VanBuuren Municipal Drain Branch “A” (Re), 2010 ONAFRAAT 22

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 Stone Road West

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 Courriel : appeals.tribunal.omafra@ontario.ca

VanBuuren Municipal Drain Branch “A” Township of West Lincoln

VanBuuren Municipal Drain Branch “A” (RE) 2010 ONAFRAAT 22

Drainage Act

July 13, 2010

DATE OF DECISION:

July 19, 2010

2010-22

2010 ONAFRAAT 22

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 Dave and Jackie Orgar, Grassie, Ontario under Section 48(1) and 54(1) of the Drainage Act from the engineer’s report and from a decision of the Court of Revision; and Andrea and Jorge Clemencio, Grassie, Ontario; and John Petropoulos, Grassie, Ontario under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the VanBuuren Municipal Drain Branch “A” in the Township of West Lincoln.

Before: Kirk Walstedt, Chair; Jack Young, Vice-Chair; Enio Sullo, Member

Appearances: Dave and Jackie Orgar – Appellant and assessed landowner Andrea Clemencio - Appellant and assessed landowner John Spriet – Engineer on behalf of the Municipality Harold Hall – Drainage Superintendent for the Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Township of West Lincoln, (the Municipality), in Smithville, Ontario on July 13, 2010. Dave and Jackie Orgar appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Sections 48(1) and 54(1) of the Drainage Act, (the Act) and Andrea and Jorge Clemencio and John Petropoulos appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 54(1) of the Drainage Act regarding assessments from the Engineer’s Report titled “VanBuuren Municipal Drain Branch “A” dated October 31, 2008, prepared by Spriet and Associates Ltd. (the Engineer), and signed by John R. Spriet, P.Eng.

Ms. Carolyn Langley, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Clerk of the Municipality filed an affidavit of service with the Tribunal as proof that all parties have been served with notice of this hearing.

Background

The drainage report was initiated by a petition submitted by the Township of West Lincoln Road Authority under Section 4 of the Drainage Act for drainage of a portion of South Grimsby Road 12. The Municipality appointed the Engineer in 2003. The Engineer conducted a site meeting on August 21, 2003 and prepared a report dated October 31, 2008. The report provides for the construction of a new drain comprised of 202 metres of tile drain and 108 metres of open channel outleting to the VanBuuren Drain. The watershed comprises 18.6 hectares. Between 2003 and 2008 a number of residential lots severances were granted by the Municipality along the west side of South Grimsby Road 12. Most of the current landowners of these lots purchased their newly created lots during this period and did not participate in the 2003 site meeting.

Issues

Should the design of the drain be altered in configuration or location?
Should the assessments be adjusted?

Evidence

Appellant: Mr. Orgar

Mr. Orgar testified that he and his wife purchased their property in 2007. He produced a number of photographs illustrating the drainage problems along South Grimsby Road 12 and also on his property. The photographs depicted several pipe culverts almost totally filled with sediment.

Mr. Orgar objected to the proposed drain being located on his property. He proposed that the water from the road pipe culvert in front of his property should be rerouted northward along the east road ditch of South Grimsby Road 12 to Mud Street (Regional Road No. 73) then eastward along Mud Street to the VanBuuren Drain. The photographs also indicated that there were drainage problems at the rear of Mr. Orgar’s property.

With respect to the alignment of the open portion of the drain as proposed in the Engineer’s report, Mr. Orgar suggested that the channel should be rerouted onto the neighbouring Culette property to continue with the alignment of the tile portion of the drain.

In response to questions by the Tribunal, Mr. Orgar confirmed that one of the photographs indicated that the water from the road pipe culvert in front of his property was flowing east along the north edge of his property in the location of the drain proposed in the Engineer’s report.

Appellant: Ms. Clemencio

The Clemencio’s purchased their property in 2007. Ms. Clemencio argued that the drainage issues being addressed in the Engineer’s report were largely caused by the Municipality’s inaction in dealing with drainage when they approved the severances of lots along South Grimsby Road 12. She stated that the Municipality should be held accountable for this inaction and therefore should pay a larger portion of the drainage costs.

Appellant: Mr. Petropoulos

Mr. Petropoulos did not attend the hearing. However, he provided a written submission indicating the same concerns as Ms. Clemencio.

The Engineer who prepared the report: John Spriet

Mr. Spriet provided an overview of his report. He testified that he did not agree with the alternative design route as proposed by Mr. Orgar. He presented engineering elevation measurements which indicated that it was not feasible to route the water northward along the east road ditch of South Grimsby Road 12 to Mud Street (Regional Road No. 73) then eastward along Mud Street to the VanBuuren Drain.

The Engineer presented a series of photographs taken in 2004 depicting the drainage problems along the proposed drain.

The Engineer testified that the drain has been designed for a 38 mm (1.5”) drainage co-efficient which is an acceptable design for a rural drainage project. He indicated that the 400 mm (16”) tile drain will carry the drainage water adequately with the exception of overflow during extreme storm events. He stated that the open channel design at the outlet of the drain was more than adequate to carry the design flow.

In response to Mr. Orgar’s suggestion that the downstream portion of the open channel should be rerouted off his property and onto the neighbouring Culette property, Mr. Spriet stated that the proposed alignment of the channel closely follows the existing overland drainage flow route.

In response to the arguments raised by Ms. Clemencio and Mr. Petropoulos, Mr. Spriet stated that he was aware of the severances of lots that were granted by the Municipality since the time of his appointment in 2003, and that he had considered this in determining the assessment to the Municipality (South Grimsby Road 12). He provided several worksheets to support his assessment calculations.

Analysis and Findings

The Tribunal accepts the elevation evidence provided by the Engineer illustrating that it is not feasible to divert the flow of water from the existing road culvert on the Orgar property line northward along the east road ditch of South Grimsby Road 12 to Mud Street (Regional Road No. 73) and then easterly to the VanBuuren Drain. The Tribunal also accepts the Engineer’s justification for the proposed alignment of the downstream open portion of the drain.

Mr. Orgar did not present any substantive evidence to refute the professional evidence of the Engineer. He also did not provide any substantive evidence to suggest any feasible alternative designs to contradict those proposed by the Engineer.

The Tribunal has reviewed the assessments in the report, supported by the Engineer’s assessment worksheets, and finds the methodology to be in general compliance with the Drainage Act and in keeping with accepted engineering practices.

The Tribunal accepts Ms. Clemencio’s evidence that the Municipality failed to adequately address drainage issues as part of the severance of lots. However, the Tribunal is satisfied that the Engineer adequately considered this in setting the assessment to the Municipality (South Grimsby Road 12). Accordingly, the Tribunal accepts the Engineer’s assessments against the Municipality to be reasonable in the circumstances.

Order of the Tribunal

The Tribunal Orders that:

The appeals by Dave and Jackie Orgar under sections 48(1) and 54(1) of the Drainage Act; and the appeals by Andrea and Jorge Clemencio, and John Petropoulos under section 54(1) of the Drainage Act are denied.
The non-administrative costs of the Municipality in respect to this appeal shall form part of the cost of the drainage works, and it is ordered that there be no other order as to costs and all parties are responsible for their own costs.

Dated at Maidstone, Ontario this 19th day of July, 2010