Headrick Drain (Re), 2010 ONAFRAAT 30

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

Headrick Drain Township of Macdonald, Meredith & Aberdeen Additional

Headrick Drain (RE) 2010 ONAFRAAT 30

Drainage Act

September 14, 2010

DATE OF DECISION:

September 21, 2010

2010-30

2010 ONAFRAAT 30

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 Max Iland, Echo Bay, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Headrick Drain in the Township of Macdonald, Meredith & Aberdeen Additional.

Before: Kirk Walstedt, Chair; Enio Sullo, Member; Tim Mousseau, Member

Appearances: Max Iland – Appellant and assessed landowner Colin G. Trivers, Engineer, C.G. Trivers Limited on behalf of Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Echo Bay Community Hall, Township of Macdonald, Meredith & Aberdeen Additional, Echo Bay, Ontario on September 14, 2010. Mr. Max Iland (the Appellant) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 54(1) of the Drainage Act, (the Act) from the decision of the Court of Revision concerning the assessments on his two properties within the drainage watershed.

Ms. Lynne Duguay, 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 Ministry of Transportation (MTO) under Section 4 of the Drainage Act to provide drainage for a portion of the new Highway 17 in the Geographic Township of MacDonald, now part of the Municipal Corporation of Macdonald Meredith & Aberdeen Additional. The municipality appointed the Engineer in August 2007. The Engineer conducted site meetings on October, 30, 2007 and May 15, 2008, determined the “area requiring drainage” and subsequently prepared a report dated October 31, 2008 (the Report). The Report provides for deepening of the existing drain channel, brushing, culvert adjustments and erosion protection. The watershed comprises 360 hectares some of which is under agricultural production of hay, cereal grains, produce and berries.

Mr. Max Iland is the owner of two properties at the easterly upstream limit of the Headrick Drain watershed: Roll No. 2-45302, Pt Lot 37, R.P. H-773; and Roll No. 2-44800 Lot 30, R.P. H-733. The Report assesses the two properties Outlet for 2.0 hectares and 23.0 hectares, corresponding to $170 and $990 respectively.

ISSUE

Should the Appellant’s assessments for his two properties be reduced?

EVIDENCE

Engineer – Mr. Trivers

The Engineer provided a brief summary of his report, including how he calculated the assessments for the work. He testified that he assessed the landowners within the “area requiring drainage” $150 per hectare for “Benefit”. Those landowners outside of the area requiring drainage, including the Appellant, were not assessed for “Benefit”. He said that he determined the “Benefit” assessment to the MTO based on his estimate of the costs that the MTO would have incurred if they had to drain their lands along the roadway, south to the Bar River.

For purposes of “Outlet”, the Engineer said he divided the drain into four sections. He assessed the roads and lands within those four sections under outlet based on the costs for each section and the amount of runoff. He said he used a factor of 1.0 for the cultivated lands, 4.0 for the roadways, including the MTO, and 0.5 for forested lands including the lands owned by the Appellant.

The Engineer testified that in addition to his appeal under the Act, the Appellant had objected to the placement of excess fill that had come out of the construction of Highway 17, on the grounds that it was blocking the flow from his property. Accordingly, the Engineer organized meetings with the MTO, the Municipality and Mr. Iland and a solution was agreed to which included various ditching in and around the fill area to improve drainage. The Engineer produced a drawing showing the remedial work to be done on the fill area, and stated that work would be undertaken in conjunction with the drainage project, at the cost of the MTO.

Appellant - Mr. Iland

Mr. Iland testified that he purchased his land in 1979 as an abandoned farm and in 1980 he began to forest the lands under an agreement with the Province of Ontario. He said that he initially planted 50,000 seedlings. He noted that although his land is low and wet, and it was hard to grow the seedlings, he now has trees that are over 40 feet tall. He stated that he continues to regularly plant additional seedlings. He argued that the reforestation of his land has dramatically reduced the need for drainage of his property. He cited two scientific papers to support his point that trees absorb a large amount of water on a regular basis which can result in a 50% reduction in surface runoff. Accordingly, he felt the drain was of no benefit to him and therefore he should not be assessed anything.

Under cross examination by the Engineer, Mr. Iland confirmed that he had met with the MTO, the Engineer and the Municipality on several occasions to discuss his concerns relating to the dumping of fill from the construction of Hwy 17. Mr. Iland conceded that he requested that several ditches be excavated to assist in draining natural runoff from his land.

In response to questions from the panel, Mr. Iland conceded that following significant rainfall events, there is excess water that accumulates on his property that cannot be absorbed by the trees. However, he said that the excess water drains naturally off his land. Accordingly, he said that his property should be left out of the drainage project and that he should have no assessment.

Responding to Mr. Iland’s testimony, the Engineer stated that it would be unfair to remove Mr. Iland’s property from the project as his property does contribute water to the Headrick Drain.

Analysis and Findings

The Tribunal accepts Mr. Iland’s argument that reforestation of his land does in fact result in up to a 50% reduction of surface water runoff, and commends him for his reforestation efforts. However, the Tribunal does not accept Mr. Iland’s argument that the drain is of no benefit to his lands. By his own admission, he agreed that the runoff due to reforestation would result in a reduction of surface water of about 50% as compared to grassed or agricultural lands. The Engineer testified that he had already applied a 50% reduction in the assessment of Mr. Iland’s lands to account for reduced runoff caused by the tree cover. Accordingly, the Tribunal will not order any changes to Mr. Iland’s assessments.

Order of the Tribunal

The Tribunal Orders that the appeal of Mr. Max Iland be denied.

Dated at Maidstone, Ontario this 21st day of September, 2010