Bertie Bay Municipal Drain (Re), 2008 ONAFRAAT 7

Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

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

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

APPEAL: Bertie Bay Municipal Drain Town of Fort Erie Bertie Bay Municipal Drain (RE) 2008 ONAFRAAT 07

STATUTE: Drainage Act

HEARING: January 28, 2008

DATE OF DECISION: March 10, 2008 2008-07

NEUTRAL CITATION: 2008 ONAFRAAT 07

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 Phyllis Hamill, in Fort Erie, Ontario under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision, and under Subsections 48(1)(a), 48(1)(b), and 48(1)(c) of the Drainage Act, and by Richard and Cathy Bogar, in Fort Erie, Ontario, under Subsection 48(1)(b) of the Drainage Act, from the engineer’s report on the Bertie Bay Municipal Drain in the Town of Fort Erie.

Before: John O’Kane, Vice Chair; Sharon Weitzel, Member; Ron Gelderland, Member

Appearances: Phyllis Hamill, appellant Cathy and Richard Bogar, appellants John Kuntze, P. Eng., on behalf of the Town of Fort Erie, respondent Brett Ruck, drainage superintendent for the Town of Fort Erie, respondent Bill Clark, Principle Hydrogeologist, witness for the engineer

DECISION OF THE TRIBUNAL

Overview

The Bertie Bay Municipal Drain (the “Drain”) in the Town of Fort Erie (the “Town”) has existed since around 1930. In 2002 the Town appointed John Kuntze, a professional engineer with K. Smart Associates Limited (the “Engineer”), under s. 78¹ of the Drainage Act (the “Act”) to examine the existing drain and make recommendations for improvement. In 2004 the Town received a petition under section 4 of the Act from a number of property owners for improved drainage into the Drain. The Town directed the Engineer address the petition in his recommendations.

The Engineer delivered a report dated July 18, 2007 (the “Report”), with recommendations for improvements and additions to the Drain and an assessment of who would bear the costs of the improvements and future maintenance.

Two appeals from the Report under subsections 48(1)(a), (b), and (c)² of the Act were made to the Tribunal by Phyllis Hamill (“Hamill”) and Richard and Cathy Bogar (“Bogar”). Those appeals are that the work on the Drain should not proceed as planned because the costs exceed any benefit or the work should be changed or the allowances made in the Report are inappropriate. Hamill also appealed to the Tribunal under subsection 54(1)³ of the Act from the decision of the Court of Revision which confirmed the assessments made in the Report.

The appeals were heard together on January 28, 2008, in Fort Erie. Ms. Carolyn Kett, Clerk of the Town performed the duties of Clerk of the Tribunal.

Before the hearing took place the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to the appeal. An Affidavit of Service from Ms. Kett was filed at the start of the hearing proving that all parties had been served with notice of the hearing.

Preliminary Matters

The Engineer asked the Tribunal to include, as part of its Order, a correction to one property roll number in the Report. Roll number 2001093600 should be 2001098613.

The Background

The Report detailed three Drain outlets and two branches serving an overall watershed area of about 288.4 hectares.

The only issues on appeal relate to the following three areas of the Drain as extracted from the Report:

A) Outlet 2

1. that the existing 30 inch diameter pipe, along the east side of Bertie Bay Road allowance, be replaced with a new pre-cast concrete box structure;

2. the minor cleanout and brushing on the ditch that continues north from the new structure to the MacDonald Drive intersection, and the replacement of the culvert under that intersection with a new pre-cast concrete box structure; and

3. that the ditch on the north side of MacDonald Drive west of Bertie Bay Road that drains easterly remain a part of Outlet 2, and that cleanout and brushing take place on this part of Outlet 2.

B) Outlet 3

1. the minor removal of debris from MacDonald Drive west and south to the outlet into Lake Erie, and debris removal at the outlet structure at the lake;

2. the manual clearing of debris from the channel cross-section from MacDonald Drive North to the Friendship Trail;

3. ensuring that the Friendship Trail culvert is free of debris;

4. the clearing of a path along one side of the channel from the Friendship Trail north and east to Rosehill Road, with an approximate depth of 18 inches; and

5. the replacement of the culvert across Rosehill Road, with a new culvert approximately 300 millimetres lower.

C) MacDonald South Branch

1. the excavation of a new ditch along the south side of MacDonald Drive, from Outlet 2 easterly for 190 metres, and the placement of new 300 millimetre diameter solid plastic pipe culverts to provide access from the road to the properties.

With the consent of all the parties at the hearing, the Tribunal accepted the Engineer was qualified to give expert opinion evidence in the discipline of municipal drains. The Engineer has 30 years of experience in drainage work and has completed an average of 12 reports annually under the Act.

The Issues

The Bogars do not want the culvert at Rosehill Road replaced and lowered. They fear that work will harm the recharge area for their well. They want guarantees that their water supply will be maintained and compensation if their well needs to be re-drilled.

Hamill feels she has no need for any of the drainage works near her home and she feels she should not have to pay for drainage works she does not want nor need. She wants her fence and flowerbed not touched and she wants the trees along the Drain preserved.

The Bogar Issue

Mrs. Bogar testified they lived in the upper part of the watershed at 1785 Nigh Road. She testified their concerns were shared by about 50 other homeowners in the area.

She testified that 2007 was a dry year and that a number of wells in the area went dry requiring some wells being re-drilled. She testified that groundwater sustains the wells. In support of that evidence she gave anecdotal evidence about area wells that had been dry becoming recharged almost immediately with a significant rainfall event.

She testified that if the existing culvert at Rosehill Road was lowered by 300mm as proposed in the Report, the area upstream of that culvert would drain more rapidly. That, in turn would mean the groundwater would be lowered creating a negative effect on the upstream wells.

Since the Bogar well is located upstream of the Rosehill Road culvert, they were concerned their well might be adversely affected. She testified they wanted a guarantee their well would not be affected by the Drain, and requested compensation if it was.

She also testified that if the Rosehill Road culvert was lowered, the potential adverse impact on the groundwater upstream could be reduced by creating an earthen berm along the upstream Barnes’ Estate lands, also described as a wetland. The berm would hold back surface water allowing it more time to percolate through the soil and provide recharge for the wells.

The Bogars did not lead any professional evidence from any experts in the field of ground water to support their evidence and theory.

The Engineer testified that the culvert work at Rosehill Road was to restore the drain to its original profile and the proposed work will not drain water away any faster than previously. Apart from the culvert work, the balance of the work in this part of the Drain, known as Outlet 3, is cleaning the existing ditches to remove debris and improve the outlet flow.

He also testified that he did not believe the surface water diverted into the Drain affected the recharge of the Bogar’s well. However, he confirmed that despite his disbelief of that, he would recommend in the construction tender for the works that any excavated materials from the open ditch would be leveled on the west and north side of the Drain without surface drain channels to create a berming effect. The surface water upstream of that point would then be kept longer in the wetland area as the Bogars requested. He indicated he would be prepared to do this provided there was no complaint from the owners of the Barnes’ Estate lands that comprise the wetland area.

The Engineer also testified that although he doubted the Bogars’ well would be affected by the Drain, he hired a hydrogeologist to investigate their groundwater supply concerns.

After hearing evidence about Bill Clarke’s (“Clarke”) qualifications, the Tribunal qualified Clarke as an expert to give opinion evidence in the discipline of hydrogeology and groundwater supply. Mr. Clarke is the principal hydrogeologist with Waterloo Geoscience Consultants Ltd. and has over 25 years experience in this discipline.

Clarke’s expert opinion was that the Drain works would not interfere with the Bogars’ well. He went further and opined that none of the existing private wells were at risk from the proposed Drain works.

Clarke’s evidence was relatively simple. The Bogar well is drilled into bedrock 42 feet below the surface. It has water in the well column about 10 feet from surface. He spoke of the water column in the well being about 32 feet.

He explained that within the bedrock there are interconnected fissures through which water is conducted. As the Bogar well was drilled through the bedrock it intersected with a number of these fissures and the water flowing through the fissures now supplies the well column.

He also explained that the recharge area for the Bogar well is probably the Onandaga escarpment area which is some distance upstream from the Bogar well.

His evidence was that since the Drain works are all taking place downstream from the Bogar well, those areas are not part of the re-charge area for the Bogar well.

The Hamill Issue

Hamill lives next to Lake Erie at the intersection of Bertie Bay Road and a private road known as MacDonald Drive. In this area of the Drain, known as Outlet 2, is a series of ditches that drain into a pipe that runs along Bertie Bay Road next to Hamill’s property. That pipe then outlets into Lake Erie.

Hamill testified she has lived in her home for about 40 years and never had any drainage problems. The problems have been experienced by the people on the other side of Bertie Bay Road. She denied that her property experienced any flooding or erosion problems during a significant storm in 2004.

She testified the Drain works would take away her land next to her house, and remove some of her trees and her fence. She testified she did not need the drain and questioned why it couldn’t be relocated to the other side of Bertie Bay Road. She also testified she did not feel she should have to pay the level of assessment set out in the Report.

The Engineer testified using surveys that none of the proposed Drain work would be done outside the road allowance of Bertie Bay Road. He also testified using the drainage plans that the Hamill fence will not be touched for any of the Drain work. However, he advised the fence is on the road allowance and the Town requires Hamill to remove it, but not as part of the Drain work.

He did confirm that four trees would have to be removed in order to construct the trench to install the replacement drain pipe. Beyond those trees he testified if it was possible, trees would be preserved.

He testified that there was no serious consideration given to moving the drain pipe location that has existed since 1930.

The Engineer also testified that part of the Drain, known as the MacDonald South Branch, arose from a petition under the Act by an upstream landowner wanting improved drainage. The work along MacDonald Drive was ditching and culverts for driveway access that would require removal of a flower bed on Hamill’s property.

He testified that since the MacDonald South Branch work was benefitting those private properties, he apportioned the actual cost of each culvert ($2,000) and a share of the ditching cost ($1,600) to each of the benefitting properties along MacDonald Drive including Hamill’s.

Discussions and Findings

The Tribunal understands the Bogars’ concerns over a safe and reliable source of water. The Tribunal also commends the Engineer and the Town for the approach they took to deal with the Bogars’ concerns by hiring an expert in groundwater.

After considering the evidence the Tribunal accepts Clarke’s expert opinion evidence that the Bogars’ well supply is not at risk from the proposed Drain works. Simply put, water flows downhill with gravity. The lake as the ultimate outlet is “downhill” of the Drain. The proposed Drain works are “downhill” of the Bogar well. The Bogar well is “downhill” from its re-charge area. Therefore the Drain works to be carried out will not interfere with the re-charge of the Bogar well since the groundwater in the area of the proposed Drain works does not flow uphill to supply the Bogar drain.

Given the Engineer’s agreement with the Bogars about creating a berm along the wetland area of the Barnes’ Estate, the Tribunal finds that such a modification can be achieved through a notation to any tender document issued for the Drain works.

The Tribunal finds the appropriate location for the proposed pipe along Bertie Bay Road is the Engineer’s proposed location. The original 1930 drain pipe was located along that alignment and the Tribunal is convinced by the Engineer’s evidence that there is no reason to move the pipe’s location.

The Tribunal finds the Hamill fence is not to be touched as part of the Drain works and therefore it is not an issue that can be addressed in this appeal.

Unfortunately, due to the nature of the trench excavation required to install the new pipe, four trees will be removed. The Tribunal finds that those four trees are on the road allowance and not on Hamill’s property.

The Tribunal accepts the Engineer’s assurance that any other trees that can be preserved during construction will be, and that Hamill’s rock retaining wall, although partly on Town property, will not be touched.

The Tribunal finds that it will be necessary to remove Hamill’s flowerbed near MacDonald Drive. That will be so unless the road alignment of MacDonald Drive changes. That road alignment issue however, is a matter for the private road association and not this Tribunal.

The Tribunal also finds that the assessment of $1,600 against Hamill for ditching along MacDonald Drive is excessive, as acknowledged by the Engineer. The Tribunal finds that the proper assessment for Hamill’s share of the ditching costs is $997 plus the $2,000 actual cost of the driveway culvert. Apart from the change to the MacDonald Drive ditching part of the Engineer’s assessment in the Report, the Tribunal finds the assessments to be fair and reasonable.

ORDER OF THE TRIBUNAL

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

1. The Engineer is directed to amend the Report as follows:

a. Roll Number 2002093600 will be replace with Roll number 2001098613 in Schedule A and B.

b. The recommended work in Outlet 3 will expand to provide that the material excavated from the existing ditches will be levelled alongside the Barnes’ Estate land to create a berm with no surface water openings.

c. The MacDonald South Branch cost assessment for Hamill (Role # 010-202) will decrease by $603.00 ( 9 X $67.00 ), and the assessments to the remaining nine properties in that part of the watershed will increase by $67 each.

2. Once the Report and schedules are amended, the Engineer is directed to return the Amended Report to the Town.

3. The appeals are otherwise dismissed.

4. The non-administrative costs of the Town with respect to these appeals shall form part 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 Drainage Act.

Dated at Brampton, Ontario, this 10th day of March, 2008.

¹ Improving, upon examination and report of engineer

78. (1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report. R.S.O. 1990, c. D.17, s. 78 (1).

Notice to conservation authority

(2) An engineer shall not be appointed under subsection (1) until thirty days after a notice advising of the proposed drainage works has been sent by prepaid mail to the secretary-treasurer of each conservation authority that has jurisdiction over any of the lands that would be affected. R.S.O. 1990, c. D.17, s. 78 (2).

Powers and duties of engineer

(3) The engineer has all the powers and shall perform all the duties of an engineer appointed with respect to the construction of a drainage works under this Act. R.S.O. 1990, c. D.17, s. 78 (3).

Proceedings

(4) All proceedings, including appeals, under this section shall be the same as on a report for the construction of a drainage works. R.S.O. 1990, c. D.17, s. 78 (4).

² 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).

³ 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).