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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Exeter Municipal Diversion Drain 2009 Municipality of South Huron

Exeter Municipal Diversion Drain (RE) 2010 ONAFRAAT 10

STATUTE: Drainage Act

HEARING: January 19, 2010

DATE OF DECISION: March 8, 2010

2010-10

NEUTRAL CITATION: 2010 ONAFRAAT 10

EXETER MUNICIPAL DIVERSION DRAIN 2009

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by R. & D. Hamather and G. & J. McBride, of Exeter, Ontario, under Subsection 48(1) of the Drainage Act, from the engineer’s report on the Exeter Municipal Diversion Drain 2009 dated April 21, 2009 in the Municipality of South Huron.

Before: John O’Kane, Vice Chair; Enio Sullo, Member; and Sharon Weitzel, Member

Appearances: Paul Courey, counsel to the Municipality of South Huron William Dietrich, the Engineer who prepared the report Allan R. Patton, counsel to the appellants, R. & D. Hamather and G. & J. McBride William Pol, witness for the appellants, R. & D. Hamather and G. & J. McBride Peter Aunger, resident of the Municipality of South Huron Donald Orr, witness for Mr. Aunger Sandra Newton, witness for Mr. Aunger

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of South Huron Council Chambers, in Exeter, Ontario, on January 18 and 19, 2010. R. & D. Hamather and G. & J. McBride appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 48(1) of the Drainage Act (the Act) from a report titled “Exeter Municipal Diversion Drain 2009” (the Report) prepared by Dietrich Engineering Limited and signed by W.J. Dietrich, P.Eng. (the Engineer) dated April 21, 2009.

Mr. Michael Di Lullo, Manager of Corporate Services/Clerk of the Municipality, (the Clerk) performed the duties of the Clerk of the Tribunal.

Background

The Report proposes the construction of a new, closed municipal drainage system (the Works) on rural agricultural and golf course land, immediately adjacent to and along the easterly urban-rural boundary between the Town of Exeter and Township of Usborne, which are both parts of the Municipality of South Huron (the Municipality).

The proposed Works will intercept and collect runoff from a predominantly agricultural watershed of approximately 96 acres (38.9 hectares). The estimated cost of the project is $1,474,700.

The appellants Hamather and McBride (Appellants) are both the owners of the agricultural lands that comprise most of the watershed. They appealed to the Tribunal under section 48 of the Act, asserting that the benefits from the works are not commensurate with the estimated costs, the allowances provided by the engineer are inadequate and unreasonable in the circumstances, and such other grounds as their counsel may advise.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this Hearing. The Clerk filed an affidavit of service proving that all assessed or compensated landowners on the Exeter Municipal Diversion Drain 2009 had notice of the hearing, and satisfied the Tribunal of the requirements of section 99 of the Act.

Also prior to the hearing, the Tribunal received an application for party status from Peter Aunger, a resident of the Municipality neither assessed nor compensated in the Report.

At the hearing, Mr. Aunger explained that he is a property owner on Sherwood Crescent in the Town of Exeter, adversely affected by flooding since about 1980. He supports the Works and is concerned that further delays could result in the loss of about $890,000 funding from the Province. There were no objections to Mr. Aunger’s application.

Accordingly, after a short recess to consider the matter, the Tribunal granted Mr. Aunger party status.

The Issue(s)

1. Did the administrative process comply with the Act?

2. Is the proposed design and location of the works appropriate and are the benefits to be derived from the Works commensurate with the estimated costs?

3. Does the Planning Act and Provincial Policy Statement (PPS) apply and govern over the Drainage Act when considering the location and nature of the proposed Works?

The Decision

As explained below we find that the benefits of the proposed Works are not commensurate with the estimated costs and accordingly grant the appeal and set aside the Report.

The Evidence - Administrative Process

The Clerk’s Record documents the administrative process.

On October 16, 2006, the Council of the Municipality (Council) passed the following Resolution directing the Road Superintendent to sign a drainage petition and appointing Mr. Dietrich to investigate construction of a municipal drain to divert flood water into the Ausable River.

“THAT South Huron Council direct our Road Superintendent to sign a Drainage Petition under Section 4(1) of the Drainage Act to provide improved drainage to roads in the Eastern Ave and Huron Street North area of the Exeter; and further, that our Drainage Engineer, Bill Dietrich, be appointed to investigate construction of a municipal drain to divert flood water north from the subject area to outlet into the Ausable River”

On October 23, 2006, the Road Superintendent signed a Petition for Drainage Works under Section 4 of the Act.

On May 5, 2008, Council passed a further resolution providing:

“THAT South Huron Council direct the Drainage Superintendent to move forward on the municipal drain preliminary report.”

The Engineer testified that Council gave him written instructions to prepare a report under the Act. He said the instructions did not stipulate preparation of a Preliminary Report, so he prepared the Report as a final report. The written instructions from Council are not in evidence.

On May 19, 2009, Council considered the Report. Minutes of that Council meeting refer to Mr. Dietrich in some instances as the Drainage Superintendent and in other instances as the Drainage Engineer. The Council minutes also contain an Addendum to the Report comprising five items, four of which alter the Works which also change the Section 29 allowances. Council adopted the Report and Addendum by the following resolution:

“THAT South Huron Council receive the Exeter Municipal Diversion Drain 2009 Report and Addendum to the Engineer Report as prepared by W.J. Dietrich, P.Eng., Dietrich Engineering Limited and set the Court of Revision for Monday, June 15, 2009”

In evidence, the Engineer confirmed and provided details about the five items contained in the Addendum. Those items arose just before the Council consideration and, although they were discussed and adopted at the Council meeting, the changes were not previously circulated to the parties entitled to notice of the Works under section 41(1)(d)-(i) of the Act.

The Report does not contain a Schedule of Assessment but instead assesses the entire cost of the Works to the Municipality.

The Engineer testified that the Municipality agreed to accept all the costs of the Works and so he assessed the Municipality accordingly. He testified that he believed the assessment complied with the Act.

The Engineer also testified that no other reports were produced aside from the Report which is the subject of this hearing.

The Evidence - Design and Location of the Works

The Report contains information on the investigation undertaken by the Engineer and details of the recommended Works, including construction drawings and specifications. The Engineer was qualified to give expert opinion evidence in drainage engineering. He elaborated on the Report during his testimony at this hearing.

According to the Engineer, for many years the areas along the eastern part of Exeter have received uncontrolled runoff from predominantly agricultural properties to the east, often resulting in flooding of certain roads, residences and businesses along the flow path during various rainfall and snow melt events. The flooding has caused significant disruption and damage, particularly to immediately downstream roads and dwellings.

The watershed contributing to the runoff comprises approximately 96 acres (38.9 hectares) of primarily undeveloped agricultural land, which includes the lands owned by the Appellants. The only exception is a small residential strip along the north side of Huron Street that currently drains into a closed tile drain known as the Huron Street Drain. That tile drain outlets into the Exeter storm sewer system and is too small to drain surface runoff. The incidence of flooding of the downstream, built-up areas of Exeter was confirmed by the evidence of Mr. Aunger and his witnesses and was uncontested by the Appellants.

The Engineer investigated several alternatives to provide the petitioned flood relief. One alternative was to upgrade the storm sewer system in Exeter, including the construction of a new, enlarged storm sewer along portions of Eastern Avenue, extending downstream to the Ausable River. However, he discarded that alternative because of excessive cost, time and disruption to the community, as well as it not being practically feasible due to conflicts with existing sewers and utilities within the road rights-of-way. That alternative also required additional property since the Eastern Avenue right-of-way does not extend down to the Ausable River. As a result, the Engineer directed his attention to the concept of diverting the runoff to the north along the Exeter/Usborne boundary. He considered several alternative locations and design variations. He analyzed each alternative for cost effectiveness, feasibility, impact on adjacent land and the ability to satisfy the design objectives. On completing his analysis, the Engineer, in consultation with the Municipality, the Ausable River Conservation Authority and the landowners, selected the location and design provided in the Report.

The Report design comprises approximately 1,228 metres of 750 mm to 1800 mm diameter reinforced concrete pipe with ancillary works on rural agricultural and golf course land, immediately adjacent to and along the easterly urban-rural boundary between Exeter and Usborne. The Works include earth berms, a depressed area, grassed buffer strips, catch basin inlets and quarry stone erosion protection, located adjacent to the drain on the lands owned by the Appellants. The engineer testified that these works will permanently use 1.87 acres (0.76 hectares) and 0.79 acres (0.32 hectares) of the McBride and Hamather agricultural lands respectively. They will also permanently occupy 0.75 acres (0.30 hectares) of bush land on the Hamather property.

The Engineer explained that he used a 100-year storm design standard for the design of the drain. While acknowledging that this is an unusually high design standard for a municipal drain, he believes the design standard is necessary in this case. He confirmed that in his entire professional practice he had never before designed a municipal drain to a 100-year storm standard.

The Appellants did not present any engineering evidence. Counsel for the Appellants challenged the Engineer about the drain route on the Appellants’ lands, including the construction of surface features such as catch basins, berms, rock erosion protection and grassed buffer strips. The challenge was that those structures would take land out of productive agricultural use. Counsel for the Appellants also challenged the Engineer on the basis that the Works are required strictly for the benefit of urban land within Exeter and will be a detriment to the agricultural lands. Counsel for the Appellants suggested to the Engineer that the storm drain can be constructed along an alternate route, more specifically along Eastern Avenue. Counsel for the Appellants was unable to alter the Engineer’s opinions during cross-examination.

The Appellants asked the Engineer to comment on a $1.6 million cost estimate prepared by another engineering firm, Gamsby and Mannerow Limited, for a storm diversion drain along Eastern Avenue. The Engineer testified that the estimate was incomplete because it only included the portion of the drain on the Eastern Avenue right-of-way and did not include ancillary costs such as property acquisition, relocation of utilities, interest, inflation, legal services, surveying, easements and other miscellaneous costs. He estimated the additional cost of the downstream portion of the drain, beyond the Eastern Avenue right-of-way, at about $600,000. He declined to estimate the ancillary costs because he was not convinced it is feasible to construct the Works along Eastern Avenue amid the existing sewers and utilities. Additionally, he testified that there would still be the cost of the surface works such as catch basins, berms, rock erosion protection and grassed buffer strips on the Appellants’ lands as well as branch drains to direct the runoff to Eastern Avenue.

During cross-examination, the Engineer acknowledged that the agricultural lands might not see a change to their drainage after construction of the Works because their surface runoff is currently draining away unimpeded onto the downstream urban lands. However, he disagreed with the Appellants that they would not receive any benefit from the Works.

On questioning from the panel, the Engineer conceded that the Municipality is not obliged to pay for the entire cost of the Works and that, under normal circumstances, he would have assessed the affected parties, including the McBride and Hamathar lands, for both benefit and outlet. Given that a major portion of the runoff originates on the McBride and Hamather lands, they would normally have been assessed a significant part of the cost for outlet liability. The Engineer also testified that, in his opinion, the Appellants currently do not have a legal drainage outlet but declined to comment on what recourse the Appellants would have if the downstream landowners were to block the drainage.

Mr. Aunger and his two witnesses testified that they and their neighbours have been adversely affected by flooding since they moved into their homes. In Mr. Aunger’s case, this was since 1980. Mr. Aunger presented a number of photographs depicting the flooding events as well as detailed flood data that he collected over the years. He stated that the supported the Works and asked the Tribunal to dismiss the appeals and allow the work to proceed.

The Evidence - Planning Act versus Drainage Act

Under the rubric of “such further and other grounds as counsel may advise” set out in paragraph 4 of the Appellants’ Notice of Appeal dated June 30, 2009, Counsel developed an argument that the Report ought to be set aside as being contrary to the Planning Act and Provincial Policy Statement (PPS).

Counsel for the Appellants argued that the proposed Works are new storm water management facilities benefiting urban lands. He asserted that the Works would divert water away from the urban area of Exeter through his clients’ agricultural lands. He argued the Works provide no benefit to the agricultural use of the lands for the raising of crops or livestock.

He suggested that the proposed use of the Appellants’ agricultural lands for urban infrastructure is a land use planning matter because it proposes to change the land use from agriculture. He argued that because of that the Planning Act and the PPS prevail over the Drainage Act.

The Appellants’ argument flows from the paramountcy provision in section 71 in the Planning Act entitled “Conflict” which states:

“In the event of a conflict between the provisions of this and any other general or special Act, the provisions of this Act prevail.”

The Drainage Act does not contain a paramountcy clause.

Mr. William Pol was qualified as an expert witness in planning and provided testimony for the Appellants.

Mr. Pol testified that the Tribunal, in exercising any authority that affects a planning matter, must make its decision consistent with any applicable policy statement. He pointed out that this requirement is mandated by clause 3(5)(a) of the Planning Act. He then took the Tribunal through the PPS in effect since March 1, 2005.

The essence of Mr. Pol’s evidence is that using the Appellants’ agricultural lands for construction of the Works changes the land use from agricultural use to urban infrastructure use. He testified that is contrary to the PPS policy objective of preserving prime agricultural areas such as the Appellants’ land for long-term agricultural use.

Mr. Pol further testified that the proposed Works must also comply with the Official Plan and Zoning Bylaw for the Municipality of South Huron. He testified it is contrary to those planning instruments to remove lands from agricultural production for urban storm water management facilities.

In cross-examination, Mr. Pol conceded he had never reviewed the Drainage Act.

Mr. Pol testified that in his professional career he had not previously encountered a case where the Planning Act, or the PPS, had prevailed over the Drainage Act.

The Engineer also testified that he had completed approximately 700 reports under the Drainage Act over his 30-year career and that he too had never heard of the Planning Act applying to drainage works. He also had not heard mention of such at any of the meetings and conferences of the professional associations to which he belongs.

Counsel for the Appellants asked the Tribunal to set aside the drainage report because the proposed Works are not consistent with the Planning Act and the PPS and the Official Plan.

Findings and Analysis – Administrative Process

The Municipality’s and Engineer’s apparent disregard and cavalier attitude toward the provisions of the Act disturb the Tribunal. The following list details multiple instances of non-compliance or disregard of the Act throughout the administrative process:

• The Municipality failed to comply with the Act in considering the Petition for Drainage and in appointing the Engineer to prepare either a preliminary or final report.
  • The Council resolution of October 16, 2006 appointing the Engineer pre-dates the Petition for Drainage.
  • That same Council resolution directs the Engineer to “…investigate construction of a municipal drain…” as opposed to preparing a report under the Act.
• The May 5, 2008 Council Resolution instructs the “Drainage Superintendent” to “…move forward on the municipal drain preliminary report”.
  • The Act does not authorize Drainage Superintendents to prepare reports.
  • Furthermore, the resolution requests a “preliminary” report, which is inconsistent with the actual outcome.
• The Engineer testified that he received written instructions from the Municipality to prepare a report under the Act but did not produce those instructions.
  • He stated that he opted to prepare a final report under the Act because the Municipality did not request a “preliminary” Report, yet a “preliminary” report is exactly what the May 5, 2008 Resolution directed.
• The Engineer testified that no one requested an Environmental Appraisal or Benefit Cost Statement under Sections 6 and 7 of the Act respectively.
  • However, the evidence provided is incomplete or inconsistent as to whether the Municipality considered the Petition as required under Section 5 and provided the required notice under Section 6, all of which are required to occur prior to appointing the Engineer as described in Section 8. (our emphasis added)
• The evidence is that Mr. Dietrich held roles both as the Engineer and the Drainage Superintendent, both of which are defined roles with distinct mandates under the Act.
  • Throughout the process, the Municipality confuses Mr. Dietrich’s roles.
  • The Municipality introduced or described the Engineer interchangeably as the Engineer or the Drainage Superintendent in Municipal documents filed on the appeals.
  • The Tribunal is not satisfied that the Engineer was able to act independently as required by Section 11 while holding concurrent roles as Engineer and Drainage Superintendent.
• Mr. Pol testified about seeing a “draft” drainage report. That evidence suggests the Engineer released a draft drainage report, which in the Tribunal’s minds calls into question the Engineer’s compliance with Section 11.
• The Report is incomplete, inconsistent or does not comply with the Act, particularly about the following.
  • The Engineer testified that he conducted a site meeting under Section 9 to determine the area requiring drainage and whether the petition complies with Section 4, but the report does not document same.
  • The Report does not contain a description of the area requiring drainage as required by Section 8(1)(a).
  • The Report fails to comply with Section 8(1)(c) and Sections 21 to 25 in that it does not provide assessments against every parcel of land and road for benefit, outlet liability and injuring liability.
    • The fact that the Municipality is prepared to underwrite the entire cost of the Works does not alter the Engineer’s statutory duty to make the assessment.
  • The Report fails to show the approximate number of hectares affected by the Works for each parcel of land as required by Section 36.
  • The Report states that all future connections into the new drainage system may be assessed a connection fee determined by the Municipality.
    • The Municipality has no authority to make assessments under the Act.
    • The Engineer testified future connection fees arise under Section 66(1), however, that section requires the appointment of an Engineer to make the assessment.
    • Section 66(1) would also apply to the Appellants in this case, since they are not assessed, even though they contribute runoff and are to be connected to the new drain.
• There is no authority under the Act for Council to adopt an Engineer’s Report with an Addendum that was negotiated “on the fly”, that was not circulated, and that was negotiated just before the Council meeting to consider the Report.
• The Council By-law adopting the Report under section 45 of the Act fails to mention the existence of the Addendum to the Report.

Findings and Analysis – Design and Location of the Works

Although the Report refers to alternative drainage solutions investigated there are few details provided on these alternatives in the Report. While the Act does not specifically mandate including such details, they would have been extremely useful and helpful in understanding the Engineer’s final recommended Works and may have even assisted the parties in resolving their differences.

Despite the lack of detail in the Report, the Tribunal is satisfied with the location and routing of the drain as recommended by the Engineer. The uncontested evidence is that the source of the runoff that causes the flooding in the urban area is predominantly from the agricultural lands, including those of the Appellants, with the exception of a small residential strip along Huron Street. That flooding is the impetus behind the Petition for Drainage.

Although a small portion of the Appellants’ lands outlet to the Huron Street Drain, the majority of their lands drain overland toward the downstream urban areas in Exeter. Under Common Law, downstream landowners and roads are not obliged to accept runoff from upstream lands and roads. Faced with overland water flow, downstream landowners might use self-help remedies or lawsuits based in nuisance law against the upstream owners. Upstream landowners need a legally protected outlet. A landowner achieves a legally protected outlet by containing and directing their runoff to a Municipal Drain constructed under the Act or to a Natural Watercourse. In the circumstances before us, the upstream landowners who are the Appellants McBride and Hamather have no legally protected outlet for the bulk of their drainage.

We accept the Engineer’s evidence that the drain route will convey the overland water flowing off the agricultural land to a sufficient legal outlet. We also accept the Engineer’s evidence that the drain will provide improved sub-surface water controls to the McBride and Hamather lands, which is a benefit to their agricultural activities.

The proposed drainage scheme in this case is to create a Municipal Drain, the sole purpose of which is to convey water from the predominantly agricultural lands to a sufficient outlet in the Ausable River. While the flooding manifests in the urban area, the source of the floodwater is the agricultural lands owned by the Appellants. The area requiring drainage to a sufficient legal outlet is the agricultural lands. As such, the Tribunal is satisfied that the route of the drain within the agricultural land is appropriate.

The Engineer has designed the drain to a 100-year standard. That standard is based on the rainfall and run-off associated with a hypothetical storm event that occurs only once every 100 years. This is an unusually high standard for a municipal drain. One of the Panel members is a retired professional engineer and drainage engineer with over thirty years professional experience in drainage. In that Panel member’s experience, he has never seen a 100-year standard for a municipal drain.

The Engineer testified that the proposed design standard is much higher than the current 5-year standard for the storm sewers in the Town of Exeter. He confirmed that most urban storm sewers are designed to a one in five-year storm event and said that in his professional career he had never previously designed a municipal drain to a 100-year standard. In response to questions from the Panel, he testified that if he had used a typical design standard for municipal drains, the cost of the project would probably be about one-quarter of the cost currently proposed. He also confirmed that had he used any other standard less than the 100-year standard, the projects costs would likely go down by about half. (emphasis added)

Based on the evidence about the unusual design standard and the resulting impact on the costs of the Works, the Tribunal is not satisfied that such a design standard is warranted for a drain that conveys water run-off from primarily agricultural lands.

In the absence of a Cost Benefit Statement under Section 7 of the Act, the Appellants have satisfied us on their appeal ground number 1 that the benefits to be derived from the proposed drain design are not commensurate with the estimated costs.

Findings and Analysis – Planning Act versus Drainage Act

Drainage is an integral and necessary part of successful agriculture.

The Appellants have enjoyed good drainage of their lands for many years by allowing the surface water to flow downstream lands within Exeter.

The Tribunal is satisfied on all the evidence that the source of the runoff is predominantly from agricultural lands, including those of the Appellants. Therefore, we find the proposed Works will benefit the Appellants’ lands for their continued use growing crops and livestock. We also find the proposed Works are not storm water management facilities for the sole benefit of the urban lands within Exeter.

Under Common Law, the Appellants have no assurance they can continue to discharge runoff onto downstream lands and roads.

The Tribunal is satisfied that an appropriately designed drainage works is necessary for the Appellants’ agricultural land use to collect and direct runoff from the agricultural properties to a good and sufficient outlet in the Ausable River.

Accordingly, the Tribunal finds that an appropriately designed drainage works is not a land use planning matter that engages the Planning Act and the PPS.

Order of the Tribunal

The Tribunal orders that:

1. The appeal is granted.
2. The Engineer’s Report is set aside.
3. There will be no order of costs and all parties are responsible for their own costs.

Dated at Brampton, Ontario, this 8th day of March, 2010