Komoka Drainage Works Union Avenue Branch (RE), 2007 ONAFRAAT 6

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest 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: Komoka Drainage Works Union Avenue Branch Township of Middlesex Centre Komoka Drainage Works Union Avenue Branch (RE) 2007 ONAFRAAT 06

STATUTE: Drainage Act

HEARING: February 14, 2007

DATE OF DECISION: March 6, 2007

2007-06

NEUTRAL CITATION: 2007 ONAFRAAT 06

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 Brian Ritchie and Heni Ritchie, Komoka, Ontario under Subsection 48(1)(b) of the Drainage Act from the engineer’s report on the Komoka Drainage Works Union Avenue Branch 2006 in the Township of Middlesex Centre.

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

Appearances:

Andrew Wright, counsel to the respondent, the Township of Middlesex Centre

Paul Eluchok, counsel to 2065852 Ontario Limited, intervener

Brian Ritchie, appellant

Mike DeVos, P.Eng., engineer who prepared the report

Lenora Fournie, witness for the appellants

Thomas Wey, witness for the respondent

Matt Polzoni, principal, 2065852 Ontario Limited, witness for the intervener

DECISION OF THE TRIBUNAL

This appeal was heard in Coldstream, Ontario on Wednesday, February 14, 2007. Mr. and Mrs. Ritchie appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsection 48(1)(b) of the Drainage Act (the Act). They sought changes to the design of the drainage works proposed in the engineer’s report by Spriet Associates, dated October 10, 2006 on the Komoka Drainage Works Union Avenue Branch 2006 (the Report).

Ms. Stephanie Troyer-Boyd, Tax Collector and Ms. Cathy Saunders, Clerk of the Township of Middlesex Centre (the Municipality), performed the duties of the Clerk of the Tribunal. 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) 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 Matter

Mr. Paul Elochuk, counsel to 2065852 Ontario Limited, sought to add his client as a party to the proceeding. He explained that the company was a subdivision developer which had assisted in the design of the proposed drainage works and which was assessed the total cost of construction. There were no objections to the subdivision developer having party status and the Tribunal so ordered.

The Background

Mr. Mike DeVos, P.Eng. was qualified as an expert witness. He provided a brief overview of the history of the drainage project to the Tribunal.

Mr. DeVos explained that Komoka was a fully serviced village that lay totally within the Municipality. He said the drainage proposed was to incorporate the storm water management practices of a proposed new subdivision as a municipal drain for future maintenance purposes. Mr. DeVos told the Tribunal that:

• water from upstream lands entered the subject property via private ditching that collected water that flowed through a three-foot diameter railway culvert and an 18-inch diameter railway culvert;
• he included upstream lands in his calculations for the 100 year storm design;
• he proposed a combined closed drain sewer and overflow swale - a 525 mm (21 inch) diameter pipe and overflow swale to take water toward Komoka Road (County Road 16) and a 750 mm (30 inch) diameter pipe to take water to the County Road culvert, the Union Avenue culvert and the County Road ditch;
• parts of the subdivision developer’s design are incorporated as a part of the design of the new drainage works.

In response to questions of clarification, Mr. DeVos indicated:

• Water runs to subject property and enters subject property from the east;
• the part of the drain adjacent to the appellants’ property was approximately 100 plus metres;
• Union Road and Komoka Road are higher than the surrounding land;
• culverts carry water under roads to some extent, then they back up until water builds up and flows across the road surface;
• the Komoka Road culvert was built to County of Middlesex design standards; he thought it likely that the Union Road culvert was built to a similar standard given its proximity to the County Road;
• to the best of his knowledge the culverts only carried surface water;
• he understood private work was undertaken in the 1980s to help direct the water from upstream lands; there was some ponding on the appellants’ property downstream from the 18-inch railway culvert;
• Komoka Drain No. 3 is an existing municipal drain which is a storm sewer up to the point that the Frank Drain intersects with Komoka Road, then drops in size and runs up to the north side of Lot 18;
• the proposed drainage works would incorporate a portion of the east side road ditch of Komoka Road, two existing road culverts and new pipes and swales to be constructed in the new subdivision;
• upstream landowners had not petitioned for a municipal drain.

The Issue

The issue before the Tribunal was:

1. Whether the design features of the Komoka Municipal Drain, as alleged by the Appellants, are defective to the extent that it requires changes or alterations by the Tribunal.

The Evidence

Appellants’ Case

Mr. Brian Ritchie told the Tribunal that the fundamental question for it to consider was whether or not the Act allowed one individual to maximize the enhancement of his property if this would damage or put at risk neighboring property if there are other reasonable alternatives.

Mr. Ritchie explained that he was concerned that the Report did not provide a sufficient safety margin in the event of flooding and the drain was of insufficient capacity. He identified discrepancies between the Report and work undertaken by an engineering firm hired by the subdivision developer on the size of the upstream watershed, the volume of water flowing through the railway culverts, the lowest elevation of land along the boundary of the Ritchie property and the property owned by the developer (subject property) and the number of places where water entered the subject property from neighbouring properties. Mr. Ritchie later indicated he was satisfied by the testimony of Mr. DeVos that his concerns about the safety margin had been addressed.

Mr. Ritchie testified that ground had been scraped away at one location on the subject property but that it had silted back in and changed the direction of flow of water. He said he was concerned that the proposed drain would silt up and this would reduce its capacity, causing water to back up onto the Ritchie property. He later indicated that he understood that the Municipality would clean out the silt at the request of landowners.

Mr. Ritchie told the Tribunal that the Municipality had not established any by-laws or guidelines for tree protection. He said he was concerned that the proposed drainage works would damage established trees on the Ritchie property. He testified that:

• a line of trees shown in photographs and plans was on the boundary line of the Ritchie property and the subject property;
• there were no clear specifications of the drainage ditch that was to be placed adjacent to the Ritchie property but it was clear that to achieve the 3:1 slope desired that it would have to curve and would be fairly high up on the tree bank;
• the proposed drainage works would cut through the roots of the trees;
• experts agreed that ditches should be placed at or beyond the drip line of trees or else the trees would be destroyed – he referenced papers and/or correspondence by Dr. Dennis Schrock, University of Missouri-Columbia, the Morton Arboretum Plant Clinic, Dr. Brenden Williamson, UCTA, Karina Verhoeven, Landscape Architect and Donald Craig, St. Clair Region Conservation Authoriy (Exhibit 6, Tab D);
• roots are concentrated in the top 12 to 18 inches of soil and spread two to three times the width of branches;
• anything cut along the base of the tree puts the tree in jeopardy; the drip line is the safety margin;
• each pound of root system supported four pounds of woody tree;
• cutting roots at the base of the trees would hurt the stability of the trees and they could be knocked over in wind storms;
• if the grade of land is lowered at the tree base this makes them more susceptible to wind;
• compaction of soil around the base of trees would reduce the availability of oxygen to the roots;
• cutting the ends off tree roots impedes their ability to collect water;
• if grass is in competition with trees it will decrease the availability of water in the top 24 inches of soil, where the tree roots lie;
• roots that are more than two inches in diameter need to be cut by hand.

Mr. Ritchie asked that the drainage ditch be located outside the drip line of the existing trees. He also requested that an arborist be hired to watch the trees during construction of the drainage works and that appropriate compensation be provided if trees were damaged.

Mr. Ritchie said he was also concerned that the houses to be built in the subdivision would experience flooding in their front and back yards and would rely heavily on sump pumps, notwithstanding that the basements had to be built higher than Komoka Road.

In response to questions from Mr. Wright, Mr. Ritchie indicated:

• it was not his responsibility to hire a certified arborist, the developer should hire one;
• his experts did not view the site but were provided with a description of it;
• he agreed that neighbours could remove tree branches that overhung onto their property, he was not sure if they could also remove roots if that would cause damage to his trees;
• he was asking the Tribunal not to allow damage to the Ritchie property;
• he did not think the developer could alter the flow of water without permission;
• he had constructed a ditch with the consent of neighbours;
• he was not sure that water would not be backed up on the Ritchie property to the benefit of the subject property;
• the proposed drainage works would change the flow of water
• he agreed the subject property needed drainage, it was just a question of where the ditch would be located;
• the lowest point on the boundary between the Ritchie property and the subject property was on Lot 2;
• he understood all the owners of Lots 1-8 in the subdivision would be responsible for maintaining the swale and could not construct swimming pools or the like on the swale, and fencing could only be page wire with steel posts;
• as long as the trees were legally protected he did not mind if it was through the Report or through the Subdivision Agreement

Mr. Eluchok had no questions for this witness.

In response to questions from the Tribunal, Mr. Ritchie indicated:

• there were 60-70 trees in total, of which five were on the subject property;
• he thought most of the trees were 40-45 years old, but a linden tree, two walnut tress and some chestnut trees were younger;
• he planted the linden trees, the walnut trees had started growing since he owned the property, the rest of the trees were before his time;
• water flowing out of the railway culverts did not enter a municipal drain; the proposed drainage works would start some distance from the railway culverts.

Ms. Lenora Fournie told the Tribunal she was raised on the property north of the Ritchie property and her uncle was a former owner of the subject property. She testified that:

• the subject property was always a wet piece of land and her uncle only grew hay on it as tilling it would have led to erosion;
• there was more water flowing from upstream in recent years than there was in the past as the County was directing water from properties to the north of her property, through a culvert under Melrose Drive onto her land and eventually through the railway culverts and onto the subject property;
• the lands north of Melrose Drive were tilled whereas those south of Melrose Drive were not; brown water was an indication of erosion of the tilled lands;
• water that flowed in the Fall of 2006 went across Komoka Road and the force of it carried railway ties through the culverts;
• runoff from upstream lands had been increasing despite efforts made by her mother to stop the runoff by planting trees.

In response to a question from Mr. Wright, Ms. Fournie agreed that the small area of the subject property between Union Avenue and the Ritchie property was particularly wet.

In response to questions from the Tribunal, Ms. Fournie indicated:

• she and her mother did not own any land south of the Canadian Pacific Railway;
• a fair amount of silt comes through three outlets on Melrose Drive and it is carried under the railway;
• the back of her mother’s property was basically wetland;
• the railway ties were west of Komoka Road and it was logical that they came through the culvert.

Later in the hearing Mr. Ritchie said that he did not recall being invited to sign the petition at the site meeting. He said the Municipality was looking for permission to be on the Ritchie property. Mr. Ritchie also indicated there were 20-22 spruce trees on the property line.

Respondent’s Case

Mr. DeVos responded to concerns raised by Mr. Ritchie regarding the safety measures and the capacity of drain as follows:

• there were 3.6 ha south of the railway draining into the subject property;
• he independently determined the rate of flow from those lands to be 0.12 metres per second;
• it was previously established that the combined water flow through the two railway culverts was three cubic metres;
• he used 3 cubic metres in designing the drain for the 100 year storm event as the extra 0.12 metres per second would not make much difference at that level of water flow;
• he agreed the low point along the boundary of the Ritchie property and the subject property was 10-15 metres west of the low point surveyed by Eng Plus, the developer’s engineering firm;
• the actual low spot was 4-6 inches lower than the surveyed low spot; that amount of elevation difference would not change the water level in high rain storm events;
• water would pond on both sides of the property line in high rain storm events;
• the intent was to construct the swale close to the existing ground elevation;
• at most the edge of the swale would be 5-6 inches higher than the current elevations along the property line;
• ponding if a 100 year storm event occurs is not uncommon;
• he added a headwall to the storm water management design prepared by Eng Plus to address aspects of the watershed that could not be designed for;
• he added a requirement that the ground levels of houses had to be at least eight inches above the road level - that is a safety measure above and beyond 100 year storm requirements;
• the design of the drain was that for up to a once in two year storm event, water would drain through the 525 mm pipe, and with larger rain events, or if there were wet conditions upstream, water would first fill the 525 mm pipe then go into the swale;
• the design required that the full width of the swale would be accommodated under a noise abatement wall and the swale must be 0.45 metres deep below the wall;
• two posts in the middle of the swale were not a problem; they were similar to the page wire and steel posts that were to be allowed in the swale on the residential lots;
• in calculating how much water was coming through the railway culverts, he estimated the water build up would be a nine foot head for a 100 year storm;
• lands near Melrose Drive were steeper and less porous than lands adjacent to the Canadian Pacific Railway;
• there would be sediment build-up in the drainage works and this was why the Municipality wanted it incorporated as a municipal drain – this allowed for maintenance to be undertaken to remove silt to keep the drain operating according to specifications.

In response to questions from Mr. Wright, Mr. DeVos indicated:

• there would likely be no difference in the watershed before and after development because the whole area would be flooded in a 100 year storm event;
• there should be better removal of water from the Ritchie property after the drainage works is constructed due to improvements in the inlet upstream of Union Avenue and the two road culverts.

Mr. Elochuk asked if the drainage proposal was technically sound and Mr. DeVos replied that it was.

In response to questions by Mr. Ritchie, Mr. DeVos indicated:

• the Ritchie property side of the swale would be no more than six inches lower in spots than the subject property side of the swale;
• there should be an opening left under the boundary fence at the lowest area to let water exit the Ritchie property into the swale during rain events that are smaller than the 100 year storm event;
• in the early stages of design he had discussed constructing a trapezoidal ditch that would be deeper than the proposed swale, rather than a combined drainage pipe and swale design;
• he thought there would be problems with the ditch design as machinery would need to drive beside it for maintenance and extra land would have to be set aside for this purpose, whereas with the swale design machinery can be taken right into the swale;
• with the ditch design the physical disturbance on the subject property would be smaller but the easement would be larger;
• the plan was to excavate right up to the fence line between the Ritchie property and the subject property – the swale on the Ritchie property would have to be tapered to allow for a smooth transition to the new swale;
• the swale would need to cross the fence line and reach 6-10 feet into the Ritchie property;
• if the municipal drain had been extended upstream he could have required sediment basins in upstream ditches;
• since the lands immediately upstream from the Canadian Pacific Railway were grassed, they would help remove some of the sediment coming down the drain;
• cleaning out of sediment by the Municipality was usually undertaken at the request of a local landowner;
• the catchbasins would catch sediment first but if it built up in the swale landowners would want it removed;

In response to question from the Tribunal, Mr. DeVos indicated:

• there was an on site meeting and upstream and downstream landowners could have signed the petition;
• some of the engineering work for the subdivision had already been done before the on site meeting and the Municipality had been involved in developing the water drainage plan;
• his recommendation that the railway culverts not be made any larger could not be enforced – he suggested residents and the Municipality monitor the situation and negotiate with the Canadian Pacific Railway to stop it from increasing the flow;
• the Canadian Pacific Railway was notified of the site meeting but did not respond;
• culverts through Komoka Road and Union Road were incorporated as part of the drainage system but there was no control over the elevations of the road;
• the ex-filtration system would be wrapped in geotextile and covered with topsoil and grass to prevent silt from entering the system;
• the swale was 0.45 - 0.8 metres deep and it would be affected by silt before any reached the ex-filtration system;
• the ex-filtration trench will improve water absorption by the soil.
• the sound barrier fence was not part of the drainage system but there were controls on the waterway that flowed underneath it;
• he had been advised by a solicitor that he did not have to provide allowances for lost trees on the Ritchie property;
• tree roots would have to be cut or adjusted;
• the drainage works proposed was technically sound;
• the last 100 year storm event in northeastern Middlesex County was in 2000, but that storm did not reach Komoka;
• the frequency of storms was increasing according to experts;
• in a 100 year storm seven inches of rainfall in less than 24 hours could be expected;
• Plan 1 in the Report was his drawing, the rest of the drawings in the Report were prepared by Eng Plus and incorporated in his Report so they will be enforceable under the Act;
• The swale was designed by the developer’s engineer and reviewed by the Municipality’s engineer and then he was appointed under the Act – the Council of the Municipality understood how this came about.

Mr. Thomas Wey told the Tribunal his education was in general arts and landscape design and he had been admitted to the Association for Landscape Architects. He said he had worked with conservation authorities and parks departments and had been with Eng Plus since 1999. He said he would need additional training to become an arborist but that there was an overlap of expertise between the two disciplines. He was qualified as an expert witness in the field of landscape architecture.

Mr. Wey told testified that:

• he had visited the site of the proposed drainage works and was familiar with the work that was proposed;
• there was a hedgerow of spruce trees stretching from Komoka Road easterly which were about one-third along in their life expectancy;
• from the linden tree up to Komoka Road the trees were all in good health;
• further along the property there were a few trees on the subject property and some birch and a large willow on the Ritchie property;
• further back from the road there were quite large elms on the fence line;
• the elms were much farther along in their life expectancy and some were waning as they had branches broken at their crowns;
• spruce trees have a shallower root system than the other trees and these roots would be cut close to the base of the trees;
• it was not a good situation to cut half of a root system away from a tree and there was no doubt the spruce trees would be the most affected by the proposed drainage works – the other trees had deeper root systems and would not be affected to the same extent;
• any plant is put at risk if its root system is damaged;
• he recommended that roots be pruned within two metres of the trees at least two years before further excavation, and a plastic or plywood barrier be installed to force new roots to grow back towards the trunk; then once the roots have grown back the swale can be cut and the trees moved and a new root system could be established;
• following his recommendation would stunt the trees but they should eventually recover;

Mr. Eluchok had no questions of this witness.

In response to questions from Mr. Ritchie, Mr. Wey indicated:

• there would be significant stress placed on the trees;
• deterioration of trees can be immediate or can be delayed but he would expect to see something within three years;
• spruce trees have a more spreading root system than elm trees, which have a tap root with some roots spreading away from it;
• he did not take an inventory of the trees;
• he first saw the trees in 2006;
• poplar trees grow very quickly and can re-establish themselves very quickly;
• the elms were past their prime but he could not estimate their life expectancy;
• no trees had to be cut down for the drainage works but some should be cut down before they fall down for safety reasons;
• he suggested disturbing the roots on two occasions as a mitigation method;
• there could be a temporary decline in growth when the roots are tampered with;
• trees could be more susceptible to wind if roots were cut but in this project the wind was from the northwest and the roots would be cut on the south side of the trees and that worked in favour of the trees;
• proper root pruning would mitigate the risk of disease – it is best if there is a clean cut;
• trees could not grow roots through a plywood barrier and would compensate by growing more roots on the tree side of the property boundary;
• the trees could be killed if the roots were cut straight down from the trunks;
• he proposed the channel be cut a bit deeper than shown in the drawings so that when tree roots are laid back down again the depth of swale will still be to specifications;
• no roots were to be cut on the Ritchie side of the trees;
• larger roots could crack when being moved and would then have to be pruned;
• he did not see water in the swale as a problem for the trees because normal flows would go through the drainage pipe;
• the roots will still be in the upper layer of soil;
• depending on weather and root damage there would be a possibility of damage to the trees regardless if what mitigation actions were taken;
• if the swale were moved there would be less damage to the roots;

In response to questions from the Tribunal, Mr. Wey said:

• there were different ways to prune tree roots, he had used a spade when he worked in a tree nursery;
• pruning was inexpensive but trying to layer the roots was expensive and he only recommended that for the spruce trees;
• he estimated it would cost at least $5,000 for the layering of the row of 12-15 spruce trees.

In response to a question from Mr. Wright on re-direct, Mr. Wey said there would need to be a minor adjustment in the location of the drain to accommodate the mediation measures he recommended for the spruce trees. He said the drain would have to be moved as much as one metre from the property line.

Intervener’s Case

Mr. Eluchok called Mr. Matt Polzoni, a principal of the development company. Mr. Polzoni testified that:

• he had been involved with the subject property for three years;
• he had approached the Municipality looking for land to develop, the subject property was slated for development in the official plan and he bought it in 2005;
• he liked the site because there was already a sewer under the road, fire hydrants, no tree preservation program and not much flooding;
• Phase 1 of his subdivision was ready to go; apart from the municipal drain issue, Phase 2 was also ready;
• the draft plan had been approved and only needed to be registered and he had a subdivision agreement;
• he hired Eng Plus to deal with the drainage issue;
• water flows through a wooded area on the Ritchie property to the subject property and he wanted this fixed;
• he thought $5,000 would not be enough to cover the cost of the mitigating measures proposed by Mr. Wey;
• the land in the subject property had been ploughed at least one foot deep for an archeological study and not many roots were encountered;
• the land right underneath the drip line was not ploughed;
• for residential development typically drains should be at the rear of the lots close to the property line, not in the middle of the yards;
• the drain would be deep and the homes would be elevated so he did not think homes would be flooded;
• he loved the trees and would spend money to try to save them but did not want to save the trees at the expense of houses;

In response to questions from Mr. Wright, Mr. Polzoni indicated:

• Phase 2 was the eight lots closest to the Ritchie property;
• there was no subdivision agreement finalized on Phase 2 to date;
• he would prefer to work on trust but if necessary he would agree to include mitigating measures in the subdivision agreement;
• if the backyard of a house dropped down rapidly then lowered into a swale and rose at the other end this would look foolish an if there ever were a big rain storm water would run in two directions to the swale;
• purchasers would prefer a swale at the back of the properties.

In response to questions from Mr. Ritchie, Mr. Polzoni indicated:

• he did not know anything about a two metre high berm proposed for the rear boundaries of Lots 1-8;
• an excavator cleaned up brush and debris near the property line in the summer of 2006;
• they ploughed as close as they could to the drip edge but did not get close to the trees;
• it was not necessary to put a 25 foot wide swale in the middle of yards – there had to be a balance between the need s of trees and the needs of houses;
• he was not sure why a 3:1 slope was selected;
• putting the drain along the property line would help drain the Ritchie property as well as the subject property.

In response to questions from the Tribunal, Mr. Polzoni indicated:

• he had met with Mr. and Mrs. Ritchie several times to see if he could address their concerns;
• the trees were too big to move but he could replace them;
• a 30 foot tree could be replaced with two 15 foot trees;
• Lot 9 was an unopened road allowance that goes to Ritchie property; it did not belong to 2065852 Ontario Limited;
• He was aware the subject property needed to be drained when he purchased it but did not know he would have to initiate a petition for drainage.

On redirect by Mr. Elochuk, Mr. Polzoni said:

• a drain down the middle of a yard drastically reduces property values because people want gardens and garden sheds and these cannot be put in a swale;
• on a 185 metre lot, reducing the lot size by 10 metres would reduce the value by $10,000 per lot;
• from a financial and aesthetic standpoint the design in the Report had the drain in the best location.

Summations

Mr. Ritchie told the Tribunal that Mr. DeVos had convinced him and Mrs. Ritchie that adequate safety measures for heavy rainfall events were incorporated in the design of the drainage works. He said they still had some concerns given that the run-off through the railway culverts could not be controlled but they now understood that silting could be dug out in response to residents concerns.

Mr. Ritchie argued that it was desirable not to have significant ponding on backyards and front yards of residential lots and submitted this could occur if the design was not altered.

With regard to the proposal to undertake work on the swale on the Ritchie property, Mr. Ritchie asked that any work that was proposed be written up in the Report.

Mr. Ritchie said he understood from Mr. Wey’s testimony that tree roots could be avoided but said that he did not think it likely that the two stage mitigation approach he suggested would work. Mr. Ritchie said he preferred that the drainage works be built beyond the drip line of the trees but that if it had to be under the drip line of the elm trees he would be agreeable to that. He said he was more concerned that the spruce, linden and walnut trees be preserved and asked that the Tribunal order a change in the route of the drain to turn the drain away from these trees to protect them. He submitted that there was significant evidence that cutting roots can cause serious damage to the tree. He said the appellants were concerned about pathogens and thought it best to maintain the original grade around the trees. He asked that an arborist be hired to mitigate tree damage during construction of the drain. He also asked that appropriate allowances be provided for the loss of trees should that occur.

Mr. Wright submitted that the uncontroverted evidence was that the design of the drainage works was technically correct and that drainage of the Ritchie property would be improved to some extent by the new drainage works.

Mr. Wright said the issue was what to do with the trees. He argued that there was no barrier to a landowner cutting tree roots on the landowner’s own property so there should be no allowances provided to damage to trees on an adjacent property. He also argued that trees were the subject of land use planning and subdivision control and should not be dealt with by the Tribunal under the Act.

Mr. Wright said that locating the drain in the middle of the yards would compromise swimming pools, privacy fencing and zone set backs.

Mr. Wright submitted that the Tribunal had two options to deal with the trees – it could recommend that the Municipality deal with the mitigation of tree damage in the subdivision agreement, or it could refer the Report back to the engineer to entrench the mitigation proposals and make appropriate adjustments to the design to save the spruce and linden trees at Lots 1, 2 and 3. He submitted that the Tribunal would be starting down a slippery slope if it put tree saving measures in a drainage project. He asked the Tribunal to dismiss the appeal and allow the tree issue to be dealt with in the subdivision agreement.

Mr. Elochuk told the Tribunal the engineer’s testimony was that the drainage works proposed was technically sound and he submitted that should be the end of the issue. He concurred with Mr. Wright’s position regarding the cutting of tree roots and provided case law to support that legal view.

Mr. Elochuk said his client recognized the appellants’ concerns and had tried to meet them but submitted that Mr. and Mrs. Ritchie were looking for rights that they do not have. He said he concurred with Mr. Wright’s proposal. He argued that sending the Report back to the engineer for revisions would be great expense to his client.

The Findings

1. The Tribunal did not hear any evidence in this proceeding that substantiated the allegations of design flaws in the proposed drain. The location of the new proposed drain will benefit both landowners north and south of the lot line. Having the exfiltration system to the south of the swale ensures the most efficient operation of the drain. While Mr. Ritchie raised concerns about potential flooding he provided no substantive evidence to substantiate these allegations. Further, the Tribunal heard that the drain was designed to accommodate a 100 year storm event and it heard nothing from the Appellants to indicate this was not an appropriate standard.

2. The Tribunal is concerned that there is no control mechanism on the Canadian Pacific Railway, or the elevations of Komoka Road and Union Road. The Tribunal recognizes that there was no petition to go upstream to the railway. The Tribunal heard that the design of the subdivision is such that elevations be eight inches above the elevation of Komoka Road. The Tribunal recognizes that this could be a long term problem should the road elevation be raised in the future. The Tribunal will order that this be remedied in the Report.

3. The Appellants failed to discharge their burden with respect to the Issue. Much of the evidence presented concerned the future health of some trees, mainly of trees on the Appellants' property and some elsewhere; and the concerns by the Appellants as to what would transpire in the area involved as a result of the construction of the Komoka Drainage Works.

4. The irrefutable evidence submitted, however, indicated that the trees involved would in fact be exposed to some trauma or jeopardy or both and may die, but so far as the actual drainage is concerned the entire area would be better off with the Komoka Drain Works than it is currently without it.

5. The Tribunal notes that the developer agreed that some accommodation be made for damages to the trees in the Sub-division Agreement. The Tribunal urges the Municipality to use its best efforts in the preservation of the trees involved and make the appropriate compensation for damages with respect to the trees should they transpire in its negotiation of the Sub-division Agreement for Phase Two.

6. With regard to the Appellants’ concerns that the engineer suggested work would be undertaken on their property, the Tribunal notes that bullet point #3 in recommendations of the engineer (page 4 of Report) provides that access to the rear yard swale shall be from Komoka Road through Lot 1 and along the drain up to and including Lot 7. In respect to that recommendation, the Tribunal notes that there is to be no access through the Ritchie property and no construction work on the Ritchie property. The Ritchie property is not part of the work allowed under the Act. It is an upstream property with private drainage and the owners did not petition for drainage under the Act.

ORDER OF THE TRIBUNAL

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

1. The appeal of the Appellants be hereby dismissed except as reflected in point 2 below.

2. Prior to final passing of the provisional by-law, the engineer is to modify the Report as follows:

   (i) include elevation controls on Komoka Road and Union Road to maintain the existing elevations;

   (ii) revise Drawing 1 of 1 on the Drain and Watershed Plan to clarify that Lot 9 is an unopened road allowance owned by the Township of Middlesex Centre;

   (iii) clarify in the Maintenance Section of the Report that for maintenance purposes when silt is removed from the swale from station 0+160 to station 0+280 it is to be removed, trucked away and disposed of in a legal manner.

3. There shall be no order as to costs, and all parties shall be responsible for their own costs of this appeal.

Dated at Guelph, Ontario this 6th day of March, 2007.