3rd Concession Drain West of Little Creek (Re), 2007 ONAFRAAT 25

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

3rd Concession Drain West of Little Creek

Town of Lakeshore

3rd Concession Drain West of Little Creek (RE) 2007 ONAFRAAT 25

STATUTE:

Drainage Act

HEARING:

October 16, 2007

DATE OF DECISION:

November 8, 2007

2007-25

NEUTRAL CITATION:

2007 ONAFRAAT 25

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 Georges Bicrel, in Stoney Point, Ontario under Subsection 48(1)(b) of the Drainage Act from the engineer’s report on the 3rd Concession Drain West of Little Creek in the Town of Lakeshore.

Before:

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

Appearances:

Georges Bicrel, Appellant/Landowner

Edward Dries, P. Eng., on behalf of the Town of Lakeshore, respondent

Mike Mailloux, landowner

Marcel Mailloux, landowner

Sylvin Mailloux, landowner

DECISION OF THE TRIBUNAL

This appeal was heard in Belle River, Ontario, on October 16, 2007. Georges Bicrel appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48(1)(b) of the Drainage Act (the Act) from the engineer’s report dated April 11, 2007 (the Report), by Todgham and Case Associates Incorporated on the 3rd Concession Drain West of Little Creek, in the Town of Lakeshore, and signed by Edward Dries, P. Eng. (the Engineer).

Ms. Jill Florito, Clerk of the Town of Lakeshore, 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

Subsection 48(1)(b) 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).

Preliminary Matters

Mr. Bicrel requested that he be permitted to introduce additional evidence, consisting of a letter dated October 15, 2007, signed by four (4) other property owners, stating that the construction of a dam at the northwest corner of Mr. Bicrel’s property is not necessary. This request was agreed to by Mr. Dries, and the Tribunal entered the letter as Exhibit 6.

Mr. Dries also requested that he be permitted to introduce additional evidence, consisting of:

a) An engineer’s report dated September 16, 1968, prepared by Mr. William J. Setterington, P. Eng. (Exhibit 3),

b) An engineer’s report dated March 14, 1977, also prepared by Mr. William J. Setterington, P. Eng. (Exhibit 4),

c) An engineer’s report dated May 25, 1983, prepared by Mr. Maurice Armstrong, P. Eng., of C. G. Russell Armstrong Limited Drainage Engineers (Exhibit 5),

d) His CV, outlining his qualifications and experience as a drainage engineer (Exhibit 7)

This request was agreed to by Mr. Bicrel, and the Tribunal entered the evidence as the Exhibits noted.

In addition to this evidence, Mr. Dries stated to the Panel that he has prepared over six hundred (600) reports throughout his career, for projects across the province, and requested that the panel accept his testimony as an expert witness. Mr. Bicrel had no objections to this request and the Tribunal approved Mr. Dries as an expert witness.

The Background

The Report was prepared pursuant to a request from the owner of the property identified by Roll No. 700-019, as stated in the Report, located immediately to the east of that owned by the appellant. To address this request, Council for the Town of Lakeshore appointed Todgham & Case Associates Inc. to prepare a report.

The purpose of the Report was to provide recommendations for addressing the conditions of access culverts and/or lawn piping, which serve the properties along the 3rd Concession Road, between Comber Sideroad and Little Creek. With respect to the issue at hand, the Report recommended that:

1. the section of the 3rd Concession Drain Extension (the Extension) from the high point at Station 2425, to the lot line between 7 and 8, be appended to the 3rd Concession Drain

2. a dam be constructed at Station 2425, the point of divide between the west 39.7 acre portion, and the east 58 acre portion of the appellant’s property, which would provide a positive separation between the 3rd Concession Drain to the east, flowing east, and the Extension to the west, flowing west .

3. the portion of the Extension west of Station 2425, continue to be known as the 3rd Concession Drain Extension West of Little Creek (the Extension).

The total estimated cost of the dam at Station 2425 is proposed to be $500, of which $300 is assessed to Mr. Georges Bicrel, and the remaining $200 is assessed to other landowners who are to receive benefit from this positive separation of watersheds.

An on-site meeting was held before the preparation of the report, where landowners were given the opportunity to express their concerns over the drainage works to take place, and to assist in the identification of structural failures throughout the drain. Mr. Bicrel did not attend this meeting. It was decided at the site meeting that an investigation be carried out on all structures on the drain. At the on-site meeting, flow problems were identified, and it was determined that these problems should be considered in the Report.

Mr. Dries stated that there were a number of structures on the drain, most of which were constructed approximately 40 years ago. He added that the most recent work of maintenance did not match the governing by-law, as indicated in Exhibit 3. He stated that it was felt that a new grade line be established for present and future drainage works. It was suggested that a new schedule of assessment be developed to identify the changes in the watershed area that occurred since 1968. Pursuant to the 1968 by-law, new access culverts were constructed outside of the road allowance on private lands.

The report produced in 1983, Exhibit 5, identifies the upstream extension. The report increased the size of the watershed, including land area not previously included in the drainage works, and Mr. Bicrel’s property was included as part of this watershed. Included in the 2007 report, are conditions found for nine (9) structures, eight (8) of which were installed as a result of recommendations in the 1968 report, and are in a state of structural distress. The ninth (9th), which was installed as a result of recommendations in the 1983 report, was structurally sound.

The Report recommended that the eight (8) structures installed as a result of the recommendations in the 1968 report be replaced, and this was discussed at the on-site meeting. While the structures were to be replaced, it was requested that an attempt be made to salvage the end walls. The Report also recommended the establishment of a new grade line for the drain, which was lower than the grade line recommended in the 1968 by-law. A recommendation of the Report was to install a dam in the drain, at the upstream limit, to provide a positive watershed separation between the 6-7 Sideroad Drain, and the 3rd Concession Drain West of Little Creek.

Mr. Bicrel is of the opinion that while structures may need replacement along the drain, the current structures properly suit the area’s drainage needs. This, he stated, was relative to how the proposed drain is set to work. He is of the opinion that the construction of a dam provides no positive benefit. Mr. Bicrel is also of the opinion that if this dam is built, the westerly 39.7 acres of his land will drain only toward the Comber Sideroad Drain. This is of concern to him as he stated that the Comber Sideroad Drain will not provide his property with sufficient drainage in periods of heavy rainfall, due to the significantly slower flow of water.

The Issue

The issue before the Tribunal was: is the construction of a dam, as identified at Station 2425 in Schedule C of Exhibit 2, necessary to allow for proper drainage, due to the potential it may hold to cause flooding on westerly properties?

The Evidence

Georges Bicrel

Mr. Bicrel has owned the property since 1983. During periods of rain, 58 acres of his property drains to the east into the 3rd Concession Drain West of Little Creek, while roughly 39.7 acres of his property drains to the west via the 3rd Concession Drain Extension West of Little Creek, into the Comber Sideroad Drain.

Mr. Bicrel is aware of Exhibit 5, the report by Maurice Armstrong dated May 25, 1983. At that time he was satisfied with the drainage works. Prior to 1983, however, all of the water from his property drained to the west, although after the drainage works were completed, a portion of the water from his property drained to the east, and another portion drained to the west. Since this property has been owned by Mr. Bicrel, he has not been assessed for any drainage works that have taken place.

Mr. Bicrel stated that the Comber Sideroad Drain has a deep flow and that, due to a heavy volume, the flow of water in this drain ranges from slow to nil, leading to bad crops when water builds up and floods his land. He attributes this flow problem to the flap gate located at the end of the Extension, and he is unaware of who requested its construction.

He stated that during periods of low rain no flooding will occur and that, due to the flap gate, periods of high rain will lead to the flooding of the 39.7 acres on the west side of his property. He further added that in times of heavy rain, water that enters the Comber Sideroad ditch will eventually end up in Little Creek.

In response to a question from the panel, Mr. Bicrel stated that under one (1) inch of rainfall, the flap gate will provide adequate drainage, but that under three (3) inches of rainfall, it will cause the western 39.7 acres of his property to flood. He further stated that water to the west of the proposed dam will be stagnant.

Mr. Bicrel was unable to attend the on-site meeting preceding the Report due to favourable weather conditions which allowed him to farm his property at that time. He did, however, speak with Mr. Dries over the phone to raise his concerns. He was told that construction would continue as stated in the Report, as it had already been adopted by Council. At the Court of Revision, he was told that his only option was to raise the issue to the Appeal Tribunal

Mike Mailloux

Mr. Mike Mailloux, the owner of another property within the 3rd Concession Drain, stated that a dam previously existed at the east end of the property currently owned by Mr. Bicrel, and that every time it rained, flooding occurred. He identified that the old dam existed at the east end of Mr. Bicrel’s property, along the property line, and stated that this dam was removed in the 1983 report. Mr. Mike Mailloux informed the panel that this was approximately 30 years ago. He further stated that there was a properly functioning flap gate in the Comber Sideroad ditch.

Marcel Mailloux

Mr. Marcel Mailloux stated that the 6-7 Sideroad Drain leads to Lake St. Clair, and that all side ditches drain into there, but that in times of heavy rainfall, the ditch is always full. He further stated that if a portion of the water from Mr. Bicrel’s property drains into the Comber Sideroad Drain, the ditch will always be flooded. He stated that a dam dividing the Third Concession Road ditch is a waste of time, and that a good flap gate is needed at the Comber Sideroad Drain. Mr. Marcel Mailloux did not attend the on-site meeting preceding the Report, nor did he attend the Court of Revision meeting. He has not raised concerns over the Report until this hearing before the Appeal Tribunal.

Sylvin Mailloux

Mr. Sylvin Mailloux stated that the Report aims at replacing all the culverts, and he is concerned that when the culverts are replaced, the size of the new culverts won’t accommodate the volume of water in the future. This, he further stated, is because the culverts are already at capacity now, as they are now taking in water from the 6-7 Sideroad Drain.

Edward Dries

Mr. Dries referred to engineer’s drawings from the Report, showing Mr. Bicrel’s property, a 97.73 acre parcel of land, and distinguished between the 58 acre parcel to the east of the proposed dam, and the 39.7 acre parcel to the west of the proposed dam.

He then referred to the cross-section map, showing the division of the drainage works and where the proposed dam is to be placed. In referring then to Exhibit 3, he stated that, as highlighted on the first page of the 1968 report, where work started at the westerly limit of Lot 8, it did not include any of Mr. Bicrel’s lands. This report recommended the reconstruction of all culverts in the existing drain today. At that time, none of Mr. Bicrel’s property was assessed.

Mr. Dries then referred to Exhibit 4, with regard to the 6-7 Sideroad Drain, and drew the panel’s attention to the red tab on page 6. He identified the highlighted portion, showing the assessment of Francis Markham, who was the previous owner of Mr. Bicrel’s property. He stated that at that time, the entire property drained to the west. He stated that Exhibit 4 is the current governing by-law for the 6-7 Sideroad Drain. Mr. Dries stated that the 6-7 Sideroad watershed is a large watershed, consisting of 1400 acres of land.

Mr. Dries then referred to Exhibit 5, the report recommending the construction of the first municipal drain across the frontage of Mr. Bicrel’s property. Mr. Dries stated that when looking at the frontage of Lot 7, normal gradient is from East to West. In 1968, a dam was placed at the line between Lots 7 and 8. He then stated that the lots to the west are lower than lots to the east, as per the cross-section map. Mr. Dries further referred to Exhibit 5, in stating that this drain was designed to flow both ways, and that Mr. Armstrong removed the dam, and introduced a positive grade to the west for the westerly part of the property, and a positive grade to the east for the easterly part of the property.

Mr. Dries stated that Exhibit 5 does not include discussion of the road crossing, flap gate, or flow control, and that it is silent on these items. He stated that works done under Exhibit 5 only affected Mr. Bicrel’s property and that only Mr. Bicrel and the municipality were assessed. He then stated that the report was to bring 58 acres into a separate drain, at no cost to Mr. Bicrel, and that no consideration was taken on the impact on the culverts.

Mr. Dries then stated that under normal conditions, the culverts work fine, although under flood conditions, once water depth of the 6-7 Sideroad Drain exceeds twelve (12) inches, backflow will occur into the Extension, and will go over the watershed split. He further stated that if water elevation is lower on the east side than the elevation difference of the split, water will flow to the east.

Mr. Dries then stated that there is no record of how or why a flap gate was constructed at the West end of that drainage area, and that the flap gate is not a part of any municipal drainage by-law. He then stated that he received no authority from the municipality to address the operation of the flap gate. He further stated that since Mr. Bicrel is the only one assessed to the Extension, he would need to request the repair on the flap gate drain. He added that there exists no road flooding to suggest that flooding would occur on the 39.7 acre westerly portion of Mr. Bicrel’s property, and that there is no statutory methodology on behalf of the landowners to have anything done.

Mr. Dries stated that events have occurred where water has been directed from the 6-7 Sideroad Drain through the flap gate, and that he endeavoured to prevent the drainage of one watershed into another. Mr. Dries added that in order to accommodate the easterly 58 acres of Mr. Bicrel’s property, brought into the watershed by the 1983 report, some of the culverts were to be slightly larger than before, following the guidelines set forth by the Ministry of Agriculture, Food and Rural Affairs. He stated that this could be done only under positive watershed separation, leading to the construction of the dam which will allow for the culverts to remain the same size.

Mr. Dries stated that, in his opinion, the location of the dam has no impact on the drainage of Mr. Bicrel’s property. He added that, as stated by Mr. Bicrel, under normal conditions, the culverts work fine, due to the new grade line in the ditch. Mr. Dries did not recommend the removal of the culvert that serves Mr. Bicrel’s property because it is still functional, in spite of Exhibit 5, recommending that when it does require maintenance, it be removed completely rather than replaced.

With regard to the Extension, not included in the Report, Mr. Dries stated that he did not have authority to address this area, but that it appears to provide adequate service as it only drains the westerly 39.7 acres of Mr. Bicrel’s property. He did mention, however, that if a problem arises, where flood conditions occur, that the Extension be addressed. He further added that if the replacement of the flap gate is the answer to all problems, that Mr. Bicrel request for it to be repaired, but also stated that infrastructure like this is not always as dependable as an earth dam.

Concerning the issue of culvert sizing, Mr. Dries stated that the issue exists in the matter of assessments. He stated that if no positive watershed separation is installed, then an assessment should be placed on the 1400 acres of land upstream from that point. He further added that this is not practical, and not recommended, and that establishing the limits of each watershed is necessary. He stated that a connection between two municipal drains is not recommended due to the complexity of drainage and assessments.

Mr. Dries stated that Mr. Armstrong’s report, Exhibit 5, recommended that in flatlands, opposite direction drainage be used where no dam was installed in areas of higher gradient. He added that in this case, a dam is of functional importance, due to the low gradient and the potential for watershed-jumping of flows, from east to west, or west to east. He stated that, a positive watershed separation was recommended at the on-site meeting, and that this meeting was quite well attended. He added that Mr. Bicrel was not present at the on site meeting, or the Drainage Board meeting to consider the Engineer’s Report but that afterward, Mr. Bicrel contacted him by phone, expressing concern. At this point, Mr. Dries informed Mr. Bicrel that he had no authority to address the issue as the Report had already been adopted by Council.

Mr. Dries stated, and Mr. Bicrel agreed, that the drainage system has functioned well since 1983, and that the grade of the Extension, is from the high point flowing to both the east and west, and was established in 1983. Mr. Dries added that it has functioned properly since that time, and that a positive separation at that location will maintain the status quo. With regard to this dam, Mr. Dries stated that if no dam is installed, water from either side can flow into the other side and contribute to the drainage at the other culverts. Mr. Dries stated that he is of the opinion that, under normal conditions, the dam will not affect the current operations of the drain.

Mr. Dries recommended that if the function of the flap gate is of concern, then a request be placed with the Municipality to repair the Extension. He stated that if elevation of the water is high enough on either side, then the overflow to the other culverts is not fair to landowners paying for those culverts.

In response to a question from the panel, Mr. Dries stated that the Extension is an emergency overflow, and that he had no mandate to address that issue. He added that if he had authority to address the Extension, he would have. In response to another question from the panel, Mr. Dries stated that Mr. Bicrel’s entire 97.73 acre property could drain to the east by flattening the grade of the ditch and extending the drain to include all properties along 3rd Concession Road, west of Little Creek.

He stated that there were problems within the existing works because historically, the 39.7 acre parcel would have always been assessed to the west of the 6-7 Sideroad Drain, and that this would cause changes in the assessments. He stated, in response to a question from the panel, that Mr. Bicrel was not assessed the entire cost of the construction of the dam because other properties would also be receiving benefit. Also in response to a question from the panel, Mr. Dries stated that overlaying two drains is not common practice due to design and assessment issues. He stated that due to engineering practices, specific areas must be determined to allow the engineer to be as specific as possible in the design of a system that meets the requirements of that given area, and that area alone. He stated that over-designing drainage works introduces imprecision in the recommendations made, and increases the costs of the entire project, which is not the main issue. He further stated that the engineer only has the means to assess the upstream landowners in cases like this, and that this is of particular importance in the case of flat lands, where surface waters jump watersheds. For this reason, he stated, watersheds must be defined and isolated so that assessments occur based on specific areas, so as to not assess property owners for works in watersheds of which they have no part.

In response to a question from the panel, Mr. Dries stated that tests and analyses were done in the preparation of the report, and that two (2) to five (5) year storm analyses were used. He further indicated that if he were not restricted from addressing the Extension, he would have addressed it.

At this point, Mr. Bicrel mentioned that he would be open to eliminating access to the Comber Sideroad ditch, and that he would be willing to bear the costs involved. In response to this, the panel informed Mr. Bicrel that for this to occur, Mr. Bicrel must place a request for further drainage works with the Municipality.

Summations

Mr. Bicrel summarized his argument in stating that the construction of the proposed dam would be very problematic for his property, and that he can’t afford to lose 39.7 acres of it to flooding. He is, however, open to idea of eliminating the culvert along Comber Sideroad, and bearing the costs involved. He stated that this scenario would allow for all water to drain in the opposite direction, and added that it is the water from Comber Sideroad that is the issue. He further stated that since landowners are the ones bearing the costs, the drainage works should be constructed as the landowners desire.

Mr. Mike Mailloux stated to the panel that he agrees with Mr. Bicrel, and suggests moving the proposed dam to the west end of Mr. Bicrel’s property, allowing this property to drain into Little Creek. Mr. Marcel Mailloux and Mr. Sylvin Mailloux both stated that they were in agreement with the suggestions of Mr. Mike Mailloux.

Mr. Edward Dries stated that the history of this drainage works, for approximately one hundred (100) years prior to 1983, shows that Mr. Bicrel’s property has drained to the west, and that in 1983, Mr. Armstrong recommend splitting the flows. He further stated that Mr. Armstrong’s report failed to provide a positive watershed separation, and failed to contemplate any issues of flow from 6-7 Sideroad Drain. He added that the 1983 report did not foresee the possible outcome, and Mr. Dries finds it necessary to clearly define the watershed areas of all municipal drainage systems, as identified in the Report. He doesn’t believe that a significant impact will occur from the installation of a dam at Station 2425 on Mr. Bicrel’s property. Previous reports, he further added, show that all flows from Mr. Bicrel’s property flow to the west, not to the east. He indicated that since no input was received from property owners, no corrective action was taken, and he is of the opinion that the report is correct, and technically sound. Mr. Dries further recommends maintaining the report as it stands, and if changes are to be made to include additional lands, then he is prepared to take that into consideration. He closed in stating that he remains satisfied with the content of the report as it stands.

The Findings

The Tribunal finds that Mr. Dries was the only expert witness who testified at the Hearing. Although, the Tribunal found Mr. Bicrel and the neighbouring property owners to be sincere in their belief that the work set out in the Report would not resolve the drainage problem at hand, no compelling evidence was presented by Mr. Bicrel to refute Mr. Dries testimony. Despite the fact that all parties acknowledged a key source of the drainage problem could be attributed to the flap gate that had been installed in the Comber Sideroad Drain, it was pointed out by Mr. Dries that this structure was part of a drainage system that was clearly outside of the watershed on which that he had been instructed to prepare his report. The Tribunal agrees with Mr. Dries that, had Mr. Bicrel attended either the initial onsite meeting or the Drainage Committee meeting where the report was adopted, his concerns would have been discussed and the Tribunal Hearing may have been avoided. This however, does not change the requirement for a separate petition by one of the watershed landowners to address the issue of the Comber Sideroad Drain flap gate, should one of them wish to pursue the issue further.

The Tribunal therefore finds that the Engineer’s Report shall be implemented as written. As a result of the additional concerns raised at the hearing, we strongly urge the municipality and the landowners to enter into further discussions in an attempt to resolve any outstanding drainage issues as Mr. Dries’ noted, that were clearly outside of his mandate in the preparation of this particular report

ORDER OF THE TRIBUNAL

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

1. The appeal of Georges Bicrel, under Subsection 48(1)(b) of the Drainage Act, is denied.

2. The non-administrative costs of the Town in respect to this appeal shall form part 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 Drainage Act.

Dated at Guelph, Ontario, this 8th day of November, 2007.