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: Whelan/Collver Road Drain Municipality of Huron Shores

Whelan/Collver Road Drain (RE) 2010 ONAFRAAT 36

STATUTE: Drainage Act

HEARING: September 15, 2010

DATE OF DECISION: September 28, 2010

2010-36

NEUTRAL CITATION: 2010 ONAFRAAT 36

Whelan/Collver Road Drain

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 Jeffrey Flood, Bruce Mines, Ontario under Subsection 48(1) and 54(1) of the Drainage Act on the Whelan/Collver Road Drain in the Municipality of Huron Shores.

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

Appearances: Jeffrey Flood – appellant Michael Allemano – Counsel to Jeffrey Flood Michael Tulloch, P.Eng. – Engineer to Jeffrey Flood Steven Shoemaker- Counsel to the Municipality Colin G. Trivers, P.Eng. – Engineer to the Municipality Brian Whelan – Assessed landowner Larry Peterson – Counsel to Brian Whelan

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Municipality of Huron Shores, Iron Bridge, Ontario on September 15, 2010. Mr. Jeffrey Flood appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48(1) and 54(1) of the Drainage Act (the Act) from the Engineer’s Report titled “Whelan/Collver Road Drain” (the Report) prepared by C.G. Trivers Limited and signed by Colin G. Trivers, O.L.S., P.Eng. (the Engineer) dated March 11, 2009.

Ms. Deborah Tonelli, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

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

In March 2006, the Municipality of Huron Shores accepted a petition for drainage under Section 4 of the Act signed by two landowners, Brian Whelan and Bill and Joanne Donig, who were requesting drainage of their lands. The Municipal Council authorized the Road Superintendent to add his signature to the Petition, and appointed Mr. Colin G. Trivers, O.L.S.,P.Eng. of C.G. Trivers Limited (the Engineer) to prepare a preliminary drainage report. The Engineer submitted his preliminary report on May, 14, 2007 identifying two options to provide an outlet for the area requiring drainage: a so called Drain A option and a North Drain option. The Municipal Council considered the preliminary report on May, 30, 2007 and appointed the Engineer to prepare a final report. The Engineer submitted his final report on March 11, 2009. Council adopted the Report on April 8, 2009 and a Court of Revision was held on June 3, 2009.

The final Report recommends the Drain A option, comprising several open drains in River Lots 19 and 21, Plan H-790 Township of Thessalon, including an open channel flowing southerly through the Appellant’s lands and then westerly along Collver Road to its outlet in the Thessalon River. The overall watershed for the drainage scheme is approximately 100 hectares (240 acres) of predominantly agricultural lands. The estimated total cost of the works is $69,761.00.

The assessment to the Appellant’s lands is $2,065 on the Collver Road Drain and $440 on Drain A. However, the Court of Revision removed his $440 assessment to Drain A leaving his total assessment for the project at $2,065.

Issues

1. The Appellant, Mr. Jeffrey Flood, is requesting the Tribunal to:

a) modify the Engineer’s Report by redirecting all drainage north of his property to flow northerly away from his lands and then westerly along the North Drain to the Thessalon River;

b) remove his property from the drainage area, and;

c) eliminate all assessments to his property .

EVIDENCE

Engineer for the Municipality - Mr. Trivers

Mr. Trivers elaborated in great detail on the particulars of his March 11, 2009 Report. He testified that he conducted a site meeting as well as several site investigations and surveys. He said that his objective in preparing the Report was to provide an outlet for the agricultural lands owned by the petitioners, Messrs. Whelan and Donig. He determined the area requiring drainage as being most of the cultivated lands within River Lots 19 and 21, east of MacLean Road. He said that the Road Superintendent had also signed the petition for drainage because the Municipality wanted to improve and deepen the roadside ditch along Collver Road and correct an erosion and siltation problem at the outlet into the Thessalon River. Mr. Trivers stated that the Collver Road ditch currently serves as an outlet for the Appellant’s lands.

Mr. Trivers testified that he investigated two options in his preliminary report to provide an outlet for the Petitioners’ lands; a Drain A option and a North Drain option. The Drain An option would outlet runoff from the Whelan lands southerly through an existing open ditch on the Flood property and then westerly along Collver Road to the Thessalon River. The North Drain option would direct flow off the Whelan land northerly to the existing drain known as the North Drain and then westerly to the Thessalon River. He presented both options in the Preliminary report but did not make a recommendation of one over the other. However, he testified that he had informed Council and the parties that he thought the North Drain option would be more difficult and more expensive. He said that Council instructed him to proceed with the preparation of a final report based on the North Drain option.

The Engineer testified that as he moved forward with his detailed research, investigations, surveys and analysis in preparation for his final report, it became increasingly obvious to him that although the North Drain option was physically possible to construct, it presented some challenges and hence additional costs as compared to the Drain A option. He said that the North Drain option would require reversing the flow from south to north on the portion of Drain A on Mr. Whelan’s lands which would require a deepening of between 0.7 to 0.9 metres. The deepening would have to be carried westerly along the exiting North Drain to the Thessalon River and would require widening of the existing channel, replacement and upsizing of the road culvert across MacLean Road as well as major erosion protection works at the outlet into the Thessalon River. He estimated that the extra cost to deepen the North Drain alone would be about $18,000. When he added to that the cost of replacing the road culvert, the erosion protection, land costs and ancillary works, he concluded that it would be too expensive to pursue the North Drain option. Accordingly, he began focusing his attention on the Drain A option and eventually submitted his Report based on the Drain A option.

In making his decision to recommend the Drain A option in his Report, Mr. Trivers testified that he discussed the project with an experienced drainage contractor, made additional field observations during spring runoff and heavy rainfall events and carried out further design calculations. He said that he also attended at the site just recently in preparation for the Tribunal hearing and his additional site observations and surveys only served to confirm his conclusions and recommendations contained in his Report.

Mr. Trivers testified that while making his recent field observations he noted that a dam had been constructed in Drain A at the north limit of Mr. Flood’s property, adjacent to Mr. Whelan’s property. Prior to construction of the dam, he said that he had observed water flowing south in Drain A from Mr. Whelan’s lands onto Mr. Flood’s lands, ultimately outletting to the roadside ditch on Collver Road. Now that the dam was in place, water was ponding on Mr. Whelan’s lands and was continuing to overflow around the dam, southerly onto Mr. Flood’s lands. Mr. Trivers produced several photographs that he had taken in the spring of 2009 showing the dam and the flooding upstream of the dam on Mr. Whelan’s property.

Mr. Trivers said that the proposed Drain A option will direct drainage to where it appears that it would naturally flow and will provide the least disruption to Mr. Flood’s property. He said that the required deepening of Drain A across Mr. Flood’s lands is minimal, being only a little more than a clean out of silt accumulated as a result of vegetation in the stream bottom, bank failures and possibly irregular gradient. He added that the Drain A option will also accommodate the deepening and improvement of the roadside ditch along Collver Road as requested by the Road Superintendent, who was one of the petitioners for the drainage works. Mr. Trivers said that the Drain A option will have the added benefit of providing a “legal” outlet for the upstream lands, including Mr. Flood’s property because his report incorporates the roadside ditch along Collver Road as a Municipal Drain.

On cross examination by Mr. Allemano, Mr. Trivers conceded that although his Preliminary Report suggested that the North Drain option was feasible and that Council had instructed him to prepare a final report based on the North Drain option, his detailed surveys, research, investigations and calculations done in preparing his final report did not support the North Drain option. He testified that he believed that Council’s instructions to prepare a final report based on the North Drain option were motivated mainly by an attempt to appease Mr. Flood’s initial objections to having the drainage go across his property. Also upon cross examination by Mr. Allemano, Mr. Trivers said that for the most part, he agreed with the field survey information that was contained in the report prepared by Mr. Tulloch, the Appellant’s Engineer. Mr. Trivers stated that surface water flow in the area is generally from northeast to southwest. However, he disagreed with Mr. Tulloch that the drainage could be economically diverted to the North Drain. Mr. Trivers said that in his opinion, the proposed elevations in Mr. Tulloch’s report would not provide sufficient depth for tile drainage on Mr. Whelan’s lands. Mr. Trivers also disagreed with the cost estimate provided by Mr. Tulloch in his report saying that it did not fully reflect the actual work required to provide the required drainage of the Whelan lands.

Engineer for the Appellant – Michael Tulloch

Mr. Tulloch was called as a witness by Mr. Allemano. Mr. Tulloch testified that he is a Professional Engineer and had completed four drainage reports in the past. Mr. Tulloch prepared a report at the request of Mr. Flood in August 2010 titled “Appeal to the Ontario Drainage Tribunal on the Whelan\Collver Drain” which was submitted as evidence at the hearing.

Mr. Tulloch testified that he performed a detailed topographical survey of the Whelan and Flood properties. During the hearing, he referred to two large scale drawings that formed part of his report, one showing spot elevations taken on the Whelan and Flood lands, the second being a compiled contour plan of the same area. The spot elevation plan did not include spot elevations for the existing ditch bottoms. Responding to questions from the Panel, Mr. Tulloch stated that although ditch bottom elevations were taken, they were not included on the drawing for clarity purposes.

Mr. Tulloch testified that based on his review of the survey data, surface water runoff in the overall watershed generally flows from east to west rather than from northeast to southwest as suggested by Mr. Trivers. He said that the lands in the area of Drain A are generally flat. Accordingly, he said that only a slight deepening of the portion of Drain A on Mr. Whelan’s property would be required to redirect the flow northerly to the North Drain, instead of southerly toward Mr. Flood’s lands where it currently flows. He said that only some incremental improvements to the North Drain would be required to address Mr. Whelan’s requirements for tile drainage. Also, by choosing the North Drain option, he said it would eliminate the need for the portion of Drain A across Mr. Flood’s property as well as any improvements to the Collver Road Drain. He said this would result in a considerable saving to the Municipality. Under the North Drain option, he stated that the drainage area considered in the report could be limited to the area north of Mr. Flood’s property and Mr. Flood’s property could then be removed from the land requiring drainage.

Mr. Tulloch testified that he disagreed with several conclusions in Mr. Trivers’ Report with respect to the challenges with the North Drain option. He said that according to his calculations, there would be no need to replace the MacLean Road culvert as stated by Mr. Trivers. He also disagreed with Mr. Trivers on the required deepening of both Drain A and the North Drain stating that based on his analysis, the required deepening would be much less than stated by Mr. Trivers. He testified that according to his analysis, the extra costs associated with the North Drain option would only be approximately $3,000 as compared to the $21,150 to construct the Collver Road outlet.

On cross examination and questions from the Panel, Mr. Tulloch conceded that at present, surface runoff from Mr. Flood’s lands outlet to the roadside ditch on Collver Road and that since the roadside ditch is not a Municipal Drain, his continued use of the outlet is not assured. Mr. Tulloch also conceded that once the Collver Road ditch is made a Municipal Drain as proposed in the current Engineer’s Report, Mr. Flood’s lands will then have a legally conforming outlet.

In response to additional questions from the Panel, Mr. Tulloch agreed that if the North Drain option is chosen, the deepening and improvements to the roadside ditch along Collver Road would still be required, however, he had not considered those costs when comparing the North Drain option with the Drain A option.

Appellant – Jeffrey Flood

Mr. Allemano called the Appellant, Mr. Flood, to testify. Mr. Flood testified that he has been the owner of the property described in the Report since 1983. He said that presently he farms the lands growing strawberries, other fruits and landscaping trees. He testified that in 1984 he hired a contractor to construct a ditch across his property from north to south, flowing into the roadside ditch on Collver Road. He said that the ditch was dug approximately fifteen feet wide and six feet deep and that it replaced a shallow swale in the same location. Mr. Flood further testified that in 1993, the landowner to the north extended the ditch further north to permit drainage off those lands into his ditch. Mr. Flood stated that flooding of his lands got progressively worse every year after the ditch was extended to the north and that he had observed water overtopping the Collver Road drain on occasion.

Mr. Flood testified that the ditch on his property remained connected to the ditch on Mr. Whelan’s property to the north until 2006, when Mr. Flood constructed a dam at the north limit of his property, following discussions he had with staff at the “Ministry of Agriculture”, and after reading the Drainage Act.

Mr. Flood agreed that his lands currently drain into the roadside ditch along Collver Road. He said that he feels that he will receive no benefit from the proposed project and that drainage to the north of him should be directed northerly to the North Drain. He said he does not want his property included in the drainage area.

When questioned by the Panel on how he would drain his lands if he were removed from the drainage area and possibly refused outlet into the roadside drain, he indicated that he did not require any drainage on his property and would simply fill in the existing ditch on his property.

Assessed Landowner – Brian Whelan

Mr. Whelan, an assessed landowner and one of the original petitioners for drainage, was called as witness by Mr. Peterson. Mr. Whelan testified that he has owned a house and 10 acres just north of the area since 1987 and that he purchased the remainder of his lands in 1997. He said that he currently grows corn, barley, soya beans and hay on his lands.

He testified that based on his observations, his opinion is that the natural drainage flow in the watershed identified in the Report is generally from west to east and then southerly through existing ditches. To substantiate his observations, Mr. Whelan provided several aerial photos as illustration of the conditions in the area as far back as 1964.

Mr. Whelan testified that he observed waist deep water in Drain A at the south limit of his property where the dam is constructed, at the same time while there was no water in the same drain at the north end, adjacent to the North Drain. He produced several photographs to illustrate his observations in this regard.

On cross-examination by Mr. Allemano, Mr. Whelan testified that he did not feel that the Tulloch recommendation to drain water northerly to the North Drain would be an effective solution for draining his lands. He said that if the drainage was directed to the north he would still have water at the south limit of his property, which could in fact also adversely affect Mr. Flood, since the dam overtops on occasion. Although Mr. Whelan admitted to having no technical knowledge of drainage, the option to allow water to continue to drain southerly into the Collver Road Drain was in his opinion the most practical option.

Findings

Mr. Trivers and Mr. Tulloch did not have any significant disagreements on the accuracy of the topographical survey data that each of them collected from the watershed. Accordingly, the Tribunal accepts the data as being accurate. Mr. Trivers stated that the natural surface water flow is generally from the northeast to the southwest whereas Mr. Tulloch stated that the flow is more from east to west. Having made its own observations of the topographic survey data provided by Messrs. Trivers and Tulloch, the Tribunal accepts Mr. Trivers’ conclusion that natural overland flow is predominantly from northeast to southwest. This conclusion was supported by Mr. Whelan and was not contradicted by Mr. Flood.

Mr. Tulloch testified that the land in the area of Drain A on Mr. Whelan’s lands is generally flat and accordingly, the flow in Drain A could easily be reversed from south to north. Again, the Tribunal has made its own observations of the compiled contour map provided by Mr. Tulloch and notes that the contours on the Whelan property in the area of Drain A range from 183.6 m at the north end (adjacent to the North Drain) to 182.8 m at the south end (adjacent to Mr. Flood’s property). Hence, based on Mr. Tulloch’s data, Mr. Whelan’s lands drop 0.8 m (approximately 2.5 ft) from north to south. The Tribunal has also made observations of Mr. Tulloch’s topographic data on Mr. Flood’s lands in the vicinity of Drain A and notes that the contours on Mr. Flood’s lands range from 182.8 m at the north end (adjacent to Mr. Whelan’s lands) to 182.6 at the south end (adjacent to the Collver Road Drain). Hence there is a drop of 0.2 m (approximately 8 in) on Mr. Flood’s lands from north to south. Accordingly, the Tribunal is satisfied that the natural overland flow in the area of Drain A both on Mr. Whelan’s and Mr. Flood’s lands is from north to south, toward Collver Road. This conclusion was substantiated by the evidence provided Messrs. Trivers and Whelan and was not contradicted by Mr. Flood or Mr. Tulloch.

The Tribunal is satisfied with the Engineer’s reasons for recommending the Drain A option and is not swayed by Mr. Tulloch’s testimony that the North Drain option would be most economical. While Mr. Trivers agreed with Mr. Tulloch that the North Drain option is “constructible”, Mr. Trivers disagreed with Mr. Tulloch’s claim that the costs would be less than the Drain A option.

Mr. Flood and Mr. Tulloch argued that the Flood property could simply be eliminated from the drainage area if the flow in Drain A is redirected northerly to the North Drain. However, neither Mr. Flood nor Mr. Tulloch provided any substantive evidence to dispute that the natural overland flow is to the south. Also, neither Mr. Flood nor Mr. Tulloch was able to address the lack of a legal outlet for the drainage of Mr. Flood’s lands. Mr. Flood admitted that his lands presently drain to the roadside ditch along Collver Road and he in fact constructed the Drain A ditch across his property to provide drainage of his lands. The Tribunal does not accept Mr. Flood’s contention that he could simply fill in the ditch across his property if he were to be denied an outlet into the roadside ditch along Collver Road.

The Tribunal also finds that the North Drain option would fail to address the requirements of the Road Authority as one of the Petitioners. Mr. Tulloch and Mr. Allemano suggested that ditch work along Collver Road could be undertaken directly by the Road Authority. However, they failed to consider the additional cost of this work in comparing the costs for the North Drain option.

With respect to assessment, the Appellant and his agents focused their attention on having the Engineer’s Report amended in favour of the North Drain option, thereby removing the Appellant’s lands from the project and thereby eliminating the Appellant’s assessment. They did not provide any evidence to suggest that the assessment was unfair if the Engineer’s Report were allowed to stand. Accordingly, the Tribunal finds that the Appellant’s assessment on the Collver Road Drain for benefit of $1,350.00 and $675.00 for outlet are fair and equitable. The Tribunal notes that resulting from the decision of the Court of Revision, the Appellant has no assessment on Drain A which traverses his property.

Order of the Tribunal

The appeals of Mr. Jeffrey Flood under Section 48(1) and 54(1) of the Act are denied.

Dated at Maidstone, Ontario this 28th day of September, 2010