Henderson-Hebert Drain (Re), 2007 ONAFRAAT 29

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

1 Stone Road West / 1, chemin Stone Ouest Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

APPEAL: Henderson-Hebert Drain

Henderson-Hebert Drain (RE) 2007 ONAFRAAT 29

STATUTE: Drainage Act

HEARING: November 23, 2007

DATE OF DECISION: December 20, 2007

2007-29

NEUTRAL CITATION: 2007 ONAFRAAT 29

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 Mark Delanghe, in Wallaceburg, Ontario under Subsection 48(1)(a) of the Drainage Act from the engineer’s report on the Henderson-Hebert Drain in the Municipality of Chatham-Kent.

Before:

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

Appearances:

Mark Delanghe, appellant
Tim Oliver, P. Eng, engineer for the municipality
Tim Dick, Director, Drainage Division for the municipality
Andre Cartier, assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in the City of Chatham, Ontario on November 23, 2007. Mark Delanghe of Benelux Farms Incorporated appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under subsection 48(1)(a) of the Drainage Act (the Act) from the engineer’s report (the Report) on the Henderson-Hebert Drain in the Municipality of Chatham-Kent (the Municipality). However, during the course of the hearing, it became apparent that Mr. Delanghe was in agreement with the need to replace Bridge #1 on the drain, but, disputed his assessment. (Section 54)

Ms Elinor Mifflin, Municipal Clerk of the Municipality of Chatham-Kent (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 had been served with notice of this hearing.

Statutory Context

Section 48 of the Act states:

(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 of the Act states:

(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

Mark Delanghe owns agricultural land adjacent to the Henderson-Hebert drain. A culvert on the drain allows him access to his land. He has indicated in correspondence to the Tribunal, dated September 11, 2007, that the culvert is satisfactory to his needs and the proposed improvement would provide no added benefit to him.

Mr. Delanghe further states that, “…due to the arbitrary decision of Chatham-Kent to force 50% of the cost of this bridge improvement to us, that this makes this assessment of $7500 very excessive and unreasonable”. He also indicates in correspondence to the Tribunal dated October 29, 2007 that an assessment of $500 or less would be appropriate.

Tim Oliver, of Dillon Consulting prepared the Engineer’s Report entitled, “Bridge Replacements on Lot 9, Concession 9 over the Henderson-Hebert Drain (Benelux Farms & Laprise Culverts)”, dated 12 July 2007. The report was prepared in response to a request from the municipality following its receipt of a request from 2 landowners with property upstream on the drain.

The report made a number of recommendations. For Bridge No. 1 (Roll No. 5-371) at Mr. Delanghe’s property, the recommendations included the removal and disposal of the existing 13.4 m long 1400 mm diameter corrugated steel pipe (CSP) culvert, along with the broken concrete endwalls. In its place a new 15.0 m long, 1600 mm CSP would be installed. The total cost of the recommended work is $15,000. The report assessed 50% of the $15,000 cost to Mr. Delanghe’s property, with the balance of the costs being assessed to the upstream lands and roads.

The Issue

The issue before the Tribunal was:

Should Mr. Delanghe’s assessment on the Henderson-Hebert Drain be reduced, and if so, by how much?

Preliminary Matters

Prior to the beginning of the hearing, the Chair advised the parties that the drain had inadvertently been identified as the “Henderson-Herbert” Drain in materials, such as the Notice of Hearing, from the Tribunal. All parties acknowledged that the drain in question was actually the “Henderson-Hebert” drain. No concerns or objections were raised by the parties with respect to this oversight.

Mr. Oliver asked the Panel for permission to submit additional materials. These included:

a) Proceedings of the 32nd Drainage Engineers’ Conference (Exhibit #4);

b) Photos of the Henderson-Hebert Drain (Benelux Farms and Laprise Culverts), taken by Eric Westerberg, P.Eng. Chatham-Kent Drainage Superintendent (Exhibit #5);

c) Excerpt from the “Drainage Guide of Ontario, 2007”, Publication 29, OMAFRA (Exhibit #6);

d) Henderson-Hebert Drain Bridge Cost Comparison, compiled by T. Oliver, November 22, 2007 (Exhibit #7)

Mr. Delanghe reviewed these materials and had no objection to them being submitted as evidence. The Panel agreed that all four documents were admissible as evidence.

The Evidence

Tim Oliver

Mr. Oliver provided an overview of the Henderson-Hebert drain and how he arrived at the assessments outlined in the Report. Assessments were made for construction, as well as for future maintenance. Where there is single access to a property, benefit assessment is considered, as per the Act, i.e. where there is improvement to the land. In the case of Bridge No.1, assessment was 50% to the owner, Mr. Delanghe; lands and roads that were upstream of the culvert were assessed at 50% of the cost.

Mr. Oliver stated that he saw this as a fair assessment. The majority of the bridges that fall in the $10,000 to $30,000 range are generally, with some exceptions, assessed in this manner. Bridge No. 1 falls into this range and the approach of splitting the cost of the bridge assessment on the basis of 50% to the landowner and the other 50% to the lands and roads upstream is consistent with other, similar circumstances. He noted that this split was consistent with the results of the questionnaire (page 57, questions 9 and 10) in Exhibit #4. He also referenced Exhibit #7 to illustrate that upstream landowners helped to pay for downstream bridges.

Mark Delanghe

Reading from a prepared statement (Exhibit #2) Mr. Delanghe testified that he:

did not object to the proposed work, but, only with the assessment arising from it.
learned that he would be assessed 50% of the bridge cost when he received the July 12, 2007 engineer’s report from Dillon Consulting.
attended the July 25, 2007 municipal council meeting where the Report was considered and expressed his objection to his assessment
attended the August 22, 2007 Court of Revision meeting where changes to the assessment were denied.
had spoken to an independent engineer (unnamed) who believed that the benefit assessment for the existing bridge has been paid. In addition, this engineer stated that the 50/50 split applied to “first time” construction.
had not petitioned for a new bridge.

Mr. Delanghe said he believed that:

the lands that benefit from the drainage works should be assessed.
the bridge did not need to be replaced. While it had deteriorated, it was adequate.
no ratepayer had petitioned for any work to be done on the drain, rather a “request” had been made from 2 landowners to investigate.
he needed to express his disagreement with how the bridge was assessed otherwise the policy of assigning cost on a 50/50 basis would continue unchecked and untested.

Mr. Delanghe confirmed that, as per his October 29, 2007 correspondence to the Tribunal, his desired solution was for an assessment to his land of $500 or less.

Mr. Delanghe was questioned by the Tribunal and the following information was provided:

Tim Oliver confirmed that requests for new works require a petition from assessed landowners as per Section 4 of the Act. A request for improvements is covered under Section 78 of the Act; this can be initiated by a request from a single landowner.
Tim Dick indicated that it was the policy of the municipality to formalize Section 78 actions with a request from a landowner.
Mr. Delanghe confirmed that he was not opposed to the proposed work, but was dissatisfied with the related assessments.

In response to questions from the Tribunal, Mr. Oliver:

stated that it was his understanding the results of questions 9 and 10 in Exhibit #4 would still be the same in 2007. He agreed that his engineer colleagues would be of the same opinion regarding bridge replacement.
indicated that with respect to new works vs. improvements of existing structures, he was of the opinion his colleagues elsewhere in the province would have applied a similar process to assessing costs
confirmed that he had discussed the 50/50 assessment with landowners prior to the completion of the report. This question was raised by Mr. Robert Cartier, an assessed landowner with respect to the Laprise Culvert. Mr. Oliver responded that because the culvert needed replacing, the cost would be assessed 50% to the owner and 50% to the upstream landowners.

Summations

In his summation, Mr. Delanghe reiterated his position as outlined in his correspondence to the Tribunal dated September 11, 2007.

Mr. Oliver summarized his comments by noting that Bridge No. 1 had been examined and was found to be beyond repair and in need of replacement. The assessments for this work were outlined in the report. Where similar conditions have existed elsewhere on other drains, similar assessments have been made accordingly. The engineer has the discretion to determine the appropriate assessment. However, the engineer is not required to follow specific guidelines when making assessments. Mr. Oliver indicated that when calculating assessments, he does take into consideration whether a structure has some special benefit to a landowner.

The Findings

We accept the evidence of Mr. Oliver that Bridge No.1 is in need of replacement. This fact was acknowledged by Mr. Delanghe in his testimony.

While Mr. Delanghe disagrees with the methodology used for assessing the cost of bridges, he did not provide any expert evidence to refute Mr. Oliver’s testimony that the 50/50 split for the distribution of costs, as used by the majority of municipalities in Ontario, is not a fair and equitable method. We therefore find that Mr. Delanghe’s request for an assessment of $500.00 for the replacement of Bridge No.1 is not supportable by this Tribunal.

ORDER OF THE TRIBUNAL

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

The assessment regarding Bridge No.1 in the Engineer’s Report be adopted and the appeal of Mark Delanghe with regard to this matter be denied.

The non administrative costs of the municipality 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 20th day of December, 2007.