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, (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:

Broken Second Municipal Drain Township of South Dundas

Broken Second Municipal Drain (RE) 2012 ONAFRAAT 43

STATUTE:

Drainage Act

HEARING:

November 30, 2012

DATE OF DECISION:

December 24, 2012

2012-43

NEUTRAL CITATION:

2012 ONAFRAAT 43

BROKEN SECOND MUNICIPAL DRAIN

Township of South Dundas

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 Mark and Heather Stirling of Iroquois, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Broken Second Municipal Drain in The Township of South Dundas.

Before:

Marthanne Robson, Vice-Chair Tim Mousseau, Member Denis Perrault, Member

Appearances:

Heather (Bobier) Stirling and Mark Stirling – Appellants

John Stidwill, SAI Engineering – Engineer who prepared the Report

Brenda Brunt – Clerk of the Township

Don Lewis – Drainage Superintendent for the Township

Frank Buwalda – Assessed Landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Council Chambers, Township of South Dundas, (the Township) in Williamsburg , Ontario on November 30, 2012. Mark Stirling and Heather (Bobier) Stirling (the Appellants) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from a decision of the Court of Revision dated July 11, 2012 on the Engineer’s Report titled Broken Second Municipal Drain (the Drain) revised April, 2012 (the Report), prepared by SAI Engineering and signed by John Stidwill, P.Eng. (the Engineer).

Tracey Henderson, Tribunal Coordinator for the Agriculture, Food and Rural Affairs Appeal Tribunal, performed the duties of the Clerk of the Tribunal.

Based on the evidence at this hearing, the Tribunal will order that the appellants’ appeal be dismissed and that the assessment schedule be revised as per the Court of Revision decisions of June 12 and July 11, 2012.

Background

The Broken Second Municipal Drain is a new drain comprised of a proposed open channel 1,000 metres in length. The new drain is to be located in the former Township of Matilda, now the Township of South Dundas. The Engineer’s Report, dated April, 2012, was prepared pursuant to Section 78 of the Act in response to a petition under Section 4 of the Act. The Report was adopted by Council by By-law 2012-46 on May 15, 2012. Two Court of Revision hearings were held, on June 12, 2012 and July 11, 2012. The estimated cost of the project is $154,961.25, which has been assessed to the affected lands and roads within the watershed.

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 Township filed an Affidavit of Service with the Tribunal as proof that all parties had been served with a notice of hearing.

Mr. Frank Buwalda, an assessed landowner, was granted his request to give evidence at the hearing.

Issue

Should the Appellant’s assessment be reduced?

Evidence

John Stidwill - Engineer who prepared the Report

Background Information

Mr. Stidwill presented the revised Engineer’s report dated April, 2012. The original report on the Broken Second Municipal Drain, dated January, 2012, was referred back to the Engineer by the municipal Council. Certain works in the original report were revised, namely, a proposed section of covered drain was eliminated, the proposed main channel was deepened, and the drain was re-aligned to be perpendicular with the County Road. The estimated cost of construction for the Broken Second Municipal Drain under the revised report is $154,961.25. The total drainage area covered by the report is 87.02 hectares. Mr. Stidwill spoke on a misidentification of property lines in the original report which had resulted in the appellants not being included in the original assessment schedule. This error was corrected in the revised report. Mr. Stidwill indicated that this did not result in any major change to the drainage area.

With respect to assessments, Mr. Stidwill explained the process of determining the individual assessments as indicated in Schedule “A” (Revised) of the Report. He indicated any special assessments were not included in the future maintenance schedule. Mr. Stidwill also explained changes made to the assessment schedule based on the revised scope of work in the revised report. Mr. Stidwill then explained the determination of outlet liability and benefit assessments based on equivalent area requiring drainage. The outlet liability assessments and benefit assessments were calculated in the proportion of 2/3 and 1/3 respectively.

With respect to the assessment on the appellants’ property, Mr. Stidwill provided a breakdown of assessment calculations for certain properties, how the assessment on the appellants’ property specifically was calculated, using drainage area, proximity to the drain and a land use factor. In their particular instance, an outlet liability assessment of $2,851.03 was indicated. Mr. Stidwill noted that a further inspection of the property, under different conditions, resulted in a recommendation at the Court of Revision that the equivalent drainage area for the appellants be reduced from 3.22 to 2.66 hectares. This resulted in a reduction of their outlet liability assessment by approximately $495.00, from $2,851.03 to $2,356.03. The Court of Revision upheld this recommendation.

On questioning by the appellant, the Engineer indicated that he examined their property in the fall of 2011 and in the spring of 2012. An aerial map (Google maps) was marked up by Mr. Stidwill based on his observations in the field. Ontario Base Mapping (OBM ) was also examined during the process. Mr. Stidwill explained the distance factor in the assessment calculation exhibit as being the start of the new open drain. Mr. Stidwill also explained that the version of the plan presented at the second Court of Revision was used for illustrative purposes only. Mr. Stidwill indicated that the plan as included in the revised report dated April, 2012 should be the only plan that should be used. Mr. Stidwill also described a prior revision to the Jackson Drain, which provided for a re-location of the drain on one property, and did not result in any changes to the assessment schedule other than for the property where the work occurred.

Heather (Bobier) Stirling - Appellant

Heather Stirling indicated that she was one and the same person as Heather Bobier, whose name appears along with M. Stirling on the Assessment Schedule under Roll 004-06800. Mark Stirling is her husband.

Ms. Stirling indicated that they are appealing their assessment on the Broken Second Municipal Drain as being too high. Ms. Stirling indicated that a portion of their property is being assessed into three drains, namely the Broken Second Municipal Drain, the Doran Drain and the Jackson Drain. She noted that she received notification of their assessment subsequent to the Provisional By-law being passed and was not aware that their property was being assessed into the Broken Second Drain until after the report was considered by Council. She noted that their property comprises of 18.02 hectares, which 13.3 hectares are assessed into the Doran Creek Drain, listed under “J. Tremblay”, the previous owner of the property, and 4.4 hectares assess into the Jackson Drain. Evidence was provided from previous drainage reports supporting this information. She also indicated that the actual area of their property is 18.08 hectares. This would leave a balance of their property not being assessed into any drainage area of 0.38 hectares.

Ms. Stirling submitted further information regarding the Jackson Drain and Doran Creek drainage reports showing assessments to J. Tremblay, the previous owner. She noted that there is a significant overlap between the Jackson Drain and the Broken Second Drain watersheds. There was no issue with the Doran Creek watershed.

Ms. Stirling submitted photographs taken along the front of their property indicating some flooding that had occurred. Ms. Stirling indicated that due to a blocked culvert, the water was prevented from flowing easterly. She also indicated that their property had been previously assessed for maintenance work on the Jackson Drain, and submitted information from 1998 in that regard.

Ms. Stirling further submitted metadata information, Google Map information and OBM mapping data, indicating that the differences in elevation along the front of their property show that their property drains from west to east. Ms. Stirling also submitted copies of notes from drainage meetings regarding the Broken Second Drain, and exhibits regarding the validity of the Jackson Drain as a municipal drain. She noted that according to the Drainage Superintendent, they would be billed for any work done on the Jackson Drain. Ms. Stirling questioned why information from the Jackson Drain was not bought forward until the Court of Revision. She noted that there was no information provided to the assessed landowners in the Jackson Drain watershed that the watershed area was being changed. She questioned whether the actions of the engineer and/or the municipality were in violation of the Drainage Act.

In her opinion the information submitted by the appellants using Google Earth Pro, OBM mapping and photographs taken at the site all indicate that their property drains easterly into the Jackson Drain watershed. They should not be assessed into two drains for the same section of their property. In her opinion information provided at the Court of Revision did not sufficiently outline the proposed revisions to the watershed area of the Jackson Drain and the new watershed area for the Broken Second Drain.

On cross examination by the engineer, Ms. Stirling indicated that she held no qualifications in geography or map making. Ms. Stirling conceded that her land also drains south, in her opinion to the southeast. Mr. Stidwill noted differences in elevation from the Google Earth data and the OBM data of up to 10 metres have occurred. Mr. Stidwill questioned whether a culvert existed to the east of their property.

Evidence of the Municipality

The municipal clerk, Ms. Brenda Brunt authenticated her handwritten notes from the Court of Revision dated June and July, 2012.

Mr. Stidwill confirmed that the watershed plan in the revised report was an accurate depiction of the drainage flow in the watershed area. Mr. Stidwill noted that based on field observations and measurements, the driveway culvert at the Stirling property, which is located approximately 500 feet east of the Broken Second Drain culvert, is approximately 18-24 inches higher than the Broken Second Drain culvert, indicating a westerly flow, not an easterly flow as suggested by Ms. Stirling. Based on actual field measurements of the Stirling’s driveway entrance culvert, there is a 6 inch downward slope in the culvert from the east side to the west side. Further, based on observations in the field, there is no culvert to the east of the Stirling property, or if there is in fact a culvert, it is completely blocked. Mr. Stidwill did find a small drainage tile at that location. Mr. Stidwill suggested that under certain conditions, excess water could possibly flow to the east, but generally all flow is westerly.

With respect to the Jackson and Doran Creek Drains, Mr. Stidwill admitted there is an overlap between the Jackson Creek and Broken Second Drain watersheds with respect to the Stirling property in the amount of approximately 2.27 hectares of the original 4.4 hectares assessed into the Jackson Drain. Mr. Stidwill noted that there are provisions under the Drainage Act for revisions to the assessments in the Jackson Drain. Mr. Stidwill recommended that measures be taken to remove or “disconnect” this area of overlap from the Jackson Drain.

On questioning by the appellant, the engineer indicated that a re-examination of the Stirling property occurred after the first Court of Revision, and that a measurement was taken of their driveway culvert. Mr. Stidwill also described a road survey done by the municipality confirming the 18 inch westerly flow in the drain. This resulted in the recommendation to the Court of Revision for changes in assessment to the Stirling and other properties. Mr. Stidwill also clarified the use of the watershed map at the Court of Revision, stating that it was only used for illustrative purposes at the meeting.

On questioning by the Tribunal, the engineer provided his calculation as to the drainage areas for assessment purposes for the Stirling property as follows:

Doran Creek Drain 13.3 ha

Broken Second Drain 2.66 ha

Jackson Drain 2.13 ha for a total of 18.08 hectares

Frank Buwalda – Assessed Landowner

Mr. Frank Buwalda indicated he was one of the petitioners for the Broken Second Municipal Drain. Mr. Buwalda also noted that several years previously he farmed the Stirling property.

Mr. Buwalda indicated his property is directly across the road from the Stirling property. He confirmed that drainage in this area is from east to west, as proposed in the report. Due to poor drainage in the ditch in front of his property, he noted that water sits in the ditch, and then flows westerly. The water, in Mr. Buwalda’s opinion, originates from the property to the north, indicating the Stirling property.

Findings

The Tribunal accepts the evidence of the Engineer with respect to the drainage flow and watershed area for the Broken Second Municipal Drain. The information was based on the engineer’s actual field observations, attendance at the site and a review of historical data pertaining to the area. As this is a new drain, the engineer is to establish the area requiring drainage and to determine the best way to provide drainage for the designated area. The overlap between the new area and an existing drainage area was confirmed by the engineer. Any discrepancies in assessment between the Jackson Drain and the Broken Second Drain can be rectified using provisions under the Drainage Act.

The Tribunal also finds that the method of assessment used in calculating the Assessment Schedule in the revised report for the Broken Second Drain was both fair, proper and in compliance with the Drainage Act. The recommendations made by the Engineer at the first Court of Revision, based on a re-examination of the appellants’ property by the engineer, will be upheld. As was indicated at the hearing, no revisions to the assessment schedule based on the Court of Revision have been made to date. Accordingly, the Tribunal will order that these changes be made.

The appellants’ evidence with respect to the drainage flow in the area of their property was not corroborated by any actual field measurements. Ms. Stirling admitted that she has no expertise in geography or map making. The Stirlings do not farm the property themselves; it is rented out. The Tribunal does accept the evidence of Mr. Frank Buwalda, a neighbour with property directly across the road from the Stirling property. Mr. Buwalda has farmed his property for several years and at one time he farmed the property now owned by the Stirlings. Mr. Buwalda’s evidence is that land in the area drains from east to west and that the drainage from the Stirling property flows to the south and collects in a ditch adjacent to his property.

With respect to the appellant’s concern that they are being assessed into two drains for the same section of their property, this duplication was in fact confirmed by the engineer and the engineer provided evidence as to what portions of the Stirling property should be assessed into each of the three municipal drains that affect the Stirling property. The discrepancies in the watershed areas, notably the overlap between the Broken Second Drain and the Jackson Drain can be remedied under the provisions in the Drainage Act.

The Tribunal does wonder if this issue could not have been resolved through better communication between the appellants and the municipality.

In order to ensure that the appellants will not be assessed for future work in two overlapping drainage areas, the Tribunal will order that a notation be made in the Jackson Drain file to the effect that the assessments for the appellants’ property have been revised in the report prepared on the Broken Second Drain. At the point in time when further work is performed on the Jackson Drain, the engineer preparing a report or the municipality when assessing future maintenance costs will be required to take into account any revisions to the drainage area as stipulated in the Broken Second Drain report.

ORDER OF THE TRIBUNAL

The Tribunal Orders as follows:

1. That the appeal by Heather (Bobier) Stirling and Mark Stirling be and is hereby dismissed;
2. That the final assessment schedule for the Broken Second Municipal Drain be amended as follows (as per the decisions of the Court of Revision June 12 and July 11, 2012):
   1. The drainage area for Roll No. 004-06800 (M. Stirling and H. Bobier) be reduced from 3.22 hectares to 2.66 hectares;
   2. The total assessment for Roll No. 004-06800 be reduced from $2851.00 to $2356.03;
   3. That the assessment for Roll No. 004-08010 be increased by $198.34 and that the drainage area be amended accordingly;
   4. That the assessment for Roll No. 004-08000 be increased by $112.89 and that the drainage area be amended accordingly;
   5. That the imbalance in assessment of approximately $183.77 be charged to the municipality.
3. That a notation be placed in the Jackson Drain file reflecting the above changes in assessment as per the Broken Second Drain report.
4. Any additional cost or fees relating to the preparation of an amended Schedule of Assessments shall be born by the Municipality.

Dated at Ottawa, Ontario this 24th day of December, 2012.