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, (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:

East Ruthven Drain

Town of Kingsville

East Ruthven Drain (RE) 2012 ONAFRAAT 1

STATUTE:

Drainage Act

HEARING:

December 19, 2011

DATE OF DECISION:

January 3, 2012

2012-01

NEUTRAL CITATION:

2012 ONAFRAAT 1

EAST RUTHVEN DRAIN

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 the Corporation of the County of Essex, Essex, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the East Ruthven Drain in the Town of Kingsville.

Before:

Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Doug Flook, Member

Appearances:

Gerard Rood, N.J. Peralta Engineering Ltd. - Engineer who prepared the Report

Ruth Orton-Pert, Counsel for the Municipality

John Spriet, Engineer for the Corporation of the County of Essex, appellant

Harry Keller, assessed landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Town of Kingsville (the Municipality), in Kingsville, Ontario on December 19, 2011. The Corporation of the County of Essex (the County) 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 July 21, 2011 from the Engineer’s Report on the East Ruthven Drain dated June 10, 2011 (the Report), prepared by N.J. Peralta Engineering Ltd. (the Engineer), and signed by Gerard Rood, P.Eng.

Sandy Kitchen, Deputy 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 Deputy 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.

Ms. Orton-Pert advised that while she did not object to Mr. Spriet appearing as a witness for the Appellant, she did object to his participation in the hearing as an expert witness on the grounds that the Appellant had not complied with Rule 22 of the Rules of Procedure for the Agriculture, Food and Rural Affairs Appeal Tribunal; namely that the Appellant had failed to provide in advance, a written report signed by Mr. Spriet, a statement of Mr. Spriet’s qualifications and experience and the substance of the evidence that Mr. Spriet would be giving at the hearing, including a list of all documents and things to which he would be referring to. Mr. Spriet stated that he was unaware of the requirements of Rule 22 since he had not encountered this issue in the past. He also advised that he did not have with him a written statement of his qualifications and experience.

The Tribunal allowed Mr. Spriet to provide a verbal submission on his qualifications and experience. After hearing Mr. Spriet’s submission, which included the preparation of over 1500 drainage reports as a Professional Engineer under the Drainage Act over a span 40 years, the Tribunal ruled him to be an expert in matters of drainage. Pursuant to Rule 22.02, the Tribunal consented to Mr. Spriet acting for the Appellant and to giving testimony as an expert witness, subject to his testimony being confined to the Section 54(1) appeal at hand.

The Tribunal consented to Ms. Orton-Pert’s request to recall Mr. Rood to testify following the testimony of the Appellant.

Background

The Report was initiated by a petition submitted by the County of Essex under Section 4 of the Drainage Act for drainage of a portion of County Road 34 adjacent to Parts of Lots 10 and 11, Concession 2, Geographic Township of Gosfield South, now part of the Town of Kingsville. The Municipality appointed the Engineer on September 22, 2008. The Engineer conducted a site meeting on October 27, 2008 and prepared the Report dated June 10, 2011. The Report provides for the construction of a new closed drainage works along the north side of County Road 34 over a distance of approximately 800 metres. The proposed drainage works comprises several 300 mm to 525 mm diameter main tile drains and branches with outlets to the existing Esseltine Drain as well as the Fleming-Wigle Drain. In addition to items ancillary to the new tile drains (catch basins, maintenance holes, surface swales, etc.), the work also includes a 2200 mm diameter culvert crossing County Road 34. The estimated cost of the project is $419,285.

Issues

Should the assessments against the Appellant’s County Road 34 be amended?

Evidence

Engineer – Gerard Rood

Mr. Rood testified that as part of his investigation leading up to the preparation of the Report, he conducted a site meeting to collect information from the affected parties, including the County of Essex and the Town of Kingsville; he reviewed the suitability of outlets in the Fleming-Wigle and Esseltine Drains, carried out a topographic survey of the site; and consulted with the agencies having jurisdiction, such as the Essex Region Conservation Authority. During the preparation of the Report, Mr. Rood said that he remained in contact with the Town of Kingsville and the County of Essex to ensure that all their requirements were being met and, on one occasion, met with County staff at their offices.

Mr. Rood stated that the information provided to him by the County as well as other affected property owners, confirmed that there was a drainage problem in the area and that water frequently flowed onto the road, thereby creating a safety hazard to travelling motorists. He explained that County Road 34 was originally under the jurisdiction of the Ministry of Transportation of Ontario (MTO) as Provincial Highway No. 3 but was later transferred to the County of Essex. It was his understanding that the MTO had intended to fix the drainage problem at their expense but did not get the work done before transferring the road to the County; hence, he said that the responsibility to resolve the drainage problem now rests with the County.

Mr. Rood further testified that his review and investigation revealed that the existing road right-of-way for County Road 34 was heavily congested with utilities and sewer lines, including telephone, cable television, fibre optic lines, water supply mains and a sanitary sewer, leaving no room for a new drainage system. Accordingly, he decided to locate the drainage works on private lands adjacent to the north road right-of-way limit. He said that he considered an open drain but quickly dismissed the idea because of the congestion of utility lines servicing the private homes, the unstable soils, and the need to replace driveway culverts made it both impractical and expensive to install an open drain. Also, he said that an open drain would require a top width of approximately 3.6 m which would occupy a large portion of the front yards of the existing homes and would significantly increase the required compensation for land under Section 29 of the Drainage Act.

Mr. Rood said that his Report provided allowances under Sections 29 and 30 of the Drainage Act. In calculating the allowances for land under Section 29, he said that he paid only nominal amounts to the road. For the private lands, he explained that he based his allowance using 25% of “easement rates” using $60,000 per acre for developed lands and $6,000 per acre for undeveloped and agricultural lands. He said that he also paid allowances under Section 30 for damage to trees, shrubs, flower beds, etc.

With respect to assessments, Mr. Rood testified that the Report provides a single Construction Schedule of Assessment for the entire drainage works but separate Maintenance Schedules of Assessment of each of the main drain segments. In establishing the assessments, Mr. Rood stated that he applied the following principles:

• the County is responsible for drainage and safety of their roadway;

• the County petitioned for drainage and asked to convey their water to an outlet that is sufficient for that purpose;

• if there were no roadway in place, the private lands to the north of the road could easily drain southerly following the natural contours of the land;

• the road creates a barrier or blockage to the natural drainage; and,

• the County is responsible for draining their roadway in order to avoid damage to adjacent lands.

In order to establish a benchmark for the County’s assessment, Mr. Rood testified that he prepared a construction cost estimate of $228,513 for a hypothetical drainage system, installed on the road right-of-way that would be required to drain the road only. He put into evidence a series of nine (9) calculation sheets detailing the estimate. He said that he then compared the construction cost estimate for the hypothetical drainage system ($228,513) to the construction cost estimate for the actual system ($282,846), and noted that the County required nearly 81% of the work based on cost. Mr. Rood explained that he carried out his analysis before his Report was finalized so the total construction estimates used in his calculation are slightly different that those that appear in his Report but he said that the benchmark comparison is still valid.

In assessing the estimated project cost of $419,285 shown in the Report, Mr. Rood testified that he first assessed the County a Special Benefit of $74,908 to cover the cost of items such as the 2200 mm diameter road culvert, that were to the exclusive benefit of the road. He said that he then assessed the County a Benefit of $232,710 using his benchmark comparison to the hypothetical system required to drain the road only. He assigned the remaining amount of $111,667to Outlet and Benefit which he apportioned to the road and affected property owners.

Mr. Rood testified that he did a fairness test of the County’s assessment using his benchmark cost estimate. He noted that whereas the County requires nearly 81% of the work based on cost, their total assessment of $311,474 represents only 74% of the total project cost of $419,285.

Mr. Rood requested that the Tribunal Order include a $2,650 correction to the assessments relating to the construction cost to relocate the existing water services. Mr. Rood explained that this item should have been assessed to the Town of Kingsville as the water utility pursuant to Section 26 of the Drainage Act.

John Spriet – Engineer for the Appellant

At the start of his testimony, Mr. Spriet requested that two aerial photographs of the site of the drainage works be put into evidence. With the consent of Ms. Orton-Pert, the Tribunal allowed the photographs to be put into evidence noting Ms. Orton-Pert’s objection that the drainage boundaries shown on the photographs as not necessarily being representative as those in the Report.

Mr. Spriet objected to the provision of a single Construction Schedule of Assessment in the Report that lumps the entire project into one. He said that in his experience, for drainage systems that include multiple main drain segments and/or branches such as this one, the normal practice among Drainage Engineers is to prepare individual schedules of assessment for each of the branches using the Todgham method. He said that separate schedules of assessment provide better transparency to the assessed parties. While acknowledging that the Report does provide some separate Maintenance Schedules of Assessment for the segments of the main drain, he noted that there still are no separate schedules for the three branches that extend to the north. He remarked that whereas these branches appear to serve private properties only, the road would still have to share in their maintenance cost since the assessment was lumped in with the main drain segments.

Mr. Spriet also remarked that although the overall watershed boundaries are shown on the Report drawings, there are no sub-watershed boundaries shown for each of the drain segments or branches. Accordingly, he said it’s not possible to determine who is in the sub-watershed and who isn’t.

Mr. Spriet also argued that the Engineer should have assessed a cut off benefit for a parcel of land on the south side of County Road 34. He said that the Municipality had previously approved a severance application for this parcel, creating three residential lots. He explained that one of the Municipality’s conditions of severance required the applicant for the severance to perform drainage improvements that would provide an outlet for an existing culvert across County Road 34. However, he said that the applicant did not carry out the improvements and the Municipality had failed to enforce the condition to do so. He said that the current Report specifies that the culvert across the road is to be plugged and the flow is to be diverted to the proposed drain. He argued that the extra costs to divert the flow to the new drain, being approximately $13,000, should be assessed as a cut-off benefit against the parcel of land involved in the severance. He then suggested that the $13,000 should be assessed to the Municipality since it was the Municipality that failed to enforce the condition of severance, and it would be incumbent on the Municipality to collect the amount from the applicant for the severance.

During questioning, Ms. Orton-Pert suggested to Mr. Spriet that if the road is a barrier to drainage, there can be no cut off assessments for land to the south of the road. Mr. Spriet testified that he neither agreed nor disagreed that the road is a barrier to flow from north to south or whether water flows across the road. He then clarified that he had visited the site and that he didn’t see the road as being a barrier.

Mr. Spriet said that he had prepared his own version of assessments for this project and asked to introduce these into evidence for consideration by the Tribunal. However, as a result of objections from Ms. Orton-Pert, Mr. Spriet withdrew his request and opted to proceed with his testimony without entering the documents into evidence.

Mr. Spriet stated that the Appellant had no objection to the Special Benefit Assessment in the amount of $74,908 as shown in the Construction Schedule of Assessment.

Mr. Spriet noted that the total Benefit Assessment of $313,778 and total Outlet Assessment of $30,599 represents approximately a 91%/9% Benefit/Outlet split. He complained that the assessment is heavily skewed in favour of Benefit which penalizes the County. He testified that in his experience, the split of Benefit/Outlet is typically about 60%/40% and occasionally as high as 80%/20%, but he said he had never seen a 91%/9% split used by the Engineer in this Report.

Mr. Spriet also noted that while the County has only 7% of the drainage area in the watershed, they are assessed nearly 68.70% of the project cost. On the other hand, the non-agricultural private lands have about 39% of the area and assessed only 23.75% of the project cost and the agricultural private lands have about 53.9% of the project area yet they are assessed only 7.55% of the project cost. Accordingly, he suggested that the assessments are unfair.

Mr. Spriet testified that in his opinion, a Benefit/Outlet split of approximately 80%/20% would have been appropriate in for this project. Using his suggested split, he said that the Benefit assessment to the County should be reduced by approximately $45,000 which should be added to and prorated among the parties assessed for Outlet.

Responding to questions from the Tribunal, Mr. Spriet stated that despite being dissatisfied with the Engineer’s failure to provide separate schedules of assessment for the various main drain segments and branches, in the interest of time, the Appellant is not asking that the Tribunal order the preparation of separate schedules. He said that it is too late for that and that the parties are anxious to get this project underway. However, Mr. Spriet reaffirmed that the Appellant is still asking the Tribunal to reduce their assessment and impose a cut-off benefit assessment to the parcel of land south of County Road 34.

Engineer – Gerard Rood (Recalled)

With respect to the single Construction Schedule of Assessment in his Report, Mr. Rood testified that this complies with the requirements of the Drainage Act and is in keeping with standard practice in the geographic areas where he practices drainage. He explained that in preparing the single Construction Schedule of Assessment, he considered the sub-watersheds of the various drain segments and branches and that he indeed used the Todgham method to calculate the assessments. As such, he said that he assessed the highest benefit to the lands closest to the drain and the lowest to the lands farthest removed and for outlet he assessed a decreasing unit rate when moving from upstream to downstream.

Mr. Rood pointed out that he did provide individual Maintenance Schedules of Assessments for the main drain segments although he acknowledged that he did not provide individual maintenance assessments for the short branch drains. He said that the practice of the municipality is to carry out maintenance on the drains as a whole and that separate assessment schedules were not necessary. Mr. Rood conceded that the drawings attached to the Report do not show the sub-watershed boundaries. However, he said that the parties assessed to the individual watersheds, including the area affected, are shown on the individual Maintenance Schedules of Assessment.

On the matter of the cut-off benefit suggested by Mr. Spriet, Mr. Rood testified that he did not impose a cut-off benefit to lands south of the road because, in his opinion, the road forms a barrier to drainage. He said his Report calls for the plugging of the existing culvert across County Road 34 and diverting the flow into the new drainage works. He explained that since the existing culvert crossing the road does not have a legal outlet, leaving it in place would have required a significant downstream extension of a new drain to reach a legal outlet. He said that the cost of such an extension would have been far greater than the cost to divert the flow into the proposed drainage works. He pointed out that it is the responsibility of the County to take the road drainage to a legal outlet.

Mr. Rood disagreed with Mr. Spriet’s suggestion that the Benefit/Outlet split of 91%/9% penalizes the County and that it should have been more like 80%/20%. He testified that the proposed drainage works has a long linear watershed which is somewhat unique. For this reason, and for reasons described in his other testimony, particularly the benchmark comparison, he said that he was satisfied that the Benefit/Outlet split that he used in Report is appropriate and fair to all the assessed parties.

Harry Keller – Assessed Landowner

Mr. Keller testified that he has occasionally seen water lying on the road during the 25 years that he has lived in the area, particularly in the vicinity of where the branch drains are being proposed in the Report. He said that the drainage problem is at its worst during periods of frequent freeze-thaw cycles during the winter months. Mr. Keller pointed out that the residents of the area did not ask for the drain and, therefore, should not be required to pay more.

Findings

There was disagreement between the Engineers Messrs. Rood and Spriet as to what is the standard practice in the industry on the provision of individual schedules of assessment for drain segments and branches. Except for a reference to the assessment of lateral drains in Section 37, the Drainage Act provides little direction or guidance on this issue. Moreover, the Tribunal believes that the provision of individual schedules of assessment does increase the level of clarity, transparency and fairness. This is particularly true on this project which comprises three distinct main drain segments that, for the most part, are not interconnected, have different outlets and also include three branch drains. Despite that all three main drain segments and branches are part of the same drainage works designed to address the County’s petition under Section 4 of the Act, the individual main drain segments and branches exhibit characteristics as if they were separate drains. Accordingly, the Tribunal is sympathetic to the Appellant’s objection to a single Construction Schedule of Assessment as well as the omission of Maintenance Schedules of Assessment for the Branch Drains in the Report.

Notwithstanding the above and noting that Mr. Spriet clarified that in the interest of time, he was not asking for the single schedule of assessment to be separated into separate schedules for each of the main drain segments and branches; that there is little in direction or guidance in the Drainage Act on the issue, and; that there was conflicting evidence regarding the standard practice in the industry, the Tribunal will not order that individual schedules of assessments be prepared.

The Tribunal accepts Mr. Rood’s testimony that County Road 34 provides a barrier to drainage which precludes cut-off benefit assessments to lands south of the road. While Mr. Spriet testified that he visited the site, he was somewhat hesitant or undecided as to whether the road formed a barrier to drainage. Moreover, since Mr. Rood based his observations on a topographic survey of the site whereas Mr. Spriet made only visual observations, the Tribunal places more weight on Mr. Rood’s testimony.

The Tribunal accepts the evidence from Mr. Spriet that the Benefit/Outlet split on many drainage projects is typically about 60%/40%. While Mr. Spriet correctly pointed out that on this project the 91%/9% Benefit/Outlet split is skewed toward benefit and that while the County has only 7% of the drainage area they are assessed 68.70%, the Tribunal cannot find fault with the logic used by Mr. Rood in arriving at the Benefit/Outlet split or the overall assessments. Mr. Spriet suggested that a Benefit/Outlet split of 80%/20% would, in his opinion, have been more appropriate, but he did not produce substantive or conclusive evidence to show that Mr. Rood’s Benefit/Outlet split of 91%/9% or assessments were incorrect, unfair or non compliant with the Drainage Act. Accordingly, the Tribunal will not order any changes to the assessments.

Pursuant Mr. Rood’s request, the Tribunal will order that the construction cost to relocate the existing water services be assessed to the Municipality as the water utility, in compliance with Section26 of the Drainage Act. Said construction cost is shown in the Report as $2,650 while the actual cost calculated by the Tribunal is $3,313 allowing for 25% administration.

ORDER OF THE TRIBUNAL

The Tribunal therefore orders as follows:

1. The appeal by the Corporation of the County of Essex under Section 54(1) of the Drainage Act is denied except as noted below.

2. Pursuant to Section 26 of the Drainage Act, the Town of Kingsville shall be assessed $3,313 ($2,650 plus 25% administration) being the cost to relocate the water services.

3. The assessment for Benefit to the Corporation of the County of Essex shall be reduced by $3,313.