Ward Flannery et al. v. Township of Wilmot, 2007 ONAFRAAT 24

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, chemin Stone Ouest

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

Woodridge Drain

Township of Wilmot

Woodridge Drain (RE) 2007 ONAFRAAT 24

Drainage Act

September 12, 2007

DATE OF DECISION:

October 16, 2007

2007-24

2007 ONAFRAAT 24

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 Ward Flannery and Pauline Forsyth, Randy and Eva Adams, Larry and Laura Power, Shevaun Day and Steve Voisin, Charalamobos (Bambi) and Athina Paleshi, and Wilhelm and Milica Metzger, in Mannheim, Ontario, under Sections 48(1)(b) and 48(1)(c) of the Drainage Act from the engineer’s report on the Woodridge Drain in the Township of Wilmot.

Before:

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

Appearances:

Timothy Flannery, counsel representing all of the appellants
Ward Flannery, appellant
Wilhelm Metzger, appellant
Steve Voisin, representing Shevaun Day, an appellant
John Kuntze, engineer representing the municipality
Carl Davey, assessed landowner, witness for the municipality

DECISION OF THE TRIBUNAL

This appeal was heard in Baden, Ontario on Wednesday, September 12, 2007. Ward Flannery and Pauline Forsyth, Randy and Eva Adams, Larry and Laura Power, Shevaun Day and Steve Voisin, Charalambos (Bambi) and Athina Paleshi, and Wilhelm and Milica Metzger of Mannheim, Ontario appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under subsections 48(1)(b) and 48(1)(c) of the Drainage Act (the Act) from the engineer’s report on the Woodridge Drain in the Township of Wilmot (the Report) prepared by K. Smart Associates Limited and signed by John Kuntze, P.Eng. (the Engineer).

Ms. Barbara McLeod, Clerk of the Corporation of the Township of Wilmot (the Municipality), performed the duties of the Clerk of the Tribunal.

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

Statutory Context

Section 48(1) of the Act states:

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

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

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

(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(1) 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).

The Background

The Report was prepared pursuant to a petition under Section 4 of the Drainage Act. Wilmot Township Council, by resolution dated September 1, 2004, appointed K. Smart Associates Ltd to prepare a report. The petition was signed by Carl and Margaret Davey and Volker and Margaret Lamprecht for improved drainage for properties with municipal addresses 131 and 139 Woodridge Drive in the hamlet of Mannheim, in the Township of Wilmot.

The purpose of the Report was to provide an improved drainage outlet for the two residential lots mentioned above. The Report proposed to construct a swale and buffer strip on the farm land (Weiss Property – Roll #-056) across the rear of the residential properties #131 to #201 on the south side of Woodridge Drive. The Report proposed that a pipe drain and swale be constructed along the property line between #131 (Davey) and #123 (Burnett) with outlet into the storm sewer on the south side of Woodridge Drive.

A summary of the proposed work included:

One (1) 600 x 600 mm catchbasin with 2 m of 300 mm diameter concrete pipe for connection to the storm sewer
61 m of 375 mm solid plastic pipe
One (1) 900 x 1200 mm catchbasin
49 m of residential swale
330 m of buffer strip and farm swale
340 m of wire fence

The total length of the drain is 434 m (61 m closed drain with swale, 373 m open swale).

The total estimated cost of the work is $45,500.

The total drainage area affected is 2 ha (5 acres).

There was no record of any previous drains constructed under the Act in the area of Woodridge Drive. The storm drain along Woodridge Drive was constructed as part of the development of the lots along Woodridge Drive.

An on-site meeting was held on January 12, 2005. All landowners along the south side of Woodridge Drive (#113 - #201) and the owner of the farm land to the south of these lots, along with Wilmot Township staff and the Conservation Authority (CA), were notified for this on-site meeting.

As a result of the on-site meeting discussion and the site examination the following was determined:

“The lots that front on the south side of Woodridge Drive from #131 (Davey) to #201 back onto cultivated farm land. There is approximately 2 hectares (5 acres) of cultivated land that drains north towards these residential lots.
The development plans for the subdivision included this external agricultural watershed in the design of the storm drain on Woodridge Drive.
The lot grading plan for the lots on the south side of Woodridge Drive indicated that each lot was to have a swale along the property line from the rear lot line to Woodridge Drive. There was, however, no grading recommended on the agricultural land to direct runoff to the sideyard swales.
The lot grading plan indicated that a steep bank would be created across the backs of the lots on the south side of Woodridge Drive increasing from zero cut at the Davey lot to a 3 m cut on the easterly lot #201.
Based on the survey completed along the rear of the lots from #131 to #201 there is approximately 12 m (40’) of uniform fall from the east part of the rear of lot #201 to the west part of the rear of lot #131.
Currently all runoff from the 2 hectares of cultivated land flows westerly on the cultivated land close to the rear of the residential lots to the southwest corner of lot #131 (Davey). As the runoff collects in this corner it overflows north across lot #131 Davey and lot #139 (Lamprecht) to Woodridge Drive.
Based on the survey completed along the lot #131 and lot #123 (Burnett) property line there is approximately 2.5 m (8’) of fall from the rear lot line to Woodridge Drive.
Little or no flow appeared to be entering any of the sideyard swales to the east of lot #139. A substantial amount of erosion was noted on the cultivated land along the rear of the lots. In order to control the amount of sediment washing into lots #131 and #139, a straw bale berm was constructed across the rear of these lots. As a result overflow water was also flowing westerly along the property line between #113 Woodridge Drive and #5 Meadow Park Place”.

The original subdivision lot grading plan was not working due primarily to the significant fall to the west along the rear of the residential lots which is a much easier path for the runoff from the cultivated land to follow. The maturing of the landscaping and the construction of berms along the rear of the residential lots also prevented runoff from the south entering into the side yard swales.

As a result of the above meeting and on-site examination, the area requiring drainage was determined to be the lots at #131 (Davey) and #139 (Lamprecht) Woodridge Drive. The petition signed by Carl and Margaret Davey and Volker and Margaret Lamprecht was valid under Section 4(1)(a) of the Act as the petition represented all of the lands within the area requiring drainage.

A second on-site meeting was conducted on September 6, 2005. All affected landowners, along with the Township of Wilmot and the CA, were notified for this on-site meeting. Preliminary recommendations along with cost estimates were presented at the meeting.

The Issues

The issues before the Tribunal were:

Should the design of the drainage project be modified?
Are the assessments as amended by the Court of Revision fair and equitable?

The Evidence

John Kuntze (the engineer)

Mr. Kuntze presented an overview of the Report which provided for drainage along the rear of ten residential lots on the south side of Woodridge Drive in Mannheim from Trussler Road to the west. The petition originated with two of the lots at the west end of these lots which were experiencing flooding problems. Mr. Kuntze also touched on the points summarized in the “Background” section above.

Timothy Flannery (lawyer for the appellants)

Mr. T. Flannery called the following appellants to testify.

Ward Flannery (195 Woodridge Drive)

Mr. W. Flannery testified as follows:

He has been a resident of 195 Woodridge Dr, the second lot from Trussler Road, since he built his house in 1998.
He had been advised by the real estate agent and the builder that swales were to be excavated between his property and the two adjacent properties.
He did not have a problem with drainage or water in the basement. He did note that there has been some water between the homes in winter and that some does trickle across his driveway.

Mr. Flannery believed none of the components proposed in the Report would upgrade his property.

In cross-examination by Mr. Kuntze, Mr. W. Flannery testified:

He was aware when he bought the property that water would flow from the adjacent farm field across his property. However, he had never seen water flowing from the farmer’s field down the slope at the south end of his property.

Wilhelm Metzger (155 Woodridge Dr)

Mr. Metzger testified as follows:

He bought the property in 1997.
He had never been told that there would be a problem or issue with drainage on the property.
Five or six years ago, he experienced some water in the basement of his house which originated from the farmer’s field adjacent to his property.

In cross-examination by Mr. Kuntze, Mr. Metzger testified:

He was advised that “everything was OK” with respect to water flowing from the farmland onto his property.
His property had been flooded once after the house had been built.

Steve Voisin (179 Woodridge Dr)

Mr. Voisin testified as follows:

His wife, S. Day, owns the property and he has lived there for 1 year.
There was no mention to him of any drainage issues when the property was purchased.
He had not noticed any drainage problems on the property and noted that there were swales between his property and his neighbours.

Mr. Voisin believed that homeowners would like to have access to runoff rainwater to water their lawns in the summer, down to about lot 171. From that point west, the water would flow to the west. He believed that there was no benefit to those property owners for having a swale.

In cross-examination by Mr. Kuntze, Mr. Voisin testified:

Most of the water from Trussler Road flowed west to the corner of the farmer’s field. He had not measured the flow.
The berm at the top of his property might stop water from entering his property; the top of the hill is probably 1.5 to 2 feet of gravel. He had not personally observed any water on the surface, but believed it could come underground.

In response to questions from the Tribunal panel, Mr. Voisin testified:

There was a berm at the south end of his property that was about 6 inches high.

Mr. Voisin stated that, in his opinion, a swale is not required past lot 171. He also stated that if the swale were not built, water would flow north into the properties if the berm was constructed in a north/south direction.

John Kuntze

Mr. Kuntze called Mr. Carl Davey to testify.

Carl Davey (131 Woodridge Dr.)

Mr. Davey testified as follows:

He had lived at 131 Woodridge Dr. since 1991. When he moved in, the land to the east of his property was vacant.
That in approximately 2000-2001, water became an issue for the lot immediately to the east of him (139 Woodridge). Water would flow between his property and that of his neighbour’s.
He was aware of flooding in lots 163, 161, 147 and 155. and that water was flowing towards his property.
He had heard from Mr. W. Flannery that when Mr. Flannery had originally moved in, there had been some problems which were apparently related to a large pile of soil.

Mr. Davey submitted as evidence a DVD of approximately 3 minutes long, recorded in 2004 by Mr. V. Lamprecht (139 Woodridge). The video shows heavy rain and flooding across the Davey and Lamprecht properties into Woodridge Drive. He also submitted as evidence a package of colour photographs taken by either Mr. Davey’s wife, or by Mr. and Mrs. Lamprecht showing the same flooding as on the DVD.

Mr. Davey related what he and his neighbours experienced in 2001 following flooding incidents. Mr. Davey and Mr. Lamprecht called a meeting with the neighbours, the Township, the developers and the farmer, to discuss what was occurring and why it was happening. This was the first time that he had realized that the developers had a plan to deal with drainage, and that the plan was not working, nor would the developer do anything to rectify the situation. There was agreement at the meeting that all the affected property owners should remove the berms. This, however, did not happen uniformly. He advised that suing could result in compensation, but not necessarily corrective action. He advised that we use the Act.

Mr. Davey supported the recommendations in the Report. He asked the Tribunal to accept the Report as a means of controlling the problem. He also mentioned the stress of the ongoing concern of a possible flooding incident every time there was a heavy rainfall.

John Kuntze

Mr. Kuntze testified as follows:

The master drainage plan is not working, though it is unclear why. In the Report, the problems are associated with the “maturing” of the lots. In principle the plan is sound, but problems arise when someone “mucks around” with it.
No homeowner wants the water to come onto their property.
The Report recommends that a buffer strip swale go up behind the lots.
The proposed catchbasin would accept any water as soon as it starts to accumulate.
The fence is unusual, but is essential. He indicated that the farmer, Mr. Weiss, also needed to be consulted. Mr. Weiss was committing a 30’ strip of land for the swale, but wanted no further encroachment upon his property. A fence would deal with that matter.
With respect to assessments, the focus needs to be on dealing with the residential properties. He noted disgruntlement toward the Court of Revision and indicated that some landowners wanted all responsibility for the drain to be borne by the municipality; he could not support this position. He urged the Tribunal to support the decision of the Court of Revision.

Further, Mr. Kuntze:

Recommended that the Tribunal dismiss the appeal and allow Messrs. Davey and Lamprecht to move forward with a solution.
Did not believe that any of the appellants had disputed the pipe portion of the design, and the only way to control silt from entering the municipal system is to build the buffer strip/swale.

Timothy Flannery

Under cross-examination by Mr. T. Flannery, Mr. Kuntze testified:

It was not his intention to make a recommendation regarding vegetation on the swale that would appear to be landscaped. He felt that after the vegetation was established, the best thing to do would be to leave it in grass, which may not require any maintenance at all. It might require cutting to ensure functionality. The municipality might need to levy maintenance assessments every five years; not a major burden on the taxpayers. It would take about a year for the vegetation to “catch”.
With respect to maintenance, the proposed catchbasin at the corner of the field was key; the area may not be able to be cleaned by hand.
The three most easterly properties (187, 195 and 201 Woodridge) would receive no benefit, but maintained that this was because they had berms built at the back of their respective properties.

Summations

Mr. T. Flannery noted the following in his summation to the Tribunal:

The appellants do not deny that there is a problem, but the outstanding question was how to resolve and pay for the problem. The appellants questioned why a fence needed to be erected between their properties and that of Mr. Weiss. The appellants disputed the size and length of the proposed of swale. Mr. Flannery stated that Mr. Kuntze had talked about water quality and land conditions; pictures were shown, but there was no evidence of contaminants.

With respect to access issues, Mr. Flannery stated that Mr. Kuntze had indicated that the swale did not need to be constructed for access purposes; access could be accomplished from Trussler Road. Mr. Flannery noted that Mr. Kuntze indicated that once the vegetation matures, there will likely not be a need to do anything with respect to the swale. The appellants’ point is that the swale does not need to be as long as proposed in the engineer’s report. The appellants submit that assessments should be made in accordance with the original plan for the watershed, i.e. all landowners in the subdivision should pay. Further, the appellants submit that the proposed swale should be shorter and that no fence be included in the proposal.

In his summation, Mr. Kuntze reiterated reasons why the fence should be present. He acknowledged the question of who should pay for the costs, and noted that assessments can be tested. He indicated that what he had done was done in a fair, equitable and unbiased manner. With respect to reducing the length of swale, Mr. Kuntze indicated that he was unsure what would be accomplished. He estimated that the proposal to shorten the swale would save only $2,000, and all those assessed would have their assessments reduced accordingly. Mr. Kuntze asked that the report not be altered and that the assessments, as amended by the Court of Revision, be confirmed by the Tribunal.

The Findings

Although considerable discussion took place regarding the original lot grading of the subdivision, the Tribunal clarified that the residential development took place under the Planning Act and that this Tribunal, constituted under the Drainage Act, has no jurisdiction with respect to the original subdivision construction.

The appeal to the Tribunal referred to appeals under Sections 48 and 65 of the Act. At the commencement of the hearing, Mr. Flannery indicated that any change in the project under Section 48 would necessitate a change in the assessments in accordance with Section 54. The Tribunal agreed to consider appeals under Section 54 as well.

Section 65 of the Act refers to the allocation of assessments after a subsequent division of an assessed property and is therefore not applicable in this situation.

From the evidence presented, we conclude that the major reason for the engineering report was the flooding of the Davey and Lamprecht properties caused by water flowing from the farm property at the rear of the upstream subdivision lots on Woodbridge Drive. The evidence also confirms that an earth berm has been constructed at the rear of a number of these lots to prevent water from flowing onto the subdivision lots. This has caused an erosion channel to develop along the farm property at the rear of the residential lots. While the evidence of the height of the berm varied, its existence was uncontested by the parties. The development plans for the subdivision provided for the construction of swales between a number of the subdivision lots to direct the water from the agricultural land to the storm sewer on Woodbridge Drive. The construction of the berm, by the various residential landowners, has prevented the water from flowing to these sideyard swales, resulting in the flooding on the Davey and Lamprecht properties.

The Tribunal therefore, concludes that the construction of the berm is the major cause of the present drainage problem and the landowners must accept the consequences for its construction.

In his summation, Mr. Flannery requested that all the landowners in the entire subdivision be assessed. However, he presented no evidence on how these assessments should be levied or under what authority this could be achieved. The Tribunal, therefore, finds that the assessments, as amended by the Court of Revision, are fair and equitable in this situation.

Arguments were presented to delete the easterly section of the proposed swale from the project; however, the Tribunal accepts that the swale is an integral part of controlling the water flow along the rear of all of the residential properties and that the swale should be constructed as described in the Report.

The Tribunal accepts the argument of Mr. Kuntze with regard to the construction of the fence at the south side of the buffer strip as requested by Mr. Weiss. The evidence indicated that there are some existing encroachments onto the farm property and the fence will prevent future encroachments as well as assisting in keeping the swale in good condition at minimum cost.

The Tribunal has considered all the evidence with respect to the Section 48 appeals and finds that the Report provides a good engineering solution to the drainage problem and that no changes to the design of the project are warranted.

ORDER OF THE TRIBUNAL

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

All appeals under sections 48 and 54 of the Drainage Act are hereby dismissed.
The Schedule of Assessments as revised by the Court of Revision dated June 25, 2007 is hereby confirmed.
The Engineer is directed to revise the original report dated March 1, 2007 to contain, in the text, the changes outlined in the Addendum dated April 27, 2007 and the Court of Revision dated June 25, 2007and that the revised report be labeled on the front cover “As amended by the Tribunal decision, dated October 16th, 2007”
The non-administrative costs of the Municipality in respect to this appeal shall form part of the cost of the drainage works and it is 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 Maidstone, Ontario this 16th day of October, 2007.