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, chemin Stone Ouest
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 Email: appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Moon Drain 2010 Township of East Zorra-Tavistock
Moon Drain (RE) 2011 ONAFRAAT 11
STATUTE:
Drainage Act
HEARING:
March 29, 2011
April 4, 2011
2011-11
NEUTRAL CITATION:
2011 ONAFRAAT 11
MOON DRAIN, 2010
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 H. & W. Scheerhoorn; M. & R. Metcalfe; Clare Hartley; J. & E. VanDijken; A. & C. VanLith; Peter H. Vink Real Estate Ltd.; M. Hart, K. Rowell & V. Hobbs; Blythe Farms Ltd.; and S. & D. Kitching, all of Woodstock, Ontario under Section 54(1) of the Drainage Act from a decision of the Court of Revision on the Moon Drain 2010 in the Township of East Zorra-Tavistock.
Before:
Kirk Walstedt, Chair; Enio Sullo, Member; Tim Mousseau, Member
Appearances:
Richard Metcalfe, appellant
Clare Hartley, appellant
Ken Smart, Engineer who prepared the Report, K. Smart Associates Limited
DECISION OF THE TRIBUNAL
This hearing was held in the Council Chambers, Township of East Zorra-Tavistock in Hickson, Ontario on March 29, 2011. H. & W. Scheerhoorn; M. & R. Metcalfe; Clare Hartley; J. & E. VanDijken; A. & C. VanLith; Peter H. Vink Real Estate Ltd.; M. Hart, K. Rowell & V. Hobbs; Blythe Farms Ltd.; and S. & D. Kitching (the Appellants), appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from a decision of the Court of Revision dated October 6, 2010 on the Moon Drain 2010 (the Report) prepared by K.A. Smart Associates Ltd. and signed by K.A. Smart, P.Eng. (the Engineer) dated August 16, 2010.
Brenda Junker, Clerk of the Township, performed the duties of the Clerk for 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 the notice of hearing.
Also prior to the beginning of the hearing, the Tribunal received documents signed by all of the Appellants authorizing Mr. Richard Metcalfe to represent them at this hearing.
At the start of the hearing, Mr. Metcalfe confirmed that he was representing all of the Appellants except for H. & W. Scheerhoorn, and that none of the Appellants would be testifying except for Mr. Clare Hartley.
BACKGROUND
The Moon Drain watershed is located on parts of Lots 4 to 6, Concessions 9 and 10, Township of East Zorra-Tavistock, County of Oxford, in the vicinity of Oxford Road 17 and 10th Line. The Moon Drain 2010 Engineer’s Report was prepared pursuant to a drainage petition under Sections 4 and 8 of the Act signed by Roger Minler (Faircrest Farms Ltd.) and Dennis O’Neil (Road Superintendent, Township of East Zorra-Tavistock). According to the Report, the existing Moon Drain was originally constructed in 1909 and was made up of the Main Drain and Branch 1. The Main Drain is comprised of 1,494 m (4,900 ft) of 200 mm to 300 mm (8” to 12”) diameter tiles plus 50 m (164 ft) of open ditch, while Branch 1 is comprised of 852 m (2,795 ft) of 100 mm to 200 mm diameter tile. In recent years, a private cut-off (relief) drain was constructed in the proximity of Branch 1 consisting of 249 m (817 ft) of 200 mm (8”) diameter tile.
The Moon Drain 2010 Report provides for the replacement of the Main and Branch 1 Drains with a new 600 mm (24”) and 350 mm (14”) diameter tiles respectively, as well as the construction of new Branches 2 and 3 as open ditches, all for an estimated cost of $252,650. The Report also incorporates the private Branch 1 Cut-Off (Relief) Drain as part of the Moon Drain. The works proposed by the Report will provide drainage to an agricultural watershed of approximately 114.8 hectares (284 acres).
ISSUE
The Appellants are seeking a 12% reduction in their individual assessments.
EVIDENCE
Mr. Ken Smart, the Engineer
Mr. Smart’s testimony included an overview of the work recommended in his Report with an elaboration of the details pertinent to the appeal, as well as a detailed explanation as to how he determined the assessments. He testified that all the landowners and other affected parties were invited to a site meeting which he convened on December 16, 2009. He said that the parties who attended the site meeting and what they had to say are documented in the Report. At the site meeting, he said that he determined that the petition complied with Section 4 of the Act since the landowner who signed the petition (Faircrest Farms Ltd.) owns more than 60% of the “area requiring drainage” and the petition was also signed by the Road Superintendent for the Township of East Zorra-Tavistock. Subsequent to the site meeting, Mr. Smart testified that he and his staff conducted a general review of the watershed as well as a survey and examination of the site of the drainage works. Since the petitioners had told him that both surface and subsurface water needed to be addressed, Mr. Smart said that he prepared optional designs and costing for a drainage system that would satisfy either a 25mm (1”) or a 38mm (1½”) drainage coefficient.
Mr. Smart went on to testify that he convened a second meeting with the landowners on July 8, 2010 to review the optional designs, preliminary costs and assessments. He said that although the petitioner, Faircrest Farms Ltd. was not represented at the meeting, he had been previously advised by Faircrest Farms Ltd. that they wished to proceed with a design based on the 38mm (1½”) drainage coefficient. Mr. Smart stated that several landowners at the meeting, including Messrs. Metcalfe and Hartley indicated a preference for the smaller 25mm (1”) drainage coefficient and thought that Faircrest Farms Ltd. should pay the extra costs if the higher drainage coefficient was used.
Mr. Smart testified that the design recommended in his Report is based on a 38mm (1½”) drainage coefficient. Responding to questions from the Appellant, Mr. Smart replied that the decision to proceed with a 38mm (1½”) drainage coefficient was entirely his and that he was not influenced by anyone in doing so. He said that the drainage coefficient is consistent with situations where surface water is allowed to enter directly into the tile, such as the case here, and that he has used a 38mm (1½”) coefficient on similar tile drain designs in the past. Responding to questions from the panel, Mr. Smart also confirmed that, in this situation, a 38mm (1½”) drainage coefficient is also recommended by the Drainage Guide for Ontario Publication 29 published by the Ministry of Agriculture, Food and Rural Affairs.
In response to further questions from Mr. Metcalfe, Mr. Smart agreed that using the higher drainage coefficient of 38mm (1½”) caused an increase in cost of approximately 12% as compared to the lower drainage coefficient of 25mm (1”). However, he said that the 12% increased cost resulted in a 50% increase in the capacity of the tile so he believes it is well worth it.
Mr. Smart continued his testimony by explaining the methodology that he used in calculating the assessments. He confirmed that he had assessed all the project costs to the affected roads and landowners. He pointed to the appendices in his Report that provide a breakdown of the individual assessments, and also handed out an additional sheet showing more in-depth details of the Benefit assessments for the Main Drain. For purposes of calculating the assessments, Mr. Smart testified that he divided the Main Drain into four sections and assigned the estimated costs to each section, including allowances, construction, engineering, administration and supervision. Similarly, he divided Branch 1 and the Cut-Off (Relief) Drain into 3 sections while Branches 2 and 3 were left as a single section. He then assessed each of the sections for Benefit and Outlet. For the Benefit assessments, he said he considered whether the new drain would result in better control of surface water and subsurface drainage, improved appearance as well as increased market value of the land. Using the handout, Mr. Smart detailed the Benefit assessment components for each of the landowners. For Outlet assessments, Mr. Smart indicated that he calculated the assessments based on the runoff generated by each parcel. To demonstrate, he provided in-depth details for several landowners.
Responding to questions from Mr. Metcalfe, Mr. Smart replied that he did not agree with Mr. Metcalfe that the 12% extra costs resulting from the higher drainage coefficient should be assessed entirely to the petitioner Faircrest Farms Ltd. He said that in his opinion, the drainage coefficient will benefit the entire watershed. He also said that he has used a 38mm (1½”) drainage coefficient on many of his past drainage tile projects where surface water was allowed to enter directly into the drain tile. Responding to further questions from Mr. Metcalfe, Mr. Smart adamantly denied Mr. Metcalfe’s claim that he was influenced or showed any favour to anyone in calculating the assessments.
Mr. Richard Metcalfe, representative for the Appellants
(M. & R. Metcalfe; Clare Hartley; J. & E. VanDijken; A. & C. VanLith; Peter H. Vink Real Estate Ltd.; M. Hart, K. Rowell & V. Hobbs; Blythe Farms Ltd.; and S. & D. Kitching)
Mr. Metcalfe testified that the Appellants believe the Engineer was influenced by and showed undue favour to Faircrest Farms Ltd. in deciding to move forward with a design based on a 38mm (1½”) drainage coefficient instead of 25mm (1”). He said that the Appellants advised the Engineer at the second meeting that they did not support a design based on the higher drainage coefficient. He stated that the Appellants do not need the larger tile and that many of the lands are not having any drainage problems. He argued that since the higher drainage coefficient was used at the request of Faircrest Farms Ltd., the Engineer should have assessed the extra costs entirely to Faircrest Farms Ltd. Accordingly, he asked the Tribunal to reduce the individual assessments for each of the Appellants by 12%, which he said represents the extra cost caused by using the 38mm (1½”) drainage coefficient instead of 25mm (1”) that the majority of the landowners wanted.
Mr. Clare Hartley, Appellant
Despite being represented by Mr. Metcalfe, Mr. Hartley opted to provide some direct testimony. He said that he has 70 years practical drainage experience and has owned land in the Moon Drain watershed for a long time. He testified that although some areas do pond on occasion, the proposed drain which is based on the higher drainage coefficient is too big and the landowners will not benefit from the larger tile.
H. & W. Scheerhoorn, Appellant
H. & W. Scheerhoorn did not attend and were not represented at the meeting.
FINDINGS
The Tribunal is satisfied that the Engineer acted independently using his own judgement in preparing the Report and that he was not influenced by or showed any favouritism to any one party, as alleged by the Appellants. The Tribunal finds that the Engineer prepared his Report in full compliance with the Act and in keeping with accepted professional practice. The Appellants failed to produce any substantive evidence to suggest otherwise.
The Tribunal notes that landowners in the Moon Drain watershed who are currently receiving poor drainage and are suffering the consequences of surface water damage to their lands and crops are entitled to a reasonable level of service to mitigate these problems. The drainage coefficient used in the design of the new tile sets the level of service. The higher the drainage coefficient used, the higher the level of service and the less likely there will be damage from runoff. In deciding what level of service or drainage coefficient should be applied, the Engineer should be guided by his own independent judgement premised on good professional practice. Mr. Smart testified that he has used a 38mm (1½”) drainage coefficient on past tile drain designs under similar circumstances as the Moon Drain. He was also aware that the Drainage Guide for Ontario Publication 29 published by the Ministry of Agriculture, Food and Rural Affairs recommends a 38mm (1½”) drainage coefficient under these conditions. Accordingly, the Tribunal is satisfied that the Engineer’s decision to use a drainage coefficient of 38mm (1½”) was based on his own professional judgement and is in keeping with good professional practice for the design of tiles that allow direct entry of surface water.
Having regard to the above, the Tribunal does not accept the Appellants’ argument that the extra cost resulting from using a 38mm (1½”) instead of a 25mm (1”) drainage coefficient should be assessed entirely to Faircrest Farms Ltd. The Tribunal also finds that the methodology used by the Engineer in calculating the assessments is compliant with the Act and in keeping with accepted professional practice. The Appellants did not present any evidence to dispute the methodology used by the Engineer in calculating the assessments.
ORDER OF THE TRIBUNAL
All appeals are denied.
Dated at Maidstone, Ontario this 4th day of April, 2011