catchbasin in the 21-inch tile branch and put a cross-section in so once the 16” drain reaches capacity, water drains through the 21” main branch.

• Install a standard top on the catchbasin in place of the sloping top.

Kuntze also indicated:

• The 16” tile is underutilized and by taking more water through it should reduce the time that water ponds on the two Wolfe properties.

• If you put a berm in, you will have flooding.

• If the existing 3x4 catchbasin remains as is, he would like to see the invert on a new in-line catchbasin in the 16” drain at least 6 inches lower than that of the 3x4 drain.

The Engineer’s Case

Dobbin told the Tribunal his original task was to incorporate the 12” tile drain on the Wilson property (the Saxon Branch) into the Saxon Drain in response to the 2005 Ward petition. He said he expected the grade on that drain was 0.12% at most, and likely flatter and therefore the 12” tile was enough. He said his work had later expanded because of concerns of the downstream landowners. The expanded work was to improve the downstream capacity by installing a larger tile.

Dobbin said that a drainage coefficient of ¾” in 24 hours was usually plenty for agricultural land, but the landowners using the Saxon Drain had asked for a drainage coefficient of 1” in 24 hours. He said the new design would remove water quicker but there would still be ponding with more than one inch of rainfall. He explained that if there was a ¾” in 24 hour capacity at the lower end of the drain, and a higher capacity upstream, water would pond upstream as it could not drain any faster than ¾” in 24 hours.

Dobbin said he provided a small allowance to the Wilson property for right of way as he was incorporating the 12” tile into the Saxon Drain.

For the assessments, Dobbin referred the Tribunal to Tab 22 of Exhibit 1 to explain how he got his assessments. He reiterated the Saxon Branch was assessed 25% to the Wilson property and 75% to the Ward property. He said there was a special benefit to the Ward property for disconnecting the 8” tile, and to the Wilson property for restoring the 12” tile. He said he assessed the improvements downstream of Irish Road, to station 0+525 as a new report. The owners downstream of stn 0+525 were not assessed. All assessments were included as outlet, as the work was not considered a benefit to any particular property, but as an improved outlet to the property. He did not assess any separate cost for incorporating the downstream catchbasin, as it only required adding a few lines to the Report.

In cross-examination by McCutcheon and Robinson, Mr. Dobbin testified:

• The 2001 improvements increased the capacity of the Saxon Drain.

• The work proposed in the Report will also improve the capacity of the drain.

• Mr. Zimmer, Dobbin’s employee, was on-site during the work done under the 2001 engineer’s report.

• It was Dobbin’s responsibility to design the drain to the intended 1” in 24 hours drainage coefficient.

• No one raised the issue of the 10” tile on the J. Wolfe property when he was digging test holes in 2001.

In cross-examination by Ms. M’Garry, Dobbin indicated:

• He was aware there was a 10” tile on the J. Wolfe property but did not know where it connected.

• He agreed the design intended that the two drains work together.

• The newer tile would take most of the water from the watershed because it is deeper and once it fills the water will go through the cross-connect into the older 16-inch tile.

• He assumed the cross-connection was constructed according to the 2001 engineer’s report.

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

• The 10” tile connected in 2002 at station 0+478 came from the west on the J. Wolfe property.

• The construction under the 2001 report was east of the old drain. He assumed the contractor went to look for the 10” tile on the J. Wolfe property because there was a request to connect it to the new drain.

• The 10” tile could have remained connected to the 16” tile.

• The 1974 drain design standard was 3/8 inch in 24 hours; the current drain design standard is 5/8 inch in 24 hours.

• If he were to charge a cut-off assessment to the G. Wolfe property, he should perhaps also provide an allowance for the berm.

• The berm is on the G. Wolfe property.

• The catchbasin at the fence line of the two Wolfe properties is stn 0+645 on the newer drain and 0+651 on the older drain; the older drain is longer than the newer drain.

• The Report provides assessment for maintenance according to the maintenance schedule in the 2001 report.

Summations

Mr. McCutcheon acknowledged that the percentages of over and under capacity may be minor but stated the Saxon Branch drain was slightly above the capacity of the entire drain. He said J. Wolfe supports raising the 3x4 catchbasin on the newer tile of the Saxon Drain, to eliminate erosion, but not so it is higher than the berm. He said J. Wolfe supports adjusting the catchbasin on the older tile of the Saxon Drain to improve the flow of water into the main drain.

He argued the 21” tile on the newer branch of the Saxon Drain in 2001 could have been extended to the 10” tile for a few hundred dollars but now would cost a few thousand dollars. He said Wilson and Wolfe should be assessed for that improvement based on few hundred dollars it would have cost in 2001.

Mr. Robinson submitted that when Mr. Wilson bought his property he understood from the recent report filed with the Municipality that he would have an outlet draining at one inch in 24 hours, but that when he went to hook into it, it was not there. He said it was not Mr. Wilson who was at fault.

Mr. Robinson explained Mr. G. Wolfe paid for the berm in question and it was not part of the Saxon Drain.

Ms. M’Garry reiterated that Mr. Ward supported the Report in a general way, subject to the concern there be no restrictions placed on the Ward outlet into the drain. She also argued to incorporate the junction box at stn 0+478 into the drain. In addition she asked to incorporate the berm into the Saxon Drain and the Dobbin report fix a top elevation. She said there was consensus the design change at stn 0+651 so surface water flows into a new catchbasin, no less than six inches lower than the existing 3X4 catchbasin at stn 0+645.

For assessments, Ms. M’Garry submitted all landowners in the watershed, including Mr. G. Wolfe, would benefit from the improvements to the drain so pro-rating costs across all lands and roads in the watershed is proper.

Ms. M’Garry suggested that all parties be responsible for their own costs for the hearing.

Mr. Dobbin told the Tribunal he had checked the capacity of the 12” drain that Mr. Ward sought to incorporate as a branch of the Saxon Drain and was satisfied it was not too small or large. He said the design of the catchbasins between stn 0+651 and 0+645 allows excess water to go into either the older or newer twinned tiles through a cross-connection. He agreed it was proper to incorporate the junction box at stn 0+478 into the drain and pointed out that it was in the specifications, but not in his formal recommendations in the Report.

Mr. Dobbin said he had not considered or engineered the new proposals raised at the hearing about changing elevations of catchbasins and cross-connections. He said the current design allowed for the use of the older tile when the newer tile was full. He submitted that the Report encompassed all the work sought by the landowners.

For assessments, Mr. Dobbin submitted that the drain was properly sized in 2001 as he was working with the information he had at the time, and pointed out that no concern was raised until 2005. He argued the assessments in the Report were fair.

The Findings

The Tribunal heard evidence about the concerns of Wilson and Wolfe that they did not get what they paid for from the Saxon Drain improvements arising from the 2001 Dobbin report. This Tribunal can only deal with the 2006 Dobbin report which is under appeal. The evidence of Wilson and Wolfe does not convince us there was any mistake arising from the 2001 Dobbin report that we have any jurisdiction to deal with.

We find the evidence about Wilson’s construction in 2005 that resulted in Robinson placing a restriction in the 12” tile to be of no importance to the issues in these appeals.

We find the drainage calculation evidence of Mr. Robinson and Mr. McCutcheon of limited use. That calculation evidence relied on assumptions not supported by any facts in evidence before the Tribunal.

The evidence about the 2001 improvements and disconnecting the 10” tile from the old drain and reconnecting it to the new 18” drain is of no real relevance to these appeals.

So too the suggestion that Dobbin was somehow at fault for not finding the 10” tile or for not connecting it to the 24” drain is of no real relevance to these appeals.

Mr. Wilson and Mr. Wolfe did not introduce any evidence about any alternative assessments. They did not challenge Mr. Dobbin in any way about the assessments contained in his report. Therefore, the only evidence before the Tribunal about assessments is the Dobbin evidence. We therefore confirm the assessments in the 2006 Dobbin report.

Although Mr. Wolfe’s Notice of Appeal raised a cost-benefit issue he did not lead any evidence on that issue and therefore the Tribunal cannot make any findings about that issue.

We find incorporating the Saxon Branch as a municipal drain as recommended in the 2006 Dobbin report requires that he calculate the proper allowances to landowners for the value to the drainage works of the parts incorporated. The incorporated drainage works consist of 79.6 metres of 12” tile and a catchbasin. Section 31 of the Act mandates the allowances. With that revision we affirm the Dobbin recommendations about the Saxon Branch drain.

Subject to the following revisions, we uphold the design recommendations in the 2006 Dobbin report.

1. The evidence of Mr. Ward, Mr. Kuntze and Mr. Dobbin about the private junction box at stn 0+478 convinces the Tribunal that its incorporation into the Saxon Drain is proper. There was no challenge to that evidence from Mr. Robinson or Mr. McCutcheon. It works as part of the municipal drain and should therefore be identified, allowed for and maintained as part of the municipal drain. The corollary of its incorporation is that Mr. Dobbin calculate the proper section 31 allowance to the landowner.

2. The evidence of Mr. Ward and Mr. Kuntze about the berm convinces the Tribunal that it works as a part of the Saxon Drain and therefore its incorporation into the Saxon drain is proper. There was no challenge to that evidence from Mr. Robinson or Mr. McCutcheon. Again the corollary of its incorporation is that Mr. Dobbin calculate the proper section 31 allowance to the landowner.

3. The evidence of Mr. Ward and Mr. Kuntze about the elevation of the berm also satisfies the Tribunal that Dobbin change his Report to include a control elevation for that berm. The 21” drainage tile built in 2001 is a fixed reference point. We therefore direct the berm elevation be controlled by measuring from the invert of the 21” tile at stn 0+645 to the top of the berm as it is now. In future that berm will be no higher than that control measurement. We also direct the berm have a minimum two metre wide overflow area with the lowest elevation as a control factor from the 21” invert.

4. The evidence of Mr. Ward, Mr. Kuntze and Mr. Dobbin about the catchbasins nearby the berm convinces the Tribunal about installation of a new in-line catchbasin. We find that in its present form both parts of the twin drain are not fully used. The catchbasin will have a minimum size of 2’ x 2’ and be installed at stn 0+651. The top of the catchbasin will be six inches lower than the top of the catchbasin at stn 0+645. The catchbasins will be cross-connected. The evidence satisfies us that this new catchbasin will direct the flow of surface water firstly into the old part of the Saxon drain and better use the capacity of that old drain.

Because of the findings above we refer the Dobbin report to Mr. Dobbin for revision. In making the revisions we direct Mr. Dobbin to recalculate all allowances under section 29, 30 and 31 of the Act. We also direct that Mr. Dobbin make any added assessments called for by the revisions we have directed.

Mr. Robinson asserted the berm was on G. Wolfe’s land. Therefore we also direct that a copy of this decision go to G. Wolfe, as well as all parties and assessed landowners.

Because of these findings we now return to the issues set out earlier in these reasons.

1. Should Dobbin’s design of the drainage works be modified? Our answer is yes.
2. If yes, how? The design is to be modified as noted in our findings and as set out specifically in our order below.
3. Should Dobbin’s assessments, as upheld by the Court of Revision, be changed? Our answer is no.
4. If yes, how? We need not answer this because of our answer to 3.
5. Should Dobbin’s allowances be modified? Our answer is yes.
6. If so, how? The allowances must be calculated according to the Act and our findings above and order below will guide.
7. Are the benefits of the Dobbin design worth the cost? Our answer is yes.

ORDER OF THE TRIBUNAL

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

1. The Municipality refer the 2006 Dobbin report to the engineer to make the following design revisions:

a. The work to incorporate the Saxon Branch drain into the Saxon Drain be done by a contractor hired by the Municipality and the costs of such be assessed as a special benefit to the affected properties.

b. The private junction box at stn 0+478 be incorporated into the Saxon Drain.

c. The existing berm be incorporated into the Saxon Drain.

i. The report include a maximum control elevation for the berm measured from the invert of the 21” tile at stn 0+645 to the top of the berm is it is now.

ii. The report include that the berm have a minimum two metre wide overflow area with the lowest elevation as a control factor from the 21” invert.

d. An in-line catchbasin be incorporated in the older part of the Saxon Drain at stn 0+651 with a standard top installed at least 6” lower than the top of the catchbasin at stn 0+645.

e. The existing catchbasin at stn 0+645 and the new in-line catchbasin at stn 0+651 be cross-connected.

2. The Municipality refer the 2006 Dobbin report to the engineer to complete all assessments and allowances arising from this decision as provided for in the Act.

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

Dated at Guelph, Ontario this 20^th day of December, 2006.

(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).

Footnotes

1. 1Exhibit 3
2. 2Exhibit 1, Tab 21
3. i48(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,
4. ii51(1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act. R.S.O. 1990, c. D.17, s. 51 (1); 2006, c. 19, Sched. A, s. 6 (4).
5. iii54(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).
6. iv54.(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).
7. 3Exhibit 4A, 4B, 4C, - Robinson Brief
8. 4Exhibit 4A, page 3
9. 5Exhibit 5 - McGarry letter to Robinson October 5, 2005
10. 6Exhibit 8A-D