McWilliam-Campbell Drain (Re), 2011 ONAFRAAT 3

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 ON N1G 4Y2 Tel: 519 826-3433, Fax: 519 826-4232 Toll Free: 1 888 466-2372 Ext. 6-3433 Email: appeals.tribunal.omafra@ontario.ca

Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Sans frais : 1 888 466-2372 poste 6-3433 Courriel : appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: McWilliam-Campbell Drain Municipality of Dutton/Dunwich

McWilliam-Campbell Drain (RE) 2011 ONAFRAAT 3

STATUTE: Drainage Act

HEARING: January 14, 2011

DATE OF DECISION: January 31, 2011

2011-03

NEUTRAL CITATION: 2011 ONAFRAAT 3

MCWILLIAM-CAMPBELL 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 Robert and Susan McWilliam, Dutton, Ontario under Section 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 McWilliam-Campbell Drain in the Municipality of Dutton/Dunwich.

Before: Susan Whelan, Vice-Chair; Enio Sullo, Member; Mary Field, Member

Appearances: Robert and Susan McWilliam - Appellants and landowners Cameron and Anne Marie McWilliam - Petitioners for drain and interested landowners John M. Spriet- Engineer who prepared the Report, Spriet Associates Limited Brent Clutterbuck - Drainage Superintendent for the Municipality of Dutton/Dunwich

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers of the Municipality of Dutton/Dunwich, Dutton, Ontario on January 14, 2011. Robert and Susan McWilliam 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 (the “Report”) dated July 22, 2010, and from a decision of the Court of Revision dated September 1, 2010. John M. Spriet, (the “Engineer”) a professional engineer with the firm Spriet Associates Limited was appointed under Section 78 of the Act to prepare the Report.

Ken Loveland, Clerk Treasurer Administrator for the Municipality of Dutton/ Dunwich, 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 had been served with notice of this hearing.

Background

The McWilliam-Campbell Drain (the Drain) is a closed tile drain located on Lots 6 to 8 Broken Front Concession A in the Municipality of Dutton/Dunwich. The drain was originally constructed under the Drainage Act in 1965. In its existing state, the tile is comprised of approximately 525 ft (160 m) of open ditch and 2,775 ft (845 m) of closed tile ranging in size from 6” (150 mm) to 12” (300 mm) diameter. The drain outlets to the Thames River and serves a watershed of approximately 44 hectares (109 acres) on both sides of Coyne Road. The lands within the watershed are predominantly agricultural with some wooded areas.

The work proposed by the Engineer’s Report encompasses the replacement of the lower portion of the existing 12” (300 mm) diameter tile with a new 24” (600 mm) tile, including a new crossing at Coyne Road and three new catch basins. The Engineer’s estimated cost of the proposed works is $44,000 which is assessed against two affected landowners and Coyne Road.

The Issues

1. Are the benefits to be derived from the drainage works commensurate with the Engineer’s estimated cost?
2. Are the allowances provided for by the Engineer under Sections 29 and 30 of the Drainage Act adequate or excessive?
3. Are the assessments for construction and the assessments for maintenance reasonable and fair?

Evidence

Mr. John Spriet - the Engineer who prepared the Report

Mr. Spriet confirmed the information provided in the background above and provided an overview of his Report. He testified that the Municipality instructed him to prepare the Report under Section 78 of the Act, pursuant to a request from Cameron and Anne Marie McWilliam to repair the tile drain on their property because it had suffered numerous blowouts over the years and was no longer functioning. Mr. Spriet stated that he conducted a site meeting to discuss the project during which the Drainage Superintendent for the Municipality confirmed the poor condition of the tile on the Cameron and Anne Marie McWilliam property. Accordingly, he said that he carried out a survey and examination of the existing tile drain along its alignment and discovered that the tile on the Cameron and Anne Marie McWilliam property had less than 50 cm cover which he said is insufficient to avoid damage from farming operations. He therefore surveyed an alternate route approximately 30 m from the existing tile. He said that he then began compiling his Report based on replacing the existing tile with a new and larger tile along the alternate route. Prior to finalizing his Report and before the meeting of Council to consider the Report, Mr. Spriet stated that he conducted another meeting with the affected parties to review the proposed work including the size of the new tile, the associated costs and the assessments.

Mr. Spriet explained that his Report provides for the replacement of the existing 300 mm (12”) clay tile drain on the Cameron and Anne Marie McWilliam property with 347 m (1,138 ft) of 600 mm (24”) concrete tile drain along an alternate route, from the existing outlet to Coyne Road. The work also includes 19 m (62 ft) of 600 mm (24”) H.D.P.E (High Density Polyethylene) pipe across Coyne Road, 50 m (164 ft) of 300 mm (12”) concrete tile drain along Coyne Road to intercept the existing upstream tile on the Robert and Susan McWilliam property, as well as three catch basins in the area of Coyne Road. His said his estimate of cost for the project is $44,000. He testified that he sized the new tile drain using a 1 ½” (38 mm) drainage coefficient in accordance with the recommendations contained in the Drainage Guide for Ontario Publication 29 published by the Ministry of Agriculture, Food and Rural Affairs. He said that a 1 ½” (38 mm) drainage coefficient is recommended by Publication 29 in situations where cash crops are grown within the watershed and surface water is allowed to enter directly into the drain tile, both of which apply in this case.

For the purpose of calculating the assessments for construction, Mr. Spriet testified that he used a modified “Todgham Method”. He said that he divided the drain into two sections: the first section being from the outlet (Station 0+000) to the west side of Coyne Road (Station 0+345) and the second section being from the west side of Coyne Road (Station 0+345) to the upstream end of the tile (Station 0+416). He determined the estimated cost to be $31,500 and $12,500 for Sections 1 and 2 respectively.

For Section 1, he testified that due to the excess water on the property, he assigned $14,200 to benefit, being approximately 45% of the cost, and the balance of $17,300 to outlet. He assigned all of the $14,200 benefit to Cameron and Anne Marie McWilliam since Section 1 is entirely on their property. He said the $17,300 outlet assessment was divided up among Cameron and Anne Marie McWilliam, Coyne Road and Robert and Susan McWilliam in relative proportion to the contributing land area and runoff factor. With respect to the runoff factor, Mr. Spriet said he used a factor of 1.0 for agricultural land, 3.5 for the road and 0.5 for the 9.6 Ha of wooded areas.

For Section 2, Mr. Spriet testified that he first assessed Coyne Road a special benefit of $4,800 to cover the cost of the road crossing and $3,600 as a benefit to cover the cost of the three catch basins. Of the remaining cost of Section 2, he said he assigned $1,840 to benefit, being approximately 45%, and the balance of $2,117 to outlet. For benefit, he assigned $920 to Robert and Susan McWilliam and $920 to Coyne Road. He said the outlet portion was divided up among Coyne Road and Robert and Susan McWilliam based on the relative proportion of the contributing land area and runoff factor. He said that Cameron and Anne Marie McWilliam were not assessed for Section 2 since this section is upstream of their lands.

Mr. Spriet testified that he used the assessments for construction as a basis for calculating the assessments for maintenance. However, he said that the cost incurred for maintenance will not require engineering, allowances and other administration fees that form part of the assessments for construction. In order to account for this, he stated that he cut the assessment for benefit by 50% when calculating the relative proportion of maintenance assessments among the affected parties. In this manner, he determined that the maintenance costs would be shared 26.8% for Cameron and Anne Marie McWilliam, 47.9% for Robert and Susan McWilliam and 25.3% for Coyne Road. In response to questions from the panel, Mr. Spriet could not explain why only the benefit assessments had been cut in half and not the outlet assessments for purposes of calculating the assessments for maintenance, stating that cutting the benefit assessment only has been his firm’s practice in the past.

Mr. Spriet provided his rationale for the allowances under Section 29 and 30 of the Act for right-of-way and damages respectively. He testified that he allowed $860 for right-of-way and $950 for damages to the Cameron and Anne Marie McWilliam property and $100 for damages to the Robert and Susan McWilliam property. For purposes of calculating the allowance for right-of-way, he said that he used 20% of the land value of $12,500 per hectare over a width of 10 m along the new tile drain, which he said works out to approximately $2.50 per metre. In calculating the damages, Mr. Spriet stated that he used a value of $1,833 per hectare and a width of 15 m along the new tile drain, which he said works out to be approximately $2.75 per metre. He also provided the specific background numbers used to determine the average price of crops which were not in his Report. Responding to questions from the panel, Mr. Spriet explained that although an allowance of $141 was paid to the Cameron and Anne Marie McWilliam property in 1965, he decided to pay a further allowance of $860 to this property in his current Report because he believed the amount paid in 1965 was very small, and also the new drain will follow a different route.

In response to questions from Robert and Susan McWilliam, Mr. Spriet testified that he did not recall the details of the discussions and answers he provided to their questions during various meetings. To this end, the Panel asked the Engineer to comment on the undated minutes of the Council meeting to consider the Report, which indicate that Mr. Robert McWilliam commented that “nowhere in the Report does it say that a 12” drain would not adequately handle the drainage requirements of the area”, after which he asked the Engineer if replacing the tile with a bigger one was the only option there is, yet the minutes remain silent on the response. Mr. Spriet remarked that he did not prepare the minutes of the Council meeting and had not seen the minutes until this hearing; hence he did not know why there is no mention of his response in the minutes. However, he testified that he had discussed the details of the project including design, costs and assessments at several meetings prior to the meeting to consider the Report. He said that, as an Engineer, he could never recommend a 12” (300 mm) tile size for this application unless someone provided some compelling reasons to do so which did not happen. He said that the existing 12” (300 mm) tile size represents a 7 mm (½”) drainage coefficient design which is well below the 1 ½” (38 mm) drainage coefficient recommended by the Drainage Guide for Ontario that he used. He identified the need to reduce surface water as the justification for the increased tile size.

Responding to a further question from Robert and Susan McWilliam, the Engineer agreed that the existing and proposed drain tiles are within the flood plain of the Thames River, and that the new tile is not designed to handle flows in a flood situation. He said that he was not aware of any other tile that was solely within a flood plain. However, Mr. Spriet did not agree with Robert and Susan McWilliam that the pressures resulting from flood conditions would damage the tile. He explained that if the whole flood plain is under water and the outlets are free, water flows both in and out of the Drain and that, in his opinion, the water mass above the drain will create equal pressure and should not cause blowouts.

The Engineer was also asked by the Panel how he had addressed the issue of blowouts in his design. He said that he had done this by recommending a bigger tile, wrapping the joints between tiles and providing more cover over the tile.

Robert and Susan McWilliam - the Appellants

Mrs. Susan McWilliam acted as spokesperson for Appellants, Robert and Susan McWilliam. She testified that her husband was born and raised in Dunwich Township and started farming with his father when he was 14 years old. She said that her husband’s father originally purchased the farm that is now owned by Cameron and Anne Marie McWilliam. Subsequently, her husband and his brother Cameron McWilliam farmed that land together until 1989, at which time she and her husband began renting the Campbell farm. In 2002 they purchased the Campbell farm, which is the land they own today.

Mrs. Susan McWilliam testified that she and her husband believe the Engineer favoured the downstream landowner throughout the process, who is also the Mayor for the Municipality of Dutton/Dunwich. She said that they do not dispute that the existing drain tile has problems and that they need an outlet for their lands. However, she stated that their issues have not been addressed and that the Engineer ignored their questions and concerns throughout the process. She said that the 24” (600 mm) tile proposed by the Engineer will not fix the problems on the drain and she believes that the costs are too high relative to the benefit they will receive. She added that the Engineer’s Report does not provide evidence that the drainage issues will be resolved and that costly maintenance repairs will persist even after construction of the larger tile. In further testimony directly from Mr. Robert McWilliam, he explained that their share of the costs to repair the existing 12” (300 mm) tile drain have been on average about $600 per year. He reasoned that since the new tile drain is larger, the yearly cost to maintain the new tile will also increase. Additionally, he said that they will have to make payments of $2,500 per year for the construction of the larger tile. He complained that this will be a huge burden on them.

Mrs. Susan McWilliam advanced several arguments as to why she and her husband believe the work proposed in the Engineer’s Report is flawed. She said they are not satisfied that the Engineer did a proper investigation into the condition of the existing 12” (300 mm) tile before moving forward with his recommendation to replace it with a “huge” 24” (600 mm) tile. She said the existing 12” (300 mm) tile is providing good drainage to their lands. Referring to the watershed maps attached to the 1965 engineer’s report as well as those attached to the current Engineer’s Report, she pointed out that the watershed boundary for the drain has not changed. She also noted that the land use, the presence of an existing upstream swale and extent of wooded areas also has not changed since 1965. Therefore, she reasoned that there has been no change in the amount of runoff from the watershed to justify the large increase in tile size proposed by the Engineer.

Mrs. Susan McWilliam testified that she and her husband questioned the Engineer on several occasions as to why he was proposing such a large tile. She said the Engineer told them that he designed the tile to a 1 ½” (38 mm) drainage coefficient as recommended by Drainage Guide for Ontario Publication 29. She testified that she and her husband believe that the Drainage Guide is only a “guide”, it is not the law; so the Engineer was free to make his own recommendation on the drainage coefficient to be used. She said that the drainage coefficient and the resulting tile size are both too big for what is required.

Robert and Susan McWilliam also testified that they believe that the cause of the blowouts in the existing 12” (300 mm) is the pressure on the tile caused by flooding that occurs when the Thames River overtops its banks in the spring and at various other times during the year. They do not believe the blowouts are caused by upstream runoff. Mrs. Susan McWilliam quoted an excerpt from the Drainage Guide for Ontario which she said states that blowouts are caused by “excessive hydraulic pressure in the tile“. She then presented evidence to demonstrate that most of the Drain watershed is within the flood plain of the Thames River, a fact that she said is not mentioned in the Engineer’s Report. Her evidence included correspondence and an aerial map from the Lower Thames Valley Conservation Authority who has jurisdiction over the Thames River watershed, as well as photographs taken during a flood event. She said the floodwaters move from the lower lands to the higher lands and can be up to 10 ft deep. She advanced the argument that the blowouts on the existing tile are the result of pressure on the tile from the floodwaters, including the water flowing in and over the tile when the floods recede. She asserted that building a bigger tile as proposed by the Engineer will not solve this problem. In fact, she said the problem will be worse since the Engineer is proposing three catch basins at Coyne Road instead of just one that exists now. She reasoned that the additional catch basins will allow flood water to rush into the tile faster and therefore cause even more blowouts than what they have now. Mrs. Susan McWilliam also complained that the Engineer upsized the tile to accommodate more water from Coyne Road through extra catch basins. In direct testimony, Mr. Robert McWilliam corroborated the evidence presented by his wife and added that the costs to maintain the drain will continue to grow after construction of the new tile. He said that he questioned the Engineer about this matter at the very first meeting but he said the Engineer did not provide an answer.

Mrs. Susan McWilliam claimed that the Engineer did not consider the unique situation that the entire tile drain is on a flood plain, when he prepared his Report. She suggested that the Engineer should have considered other options that would solve the problem once and for all. She said one such option would be to replace the existing tile on the Cameron and Anne Marie McWilliam property with an open ditch which she claimed would be much cheaper and more appropriate for a drain located on a flood plain.

In further testimony, Mrs. Susan McWilliam objected to the allowances and assessments in the Engineer’s Report. She prefaced her comments by noting that she had received more information today on the breakdown of the allowances and assessments; information that was not in the Report. Referring to the Assessment for Construction, she said that her and her husband should not have to pay the $920 benefit since none of the proposed drain is on their lands. With respect to outlet assessment, she said she compared the percentage of the outlet assessment that was paid by their lands in 1965 to what is being assessed in the current Report and found that their outlet assessment has increased from 78% to 83% of the total outlet assessment even though the watershed boundary has not changed. She also claimed that the extra catch basins proposed at Coyne Road will allow more water to enter the drain from the road, so the road should be assessed higher.

Mrs. Susan McWilliam also objected to the Assessment for future Maintenance. She said that she and her husband do not understand why they have to pay 47.9% of the maintenance costs while Cameron and Anne Marie McWilliam will only pay 26.8%. She stated this is not consistent with the Assessments for Construction and the benefits assessed.

Responding to questions from the Engineer, Mr. Robert McWilliam was unable to point to any specific physical evidence to substantiate his and his wife’s assertion that the stress or damage to the tile is being caused by flood waters. He said that pressure would be put on the tile by flood waters but did not know the magnitude of that pressure. He added that the tile will continue to incur damage in the future during flood events, particularly when flood waters recede through the tile. Both Robert and Susan McWilliam conceded that at least some of the flood waters will recede back to the river overland and not through the tile. Mrs. Susan McWilliam further conceded that she and her husband did not have any specific evidence to corroborate their assertion that the Engineer did not examine the condition of the existing tile.

In response to questions from the Panel, both Robert and Susan McWilliam agreed that not all the watershed for the Drain is within the Thames River flood plain. He confirmed that they need an outlet in order to grow their cash crops of corn, soybeans and wheat. They both agreed that sometimes during a heavy rain, water ponds or flows along the ground on top of the existing tile, even when the Thames River is not flooding. With respect to surface runoff, he stated that they do not believe that changes in farming practices have resulted in increased flows since 1965 except for any additional tiling that may have been done; however, he said they did not add any tiles on their property and they don’t have the old tile records for their property.

Responding to further questions from the Panel, Robert and Susan McWilliam acknowledged that changing the tile back to an open ditch may result in a devaluation of those lands.

Cameron and Anne Marie McWilliam – Assessed landowners

Mrs. Anne Marie McWilliam provided a brief statement. She said that she and her husband have lived in the area just as long as Robert and Susan McWilliam. She confirmed that her husband is the current Mayor of the Municipality of Dutton/Dunwich but said he was the Deputy Mayor when the drain process got started. She stated that her husband did not interfere in the drainage process, and after the first site meeting declared a conflict at the remaining meetings and did not participate in any of the votes regarding the Drain.

Mrs. Anne Marie McWilliam agreed that their lands are part of the Thames River flood plain, but she stated that she and her husband have sustained ongoing crop losses because the existing drain is not working, even at times that the river is not flooding. She suggested that the cost of the current project is well worth it considering the value of crops lost over the years. She complained that since the dam had been removed on the Robert and Susan McWilliam property, the flooding issues had worsened. She also said that she has observed an increase in runoff over the past years since 1965. Mrs. Susan McWilliam agreed that the dam had been removed a number of years ago but stated that it was before they owned the property and that it did not exist in 1965 according to the map.

Mrs. Anne Marie McWilliam stated that she did not support replacing the tile drain with a massive open ditch as suggested by Robert and Susan McWilliam. She said such a ditch would permanently take away arable land and would devalue their property. She would also have serious concerns with erosion with an open ditch system. She also believes that the new Drain will work and that future maintenance costs will be reduced.

Brent Clutterbuck – Drainage Superintendent for the Municipality

Responding to inquiries from the Panel, Mr. Brent Clutterbuck confirmed that both the Lower Thames Valley Conservation Authority (LTVCA) and the Ministry of Natural Resources (MNR) had been notified of the site meeting on March 12, 2009 and subsequent meetings, including the Council meeting to consider the Report. He also confirmed that a copy of the Report had been sent to LTVCA and that they did not attend any of the meetings. He said that the LTVCA submitted correspondence dated July 30, 2010, to the Municipality wherein they did not express any concerns with respect to the design since it was a Section 78 Report (an improvement to an existing drain) and there was no work being done on an open ditch, hence they said there would be no effect on species at risk.

Mr. Clutterbuck presented colour photographs of the newly planted corn over the tile on the Cameron and Anne Marie McWilliam property which he said he took during the survey of the alternate route for the drain on June 7, 2010. He said that there had been rainfall several days earlier and the photographs showed ponds of water over the existing tile drain. He also stated that, at that time, Mr. Cameron McWilliam had already replanted once in the area of the tile.

Findings

The Tribunal finds no evidence to substantiate the Appellants’ claim that the Engineer favoured the downstream landowner, Cameron and Anne Marie McWilliam. The Tribunal also finds no evidence that the downstream landowner, Cameron McWilliam, who is also the current Mayor for the Municipality of Dutton Dunwich, knowingly influenced the Drainage Act process. Accordingly, the Tribunal is satisfied that the Engineer’s Report is a “true report” pursuant to Section 11 of the Act.

The Tribunal finds no evidence to substantiate the Appellants’ claim that the Engineer did not carry out a proper investigation of the condition of the existing tile drain.

The Appellants’ claim that the existing 12” (300 mm) tile drain is of adequate size to conduct the runoff is not substantiated by the evidence of the Engineer, the Drainage Superintendent or Cameron and Anne Marie McWilliam. The Appellants did not present any technical or call any professional witnesses to substantiate their claim. The evidence also suggests that crop losses on downstream lands are commonplace due to inadequate drainage.

The Tribunal does not accept the Appellants’ suggestion that the Engineer could have chosen not to follow the recommendation of the Ontario Drainage Guide. It is both reasonable and common practice for any Engineer to design drainage facilities to a reasonable standard as set out in the Drainage Guide for Ontario. Accordingly, the Tribunal finds that the design standard used by the Engineer of a 1 ½” (38 mm) drainage coefficient as recommended by the Drainage Guide to be sound under the conditions that exist for this drain.

All parties agreed that the Drain is located on the Thames River flood plain. However, the Engineer did not agree with the Appellants’ claim that the blowouts in the existing tile are the result of pressure created by floodwaters from the Thames River, and that these blowouts will continue to occur in the new tile. The Tribunal has reviewed the Drainage Guide for Ontario and has found that the Appellant’s excerpt from the Drainage Guide that blowouts are caused by “excessive hydraulic pressure in the tile” is incomplete. The complete excerpt states that blowouts can occur due to “excess hydraulic pressure in the tile due to steep upslope grade”. The Appellants did not produce any technical evidence or call any professional witnesses to corroborate their claim. In view of the lack of corroborating evidence, the Tribunal cannot reasonably conclude that the blowouts are caused by floodwaters from the Thames River and that the blowouts will persist in the new tile for the same reason. The Tribunal accepts the Engineer’s evidence that the blowouts are occurring because the existing tile has weakened due to age, the existing tile is too small to handle the flows, and there is insufficient cover on the tile.

The Appellants asserted that the Engineer failed to consider that the tile drain is located in a flood plain in the design. They suggested that the Engineer should have considered an open ditch option instead of replacing the existing tile with a larger one. Given the existing drain is a closed tile drain constructed under the Drainage Act, and given that the Engineer was instructed under Section 78 of the Act to repair the existing closed drain, the Tribunal finds that the Engineer acted reasonably under the circumstances. The undisputed evidence is that an open ditch option would carry with it additional issues such as a reduction in arable land and a devaluation of the lands, both of which, among other things, would have to be considered in any such design.

In view of the evidence, the Tribunal finds that the work proposed by the Engineer’s Report is reasonable under the circumstances and will not order any amendments.

With respect to Assessment for Construction, the Tribunal does not accept the Appellants’ arguments. The Tribunal finds that the Appellants’ comparison of the outlet assessments from the 1965 Engineer’s Report to those in the current Report is not valid because the work in each of the reports is not the same. The Appellants’ argument that they do not accrue any benefit because the drain is not on their land is also invalid since they do have direct access to the part of the Drain on the Coyne Road right-of-way. The Tribunal does not accept the Appellants’ argument that Coyne Road should be assessed for a higher Outlet because of the additional catch basins. The Engineer’s testimony is that he assessed the road based on the runoff they contribute and not based on the number of catch basins installed. The Tribunal has reviewed the Engineer’s evidence with respect to methodology that he used to calculate the Assessment for Construction and is satisfied that his assessments are fair and in compliance with the Drainage Act.

The Tribunal finds the Appellants to be justified in their claim that the Assessment for Maintenance is unfair. The Tribunal does not accept the Engineer’s explanation as to why his Assessments for Maintenance significantly deviated from his Assessments for Construction. The Tribunal will therefore order changes to the Assessments for Maintenance.

The Tribunal also finds that the Engineer should not have paid an allowance of $860 for right-of-way to the lands of Cameron and Anne Marie McWilliam since these lands were already paid an allowance of $141 in 1965.

The Tribunal has considered the Appellants’ assertion that their questions and concerns have not been heard throughout the process. The Engineer’s evidence is that he conducted a number of meetings during which he explained the various aspects of the design, the costs and the assessments. However, when questioned by the Panel on what answers he provided to the Appellant’s specific questions and concerns, he was unable to recall his answers. Regrettably, the undated minutes of the Council meeting to consider the Report fail to document the Engineer’s answer to at least one of the specific major questions of the Appellants. Other documents and minutes provided also offer little insight on what answers the Engineer gave to the Appellants’ questions. During this Tribunal hearing, the Engineer provided numerous significant details, elaborations and explanations regarding the design, the costs and the assessments. Based on the evidence, the Tribunal is unable to conclude that these details, elaborations and explanations were adequately conveyed to the Appellants during the process. The Tribunal believes that many of the issues raised by the Appellants at this hearing could have been settled in advance of this hearing if those details, explanations and elaborations had been provided to them during the process or in more detail in the Report. It may also have been possible to avoid this hearing altogether. Accordingly, the Tribunal will order that fees of the Engineer for his preparation and attendance at this hearing be borne by the Municipality and not be assessed to the Drain.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The allowance for right-of-way under Section 29 of the Act to Cameron and Anne Marie McWilliam in the amount of $860 shall be deleted. Allowances under Section 29 and 30 shall be in accordance with the revised Schedule 1 appended to this decision.
2. The estimated cost of the works shall be modified from $44,000 to $43,140 to account for the deletion of the allowance under Section 29 in paragraph 1 above.
3. The Assessments for Construction shall be in accordance with the revised Schedule 2 appended to this decision to account for the reduction of the estimated cost of the works.
4. Assessments for future maintenance and repairs shall be revised as follows:
   1. The 600 mm High Denisty Polyethylene (H.D.P.E.) pipe across Coyne Road from Station 0+347 to 0+366 shall be assessed 100% to Coyne Road, Municipality of Dutton/Dunwich;
   2. All other drainage works shall be assessed in the same relative proportions as the Assessments for Construction except that Special Benefits shall not be included.
5. The Engineer’s fees for preparation and attendance at this hearing shall not be assessed to the Drain but rather, shall be borne by the Municipality of Dutton/Dunwich.

Dated at Amherstburg, Ontario this 31^st day of January, 2011