Elliott Drain (Re), 2007 ONAFRAAT 21

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@ontario.ca

Guelph (Ontario) N1G 4Y2

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

Email: appeals.tribunal@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Elliott Drain

Norfolk County

Elliott Drain (RE) 2007 ONAFRAAT 21

STATUTE:

Drainage Act

HEARING:

June 25, 2007

DATE OF DECISION:

July 17, 2007

2007-21

NEUTRAL CITATION:

2007 ONAFRAAT 21

ELLIOTT DRAIN 2007

NORFOLK COUNTY

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 Keith Emmett of Waterford, Ontario, under Section 54 of the Drainage Act from a decision of the Court of Revision and under Subsections 48(1)(a), 48(1)(b) and 48(1)(c) of the Drainage Act from the engineer’s report on the Elliott Drain 2007 in Norfolk County.

Before:

• Mr. Rod Stork, Chair;
• Mr. Jack Young, Vice-Chair;
• Mr. Kirk Walstedt, Vice-Chair

Appearances:

• Mr. John Kuntze, K Smart Associates, engineer who prepared the Report,
• Mr. Keith Emmett, appellant,
• Ms. Barbara Balog, assessed landowner in the Elliott Drain watershed,
• Ms. Lucy Valletta, Secretary/Treasurer of 517749 Ontario Ltd on behalf of Mr. Mario Valletta, assessed landowner in the Elliott Drain watershed.

DECISION OF THE TRIBUNAL

This appeal was heard in Simcoe, Ontario on June 25, 2007. Mr. Keith Emmett appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsections 48(1)(a), 48(1)(b) and 48(1)(c) of the Drainage Act (the Act) from the engineer’s report dated January 31, 2007 by K. Smart Associates Ltd. (the Report) on the Elliott Drain 2007 in Norfolk County and signed by John Kuntze, P.Eng (the Engineer)

Ms Jill Ostrowercha., Drainage Clerk of Norfolk County, 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 had been served with notice of this hearing.

Statutory Context

Section 39 of the Act states:

Time for filing report

39. (1) The engineer shall file the report with the clerk of the initiating municipality as soon as it is completed or in any event within six months after the appointment of the engineer or within such further time as may be extended before or after the expiry of such six-month period by the council of the municipality by resolution. R.S.O. 1990, c. D.17, s. 39 (1).

Engineer may forfeit compensation

(2) Where, after thirty days notice by council, the engineer neglects to make a report within the time limited by or extended under this section, the engineer shall forfeit all claims for compensation for the work done upon the drainage works, and the council of the local municipality may appoint another engineer. R.S.O. 1990, c. D.17, s. 39 (2).

By-law not invalid by reason report not filed

(3) A by-law passed by the council of any local municipality for the construction of a drainage works under this Act shall not be quashed by reason only that the report of the engineer was not filed within the time limited by or extended under this section. R.S.O. 1990, c. D.17, s. 39 (3).

Section 48 of the Act states:

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,

(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;

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

(c) the compensation or allowances provided by the engineer are inadequate or excessive;

(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,

may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1); 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. 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).

The Background

The objective of the Report was to provide improved drainage for lands and roads in the watershed of the Elliott Drain and to extend the Elliott Drain downstream to Boston Creek on the north side of Norfolk County Road 19 East.

On September, 25, 2001, Norfolk County Council appointed K. Smart Associates to prepare a report under Section 78 of the Act to address various issues relating to the Elliott Drain from Lot 15, Concession 4 to Lot 14, Concession 5 (Townsend) including closing in a portion of the Elliott Drain on the north side of Concession 5 Townsend on the westerly part of Lot 15, Concession 4. At the on-site meetings on January 29, 2002 the owners requested various improvements within the Elliott Drain watershed. It was determined that the new improvements would require petitions under Section 4 of the Act for the new branch drains required to address the request for improvements.

On October 21, 2002 a petition (Petition 1) was filed with the County signed by Murray Bradshaw, Maurice Pohoresky and the County Roads Manager Chris Baird for Cockshutt Road in the south part of Concession 5. The petition requested an improved outlet for lands and roads in Lots 13 and 14, Concession 5. This petition pertains to Branch ‘D’.

On October 29, 2002 a further petition (Petition 2) was filed with the County signed by Morley Bradshaw, Scott Parker and the County Roads Manager Chris Baird for Norfolk County Road 19 East in Lot 14 and 15, Concession 4. This petition requested improvements to the ditch along the south side of County Road 19 in Lots 14 and 15, Concession 4.

K. Smart Associates Ltd was appointed by Norfolk Council on December 10, 2002 to include in the Report - under the previous appointment - the two new petitions that had been received.

The Issues

The issues before the Tribunal were:

1. Are the assessments against the Emmett property for Branch ‘D’ and the South Branch fair and equitable?

2. Did the late filing of the Report with respect to Section 39 of the Act contribute to increased costs of the project and was the late filing warranted?

3. Were the benefits outlined in the Report commensurate with the cost?

4. Did the suggested options associated with Branch ‘D” present viable solutions as put forward by the appellant?

5. Were the allowances provided excessive?

The Evidence

John Kuntze

Mr. Kuntze used a large version of Drawing # 1, the Watershed Plan of the Elliott Drain 2007 (Exhibit #3) as part of his presentation to the Panel. The appellant’s property was highlighted in yellow. Mr. Kuntze also identified the properties of Ms. Balog and of 517749 Ontario Ltd on the map.

He provided an overview of the history of the drain. Drainage within the watershed began in the early 1900s. The Elliott Drain was constructed under the provisions of the Drainage Act in a report by John Dodd dated March 25, 1964. Further work on the drain was undertaken following additional reports by Dodd in 1973 and 1981. J. Bryon Wiebe prepared reports on the drain in 1992 and in 1996.

K. Smart Associates were initially appointed by Norfolk County under Section 78 of the Act. On January 29, 2002 an on-site meeting was held. Landowners in the watershed requested new drainage which required petitions. Accordingly, two new petitions were filed in the fall of 2002 under Section 4 of the Act.

The report addressing the two petitions contained the following recommendations (from J. Kuntze speaking notes, June 25, 2007):

• “Outlet of the Main Drain is to be extended as a ditch north to Boston Creek including a new culvert on Norfolk County Road 19;
• New branch drains along Norfolk County Road 19;
• Main Drain ditch cleaned out to Concession 5 Townsend;
• Branch B and C are 2 existing tile incorporated as new branch drains;
• Overflow Branch ditch on north side of Concession 5 Townsend replaced with a 600 mm pipe drain, road ditch cleaned out to the west as the Concession 5 Branch diverts flow from Main Drain catch basin on Lot 14-15 lot line;
• 1996 Overflow Branch south of road remains;
• Main Drain across Lot 15 is to be replaced with a new tile drain designed for a 25 mm Drainage Coefficient, new pipe drain is 675 mm diameter with outlet on downstream of north side of road;
• To address the area requiring drainage in the south part of the watershed a new Branch ’D’ is proposed. Owners Pohoresky and Bradshaw had requested to have private drains they had constructed incorporated as the new Branch Drain. Existing drains (200 mm plastic tubing) did not have adequate capacity;
• New Branch ‘D’ is 350 mm (14”) to 200 mm (8”) diameter concrete tile (15 mm Drainage Coefficient) from Main Drain to east side of Cockshutt Road;
• South Branch is a drain constructed by Bradshaw which is to be incorporated. Drain was constructed to provide an outlet for surface water flooding in the south part of farm. South Branch consists of a ditch and 400 mm corrugated plastic tubing in deep cut area”.

The total area of the Elliott Drain watershed is 556 hectares (1373 acres). The total drain work proposed in the Report totaled 6,311 metres (3,549 open; 2762 closed). The total estimated cost of the works was: $283,000, which included: Allowances: $30,000; Construction: $183,900; Engineering: $63,000; and, Administration: $6,100.

Mr. Kuntze also referenced additional material in the Report (Exhibit #2), including details on assessment. He indicated that the process used to determine assessments is a standard process for all his drains. All work involved is taken into account and broken down into discrete intervals. The appellant’s property (Roll# 030-099) was assessed outlet liability based on 3.6 ha of the watershed area as follows: Main Drain: $600; Branch ‘D’ $1702; Concession 5 Branch; $80; and, South Branch: $246. Total assessment on the appellant’s property was $2,628. Taking into account the fact that the appellant’s property was eligible for the 1/3 provincial government grant, the net assessment totaled $1,752.

Keith Emmett

Mr. Emmett confirmed that he and his wife, Irene Gornicki, were the property owners of Roll # 030-099 as identified on Exhibit 3. He stated that they are currently assessed in the following sections: 1) Main Drain; 2) Overflow Branch; 3) South Branch; 4) Concession 5 Branch; and, 5) Branch ‘D’. He indicated that their property is unique in that all surface and subsurface water flows north and crosses Cockshutt Road through a culvert which is directly connected to the new Branch ‘D’ tile. It then discharges to a new catchbasin on the Bradshaw property, as illustrated in the Report.

He contended that since 100 per cent of their water flows through Branch ‘D’ and that none of their water flows through the South Branch that they should not be assessed any outlet liability cost in the South Branch. He cited Section 23(3) of the Act in support of this contention.

He also stated that the delay between the start and the submission of the Report to Norfolk County added to the overall costs of the works and resulted in higher assessments being assessed to their property. He noted that Section 39 of the Act requires the engineer to file their report within 6 months.

With respect to Subsection 48(1)(a), he felt that he was not benefiting from the South Branch and therefore should not be assessed for it.

Mr. Emmett indicated that he had a number of suggestions (Exhibit #6) to reduce the cost of Branch ‘D’ and that there would accordingly be savings to landowners in the Branch ‘D’ watershed. “Proposal 1” proposed that a ditch run from the pond on the Pohoresky property (Roll # 040-288) to connect with Branch ‘D’ at the north-east corner of the property. “Proposal 2” would also involve catching the overflow from the Pohoresky pond using a 500 mm concrete tile. “Proposal 3” would create an open ditch that the Pohoresky pond could flow through and into the South Branch. In response to questions from Mr. Kuntze regarding his 3 proposals, Mr. Emmett stated that he had not spoken to Mr. Pohoresky or the landowners (517749 Ontario Ltd.) that would be affected by the ditch or the tile. In response to questions from the Tribunal, Mr. Emmett indicated that he did not have estimates of cost savings under any of the three proposals.

Barbara Balog

Ms. Balog indicated that she was opposed to the actions proposed in the Report that would result in increased assessments against her property (Roll # 040-307). She indicated that the property had previously been farmed as a hobby farm. In response to questions from Mr. Kuntze, Ms. Balog acknowledged that this was the first time the two of them had met and that she had received previous notices of the hearing. In response to a question from Mr. Emmett, Ms Balog confirmed that there is currently an open ditch alongside her property.

Lucy Valletta (for 517749 Ontario Ltd.)

Ms. Valletta indicated that their property was a rectangle-shaped lot totaling about 50 acres on Concession 6. She and her husband had held the property as a woodlot – undeveloped – since the early 1980’s. She indicated that they would receive no benefits from the works proposed in the Report and that they did not want a ditch excavated through the back of their property. She objected to the related assessment of $5365 as costing too much, given there would be no benefits.

In response to questioning from Mr. Kuntze, Ms. Valletta confirmed that she did not want engineering staff on the land. She also indicated that she had not attended previous meetings pertaining to the Report.

John Kuntze - response

With respect to Mr. Emmett’s contention that Branch ‘D’ could not be constructed pursuant to Section 78 of the Act, Mr. Kuntze noted that there had been a petition submitted to Norfolk County under Section 4 of the Act.

With respect to length of time to file the report, he indicated that he did not know what the inflationary costs would be and that a tender would have to be put to estimate such a cost. He noted that the complexity of the project required additional time; a lot of time was spent talking to the landowners to address their concerns. He also pointed out that none of the other landowners had officially appealed.

He felt that suggestions to run water north from the Emmett property were without merit.

He stated that his only agreement was whether the Emmett assessment should be reconsidered. Otherwise, his conclusion/recommendation was that the appeal be dismissed.

Concerning comments from Ms. Balog, Mr. Kuntze stated he had received nothing regarding the concerns of Mr. and Ms. Balog prior to the hearing. Mr. Kuntze felt that an open drain across the property, as supported by Ms. Balog, was not an option due to concerns about the grade. He stated that assessments are based on the value to the property, not to the current landowner.

He stated that these same comments applied to the numbered company (517749 Ontario Ltd). He noted that the Court of Revision had assessed 31 acres in the watershed, but, at a reduced rate because the land is a woodlot. When appealed to the Court of Revision, the court ruled that the assessments were equitable and reasonable and the appeal was dismissed.

Summations

Keith Emmett

Mr. Emmett asked that 90 per cent of his assessment be allocated to Branch ‘D’ and that the balance be allocated to South Branch for a total assessment of $1514.30. Further, due to the delay in the tabling of the Report, he asked that the municipality reduce his assessment by 8 per cent.

John Kuntze

With respect to Mr. Emmett’s contention that Branch ‘D’ could not be constructed pursuant to Section 78 of the Act, Mr. Kuntze noted that there had been a petition submitted to Norfolk County under Section 4 of the Act.

With respect to the length of time to file the Report, he pointed out that none of the other landowners had officially appealed and, in his view, were satisfied with the project.

He stated that suggestions to run water north from the Emmett property were without merit.

He stated that his only agreement was whether the Emmett assessment should be reconsidered. Otherwise, his conclusion/recommendation was that the appeal be dismissed and that there was no merit to make any change to the Report under Section 48 of the Act.

With respect to Section 54, he stated that his evidence noted that there might be some confusion regarding Branch ‘D’ and the South Branch; one for surface water and the other for subsurface water. He noted that all landowners in the Branch ‘D’ watershed could be connected to Branch ‘D’. He felt that if there had been concerns regarding an overlap of the two drains, then there would have been complaints. He stated that other landowners recognized that there would be overflows from time to time. Any adjustment to one landowner’s assessment for the overflow would require making adjustment to the assessment of all other landowners in the watershed.

He indicated that he would have to leave the concerns regarding Section 39 in the hands of the panel. Based on cost changes over time, there might be increases or decreases in the cost of construction. Landowners in the area would accordingly be assessed more or less. He noted that the appellant is paying for about 1 per cent of the job.

To conclude, he asked that the panel dismiss the appeal and allow the projects to go forward.

Keith Emmett - response

Mr. Emmett reiterated that any affected landowner could appeal under Section 54, if they felt the assessment had not been done correctly. He disagreed with the suggestion that he was wasting taxpayer’s money by appealing. He noted the amount of time spent to prepare the Report. He felt that both parties had valid reasons for being at the hearing.

The Findings

There was considerable discussion with respect to the purpose of the Overflow Branch (South Branch) and how it should be assessed. The evidence showed that this drain will not be used to its full capacity under normal rainfall events, however, it is essential to provide the increased capacity required for high run-off events. The evidence indicated also that all of the landowners in the Branch ‘D” watershed would contribute water to this overflow channel.

The appellant made reference to the late delivery of the report and felt that it was not in accordance with the requirements of Section 39 of the Act. From the evidence presented there were a number of parties who may have contributed to the delay in the preparation of this report including the municipality, the engineer and some of the landowners. In addition, the process was somewhat complex in that the projects started off in accordance with Section 78 as a repair and improvement to an existing drain. At the site meetings, it was determined that new work was required to satisfy the wishes of the landowners. Therefore two new petitions were required pursuant to Section 4 of the Act which further delayed the project. The Tribunal reviewed the evidence with respect to this matter and concluded that based on the above reasons there is not sufficient evidence to warrant a ruling under Section 39 of the Act.

The appellant questioned the validity of the project based on the cost of the project being beneficial to the landowners. No concrete evidence or statistics were presented to indicate the project should not proceed.

The appellant presented three alternate proposals to provide additional drainage within the Branch ‘D’ watershed. Upon questioning the appellant, it became apparent that the proposals did not deal with the appellant’s situation in any manner.

Reference was made by a landowner with respect to allowances, however there were no specific requests to adjust the allowances and the matter was therefore not considered further.

ORDER OF THE TRIBUNAL

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

1. That the appeal of Keith Emmett under Sections 48(1)(a), 48(1)(b) and 48(1)(c) and Section 54 of the Drainage Act is denied.

2. That the non-administrative costs of the County in respect to this appeal shall form part of the cost of the drainage works, pursuant to Section 73 of the Act, and it is ordered that there be no other order as to costs and all parties shall be responsible for their own costs.