McArthur Drain (Re), 2007 ONAFRAAT 8

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: McArthur Drain Municipality of Dutton/Dunwich McArthur Drain (RE) 2007 ONAFRAAT 08

STATUTE: Drainage Act

HEARING: February 15, 2007

DATE OF DECISION: March 8, 2007

2007-08

NEUTRAL CITATION: 2007 ONAFRAAT 08

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, C.D.17 AS AMENDED.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Michael Lenehan and Cheryl Lenehan, Dutton, Ontario under Section 54 of the Drainage Act from a decision of the Court of Revision and under Subsections 48(1)(b) and 48(1)(c) of the Drainage Act from the engineer’s report on the Daniel McArthur Drain - East in the Municipality of Dutton/Dunwich.

Before: Kirk Walstedt, Vice Chair; Ron Gelderland, Member; Graeme Hedley, Member.

Appearances: Cheryl Lenehan, appellant and on behalf of her husband co-appellant, Michael Lenehan Wybe Cnossen, P. Eng. on behalf of the Municipality of Dutton/Dunwich, respondent Phil Smith, assessed landowner Bert Van Raay, on behalf of Wilhemina Van Raay, assessed landowner Ralph Beharrell, Drainage Superintendent, Municipality of Dutton/Dunwich

DECISION OF THE TRIBUNAL

This appeal was heard in Dutton, Ontario on February 15, 2007. Cheryl and Michael Lenehan appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 54, 48(1)(b) and 48(1)(c) of the Drainage Act (the Act) from the decision of the Court of Revision dated October 4, 2006 and the Engineer’s Report by Wybe Cnossen Engineering Ltd. dated July 18, 2006 (the Report) respectively.

Mr. Ken Loveland, Clerk Administrator of the Municipality of Dutton/Dunwich (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).

Section 48 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).

The Background

Mr. Wybe Cnossen, P. Eng. gave the Tribunal an overview of the drainage in the watershed for the Daniel McArthur Drain - East.

The proposed works were designed at the request of council under Section 78 of the Act. The land owner and road authority in North half of Concession 6 expressed a need for drainage improvements. There are three drainage works within the watershed where the Daniel McArthur Drain – East (2007) is to be located. The “old” Daniel McArther Drain, a closed tile drain, was constructed in 1953 under a report prepared by William Colby, P. Eng. originates at the lot line for Lots 15 and 16, Concession 6 (the fence line at the Lenehan and Smith properties) continuing in a southwesterly direction to outlet into a branch of the Dugald Blue Drain located in the southeastern portion of Lot 15, Concession 6.

In 1970 the Daniel McArthur Drain was constructed at the point where the “old” Daniel McArthur Drain (1953) outlet into the Dugald Blue Drain at the north, south dividing line of Lot 15, Concession 6. The 1970 Daniel McArthur Drain continued the “old” Daniel McArthur Drain southward in Lot 15 Concession 6 to an outlet south of Silver Clay Line into the McKillop Drain.

The Dugald Blue Drain starts at the midpoint of Lot 15, Concession 6 where the Lot 15 is divided into the north and south halves. It was constructed in 1908 under a report by Charles A. Bell, P. Eng. The Dugald Blue Drain consists of closed tile where it is located in the south half of Lot 15, Concession 6. It becomes an open ditch drain where it continues south of Silver Clay Line (the boundary for Concession 6 and 7) to its outlet in the McKillop Drain.

The existing works within the watershed for the proposed Daniel McArthur Drain – East (2007) are still functioning. There is evidence that additional drainage was constructed at some time between 1908 and 1970, however, there is no record of a report on file.

The Daniel McArthur Drain – East (2007) is to be constructed parallel to the “old” Daniel McArthur Drain (1953) and the Daniel McArthur Drain 1970. The proposed works is to be constructed beginning at Thomson Line and continuing southwest across the Lenehan property in the north half of Lot 15, Concession 6. It will twin the existing works beginning at the origin of the “old” Daniel McArthur Drain (1953).

The proposed works is designed to be routed as much as is practically possible away from wooded areas. An alternate route was explored however it was found to be less cost effective than the proposal under the report.

The Issues

The issues before the Tribunal were:

1. Are the assessments under the July 18, 2006 Report by Wybe Cnossen, fair and reasonable?

2. Should the proposed routing of the drainage works be modified?

3. Are the allowances provided under the July 18, 2006 Report by Wybe Cnossen adequate?

The Evidence

Cheryl Lenehan

Ms. Cheryl Lenehan told the Tribunal that the Lenehan property was surrounded by farms but was assessed at the residential tax rate because she and her husband did not earn $7,000 per year in gross farm income. She said that her neighbours were all assessed as farmland and would therefore be eligible for grants to assist in the cost of the proposed drainage works but that the Lenehan property was not eligible for a grant. Ms. Lenahan submitted that it was unfair that her property be assessed the largest portion of the cost of the drainage works as they were the only affected landowners not farming and therefore ineligible for the grant. She suggested a larger portion be assessed to the farmers affected by the proposed drain. Ms. Lenehan said she had to pay $4,800 for a Township water line that was installed three years before.

Ms. Lenahan said she and her husband had moved to the country nine years before and used the property to keep horses. She said water entered the Lenehan property from the east over a ridge then travels to the south and west. She said there was ponding in her pasture.

Ms. Lenehan told the Tribunal she objected to the design of the drainage works as she had preferred that it be routed along the front of the Lenehan property and along the Township Road to the east, and that it have catchbasins. She said the engineer and employees of the township gave her no guarantee that the water problem would be solved. She explained that with the proposed design the drain would go through a horse paddock and she would have to incur an expense to board the horses while it was under construction.

Ms. Lenehan stated that her property was being provided an allowance of $1,300 for damage to the woodlot but that this was not enough compensation. She said the trees are standing timber.

In response to questions from Mr. Cnossen, Ms. Lenehan indicated:

• she was given material on a forest management program but it was not made clear to her that she might be eligible for a managed forest property tax rate;
• Mr. Andy Kester, an employee of the Ontario Ministry of Agriculture, Food and Rural Affairs, told her she could not be eligible for the agricultural rate unless she could demonstrate a minimum gross farm income of $7,000;
• the appellants wanted a distinct culvert with a catchbasin along and to the south end of the 1953 drain – the existing culvert in that location is not kept in good repair;
• when they first moved to their property they spoke with staff of the Municipality about what could be done to alleviate water on their property but were never in touch with a contractor.

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

• the Lenehan property was 53 acres – 7 acres with the house and the rest was paddocks and barn;
• the house is close to the Smith property lot line and the barn was closer to the road – the buildings are at the top end of the property;
• the proposed drain would be east of the barn, run through the middle of the paddocks, then through the woodlot to the south of the house;
• the paddocks are flooded from water coming from the ridge;
• there would be some benefit to the drain at certain times of the year but she and her husband did not see any long term benefit;
• the appellants had no income from the horses.

Wybe Cnossen Testimony

Mr. Wybe Cnossen told the Tribunal that part of the drainage problem in the area was finding an alternate outlet for road water. He said he had observed the water flow in a heavy rain and seen water ponding behind the house on the Miller/Roodzant property, flowing in a wide stream to the wooded area on the Lenehan property and completely flooding the woods. He said the Miller/Roodzant property was using the Lenehan woods as an outlet.

Mr. Cnossen said the drainage superintendent Ralph Beharrell had surveyed the road at the north end of Concession 6 and found a 1.8 metre elevation difference between the Smith property and the Lenehan property. He said that a catchbasin which was not part of a municipal drain had been installed under the Concession Road about 150 metres west of the Lenehan property but it was not in good condition. He explained that Mr. Smith wanted to tile his land to keep the Lenehan water off it.

Mr. Cnossen said he considered routing the drain straight north to the Brown Way Drain but the nearest tile to connect to was 400 meters away and this route would overload the tile. He said the proposed route through the woods was 355 metres and the route along Thomson Line to the Smith property was 450 metres. He said to take that route he would need to lower all the existing tile except the last 200 metres by 6 inches to obtain the proper grade and while this was not cost prohibitive it was not the most economical route. He said either way the Lenehan property was going to have a significant outlet assessment. Mr. Cnossen said the drain could be re-routed to the east or west so it did not go through the centre of the horse paddocks but that there were fewer trees along the proposed route.

Mr. Phil Smith asked how the proposed drain would stop water from the Lenehan property from ponding on his property as he said a catchbasin was not accommodating all the water. Mr. Cnossen said the Report called for a berm to be installed to funnel water to the drain.

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

• the proposed drain called for a hickenbottom in each of three deep ponds on the Lenehan property and these should get the water away before it floods onto the Smith property;
• with the L-shaped route along the road, a large berm would be constructed along the Lenehan property;
• the 1953 drain was only taking one-quarter of the water that the proposed new drain would accommodate;
• the Report called for 8-inch diameter non-perforated tile on the Lenehan property to prevent tree roots entering the tile;
• with respect to assessments, the benefit to the Lenehan property was that it would get a header tile that was 235 metres long and he based the benefit assessment on the cost of installing a header tile;
• the benefit assessment on the Smith property was based only on the pipe and did not include the engineering cost;
• the outlet assessment was based on the contributing hectares of land and the length of the drain – the Van Raay property used only 382 metres of drain, the Smith property used 1,044 metres, the Lenehan property used 1,513 metres and the road used 1,681 metres;
• cut-off assessment was deducted and shared on a pro rata basis after multiplying the length of drain used by the hectares of land contributing water;
• the Municipality’s road authority was assessed a special benefit to pay for catch basins and road crossings.

In response to questions from Ms. Lenehan, Mr. Cnossen indicated:

• the Cameron Graham Drain was installed in 1964 and it drained between three-eighths and one half inch per 24 hours; it was updated in the 1980s and was a pretty good drain;
• the west boundary of the Cameron Graham Drain watershed is the east boundary of the Daniel MacArthur Drain watershed;
• all drains have high and low spots but it was unlikely that water flows north from the Cameron Graham Drain onto the Lenehan property;
• there were five or six drains on the Van Raay property but only one drain in the south half of the concession and it was not draining effectively;
• the Report proposed to increase the capacity of the 1953 drain by four times;
• water ponding on the Smith property comes from the road, the Miller/Roodzant property and the Lenehan property;
• trees are dying because there is so much water.

In response to a question by Ralph Beharrell, Drainage Superintendent, Mr. Cnossen said routing the drain around the Lenehan property and keeping water out of their woods would result in a benefit assessment to the Lenehan property.

Mr. Van Raay said the 1970 drain was working fine on his property and while he sympathized with the other landowners he did not want his assessment increased.

Summations

In closing, Ms. Lenehan reiterated that the appellants had no income from their property and would not benefit from the proposed drainage works. She said the project cost could be divided between the other four landowners. Alternatively, she suggested that the area be left alone until nature and time took care of the water.

In closing, Mr. Cnossen said when designing the drain he decided to follow the route of the old drain and that he looked at alternatives to take the road water another direction but found that it would be impractical as the water would have to be carried an additional 125 metres. He said the proposed design would have catchbasins all along it. He said the Smith property was assessed a significant amount for benefit and outlet.

Mr. Cnossen said that regardless of the route chosen the Lenehan property would still be assessed for outlet as the drain would be taking water away from that property. He said he had provided Ms. Lenehan with information on the managed forest program as the property might be eligible for reduced taxes under that program.

Ms. Lenehan replied that Mr. Kester told her that to get the grants for drainage she would need the land assessed as agricultural and to qualify she would have to make $7,000 in gross farm income.

The Findings

Based on the engineer’s explanation of how he arrived at the assessments for outlet and benefit, the Tribunal finds that they are fair and just. Although Ms. Lenehan stated that the drain was of no benefit to her and that it created a financial hardship, she did not explain or give evidence that the drain was not required. The bulk of the assessment on the Lenehan property was for outlet and this assessment would not change regardless of the route chosen for the drain – it relates to the cost of moving water from the property to an outlet and the water from the Lenehan property has to travel a significant distance to the outlet regardless of the route chosen. The Tribunal finds there will be some benefit to the Lenehan property as ponding will be alleviated by the new drain.

The Tribunal agrees that the route presented by Ms. Lenehan was technically feasible but agrees with the engineer that the preferred route is the shorter, less costly route. The route preferred by the appellants is longer and would necessitate deepening the drain along most of its length.

With regard to the allowances provided, Ms. Lenehan indicated that she felt $1,340 for woodlot damage was insufficient but did not provide any evidence as to what the damage was worth. The Tribunal notes that routing the drain through the horse pasture will minimize damage to the woodlot. The Tribunal notes that Ms. Lenehan could remove standing timber in advance of drainage construction.

The Tribunal does not accept the proposition that farmland assessed as agricultural should pay a higher portion of the drainage benefit cost than farmland assessed as residential.

ORDER OF THE TRIBUNAL

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

1. The appeals by Cheryl Lenehan and Michael Lenehan under Sections 48 and 54 of the Act are dismissed.

2. 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 Act.

Dated at Essex, Ontario this 8th day of March, 2007.