Weber-Brubacher Municipal Drain (Re), 2011 ONAFRAAT 33

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West 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

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest 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: Weber-Brubacher Municipal Drain Township of Woolwich

Weber-Brubacher Municipal Drain (RE) 2011 ONAFRAAT 33

STATUTE: Drainage Act

HEARING: October 25, 2011

DATE OF DECISION: November 10, 2011

2011-33

NEUTRAL CITATION: 2011 ONAFRAAT 33

WEBER-BRUBACHER MUNICIPAL 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 Steven and Gloria Ramage of West Montrose, 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 Weber-Brubacher Municipal Drain in the Township of Woolwich.

Before: Paula Lombardi, Vice-Chair; Enio Sullo, Vice-Chair; Nicholas Richter, Vice-Chair

Appearances: Steven Ramage - Appellant and landowner David Johnson - Engineer who prepared the Report, Johnson Engineering Consultants Inc. Ed Switenky – Manager, Transportation Operations for the Regional Municipality of Waterloo Richard Brookes - Counsel for the Regional Municipality of Waterloo

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers of the Township of Woolwich, Elmira, Ontario on October 25, 2011. Steven Ramage appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Sections 48(1) and 54(1) of the Drainage Act (the “Act”) from the Engineer’s Report titled “Weber-Brubacher Municipal Drain” dated January 31, 2011 (the “Report”), prepared by Johnson Engineering Consultants and signed by David G. Johnson, P.Eng.

Valrie Hummel, Deputy Clerk for the Township of Woolwich, 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 Deputy 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.

Mr. Richard Brookes, Counsel for the Regional Municipality of Waterloo advised of his intent to make a statement at the hearing. Later during the hearing, the Tribunal granted Mr. Brookes’ request for full party status at the hearing.

Background

The Weber-Brubacher Municipal Drain (the “Drain”) is situated in the vicinity of Katherine Street South (Waterloo Regional Road 23) and Lundy Road (Woolwich Township Road 51) on Lots 3 and 4, Broken Front Concession and Concession 1, Crook’s Tract, East of Grand River, Township of Woolwich. The Drain’s 33 hectare watershed straddles the rural/urban boundary along Katherine Street South and is made up of 31.5 hectares of upstream agricultural lands east of Katherine Street South, 1.25 hectares of residential lots along Katherine Street South and 0.25 hectares of road right-of-way (Katherine Street South).

The Engineer’s Report proposes to replace a 69 metre downstream section of the existing 250 mm diameter drainage tile and existing swale that make up the Drain with a new 525 mm diameter drainage tile and accompanying swale, for an estimated cost of $44,000. The proposed work is located west of Katherine Street South, predominantly on the residential lot owned by Mr. Ramage, the Appellant.

The Issues

1. Should the Appellant be compensated for the removal of two cedar trees on his property under Section 30 of the Act?
2. Should the Appellant’s allowances under Sections 29 and 30 of the Act be increased?
3. Should the Appellant’s assessment be reduced?

Evidence

Engineer – David Johnson

Mr. Johnson testified that he was retained to prepare a report by the Township of Woolwich under Section 78 of the Drainage Act (“Act”), pursuant to a request received from Ezra Brubacher, an upstream agricultural landowner on the Weber-Brubacher Municipal Drain watershed. As part of his review and investigation leading up to the preparation of his Report, Mr. Johnson said that he reviewed the history of the Drain, conducted two site meetings, examined and surveyed the site and undertook a camera inspection of the existing tile drain. The investigation revealed that the tile drain located across the Appellant’s property was choked with sediment and tree roots and was not working properly.

Mr. Johnson referred to a set of five large scale drawings enhanced with colour marker to describe the work recommended in his Report. He advised that the drawings were identical in every respect to the drawings attached to his Report, except for the larger scale and colour enhancement. Mr. Johnson described the work recommended by his Report on the Appellant’s property as the reconstruction of a 69 metre length of the existing 250 mm diameter tile and surface swale situated between the existing house and shed. The work would begin at a new ditch inlet catch basin on the west side of Katherine Street South and extend downstream to the existing concrete ditch inlet structure, a short distance beyond the rear property line of the Appellant’s lot. Mr. Johnson said the alignment of the new tile and swale will be slightly different than the existing tile and swale. He explained that the project also includes ancillary works such as a new ditch inlet catch basin at Katherine Street South, connections, removal of two cedar trees and grounds restoration, all at an estimated cost of $44,000, which he assessed to the affected road and benefitting landowners. Mr. Johnson clarified that the work did not include the removal of two existing foot bridges on the Ramage property across the existing swale because Mr. Ramage had agreed to remove them at his own expense.

Mr. Johnson testified that initially, he determined that the section of tile drain to be replaced should be 375 mm diameter, based on a 35 mm drainage coefficient, which is the normal design criterion for the drainage of agricultural land. Mr. Johnson stated that the combined capacity of the tile and surface swale would accommodate the 1:100-year storm flow. However, Mr. Johnson said that Mr. Ramage requested that the tile size be increased to 525 mm diameter to help reduce the depth and dimensions of the required swale as well as the incidence of surface flow and, as a result, Mr. Ramage agreed to pay for the $4,200 extra cost to upsize the tile as a Special Benefit. Mr. Johnson remarked that the surface swale proposed by his Report will actually be shallower and will have milder side slopes than the existing one, particularly along its upstream section, adjacent to Katherine Street South.

In further testimony, Mr. Johnson stated that he only included a nominal amount of $300 in allowances for use of land and damages under Sections 29 and 30 of the Act respectively. He said that these allowances were intentionally low because his Report provides for full restoration of the affected residential lots with topsoil and grass seed to preconstruction conditions. Mr. Johnson clarified that for purposes of calculating the allowances, he used the equivalent allowances that would normally be applicable to agricultural land, which resulted in an allowance of $200 to Mr. Ramage and $100 to his downstream neighbour, Mr. Hughes.

At the request of the Tribunal, Mr. Johnson provided information on the history of the Drain. Referring to excerpts from the previous drainage report titled “Weber-Brubacher Drain” dated November 5, 1973 by Mr. K. Smart, P.Eng., Mr. Johnson pointed out that the portion of the 250 mm drainage tile of the Weber-Brubacher Drain that is currently proposed to be reconstructed on the Ramage property existed prior to 1973. He noted that Mr. Smart’s 1973 report incorporated both the tile and surface swale as a municipal drain. Mr. Johnson indicated that the residential lots currently owned by Mr. Ramage and Mr. Hughes were severed from lands previously owned by Mr. Fred Holotta in 1973 and that the 1973 report paid total allowances of $709 to Mr. Holotta, made up of $200 for lands and crops and $509 for the existing drain.

Mr. Johnson put into evidence a calculation sheet which he referred to in explaining how he assessed the $44,000 estimated cost of the project. He testified that he first deducted $4,200, being the Special Benefit to Mr. Ramage for upsizing the tile. Of the remaining $39,800, he assigned 2/3 or $26,533 to the upstream agricultural lands and 1/3 or $13,267 to Mr. Ramage, the residential lots and Katherine Street South. Mr. Johnson then divided the $26,533 for agricultural lands into 50% or $13,267 for Outlet and 50% or $13,267 for Benefit. For the $13,267 (1/3 of $39,800) assigned to the non-agricultural lands, Mr. Johnson said that he first assessed Katherine Street South a $500 surcharge for the new ditch inlet catch basin and $125 to selected residential lots for potential future connections, leaving $12,642 of which he assessed 1/3 or $4,200 to Mr. Ramage and the rest to the other residential lots and Katherine Street South evenly. Mr. Johnson said that, generally, his determination of the individual assessments for Benefit was “arbitrary,” which seemed to be a slight misuse of the word, but he later clarified that in determining the individual assessments he applied his own judgment and experience. For purposes of calculating the individual assessments for Outlet, Mr. Johnson said that these were mathematically determined based on area of land, land use and other factors. For example, he said that Katherine Street South was assessed for Outlet at five times the rate of agricultural land because much more water flows off the impervious pavement.

The Tribunal asked Mr. Johnson to provide further details with respect to the two cedar trees on Mr. Ramage’s land that are slated to be removed as part of the work. Mr. Johnson agreed with Mr. Ramage’s testimony that each of the two cedars have a trunk diameter of approximately 10 inches and are located close to Mr. Ramage’s rear property line. Mr. Johnson testified that the two trees are within the alignment of the existing drain tile and swale. He further testified that it will be necessary to remove the trees in order to construct the new drain tile and swale. Responding to questions from the Tribunal, Mr. Johnson agreed that at least one of the trees appears to be directly over top of the existing drain tile and within the existing surface swale. Although the second tree is close to the first, he could not definitively confirm whether or not it is within the existing drainage swale. However, Mr. Johnson confirmed that both trees would interfere with the construction of the new tile and swale and would have to be removed. Mr. Johnson confirmed that the video camera inspection of the existing drain showed that the tile drain was clogged with roots but could not conclusively say that those roots were from the two cedar trees slated to be removed or from other trees in the area.

The Tribunal probed further into the issue of the two cedar trees with Mr. Johnson. When asked if the trees could remain in place, Mr. Johnson was somewhat ambiguous with his answers, suggesting at one point that the construction equipment could perhaps work in between the two trees in constructing the new drain tile and swale. However, he said that if the trees are left in place, at least one of the trees will be within the proposed drainage swale and that the trees could hamper the future maintenance of the drainage works. When asked again if either of the two trees were currently located within the cross section of the existing swale, he responded that the existing swale cross section in the area of the trees is not clearly defined so he could not provide a definitive answer. Mr. Johnson agreed that although the new tile drain and surface swale on Mr. Ramage’s property will follow a slightly different path, the location of the new tile and swale is coincident with the existing tile and swale at the location of the two trees.

Appellant – Steven Ramage

Mr. Ramage confirmed his agreement with the Engineer to accept a Special Benefit assessment of $4,200, being the estimated cost to upsize the new tile.

Mr. Ramage presented a threefold appeal: first, he asked to be compensated $1,800 for the removal of the two cedar trees; second, that he be paid allowances under Sections 29 and 30 of the Act of $2,199.78; and third, that his assessment be reduced. Mr. Ramage proposed that the cost to pay him the extra compensation and the decreased assessment to his property be transferred to the Regional Municipality of Waterloo, which has jurisdiction over Katherine Street South.

With respect to the two cedar trees, Mr. Ramage argued that he should be compensated for the removal of the trees so that he can have them replaced at the same location. He said that the two cedar trees are very large and are part of a living fence adjacent to the rear property line of his lot. As part of his submissions, Mr. Ramage provided a quote from John’s Nursery to supply the two cedars at a combined cost of $1,800 ($900 each), excluding the cost of replanting. During the hearing, Mr. Ramage also provided a quote for the costs of replanting the trees in the amount of $675 plus HST, but he said that he was prepared to bear this cost himself in order not to add to the cost of the project.

In reference to allowances, Mr. Ramage noted that he is being paid $200 while his downstream neighbour, Mr. Hughes, is being paid $100. He said that although there will be relatively little new construction on Mr. Hughes’ property as compared to his property, Mr. Hughes is proportionally being compensated at a considerably higher rate. In comparing the amount of land affected by the construction on his property versus Mr. Hughes’ property, Mr. Ramage determined that his allowances should be $2,199.78. Responding to questions from the Tribunal, Mr. Ramage conceded that his lot will be restored with topsoil and grass seed and that following the construction, likely after one growing season, his property will return to substantially the same condition that it was in preconstruction. Mr. Ramage drew to the Tribunal’s attention that he will endure significant inconvenience during the construction, and he asked to be compensated for this inconvenience.

Mr. Ramage argued that his assessment for Benefit of $4,200 (which is in addition to his assessment for Special Benefit, also $4,200) is grossly exaggerated. He questioned the Engineer’s calculation of the Benefit assessment. Mr. Ramage also argued that since Katherine Street South produces considerably more water because of its impervious nature than his lot, the Regional Municipality of Waterloo’s assessment should be increased.

Mr. Ramage entered into evidence a series of nine colour photographs that he took along the course of the existing swale on his property from Katherine Street South to his rear lot line. Among other things, the photographs show the cedar trees adjacent to his rear lot line, including the two cedar trees slated for removal.

Responding to questions from the Tribunal, Mr. Ramage confirmed that he has owned the property for approximately five years. With respect to the two cedar trees slated for removal, he agreed that the trees are located on his lot adjacent to his rear property line, but he said that he could not comment on the location of the trees relative to the existing tile drain because he did not know the exact location of the tile. He did confirm that at times the surface water in the drain has flowed past the two trees and a third tree further up the slope.

Richard Brookes - Counsel for the Regional Municipality of Waterloo

Mr. Brookes was accompanied by Mr. Ed Switenky, Manager, Transportation Operations for the Regional Municipality of Waterloo (the “Region”).

Mr. Brookes said that he would be making a statement on behalf of the Region but would not be calling any witnesses. Mr. Brookes confirmed that the Region has jurisdiction over Katherine Street South, which is an assessed party on the Drain. He stated that the Region supports the Engineer’s Report in its current form, including the assessments made therein. Mr. Brookes opposed the Appellant’s proposal to increase or transfer additional assessments to the Region. Mr. Brookes argued that there is no justification to increase the assessment for Katherine Road South and questioned why only the Region was being singled out by the Appellant to receive an increased assessment as opposed to any of the other landowners located within the watershed.

In reference to the two cedar trees slated to be removed, Mr. Brookes suggested that the trees may actually be contributing to the drainage problems with the existing tile drain, although Mr. Brookes did not call any evidence in support of this position.

Findings

On the Question of Compensation for Removal of Cedar Trees

In making its determination as to whether Mr. Ramage should be granted an allowance under Section 30 of the Act for the loss of the two cedar trees, the Tribunal first considered the evidence regarding the relative location of the trees with respect to the alignment of the existing tile drain and surface swale that currently constitute the Weber-Brubacher Drain. More specifically, are the cedar trees located within the cross section of the surface swale or on top of the drain tile? The answer to this question is essential in deciding whether the trees constitute an obstruction to the drainage works within the meaning of Section 80 of the Act.

The evidence is clear that the existing 250 mm diameter tile and surface swale of the Weber-Brubacher Drain has existed on the Ramage property since prior to 1973 and that in 1973 the drainage tile and surface swale system were incorporated as a municipal drain under the Act. However, the evidence and submissions available to the Tribunal with respect to the surface swale only provide information on the alignment of the swale and did not reveal the details pertaining to its configuration and depth at the time that it was incorporated as a part of the Drain in 1973. The photographs submitted by the Appellant show that the surface swale starts off as a well defined, shallow flat-bottomed channel at Katherine Street South but becomes increasingly less defined when moving downstream. By the time the surface swale reaches the location of the two cedar trees adjacent to the rear lot line of the Ramage property, the swale has little or no depth and is hardly recognizable as a swale. There was no evidence presented as to why the swale is not well defined at the location of the cedars. Accordingly, it is not possible to determine whether since 1973 the swale cross section has filled with naturally occurring sediment, whether the channel was filled in or reshaped or the swale existed in 1973 in the same state that it does today.

Based on the evidence of the Engineer and the Tribunal’s review of the drawings attached to the Report, it is apparent that the alignment of the existing drain and the new drain are coincident at the rear lot line of the Ramage property, where the two cedars are located. It is also apparent that the two cedars are within the alignment of both the existing drain and the proposed drain and need to be removed in order to accommodate the construction and the future maintenance of the drain. The Engineer testified that he believes that one of the trees is planted directly over top of the tile while the other is a short distance away. However, the Engineer’s evidence was ambiguous as to whether the cedars are within the cross section of the swale as it currently exists or as it existed in 1973.

Having carefully considered the evidence, the Tribunal finds that one of the cedar trees is planted directly over top of the existing tile drain. Since the surface swale created in 1973 as part of the municipal drain was located over top of the tile, it follows that the tree was also planted within the cross section of the swale. As such, the Tribunal finds that the cedar tree is an obstruction to the drainage works within the meaning of Section 80 of the Act because, among other things, the trunk reduces the cross-sectional area of the swale and therefore impedes the flow of water within the swale. Section 80 places the financial burden for the removal of such obstructions upon the owner or occupant of the land.

The evidence with respect to the location of the second cedar tree relative to the existing drainage tile and swale is not clear. The drawings attached to the Report depict the tree as being very close but just outside the cross section of the new swale. The available evidence does not allow the Tribunal to establish whether the tree is located within the cross section of the surface swale as it existed in 1973. The Engineer’s evidence is that the tree needs to be removed to allow access to construction equipment. The Tribunal finds that this second tree, while not necessarily within the cross section of the existing drain and therefore not necessarily an obstruction under Section 80 of the Act, cannot continue to exist in its current location because it interferes not only with the construction of the new Drain but also with future drain maintenance operations.

For the reasons set out above, the Tribunal finds that neither of the two cedar trees can continue to exist, nor should they be replanted, in their current locations.

The Tribunal has examined the cost estimate for the project contained within the Report and notes that the estimated cost to remove the two cedar trees is $1,000 plus the proportional overhead cost to prepare the Engineer’s Report.

In view of the evidence, the Tribunal considered a further Special Benefit assessment to the Ramage property to cover the cost of removing the tree that was determined to be an obstruction under Section 80 of the Act. With respect to the second tree, the evidence is inconclusive as to whether it is an obstruction and therefore could possibly qualify for compensation under Section 30 of the Act, as requested by the Appellant. However, given that the Ramage property has not been assessed with the cost of removing the tree that is clearly within the swale, and the Tribunal’s finding that the second tree cannot continue to exist and should not be replanted in its current location, the Tribunal has decided not to order any alterations to the Special Benefit assessment or to Allowances pertaining to the removal of the two cedar trees.

On the Question of Allowances Under Sections 29 and 30 of the Act

The evidence is that the properties currently owned by the Appellant, Mr. Ramage, as well as Mr. Hughes were severed from the property previously owned by Mr. Fred Holotta as referenced in the 1973 engineer’s report. According to that 1973 report, Mr. Holotta was paid allowances of $709, made up of $200 for lands and crops and $509 for the existing drain. It follows that the right-of-way for the drain, including tile and surface swale, was established and paid for in 1973. Accordingly, the Tribunal finds that a further allowance for land under Section 29 of the Act is not justified for either the Ramage or the Hughes properties.

Since the project provides for full restoration of the Ramage and Hughes properties to pre-construction conditions and since the properties are not used for agricultural crops, the Tribunal further finds that allowances under Section 30 of the Act are also not justified.

With regard to Mr. Ramage’s argument that he is entitled to an allowance to compensate him for the inconvenience that he will endure during the construction period, the Tribunal notes that the Act does not have any provision for compensation for inconvenience during the construction period of a drainage works.

In view of the evidence, the Tribunal denies Mr. Ramage’s request to increase the allowances to his property under Sections 29 and 30 of the Act. Furthermore, the Tribunal will order that no payment for allowances under Sections 29 and 30 of the Act be made in the Report for either the Ramage or the Hughes properties. This will result in a savings to the project of $300, which shall be allocated proportionately to all of the parties assessed in the Report (excluding the Special Benefit assessment against the Ramage property).

On the Question of Assessments

The Tribunal has reviewed the Engineer’s evidence on how he determined the assessments and did not identify any significant inconsistencies with the assessment rules contained within the Act. The Tribunal also carried out an overall review of the assessments and finds that the total amounts assessed to each of the affected landowners and road authority are fair and reasonable.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeals by Steven and Gloria Ramage of West Montrose, 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 Weber-Brubacher Municipal Drain in the Township of Woolwich are denied.
2. There shall be no allowances made under Sections 29 and 30 of the Act for either the Ramage or the Hughes properties. The corresponding savings to the project of $300 shall be allocated proportionately to all of the parties assessed in the Report (excluding the Special Benefit assessment against the Ramage property).

Dated at London, Ontario this 10th day of November, 2011