Ross Drain (Re), 2010 ONAFRAAT 32

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

Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Ross Drain 2004 Application Township of Norwich

Ross Drain (RE) 2010 ONAFRAAT 32

STATUTE: Drainage Act

HEARING: September 28, 2010

DATE OF DECISION: November 15, 2010

2010-32

NEUTRAL CITATION: 2010 ONAFRAAT 32

Ross Drain 2004 Section 58(4) Application

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

AND IN THE MATTER OF: An application to the Agriculture, Food and Rural Affairs Appeal Tribunal by the Township of Norwich, Otterville, Ontario under Section 58(4) of the Drainage Act seeking modifications to the engineer’s report on the Ross Drain 2004 in the Township of Norwich.

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

Appearances: Wray Ramsay- Drainage Superintendent for the Municipality John Kuntze- Engineer who prepared the Report Wayne and Liz Buchanan – assessed landowners Keith Armstrong – assessed landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Township of Norwich, (the Municipality) in Otterville, Ontario on September 28, 2010. The Municipality applied to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 58(4) of the Drainage Act (Act) seeking modifications to the Engineer’s Report on the Ross Drain 2004, dated July 8, 2004 (the Report) prepared by John Kuntze P. Eng. (the Engineer).

Michael Graves, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

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 of the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with notice of the hearing on September 15, 2010.

Background

The Ross Drain 2004 Report dated July 8, 2004, was prepared by K. Smart Associates Limited and signed by Mr. John Kuntze, P. Eng., pursuant to Section 78 of the Act as a result of a request by landowners for repairs and improvements to the Ross Drain 1976. Construction of the $86,200 project took place in the summer of 2005. Among other things, the work included the construction of 132 m of 450 mm concrete tile on the Keith Armstrong property to parallel an existing 1966, 400 mm tile referred to as the Elliott Drain Branch B. Subsequently, Mr. Armstrong complained that the existing Elliott Drain Branch B had ceased to function on his property and in 2006 he appealed the 2004 Report to the Tribunal under Section 64 of the Act regarding quality of construction issues.

A Tribunal hearing was held on the Armstrong appeal and a settlement agreement negotiated by the Engineer between the contractor on the drain and Mr. Armstrong formed part of the Tribunal’s decision dated October 31, 2006.

Item 6 of the settlement agreement reads as follows:

“The Engineer for the Ross Drain 2004 John Kuntze, P.Eng shall determine why the Elliott Drain Branch B which remains as part of the Ross Drain does not appear to be working and shall have remedied any problems that may exist with the Elliot Drain Branch B prior to issuing a completion certificate for the Ross Drain 2004 and prior to October 31, 2006.

The Engineer, John Kuntze, P.Eng shall confirm that berms on the upper portions of the Ross Drain are properly constructed and stabilized prior to issuing a completion certificate for the Ross Drain 2004.”

In the fall of 2006 and spring of 2007, the Engineer examined the 1966 Elliott Drain Branch B tile on the Buchanan property which is across the road and immediately upstream of the Armstrong property. This examination showed some sections of the tile to be almost completely filled with standing water and that the tile had no effective grade. The Engineer determined that the 1966 Elliott Drain Branch B tile on the Buchanan property would have to be replaced with a new 350 mm diameter concrete tile, downstream of the Buchanan driveway, to parallel the existing 400 and 300 mm tile drain.

Following his examination of the 1966 Elliott Drain Branch B tile on the Armstrong property in the fall of 2007, the Engineer determined that the grade of the existing tile was ineffective. Accordingly, he concluded that the existing 400 mm tile on the Armstrong property would also have to be replaced with a new 450 mm tile.

The additional tile replacement work on the Buchanan and Armstrong properties was completed in May and November 2007 respectively, however, the landowners may not have been apprised of the additional costs associated with this work.

A further problem occurred at the Buchanan driveway where the existing 600 mm culvert was unable to carry the surface flow. The Municipality’s road department repaired the driveway three times, in 2006, 2007, and 2008. An on-site meeting was held on June 17, 2009 with the Engineer, Wayne and Clare Buchanan, and Wray Ramsay, the Drainage Superintendent, to review the laneway washout problem. Subsequently, the Engineer determined that the existing lane culvert to the Buchanan residence should be replaced with a new culvert. The construction of this new culvert has not yet taken place.

The Municipality tried unsuccessfully to have the Engineer prepare an amendment to the 2004 Report incorporating all the changes. Accordingly, on June 29, 2010, Council for the Municipality passed a resolution requesting the assistance of the Tribunal in acquiring a new report. On July 7, 2010 the Tribunal office received a request under Section 58(4) of the Act “to have the Engineer produce a new Amended Ross Drain 2004 Report.” The Notice of Hearing for this hearing was dated July 29, 2010.

The Engineer prepared a document titled “Addendum No.1, Ross Drain 2004” (the Addendum), dated September 8, 2010. The Addendum was not considered by the Council for the Municipality, but was mailed to the landowners and is the subject of this Tribunal hearing. The Addendum provides details of the additional construction work that has already been done or is recommended to be done, but was not included in the 2004 Report. The major part of the construction work that has already been done since the Tribunal decision of 2006, comprises the replacement of the 1966 Elliott Drain Branch B tile on the Buchanan and Armstrong properties. The work recommended to be done but not yet completed, consists of the replacement of the surface water culvert across the Buchanan laneway. The Addendum recommends that the 1966 Elliott Drain Branch B be abandoned of status under the Act. The Addendum also provides an updated cost estimate for the additional work and a revised Schedule of Assessments to distribute the both original and additional costs to the landowners.

The Ross Drain 2004 Report requires modifications to account for the additional work completed and its additional associated costs, resulting in an overall project cost of $115,250. The Municipality has also accrued interest costs of approximately $14,000 to date which has not been accounted for in the Addendum.

Issues

1. Should the Tribunal modify the Ross Drain 2004 Report as detailed in the Engineer’s Addendum?
2. Should landowners have further opportunity to appeal their increased assessments associated with the additional work undertaken?
3. What portion of the Municipality’s accrued interest costs should be apportioned to landowners?

Evidence

Engineer – John Kuntze, P. Eng.

Mr. Kuntze outlined the additional tile replacement work that was done on the Armstrong and Buchanan properties. He testified that he relied on Item 6 of the Minutes of Settlement which was incorporated into the 2006 Tribunal decision as his authority to carry out the extra work. He described the procedure that he used to check the condition of the existing 1966 Elliot Drain Branch B tile. He stated that his investigation showed that the drains were structurally sound and were not blocked. However, the major problem with the 1966 Elliott Drain Branch B was that the elevation and grade of the old tiles varied significantly from the design grade in the original 1966 engineering report. He stated that he made the decision to replace the old tile with a new 450 mm drain on the Armstrong property and a new 350 mm drain downstream of the laneway on the Buchanan property.

Mr. Kuntze described the surface water problems at the culvert under the Buchanan driveway. He testified that the Municipality had repaired the laneway washout on three occasions and that although a new surface water culvert had been designed for the laneway and had been included in the Addendum, it had not yet been constructed at the time of this hearing.

In response to questions from Mr. Ramsay, the Engineer testified that prior to the preparation of the Ross Drain 2004 Report, he had not done any investigation of the 1966 Elliott Branch Drain B tile on the Buchanan or Armstrong properties and that no test holes were dug to check the condition of the old tile. In response to questions from Mr. Buchanan, Mr. Kuntze confirmed that the only such investigation of the condition of the old tile took place in 2007.

Mr. Kuntze further testified that the objective of the Report was to provide an outlet for upstream water to flow through the Buchanan and Armstrong properties. He stated that the project was not designed to carry surface water. He said that the project will continue to have surface water problems since the tile cannot carry all the flow. He acknowledged that much of the grassed waterway that existed over the old tile drain was destroyed during the construction of the new tile and suggested that a grassed waterway could still be constructed as part of a new project. Responding to questions from the Panel, Mr. Kuntze stated that since this project is not the improvement of a natural watercourse, the requirement of Section 14 to provide capacity for surface water drainage does not apply.

Mr. Kuntze testified that all the costs on the project were legitimate and the extra costs to replace Branch B would have been incurred anyway, since the work was required. He stated that, in retrospect, if he were doing the project again, he would have constructed the project using a single large diameter tile, but that is no longer possible given the circumstances.

Mr. Kuntze requested the Tribunal to order that this hearing take the place of the “Meeting to Consider” the Addendum and that a “Court of Revision” be held to deal with the assessment issues.

Mr. Kuntze stated that there would not be an engineering charge for the preparation of the Addendum but there would be a charge of about $2,800 for the previous Tribunal hearing. He said there would also be a “small additional charge” of $6,300 for his investigation of the tiles on the Buchanan and Armstrong properties, which he said doesn’t come anywhere close to the actual cost.

In response to Mr. Ramsay’s testimony, Mr. Kuntze accepted some responsibility for the delay in finalizing the project stating that he should have completed his work in 2009. Therefore, he said that he was willing to accept responsibility for interest charges accrued during 2010. He added that the Municipality could have passed an interim by-law to impose and collect the accrued costs from the assessed landowners at any time after the additional tile installation work was completed in 2007.

Mr. Kuntze said that he sympathized with the limited time that the landowners had to consider his Addendum. Accordingly, he said that they should be given additional time to review their individual assessments.

Drainage Superintendent – Wray Ramsay

Mr. Ramsay testified that he had not participated in making the decision to proceed with the extra work on the Buchanan and Armstrong properties, and that he had not approved any of the additional construction on behalf of the Municipality. He stated that in his opinion, the Engineer did not have the authority to carry out the extra work without a prior change to the Report and the by-law. He said that he had not been kept informed of the extra work being done and did not learn of the extra work until a load of tile was delivered to the site. He testified that he had asked the Engineer several times to hold a meeting with the landowners but the meeting never materialized.

Mr. Ramsay asked that a new schedule of assessments for maintenance for the complete project be prepared so that the Drainage Superintendent would have the necessary documents to maintain the project in the future.

Mr. Ramsay further testified that despite repeated requests, he has not received a completion certificate from the Engineer for the project and, as such, none of the costs had been billed out to the landowners. He presented a breakdown of interest costs that have accumulated since the preparation of the 2004 Report, totalling approximately $14,000. He said that the excessive interest costs were the result of a three year delay caused by the Engineer and therefore should not all be charged to the project.

In response to Mr. Kuntze’s statement that the Municipality could have passed an interim by-law to impose and collect the accrued costs from the assessed landowners at any time after 2007, Mr. Ramsay argued that the Municipality did not pass an interim by-law because they believed that the receipt of the Engineer’s certificate of completion and Addendum for the additional work was imminent, even though it never arrived.

Assessed Landowner – Wayne Buchanan

Mr. Buchanan stated that he was not pleased with the fact that he was given only one-week notice of the Tribunal hearing and only had one week to consider the Engineer’s Addendum. He testified that during the planning stages for the 2004 Report, Mr. Kuntze told him that the new drain would allow for the removal of the grass waterway on his farm as the water would pass underground. During the construction of the drain much of the existing waterway was destroyed which has since resulted in a great deal of soil eroding from his field and washing into the drain. He asked that consideration be given to constructing an engineered waterway across his field in order to minimize future flooding and washouts.

Mr. Buchanan expressed concern about his lane which leads from the road to his residence that has washed out on several occasions. He asked that the culvert under his laneway be constructed and maintained as part of the Ross Drain 2004 Report. However, he stated that the cost of the repairs to his laneway should be deducted from the property assessments and assessed to Norwich Township, its agents and contractors.

Mr. Buchanan criticized the design of the project and felt that the old tiles should have been replaced with only one larger new tile. He stated that the time taken to complete the project is “excessive and ridiculous” and that he is concerned with the substantial additional costs that have been added to the drain project. He said that the additional costs are substantial and well in excess of the cost set out in the 2004 Report. He said that he believes that most of the additional costs are the result of inadequate engineering, improper construction and inexperienced contractors. He added that, in the business community, when one purchases a service, one expects that service to be performed without additional costs being borne by the purchaser.

Assessed Landowner – Keith Armstrong

Mr. Armstrong testified that he was aware of the decision to install a new 450 mm drain on his property to take the place of the old 1966 Elliott Branch B drain tile; however, there was no discussion about who would pay for the extra cost. Mr. Armstrong questioned why all the work was done without consultation with the landowners. He stated that “either it was an error on behalf of the Municipality for allowing the changes to take place without consultation with the landowners affected, or the Engineer's error for not identifying the problem with the old tile known as Branch B in the first place”.

Mr. Armstrong opposed the complete abandonment of the old 1966 Elliott Drain Branch B of its status under the Drainage Act, as directed in the Addendum Report. He testified that he had a need for the section of Branch B on his property only, to provide drainage of a very low area of his land and road water runoff. He said this area is too low to be drained by the Ross Drain 2004. It should be noted that Mr. Armstrong’s request was supported by both Mr. Ramsay and Mr. Kuntze.

Mr. Armstrong expressed disappointment with the limited time he was given to prepare for this matter. He testified that the Tribunal notice which included the Engineer’s Addendum was sent by the Municipality on September 15th but was not received at his home until September 22nd for the hearing on September 28th. Accordingly, Mr. Armstrong requested an extension of time before further decisions are made so that he and the other landowners would have sufficient time to review the Addendum.

Findings

The Tribunal accepts the Engineer’s testimony that much of the work to replace the 1966 Elliott Drain Branch B tile would have been required anyway.

It has now been almost three years since the work on the Armstrong property was done, however, the Engineer has not yet issued a Certificate of Completion for the project, despite repeated requests from the Municipality. It was not until the notice for this Tribunal hearing was issued on July 29, 2010 that the Engineer finally produced his Addendum dated September 8, 2010. Accordingly, the Tribunal finds that the Engineer was delinquent in his duty to finalize the project in a timely manner.

The Addendum indicates that the existing 1966 Branch B tile was examined on the Buchanan property in the fall of 2006. The Drainage Superintendent testified that he was unaware of this work and that he did not authorize any remedial work. The Engineer testified that he authorized the work on the Buchanan property; however, there is no evidence that he informed the Municipality of what was happening on the project. In addition, the Engineer testified that he authorized repairs to the Buchanan's laneway.

Mr. Kuntze authorized repairs to the Buchanan laneway culvert that were not part of the original Report, even though he testified that the project was not designed to carry surface water. The Tribunal finds that the Engineer’s actions in regard to the Buchanan laneway culvert exceeded what was authorized in the Report and the Minutes of Settlement incorporated into the October 31, 2006 Tribunal decision.

The Tribunal concurs with Mr. Ramsay’s request that not all the accrued interest be charged to the project. The Tribunal has considered Mr. Kuntze’s statement that he should have finalized the project in 2009. The Tribunal finds that since the additional tile replacement work on the Buchanan and Armstrong properties was completed in May and November 2007, that Mr. Kuntze should have issued a certificate of completion at that time.

The Tribunal has considered the Engineer’s request to have this Tribunal hearing take the place of the “Meeting to Consider” the Addendum Report. The Tribunal accepts that, in view of the extensive discussion of the project at this hearing, it is unlikely that any additional evidence relating to the project would be presented at a further meeting. Accordingly, the Tribunal will order that in the procedure under the Act to adopt the Engineer's Addendum, this hearing shall replace the “Meeting to Consider”. Since issues pertaining to Section 48 of the Act have been considered at this hearing, the Tribunal will also order that no further appeals to the Addendum under Section 48 will be permitted.

The Tribunal has reviewed the evidence of the parties with respect to the lack of time to consider the “Assessment Schedule” associated with the Addendum and accepts that having more time to consider the Assessment Schedule is a reasonable request.

The Tribunal will order that the Municipality hold a “Court of Revision” to deal with any appeals relating to the assessments contained in the Addendum.

The Tribunal accepts Mr. Buchanan’s request to have the laneway culvert provided for in the Addendum constructed as part of the project.

The Tribunal acknowledges and accepts the Engineer’s offer that there will be no additional engineering charges for the preparation of the Addendum, and his offer to pay for the interest accrued during 2010.

Despite Mr. Ramsay’s testimony, the Tribunal agrees with Mr. Kuntze’s statement that the Municipality could have passed an interim by-law to impose and collect the accrued costs from the assessed landowners any time after 2007. Therefore, the Tribunal finds that the Municipality bears some responsibility for the delay and unduly high accrued interest charges on this project.

The Tribunal is troubled by the poor level of service that the landowners have received on this project that has involved numerous meetings, ongoing construction and repairs as well as two Tribunal hearings. The Tribunal finds that the additional tile replacement work on the Buchanan and Armstrong properties should have been part of the Engineer’s original investigation and included in his 2004 Ross Drain Report. Despite that the construction work would have been required anyway, the preparation of the Addendum and this Tribunal hearing could, in all likelihood, have been avoided. Therefore, the Tribunal will order that the Engineering fees associated with this hearing shall be borne by the Municipality.

The Tribunal has considered Mr. Buchanan’s request to incorporate an engineered waterway as part of this project, although it was not included in the 2004 Report or the Addendum. The Tribunal is concerned with the further delay and expense to this project that would result from the addition of this work, particularly at this late stage in the project completion. Accordingly, no order will be made in this regard.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. Within 30 days of the date of this decision, the Municipality shall pass a by-law to adopt the Addendum dated September 8, 2010 and it shall form part of the provisional by-law for the Ross Drain 2004 Report.

2. The Municipality shall provide notice of the first sitting of the Court of Revision pursuant to Section 46 of the Act.

3. The Schedule of Assessments as shown in the Addendum, and as may be amended by the Court of Revision, shall replace the Schedule of Assessments in the Ross Drain 2004 by-law.

4. Landowners shall have 21 days from the date of the decision of the Court of Revision to appeal to the Tribunal under section 54 of the Act.

5. There shall be no further appeals of the Addendum under Section 48 of the Act.

6. The section of the 1966 Elliott Drain Branch B on the Armstrong property shall not be abandoned. It shall be maintained as outlined in the 1966 by-law.

7. There shall be no additional charges for the preparation of the Addendum Report as per the offer of the Engineer.

8. All engineering fees associated with this hearing shall not be charged to the project or levied against the affected roads and landowners but rather, shall be borne by the Municipality.

9. Interest charges that have accrued from October 1, 2007 to December 31, 2009 and that will accrue from January 1, 2011 to the imposition and collection of the assessments pursuant to Section 61 of the Act shall not be levied against the assessed roads and landowners but rather, shall be borne by the Municipality.

10. Interest charges that have or will accrue to the project in the 2010 calendar year shall not be levied against the assessed roads and landowners but rather shall be borne by the Engineer as per his offer.

11. There shall be no order as to costs and all parties shall be responsible for their own costs.

Dated at Maidstone, Ontario this 15th day of November, 2010