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 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/english/tribunal

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/french/tribunal

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Van Beets Municipal Drain 2012 Municipality of Central Huron

Van Beets Municipal Drain (RE) 2012 ONAFRAAT 36

STATUTE:

Drainage Act

HEARING:

October 17, 2012

DATE OF DECISION:

November 30, 2012

2012-36

NEUTRAL CITATION:

2012 ONAFRAAT 36

VAN BEETS MUNICIPAL DRAIN 2012 Municipality of Central Huron

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 Gerard Boon, Brucefield, Ontario under Sections 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and from the decision of the Court of Revision on the Van Beets Municipal Drain 2012 in the Municipality of Central Huron.

Before:

Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Bill Schaefer, Member

Appearances:

Gerard Boon – Appellant

Donald Good – Counsel for the Appellant

David Johnson – P. Eng., Johnson Engineering Consultants Inc., Witness for the Appellant

Jeff Dickson – R.J. Burnside & Associates Limited – Engineer who prepared the Report

Lenus Yeo – Estate Trustee for the Estate of Harold Yeo, assessed landowner

Ike Van Beets – Representative for J. & B.P. Van Beets, Petitioner for the Drain Geoff King – Drainage Superintendent for the Municipality of Central Huron

Alec Scott – Ausable Bayfield Conservation Authority

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of Central Huron, (“Municipality”) in Clinton, Ontario on October 17, 2012. Mr. Gerard Boon (“Appellant”) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under Sections 48(1) and 54(1) of the Drainage Act (“Act”) from the Engineer’s Section 40 Report on the “Van Beets Municipal Drain 2012”, dated February 24, 2012 (“Report”) prepared by R.J. Burnside & Associates Limited (“Engineer”), and from the decision of the Court of Revision dated May 9, 2012 with respect to his assessments for the Van Beets Municipal Drain.

Brenda MacIsaac, 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 Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with Notice of Hearing dated August 17, 2012.

Background

The Van Beets Municipal Drain was initiated when the Van Beets (“Petitioners”), owners of Part of Lots 32 and 33, Concession 8, in the geographic Township of Goderich, petitioned the municipality for drainage works under section 4 of the Act. The Petitioners’ lands are approximately 56.8 hectares in area (140 ac)

Several on site meetings were held and a Preliminary Report prepared in accordance with section 10 of the Act. The Ausable Bayfield Conservation Authority (“ABCA”) and municipal Drainage Superintendent were actively involved and consulted throughout the process.

In response to the Van Beets Petition, the Municipality appointed the Engineer to prepare a report pursuant to the requirements of the Act. Mr. J.R. (Jeff) Dickson was designated the Engineer in charge of the project in accordance with section 8(2) of the Act.

The Van Beets Municipal Drain is located in the Municipality of Central Huron within the geographic Township of Goderich approximately ten (10) kilometres west of the Town of Clinton. The existing drainage outlet flows westerly towards Gully Creek and then to Lake Huron.

The watershed area is approximately ninety (90) hectares in area and approximately 95% of the area is cleared land that is worked for agricultural purposes. The lower portion of the watershed represents a wooded area. The topography of the agricultural area is described as rolling to undulating having minimal land that is too steep to restrict agricultural operations.

The Appellant is the owner of Lots 32 and 33 Concession 7, and is situated downstream of Whys Road.

The proposed drainage work on the Appellant’s property includes the construction of: 6.0 metres of 800 mm diameter outlet pipe; 125 metres of 600 mm diameter concrete tile; 181.5 metres of 525 mm diameter concrete tile, installation of a new concrete junction box; and, minor cleanout and re-grading of the existing pond. It is intended that the existing pond be utilized as a natural stilling basin primarily for sediment control.

The portion of the project upstream of Whys Road is located on the Petitioner’s property and includes the construction of: 1,330 metres of Main Drain with concrete tile diameters ranging from 200 mm to 525 mm. In addition to the Main Drain there are three branch drains to the proposed project: Branch A; Branch B; and, Branch C. Branch A is 691 metres in length and constructed of 200 mm to 250 mm concrete tile drain. Branch B is 605 metres in length and constructed of 200 mm to 300 mm concrete tile drain, and Branch C is 588 metres in length and constructed of 200 mm to 250 mm concrete tile drain.

The project also includes the construction of twelve (12) new “Water and Sediment Control Basins (referred to as “WASCoB’s”) on the Petitioner’s property which are berms or storage facilities with the associated water inlet and an outlet connections to the drain. The WASCoBs are intended to collect surface water from the agricultural land and release of the water into the drain at a controlled rate in an effort to reduce the peak flows through the downstream properties. The WASCoB’s were designed by a Certified Soil Erosion Control Contractor for a 10 year storm return period. The WASCoB’s should also improve water quality as sediment settles out and debris is collected prior to the water entering the tile system.

Issues

1. Should the assessments against and/or allowances to, the Appellant be amended?

2. Are the proposed modifications requested by the Appellant appropriate in the circumstances?

Evidence

J.R. (Jeff) Dickson, P.Eng. - R.J. Burnside & Associates Limited

Mr. Dickson provided a description and overview of the existing conditions of the drainage area, the process followed in preparing the Report and how the assessments for each property were calculated. The Van Beets petition was signed by the upstream land owner who requested drainage for both surface and subsurface water in addition to the implementation of measures to control runoff to the downstream landowners. Numerous meetings were held with the landowners both as on-site meetings prescribed by the Act, and in separate meetings with landowners on their farms or in the Engineer’s office. Several discussions were held with the ABCA who had expressed concerns about water quantity and quality entering into and impacting fish habitat downstream from the project in Gully Creek.

The Todgham Method was used to distribute the costs of the project over the lands affected by the project. The Todgham Method is well accepted practice in the industry for determining assessments. The assessments were made in accordance with the provisions of sections 22, 23 and 26 of the Act. The landowners downstream from the project had been assessed a Benefit by Cutoff because the runoff was being reduced by the WASCoBs constructed on the upstream properties.

The Appellant raised the following issues in the Notice of Appeal:

• the amount in the assessment prescribed by the Report allocated to the Appellant’s lands;
• the decision of Council to approved the Engineer’s Report;
• that the benefits to be derived from the drainage work are not commensurate with the estimated cost and that the proposed drain will interfere with the Appellant’s farming operation;
• that the proposed drain not be located on his property on the basis that his property does not require additional drainage as the natural conditions are sufficient; and
• that the allowances provided in the Report are inadequate.

Mr. Dickson stated that the proposed drain will not interfere with the Appellant’s farming operation since the area where the proposed drain is to be located is not currently cultivated. Also, any impact on farming operations will be mitigated as the new drain will be constructed adjacent to the existing tile drain constructed in the 1970s. There was no evidence presented by the Appellant that the existing drain has interfered with past farming operations.

The Engineer’s position is that taking into account the location of the properties and the municipal road it is not possible to keep the drain off of the Appellant’s property. Also, it was noted that landowners are not permitted to dump water directly into a municipal road ditch and other than going across the Appellant’s property there is no other way to obtain a sufficient outlet for the project. Mr. Dickson stated that in his opinion the existing drainage of the Appellant’s land would continue to get worse without the construction of the proposed project in the Report because without the construction of the proposed project there will be no management or control of surface water coming from the lands upstream of Whys Road.

Mr. Dickson took into consideration the Appellant’s request to modify the outlet. However, ending the tile drain East of Whys Road with the outlet 0.83 m below the invert of the road culvert, would not meet the requirements of section 15 of the Act dealing with “sufficient outlet.” This proposal would be contrary to the accepted engineering practice of having at least 0.3 metres of freeboard at the outlet of a tile drain. Mr. Dickson stated that in his opinion, a submerged outlet does not represent good engineering practice.

The land values used in the Report for calculating allowances were obtained from Farm Credit Canada. The full land value was used in determining the allowance for the pond area and one third of the land value for the right-of-way for the tile drain construction because the land above the tile drain is still useable land after construction. An allowance has also been provided for the access route needed to maintain the pond when sediment removal is required. Notwithstanding that this portion of the Appellant’s lands are not currently being cultivated full land value was used in determining that allowance.

The Appellant requested that his assessment be reduced to zero. It is noted that the Court of Revision granted a reduced assessment of 50% of the cost of the WASCoB’s to the Appellant and increased the Petitioner’s assessment by 50% for the WASCoB’s cost.

In or around June 2012, the Municipality offered to arrange a meeting with the Appellant and the Engineer to discuss and resolve any issues being raised by the Appellant. Unfortunately, the Appellant failed to respond to the Municipality’s request. The Appellant’s engineering report was dated August 28, 2012, but was not received by the Engineer until October 3, 2012 when the materials were filed for this hearing.

Lenus Yeo – Assessed Landowner

Mr. Yeo expressed concern that Branch A of the proposed drain is unnecessary as currently there is no tile in that area and felt that the landowners had limited to no input into the use of WASCoBs. Mr. Yeo requested that the catch basin for Branch B of the drain be relocated. Mr. Yeo also indicated that the cutting of a path through the woodlot area would result in further erosion and that this area should be left in its natural state.

Gerard Boon – Appellant

The Appellant owns all the land in the watershed area west of Whys Line at Lots 32 and 33, Concession 7. The pond located on his property was built by his father in 1960 at a cost of seven thousand dollars ($7,000) to provide a water source for cattle. The northern area of the property is used for crops such as corn, wheat, soybeans and occasionally hay, while the southern portion is used to raise cattle. The Appellant’s cattle are organically raised. The water flows to the pond from the east through a 1400 mm (55”) culvert under Whys Road and follows a grassy waterway t to the pond. The Appellant’s position is that the grassy waterway is a natural watercourse. The Report prepared on behalf of the Municipality did not classify this grassy waterway as a natural watercourse. The Appellant’s expert testified that the grassy waterway had previously been altered when the existing drainage tile was constructed.

Mr. Boon was concerned that his lands did not require any drainage and that the proposed project would bring additional silt into his pond, eventually resulting in the loss of the pond. The Appellant expressed concern about the impact of crop spraying over the surface water inlets, and that chemicals may enter his pond and impact his organic cattle operation.

The Appellant expressed concern that the project will result in a potential increase in the water levels leading to the pond creating a risk hazard to his cattle and those working on the farm. The Appellant did not want the pond impacted and is also of the opinion that he does not require a junction box on his property. The Appellant requested that the apple, pear, cherry, ash and elm trees not be removed from his property as they provide shade for his cattle.

David Johnson, P. Eng – Expert Witness for Mr. Boon

Mr. Johnson stated that he had been engaged by the Appellant in mid-August to do a general inspection of the site and to comment on the Engineer’s Report. Mr. Johnson testified that the Appellant’s property currently drains by the grassy waterway that is, in his opinion, considered a natural watercourse and the construction of the project would eliminate this watercourse. However, during cross-examination, Mr. Johnson confirmed that the “natural” watercourse had been previously altered by the existing drainage tile.

Mr. Johnson’s report proposed an alternate solution for an outlet, called a “submerged outlet” for the water from the east side of Whys Road. When questioned about the submerged outlet which would be 0.83 m below the invert of the 1400 mm Whys Road culvert, Mr. Johnson agreed that it would not be considered a “sufficient outlet” under the Act.

Alec Scott, Ausable Bayfield Conservation Authority

The ABCA is a commenting agency on the Report and has been involved in preserving the Gully Creek watershed and improving water quality along the Lake Huron. The ABCA supported the Report and indicated that the ABCA are always interested in finding ways to assist landowners in making improvements to their land to resolve erosion problems and improve the quality of the water entering the surrounding watercourses.

Jurjen and Bremer Pietje Van Beets – Assessed Landowner and Petitioner

Mr. Ike Van Beets testified that his family agreed to take on an extra two thousand and five hundred dollars ($2,500) of the costs assessed to the Appellant in an effort to move this drainage project forward in a timely manner. However, due to the delays in the project arising from this appeal he requested that the additional assessed amount to the Petitioner’s property by the Court of Revision be overturned.

Due to the continued delay in the project grant money that Mr. Van Beets anticipated from the environmental farm plan program in the amount of approximately twenty thousand dollars ($20,000), to offset some of their costs for this drainage project, are no longer available as the project needed to be completed on or before October 31, 2012.

The Petitioner testified that the grass runway that his father had constructed to reduce erosion was washed out as a result of increased water flow creating a need for improved drainage. Also, a concrete culvert washed out, further demonstrating a need for this drainage project.

Geoff King, Drainage Superintendent

The Drainage Superintendent works cooperatively with landowners to resolve any drainage issues being experienced by the municipality. Mr. King indicated that the Municipality has previously worked with Mr. Van Beets on erosion control projects for his property. The Drainage Superintendent also identified concerns with water quality and erosion in the area.

The Drainage Superintendent testified that Mr. Van Beets had initially pursued working cooperatively with Mr. Boon in an effort to utilize a private drain option that would resolve the drainage issues. Since discussions with the Appellant had proven unsuccessful, Mr. Van Beets submitted the petition pursuant to the requirements of the Act.

Findings

There was considerable discussion regarding the classification of the grassy waterway leading to the pond on the Appellant’s property and whether or not it was considered a natural water course. The parties all agreed that the issue of the classification of the grassy channel and, what constitutes riparian rights are beyond the scope of the Tribunal’s jurisdiction. For the purposes of this hearing, the parties agreed that where a natural watercourse becomes part of a drain, it is no longer a natural watercourse; when this occurs, riparian rights are lost. The proposed project includes a portion of the grassy area leading to the pond and therefore the determination of whether or not this area is a natural watercourse is of no significance.

One of the primary purposes of the Act is to provide a mechanism whereby a drainage outlet for upstream lands can be created by extending a project downstream to provide a “sufficient outlet”. In this case, the Report identifies the sufficient outlet for the upstream Van Beet lands as the pond that is situated on the Appellant’s property.

The modifications proposed by the Appellant failed to provide a solution that included a sufficient outlet for drainage. It was agreed that the other alternative presented by the Appellant of the submerged outlet would not be considered good engineering practice.

The Court of Revision reduced the assessment of the Appellant’s property and increased the assessment to the Van Beets property. The Appellant’s assessment was reduced from $5,089 to $2,540 for the construction of the WASCoBs situated on the Van Beets property. Mr. Van Beets requested that this decision be reversed, but did not file an appeal of this assessment with Tribunal pursuant to section 54 of the Act.

The Tribunal has reviewed the Minutes of the Court of Revision and considered Mr. Van Beets testimony with respect to losing $20,000.00 government grant due to the drainage project being delayed beyond October 31, 2012. While the Tribunal is concerned about the matters raised by Mr. Van Beets with respect to the increased assessment, Mr. Van Beets did not appeal the Court of Revision’s decision to the Tribunal. The Tribunal did not have an appeal before it on this matter nor way any evidence presented in support of this request. Therefore, the Tribunal has no alternative but to deny the Petitioner’s request.

The Appellant failed to provide the Tribunal with any evidence to support of the request in his notice of appeal that his assessment be modified. The Tribunal relies on the evidence presented by the Engineer as set out above and denies the Appellant’s appeal under section 54 of the Act.

Similarly, the Appellant failed to introduce any evidence in support of his request that the $2,500 allowance for land taken for the settling pond is inadequate pursuant to section 48(1)(c) of the Act. The Tribunal denies the Appellant’s appeal under section 48 (1) (c).

The Appellant indicated that the pond is used for watering livestock and the quality of the water improved by filtration of the surface flow through the marsh situated upstream from the pond, by retaining silt, crop residue and other contaminants. The Appellant expressed concern that by transporting the water directly to the outlet in the pond, and by-passing the marsh, it may result in a decrease in the water quality of the pond. In an appeal, the onus of proof rests with the Appellant. In these circumstances the Appellant did not provide any evidence, nor was there any expert testimony, indicating that the grassy channel and upstream marsh improved water quality in the pond. It is noted that the Appellant failed to raise this issue prior to this hearing with the municipality and Engineer and did not provide specific grounds upon which the drainage works should be modified by the construction a new pond on the Appellant’s property. The Engineer indicated that although he was willing to consider the Appellant’s request it was the first time that the Appellant had raised the issue.

The Tribunal considers the water quality of the pond to be an important issue and based on the testimony of the Appellant, is of the opinion that the construction of a new water pond, outside of the drain being proposed, could resolve the Appellant’s concerns. It is unfortunate that the Appellant failed to provide any evidence in support of this request and failed to raise this issue with the Engineer prior to this hearing. There was no evidence provided to the Tribunal outlining how the drainage works should be modified and any specific engineering grounds or studies relating to the construction of a new pond as required by the Act.

The Tribunal encourage the parties to meet to discuss the possibility of a new water pond with the Appellant to see if this option is at all viable. Recognizing that time is of the essence for this project, the Tribunal encourages the Appellant to contact the Municipality forthwith and at a minimum on or before December 19, 2012 if it is interested in pursuing such discussions. If the Appellant expresses interest in a meeting, the parties should meet on or before January 15, 2013 and resolve the matter resolved no later than January 31, 2013. Any costs associated with the construction of a new pond should be borne by the Appellant and that there be no change to the assessments set out in the Report.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeals of Mr. Boon under sections 48 and 54 of the Act are denied.

2. The Tribunal confirms the Engineer’s Report and the Court of Revision decision pronounced on May 7, 2012.

3. The non-administrative costs of the municipality for these appeals shall form part of the costs of the drainage works.

4. There will be no other order of costs and all parties are responsible for their own costs.

Dated at London, Ontario this 30^th^ day of November, 2012.