Dent Drain (Re), 2008 ONAFRAAT 21

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:

Dent Drain

Haldimand Country

Dent Drain (RE) 2008 ONAFRAAT 21

STATUTE:

Drainage Act

HEARING:

June 5, 2008

DATE OF DECISION:

July 4, 2008

2008-21

NEUTRAL CITATION:

2008 ONAFRAAT 21

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 Tom Givens, Givens Farms Ltd. in Lowbanks, Ontario, under Subsection 48(1) of the Drainage Act from the engineer’s report on the Dent Drain in Haldimand County, Cayuga, Ontario.

Before:

Jack Young, Vice Chair; Marthanne Robson, Vice Chair; Ken Benson, Member

Appearances:

John Spriet, P.Eng. on behalf of Haldimand County, the respondent

Tom Givens, assessed landowner, appellant

DECISION OF THE TRIBUNAL

Background

The report on the Dent Drain (the “Drain”) in Haldimand County (the “County”) was initiated by requests for drainage by the owners of Lots 17 and 18, Concession South of Forks Road. The County appointed Spriet Associates to prepare a report pursuant to Section 78 of the Drainage Act, R.S.O. 1990, (the “Act”).

The report entitled “Dent Drain”, dated February 1, 2008 (the “Report”) was signed by J. R. Spriet, P.Eng. of Spriet Associates London Limited (the “Engineer”).

Mr. Tom Givens, of Givens Farms Ltd., appealed to the Tribunal under Subsection 48(1)¹ of the Act, from the Engineer’s Report. The reasons for Mr. Givens’s appeal were that:

1. the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof; and

2. the allowances provided by the engineer are excessive.

Mr. Givens’s appeal was heard on Thursday, June 5, 2008, in Cayuga, Ontario. Ms. Janis Lankester, Clerk for the County performed the duties of the Clerk of the Tribunal.

Prior to the Hearing, the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to the appeal. Ms. Lankester filed an Affidavit of Service at the start of the Hearing, as evidence that the Notice of the Hearing was served on all parties.

The Dent Drain was last constructed over its full length under a report prepared by Blake Erwin, P.Eng., an Ontario Land Surveyor (“OLS”), dated July 23, 1964. John Dodd, OLS, prepared a report dated September 20, 1982 which provided for allowances for right of way under Section 29 of the Act as well as for the construction of a number of farm culverts.

The work outlined in the Report is intended to provide improved drainage to approximately 674 hectares of land, by: 1) an open ditch cleanout of approximately 3839 lineal metres within the Dent Drain, starting at Inman Road and ending at Crown Road; 2) installation of a new road culvert under Bird Road; 3) brushing and clearing of the ditch bank on one side of the ditch, allowing for excavation; and 4) cleaning of existing farm crossing pipes, to match new ditch grades.

The estimated cost of the project is $105,600.

The Issues

The issues before the Tribunal were:

1. Are the benefits to be derived from the drainage project commensurate with the estimated costs of the Drain, in accordance with section 48(1)(a) of the Act?
2. Are the amounts for compensation or allowances, as noted in the Report, excessive?
3. Should the Tribunal approve of the request of the Engineer, and order changes on page 3 of the Report, and to Exhibit 3, to state that compensation or allowances for increased buffer strips take place on the “working side” of the Drain?

During the Hearing, discussion took place of whether or not buffers should be included on both sides. Since it was not an issue raised by the appellant or the respondent, this matter will not be dealt with by the Tribunal.

The Evidence

Mr. Givens told the Tribunal that he and his brother have been farming for roughly 35 years and, over that time, have been involved in more than a dozen municipal drains within the County, and a nearby township. He added that they have owned the assessed property since 1986, and have drained it by tile since 1988.

Mr. Givens stated that his issue with the Drain relates to the costs involved, and that he feels that allowances are a significant part of these costs. He further stated that the 1954 report includes compensation for crop loss, and that the 1982 report includes compensation for right of way and for crop loss. He added that allowances account for roughly half of the costs of construction for the Drain and, although he doesn’t want any allowances, he questions whether the costs involved are fair to the landowners who aren’t receiving any allowances. Mr. Givens submitted to the Tribunal an “Agreement of Purchase and Sale” dated May 8, 2007 , in questioning the fairness of the values used for allowances for right of way.

Mr. Givens submitted a Plan of Survey dated December 18, 1987, prepared by R. Desmond Rasch, OLS, which showed the Dent Drain located entirely on the Givens’s property where it crosses lots 17 and 18.

The Engineer confirmed that the Plan of Survey indicates the location of the top edge of the bank on the south side of the ditch is the south limit of the Givens property. He added that no work will be taking place on Mr. Givens’s property.

The Engineer stated that allowances were provided for two reasons: for damages to land and crops, and for right of way. The Engineer told the Tribunal that in the report prepared by John Dodd, OLS, dated February 19, 1982, allowances for access were included. He added that Conservation Authorities in Ontario and the Department of Fisheries and Oceans of Canada (DFO) have increasingly expressed interest in allowing for larger buffers on drains. With this in mind, he stated that the Report provides for an increased buffer on the working side of the Drain to ensure slope stability, leading to a significant total for allowances to be paid as part of the costs of the Drain.

The Engineer made reference to pages 4 and 7 in the Report, and to a submission dated July 2003, entitled “Right-of-Way”. He stated that for allowances for right of way, land owners were compensated at a rate of $8,645 per hectare, and that allowances for damages were compensated on a sliding scale over four years, at a rate of $2,480 per hectare for regular ditch cleanout to account for crop loss, and at a rate of $1,867 per hectare for ditch cleanout through bush.

The Engineer told the Tribunal that the value used per hectare for allowances for right of way could be lower than what it is in the Report. He added that his firm works in many areas of the province and they tend to use consistent values for given land uses. In response to Mr. Givens’ concerns about how the allowances outlined in the Report will affect his assessment, the Engineer stated that Mr. Givens’s gross assessment would be $235 lower than it currently is.

With respect to allowances for damages, the Engineer stated that different values were used based on the use of the land for which damages were being paid. He added that when a drainage report becomes a bylaw, the land compensated for right of way become part of the drain, which is no longer to be used by the farmer for cultivation. In response to a question from Mr. Givens, the Engineer stated that if the Tribunal decides to lower the value used for allowances for loss of land, this value would need to be used for allowances paid to all land owners identified in “Schedule A”, on page 7 of the Report. In response to a question from the Tribunal, the Engineer stated that average values are used when calculating allowances.

The Engineer told the Tribunal that once a report becomes a bylaw, the land identified to be used for buffers is still the property of the land owner, although it is recommended to be used as a buffer, and not to be cultivated.

The Engineer stated that page 3 of the Report contains an error, where reference is made to increased buffers taking place “on both sides” and “on each side” of the Drain, respectively. He added that both references are intended to state that increased buffer widths only apply on the “working side” of the Drain, as stated in point 10 of the “General Notes” section in drawing number 2 of 2, in the Report.

Mr. Givens told the Tribunal that he doesn’t feel that adding significant costs to the Drain, to account for allowances for an increased buffer to one side, is fair to assessed land owners like him. He stated that, in his opinion, the drain should be cleaned from both sides, which will help avoid the development of improper drainage on the working side.

The Engineer confirmed that it was his practice to provide a right of way allowance for a buffer strip only on the working side of the drain. Although requested by the Tribunal, no definitive evidence was presented to illustrate that the Department of Fisheries and Oceans, the Conservation Authority, or the Design and Construction Guidelines, recommended a buffer strip on one side only rather than both sides of the drain.

The Findings

The Tribunal finds that although Mr. Givens challenged the principle of allowances, Section 29 of the Act requires the engineer to provide allowances to “the owner of any land that it is necessary to use,

(a) for the construction or improvement of a drainage works;

(b) for the disposal of material removed from drainage works;”

Therefore, the Tribunal is bound by the principle of the Act.

The Tribunal has considered the evidence presented by the Engineer and Mr. Givens with respect to the value of the allowances in the Report and finds that the one property value used in Mr. Givens argument is not sufficient evidence to adjust all of the allowances in the Report. The Tribunal will therefore accept the allowances in the Report. Even if the Tribunal were to accept Mr. Givens’s recommendation with respect to an appropriate land value for the calculation of allowances, it would not have a significant impact on decreasing the overall costs of the Drain.

The item with respect to the location of the buffer strip was not under appeal so the Tribunal will not make an order in this regard.

Other than the subject of allowances, no evidence was presented with respect to the benefits to be derived from the drainage works not being commensurate with the estimated cost thereof. The Tribunal will therefore not make an order with respect to this issue.

The Tribunal will also order the request by the Engineer to correct page 3 of the Report, in bullet number 5 of the section “Environmental Considerations and Mitigation Measures”, to indicate that the buffer strip applied to only one side of the Drain. The Engineer requested that this item be changed to correspond with point 10 in the “General Notes” on drawing number 2, in the Report.

ORDER OF THE TRIBUNAL

After consideration of the evidence field and the submission made the Tribunal orders:

1. The appeal by Mr. Tom Givens is hereby dismissed.

2. The fifth bullet under “Environmental Considerations and Mitigation Measures”, on page 3 of the Report is to be revised as follows:

“a 3 meter wide buffer strip of existing vegetation between the top of the bank and any cultivated lands on one side is recommended as part of the drain” (emphasis added)

3. The non-administrative costs of the Town for these appeals shall form part of the drainage works and it is ordered there be no other order of costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Drainage Act.

Dated at: Gravenhurst, Ontario, this 4th day of July, 2008.

¹ 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).