Wallace Concession 4 Municipal Drain (Re), 2007 ONAFRAAT 4

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@omaf.gov.on.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal@omaf.gov.on.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Wallace Concession 4 Municipal Drain

Municipality of North Perth

Wallace Concession 4 Municipal Drain (RE) 2007 ONAFRAAT 04

STATUTE:

Drainage Act

HEARING:

January 12, 2007

DATE OF DECISION:

March 2, 2007

2007-04

NEUTRAL CITATION:

2007 ONAFRAAT 04

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 Wayne Hartung, Gowanstown, ON under Section 54 of the Drainage Act from the decision of the Court of Revision on the Wallace Concession 4 Municipal Drain in the Municipality of North Perth.

Before:

Kirk Walstedt, Vice Chair; Rod Stork, Chair; Sharon Weitzel, Member.

Appearances:

Wayne Hartung, appellant

Ken Smart P. Eng., engineer who prepared the report, on behalf of the Municipality of North Perth, respondent

Meredith Schneider, witness for the Municipality of North Perth

DECISION OF THE TRIBUNAL

This appeal was heard in Listowel, Ontario on January 12, 2007. Mr. Wayne Hartung appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision on assessments against his property under the report dated July 31, 2006 prepared by K. Smart Associates Limited (the Report) on the Wallace Concession 4 Drain in the Municipality of North Perth.

Ms. Patricia Berfelz, Clerk of the Town of North Perth (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 54 of the Act states:

Appeal to Tribunal

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).

Documents Entered as Exhibits during the Hearing

Exhibit 1. Affidavit of Service of the Notice of Hearing,

Exhibit 2. Appeal submission, Mr. Hartung

Exhibit 3. Four photographs of the flooding on Mr. Hartung’s property

Exhibit 4. The Report dated July 31, 2006 prepared by K. Smart Associates Limited

Exhibit 5. Enlarged Map of the watershed and properties assessed on the drain

The Background

Mr. Ken Smart P. Eng., the Engineer who prepared the Report, gave the Tribunal a brief background of the project. Mr. Smart told the Tribunal that he had been practicing drainage engineering since 1968. He stated that he had prepared over 1,000 drainage reports.

Mr. Smart referred to an enlarged map of the watershed and properties assessed on the drainage works. He explained that the Wallace Concession 4 Drain consisted of a main drain and branch drain. He showed the Tribunal that Branch A was to be constructed in an easterly direction along Line 88. He said that two road crossings were to be constructed in Branch A. Mr. Smart said that the main drain was to be constructed in a south, south easterly direction through Lot 13, Concession 4 (the Hartung property) to outlet into a private drain on the Alexander property at the boundary of Lots 12 and 13 Concession 4 (Lots 12 and 13 Concession 4 are both owned by R. Alexander). He said that the Wallace Concession 4 Drain lay within the larger watershed of the Wilken Drain.

Mr. Smart pointed out that the project included open ditch improvement and improved outlet for road water alongside Line 88 and Road 152. He told the Tribunal that allowances for insufficient outlet under Section 32 of the Act were to be provided to the Alexander property where the main drain will outlet. He said that the private drain is to remain private. Mr. Smart stated that the project was initiated from a petition brought by the Town of North Perth. He stated that all systematic drainage tiles on upstream properties will be connected to the proposed works.

Mr. Smart explained to the Tribunal that the total cost for the project is $71,300.000 and that Mr. Hartung was assessed a total gross of $18,720.00 on the Main Drain and $500.00 on Branch A of the proposed drainage works.

The Issue

The issue before the Tribunal was:

1. Are the assessments against the Hartung property fair and equitable?

The Evidence

Wayne Hartung

Mr. Wayne Hartung provided testimony before the Tribunal. He stated that:

• Although his lands will derive some benefit from the proposed works, in that there will be a reduction of water overflowing Line 88 onto his property; he is not in agreement with the indication in the Report that 21.6 hectares of his property will benefit from the proposed works.
• He disagrees with the calculation of benefit assessments on a per hectare basis under the report. He stated that benefit assessment should be based on actual advantage to the lands from the existence of a project.

Mr. Hartung referred to four photographs of his property taken after a rainfall on November 16, 2006. He stated that:

• In photo number 1 water could be seen to be overflowing the catch basin at the northeast road crossing at Line 88 and onto his property in the north half of Lots 13 and 14 Concession 4.

• In photo number 2 water could be seen to flow across his property southward, toward Road 152 creating a lake-sized pond.

• In photo number 3 water could be seen to flow from the northwest road crossing at Line 88 onto his property in the north half of Lot 13 and 14 Concession 4.

• In photo number 4 water can be seen to flood his property as it over spilled the road crossings at Line 88. The photo was taken from Road 152 looking northwestward.

Mr. Hartung told the Tribunal that:.

• He was appealing the $9500.00 benefit assessment to his lands.
• There had been an increase in the volume and force of water flowing across his property from Line 88 and from the lands north of Line 88. Flooding had increased during seasonal times of high flows during the past few years.
• The catch basin located on the south side of Line 88 can no longer accommodate the volume of water flowing into it. The proposed works was designed to address the increased volume from upstream and his systematic tile drain will hook into it.
• His land is drained by a private drain approximately 350 m in length, originating at Road 152 and extending westward across his property. There are lateral tiles connecting to the header of his private drain at 20 m intervals.
• Even if his drainage tiles in the northeastern corner of his property were connected to the proposed works; the bulk of his property would continue to be drained by his private drain.
• Despite having the most land within the watershed of the Wallace Concession 4 Drain, the lands upstream and north of his property derive more benefit from the proposed works.
• It would be more accurate to assess benefit to his lands for an area of two to three acres (0.8 – 1.2 ha).
• In the report it is recognized that the outlet for his private drain is to remain as it is. The private drain consists of 10 inch and 12 inch tiles.
• Under the report, his private drain will still provide outlet for waters draining from Line 88, Road 152 and the proposed drainage works.
• His land should be assessed outlet on two or three acres (0.8 – 1.2 ha) not half the total hectares within the watershed, as indicated in the report.

Mr. Hartung responded to questions. He stated that:

• The outlet for his private drain system is on the Alexander property, which is adjacent to the ease side of Road 152.
• There is a catch basin and crossing under Road 152 with a six inch tile that brings water from his private drain to its outlet.
• The portion of the drain located at Line 88 had water running in it continually except for a few months during the summer.
• The photos listed as Exhibit 3 are indicative of the usual conditions of flooding following an average rainfall.
• The flow of water over his property had increased within the last few years, due to run off from the Fisher property. Large new poultry barns had been erected at the Fisher property, with two new barns constructed at higher elevations and the yard being improved. As well, more run off flows from the Fisher property where the road frontage has been graded to accommodate mowing machinery.
• In July 2004, a fire at the Kaye property necessitated the building of new barns and sheds. The yard was improved and the lane widened, creating more run off.
• In 2005, he first approached the Municipality about the increased water flowing from the Kaye property. He was informed that there were tiles on the Kaye property but that no one was certain if the tiles had been built upon or disconnected. Water is seeping up indicating that tile was disconnected
• Line 88 is paved and has been so for the past five years. Road 152 is gravel.
• The conditions depicted in the photos (Exhibit 3) existed prior to the paving of Line 88.
• Surveys of the Road 152 crossing indicate that the tile is 250 mm (10 inches) in diameter. A 300 mm (12 inch) tile was installed under Road 152 four years before, however he was not sure if any tile was connected to the newer culvert.
• He first raised the issue of flooding with the Municipality in the Fall of 2003.
• The Kaye and Fisher properties contribute water to the drain by way of the systematic tile systems: this water should be more accurately recognized in the assessments under the report.
• The Kaye and Fisher properties derive more benefit from the works than his property. His private drain has its own outlet.
• Water that ponds on his property as depicted in Exhibit 3 photos (fourth photograph) usually drains away within a few hours.

James Kaye

Mr. James Kaye, assessed landowner, gave evidence before the Tribunal. He stated that:

• His property is systematically tile drained, however, he did not know the age of the tile. He did not have a map of his tile drainage system.
• Some of the tiles draining his property remove water to outlet into the open ditch that crosses Line 88.
• The tile that Mr. Hartung referred to as having been disconnected or built upon is located on the west side of his driveway. This location of the tile became evident when seeping occurred. He had to investigate the seepage in order to prevent the flooding of his house.
• He erected two new barns; however one of the replacement barns occupies less area than the old barn, and one barn drains toward the watershed of the Neable Drain north of the Fisher Farms property.
• There has been an increase in the flow of water across Line 88. Erosion of the ditch bank alongside Line 88 has made the problem of flooding on the Hartung property worse. Erosion is the consequence of cultivation; it cannot be attributed to any particular individual’s activities.
• It was his understanding that the catch basin located at the corner of Line 88 and Road 152 was elevated seven feet above the surrounding lands.

Mr. Kaye responded to questions. He told the Tribunal that:

• Survey results indicate that the catch basin, located at the corner of Line 88 and Road 152 was elevated seven feet above the surrounding lands.
• He excavated and found that there are tiles on the east and west sides of his driveway. His driveway is located about midway between the two proposed outlets for the Line 88 ditch under the report.
• As tile blowouts occur, investigative excavations to correct the problems have revealed the layout of some of the systematic tiles on his property.

Ken Smart

Mr. Smart responded to questions with respect to assessments under the report. He told the Tribunal that:

• The issue of surface water flowing across the Hartung property was brought to his attention at the site meeting. The proposed works was designed to remove surface water.
• He determined that five acres of the Hartung property should be assessed benefit for removal of surface water flows. A value of $1,250.00 per acre was assigned to the lands (half of the value of $2500) which totaled a rounded off figure of $6500.00.
• Mr. Hartung’s property is assessed at a rate of $5.00 per meter for the Main Drain and $1,000.00 was levied for the construction of a new catch basin at Line 88.
• He considered that the Hartung property was increased in value by $10,000.00 because of the capacity for the proposed works to collect the surface waters that presently flood it.
• He recognized the discharge of water from the road onto the Hartung property by assessing it to a maximum in favour of a decreased assessment against the Hartung property.
• The Kaye and Fisher properties should be assessed for outlet at the rate of 25 percent of the capacity of the systematic tile system on the properties. .
• He reviewed the total gross assessments under the report and was satisfied that they were fair. Although the gross assessment against the Hartung property is $890 per acre, the assessments against the Fisher property are about $40.00 per acre higher in recognition of the increased run off created by the poultry barns on the Fisher property.
• The Court of Revision altered the assessments by decreasing the Kaye assessment by $500.00 and increasing the Hartung assessment by $250.00 and the assessment on the Bert Fisher Property by $250.00.
• The benefit assessment against the Hartung property is not based upon his 21.6 hectares in the watershed, but rather, five acres or roughly two hectares.
• Landowners are responsible for accepting upstream water flowing across their property, or they may block the water from flowing across their property.
• The proposed works is designed to address the water seen flooding the Hartung property in Exhibit 3.
• A survey of the road ditch east of the Kaye property indicated that there is an inversion of the tile that runs toward the road. It would have been impractical to route the proposed works to an outlet east of the Kaye property.
• Landowners must discharge collected water into a watercourse under the common law.
• The origin of the water that enters a six inch diameter tile at the Kaye property is not known for certain.
• The petition for the proposed works was brought forward by the Municipal Drainage Superintendent on behalf of the Municipality.
• The petition was brought mainly due to the Municipality’s concern that there were two road crossings that brought surface water into the road side ditch which had no legal outlet.
• Mr. Hartung’s property was assessed for outlet for all 21.6 hectares that are within the watershed. After the cost of each section of the drain has been calculated, the affected lands are then assessed according to the level of benefit and outlet provided by each section of the drain, in accordance with the Act.
• The benefit assessment against Mr. Hartung’s property is not based on the 21.6 hectares of his lands that are within the watershed.
• He used his own judgement and experience and undertook no specific engineering calculations to estimate the increased value to the Hartung property at $10,000.00.
• He estimated that increased crop yields of approximately $50.00 to $60.00 per acre would be due to improved drainage of surface and subsurface water on the Hartung property.
• The benefit assessment against the Kaye property is $14,000.00 for the water that is discharged from the systematic tile. Outlet benefit against the Kaye property is assessed at 25 percent of the benefit assessment
• The increased run off from the Fisher property is expressed as an increase in the hectares for the Fisher property under the report.
• The assessments reflect that the Hartung property is systematically tile drained, however, the size of tile is not known for certain. The header is undersized; larger tile is needed to take water to the road under the proposed scheme.
• The proposed works will improve the functioning of the private drain on the Hartung property.

Meredith Schneider

Mr. Meredith Schneider told the Tribunal that he had been a resident of the former Wallace Township (now the Municipality of North Perth) for 60 years. He stated that:

• He was a former Municipal Councilor during the 1980’s.
• During his term on Council, Line 88 was paved; however it was tarred and chipped during the early 1980’s.
• The culvert crossings on Line 88 were installed prior to the tarring and chipping in the early 1980’s.

In response to a question, Mr. Schneider stated that when Line 88 was paved there was no increase to its elevation or width.

Summations

In summary, Mr. Smart told the Tribunal that water flow had not changed considerably within the past few years. He confirmed that the catch basin in the ditch at the intersection of Line 88 and Road 152 was seven feet higher than the surrounding lands

Mr. Smart submitted that run off from the road had not changed for the last 25 years. He stated that increased run off from the Fisher property was reflected in the assessments. Mr. Smart said that excavations on the Kaye property indicated that some of the tiles took water toward the road however, the location of all the Kaye tiles is not known.

Mr. Smart said that the surface flow of water across the Hartung property had not increased due to run off, however, climactic events had increased surface flows across the Hartung property. He stated that no one had raised any issues with respect to the size of the drain and reiterated that there was no adequate conveyance of surface water to outlet on the Hartung property. He stated that the proposed works would resolve the issue of adequate outlet for the Kaye and Fisher properties. Mr. Smart told the Tribunal that the road was assessed 47 percent of the cost of the works. He maintained that the Hartung property was fairly assessed and that it would not be unusual to assess properties as much as 50 to 60 percent of the cost of the project, given similar circumstances to those of the Hartung property. Mr. Smart said that the Hartung property was assessed at 30 percent of the total cost of the project.

In closing Mr. Hartung reminded the Tribunal that the proposed works would convey upstream waters across his property and any increased crop values would jointly benefit the Kaye and Fisher properties.

The Findings

Mr. Hartung submitted a drawing and description of the private drain located on his property. In addition, he stated that his private drain has its own outlet. Photos submitted by Mr. Hartung (Exhibit 3) indicate that a significant volume of water is conveyed under the road by way of the existing culverts onto the Hartung property. Mr. Hartung stated water that ponds on the field alongside Road 152 will usually dissipate within a few hours. The Tribunal is convinced by the photographs and Mr. Hartung’s description, that water is conveyed onto the Hartung property from upstream lands, by way of culverts under Line 88. The dissipation of ponding of water indicates that Mr. Hartung’s private drainage system conveys the water to an outlet. It is the finding of this Tribunal that the private drain on the Hartung property is functioning well; however, it cannot remove the volume of water at the points of discharge (the road culverts at Line 88). The Tribunal finds that the Engineer did not fully consider the efficiency of the existing 10 to 12 inch tile on the Hartung property.

The Tribunal heard that Mr. Smart’s rationale for assessments was based on his longstanding experience and judgment. Evidence was presented to indicate there had been improvements to buildings and yards on the Kaye and Fisher properties. The assessments recognize the increased run off from the Kaye and Fisher properties due to improvements to buildings and yards. In the case of the Fisher property the discharge of water from buildings and yards was expressed in the assessments by way of calculating a larger land area for the Fisher property than was indicated in the map of the watershed. The Tribunal heard that two hectares of the Hartung property was assessed benefit for removal of surface waters and that 21.6 hectares were assessed for outlet.

The Tribunal is convinced that the assessments were based on empirical evidence found in the existing conditions of the lands within the watershed. The volume of water conveyed from the Kaye property into the existing drainage system and the proposed system is not known. The evidence indicates that the road surface has not changed in the past few years, nor has the road surface area increased. The volume of water flowing onto the Hartung property from above and across Line 88 has increased. The Tribunal finds that as Line 88 has been developed it is a significant contributor to the volume of water flowing across the Hartung property.

The Tribunal is convinced that this increase is due to water flowing from upstream lands. The outlet assessments to the Kaye and Fisher properties do not adequately recognize that Mr. Hartung has a private drain that is currently conveying water to an alternative outlet and that the road and upstream lands discharge water onto the Hartung property by way of the Line 88 ditch and culverts.

Mr. Kaye and Mr. Smart submitted that the location of the tile on the Kaye property was not known. It was Mr. Kaye’s evidence that the location of tile only became known when excavation was undertaken in response to a blow out. .The Tribunal is not convinced that the assessments for outlet against the Kaye property are accurate as the volume of water discharged from the underlying tile system is unknown and, therefore can only be estimated.

ORDER OF THE TRIBUNAL

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

1. Prior to third reading and passing of the by-law on the Wallace Concession 4 Drain, the following changes are to be made to Schedule A – Schedule of Assessments: a) the benefit assessment on the Hartung property (Roll No. 3-027) is to be reduced by $3,180; the benefit assessment will be $6,320 b) the outlet assessment on Line 88 is to be increased by $2,680; the outlet assessment will be $3,921 c) the outlet assessment on the Kaye property (Roll No. 3-134) is to be increased by $250; the outlet assessment will be $3,950 d) the outlet assessment on the Bert Fisher Farms Limited property (Roll No. 3-135) is to be increased by $250; the outlet assessment will be $1,459

e) figures in the total columns are to be adjusted to reflect the changes ordered above.

2. It is ordered that there be no order as to costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Essex, Ontario this 2nd day of March, 2007.