Bearss Drain (RE), 2008 ONAFRAAT 3

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email:appeals.tribunal.omafra@ontario.ca

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Bearss Drain

City of Port Colborne

Bearss Drain (RE) 2008 ONAFRAAT 03

STATUTE:

Drainage Act

HEARING:

January 8, 2008

DATE OF DECISION:

January 23, 2008

2008-03

NEUTRAL CITATION:

2008 ONAFRAAT 03

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Patricia Larkin, in Port Colborne, Ontario, under Subsections 48(1)(a), 48(1)(b), and 48(1)(c) of the Drainage Act from the engineer’s report; and by Dominic Favero, Darlene Tiftickjian and Patricia Larkin, in Port Colborne, Ontario, under Subsection 54(1) of the Drainage Act from the decision of the Court of Revision, on the Bearss Drain 2007 West Branch West in the City of Port Colborne.

Before:

Kirk Walstedt, Vice Chair; Doug Flook, Member; Euclid Mailloux, Member

Appearances:

Joseph Larkin, on behalf of Patricia Larkin, assessed landowner

John Kuntze, P. Eng., on behalf of the City of Port Colborne, respondent

Maggie Wahl, assessed landowner

Rene Landry, drainage superintendent for the City of Port Colborne

Tony Rozak, on behalf of CLPA Inc., assessed landowner

Barbara Rozak, on behalf of CLPA Inc., assessed landowner

DECISION OF THE TRIBUNAL

This appeal was heard in the City of Port Colborne, Ontario, on January 8, 2008. Patricia Larkin appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsections 48(1)(a), 48(1)(b), and 48(1)(c) of the Drainage Act (the Act) from the engineer’s report dated June 25, 2007 (the Report), by K. Smart Associates Limited, and signed by John Kuntze, P. Eng. (the Engineer); and Dominic Favero, Darlene Tiftickjian, and Patricia Larkin appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Subsection 54(1) of the Act from the decision of the Court of Revision, on the Bearss Drain 2007 West Branch West, in the City of Port Colborne.

Ms. Janet Beckett, Clerk of the City of Port Colborne, 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

Subsections 48(1)(a), 48(1)(b), and 48(1)(c) of the Act state:

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).

Subsection 54(1) 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).

Preliminary Matters

At the beginning of the Hearing, Mr. Kuntze informed the Tribunal that Mr. Favero will not be in attendance. He also informed the Tribunal that he will be submitting evidence on Mr. Favero’s behalf.

Ms. Maggie Wahl and Mr. Tony Rozak introduced themselves as assessed landowners, and requested to be identified as parties to the Hearing.

The Background

The Report, Exhibit 2, was prepared pursuant to Section 78 of the Act, following the determination from the City of Port Colborne that repairs and improvements were required on the Bearss Drain West Branch West. To address the maintenance needs of the existing drain, Council for the City of Port Colborne appointed K. Smart Associates Limited to prepare a report.

The purpose of the Report was to provide recommendations that address the need of repairs and improvements on the Bearss Drain West Branch West, which was last improved following an engineer’s report, dated October 15, 1979. The Report recommended that:

• the existing pipe portion of the Bearss Drain West Branch West be replaced with a new pipe, with a diameter of 900 millimeters, in approximately the same location as the existing pipe drain;

• the existing outlet structure for the pipe drain be removed and replaced with a new outlet structure, at approximately 6 metres to the north (upstream) of the existing structure’s location;

• a new concrete chamber be constructed on the new pipe drain, on the south side of Firelane 10; and

• the existing ditch be cleaned out easterly to the west side of Silver Bay Road, beginning from the head of the new pipe drain.

The total estimated cost of the proposed drainage works is approximately $210,000, which will affect a watershed area that occupies approximately 85 hectares.

An on-site meeting was held on May 6, 2003, where all owners of land within the Bearss Drain West Branch West watershed were given the opportunity to express their concerns over the drainage works to take place.

The Engineer informed the Tribunal that the existing pipe drain is located near Silver Bay Road and Firelane 10, as indicated in Exhibit 2, drawing 1 of 6. He stated that the portion of the drain that is south of Firelane 10, was constructed under a report prepared in 1928, which recommended the use of 600 millimeter diameter pipe. In reference to page 2 of the Report, the Engineer read an excerpt from the 1928 report that establishes the West Branch West as an overflow outlet. He added that the main channel of the Bearss Drain is located to the east of Silver Bay Road, and stated that the land in that area drained into the Bearss Drain. He further added that the plans for the Silver Bay Subdivision, prepared in the 1920s, referenced a drainage course known as the west branch of the Bearss Drain. He did, however, state that the report prepared in 1965 contains the first reference of the Bearss Drain being a separate drain, and no longer being an overflow outlet. The Engineer added that he used the same watershed divide as provided in the report prepared in 1965.

The Engineer stated his investigation confirmed that, due to a number of problems, the existing pipe drain system should be reconstructed. These problems were identified, he added, through the municipality’s use of video inspection, which confirmed that parts of the drain along Firelane 10 were structurally weak. He further added that some areas were not accessible to the video camera due to the extremely poor condition of the corrugated pipe. The Engineer continued, and stated that the deficiencies in the current drain include: the erratic grade throughout the various segments of pipe, that are different from the 1928 report; and the inability of the drain to provide adequate drainage for the watershed, as it is currently lacking in capacity. He added that the current drain’s shortfall with respect to capacity is the result of this drain being established as an overflow in the report from 1928.

The Engineer told the Tribunal that in initial discussions with the land owners, it was suggested to find an alternate outlet for the drain, and added that this was part of his investigation, which he outlines on pages 3 and 4 of the Report. The Report outlines four options for the attainment of a sufficient outlet for this drain. He stated that options 2 and 4, as outlined in the Report, were eliminated from consideration due to the high costs involved. He further stated that, from the on-site meetings held, there was a division between options 1 and 3, with respect to the preferences of the land owners.

The engineer decided to proceed with the recommendations contained in a revised version of option 1, as this option would give the opportunity to deal with known conditions for drainage, as opposed to proceeding with a new route.

The Issue

The issues before the Tribunal were:

1. Does option 1, as recommended and outlined in the Report, provide the most suitable drainage solution for the existing watershed?

2. Are the assessments, as amended by the Court of Revision, fair and equitable?

The Evidence

Maggie Wahl

Ms. Wahl stated that she is an assessed land owner, residing year-round along Firelane 6, and that her family has been there since 1927. She added that she is very familiar with this drain and its drainage problems. Ms. Wahl further stated that she is representing approximately 120 residents in Silver Bay, the majority of which are in support of the Report as it currently is.

In reference to Exhibit 4, a three-page letter she submitted, Ms. Wahl stated that option 3, as stated in the Report, is too expensive, and that a number of full-time residents would no longer have access to the beach. Ms. Wahl continued and referenced page 6, in Exhibit 5, as evidence of these arguments.

In reference to page 1, in Exhibit 5, Ms Wahl stated that this display shows virtually the same layout as indicated in the recommendations of option 1, as stated in the Report. Ms. Wahl stated that page 2 of Exhibit 5 shows the flooding that occurs in the drainage area during various seasons.

Ms. Wahl added that option 3, as stated in the Report, would provide additional disturbances, as follows:

• a cistern would need to be moved;

• the East Bearss Drain, on the east side of the cove, would also need repair;

• storm surges would climb up pathways, directing pollution to higher elevations; and

• access to the beach, for emergency services, would be inhibited.

Tony Rozak

Mr. Rozak told the Tribunal that his major concern with the proposed drainage works was that the actual cost of construction may be more expensive than estimated.

Joseph Larkin

Mr. Larkin expressed appreciation to the Tribunal for the opportunity to share his concerns, and informed the Tribunal that he is representing his mother, Ms. Patricia Larkin, an assessed land owner. Mr. Larkin told the Tribunal that the issues at hand fall into three main areas, which are as follows: 1) drainage design, he stated that Ms. Wahl is correct in that there is a situation; 2) the Report itself; and 3) with assessments and allowances made.

Mr. Larkin stated that he intends to provide first hand knowledge of the area, while referring to public information, as well as to his submission, which includes notes from expert witnesses.

Mr. Larkin illustrated the sequence in which certain events took place. The events are as follows:

• in March of 2003, the Engineer was appointed and, following the video inspection, option 3 was identified as the preferred option, and options 1 and 2 had challenges with respect to trench sizes;

• on May 20, 2004, a soil test was done based on option 3, but no soil test was done for option 1, and the Engineer was told to look further into option 1; and

• on September 30, 2006, the Engineer submitted revisions to option 1, but no revisions were submitted for the other options.

Mr. Larkin stated that after the City of Port Colborne revised option 1, it is his opinion that the Report was rushed. He added that a draft was prepared in June of 2007 with references to the wrong drain, and it appeared as though a report had been copied.

Mr. Larkin further stated that the Report contains errors, omissions, and deficiencies, and added that although some of the errors and omissions were raised to the Engineer’s attention, the engineer recommended to City Council in August of 2007 that emergency repair take place. Mr. Larkin added that, with these known omissions the city advised council that only for gross errors does council require the engineer to revise the report, as stated in Section 57 of the Act, which, he stated, is not the case.

Mr. Larkin directed the Tribunal’s attention to slide 5, in Exhibit 6, and stated that certain areas in the watershed are higher than others. He stated that, in this slide, the red dots indicate the locations of underground pipes, and added that video inspection took place on the eastern pipe (the “main” outlet), but not on the western pipe (the “overflow” outlet). He added that for 80 years, the Bearss Drain West area was an established watershed and that a recent attempt has been made to divide this watershed. He further added that water can go in either direction within this watershed, from the west to the east, or from the east to the west.

Mr. Larkin referenced the Report, and stated that one of the needs of this area is to maintain adequate drainage. He continued and stated that to divide the watershed now would be inappropriate, and that the properties on both sides of Silver Bay Road will benefit from the proposed drainage works. Mr. Larkin further stated that the problem identified in 2003, was how to improve the watershed, which has both main and overflow outlets. Mr. Larkin stated that the options in the Report recommend the closing of the overflow outlet, and added that although option 1 was selected, he added that the Report identified option 3 as the preferred option.

Mr. Larkin told the Tribunal that all options were flawed, in that they all assumed that the original overflow must be removed. He then referred to the slides on page 6 of Exhibit 6, and stated that, with respect to trenches, the size of a trench is dependent on the soil type. He stated that in the case of the Bryant property, the soil is of the sandy type 4 variety. He added that if option 1 were to proceed, buried steps and foundations will be affected. He further added that the current cottage on the Bryant property was built in 1963, and that the current foundation is attached to one that was pre-existing. He stated that if concrete from the initial foundation is removed, there will be damage to the actual foundation of the existing house.

Mr. Larkin referred to Section 15 of the Act, with respect to the matter of a sufficient outlet, and questioned why options were given which proposed to close the existing outlet. He suggested the idea of providing three outlets as opposed to two. He stated that the preferred option was to use a public right of way, and added that the appellant is suggesting that alternatives were not proposed for options other than option 1.

In response to this, the Engineer told the Tribunal that all of the information presented by Mr. Larkin was only brought to his attention after the Report was filed. Mr. Larkin stated that previous discussions have taken place, and added that he only received a response to these issues on the day prior to the Hearing.

Mr. Larkin referenced the slides on page 12 of Exhibit 6, in stating that each property assessed should be part of the roll, and that assessments are made regardless of the ownership. He stated that the Act does not allow for assessments to be done based on future ownership, but rather on the existing roll. He added that, considering the complexity of the area, the Engineer could have used block assessments, due to the fact that the Silver Bay area is relatively new.

With regards to outlet liability, Mr. Larkin stated it must be shown that the land can be more effectively drained, which would have lead to an outlet/benefit split. He stated that the Engineer said that the 90/10 split used was made arbitrarily, and Mr. Larkin added that if the rate of the flow for one property is 3 times greater than the other, then the assessments should be divided accordingly.

He further stated that 58 percent of the costs involved with this project taking place from station 0 to 58, and added that only 10 percent of the costs are allocated to the outlet. He told the Tribunal that the 90 percent split is not an appropriate allocation of costs. Mr. Larkin continued, in stating that assessments are made based on the benefit received, however, what the report does is charge a location fee, and added that 43 percent of the costs are assessed to Firelane 10 and 11. Mr. Larkin referred to the bottom left slide on page 13 of Exhibit 6, in outlining his understanding of how assessments were carried out. In referencing the top right slide on page 12 of Exhibit 6, Mr. Larkin told the Tribunal that the “Todgham ‘Rules’” were not followed in performing assessments. Mr. Larkin added that if property values are to be used for assessments, then properties should be appraised, and assessments should be made on that basis.

With regards to allowances, Mr. Larkin questioned why allowances for right of way are not included in the Report. He stated that this is a significant issue, because, as stated in Section 29 and 30 of the Act, right of way and damage allowances are to be addressed. He added that the only allowances for damages are in the amounts of $200 and $400, despite the fact that it will damage the Bryant foundation.

In response to a question from the Engineer, Mr. Larkin stated that the top right slide, on page 2 of Exhibit 6, was taken at the drain under the road along Firelane 9 (as indicated in the top left slide, on page 2 of Exhibit 6), facing west. Mr. Larkin also stated that, when going to the northwest side of Firelane 9 and looking beneath the road into the drain, one can see the entrance to another outlet which is visible, but not as shown in the picture referenced above. In response to this, the Engineer stated that Mr. Larkin is making an assumption of the direction of the underground pipes.

In response to further questions from the Engineer, Mr. Larkin stated that:

• he has reviewed the report prepared by the Engineer in 1996, but has not reviewed the reports prepared from 1928 to 1979;

• he knows how water flows in this area, and it flows from east to west and west to east by design, as opposed to the drainage patterns indicated in the 1996 report;

• a new outlet should be created, as outlined in page 8 of Exhibit 6;

• he feels that building three drains will be less expensive than closing one, since no cost will be incurred from the closing of the one drain;

• it was not previously stated that two separate parcels need to have equal assessments;

• as indicated on page 10 of Exhibit 6, 58 percent of the costs involved are for building the outlet, but that outlet costs should be divided equitably;

• assessments should be reassigned overall, rather than simply shifting the assessments over the residential properties;

• with respect to the right of way allowance, the construction of the new drain is not taking place in the same place as the current drain;

• he is of the opinion that right of way allowances did not take place with regards to the 1928 report;

• he can not make a statement about the intent of the report, regarding its restoration of drainage around the Larkin and Bryant properties;

Dominic Favero

The Engineer told the Tribunal that he was requested to make a submission on behalf of Mr. Favero, and informed the Tribunal that aerial photos were used to determine land use. He stated that the only property owned by Mr. Favero, at that time, was agricultural land, and he therefore used an adjustment coefficient of 1 in making assessments to Mr. Favero’s land. The Engineer further stated that, at the Court of Revision, Mr. Favero stated that his property was forested land, which, the Engineer stated, he supports.

The Engineer referenced Exhibit 7, a copy of Mr. Favero’s Property Assessment Notice from the Municipal Property Assessment Corporation (MPAC), for the 2008 tax year, which identifies the property in question as being a managed forest, and the Engineer requested that Mr. Favero’s appeal be granted.

John Kuntze (the Engineer)

The Engineer directed the Tribunal’s attention to drawings number 1 and 2, in the Report, showing both a large scale map of the area affected by the drainage works, and a detailed layout of where construction will take place.

The Engineer told the Tribunal that there are three categories that he would like to deal with, but that he only plans on dealing with the assessments that were revised following the Court of Revision.

With respect to the matter of drainage and overflows, as it relates to the watershed plan for the Bearss Drain dated March 17, 1965, the Engineer told the Tribunal that he has done extensive research on the history of the Bearss Drain when preparing both the 1996 and 2007 reports. He added that the report prepared in 1965 made the decision to split the Bearss Drain into two separate watersheds, and that no mention is made of splitting the drain in any prior report.

Mr. Kuntze stated that, with respect to the picture taken by Mr. Larkin of the drain beneath the road, if one were to crawl beneath the road it is possible to see daylight from the other end. Ne noted that there is a grate in the ground at that end, with a box at the bottom of that grate. He stated that when survey work was done in 2004 and 2005, a very close look was taken at the structures in the area, and added that, based on his knowledge of the box, it is a 600 millimeter by 600 millimeter catch basin with no pipes connected to it. He further told the Tribunal that this box is a dead end to the culvert that crosses the road, and although a connection exists, it is not being utilized.

The Engineer told the Tribunal that drawing number 2 in the Report identifies the ditch coming to Silver Bay Road as being part of the municipal drain. He added that there is a 24 inch diameter steel pipe running into the drain that is exactly parallel to the road, as opposed to being perpendicular as stated by Mr. Larkin. He noted that this 24 inch pipe goes all the way down the road, and leads to a network of catch basins, where, in his opinion, all of the water is going into the storm sewer and is dumped into the west branch of the Bearss Drain. He further stated that there are two distinct drains, but on his initial review, he thought it was going to be a very expensive proposal as the ditch on one side would need to be deepened by 18 inches to accommodate a shared flow. He added that there is no overflow and no advantage to considering introducing one. He continued by stating that, the splitting of the Drain in 1979 did not accomplish anything. He added that improvements cannot be made to the drain southbound unless the 1928 report was redone.

With respect to allowances, the Engineer stated that the allowances in the Report are relatively insignificant because, as indicated on page 9 of the Report, its intent is to restore the current drainage to accommodate the existing conditions. He added that, in his opinion, there didn’t need to be large allowances under Section 30 of the Act. However, to ensure that his report meets the requirements of the Act, he needed to provide allowances for disturbances. He further stated that the intent of the Report is to restore drainage to the properties. With respect to allowances for right of way, he is of the opinion that, as per Mr. Larkin’s submissions, the allowances for right of way are only for the construction of a new drain. He further added that, when construction is complete, the use of the land will not be any different than the current use. He told the Tribunal that, in his opinion, nothing significant has been changed which would merit larger allowances for right of way to take place. He is of the opinion that the allowances in the Report are reasonable, and that the Report properly addresses the need for allowances.

With respect to modifications to, or concerns about, the construction to take place, the Engineer directed the Tribunal’s attention to page 11 of the Report, and stated that the “Lump sum contingency allowance” is intended for the allocation of unforeseen allowances. He added that, in his experience, other issues will arise in addition to those brought up by Mr. Larkin, and they will need to be addressed in due time. The Engineer submitted Exhibit 9, which contains a list of potential issues that may arise as a result of the construction to take place. He told the Tribunal that, at a prior meeting, a specific outline was provided of what was proposed to take place, with respect to either rebuilding the drain along the historic route, or to drain down Silver Bay Road. He added that, at that time, he was not informed of hidden steps or a previous foundation on the Bryant property. These are issues that can be addressed with the “Lump sum contingency allowance”.

The Engineer expressed regret to Mr. Larkin for the late correspondence that took place, in response to issues Mr. Larkin raised after the Report was adopted, and stated that he is willing to make further recommendations.

With respect to the outlet structure in the first location, the Engineer stated that objections were raised about the exposure of the drainage works along the beach. In response to this, he proposed to retract the pipe in order for it to be exposed to a lesser degree. The Engineer stated that if the Tribunal Hearing did not occur, then his Report would have been amended already, although, since appeals to the Tribunal were submitted, the Engineer recommended to the Tribunal that the outlet be changed to end at station 000.

The Engineer told the Tribunal that, with regards to the buried sidewalk, he was not aware of its existence until they proceeded with test holes. He stated that he included the sidewalk in drawing number 5 of the Report as though it was exposed, which it was not. He also stated that if the sidewalk had not been discovered until the time of construction, it would have been replaced, as the intent of the Report was to restore proper conditions. He further stated that a decision will need to be made of whether to rebuild the sidewalk and bury it again, or to rebuild the sidewalk and leave it exposed. In either case, he added, this work will make a minor dent in the $11,000 “Lump sum contingency allowance”.

The Engineer informed the Tribunal that, with the assistance of the municipality, he requested that several contractors join him in an on-site meeting, to review the feasibility and cost estimates of the options outlined in the Report.

With respect to the leach field, the Engineer stated that it can be dealt with accordingly. He further stated that, regarding stations 108 to 158, the location of the drain can change to suit the needs of the owners since the drain will have approximately 12 inches of cover, and the trench required will only be about 4 feet wide. He questioned, however, how permission was received from the property owners to construct a leach field over top of a municipal drain. The Engineer told the Tribunal that the new drain is to be constructed with a sealed pipe, which will prevent it from being affected by the leach field. He stated, however, that he does not see the issue of the leach field upsetting the balance of his recommendation to proceed with the revised option 1, as opposed to option 3.

The Engineer told the Tribunal that he did attempt to cover the need for a preconstruction survey in the Report, in order to make a proper evaluation of the properties and walls, and added that he included it as part of the cost of the Report. He further added that he assumed any further construction survey to take place would be included in the costs of the Report. He continued in stating that the report can be amended to say that any future inspection and/or construction to take place on the house be treated as part of the costs of the entire drain, which will be assessed to landowners accordingly.

With respect to the type 4 soil in the area, as stated my Mr. Larkin, the Engineer stated that he used two different consultants to do test holes at the high points of the dune, to discover the soil conditions, and added that the consultants said that they were dealing with type 3 soils. He stated that this is the reason for the cross section drawings number 5 and 6, show that a safe trench can be achieved. He added that soil types are not going to change dramatically in that area. The Engineer further stated that the majority of construction to take place will be at a depth of 1.2 metres, which is easy to achieve, and that was also the reason for having an on-site meeting with contractors to inspect existing conditions.

The Engineer told the Tribunal that the Bryants were at the meeting and did not raise the issue of the foundations on their property, nor of the steps, and stated that it is an unknown condition that can be dealt with during construction. He added that nothing in the construction details indicate that the steps will need to be removed, although stated that if a portion of the steps are in the path of the pipe, then that portion would be removed.

With respect to the chamber at station 8, as noted by Mr. Larkin, the Engineer stated that it is not a pump station, but rather allows the flow of water to make a 90 degree turn in the drain. The Engineer also stated that the other chamber is intended to allow for the construction of a flap gate in the future. He added that almost every report that he has written for the city has involved some method of flood proofing, and the cost of this flap gate would be another $4,000 to $5,000, and that everyone agreed with the proposed location of this chamber.

The Engineer told the Tribunal that it was his intention to not cause any unnecessary damage to the Bryant or Larkin properties, and with this in mind, they were going to leave the existing pipe drain in place and fill it with grout when the new drain is installed. He continued in stating that, based on their test holes, the retaining wall sits almost on top of the existing drain, and therefore, they can not remove the existing drain because he does not wish to disturb the retaining wall. The Engineer further added that when the pipe is filled with grout, the pipe will act as a retaining wall on its own.

With respect to the Larkin cottage, the Engineer stated that he is of the opinion that the construction to take place will have no impact on the main cottage on that property, although, he stated, the only part that might be affected is a side room that was constructed as an addition. The Engineer also stated that, from a construction point of view, the outlet needs to be moved, and requested that the Tribunal include in its Order that the Larkins have two years from the date of completion of construction to raise concerns about the effects of the construction.

With respect to assessments, the Engineer directed the Tribunal’s attention to pages 12 and 13 of the Report, and stated that he was faced with assessing $210,000 for the construction of the drain. He stated that it was clear to him that this drain was needed for the residential development that is within this drainage area, and that 90 percent of the costs should be assessed as benefit assessment, and only 10% of costs should be assessed to upstream lands. He added that he did not find the guidelines regarding assessments, referenced by Mr. Larkin, to be a fair and equitable way of allocating assessments. He stated that the two factors considered in assessments were those of roads and lands, and that since roads lead to development, he decided to allocate a significantly higher portion of the assessments to the roads. In doing so he made sure that every property that had an assessment roll number was assessed. He, however, found that a number of people in this area receive three tax bills when they only have one lot, and that some people have a house that spans over two lots. To account for this, he stated, he requested that these property owners provide him with evidence that they should not receive an assessment for more than one property. He continued in stating that his duty was to make assessments in a fair and equitable manner.

With respect to the matter of assessments to roads, the Engineer told the Tribunal that he proceeded with the most significant road being Silver Bay Road, since it is being used for access to all properties in that area. He assessed more than half of the road assessments (58 percent) to Silver Bay Road for this reason. Regarding road assessments to less significant roads, he assessed Firelanes 8, 10, and 12, as well as Locust Street, with Firelane 10 receiving the second largest portion of road assessment as it is the second most prominent road in the area. He also stated that $1,000 was assessed to each Locust Street and Firelane 8. The Engineer continued in stating that he was unable to allocate the road assessments to the municipality because they are not municipal roads, but rather, they are private roads that provide access to private properties. The Engineer recommended that if the Tribunal were to change the road assessment of Silver Bay Road, then the difference be allocated to Firelane 10, and not to all upstream lands.

In response to questions from Mr. Larkin, the Engineer told the Tribunal that:

• a video inspection did not take place in the second pipe under Silver Bay Road;

• he does not believe that any of the drain will be on the Bryant property;

• with respect to the right of way, the old pipe will remain;

• the volleyball pole on the Larkin property can be replaced following construction;

• he recalls the mention of steps on the Bryant property, at the meeting on August 13th; and

• with respect to the road fees made to the properties along Firelane 10, they were made based on the construction that would take place along that road.

In response to a question from Mr. Rozak, the Engineer told the Tribunal that he never asked anyone to accept or reject the options 1 and 3, but that options were simply presented with relatively the same costs. He added that the options were to either follow the historic route for this drain, or to drain along Silver Bay Road. He further stated that when he makes his recommendation, he must make it based on what he thinks is in the best interest of everyone in the watershed. He added that the Report outlines why option 1 was recommended over other options, and that one of the main reasons for recommending option 1 is that they will be dealing with a known situation. He continued in stating that option 3 was not recommended because he did not feel it to be the most suitable option.

The Engineer also stated that a straight drain would not be the most efficient way to proceed, because the watershed lies on an east to west axis, and that water should not be directed straight to the lake because of the 1928 tile.

In response to a question from the Tribunal, the Engineer stated that the value of the sidewalk is not known at this time, and needs to be worked out with the owner. He added that if the owner wants the sidewalk restored after construction of the drain, arrangements will be made.

Summations

Maggie Wahl

Ms. Wahl stated that most of her summation would be contained in Exhibit 5, the set of 7 photo displays submitted by Ms. Wahl. She stated that at the meeting on September 30, 2006, Mr. Larkin made the statement that a change had been made, and that option 3 (as outlined in the Report) is being considered more seriously. She stated, however, that the water would flow using either route (as outline in options 1 and 3), but that it would flow better using option 1. She added that option 3 was not necessarily the preferred route by all, but that it was preferred by some people, which did not include the Engineer.

Ms. Wahl stated that a concern also exists with leach fields, and that with option 3, water would drain into leach wells. She added that option 3 would lead to greater ice damage that would option 1. She further stated that, with respect to potential damage to Ms. Larkin’s property, her understanding is that construction companies have large insurance policies.

Ms. Wahl told the Tribunal that the meeting that took place between the Engineer and a number of contractors was certainly not a private meeting, and added that only one company said that they didn’t have the equipment to do the work involved in option 1 without damaging any property. She added that if option 3 were chosen, there would have to be blasting of the bedrock in the area where the drainage works would take place, which might cause problems for foundations and wells of nearby houses. She concluded in stating that she is in support of the Engineer’s recommendations in the Report.

Joseph Larkin

Mr. Larkin stated that he feels that all points have been covered. He told the Tribunal that he hopes that errors in the Report have been brought to the Tribunal’s attention, and hopes that his point has been made, in his statement that the Report was rushed and fails to provide appropriate options.

Mr. Larkin further stated that he hopes the Tribunal will order: emergency repairs, as needed, to take place as soon as possible; the modification of the design to include 3 outlets as opposed to 2, and for assessments to be changed accordingly; the inclusion of a right of way and land use allowance; and the adjustment of road fees.

John Kuntze (the Engineer)

The Engineer recommended to the Tribunal that the drain remain in the historic location. He added that there is no need for emergency repairs to take place on the drain, and that the municipality is looking for a long-term solution to the current problem. He further stated that it would be inappropriate to spend money toward something that will only provide a short term benefit. He further recommended that the report be modified with respect to station 000. With respect to the issue of the allowances, he does not feel that changes are required, although, with respect to assessments, he recommends that Mr. Favero’s assessment be adjusted to reflect the actual land use. Further with respect to the assessment of properties along the firelanes, he stated that he was open to the Tribunal’s conclusions. With respect to the assessments to properties along Firelane 10, he requested that the Tribunal review the assessments very closely, and stated that, in his opinion, Firelane 10 is impacted more significantly than Mr. Larkin has stated. He added that he feels that if “Todgham ‘Rules’”, as referenced by Mr. Larkin, are applied then the properties on Firelane 10 should receive a higher benefit assessment than outlined in the Report.

The Findings

The Tribunal finds that:

1. The engineer applied sound engineering principles with respect to his decision to proceed with the route suggested in option 1, following on-site meetings with residents and contractors specializing in drainage projects.

2. Although Mr. Larkin raised a number of issues with respect to the proposed drainage works as outlined in option 1, as not being a proper solution to the drainage problem, Mr. Larkin did not provide any professional engineering evidence to support his position.

3. The process used by the municipality was an open and fair process and meets the legislative requirements, as set out in the Drainage Act.

4. The reference to a private meeting on September 6, 2006, between the engineer and a number of professional construction contractors, was in fact to discuss the feasibility and accuracy of cost estimates with professional contractors.

5. The assessments, as calculated by the engineer and amended by the Court of Revision at its September 12, 2007, meeting, were fair and equitable.

6. The issues with respect to: the buried sidewalk, the concrete pad and post, and steps and hand rail, will be dealt with by the engineer to the reasonable satisfaction of the rate payers.

7. The vast majority of the residents are in agreement with option 1, as recommended by the project engineer.

ORDER OF THE TRIBUNAL

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

1. The appeals of Patricia Larkin and Darlene Tiftickjian under Subsections 48(1) and 54(1) of the Drainage Act be denied.

2. The assessment to Mr. Favero, with respect to the managed forest property identified by assessment roll number 4-2-230, be reduced by 50 percent, and the outlet liability assessment in Schedule A, as revised by the Court of Revision, be recalculated.

3. The Report be amended to move the new outlet structure to the location of the existing structure at Station 000.

4. The timeline, within which issues of construction can be raised by Ms. Patricia Larkin, with respect to her property, be extended to two (2) years from the date of completion of the drainage works.

5. The construction methodology be changed to filling the existing drain with grout prior to installation of the new drain to enhance the stability of the existing drain, to support the retaining wall on the Bryant property, and to provide protection for the foundation of the Larkin cottage.

6. The non-administrative costs of the municipality in respect to this appeal shall form part of the drainage works and it is ordered that there be no other order as to costs and all parties all parties are responsible for their own costs. Attention is drawn to Section 73 of the Drainage Act.

Dated at Maidstone, Ontario, this 23rd day of January, 2008.