Baird Municipal Drain (RE), 2010 ONAFRAAT 34

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

1 Stone Road West 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: Baird Municipal Drain 2010 Branch D Municipality of Morris-Turnberry

Baird Municipal Drain (RE) 2010 ONAFRAAT 34

STATUTE: Drainage Act

HEARING: November 9, 2010

DATE OF DECISION: November 17, 2010

2010-34

NEUTRAL CITATION: 2010 ONAFRAAT 34

BAIRD MUNICIPAL DRAIN 2010 BRANCH D

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 Don and Marian Eadie, Wingham, Ontario under Sections 48(1) and 54(1) of the Drainage Act from the engineer’s report and from a decision of the Court of Revision on the Baird Municipal Drain 2010 Branch D in the Municipality of Morris-Turnberry.

Before: Kirk Walstedt, Chair; Enio Sullo, Member; Bill Schaefer, Member

Appearances: Donald and Marian Eadie - Appellant Nathan Peel - Witness for Appellant Jeremy Taylor - Engineer who prepared the Report

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers of the Municipality of Morris-Turnberry, in Brussels, Ontario on November 9, 2010. Don and Marian Eadie appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1) and 54(1) of the Drainage Act (The “Act”) from the Engineer’s Report prepared by R.J. Burnside & Associates Limited and signed by Jeremy C. Taylor, P.Eng. on the Baird Municipal Drain Branch D, dated July 21, 2010 (the Report), and from a decision of the Court of Revision dated August 24, 2010.

Nancy Michie, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Background

The Baird Municipal Drain comprises a watershed of approximately 245 hectares of agricultural and wooded lands in Lots 13 to 18, Concessions 10 to 12 in the geographic municipality of the Township of Turnberry, now in the Municipality of Morris-Turnberry. The drain is comprised of an open channel Main Drain and three branch drains, Branch A, Branch B and Branch C. Previous Engineer’s reports dating back to the 1920’s also record the existence of two additional tile drains: the first being the Eadie Award Drain, also known as Private Tile B, extending east from its outlet in the open channel Main Drain across Lot 14, Concession 11 to a culvert under the abandoned CP Rail right-of-way; the second, being a tile drain known as Private Tile A starting out parallel to Private Tile B, but then turning south to provide drainage to Glenannon Road as well as lands south of Glenannon Road.

The current Engineer’s Report was prepared pursuant to a drainage petition filed by Mr. Bill Fralick, the owner of Lot 13, Concession 11 under Section 4 of the Act. The Report provides for the construction of a new Branch D tile drain on the Appellant’s lands in Lot 14 from the open channel of the Main Drain, extending 402 metres easterly, across the old railway right-of-way and terminating at the line between Lots 13 and 14. The Report also includes new maintenance assessment schedules for the entire Baird Municipal Drain works. The total estimated cost of the project is $50,500.

Issues

The Appellant is requesting the following under Section 48(1) of the Act:

Amend the Report to provide for the construction of a new drain extending southerly along the old railway right-of-way to a new outlet in the Doer Drain, instead of coming across his lands in Lot 14 to the Baird Municipal Drain;
If the new Branch D tile drain is to remain on his property as detailed in the Report, then the proposed catch basin at the top end of the new tile on the east side of the old railway right-of-way should be moved to the west side to allow surface water from Glenannon Road and from Tile A to enter the new drain; and
The Allowances under Section 29 and 30 for land and damages respectively should be increased.

The Appellant is also requesting that his assessment be reduced under Section 54(1) of the Act.

Evidence

Engineer – Jeremy Taylor, P. Eng.

Mr. Taylor provided an overview of his Report, including a chronology of events leading up to this hearing. He testified that the Council for the Municipality accepted a petition for drainage dated June 16, 2009 under Section 4 of the Act from the owner of Lot 13, Concession 11, and instructed him to prepare a report on June 22, 2009. He said that subsequently, Council also instructed him to include new maintenance assessment schedules for the entire Baird Municipal Drain works in his report.

Mr. Taylor testified that he conducted a site meeting on October 22, 2009. He said that at this meeting, the landowners confirmed the existence of the Eadie Award Drain, also known as Private Tile B, as well as a second tile known as Private Tile A. He said that the landowners explained that Private Tile B ran upstream from west to east across Lot 14 from its outlet in the Main Drain of the Baird Municipal Drain to a catch basin next to the culvert under the old railway right-of-way. However, the open channel and culvert across the railway had been blocked. Mr. Taylor also testified that the landowners told him that Private Tile A also outlets into the Baird Municipal Drain and extends east, parallel to Private Tile B, before turning south to provide an outlet for Glenannon Road and lands in the vicinity of Glenannon Road in Lots 13 and 14.

Mr. Taylor stated that his initial survey of the site was done on November 12, 2009 after which he met with the Appellant, Mr. Eadie, on November 23, 2009 to review the design and expected costs of the drain. He then carried out further field investigations and completed the preliminary and final design during the period between November 2009 and May 2010. After he had completed the final design, he said that he sent out a letter to all affected landowners asking for any input to the proposed work but there was no response. Before submitting his Report, Mr. Taylor said that he met with the Messrs. Don Eadie and Bill Fralick one more time on July 6, 2010 to review the proposed work, including the configuration of the tile, the location of the catch basin and junction box, as well as the costs of the project. He stated that he then submitted his Report to the Municipality on July 22, 2010, which was considered by Council on August 3, 2010 and a Court of Revision was held on August 24, 2010. He said that Mr. Eadie was denied his appeal by the Court of Revision and that he then had some further discussions with Mr. Eadie between August 31, 2010 and September 14, 2010 after which Mr. Edie filed his appeal to the Tribunal.

Mr. Taylor testified that prior to preparing his Report, he determined that the petition for drainage complied with Section 4 of the Act, since 100% of the landowners in the area requiring drainage in Lot 13, Concession 11 signed the petition. As part of his investigation, he said that he considered several options to drain the land in Lot 13, including redirecting the flow toward the south to the Doerr Drain, incorporating the existing Private Tile B as a municipal drain or constructing a new tile drain to replace Private Tile B. Mr. Taylor said that he decided against the Doer Drain outlet option because the area requiring drainage was historically part of the Baird Municipal Drain watershed. To validate the historical watershed boundaries, he put two watershed plans into evidence that were part of the 1977 and 1979 Engineer’s reports for the Doerr Drain and Baird Municipal Drain, respectively. With respect to redirecting the flow to the Doerr Drain, he said that he also took spot elevations along the potential drain route toward the Doerr Drain that showed the land rising in that direction. With respect to incorporating the existing Private Tile B as a municipal drain, Mr. Taylor said that the tile was inadequate to provide the required drainage. Accordingly, he prepared his Report based on the installation of a new tile.

Mr. Taylor explained that his Report provides for the construction of a new tile drain to be known as Branch D across the lands owned by the Appellant in Lot 14, Concession 11, starting at the outlet into the open channel Main Drain of the Baird Municipal Drain and extending east 402 metres to the line between Lots 13 and 14. He said that there will also be a junction box over the tile at the approximate mid point of Lot 14 as well as a catch basin at the top end, being the line between Lots 13 and 14. Mr. Taylor explained that he designed the tile drain to outlet both surface and subsurface water from the area requiring drainage, upstream and east of the old railway right-of-way. However, he said that the design allows only for subsurface water for lands west of the old railway right-of-way, therefore he specified that the junction box on Mr. Eadie’s land be installed above grade as to not allow the entry of surface water.

In further testimony, Mr. Taylor stated that the new Branch D tile is not designed to provide an outlet for the existing Private Tile A which is utilized as an outlet by Glenannon Road and lands in the vicinity of Glenannon Road. He said that during the meetings leading up to the preparation of his Report, the landowners that outlet to Private Tile A were satisfied with their drainage and did not want to participate in the new Branch D project. Mr. Taylor said that since the new Branch D tile is not designed to take surface water from areas west of the old railway right-of-way or from the Private Tile A, the Report does not specify a catch basin on the west side of the railway right-of-way.

Mr. Taylor went on to testify that his Report provides allowances for lands and damages under Section 29 and 30 of the Act respectively. He put into evidence a document obtained from Farm Credit Canada that listed five parcels of land in Turnberry Township that sold between February 2009 and May 2010 for a price ranging for an average of $4,070 per acre. Based on this document, he used $4,000 per acre to calculate the Section 29 allowances in the Report. With respect to the calculation of allowances under Section 30, Mr. Taylor testified that he used $500 per acre. He said that this amount was typical of what he has used in other areas and felt that it was adequate, particularly considering that the amount of crop damage in this case will be reduced because his Report requires that the topsoil be stripped and stockpiled prior to the tile installation and then put back in place after the construction.

Mr. Taylor testified that the estimated cost of the project of $50,500 is made up of $3,000 to prepare the maintenance assessment schedules for the entire Baird Municipal Drain and $47,500 for construction of Branch D. He said that he assessed the $3,000 cost to the entire watershed and the $47,500 cost to the two affected landowners on Branch D, Messrs. Fralick and Eadie. Mr. Taylor went on to explain the rationale he used for the assessments and referenced the detailed calculations appended to his Report. For his outlet assessment calculations, he testified that he used equivalent areas; for example, he used a factor of 1 for agricultural land where both surface and subsurface water is allowed and a factor of 0.33 where only subsurface water is allowed. He said that he used the “Todgham” method of assessment wherein he divided the drain in to sections and then assessed the costs in each section. He explained that the structures, such as the catch basin and junction box were assessed to the benefiting landowner. With respect to the overall split between benefit and outlet assessments, he said he used 30% for benefit and 70% for outlet.

Mr. Taylor further stated that although Mr. Eadie claims that he does not need the new Branch D tile because he is well served by Private Tiles A and B, he still benefits from Branch D because he has the option of connecting to it at any time, especially in the event that Private Tiles A or B fail.

Appellant – Donald Eadie

Mr. Eadie testified that he grew up on his farm and is very familiar with the soils and drainage in the area. He said that his lands in the north end of Lot 14 have a gravel bottom on both sides of the old railway right-of-way and do not require drainage. He added that he has never seen any surface water at the upper end of the proposed Branch D, where the new catch basin is to be installed.

Mr. Eadie suggested that the area requiring drainage could be diverted southerly to the Doerr Drain watershed by constructing a new drain along the old railway right-of-way. He said that he examined the route and believed this was possible.

With respect to the current design of Branch D, he requested that the catch basin at the head of the drain should be moved to the west side of the railway so that it can intercept the surface water that flows off Glenannon Road and from Private Tile A. He stated that he does not have to accept drainage from Glenannon Road or Private Tile A. He said that the Engineer made a serious omission in his Report by not allowing the connection of Private Tile A and suggested that Glenannon Road and two landowners that use Private Tile A should have been assessed into the new Branch D tile.

Mr. Eadie complained that the allowances for land of $4,000 per acre in the Report are inadequate. He put into evidence a letter dated August 10, 2010 from a real estate appraiser, Mr. John Crispin, referencing the sale of four parcels of land in Howick and Turnberry Townships. Mr. Eadie stated that the letter shows that the prices paid for the lands were much higher than what was used by the Engineer and explained that the parcels of land are located about 10 miles from his lands. He argued that the land values from Farm Credit Canada used by the Engineer are a year old and that there has been a significant increase in land values in the past year. He also suggested that the installation of Branch D tile will hinder the future extraction of gravel from his lands. He therefore asked that the allowances for land in the Report be increased.

Mr. Eadie went on to argue that the allowances for damages of $500 per acre in the Report are also inadequate. He asserted that in his experience, it takes as much as ten years to restore full crop production in areas where the land has been dug up. In support of his assertion, he introduced a set of colour photographs showing the corn crop in his field as well as several dry corn cobs which he said were collected from the same field. He said that there had been a few test holes dug up on his land and pointed to the dwarfed corn stalks on the photographs on top of those excavations. He also pointed to the dwarfed corn cobs that were picked in the area of the test holes as compared to the large corn cobs in the rest of the field. In response to questions from the Engineer, Mr. Eadie conceded that the test hole excavations were done using a backhoe and that topsoil had not been stripped from the area, whereas the Report provides for stripping and reinstatement of the topsoil. However, Mr. Eadie stated that crop production over the trench will be reduced regardless of whether the topsoil is stripped or not.

With respect to his assessment, Mr. Eadie argued that he does not need the tile and therefore his assessment should be reduced. He reiterated that much of his land is underlain by gravel deposits and does not need drainage. He said there is already a gravel pit near the proposed route of the new drain. Additionally, he said his land is already served by the existing Private Tile A which he paid for 17 years ago as well as Private Tile B which he said he has repaired many times at his expense.

In response to questions from the Panel, Mr. Eadie confirmed that he had been given an opportunity to add his name to the petition for drainage during the various meetings referenced by the Engineer leading up to and including the Council’s consideration of the Report, but had declined to do so.

Witness for the Appellant – Nathan Peel

Mr. Peel testified that he has farmed Mr. Eadie’s lands for the past ten years. He said that Mr. Eadie’s lands are very fertile and he has grown some of the best crops there. He stated that Mr. Eadie’s land north of the proposed tile drain is well drained with a natural gravel bottom whereas the land south of the proposed drain is heavier soil.

Findings

The Tribunal has considered the Appellant’s suggestion that the area requiring drainage could be diverted southerly to the Doerr Drain watershed by constructing a drain along the old railway right-of-way. However, the Appellant did not produce any professional evidence to substantiate his suggestion. The Engineer’s uncontested evidence is that the area requiring drainage has historically been within the Baird Municipal Drain watershed which he confirmed during his survey of the site. The Tribunal accepts the Engineer’s evidence.

The Tribunal also considered the Appellant’s request to move the proposed catch basin from the top of the drain on the east side of the old railway-right-of way to the west side of the so it can drain surface water from Glenannon Road and Private Tile A. The Engineer explained that he did not place a catch basin on the west side of the railway because the landowners who drain into Private Tile A, including the road authority for Glenannon Road did not want to participate in Branch D and declined to add their signature to the petition for drainage. Therefore, the road and lands comprising the Private Tile A watershed were never considered to be part of the area requiring drainage. The Engineer testified that the portion of the proposed Branch D tile drain west of the old railway right-of-way was not designed to take surface water or serve as an outlet for the Private Tile A, so he did specify a catch basin on the west side of the railway. The Tribunal accepts the Engineer’s testimony.

With respect to allowances under Section 29 of the Act, the Engineer testified that he obtained land sale data from Farm Credit Canada to establish a per acre land value of $4,000 which he used to calculate the allowances. Mr. Eadie presented a letter from Mr. Crispin showing the sale of four parcels of land but did not call Mr. Crispin to testify. The Tribunal has examined Mr. Crispin’s letter and notes that two of the sales that show per acre prices of $5,600 and $6,630 included buildings. A third sale also included buildings but Mr. Crispin deducted an assumed amount for the building value, to arrive at a per acre price of $3,907. The fourth sale showing a price of $6,190 is the only one that does not include any buildings. Since Mr. Crispin was not called to testify and since at least three of the land sales in Mr. Crispin’s letter are questionable due to the inclusion of buildings, the Tribunal places limited weight on this evidence.

With respect to Mr. Eadie’s argument that the tile will hinder his future ability to extract gravel, the Tribunal notes that the proposed Branch does not significantly change the existing conditions since there are already two tile drains on his land, Private Tile A and Private Tile B. The Tribunal also notes that despite being paid an allowance, the ownership of the land over the proposed tile drain will remain with the Appellant for his ongoing use. Therefore, the Tribunal finds that the allowances under Section 29 of the Act provided in the Report are fair and equitable and in conformance with the Act.

With respect to allowances under Section 30 of the Act, the Tribunal concurs with Mr. Eadie’s evidence that crop production is adversely affected in the short term by excavations, as demonstrated by his photographs and samples of dry corn cobs. Mr. Eadie contended that it will take up to ten years to restore full crop production but did not produce any evidence to substantiate his contention. The Tribunal accepts the Engineer’s evidence that reduced crop production over the drain in this case will be less severe because the Report requires that the topsoil be stripped and reinstated. The Tribunal finds that the Engineer’s allowances under Section 30 in the Report which were determined using $500 per acre, are fair and equitable and in conformance with the Act.

The Appellant introduced multiple arguments directed at reducing his assessments. The arguments included diverting the outlet for the area requiring drainage to a different watershed in the Doerr Drain; stating that since most of his land is underlain by gravel it does not need to be drained; saying that he is already served by the existing tile drains, including Private Tiles A and B which he improved at his own expense; and asking that the assessments be expanded to include the landowners and road that use the Tile Drain A. The Tribunal places limited or no weight on the Appellants arguments. The Appellant did not present any evidence to suggest that lands owned by Mr. Fralick, the only other assessed landowner on the new Branch D drain, may or may not be underlain by gravel. The Engineer did not have any authority to assess the road and landowners on Private Tile A since they were neither affected by or were part of the area requiring drainage. The Appellants argument that he uses Private Tile A or Private Tile B to drain his lands does not reduce or eliminate the outlet and benefit that he will derive from the new Branch D under the Drainage Act.

The Engineer provided an explanation of how the assessments were calculated and referred to his detailed calculations attached to the Report. The Tribunal has considered the Engineer’s testimony and has reviewed his detailed assessment calculations contained in the Report. The Tribunal finds that the rationale and methodology used by the Engineer in calculating the assessments are in keeping with good engineering practice and in conformance with the Drainage Act.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

The appeals under Section 48(1) of the Act are denied.
The appeals under Section 54(1) of the Act are denied.

Dated at Maidstone, Ontario this 17th day of November, 2010