Dennis-Robertson Drain, Branch A (Re), 2007 ONAFRAAT 3

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: Dennis-Robertson Drain, Branch A Town of Plympton-Wyoming Dennis-Robertson Drain, Branch A (RE) 2007 ONAFRAAT 03

STATUTE: Drainage Act

HEARING: February 13, 2007

DATE OF DECISION: February 28, 2007

2007-03

NEUTRAL CITATION: 2007 ONAFRAAT 03

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 Ron Maw, Wyoming, ON under Section 54 of the Drainage Act from the decision of the Court of Revision on the Dennis-Robertson Drain, Branch A in the Town of Plympton-Wyoming.

Before: Gene Trotman, Vice Chair; Rod Stork, Chair; Ron Gelderland, Member

Appearances:

Ron Maw, appellant

Will Bartlett, P. Eng., engineer who prepared the Report, respondent

HEARING OF THE APPEAL BY THE TRIBUNAL

This appeal was heard in Wyoming, Ontario on Tuesday, February 13, 2007. Mr. Ron Maw appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) seeking a change to the decision of the Court of Revision and to the assessments in the engineer’s report dated July 7, 2006 on the Branch ‘A’ Dennis Robertson Drain prepared by Northwest Consulting Civil Engineers (the Report).

Ms. Carolyn De Schutter, Clerk, Town of Plympton-Wyoming (the Municipality), performed the duties of the Clerk of the Tribunal, and she filed an affidavit of service with the Tribunal as proof that all parties have been served with notice of this hearing.

STATUTE INVOKED AND CONSIDERED

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).

Procedure

(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).

THE ISSUE

1. Are the assessments on the Branch ‘A’ Dennis Robertson Drain fair?

THE BACKGROUND TO THE ISSUE

Mr. Will Bartlett, P. Eng., gave a brief overview of the project involved which gave rise to the issue. He explained that he was appointed as a result of the Municipality receiving a petition for drainage for the W1/2 Lot 11, Concession 1 (Darrach property); an area that lay within the watershed of the existing Dennis Robertson Drain. He explained the petitioners sought to have an existing six-inch tile drain incorporated into the Dennis Robertson Drain, for maintenance reasons.

Mr. Bartlett said the existing tile was on the E 1/2, Lot 11, Concession 1 (Maw property) and ran parallel to Churchill Line. He said the tile connected a low area on the Darrach property to an old tile which outlet into catchbasin 5 of the Dennis Robertson Drain. Mr. Bartlett related that a representative of the County of Lambton had confirmed that Lambton County had installed the tile in 1971 when improvements were made to Churchill Line, a county road.

Mr. Bartlett stated that, after he held a site meeting and started to prepare a profile of the existing drain, the Municipality received another petition for drainage for the same area. He said this petition, by Ron and Joyce Maw, sought to have the water using the existing tile re-routed through a new drain to be constructed onto the County of Lambton’s road allowance. He explained that a second site meeting was held and the County of Lambton and property owners had no objection to the existing tile being abandoned and rerouted so he ultimately designed the drain as requested by Mr. and Mrs. Maw. He said he proposed to use six-inch diameter plastic tile. He said some soil would temporarily be placed on the Maw property and he had provided an allowance for damages and right of way.

Mr. Bartlett told the Tribunal that to assess the cost of the drainage works he first estimated the cost of assuming the existing tile as a municipal drain and this worked out to $4,350, which he split between the Darrach property and the County of Lambton. He explained that these properties were the principal beneficiaries of the tile drain. He said there was a secondary benefit to the Maw property as the headlands were partially drained through the tile, but it was not assessed.

Mr. Bartlett said he then estimated the cost of re-routing the drain and that came to $2,460. He said the Maw property was the only property to really benefit from the re-routing of the drain as the outlet for Churchill Line and the Darrach property was not improved. However, he said he did assess a portion of this section of the costs to the Darrach property because it would have the benefit of using a new tile, rather than one that is over 30 years old.

THE EVIDENCE

Ron Maw’s Testimony

Mr. Ron Maw told the Tribunal that the existing six-inch tile drain was of no benefit to the Maw property because the existing tiles in the headland were not connected to that tile and it was 5 feet deep at one end which was much too deep to be of use as drainage. He said 30 inches was the maximum depth to achieve good drainage.

Mr. Maw said the existing drain was installed to take care of Churchill Road, but the agreement was only good while the landowner who owned the property in 1971 continued to own it, and then in 2005 there was a petition filed to make it a municipal drain. He explained that he wanted to re-tile the headland on the Maw property and wanted the existing six-inch drain re-routed first.

Mr. Maw said he thought the Darrach property was under-assessed because the house and septic system tie in to the drain. He also objected to spoil being placed on his land, as he was concerned about compaction.

Mr. Maw said a neighbour had been assessed $220 for cut-off on 10 acres on Branch ‘C’ Plympton Hunter Drain, and that in comparison, the $1,650 assessed to the Maw property was far too high.

In response to questions from Mr. Bartlett, Mr. Maw indicated:

• He purchased the property in the mid 1970s.
• He was aware of the six-inch tile drain when he purchased the property.
• He was not aware of any repairs being made to the drain since he had owned the Maw property.
• He assumed the six-inch tile was clay tile but did not know for certain.
• His contractor would have to work around the existing six-inch tile if it were not re-routed; it was five feet deep in the southwest corner of his property but much shallower near the catchbasin.

In response to questions by the Tribunal, Mr. Maw indicated:

• Originally water flowed through Churchill Road in a southerly direction
• He asked that the tile be relocated because it was of no use to him and he thought it would be more reasonable to move it off the Maw property so he would have nothing more to do with it
• He had lived with a drainage problem on his headland due to the catchbasin overflowing during times of high water, but since recent improvements to the Dennis Robertson Drain had been made it was now worthwhile to tile that portion of his property.
• He would not tie in to the relocated six-inch tile; he would drain to catchbasin 5.
• He thought that, for a minor difference in price, it would be better to have the new drain be an eight-inch tile.
• It would be cheaper to install the new tile if it were ploughed in.

Will Bartlett’s Testimony

Mr. Bartlett pointed out that this was a small drain in a small watershed. He said he looked to the Act to determine how to assess the incorporation of an existing tile, then the relocation of a drain. He explained that benefit liability could be assessed when the drain increases the value of land or results in it being more easily maintained. He said outlet liability is charged when an improved outlet is provided.

Mr. Bartlett said that looking at the three properties separately:

• The Darrach property had sufficient outlet through the existing tile but would benefit because through the incorporation of the tile as a municipal drain it would be assured uninterrupted drainage. The relocation of the tile would not increase the value of the property or make it easier to maintain, the only benefit was that the relocated tile would be newer than the 30 year old tile.
• The County of Lambton had adequate surface drainage through the road ditch; it originally installed the six-inch tile to provide subsurface drainage; there was no benefit to the County to relocate the drain and it did not receive any improved outlet either.
• The Maw property had benefited to some extent from headlands draining through open joints in the six-inch tile; it could serve as a header tile to the planned under-drainage; there were no physical benefits to relocating the six-inch tile off the Maws property, just the landowners’ preference to have water routed away from their property.

Mr. Maw had no questions for Mr. Bartlett. In response to questions from the Tribunal, Mr. Bartlett indicated:

• The natural flow of water on the Maw property would be southerly.
• If a municipality wanted a ditch moved off a road allowance, it would be normal to assess 100% of the costs to the municipality.
• He did not know if the Darrach house was connected to the drain; he suspected it was, except for eaves troughs which drain to the surface.
• He saw no evidence of septic waste in the drain when he did his survey and if the septic system was connected this should have been noticeable.
• If there was any evidence of septic waste in the tiles they would not be connected to the proposed new drain.
• The only reason for re-routing the drain was that Mr. Maw requested it; there was no benefit from re-routing to the County of Lambton or the Darrach property.
• An eight-inch tile was not needed. He did not recommend a filter on the six-inch tile.
• He would not recommend installing the new six-inch tile with a plow because it had to be placed in the road ditch and there was no stable level base for a tiling machine or plow.
• The soil in the watershed was clay so the old tile should be fairly clean.
• He was not aware of anything being registered on title with regard to the existing six-inch tile.
• There was no culvert under the road at this time; he did not know if there had been a culvert prior to 1971.

Reply by Mr. Maw:

Mr. Maw told the Tribunal that the existing tile was too deep on at least half the drain to be of any use to him and it was an inconvenience for him to have it there. He also pointed out that no one had dug it up and its condition was unknown.

Mr. Maw said the Darrach property had belonged to his father and he knew the eaves troughs drained to a cistern but the septic overflow connected into the drain.

SUMMATIONS

Mr. Maw told the Tribunal he wanted the drain off the Maw property but was concerned with the amount of his assessment. He submitted that the existing tile was 35 years old and had served its time. He said he could understand a small assessment but did not think it should be any higher than $400 as that is what he judged to be the benefit of not having to work around a municipal drain when he undertook his own tiling. He said he spoke to an engineer who told him that he would only have assessed the Maw property at one quarter of what Mr. Bartlett assessed it. Mr. Maw suggested the Darrach property could be assessed higher, in consideration of the house and septic draining through the six-inch tile.

Mr. Bartlett submitted that the issue comes down to assessing two parts of the work - assuming an existing tile drain as a municipal drain, then relocating this drain. He said the Maw property was not assessed any of the cost of incorporating the tile into a municipal drain and he submitted that the breakdown between the Darrach property and the County of Lambton was fair. He reiterated that a large portion of the cost of relocating the tile was assessed to Maw property as the Maws were the only ones who asked for it. He asked the Tribunal to uphold the assessments in the Report, except for a change made by the Court of Revision to remove the Maw property from the maintenance clause. He said he agreed with the Court of Revision on this point and asked that the Tribunal confirm its decision.

THE FINDINGS

The Tribunal finds that the assessments made by the engineer on this project are fair and reasonable. The evidence was clear that the existing six-inch tile was functioning well and the only beneficiary to moving the drain is the Maw property. The Tribunal agrees that the Darrach property should be assessed a portion of the relocation cost since they will benefit from a newer tile but the Tribunal heard no evidence to suggest that the assessment by the engineer was too low.

The County of Lambton and M.&L. Darrach both seem content with the breakdown of assessments of the cost of the incorporating the drain into a municipal drain and the Tribunal will not disturb those assessments.

The Tribunal is less certain that it is appropriate to completely remove the Maw property from the maintenance schedule for this drain, but given that the engineer supports the Court of Revision decision, and in the absence of any objection from landowners, the Tribunal will confirm the decision of the court of revision.

With regard to the placing of spoil on the Maw property, the Tribunal finds that the allowance provided for crop loss is generous and notes that the specifications for construction provide that the work will be well monitored.

While there was no definitive evidence as to whether the septic system is hooked to the drainage works or not, the Tribunal reminds the parties that pollution of drains is not permitted under the Act. Section 83 of the Act provides that:

Pollution of drains prohibited

83. (1) Except as authorized by a by-law of the initiating municipality approved by the Ministry of the Environment, no person shall discharge or deposit or permit to be discharged or deposited into any drainage works any liquid, material or substance other than unpolluted drainage water. R.S.O. 1990, c. D.17, s. 83 (1).

Penalty for pollution

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $1,000. R.S.O. 1990, c. D.17, s. 83 (2).

ORDER OF THE TRIBUNAL

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

1. The decision of the Court of Revision to exempt the property identified as E1/2 Lot 11, Conc. 1, Roll No. 10-028 (Maw property) from the maintenance costs of Branch ‘A’ Dennis Robertson Drain is confirmed.

2. The appeal by Mr. Ron Maw under Section 54 of the Act is dismissed.

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 Drainage Act.

Dated at Ottawa, Ontario this 28th day of February, 2007.