Proctor Drain (Re), 2011 ONAFRAAT 21

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 Courriel: appeals.tribunal.omafra@ontario.ca

Proctor Drain Municipality of Southwest Middlesex

Proctor Drain (RE) 2011 ONAFRAAT 21

Drainage Act

July 6, 2011

DATE OF DECISION:

July 11, 2011

2011-21

2011 ONAFRAAT 21

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 Rein Minnema, Glencoe, Ontario under Section 54(1) of the Drainage Act from a decision of the Court of Revision on the Proctor Drain in the Municipality of Southwest Middlesex.

Before: Kirk Walstedt, Chair; Enio Sullo, Vice-Chair

Appearances: Rein Minnema, appellant John Proctor, representing assessed landowner S. Proctor Ray Dobbin, Engineer who prepared the Report

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers, Municipality of Southwest Middlesex, Glencoe, Ontario on July 6, 2011. Rein Minnema appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 54(1) of the Drainage Act from a decision of the Court of Revision held on February 9, 2011 on the Engineer’s Report (the Report) titled “Proctor Drain” dated December 6, 2010, prepared by R. Dobbin Engineering Inc. (the Engineer), and signed by Ray Dobbin, P.Eng.

Janneke Newitt, Administrator/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 the 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 this hearing.

During the hearing, the Tribunal granted a request by Mr. John Proctor to make a statement on behalf of his wife S. Proctor, an assessed landowner.

Background

The Report was initiated by a petition submitted by the County of Middlesex Road Authority under Section 4 of the Drainage Act for drainage of a portion of Thames Road in the Municipality of Southwest Middlesex. After his appointment by the Municipality of Southwest Middlesex, the Engineer conducted a site meeting on April 22, 2010 and subsequently prepared his Report dated December 6, 2010. The Report provides for an open drain commencing at and including a culvert crossing at Thames Road, and extending downstream 408 m to an outlet in the Miller Drainage Works. The watershed comprises 67.0 hectares (165.6 acres) of agricultural land and 1.2 hectare (3.0 acres) of road right-of-way in Lots 11 to 13, Concession 1 SLR, Municipality of Southwest Middlesex. The estimated cost of the works is $22,540.

Issues

Should the assessments made by the Engineer in the Report be altered?

Evidence

The Engineer who prepared the Report: Ray Dobbin

Mr. Dobbin provided an overview of his Report. He testified that although the landowners who attended the site meeting generally agreed that the existing open channel required maintenance, they preferred to carry out the necessary work privately, without an engineer’s report. He said that various options were discussed to avoid an engineer’s report but in the end, the Municipality and he were obliged to move forward with a report because there was a valid petition signed by the County of Middlesex Road Authority under Section 4 of the Drainage Act.

Mr. Dobbin testified that the $22,540 estimated cost of the works includes allowances under Sections 29 and 30 of the Drainage Act for land taken and damages respectively. In preparing his assessments, he said that he first assessed the $2,400 cost for erosion protection at the outlet of the Proctor Drain into the Miller Drainage Works to upstream properties based on equivalent hectares. He then separated the $1,230 cost of erosion protection at washouts along the length of the channel and assessed these as a special benefit to the affected landowner. He said that he divided the remaining cost of $18,910 into $11,098 for benefit and $7,812 for outlet. He assigned $9,248 of the benefit assessment to the landowner S. Proctor and $1,850 to the County of Middlesex. With respect to the outlet, he explained that he made the assessment based on equivalent hectares.

Mr. Dobbin testified that Mr. Minnema appealed his assessments to the Court of Revision held on February 9, 2011. He recalled Mr. Minnema complaining that the landowners were prepared to undertake the required drainage repairs privately, without an engineer’s report. He said that Mr. Minnema argued that the Road Authority for Thames Road should be assessed more because they were the ones that filed the petition for drainage that necessitated the preparation of an engineer’s report. Mr. Dobbin confirmed that the Court of Revision denied Mr. Minnema’s appeal.

Appellant: Rein Minnema

Mr. Minnema testified that the landowners were prepared to undertake the required drainage repairs privately and that he had objected to the preparation of an Engineer’s report since the start of the project. He said that he made his objections known at the site meeting and at the Court of Revision. He opposed the assessments made to his two upstream properties in the amount of $354 and $6,024. He argued that since the Road Authority had chosen to persist with the petition and ignored the landowner’s wishes to proceed without an engineer’s report, their assessment should be increased to one third of the total project cost.

Assessed Landowner: John Proctor representing S. Proctor

Mr. Proctor testified that he was representing his wife, S. Proctor who is an assessed landowner on whose land the drain is located. He objected to the project having moved forward under an engineer’s report. He said the work could have been done for a lot less cost if it was done privately. After the Panel pointed out that his net assessment in the Report is only $1,011.33 after deducting allowances and government grants, Mr. Proctor responded that he still could have done the work for less.

Findings

The Tribunal finds that the Municipality and the Engineer acted in compliance with the Drainage Act, including the preparation and adoption of the Report in response to the valid petition submitted by the Road Authority for the County of Middlesex.

The Tribunal rejects the arguments put forward by the Appellant, Mr. Minnema, and the assessed landowner, Mr. Proctor, that the work could and should have been carried out privately. Once the Section 4 petition was submitted by the Road Authority for the County of Middlesex, the Municipality and subsequently the Engineer, were required by the Act to move forward with a drainage report. The Tribunal notes that the affected landowners, including the Appellant, did not appeal the works under Section 48 of the Act.

The Tribunal has considered the Engineer’s evidence with respect to the methodology that he used to calculate the assessments in the Report and finds that the Engineer acted in compliance with the Act and in accordance with accepted practice. Therefore, the Tribunal does not accept the Appellant’s argument that the Road Authority’s assessment should be increased to one third of the estimated cost. Accordingly, the Tribunal will not order any changes to the assessments made in the Report.

ORDER OF THE TRIBUNAL

The appeal is denied.

Dated at Maidstone, Ontario this 11^th day of July, 2011