Ross Drain (RE), 2011 ONAFRAAT 30

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Ross Drain 2004

Township of Norwich

Ross Drain (RE) 2011 ONAFRAAT 30

STATUTE:

Drainage Act

HEARING:

September 28, 2011

DATE OF DECISION:

October 12, 2011

2011-30

NEUTRAL CITATION:

2011 ONAFRAAT 30

ROSS DRAIN 2004 Section 54(1) Appeal – Township of Norwich

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 Keith Armstrong, Otterville, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Ross Drain 2004 in the Township of Norwich.

Before:

Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Tim Mousseau, Member

Appearances:

John Kuntze- Engineer who prepared the Report

Keith Armstrong – Assessed landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Township of Norwich, (the Municipality) in Otterville, Ontario on September 28, 2011. Keith Armstrong appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from the decision of the Court of Revision, dated May 10, 2011 to the Engineer’s Report on the Ross Drain 2004 dated July 8, 2004, as amended by Addendum No. 1 dated September 8, 2010 (the Report), prepared by John Kuntze P. Eng. (the Engineer).

Michael Graves, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to 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 the hearing dated July 13, 2011.

Background

The Ross Drain 2004 Report dated July 8, 2004, was prepared by K. Smart Associates Limited and signed by Mr. John Kuntze, P. Eng., pursuant to Section 78 of the Act as a result of a request by landowners for repairs and improvements to the Ross Drain 1976. Construction of the $86,200 project took place in the summer of 2005. Among other things, the work included the construction of 132 m of 450 mm concrete tile on the Keith Armstrong property to parallel an existing 1966, 400 mm tile referred to as the Elliott Drain Branch B. Subsequently, Mr. Armstrong complained that the existing Elliott Drain Branch B had ceased to function on his property and in 2006 he appealed the 2004 Report to the Tribunal under Section 64 of the Act regarding quality of construction issues.

A Tribunal hearing was held on the Armstrong appeal and a settlement agreement negotiated by the Engineer between the contractor on the drain and Mr. Armstrong formed part of the Tribunal’s decision dated October 31, 2006.

Item 6 of the settlement agreement reads as follows:

“The Engineer for the Ross Drain 2004 John Kuntze, P. Eng. shall determine why the Elliott Drain Branch B which remains as part of the Ross Drain does not appear to be working and shall have remedied any problems that may exist with the Elliot Drain Branch B prior to issuing a completion certificate for the Ross Drain 2004 and prior to October 31, 2006.

The Engineer, John Kuntze, P.Eng shall confirm that berms on the upper portions of the Ross Drain are properly constructed and stabilized prior to issuing a completion certificate for the Ross Drain 2004.”

In the fall of 2006 and spring of 2007, the Engineer examined the 1966 Elliott Drain Branch B tile on the Buchanan property which is across the road and immediately upstream of the Armstrong property. This examination showed some sections of the tile to be almost completely filled with standing water and that the tile had no effective grade. The Engineer determined that the 1966 Elliott Drain Branch B tile on the Buchanan property would have to be replaced with a new 350 mm diameter concrete tile, downstream of the Buchanan driveway, to parallel the existing 400 and 300 mm tile drain.

Additionally, following his examination of the 1966 Elliott Drain Branch B tile on the Armstrong property in the fall of 2007, the Engineer determined that the grade of the existing tile on the Armstrong property was ineffective. Accordingly, he concluded that the existing 400 mm tile on the Armstrong property would also have to be replaced with a new 450 mm tile.

The additional tile replacement work on the Buchanan and Armstrong properties was completed in May and November 2007 respectively, however, the landowners may not have been apprised of the additional costs associated with this work.

A further problem occurred at the Buchanan driveway where the existing 600 mm culvert was unable to carry the surface flow. The Municipality’s road department repaired the driveway three times, in 2006, 2007, and 2008. An on-site meeting was held on June 17, 2009 with the Engineer, Wayne and Clare Buchanan, and Wray Ramsay, the Drainage Superintendent, to review the laneway washout problem. Subsequently, the Engineer determined that the existing lane culvert to the Buchanan residence should be replaced with a new culvert. The construction of this new culvert has not yet taken place.

The Municipality tried unsuccessfully to have the Engineer prepare an amendment to the 2004 Report incorporating all the changes. Accordingly, on June 29, 2010, Council for the Municipality passed a resolution requesting the assistance of the Tribunal in acquiring a new report. On July 7, 2010 the Tribunal office received a request under Section 58(4) of the Act “to have the Engineer produce a new Amended Ross Drain 2004 Report.”

The Engineer prepared a document titled “Addendum No.1, Ross Drain 2004”, dated September 8, 2010 (the Addendum). The Addendum provided details of the additional construction work that had already been done or was recommended to be done, but was not included in the 2004 Report. The major part of the construction work that had already been done since the Tribunal decision of 2006, comprised the replacement of the 1966 Elliott Drain Branch B tile on the Buchanan and Armstrong properties. The work recommended to be done but was not yet completed, consisted of the replacement of the surface water culvert across the Buchanan laneway. The Addendum recommended that the 1966 Elliott Drain Branch B be abandoned of status under the Act. The Addendum also provided an updated cost estimate for the additional work and a revised Schedule of Assessments to distribute both the original and additional costs to the landowners. The additional work and modifications included in the Addendum resulted in increased costs of $29,050 making the overall project cost $115,250 plus accumulated interest of approximately $14,000.

The Addendum was not considered by the Council for the Municipality, but rather was mailed directly to the landowners and was the subject of a further Tribunal hearing held on September 28, 2010. The Decision of the Tribunal, dated November 15, 2011 ordered the Municipality to adopt the Addendum as part of the provisional by-law for the Ross Drain 2004 Report, and that no further appeals under Section 48 of the Act would be permitted. However, due to the relatively short time provided to the affected parties to review the revised assessments contained within the Addendum, the Tribunal ordered the Municipality to convene a further Court of Revision and that landowners would be permitted to appeal the decision of the Court of Revision to the Tribunal. Among other things, the Decision of the Tribunal also ordered that the 1966 Elliot Branch B on the Armstrong property not be abandoned.

The further Court of Revision ordered by the Tribunal Decision of November 15, 2011 was convened by the Municipality on March 8, 2011 and adjourned to May 10, 2011. The appeal under Section 54(1) of the Act, which is the subject of this hearing, arose from the decision of the Court of Revision.

Issues

Should the assessments against the Appellant’s lands be amended?

Evidence

Engineer – John Kuntze, P. Eng.

The Engineer provided a brief history of the Ross Drain 2004 project, including the circumstances that led to this hearing, most of which is documented in the background information to this Decision.

Mr. Kuntze testified that in order to fully comply with the Tribunal Decision of October 31, 2006, there were two housekeeping amendments made to his Addendum Report that were agreed to by the Appellant and were included as part of the provisional by-law for the Ross Drain 2004. He said that the two amendments include modifications to Schedule C in the Addendum Report to show total Allowances to the Appellant in the amount of $1,000 and that the $1,223.13 which was owed to the Appellant by the project is to be deducted from his assessments instead. Mr. Kuntze commented that a Tribunal Order should not be required for these amendments but did not object to such an order being made.

Mr. Kuntze testified that there was also a further amendment made to the Addendum Report as part of the provisional by-law for the Ross Drain 2004. He said that his Addendum Report had included the replacement of the culvert across Mr. Buchanan’s driveway at the request of Mr. Buchanan. However, Mr. Buchanan has since asked that the culvert not be replaced.

Mr. Kuntze went on to testify as to the method that he used to determine the Appellant’s total assessment of $7,100. He said that he did not assess Mr. Armstrong for Outlet because his lands have direct access to the outlet. Accordingly, the total assessment is made up entirely of Benefit and is broken down into three parts. Mr. Kuntze said that he first assessed Mr. Armstrong $500, being approximately 40% of the cost of a catch basin that was installed on the road just upstream of Mr. Armstrong’s lands. He explained that although the catch basin is not on Mr. Armstrong’s lands, the Armstrong lands will benefit since the catch basin intercepts surface water before it enters Mr. Armstrong’s lands. With respect to the balance of the Benefit assessment of $6,600, Mr. Kuntze testified that he assessed $3,300 Benefit for each of the two tiles across Mr. Armstrong’s lands that are part of the Ross Drain 2004. He said that $3,300 represents approximately 33% of the total cost of each tile.

Appellant – Keith Armstrong

Mr. Armstrong provided a written submission of his testimony in advance of the hearing which he used as a reference in delivering his testimony at the hearing.

Mr. Armstrong asked that the amendments to the Engineer’s Addendum Report, namely that his total Allowances of $1,000 and that the $1,223.13 that is owed to him by the project be made part of the Tribunal Order.

Mr. Armstrong argued that his assessment should be reduced from $7,100 to $1,650. He said that his $500 assessment for the catch basin installed on the opposite side of the road right-of-way, upstream of his lands, does not benefit his lands. He said that the Engineer has stated on many occasions that the new tiles comprising the Ross Drain are not designed to carry surface water. He questioned the effectiveness of the catch basin in intercepting surface water since the tiles cannot carry the surface water anyway. To demonstrate his point, he referenced a number of photographs of the area in the vicinity of said catch basin that he said showed that upstream surface water continues to flow onto his lands, despite the presence of the catch basin. Accordingly, he said that he should not be assessed for the catch basin.

Mr. Armstrong continued his argument to have his overall assessment reduced by saying that his lands do not benefit from the new tiles of the Ross Drain 2004. He said that the tiles benefit only the upstream lands. He stated that his lands are served by the 1966 Old Elliott Drain Branch B and not the Ross Drain 2004. He complained that surface water continues to flow across his property despite the construction of the new Ross Drain 2004 tiles. He said that in fact, the amount of surface water flowing across his lands has increased since the construction of the new tiles. He also said that upstream surface water damages his lands by depositing gravel and debris. He again supported his arguments by referencing a number of photographs that showed surface water flowing on his lands. Therefore, he said that the assessment to his lands is not justified.

Mr. Armstrong testified that he was particularly annoyed by the assessment of the $3,300 made to his lands for the second tile, which he said became necessary as a result of a mistake. Furthermore, he said that he strongly contested having to pay a benefit assessment for new tiles he does not use and do not provide any additional relief from flooding on his lands. He also complained that the Engineer failed to consider the number of acres affected when calculating his assessments.

In summary, Mr. Armstrong repeated his argument that his lands do not benefit from the new tiles because the surface waters are not being controlled. However, he testified that since he originally requested the Engineer to give some consideration to controlling surface water and since there have been engineering fees expended for design and consultation, he proposed to pay a total assessment of $1,650.

Responding to questions from the Tribunal, Mr. Armstrong confirmed that he farms all of his property in the Ross Drain 2004 watershed, his property is well tiled, and that his tiles are connected into the Ross Drain 2004.

Findings

The Tribunal has reviewed and considered the method used by the Engineer in calculating the Appellant’s assessment and finds the method to be both compliant with the Drainage Act and accepted practice.

The Tribunal has also reviewed and considered the evidence and arguments put forward by the Appellant. Although the Appellant’s written submission and hearing testimony is extensive, the Tribunal finds that much of the evidence is repetitive, coming at much the same arguments from a different direction. The Tribunal does not accept the Appellant’s argument that his lands do not benefit from the new Ross Drain 2004 tiles because surface water is not being controlled. The new Ross Drain 2004 tiles are located on the Appellant’s lands and as such do provide a Benefit to his lands. The Tribunal is also satisfied that the upstream catch basin does indeed benefit the Appellant’s lands by intercepting surface water up to the capacity of the Ross Drain 2004 tiles.

As requested by Mr. Armstrong, the Tribunal will include in its order the amendments to the Addendum Report affecting Mr. Armstrong as detailed by the Engineer and that have already been included as part of the provisional by-law for the Ross Drain 2004.

The Tribunal will also include in its order the deletion of the culvert replacement across the Mr. Buchanan’s driveway as noted by the Engineer.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The Addendum Report shall be amended as follows:

a) The total Allowances to the Appellant’s lands under in Schedule C shall be $1,000.

b) The $1,223.13 owed to Mr. Armstrong by the project shall be deducted from his assessments.

c) The culvert replacement across Mr. Buchanan’s driveway shall be deleted.

2. The appeal by Mr. Armstrong under Section 54(1) of the Act is denied.